Month: November 2020

For decades, drugs and drug use have been heavily criminalized and prosecuted across the nation. Beginning in 1971, the so-called “war on drugs,” as coined by President Nixon, represented the effort by the federal government to stop the spread of drug use. More truthfully, and far more insidiously, however, the war on drugs was the Nixon administration’s attempt to demonize his political enemies, subject them to intense police scrutiny, and prosecute and incarcerate them for low-level offenses. John Ehrlichman, a top Nixon aide, admitted in 1994 that the true intention of the war on drugs was to vilify the anti-war left and to justify intensified policing in minority communities.

War on Drugs

The War’s Tumultuous History

This underlying intention is, to some degree, present in every administration’s iteration of the “war.” Nixon’s war was waged by increasing the size and powers of federal drug control agencies, while establishing mandatory minimum sentences and no-knock warrants. These efforts effectively began the war on drugs, setting the stage for a massive expansion of drug-controlling efforts under the Reagan administration. The 1986 Anti-Drug Abuse Act established harsh mandatory minimums for drug offenses while creating a sentencing disparity of 100-1 for crack cocaine versus powder cocaine. This represents the racism inherent in the war on drugs and the sentencing of offenders. One gram of crack cocaine, which was predominately used in African American communities, would carry the same sentence as one hundred grams of powder cocaine, which was predominately used in white communities.

Reagan’s demonization of drug users also helped him justify the increased aggressiveness of policing tactics used in the fight against drugs. Reagan’s war on drugs saw a massive increase in the amount of militarized police gear being allocated. This trend coincided with a rise in no-knock warrants, like the kind that led to the killing of Breonna Taylor, as well as fueled an incredible aggressive policing style done in the name of stopping drug use. The increased scrutiny by police of predominately minority communities, coupled with harsh mandatory minimums, significantly increased incarceration rates and have led us to an era of mass incarceration where America incarcerates more citizens than any other country in the world. From 1980 to 1997, the incarceration rate for nonviolent drug offenses increased from 50,000 to 400,000. The war on drugs has undeniably contributed to a decades-long era of mass incarceration that disproportionately targets minority communities and harshly prosecutes offenders, charging them with long mandatory minimums for non-violent offenses.

The War Today: Changing Tides

Forty years after Reagan was elected, voters in the 2020 election, in states across the country, sent a clear message: they want the war on drugs to end. For example, residents in Arizona, Montana, New Jersey, and South Dakota voted to legalize recreational marijuana, joining eleven other states who have also done so. Oregon voters went a step further, voting on perhaps the most radical anti-drug-war piece of legislation yet approved. Measure 110, which passed with nearly 59% support, effectively decriminalizes the possession of all illicit drugs. People caught with small amounts of cocaine, heroin, or methamphetamines, for example, will be fined $100 but not incarcerated. Oregon also passed measure 109, which legalizes the use of psilocybin, the active compound in magic mushrooms, for therapeutic purposes. Similarly, the District of Columbia voted by a huge margin to approve Initiative 81, which decriminalizes the possession of certain entheogenic plants like magic mushrooms.

Voters in this election have sent an unprecedented message. The number of states with legalized recreational marijuana has increased, access to psilocybin therapy is improved in Oregon and the possession of psychedelic plants in D.C. was voted to be decriminalized. That, in and of itself, would be a historic rejection of the continuation of the war on drugs. However, Measure 110 in Oregon represents the most undeniable repudiation of the war on drugs. Voters have signaled that drug use and abuse are matters of public health and should not be dealt with by police. The people clearly believe that the demonization of drugs and drug users does not stop the spread of drugs. It only serves to subject marginalized communities to over-policing and mass incarceration. The war on drugs is far from over, but voters have signaled that the American people do not support its continuation.

While the rate of incarceration has decreased slightly in recent years, the United States still incarcerates more of its citizens than any other country in the world. Because of this, special attention must be given to the causes of such a high incarceration rate in order to enact criminal justice reforms that effectively address the problem. A root cause of our staggering incarceration rate is the war on drugs and the predatory policing strategies it encourages.

Beginning in the Nixon administration, the war on drugs allocated more resources to federal, state, and local police, as well as established harsh mandatory minimums for drug offenses. The Reagan administration took the war on drugs even further via the 1986 Anti-Drug Abuse Act, which further established discriminatory mandatory minimums. The act also increased police presence in communities believed to have more drug use, which were predominately minority communities. Thus, the policing done in the name of the war on drugs targeted marginalized communities and incarcerated offenders for outrageously long times.

The expansion of mass incarceration did not end when Reagan left office, however. In fact, President Clinton expanded the era of mass incarceration and the war on drugs with the Violent Crime Control and Law Enforcement Act of 1994, also known as the 1994 Crime Bill. This Act created tough criminal sentences, but its built-in incentives aimed at states proved to be the main cause of a steadily increasing incarceration rate for the following fourteen years.

The Crime Bill encouraged states to create truth-in-sentencing laws, which require offenders to serve a substantial portion of their sentence, and directly tied federal funding to tough-on-crime state laws. The war on drugs and the era of mass incarceration are characterized by increasingly aggressive policing of minority communities, coupled with harsh sentencing guidelines and the incentivization of state policies that increase incarceration.

As the prison population has finally begun to decrease, albeit slightly, the calls have grown for criminal justice reform to put the era of mass incarceration behind us. The events of the summer of 2020 have likewise increased the support for such reforms. The killings of Ahmaud Arbery, Breonna Taylor, Walter Wallace Jr. and George Floyd, to name a few, have forced people to come to terms with the flaws and racism inherent in the ways in which this country polices its citizens. Election Day 2020 has shown that these events have not fallen on deaf ears, and American citizens want a fundamental change in our criminal justice system.

One such victory for criminal justice reform was the passage of Proposition 17 in California. This proposition restored the voting rights for about 50,000 state parolees who completed their prison sentences. Similarly, measures in New Jersey, Arizona, South Dakota and Montana legalized marijuana and Oregon voters approved a measure to decriminalize all Schedule I-IV drugs. These drug-related reforms can be seen as voters exercising their disapproval of current drug policy that has led to mass incarceration and racial disparities in our prisons.

In response to numerous incidents of police brutality, voters in San Francisco and San Diego, California, as well as cities in Pennsylvania, Ohio, and Oregon approved measures to increase law enforcement oversight. Additionally, voters in Michigan approved a constitutional amendment to require law enforcement to obtain a search warrant prior to searching electronic data from suspects. Lastly, voters in Utah, Nebraska, and Alabama have approved steps to remove racialized language from their state constitutions to end systemic, institutionalized racism.

This year’s election has seen historic examples of criminal justice reform. Voters have made their voices heard. The tragic police-involved killings of 2020 have put America’s criminal justice system, and the actions of our law enforcement, under well-deserved scrutiny. These measures by no means solve the problems inherent in our system. They do, however, serve as concrete steps towards addressing systemic faults, and are hopefully representative of a swing in the trend of mass incarceration, the war on drugs, and over policing.

When agencies such as the D.C. Metropolitan Police Department, Public Defender Service, or even the Secret Service need crime scene evidence of guns, DNA or fingerprints processed, they turn to the Department of Forensic Sciences (DFS). The DFS is classified as an independent agency, with a director appointed by Mayor Muriel Bowser. 

The Case that Sparked the Audit

In 2015, two cases were connected based on ballistic reports of shell casings. One of Amari Jenkins, 21, who was gunned down, and one of Antwan Baker, 29, who was fatally shot three months later. By 2017, Rondell McLeod and Joseph Brown were charged with both killings based on these ballistic reports. 

Nearly 4 years later, prosecutors were about to take these defendants to trial for both shootings until a later report determined that the casings found at each crime scene were actually not fired by the same weapon. 

Four additional experts sparked an audit confirmed this new conclusion. Yet, this mistake was confirmed by at least six DFS firearm examiners. Thus, this controversial case that would take a closer look at the work of DFS. Specific DFS examiners who have been flagged throughout this auditing process have done work for these high-profile cases in the city.

The Audit Process of DFS

About six months ago, the audit process of DFS began. During this time, independent examiners audited a total of 60 cases, according to a WTOP report, to compare their findings with that of DFS. The team of independent examiners for the auditing process consisted of Bruce Budowle, James Carroll, and Todd Weller, who are all accredited in the forensic firearm field.

The shocking results found 12 cases with discrepancies, and 6 of which led to different conclusions based on the findings. More specifically, some independent examiners matched bullets and cartridge casings in certain cases where the lab examiners did not.

With similar frustration for DFS, the Defender of the Public Defender Service director Avis Buchanan and special counsel Jessica Willis expressed concern for the audit team. As members of the team have served as expert witnesses for the prosecution in the past, they believe the team has a bias to favor the government. 

Following these discrepancies, prosecutors have turned to independent ballistic examiners to maintain validity in prosecutions for the past six months. During this time, defense attorneys in the District have been inundated with documents and information surrounding the investigation as it could very well affect their cases.

An additional audit has been conducted by the American National Standards Institute’s National Accreditation Board, which has not released results. Yet, they have certified DFS’s accreditation for it to be able to operate in the District of Columbia. 

While the investigation did not find any “criminal wrongdoing,” the U.S. Attorney’s Office recommended an evaluation of “mismanagement, poor judgment, and failures of communication” within DFS. It is important that DFS is held accountable for its failure to pursue just investigations.

Bruckheim & Patel is committed to serving the D.C. community and protecting defendants’ rights. If you have been arrested for a crime in the District of Columbia or Maryland, contact one of our experienced criminal defense attorneys at 202-930-3464 for a free consultation. 

Type 1 diabetes is an incurable disease that occurs when the pancreas is unable to produce insulin. Insulin is required to regulate blood sugar levels. Individuals with type 1 diabetes must monitor their blood sugar on their own through a combination of insulin, diet control, and medication. This leaves far more room for error, as a person with diabetes can either have blood sugar levels that are too high or too low. Both of these scenarios can have serious health effects.

Can Hypoglycemia Mimic Intoxication?

When diabetics have low blood sugar, and therefore more insulin in their blood than the carbohydrates that the insulin is breaking down, it is called hypoglycemia. Hypoglycemic symptoms mirror those of intoxication. People who do not have diabetes can still have a brief hypoglycemic episode, especially those who are on low carb diets or have not eaten recently. On the opposite end of the spectrum, people with too much sugar in their blood suffer from hyperglycemia. Hyperglycemics experience different symptoms that also can be misconstrued as effects of alcohol.

Symptoms of Hypoglycemia

Symptoms of hypoglycemia include sweating, blurred vision, shaking, slurred speech, delayed reflexes, and lightheadedness. When a police officer notices these symptoms, they are likely to ask you to complete a field sobriety test. It is unlikely that a person having a hypoglycemic episode will pass these tests due to decreased ability to function.

Symptoms of Hyperglycemia

When a person has a hyperglycemic episode, the body burns fat instead of carbs to use as energy. This leads to a build-up of ketones in the blood stream, causing a distinct bad breath odor, which a police officer could misconstrue as an odor of alcohol. Additionally, people with excess sugar in the blood stream will experience rapid heartbeat, labored breathing, thirst, drowsiness, and flushed face.

Ketones can increase a breath test reading up to .06

Police officers can misread many symptoms of hypoglycemia and hyperglycemia as indicators of intoxication. If this is the case, do not agree to a breath test. Ketones, which are produced during hyperglycemic episodes, are often misread by breathalyzers. Acetone, a byproduct of ketones, is released through your breath as isopropyl alcohol. The equipment cannot differentiate between different types of alcohol and will read the acetone as ethanol alcohol, which is used to make most alcoholic beverages. This can increase your breath test reading by as much as .06, which is only .02 below the legal limit.

In Maryland and Washington D.C., you are legally obligated to disclose a diabetes diagnosis and submit to a medical evaluation and complete a health questionnaire. If you did not disclose this when applying for your driver’s license, it can cause additional legal complications if you try to fight the charge based on diabetic complications.

If you have diabetes and have been charged with an OWI or DUI in Maryland or DC, your charges may be unjustified, and you should speak to a defense lawyer immediately. Our firm has experience handling DUI/OWI charges including ones with medical concerns that need to be investigated and looked at closely. Contact Bruckheim & Patel for a free case consultation at 202-930-3464.

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