Aggressively Defending My Clients Since 1990


On Behalf of | Jun 27, 2016 | Firm News

Too great brevity of discourse tends to obscurity.
Blaise Pascal (1623–1662), French scientist, philosopher

I spend a good deal of my time thinking about why we think or believe certain things.  I have found that most people get deeply troubled when they state to me a heartfelt belief and I ask them one simple question:  “Why?”

Many in the criminal system come to hold beliefs for obscure, and unexamined, reasons.  That, in itself, is pretty amazing.  Here you have individuals who have went through not only high school but college and even continued on to professional degrees. Presumably, they have done some thinking along the way their professional capacity are afraid to think about why they hold certain beliefs.  Somewhere they lost the intellectual capacity to be curious and ask “why.”  Those who are hostile to examining their thoughts feel the pursuit of a complex thought tiresome preferring to simply accept the explanation of “that is the way we do things around here.”  I believe, however, brevity is never a virtue when it obscures the pursuit of a complex thought.

Which leads me to discuss a sentencing hearing I had last week.  Lawyers in sentencing hearings many times make unsubstantiated, general statements which may sound good at the time but are in reality nothing but intellectual gibberish.  For instance, Wisconsin has a status offense known as operating after revocation (OAR) of your driver’s license.  This law is broken if you drive a vehicle on a highway after know your driver’s license has been revoked.  Regardless of how bad or good you were operating a vehicle on a road, if a cop pulls you over for say a burned out tail light and finds your license has been revoked, you can be criminally convicted of this offense.  The number of tax dollars wasted in the criminal prosecution of this offense is incredible.  More incredible is when you hear a prosecutor explain to a judge at sentencing on this offense that this is a “serious OAR” and asks for jail time.  I have to wonder if a prosecutor who says an OAR is serious means that the OAR is like a homicide because it is a violent offense.

Which brings me the sentencing hearing last week.  The prosecutor was trying to justify her sentencing recommendation that a person go to prison since the offense was a “violent” crime.  Saying someone is violent in the criminal system has severe consequences.  Considered violent in the criminal system may restrict housing, employment, voting and a range of benefits.  A violent felony might preclude someone from finding work; a nonviolent conviction might not.  Most judges will sentence a defendant more harshly with a longer sentence if the person is convicted of a violent crime.  And if that violent offender commits another offense, even if it is nonviolent, most prosecutors will refer to the offender as violent when sentencing on the second offense.

So what do we mean when we say an offense is violent?  Well obviously we know homicide is a violent offense because of the great social cost and suffering.  So in that same category we can include things like sexual assault battery or armed robbery.  But if our standard of what is violent is that offense which causes “great social cost and suffering,” should not businesses that cause pollution leading people to experience irritation of the eyes, nose, and throat, wheezing, coughing, chest tightness, and breathing difficulties, worsening of existing lung and heart problems, such as asthma and even increased risk of heart attack be considered violent offenders because of the great social cost and suffering caused?  And what of the “great social cost and suffering,”caused by selling alcohol or cigarettes, especially to a minor?

And let’s not forget drug offenses.  Fortunately, we have the National Association of Assistant United States Attorneys who have in July 2015 explained to us that it is “well-established [that] drug trafficking is inherently violent.”  This explanation is offered since some people, like President Obama, now realize that “we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before. And that is the real reason our prison population is so high.”

So we must ask ourselves: why think of drug offenses are violent?  Interestingly, from 1995 to 2012, drug use has slightly increased or stayed the same in the United States according to a drug use survey.  Also, in this same period, drug arrests have increased between 1995 and 2009.  And violent crime has steadily decreased during the period between 1995 and 2012. If the drug-violence connection existed as drug use increases then violent crime should also increase, rather than steadily decline. Though, there can be an argument that because drug arrests have increased, this has caused the steady decline in violent crime.  All of these assertions are not easily determined so at best the arrest data is inconclusive on a drug-violence connection.

But doesn’t the evidence show that drugs cause violence?  Actually, there is no solid empirical support for a direct relationship between drugs and violence, but because the data on this topic contradicts what we believe, it is disregarded.  See, Michelle Torok, et al., Conduct Disorder as a Risk Factor for Violent Victimization and Offending among Regular Illicit Drug Users, J. DRUG ISSUES 25, 25–26 (2011) (“Despite the available evidence, little is actually known about the causal mechanisms associating substance use and violence.”); Atkinson, et al., Interpersonal Violence and Illicit Drug Use, WORLD HEALTH ORGANIZATION COLLABORATING CENTRE FOR VIOLENCE PREVENTION 1 (2009) (stating that violence and illicit drug use are strongly linked, however, whether the relationship is an association or causal is still debated); Deborah W. Denno, When Bad Things Happen to Good Intentions: The Development and Demise of a Task Force Examining the Drugs-Violence Interrelationship, 63 ALB. L. REV. 749, 756 (2000) (stating that the final report of a taskforce established to study the drug-violence nexus “concluded that drug-crime relationships were not nearly as clear or as strong as politicians and legislatures had presumed based upon the motivations for enacting the drug laws.”); Richard J. Gelles & Mary M. Cavanaugh, Association Is Not Causation: Alcohol and Other Drugs Do Not Cause Violencein CURRENT CONTROVERSIES ON FAMILY VIOLENCE, 175, 180 (Donileen R. Loseke, et al. ed., 2d ed. 2005) at 177 (“[T]here is little scientific evidence to support the theory that alcohol and drugs such as cocaine and crack have chemical and pharmacological properties that directly produce violent and abusive behavior.”).

But we all know that there is evidence that drugs cause crime, right?  Short answer, no.  “Despite drug use among persons arrested for other criminal activity, however, drug policy reform advocates stress that: (1) most research testing the drugs-cause-crimes argument actually implies that there is only a loose connection between drug use and criminal activity, if there is one at all; and (2) substantial research also demonstrates that much (most) of the so-called drug-related violence actually results from the systemic factors arising because of drug prohibition, not from drug use itself.”  Bruce L. Benson, Escalating the War on Drugs: Causes and Unintended Consequences, 20 STAN. L. & POL’Y REV. 293, 350–51 (2009).

Wow!  That last point is pretty amazing!  Can it be that as we try to prohibit drugs, we are ourselves causing violence?  Unfortunately, yes.  Peter Andreas & Joel Wallman, Illicit Markets and Violence: What Is the Relationship?in CRIME, LAW & SOCIAL CHANGE 227 (2009) (explaining that high-profile crackdowns often fuel the violence rather than stifle it, and that many times it causes violence to spike)David W. Rasmussen & Bruce L. Benson, Rationalizing Drug Policy Under Federalism, 30 Fla. St. U. L. Rev. 679, 710 n.123 (2003) (discussing a study which found that “as drug enforcement increases, violent crime also increases.”); Jeffrey A. Miron, Violence and the U.S. Prohibitions of Drugs and Alcohol, AM. L. & ECON. REV. 78, 79 (1999) (arguing that increased homicide rates over the past 100 years is due in part to the influence of prohibition enforcement. “Assuming the estimated relation is causal, the estimates presented here suggest the homicide rate is currently 25%-75% higher than it would be in the absence of drug prohibition.” Id. at 79.); “At a minimum, this evidence fails to make a prima facie case that such prohibitions reduce violence by reducing alcohol or drug consumption . . . .” Id. at 109. John T. Schuler, Notes from the Front: A Dissident Law-Enforcement Perspective on Drug Prohibition, 18 HOFSTRA L. REV. 893, 901–03 (1990) (“The violence related to illegal drug trafficking is an inescapable consequence of prohibition”).

Some courts have begun to realize that is not drugs that cause violence but other factors.  See, e.g.Young v. County of Cook, 598 F. Supp. 2d 854, 867 (N.D. Ill. 2009) (finding that money and not drugs could lead to violence by detainees); United States v. Caro, 597 F.3d 608, 641 (4th Cir. 2010) (Gregory, J., dissenting) (stating drug offenses’ association with violence are one of many factors including family conflict, poverty, community disorganization, and others).

All this indicates to me there needs to be much more research done on what we consider a violent criminal offense.  More importantly maybe we need to examine closely how we think about the drug violence connection.