New York City Criminal Defense Lawyer » Drug Defense

Crack Reform Signed into Law by President Obama

Howard Weiner — Thu, 05 Aug 2010 01:16:28 +0000

On Tuesday, August 3, President Obama signed the Fair Sentencing Act of 2010. As I discussed in prior postings, this law represents the first time that a mandatory minimum sentence (in this case, for simple possession of crack) has been repealed since the Nixon Administration. Although long overdue, Congress and President Obama should be applauded for having the courage to take the first step towards rational drug sentencing policies.

Bill Addressing Disparity In Crack Guidelines In Obama’s Hands

Howard Weiner — Wed, 28 Jul 2010 19:14:56 +0000

With the passage of the Fair Sentencing Act of 2010 today by the House of Representatives, it is now headed to President Obama’s desk for certain signature within the next 10 days.

The Fair Sentencing Act will:

Replace the 100-to-1 ratio with an 18-to-1 ratio;
Raise the threshold for mandatory minimum sentences (28 grams would trigger a 5-year mandatory minimum and 280 grams would trigger a ten-year mandatory minimum); and
Eliminate altogether the 5 year mandatory minimum for simple possession of crack cocaine.

Although the bill is not retroactive (applied to those sentenced before its passage), this issue is likely to be addressed by the courts and / or Congress in light of the volume of cases that are potentially affected by it.

Congress Poised To Amend 100:1 Disparity In Crack Guidelines

Howard Weiner — Tue, 27 Jul 2010 21:02:36 +0000

As I discussed in an earlier post, the Federal Sentencing Guidelines contain a 100:1 disparity between crack and powder cocaine. Some courts have used this disparity as grounds for a downward departure. Possession of as little as 5 grams of crack cocaine — the weight of two pennies — results in a mandatory minimum sentence of 5 years, while one would need to possess 500 grams of powder cocaine to trigger the same mandatory minimum. Congress is now considering the Fair Sentencing Act of 2010.

This legislation would:

1. reduce the current crack/powder disparity from 100:1 to 18:1;

2. eliminate a mandatory minimum sentence for simple possession (the threshold for a 5 year mandatory minimum would increase from 5 to 28 grams of crack; and

3. lower sentences of approximately 3,000 people each year and save the government an estimated $42 million in the first five years.

New Jersey Latest State to Legalize Marijuana for Medical Use

Howard Weiner — Wed, 20 Jan 2010 21:08:34 +0000

In his last day in office, outgoing New Jersey Governor Jon Corzine signed a bill legalizing marijuana use for medical purposes on January 18, 2010. The law is expected to take effect in six months. Growing marijuana at home will still be illegal, as will driving while under the influence of marijuana.

The law allows patients with specific conditions to use marijuana which would be dispensed through licensed “alternative treatment centers”. The conditions which qualify include: cancer, glaucoma, multiple sclerosis, HIV/AIDS, seizure disorder, Lou Gherig’s disease, severe muscle spasms, muscular dystrophy, inflammatory bowel disease, Crohn’s disease, and any terminal illness when the patient is expected to die within a year. The State Health Department will be tasked with writing rules to implement the new law, and other qualifying illnesses may be added to this list.

The National Academy of Sciences Institute of Medicine has found that marijuana can be beneficial in alleviating pain associated with certain debilitating medical conditions. In addition, national polls show that eight in ten Americans support legalizing marijuana for medical use, and nearly half support decriminalizing the drug in general. The move to legalize marijuana for medical purposes by several states comes in the wake of a Department of Justice announcement in October 2009 that it would no longer prosecute those who acted in accordance with state law. Previously, those individuals faced the possibility of federal prosecutions even if their actions were in compliance with state law.

Junk Science Routinely Used By Prosecutors, Congressional Study Finds

Howard Weiner — Wed, 21 Oct 2009 17:39:57 +0000

A Report issued by that National Academies of Science found that evidence without proper scientific basis – also known as junk science — is routinely admitted in courts across the country in criminal prosecutions. With the exception of nuclear DNA analysis, the report found that the evidence to support the reliability of many techniques is simply lacking.

This Report has profound implications for any case which the government seeks to introduce the testimony of an expert witness, including drug cases, sex offenses, and computer crimes, and provides a basis to challenge the admissibility of such evidence. The Report also illustrates the importance of hiring an attorney who is knowledgeable of cutting edge forensic techniques which may be critical to the success of your case.

A stark example of the profound implications of junk science can be seen in the case of Cameron Todd Willingham, who was executed in 2004 by the State of Texas for setting a fire which killed his three kids. In a scathing report, the forensic expert hired by Texas’ own government commission formed to re-investigate the Willingham case and others found that the investigator in Willingham’s case had no scientific basis to conclude that arson had been committed, relied on discredited folklore to reach conclusions, “in an approach that was more characteristic of mystics or psychics.”

Several other renowned arson investigators have publicly echoed this conclusion, and it now appears that an innocent man was executed for nothing more than a horrific accident.

You can view the entire Report here: STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD.

DOJ Will No Longer Prosecute Medical Marijuana Cases

Howard Weiner — Mon, 19 Oct 2009 20:26:17 +0000

The Department of Justice announced today that it will no longer seek to prosecute those who act in accordance with state law by using or distributing marijuana for medical purposes. The directive only affects those in the 14 states which currently have medical marijuana laws: Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.

As a result of today’s announcement, several ongoing prosecutions and pending sentencings have been postponed.

The Obama Administration made clear that the policy shift should not be seen as the legalization of marijuana. Rather, it will allow the “efficient and rational use” of government resources by not prosecuting those who were in “clear and unambiguous compliance” of state law. The memo which was sent to the affected U.S. Attorneys can be viewed in its entirety here.

Up to 90% of U.S. Currency Contains Cocaine Residue

Howard Weiner — Mon, 21 Sep 2009 19:01:10 +0000

In the largest study to date of cocaine contamination in currency, scientists report that cocaine is present in up to 90 percent of paper money in the United States, particularly in large cities. Scientists found traces of cocaine in 95 percent of the banknotes analyzed from Washington, D.C., alone. The results were presented at the 238th National Meeting of the American Chemical Society held in August 2009 in Washington, D.C.

Money can be contaminated with cocaine if a user snorts it with a bill. But not all bills are involved in drug use — they can also get contaminated inside currency counting machines at a bank and other ways.

This is noteworthy for criminal defense practitioners, since a positive alert to the presence of cocaine residue on currency by a trained drug detection dog is often cited by law enforcement as evidence of drug dealing.

New York’s Notorious Rockefeller Drug Laws Reformed

Howard Weiner — Mon, 21 Sep 2009 18:53:46 +0000

On April 7, 2009, New York’s Legislature enacted historic revisions to the notoriously harsh Rockefeller Drug Laws. Many of the changes became effective immediately, applying to cases pending at the time the legislation was signed. As detailed in this 2009 Rockefeller Drug Law Reform Sentencing Chart, for most first time drug offenders, imprisonment is no longer mandatory, and the centerpiece of the reform is authorization for a sentencing court to divert most defendants with an identified alcohol or substance abuse problem to treatment in lieu of prison, without the consent of the District Attorney, which was a requirement under the previous version of the law.

Chemists Must Testify, Supreme Court Says

Howard Weiner — Mon, 21 Sep 2009 02:28:23 +0000

A lab chemist must be called to testify in order to admit a lab analysis as evidence at trial, the Supreme Court recently held in Melendez-Diaz v. Massachusetts, 07-591 (June 22, 2009). This case effectively ends the government’s routine practice of entering into evidence one sided, conclusory reports prepared by government lab technicians for the sole purpose of trial, which essentially allowed the prosecution to present its some of its strongest evidence without allowing a defendant to conduct any cross-examination. In the case of Melendez-Diaz, the report in question contained no information about the qualifications or experience of the analyst who conducted the testing, the identity of the testing methods used to arrive at the analyst’s conclusions (and accompanying error rates), or whether any record-keeping or storage measures had been taken to preserve the integrity of the items for testing, among other things, which the defendant should have been able to cross examine the chemist who authored the report about. To admit the report without the testimony of the chemist violated the defendant’s right of confrontation, affirmed by the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004).