A CALL FOR REFORM OF SENTENCING GUIDELINES

Posted by Attorney Michael Erlich, Attorneys at Law and posted in Drug Crimes on Friday, August 17, 2012

During the past 22 years, the United States has made great strides in many areas. One area where we as a society have failed and continue to fail, however, is related to sentencing guidelines for non-violent offenders like those charged with drug crimes. In fact, during the past 22 years, the average prison sentence has increased in length by 36 percent.

While many other developed nations, including Canada, have worked towards sentencing reform, the U.S. has moved towards stricter and more punitive sentencing guidelines. Prior crimes are also typically taken into account by judges who are more liable to impose harsh sentences on individuals with prior convictions.

One man, who had two prior convictions both related to non-violent crimes, was recently sentenced to 60 years in prison for attempting to sell $40 worth of narcotics. In another state, a man with prior nonviolent convictions was sentenced to 45 years in prison for stealing a woman's purse. Regardless of prior convictions, one must ask themselves if in these instances the punishment fits the crime.

Rather than provide additional funding for treatment and rehabilitative programs, most states have opted to impose harsher sentences for less serious crimes. The idea that harsher sentencing guidelines somehow deter or discourage nonviolent offenders, however, does not seem to be working. Rather, there are simply more people flooding our nation's prisons, many of whom do not belong there.

As a nation, it's critical that we examine current sentencing guidelines and call for sentencing reform. Locking an individual up does nothing to aid in rehabilitation or discourage them from committing another crime. Many individuals convicted of drug crimes, are sick and need treatment. Likewise, individuals convicted of other non-violent crimes often benefit from education and work programs.

Source: American Civil Liberties Union, "Extreme Sentencing," Rachel Myers, Aug. 13, 2012

NEW PROSTITUTION LAW MIGHT BE COSTLY

Attorney Michael Erlich posted on Monday, August 13, 2012

Being arrested on the suspicion on soliciting prostitution is not only a serious and an embarrassing matter but if the City has its way, it will be a costly one as well. The proposed legislation would allow the Worcester district attorney to apply the drug forfeiture laws to prostitution-related crimes.  City Solicitor David M. Moore said the special legislation is similar to legislation filed by the city in 1996 and nearly identical to a bill pending before the state Senate filed by Sen. John F. Keenan, D-Quincy.

While the special legislation sought by the city manager would apply only to Worcester, the proposed general legislation now before the Legislature would authorize the state attorney general and district attorneys statewide to seek court orders declaring prostitution-related property as eligible for forfeiture.

At first glance you would think that it would have a deterrent effect on prostitution but I would love to see the statistics on how much of a deterrent effect the same forfeiture laws have had on drug dealing.   You might think twice the next time you let someone borrow your vehicle.

Worcester Telegram & Gazette, Johns could lose cars under Worcester city manager's proposed law. Nick Kotsopoulos August 13, 2012.

INVESTIGATION RESULTS IN SEVERAL DUI CHARGES BEING DROPPED

Attorney Michael Erlich posted in Drunk Driving Charges on Wednesday, August 1, 2012

Being arrested on the suspicion of drunk driving is a serious matter. Those found to be intoxicated while operating a motor vehicle in Massachusetts face hefty fines, suspension of their license and jail time. Additionally, they must deal with the fallout from damage to their image and personal relationships. For these reasons, it's crucial that those accused of driving under the influence know their rights and that arresting officers follow correct procedures when making DUI arrests.

Several DUI arrests made by one police officer were recently thrown out after an investigation showed they lacked "sufficient information to prosecute". Of the 37 DUI arrests made by the police officer, 24 resulted in charges being dropped. Charges were either dropped because the drivers' blood-alcohol content was determined to be too low or due to the drivers' refusal to submit to sobriety tests.

Many of those individuals who refused to submit to a sobriety test did so after being insulted and verbally abused by the police officer in question. An investigative panel scolded the police officer for acting in a "demeaning and abrasive" manner. Likewise they chastised him for making comments to drivers that were deemed both unprofessional and inappropriate.

When making DUI arrests, the police officer relied almost solely on results of the Horizontal gaze nystagmus or HGN test which is not admissable in court.   Video footage of the police officer administering the HGN test, however, proves that he did not perform it correctly nor did he take the results of additional sobriety test measures into account. 

Based on the results of the investigation, the police officer has been demoted. He is, however, appealing to be reinstated to his previous position.

Source: Bay News 9, "Exclusive: Transferred for bad DUI arrests, Pinellas deputy fighting to get old job back," Josh Rojas, July 30, 2012

Tags: DUI, Sobriety test, criminal charges

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OLYMPICS LIKELY TO CAUSE INCREASE IN DOMESTIC VIOLENCE

Attorney Michael Erlich,  posted in Domestic Violence on Friday, July 27, 2012

As the world gears up for the 2012 Olympic Games, London organizers are busy planning for nearly every foreseeable issue. While the sporting events and fanfare will no doubt be the main focus, the Olympics have shed light on another serious issue, that of domestic violence.

A center has opened near the Olympic Park that will provide shelter, support and counseling for domestic abuse and violence victims. The facility was opened in response to past research indicating an increase in instances of domestic violence when large sporting events occur.

Researchers believe a major contributing factor to increases in domestic violence they see during events such as the Olympics, stem from more people being cooped up at home. Due to the large influx of visitors to the city, many London employers have encouraged workers to work from home. Even those who will venture out for work, however, are more likely to remain indoors at home during times they normally may be out socializing.

The added stress of feeling as though you can't leave the house may be enough for already troubled relationships to turn violent. Additionally, relationships already prone to violence will likely become even more dangerous during the Olympics.

Public safety officials are also anticipating an increase in numbers of sexual assaults. Officials report that large crowds, as those expected during the Olympics, tend to breed more crimes of sexual violence such as assaults and rape.

Olympic officials have also warned of potential athlete-on-athlete assaults. They are taking preventative measures to cut down on the number of assaults within the Olympic Park and also providing services for victims.

Source: BBC, "London 2012: Domestic hub opens near Olympic Park," Josephine McDermott, July 24, 2012

Tags: criminal charges, domestic violence

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NON-VIOLENT DRUG OFFENDERS NEED TREATMENT, NOT JAIL TIME

Posted in Drug Crimes on Wednesday, July 18, 2012

Individuals who abuse drugs often do so as a means of escape. Typically unable to cope with past trauma, drug users often become addicted to drugs and are unable to quit without treatment which many cannot afford. The high costs associated with drug charges, coupled with the realization that offenders can be rehabilitated are leading many states to provide treatment in lieu of jail time.

A key issue in the treatment of drug offenders is to uncover the root cause of their drug use and then provide counseling. This allows individuals to view their situation differently and develop better and healthier coping mechanisms. When successful, those that undergo drug treatment can go on to become productive and contributing members of society.

In one state that is favoring drug treatment over jail for non-violent drug offenders, rules of the program are strict and focused on successful results. On a weekly basis, participants in the drug court program must submit to three random weekly drug screens, attend one individual and one group counseling session, attend three 12-step meetings, and meet with their case manager.

Additionally, program participants are subject to random visits from their case manager and must adhere to a strict 10 p.m. to 5 a.m. curfew. Proponents of these types of drug rehabilitation programs believe they do much more to combat repetitive drug crimes than any amount of jail time.

Another attractive benefit of drug treatment programs revolves around costs. While on average it costs about $19,000 per year to jail a non-violent drug offender, it only costs roughly $5,000 to provide them with the treatment and counseling services they need to overcome their addiction.

Source: Enid News, "Drug court program offers substance abusers comprehensive treatment," James Neal, June 30, 2012

OUI LOOPHOLE

Boston Herald: Senate to Debate OUI Loophole

State senators will debate next week whether to close a gaping loophole in Massachusetts’ drunk-driving laws that has given thousands of offenders a free pass on their first OUI bust.

The Massachusetts Supreme Judicial Court recently ruled unanimously against the RMV in how it applies administrative suspension for people arrested for OUI's.  The heart of the case deals with how the RMV treats a continued without a finding ruling (CWOF).  The case clarified that the RMV cannot treat a CWOF as a prior conviction therefore lessening the administrative suspensions for a breath test refusal on   a subsequent OUI.  For instance, if a person refused a breathyliazer on a second offense and their first offense was a CWOF (typical first offense disposition) then the RMV cannot suspend the individual's license of 3 years as a second offense refusal.  This usually comes into play during a second offense but may also have implications for multiple offenders.  If a person refuses a breath test on a 4th offense, the license suspension is lifetime.  Under the new law, the same person would be subjected to a 5-year suspension.

What the CWOF doesn't do however, as the article fails to point out is give any person a free pass on their first OUI.  Even if a case is continued without a finding.  In addition to the   court license suspension, the defendant will have to complete a driver alcohol school, pay significant fines and be on probation for a year costing over $700 just in probation fees.  Though it will be dismissed after the one year, it never evaporates and it's still a first offense.  In addition, under the law as it existed, the court will suspend the individuals’ license for 2 years on a second offense, with no importance being placed on how the first offense was treated.

I anticipate that this loophole will be closed shortly, however, at the time of this blog, thousands could benefit from the ruling.

CORI LAW REFORM WILL BE SIGNIFICANT

There are many changes to our CORI laws taking effect today, May 4, 2012, but without question the most significant change in addition to the  reduction in waiting periods to seal your criminal record   is found in MGLA Chapter 276 Section 100C .

The prior law stated:  

"In any criminal case wherein a nolle prosequi has been entered, or a dismissal has been entered by the court, except in cases in which an order of probation has been terminated, and it appears to the court that substantial justice would best be served, the court shall direct the clerk to seal the records of the proceedings in his files. The clerk shall forthwith notify the commissioner of probation and the probation officer of the courts in which the proceedings occurred or were initiated who shall likewise seal the records of the proceedings in their files.

I have highlighted the pertinent section of the old law because that qualifier has  been removed by the new CORI law.  This means for example, that if you had a misdemeanor  A&B  charge Continued Without a Finding for 1 year (CWOF)  and you were  placed on probation with a dismissal entering last month, you would be eligible to have that case sealed under the new law.  Prior to today, you would have had to wait the statuary waiting period for a misdemeanor  which was 10 years.  ( Its 5 years under the new law). 

Although it appears that a hearing will still be required by law to show to a court that substantial justice would be served by sealing the record, the threshold to make that showing is quite attainable.