Paul A. Ksicinski Law

The misapplication of drug prosecution resources by failing to prosecute pharmaceutical companies and their dealers for prescription drug overdoses

1/19/2015

The "war on drugs" has focused nearly exclusively on the illegal trafficking of drugs like cocaine, heroin, and marijuana, while the most powerful drug dealers of all -- the pharmaceutical companies and their “dealers” -- are allowed to continue business as usual. However, propelled by an increase in prescription narcotic overdoses, drug deaths now outnumber traffic fatalities in the United States, a Los Angeles Times analysis of government data has found. Girion, Glover, Smith, “Drug Deaths now outnumber traffic fatalities in U.S., data show, Los Angeles, Sept. 17, 2011, http://articles.latimes.com/2011/sep/17/local/la-me-drugs-epidemic-20110918 Prescription drug deaths now claim a life every 14 minutes. Id. In 2009, there were nearly 4.6 million drug-related emergency department visits of which about one half (49.8 percent, or 2.3 million) were attributed to adverse reactions to pharmaceuticals and almost one half (45.1 percent, or 2.1 million) were attributed to drug misuse or abuse. Substance Abuse and Mental Health Services Administration, Center for Behavioral Health Statistics and Quality. (Drug Abuse Warning Network December 28, 2010), http://oas.samhsa.gov/2k10/DAWN034/EDHighlights.htm. The most recent example of how doctors become little more than drug dealers occurred at the Veterans Center in Tomah, WI where narcotic painkillers were being hand out so easily that patients were calling the place "Candy Land." VA hospital nicknamed “Candyland” because painkillers given out freely, Chicago Tribune, January 9, 2015, http://www.chicagotribune.com/news/ct-tomah-va-hospital-nw-20150109-story.html#page=1 Prosecution in the area of dealers of prescription drugs needs to be reviewed and treatment for prescription drug addicts needs greater emphasis.

Prescription drugs are just as addictive as illegal drugs. For example, hydrocodone, a prescription opiate, is synthetic heroin. It's indistinguishable from any other heroine as far as your brain and body is concerned. So, if you're hooked on hydrocodone, you are in fact a good-old-fashioned heroin addict. One-third of new addicts report that their first drug experience was with prescription drugs. Overdose victims range in age and circumstance from teenagers who pop pills to get a heroin-like high to middle-aged working men and women who take medications prescribed for strained backs and bum knees and become addicted. The most commonly abused prescription drugs like OxyContin, Vicodin, Xanax and Soma now cause more deaths than heroin and cocaine combined. One relative newcomer to the scene is Fentanyl, a painkiller that comes in the form of patches and lollipops and is 100 times more powerful than morphine.

According to the White House Office of National Drug Control Policy, prescription drugs are second to marijuana as the drug of choice for today's teens. In fact, alcohol and cigarette use have generally decreased over the last two decades, prescription drugs (Adderall, Vicodin, Tranquilizers, Cold Medicines, OxyContin, Ritalin) account for the most drugs abused by 12th graders after marijuana according to the National Institute on Drug Abuse. http://www.drugabuse.gov/related-topics/trends-statistics/infographics/monitoring-future-2014-survey-results

More than 40 percent of high school seniors reported that painkillers are 'fairly' or 'very' easy to get. They also reported that they believed that if they were to get caught, there was less shame attached to the use of prescription drugs than to street drugs. This mirrors the perceptions of their parents, who when queried said that they felt prescription drugs were a safer alternative to drugs typically sold by a drug dealer. And in 2009, there were nearly 4.6 million drug-related visits to U.S. emergency rooms nationwide, with more than half due to adverse reactions to prescription medications – most of which were being taken exactly as prescribed. Worse, it has been found that pediatric prescription drug abuse is getting worse. More children are exposed, more are seen in an ED, more are admitted, and more are injured each year. See, Bond, Woodward, Ho, “The Growing Impact of Pediatric Pharmaceutical Poisoning,” 160 Journal of Pediatrics 265-270 (Feb. 2012), http://www.jpeds.com/article/S0022-3476%2811%2900771-2/fulltext

Prescription medications can be beneficial. But medications are prescribed in harmful even lethal ways. The growing number of deaths due to prescription drug use, even when taken as prescribed, needs investigation by law enforcement in its “war on drugs.”

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Do you want your government to be more efficient?

1/17/2015

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I just viewed an episode from the original Star Trek series where Kirk and Spock look for a missing history professor, John Gill, who was sent to a planet to observe its development. Kirk and Spock find the planet has modeled its culture after the German Nazi Party of old Earth in the 1930's. Kirk and Spock find John Gill is responsible for the planet adopting the ways of the Nazi Party. Kirk asks Gill why he had the adopted the horrific methods of the Nazis. Gill answers that when he arrived he found the planet badly fragmented and divided. To end the disorganization, Gill turned to Earth history and adopted the policies of Nazi Germany. Kirk demands Gill explain why he would adopt Nazi policies when Gill “knew what they were.”   Gill's answer is chilling. Gill adopted the Nazi culture because Nazi Germany was the “most efficient State Earth ever knew…” Spock further explains, “Quite true. A tiny country. Beaten. Bankrupt. Defeated. Rose in a few years to stand only one step away from global domination.” But Kirk says that efficiency leading to global domination was “brutal, perverted” that had to be destroyed at a terrible cost. Spock then suggests that perhaps Gill believed that the Nazi system, run benignly, could be run efficiently without sadism.

Today, many are saying the United States needs to be run more efficiently. Usually this is followed by the comment that government should be run like a business. Should efficiency be the paramount value for our government?   If so, the Star Trek episode is right on point. The first place in efficiency must go to dictatorships--the viler, the more efficient. The more absolute the power of the local tyrant, the more rapidly and completely his policy desires are implemented. Cruelty and unpredictability are the techniques of the real efficiency experts. Dissidents complaining? Just shoot them. Citizens acting up? Arrest them on trumped up traffic charges as terrorists against the State. Or even torture them--making sure to include some of your previous favorites like waterboarding--and the rest will snap into line. Make sure they stay in line by the government monitoring all forms of communication. Maybe even have drone planes spying on citizens just to be safe.

But that kind of behavior is not what we want in America, is it? Our Founding Fathers agreed that America was founded on natural laws that certain “truths [are] self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Moreover, to secure these natural rights, a government must derive any government power from the people. Finding the consent of the people to run the government is not very efficient. That is the opposite of the rapidly executed and efficient power of a dictator. But adhering to the principles of the Declaration of Independence, Abraham Lincoln said in his October 1854 Peoria speech, is the only way to save the Union and keep it worthy of being saved.   Likewise the United States Supreme Court has held that “it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government." Cotting v. Godard, 183 U.S. 79 (1901). Earlier, in The Amistad, 40 U.S. 518 (1841) the Court said that our government was based on the principles promulgated in the Declaration of Independence. By adhering to these principles our government remains one of just and equal law, not of men. Yick Wo v. Hopkins, 118 U.S. 356 (1886)

Does our government itself bear marks that it was designed for efficiency of inefficiency? More importantly, if it is efficiency, for what purpose is efficiency promoted? Perhaps the best example of how federal and state governments are designed to be run inefficiently is the principle of separation of powers. The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher and is the basis of our Constitution. A separation of powers means the political authority of the state is divided into legislative, executive and judicial powers. Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances. Interestingly, Montesquieu believed that to most effectively promote liberty, these three powers must be separate and acting independently. The argument from liberty holds that separation is needed in order to prevent tyranny. According to The Federalist Papers, "The accumulation of all powers legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." Alexander Hamilton, James Madison, John Jay, The Federalist Papers (New York: New American Library, 1961), 47, p. 301.

Clearly, our Founding Fathers did not want a more efficient government. The separation of powers they created is a restraint based on inefficiency with our freedom guarded not by fierce virtue of politicians but by simple unfeasibility or unconstitutionality of a more efficient process.

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CAN THE GOVERNMENT TELL ME WHAT I CAN OR CANNOT WEAR?

1/14/2015

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The chair of the Oklahoma’s public safety committee introduced a bill, state senator Don Barrington (R) said, that would make “it unlawful to wear a mask, hood or covering during the commission of a crime OR to intentionally conceal a person’s identity in a public place.” He says it is to cut down on crime, but it wouldn’t apply to Halloween, parties, State sanctioned parades or “those wearing coverings required by their religious beliefs.”

That means if it is a part of your religion to wear a hood during a crime, you cannot be prosecuted under this law. But, if I am protesting a government policy and am wearing a mask, say like the Guy Fawkes mask worn by Anonymous “hacktivists,” does the constitution allow me to be arrested for violating this law? Why does the government have the right to tell me what to wear or not wear? There is little to be found in American history concerning a person’s right to choose his personal appearance.

This situation exists because it was thought to be such a fundamental right that its existence was taken for granted. For instance, there was considerable debate in colonial America about what rights should be specifically enumerated in the Bill of Rights. See, Hamilton, Madison, Jay, The Federalist Papers, (1961) Chap. 38, 84; Jefferson, T., On Democracy (Saul K. Padover e.d. 1939) p.47. During the 1789 Congressional debates, there was much discussion about whether the right of assembly should be mentioned in the Bill of Rights. Brant, I., The Bill of Rights (1965) p.53-67. It was in the midst of this discussion that Congressman Benson of New York stated this right should be included so that it could not be infringed upon by the government. Congressman Sedgwick of Massachusetts responded by stating:

If the committee were governed by that general principle... they might have declared that a man should have a right to wear his hat if he pleased... but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed.” Id., at 54-55. Emphasis added.

The history of the adoption of our Bill of Rights demonstrates that our forefathers clearly believed there to be a right in one’s personal appearance but was of such a trifling nature that it need not be included in the enumerated rights contained in the Bill of Rights. Therefore, court’s have found that one’s personal appearance is deserving of constitutional protection. Peppies-Courtesy Cab Co. v. City of Kenosha, 165 Wis. 2d 397; 475 N.W.2d 156 (1991) (ordinance requiring cab drivers to cut hair unconstitutional); Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969) (personal hair length is personal freedom protected by the United States Constitution).

The US Supreme Court, back when it believed that people not corporations had rights, held that an individual had a fundamental right to travel, eat, and choose what to wear or what to read. Kent v. Dulles, 357 U.S. 116, 125 (1958). Clearly, the choice of what a person wears is a matter of taste for the individual and not a matter of regulation by the government. Cohen v. California, 403 U.S.15, 25 (1971) (wearing jacket with the words “Fuck the Draft” on it). The right to control the appearence one’s own body necessarily means a person has the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. Olmstead v. U.S., 277 U.S. 438,478 (Brandeis, J., dissenting). The right to one’s own personal appearance is a personal freedom protected under the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969). The right to your personal appearance is "implicit in the 'liberty' assurance of the Due Process Clause." Richards v. Thurston, 424 F.2d 1281, 1284 (1st Cir. 1970).

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THE MYTH OF EYEWITNESS CONFIDENCE RELATING TO EYEWITNESS ACCURACY

1/7/2015

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Justice is hopefully always a part of the criminal justice process even if it is not always the result. Therefore, when investigating eyewitness cases it is important to remember that the results of the identification process are not the best focus; the prosecutor will cheerfully tell jurors the results. The real subject of an eyewitness investigation is the process itself. The answers the witness gave are less important here than the means by which the answers were elicited, and the ways in which the answers were received. Specifically, how did the process help to build the eyewitness' confidence?

This is an incredibly important question given that jurors are overly reliant on eyewitnesses’ stated confidence in their identifications. Neil Brewer & Anne Burke, Effects of Testimonial Inconsistencies and Eyewitness Confidence on Mock-Juror Judgments, 26 LAW & HUM. BEHAV. 353, 361 (2002); Elizabeth R. Tenney et al., Calibration Trumps Confidence as a Basis for Witness Credibility, 18 PSYCHOL. SCI. 46, 49 (2007). In one study, the confidence expressed by the eyewitness was a stronger predictor of jurors’ verdicts than the accuracy of the identification. R.C.L. Lindsay et al., Mock-Juror Belief of Accurate and Inaccurate Eyewitnesses: A Replication and Extension, 13 LAW & HUM. BEHAV. 333, 337 (1989). Several other studies have documented the impact of witness confidence on jurors’ judgments. E.g., Amy L. Bradfield & Gary L. Wells, The Perceived Validity of Eyewitness Identification Testimony: A Test of the Five Biggers Criteria, 24 LAW & HUM. BEHAV. 581, 590–92 (2000); Neil Brewer & Anne Burke, Effects of Testimonial Inconsistencies and Eyewitness Confidence on Mock Juror Judgments, 26 LAW & HUM. BEHAV. 353, 361 (2002)

However, psychological research indicate that in many cases the confidence an eyewitness has in his/her identification has little or no correlation with the eyewitness' accuracy. Penrod & Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psych. Pub. Pol. & Law 817, 825 (1995) (after reviewing many studies, authors conclude "under the conditions that typically prevail in short criminal encounters . . . witness confidence is largely unrelated to accuracy, and confidence in having made a correct identification is, at best, only modestly associated with identification accuracy.")

Despite the research that confidence is at best a weak indicator of accuracy, and is usually no indicator at all, jurors rely more on the eyewitness' confidence than they do on genuine identification factors such as disguise, weapon focus, violence and retention intervals in evaluating eyewitness testimony. Cutler, Penrod & Stuve, Juror Decision-Making in Eyewitness Identification Cases, 12 Law & Human Behavior 41 (1988). Even worse, experienced lawyers don't seem to be any better at improving this situation than do third-year law students. Lindsay, Wells & O'Connor, Mock Juror Belief of Accurate and Inaccurate Eyewitnesses: A Replication and Extension, 13 Law & Human Behavior 333 (1989).

Knowledge of the extensive psychological findings on these issues (which are easily available in a variety of forms) fuels an accurate investigation of how the police -- sometimes unknowingly -- augmented the witness's progress towards confidence. See, e.g., Cutler & Penrod, Mistaken Identification: The Eyewitness, Psychology and the Law (1995), available at https://www.ncjrs.gov/pdffiles1/Digitization/159775NCJRS.pdf Clearly, an eyewitness’s confidence can be influenced by post-event experiences that are unrelated to identification accuracy, see, C. A. Elizabeth Luus & Gary Wells, The Malleability of Eyewitness Confidence: Co-witness and Perseverance Effects, 79 J. APPLIED PSYCHOL. 714-23 (1994) (confidence deflation occurred among witnesses who thought their co-witness either identified another person or had stated that the thief was not in the lineup. Initial co-witness information was not mitigated by subsequent changes to that information); John S. Shaw, Increases in Eyewitness Confidence Resulting from Postevent Questioning, 2 J. EXPERIMENTAL PSYCHOL.: APPLIED 126-46 (1996). Further, it is accepted that a law officer who knows which member of a lineup or photo array is the suspect can bias a witness’s selection. Mark R. Phillips et al., Double-Blind Photoarray Administration as a Safeguard Against Investigator Bias, 84 J. APPLIED PSYCHOL. 94051 (1999).

In fact, eyewitnesses readily revise their confidence estimates upwards, and downgrade them less easily. Luus & Wells, The Malleability of Eyewitness Confidence: Co-Witness and Perseverance Effects, 79 J. Applied Psychology 714 (1994) Research indicates that as eyewitness' levels of confidence improve, they improve their accounts of the details of the event (e.g., the lighting, their opportunity to observe, the features they remember) accordingly. Cohen, I Could Swear It Was Him, Officer, New Scientist, January 18, 1997, at 11, as cited in Steele, Advice to Connecticut counsel following State v. Ledbetter, 25 QLR, 799 (2007), http://www.quinnipiac.edu/prebuilt/pdf/SchoolLaw/LawReviewLibrary/32_25QLR799%282006-2007%29.pdf

Given this research, the judicial response to the confidence that an eyewitness expresses must be to exclude that as an irrelevant evidence in court. Unfortunately, experienced trial attorneys know that exactly the opposite is true. Since Manson v. Braithwaite, 432 U.S. 98 (1977), only a tiny portion of eyewitness identifications are suppressed. In fact, the Manson opinion holds that witness confidence is a perfectly good indicator of reliability. Id. Also, it's important to remember that the suppression of one suggestive identification is not much help. Unless all identifications are suppressed the defense will need the first, suggestive, identification to undercut subsequent "independent" identifications. Elizabeth Loftus & James Doyle, Eyewitness Testimony: Civil and Criminal, (1997). Unfortunately, experiences indicates there remains judicial hostility to expert testimony on eyewitness identification remains and judicial ingenuity in avoiding its admission continues. United States v. Brien, 59 F.3d 274 (1st Cir. 1995)

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Discussion of current legal issues

The misapplication of drug prosecution resources by failing to prosecute pharmaceutical companies and their dealers for prescription drug overdoses

Do you want your government to be more efficient?

CAN THE GOVERNMENT TELL ME WHAT I CAN OR CANNOT WEAR?

THE MYTH OF EYEWITNESS CONFIDENCE RELATING TO EYEWITNESS ACCURACY

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