Sunday, October 17, 2004

A Truth-Based Justice System?

by Joshua Marquis
printed in USA Today, October 17, 2004

"Don't ignore larger issue"
It is every prosecutor's worst nightmare to convict an innocent person. Yet true "exonerations" are extremely rare events. The term "exonerated" should be reserved for those few people who are literally innocent. They didn't do it, they weren't there, and they didn't hold the victim down while someone else stabbed him.

A recent study claimed that there were fewer than 400 "exonerations" during the past 15 years, although some of those were cases in which the system simply gave up prosecuting — a far cry from actual innocence. More important, those several hundred cases came out of a universe of millions of arrests, meaning the problem of wrongful conviction is more episodic than epidemic.

No one wins when an innocent person is convicted. There should be a mechanism for compensating people who were innocent yet imprisoned. But America's prosecutors spend their professional lives trying to make sure that does not happen.

It was prosecutors who pioneered the use of DNA in courtrooms, usually over the fevered objections of criminal defense lawyers. Now many of those same lawyers herald the use of DNA, but only if it clears their clients.

A far-reaching DNA bill that Congress recently passed promises hundreds of millions of dollars to provide DNA testing. Much of this legislation is badly needed, not just to exonerate the handful of people who did not commit the crimes of which they were accused, but, more important, to solve the hundreds of thousands of rape cases in which untested DNA sits on police-evidence shelves across the USA.

Yet that same law forbids the inclusion into the national data bank of DNA information swabbed from the mouth of a suspect unless the person was convicted. That makes as much sense as refusing to enter fingerprints into the national automated fingerprint system. While we read about the few exonerated by DNA, "cold case" convictions from DNA tests — some from people who were never convicted — have become so common that they no longer constitute news.

If we are really looking for a truth-based justice system, and not just a gladiatorial adversary model, we want as much truthful information as possible.

Sunday, October 10, 2004

Heresy in the War on Drugs

by Josh Marquis
printed Sunday, October 10, 2004, in the Oregonian

In the War on Drugs, as in most wars, there's a little truth on each side of the battle.

Oregonians will vote Nov. 2 on what's being called "Medical Marijuana 2." It's the Measure 33 sequel, if you will, to an existing law that, sort of, allows the use of marijuana if someone can get a doctor to write a note saying the drug would help the patient's condition. Contrary to popular belief, the law did not legalize marijuana -- and the law is now being abused by recreational dopers.

At the same time the Bush administration furiously denies marijuana has any medical value whatsoever. Amid this chatter there's been a deafening silence from the administration -- until last week, that is -- when it comes to a drug that's destroying families, lives and communities: methamphetamine.

We need to reprioritize our fight against dangerous drugs and raise the bar on methamphetamine while reducing the legal stigma of marijuana, recognizing it has limited medical use.

The Oregonian's devastating expose of the federal government's failures to limit the spread of methamphetamine ("Unnecessary Epidemic," Oct. 3-7) shows how we failed to slow what is clearly the most dangerous drug on the street.

Gov. Ted Kulongoski has proposed a bold, if controversial, rule change making it harder to access the base component of meth, pseudoephedrine, by putting cold medications behind the counter. And President Bush's drug czar endorsed the idea during a visit to Oregon last week.

It's a program that's worked in Oklahoma, and Kulongoski gets credit for doing something concrete and right now.

It's time we start thinking outside the box on drug control. There's something in my proposal -- let doctors prescribe marijuana but lock up meth -- to make both sides in the drug war hopping mad.

Oregon has been sensible

In an effort to meet the president's goal of reducing illegal drug consumption by 10 percent during his first term, the administration has gone for volume. Since marijuana is used by a far greater number of people than the so-called "hard drugs" (methamphetamine, heroin and cocaine), it's much easier to reduce overall statistical drug use by achieving even a small decrease in marijuana users.

But opponents of the Drug War are even better funded, albeit privately, than the government. Billionaire financier George Soros, through a vast interconnecting network of foundations, has undertaken a systematic campaign to eliminate drug laws or, failing that, prevent their enforcement.

Not content with the amount the law currently specifies, the pro-marijuana lobby wants to increase the amount to 6 pounds a year for patients. This isn't the marijuana most baby boomers smoked in high school or college at $10 a "lid." Through generations of genetic breeding, today's marijuana is often 10 times as potent, determined by measuring the amount of THC, tetrahydrocannabinol, in a plant.

In the '70s most marijuana contained about a 2 percent THC content. Now it can test at more than 25 percent.

Oregon has maintained a sensible approach toward marijuana use since 1973, when it became the first state to remove criminal penalties for possessing less than an ounce. Possession became a violation similar to a speeding ticket, punishable by a fine. Many states followed suit.

A more rational approach

Equating marijuana with methamphetamine is folly. By lumping all drugs into the same category we risk losing our credibility with young people. Teens will likely experiment with marijuana and, when they don't become dope fiends out of "Reefer Madness," assume there's no harm in "chasing the dragon" every once in a while by smoking heroin.

In 1970 the federal government adopted the Controlled Substances Act, which put all potentially addictive drugs in a range of schedules. Schedule 1 drugs with no legitimate medical use and very high risk of abuse include LSD -- and marijuana.

Schedule 2 drugs with some medical use but also with a high risk of abuse include OxyContin, and, currently, methamphetamine. Other schedules list drugs like Vicodin, Valium and, at the bottom, cough syrup, with its small amounts of codeine.

Licensed doctors can prescribe drugs in categories 2 through 5, with much stricter regulations attached to schedule 2 drugs, such as cocaine, which is a valuable anesthetic in certain kinds of surgeries. Methamphetamine gets the same listing only because it can help treat narcolepsy, a relatively rare disorder.

It's time we rescheduled marijuana from Schedule 1 to Schedule 2, acknowledging the limited but very real medical value of the drug. Methamphetamine -- also known as "crank" -- should be bumped up to Schedule 1, no legitimate use. Other drugs like amphetamine and Ritalin can be used to treat narcolepsy. Methamphetamine is easy to manufacture, lasts up to 12 hours and can provoke psychotic episodes.

By requiring a written prescription, rather than a doctor's note suggesting that marijuana might be useful, the number of real marijuana patients would plummet. Doctors would be much more careful about who they gave a marijuana prescription to.

Those two controlled substances changes wouldn't win the War on Drugs, but they'd signal a more rational approach, recognizing the real risks posed by marijuana and methamphetamine. Most criminal justice professionals would agree that 75 percent of all the serious crimes they handle involve substance abuse.

That doesn't mean drugs are the only cause. But just as alcoholism is devastating physically, emotionally and financially, so is illegal drug abuse. What's wrong with including a little common sense in this debate?

Saturday, October 9, 2004

DUII outrage in Astoria

The Associated Press ASTORIA, Ore. (AP) — After complaints two years ago about the way a drunken driving case was handled, the Astoria Municipal Court is facing criticism from Clatsop County District Attorney Josh Marquis about whether the court is following a new state law he wrote to tighten the rules on entering a diversion program to avoid fines or jail.

But Municipal Court Judge Kris Kaino, City Attorney Dan Van Thiel and a local attorney who handles many driving under the influence of intoxicants — or DUII — cases, all say the court is following the letter of the law.

"I think the court is acting appropriately," said Van Thiel, who acts as prosecutor in municipal court.

Marquis, however, notes the municipal court is not an official "court of record" supervised by the Oregon Supreme Court and answers only to the Astoria City Council.

Local municipal courts generally handle minor offenses such as traffic citations while the state circuit court system handles more serious cases along with civil lawsuits.

But DUII cases sometimes fall in a gray area between municipal and state courts.

"The concern I have is if the law is being interpreted in an utterly different way" in municipal court, Marquis said.

State law allows a person arrested for DUII to undergo court-ordered substance abuse treatment, called a diversion program. If the program is completed and the person follows other conditions, the DUII charge is erased from his or her criminal record.

But to be eligible, a person cannot have any other DUII convictions or participation in diversion on his or her record within the previous 10 years.

The Astoria Municipal Court did not apply that rule two years ago when Lake Oswego attorney Stephen Moore was allowed to enter diversion despite the fact he had a prior DUII arrest within the 10-year window.

The Daily Astorian newspaper filed a motion asking the court to reconsider the case, and Moore's diversion petition was rejected.

Moore was convicted on the DUII charge and sentenced to two days in jail and 18 months probation, and was required to pay $1,289 in fines and assessments by visiting Judge Robert Moberg. His driver's license also was suspended for a year.

Marquis claims the municipal court is again skirting the rules of the diversion program, this time by allowing people to fight their arrests while still leaving open the chance to seek diversion.

Last year, Marquis introduced a bill to the Oregon Legislature tightening the requirements for diversion applications. Senate Bill 302 was one of a series of DUII-related pieces of legislation approved by state lawmakers and signed by Gov. Ted Kulongoski. It took effect Jan. 1.

The bill requires defendants, as a condition for the diversion program, to first plead guilty or no contest to the DUII charge. It also limits the reasons to extend the diversion filing deadline.

The new diversion law specifically states that filing a motion to challenge evidence in a case is not good reason for a deadline extension.

Prior to the new law, Marquis said, many DUII defendants were challenging their cases in court, sometimes for several months, with motions to suppress evidence, then turning to the diversion option when all their legal arguments were exhausted.

"The intention of diversion generally is that you either take responsibility up front in a relatively quick span of time, or you challenge it. But you can't do both," he said.

In three recent cases in Astoria Municipal Court, defendants arrested for DUII were allowed to submit diversion petitions with the court while also filing motions challenging their arrests.

Kaino, who heard the three cases, says nothing in the diversion law, including the new language added last year, prevents a defendant from pursuing both a motion to suppress and diversion, if both are filed within the 30-day window.

"As far as the intent of the statute, it is clear on its face it says what it says," he said. "If the Legislature did not want to allow motions on diversions, it could have said that."

The Daily Astorian contacted five other municipal courts in The Dalles, Roseburg, McMinnville, Eugene and Lake Oswego to see how they would handle the potential legal loophole.

Officials from the other municipal courts said most people who are eligible for diversion apply for it rather than fight the charge.

Eugene Municipal Court supervisor Gabrielle Glenn said her court would never allow a defendant to simultaneously enter a diversion petition while fighting the charge with a suppression motion.

But Bruce Shepley, a Lake Oswego municipal judge, said the new law might actually make him more willing to allow a person to challenge a DUII arrest.

By requiring defendants to plead guilty or no contest as a condition of diversion, the law now forces them to effectively give up their rights to raise constitutional issues about their arrests, Shepley said.