Proposed new law will help Chicago Police to conduct preliminary field tests of suspected narcotics

The Cook County State’s Attorney’s office is about to get a bill passed that will save police and prosecutions all the time and effort of accurately determining whether someone actually possesses narcotics before charging them with a felony.  If the law passes, they will be able to get felony charges approved using the results from less accurate field kits.

From the Chicago Daily Law Bulletin:

SPRINGFIELD — A proposal to equip Chicago police with field drug tests is one step closer to becoming law.

The legislation, which passed unanimously through the House Judiciary-Criminal Committee on Wednesday, would create a pilot program for Chicago police officers to test suspicious controlled substances at police stations instead of waiting for a result from a crime lab.

It would also deem the tests — which can check for marijuana, heroin and cocaine — admissible to establish probable cause in preliminary trial hearings.

Under current law, probable cause hearings in illicit substance cases cannot happen until an Illinois State Police chemistry lab sends drug test results back to a state’s attorney.

That process, according to the bill and Cook County Assistant State’s Attorney John P. Carroll Jr., takes about two weeks.

The bill’s sponsor, Rep. Michael J. Zalewski, D-Riverside, said implementing the field tests would not only expedite that process, it would also lessen crime labs’ burdens so they can focus on more important tests such as rape kits…

Carroll said field-testing benefits would be twofold.

Administering a field test could potentially allow a defendant to leave the police station as soon as it indicated a negative result, he said, and it would save money because the Cook County Department of Corrections spends $143 per day per defendant to hold someone while awaiting the same results from a crime lab.

He pointed to 2013 preliminary court hearing numbers to highlight the time that could be saved by allowing field drug tests. About 6,000 of that year’s 22,000 preliminary hearings resulted with a no probable cause finding.

He said a vast majority of those cases involved low-level narcotics.

“I think this represents a really good bill that would move low-level narcotics cases through the system much faster,” he said

While the bill would allow the tests to establish probable cause in a preliminary hearing, an official lab test would still be necessary for trial. Once a field test comes back positive and establishes probable cause, Carroll said, only then would the state’s attorney call for an official lab report from the state police.

Man clenches his butt, police get doctors to probe him for hours and hours

Here is an amazing story out of New Mexico.  Local police made a traffic stop, and when the police decided that the driver clenched his buttocks too much, they proceeded to obtain a search warrant to take him to a hospital to conduct numerous medical tests, including x-rays and probes.  The doctor at the first hospital refused to perform the tests, so the driver was taken to a second hospital.  As it turns out, the tests were outside the limits of the search warrant (which only allowed for a test within a few hours and within that particular county).

Now the cops, prosecutors, doctors and hospitals are all part of a civil rights lawsuit.

Here is an excerpt from the story:

The incident began January 2, 2013 after David Eckert finished shopping at the Wal-Mart in Deming.  According to a federal lawsuit, Eckert didn’t make a complete stop at a stop sign coming out of the parking lot and was immediately stopped by law enforcement.

Eckert’s attorney, Shannon Kennedy, said in an interview with KOB that after law enforcement asked him to step out of the vehicle, he appeared to be clenching his buttocks.  Law enforcement thought that was probable cause to suspect that Eckert was hiding narcotics in his anal cavity.  While officers detained Eckert, they secured a search warrant from a judge that allowed for an anal cavity search.

The lawsuit claims that Deming Police tried taking Eckert to an emergency room in Deming, but a doctor there refused to perform the anal cavity search citing it was “unethical.”

But physicians at the Gila Regional Medical Center in Silver City agreed to perform the procedure and a few hours later, Eckert was admitted.

What Happened

While there, Eckert was subjected to repeated and humiliating forced medical procedures.  A review of Eckert’s medical records, which he released to KOB, and details in the lawsuit show the following happened:

1. Eckert’s abdominal area was x-rayed; no narcotics were found.

2. Doctors then performed an exam of Eckert’s anus with their fingers; no narcotics were found.

3. Doctors performed a second exam of Eckert’s anus with their fingers; no narcotics were found.

4. Doctors penetrated Eckert’s anus to insert an enema.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

5. Doctors penetrated Eckert’s anus to insert an enema a second time.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

6. Doctors penetrated Eckert’s anus to insert an enema a third time.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

7. Doctors then x-rayed Eckert again; no narcotics were found.

8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert’s anus, rectum, colon, and large intestines.  No narcotics were found.

Throughout this ordeal, Eckert protested and never gave doctors at the Gila Regional Medical Center consent to perform any of these medical procedures.



More proof that the “War on Drugs” has gone too far

So you are pulled over for a traffic violation, and the police find a small amount of marijuana in your car.

Of course, being forcibly injected with a muscle relaxer, then intubated with a breathing tube and having the police probe your buttocks is just what you expected to happen next.

Oh you didn’t?  What country do you live in?


Police violated a suspect’s Fourth Amendment rights when, in an attempt to find drugs on his person, they temporarily paralyzed him and administered an anal probe, a US federal court has ruled.

Felix Booker and his brother were driving through Oak Ridge, Tennessee in February 2010 when police stopped their vehicle. Smelling marijuana, police brought a K-9 unit to the scene, which alerted them to drugs in the car. Even though police are only authorized to give a ticket when finding less than 14 grams of marijuana, officers arrested Booker after finding .06 grams in his car.
The suspect was booked for felony possession of marijuana and strip-searched at the police station. At that point investigators noticed Booker was “fidgeting” and a doctor threatened to temporarily paralyze him if he did not consent to an anal probe.
Booker, who was handcuffed and naked except for a thin hospital apron, consented but doctors later testified that he still “clenched” during the invasive search. He was injected with a muscle relaxant with a tube forced down his throat to regulate his breathing.
Dr. Michael LaPaglia then found 10.2 grams of crack cocaine hidden in Booker’s rectum. The doctor estimated that Booker had been physically incapacitated for under ten minutes and strapped to a breathing machine for an hour. He was convicted of possession with intent to distribute and sentenced to five years in prison.
The US Court of appeals for the Sixth Circuit, in a 2-1 ruling Monday, overturned his conviction and said that police could not use the drugs obtained from inside Booker against him because the paralysis, intubation, and anal probe were in clear violation of Booker’s Fourth Amendment rights.
An attorney for the police said LaPaglia, not officers, was responsible for the cavity search. The court, not entirely disagreeing, said police frequently took suspects to LaPaglia when they suspected drugs were in an individual’s rectum and that they “effectively used Dr. LaPaglia as a tool to perform a search on Booker’s person.”
The judges, as quoted by Think Progress, said a medical procedure of this sort does not “immunize the procedures from Fourth Amendment scrutiny” and that such cooperation between police and the doctor “is one of the greatest dignitary intrusions that could flow from a medical procedure.”
In another recent incident of police testing the limit of “reasonable search and seizure,” two Texas state troopers were indicted earlier this year for sexual assault and oppression after they were recorded searching a woman’s anus and vagina when she threw a cigarette out of her car window.

Professor Leitzel and his economic argument for drug legalization

Today, I am going to link to an interview by Michael Dumke of the Chicago Reader with professor James Leitzel, who has a Ph.D in economics and teaches economics and public policy at the University of Chicago.  The interview is about his economic argument against drug prohibition.

The professor is advocating a version of drug legalization, with some “conservative defaults built into the system” to try to limit the damage caused by drug addiction, such as requiring that people obtain a license before being able to purchase hard drugs.  This license, he suggests, would only be available to people over the age of 21 who have passed a test demonstrating that they are aware of the dangers of narcotics.

Many moons ago, I attended the University of Chicago, and when I first arrived as an undergraduate, I was strongly considering majoring in economics.  But I was turned off by the assumptions that economists make that people are “rational actors” and that absent governmental intrusion, the “invisible hand of the free market” will self-regulate and benefit everyone. To the contrary, my experience is that people make decisions based on a number of conscious and unconscious reasons, often, not very rationally.

Leitzel does acknowledge that drugs are a little different, because of their addictive power.  He says “[y]ou’ve probably heard the story: people start using heroin to feel good, and they end up taking heroin to feel normal.”  So he backs away from a complete free market by proposing some governmental regulations designed to minimize the likelihood of addiction.

In fact, he says: “So what we want is some sort of policy that would work pretty well no matter how much of the behavior is rational. It shouldn’t be something that only makes sense if everybody is rational, like laissez-faire, and it shouldn’t be something that only makes sense if everybody’s irrational, which is to lock up everybody who’s using it.”

I just don’t see how to draw these lines without still creating a black market for whoever is unable to legally obtain their drug of choice.  To see a real life example, just look at Oxycontin, which is a legal pain medication, available through prescription.  Because it is so addictive, we require that doctors only prescribe this medication in limited quantities.  Because of this, a vibrant black market for these pills has emerged.

Further, I have no doubt that legalization of hard drugs will, over time, lead to a vast increase in the number of addicts.  For all the problems that drug prohibition have caused, don’t they pale in comparison to damage caused by heroin and other narcotics?

I think that the “economic” argument ignores the moral argument.  When a government says that it is illegal to possess heroin, it is sending a strong message that we condemn heroin use.  Do we want to throw that away?

Yet, on the other hand, I tend to agree with Leitzel’s statement that “I wouldn’t recommend [heroin]. But I don’t like the idea of putting people in prison for wanting to consume a drug.”

The answer for me, and I think for people like Professor Leitzel, is that we need a new paradigm for how we deal with narcotics and addicts.  I don’t necessarily agree with a lot of what he has to say, but I like that he is trying to think critically and is not censoring himself for fear of not being politically correct.  If we all did that, then we could have a healthy dialogue and maybe change things for the better.

Gotta blame someone, right? Our “drug induced homicide” law

keatingThe Chicago Tribune is reporting that a Romeoville woman is being charged with “drug induced homicide” in the heroin overdose death of a young man a year and a half ago.  According to the story:

A 22-year-old Romeoville woman serving time in the Illinois Department of Corrections on two Will County drug convictions has been charged with drug-induced homicide in the fatal heroin overdose of a 20-year-old Plainfield-area man in 2011.

Will County Sheriff’s Police spokeswoman Kathy Hoffmeyer said Kristina L. Keating, of the 2000 block of Whitmore Drive, provided Emelio R. Medina with heroin on Oct. 28, 2011, from a source in Chicago. Medina’s mother and sister found him unresponsive in his bedroom around 1 p.m. the next day, Hoffmeyer said.

Keating and two other friends told investigators they had been with Medina the previous night at his home, where he was restricted as the result of a residential burglary conviction, Hoffmeyer said. …

She is the second person this week to be charged with drug-induced homicide, a Class X felony …

The statute states:

(720 ILCS 5/9-3.3) (from Ch. 38, par. 9-3.3)
    Sec. 9-3.3. Drug-induced homicide.
    (a) A person who violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person's death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance, commits the offense of drug-induced homicide.
    (b) Sentence. Drug-induced homicide is a Class X felony.
    (c) A person who commits drug-induced homicide by violating subsection (a) or subsection (c) of Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act commits a Class X felony for which the defendant shall in addition to a sentence authorized by law, be sentenced to a term of imprisonment of not less than 15 years and not more than 30 years or an extended term of not less than 30 years and not more than 60 years.
(Source: P.A. 97-191, eff. 7-22-11.)

While the original idea behind this statute was to punish drug dealers for poisoning our youth, in my experience, the reality of actual “drug induced homicide” cases is that they are about two friends/lovers/co-dependent addicts who are sharing heroin.  One dies, and the other is charged as if he or she is at fault.

All that is required for this charge is a “delivery” of a controlled substance, which causes death.  A “delivery” occurs just by handing someone some drugs.  No sale is required.

I suspect that a lot of these prosecutions are urged on by grieving parents.  No one has to tell me what it is like to have a loved one die because of a heroin addiction.  It has happened in my family.  I have also seen it with clients.  I suppose that it is only natural that the parents of the deceased will seek to blame someone else for the death — and ignore the fact that it was their son or daughter who injected themselves with the drugs.  Instead, their target becomes the boyfriend who got her started on heroin or the girlfriend who kept causing him to relapse.

I don’t deny that often there is some truth to these assertions.  But the fact is that an addict will keep hanging around the people, places and things that are bad for him because he craves that hit and he wants to be around those people that can provide it.

The person who usually gets charged with “drug induced homicide” is not a pusher but a fellow addict, someone who cannot control his or her own cravings, and someone who, but for the grace of god, is lucky to still be alive.

What is gained by prosecuting such a person, assigning blame for a homicide, and locking him up from fifteen to sixty years?  Why not just charge him with possession of narcotics, and send him to treatment and random urine tests? One approach condemns, the other might save.

What do you think?

Federal Judge writes article about extreme mandatory minimum sentencing for non-violent offenders

Judge Mark W. Bennett, who sits in the Northern District of Iowa, has written a compelling article for The Nation about our over the top mandatory minimum sentencing guidelines for non-violent drug offenders.  He has had to sentence over 1,000 non-violent drug offenders over the past 19 years.

Here is an excerpt:

Crack defendants are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights. Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

Read the whole article here:  How Mandatory Minimums Forced me to Send More than 1,000 Nonviolent Drug Offenders to Federal Prison.

Defending Addicts: the attorney’s dilemma

Steve Bogira, the writer for the Chicago Reader and author of the excellent book Courtroom 302 about a year at the Cook Country Criminal Courts Building (now re-named the Leighton Courthouse), has a blog post up about how the Drew Peterson case is atypical from most criminal cases.

The section of the post that stood out for me, because it captures the dilemma that faces attorneys who handle DUI and drug cases, is this:

Imagine you’re a public defender. You’re assigned yet another case in which a defendant is accused of a petty drug crime.

It’s a winnable case—the police reports suggest the arresting officer might not have had probable cause to search your new client.

But your client has a long history of narcotics offenses, and freely admits to you that he has an addiction. If he’s willing to plead guilty, you might be able to get him probation and treatment.

That’s probably a good deal for the defendant, if treatment goes well. But if it doesn’t go well and he violates his probation, he’s heading to prison for a case you could have helped him beat.

Then again, if he declines to plea and ends up winning his case, what he may have won is the chance to go back to smoking crack or snorting blow, and you may have missed a chance to help him clean up.

This is a dilemma that I have often faced.  How do I best represent my client — by getting him or her into court mandated treatment or by trying to win the case, leaving him or her free to persist in self-destroying behavior?  Yes, a person can always enter treatment on a voluntary basis, but most who are enter rehab are there by court order.

I have had many “repeat” clients.  Some have eventually cleaned up, but I know that their hard-won sobriety can end at any moment.  I have represented addicts who have relapsed after lengthy periods of abstinence – several after more than 10 years of sobriety.  I have also represented way too many who have died because their addictions controlled their lives — including one young woman who was found by her mother lying on her bed with a needle in her arm.

As Bogira states in the article, “[m]ost PDs will tell you they leave such a choice to their client,”  and this is in fact required by the Illinois Rules of Professional Conduct, which state that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after disclosure by the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.”  Rule 1.2  The Rules also state that “as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  Preamble, Par. 2.

Here is a further complication — lets say that the offense is one which is not expungeable.  That means that if the client takes the plea offer, he or she will be a convicted criminal, and may be barred from their occupation of choice, or for that matter, any decent job.  I get calls all the time from people who have turned around their lives and are trying to support families, but are hindered because of a criminal conviction from their youth that won’t go away.

If asked, my choice would usually be to go for the win, unless a fantastic plea offer was available.  In our society, the importance of a not guilty and ability to expunge an arrest cannot be overestimated.  I still would counsel treatment as a pathway for a better future.  But, ultimately, this is a major decision that can only be made by the client.  Hopefully, he or she chooses wisely.