Patterico's Pontifications

9/15/2006

Steve Lopez Contradicts Pattt Morrison on First-Time Drug Dealers Going to Prison

Filed under: Crime,Dog Trainer,General — Patterico @ 6:22 am



L.A. Times columnist Steve Lopez needs to have a talk with L.A. Times columnist Pattt Morrison.

Back in June, Morrison wrote:

One Californian in five has a criminal record (in no small part because the “war on drugs” has been cramming prisons with first-time offenders).

At the time, I said:

That’s just a bunch of baloney. To put it kindly.

I explained that first-time drug offenders, even those who possess with intent to sell, almost never go to prison. I never heard of it happening, nor had my wife. Between us, we have over 20 years of experience in the D.A.’s office. Prosecutors in other California counties left comments confirming my observations (see here and here).

L.A. Times columnist Steve Lopez has now learned that I’m right.

Lopez had a column yesterday titled L.A. Dope Peddler Catches a Big Break. Lopez is upset that a first-time drug dealer downtown didn’t get sent to prison, though he had three separate charges and sold eight ounces ($6000 – $7000 worth) of cocaine:

The criminal code calls for a sentence of up to three, four or five years in state prison for each charge — although such sentences are rarely imposed on first-time felons — and Munoz was facing three charges. But he, as well as two associates, all caught a big break.

In a program the district attorney’s office doesn’t particularly love, lots of non-major criminal cases get kicked over to an express-type court where deals are negotiated for the sake of clearing the way for more serious cases. Munoz agreed to plead guilty to one of the three felony charges of selling a controlled substance, the other two were dismissed, and he got a 120-day sentence in L.A. County Jail with three years’ probation. So did his two associates, whom [narcotics detective] Hodges described as his suppliers.

Lopez goes on to explain that under Lee Baca’s early release policy, the 120 days ended up being more like a week or two.

Lopez calls that a “big break.” To many, it may seem like a low jail term for selling over $6000 worth of cocaine. To others, any jail sentence for a drug offense is too much. Me, I’m not opining on the propriety of the sentence. I know several people mentioned in Lopez’s column: Janet Moore, Tom Higgins, and Ron Hodges. I’m not getting in the middle of that.

But the sentence is certainly nothing unusual. As the rest of Lopez’s column makes clear, almost no county in Southern California would have given this dealer prison time. Lopez writes:

I called defense attorney Paul Wallin of Wallin & Klarich, which covers six Southern California counties.

“Criminals aren’t stupid,” Wallin said. “If I’m going to sell drugs, I’m going to sell in downtown L.A.”

Instead of serving roughly 10% of his sentence, Wallin said, Munoz would have done closer to two-thirds of his time elsewhere, and the sentence would have been longer in the first place. He estimated nine months to a year of county jail time in Ventura and San Diego, four to six months in Orange “if you get a really sympathetic judge,” six months to a year in San Bernardino, and in Riverside, “he may go to prison.”

So, according to Lopez’s column, in every county in Southern California but Riverside, a first-time drug offender selling eight ounces of cocaine would avoid prison. In Riverside, he may go to prison.

So what was that about “cramming prisons with first-time offenders” again?

P.S. A reader could easily come away from the column thinking that the dealer was facing 15 years. Lopez looked into the case after reading this blog entry by LAPD Capt. Andy Smith, who runs the department’s Central Division, which handles crimes committed on Skid Row. Lopez quoted Smith’s desciption of the defendant as “a major downtown cocaine trafficker who was facing an exposure of 15 years state prison time.” In a quote above, Lopez also says the defendant was facing up to “five years in state prison for each charge,” which seems to substantiate Capt. Smith’s allegation. He also says that Janet Moore of the DA’s office “disputed the LAPD claim that he could have done 15 years in prison, or anywhere near that amount, as a first-time felon.”

This is literally “he said, she said” — but there is an objective truth, and it is that Janet (whom I know) is right. On three separate Health and Safety Code section 11352 violations, with no special allegations, the maximum is 7 years 8 months, not 15 years.

P.P.S. So why does this happen? A big part of it is obviously the crush of cases. Although Lopez acts as though LAPD isn’t making enough drug arrests downtown, they make plenty every single day. The courthouse is flooded with them. And I have explained before that the D.A.’s office can’t seek the maximum sentence against every defendant.

Also, cases resolve for less time because of the inherent uncertainty of jury trials. The case Lopez describes sounds strong, but there is no such thing as a slam dunk when there is a jury involved — especially with a drug case. Many jurors simply don’t care about them. There is always the potential that you will get an unreasonable juror who won’t look at the evidence. In a drug sales case, you may well get someone who thinks drug sales is a victimless crime, and will lie to get on the jury and acquit even if the evidence is overwhelming.

Don’t get the wrong idea. Prosecutors don’t live in fear of such jurors, of course — we simply try to get rid of them before they get on the jury. But we may miss some — and that element of uncertainty is always there.

23 Responses to “Steve Lopez Contradicts Pattt Morrison on First-Time Drug Dealers Going to Prison”

  1. Good point–you may want to clarify the difference between jail time and prison time for those who lack your familiarity with the criminal justice system.

    See Dubya (c62281)

  2. Very serious question: how can anyone rreasonably expect to battle the drug problem if the only people who are punished for drug offenses are those who sell drugs? Simple economics tells you that if there is a demand for a product, someone will supply the product, at a price which covers his expenses and, in the case of illegal substances, risks.

    With the profits being so high, take one dealer off the streets, and someone else will quickly take over the supply duties.

    It seems to me that there are two logical alternatives: either legalize recreational drug use, to take the criminal element out of the supply chain, or prosecute and imprison people who use drugs, to attack the demand side.

    Dana (3e4784)

  3. Slightly off topic but nonetheless important is the early release of most county jail prisoners.

    A clarification first: Convicted felons who are not sentenced to state prison are granted probation. A county jail stretch is a condition of that probation. Convicted felons who are sentenced to state prison have probation denied and become wards of the state. Upon release they are supervised by the parole department.

    Overcrowding is a huge problem in every county jail in the statement. Most are subject to a federal court decree controlling the number of prisoners who may be forced to share the resource, i.e., available beds. When the number of prisoners exceeds the available beds, the Sheriff is required to start releasing prisoners until the system is back in balance.

    As patterico points out, law enforcement officers are making large numbers of arrests each day. Sentenced prisoners are generally the first to get out. Then non-serious misdemenants, after that less serious felonies and then whomever. In Riverside County recently an inmate charged with kidnapping and awaiting trial was released.

    What this all means is that a simple misdemeanor of any sort, e.g. drunk drivers, wife beaters, and yes, drug dealers, have become unpunishable. No mater what sentence the judge hands down, the Sheriff will release the prisoner is overcrowding rules require it.

    So to all of you MADD supporters out there, don’t bother pushing for tougher laws and longer jail sentences for repeat offenders. The Sheriff will simply let them out anyway.

    Ms. Judged (5c27b9)

  4. If the jails are overcrowded, it is because we are too nice in building jails!

    Anyone wonder why the jails are overcrowded?

    I have a solution to jail overcrowding: it involves stringing concertina wire around a few acres of land, some poles concreted into the ground to which chains to leg irons can be attached, a whole bunch of Army surplus tents, outdoor latrines, the July sun and 90º Fahrenheit temperatures and mosquitos, guards with dogs patroling the perimeter, and a complete lack of sympathy for the brutes and thugs who infest Philadelphia.

    Come winter time, issue them some blankets and jackets, and let them learn how to make snow angels, but leave them outside.

    I might be persuaded that those in the city jail who haven’t been convicted and are just awaiting trial and cannot make bail ought to be left in the indoor jails — if they do not have prior criminal records. But that’s as far as my sympathy extends.

    Dana (3e4784)

  5. Yeah, I’m sure jails are real fun places to be. That’s why we see so many jail-themed amusement parks.

    Hell, in fact, I think you’re still being way too nice to these dirty felons, Dana. Why don’t we chop off all their big toes and force them to fight one another for food and shelter? With the gambling revenue we generated betting on their survival, prisons would pay for themselves!

    Geez… try to remember that the U.S. forbids “cruel and unusual” punishment the next time you give us you’re “Tough On Crime!”, cry-baby B.S.

    And yes, it is cruel and unusual. How do you think the rest of the world would view such behavior?

    Leviticus (35fbde)

  6. I’m sure Patttt’s error must be because her hat’s too tight … and leaning a bit too far to the left.

    MOG (c949f7)

  7. Leviticus is concerned that I am too mean to felons. Well, sorry, but we don’t provide air conditioning for the general public; why should we provide them for felons? We don’t provide cable TV for the elderly; why ought we to do so for the dregs of society?

    As for “cruel and unusual,” we already have a couple of sheriffs who have such facilities, and those facilities are not deemed cruel and unusual. Heck, go through the proper legal channels, and we can execute prisoners, and that is not regarded as cruel and unusual; it’s difficult to see how housing them in camps would be.

    Dana (3e4784)

  8. One reason I can think of to provide cable tv to felons is that it might make them more quiescent and easiser to manage. I haven’t seen the statistics on this, and I actually doubt whether or not anyone has studied it, but if it does have that effect, we should certainly be providing them with tv. 🙂

    aphrael (e0cdc9)

  9. Are you saying that it’s hard to see how Hitler housing the Jews in concentration camps could be construed as “cruel and unusual”? The conditions of their captivity and the conditions you advocate are largely the same (and don’t make some statement as to “the Jews weren’t criminals”. I know that they weren’t for the most part, but some of them probably were; that still doesn’t give me a reason to condone such savagery).

    Also, you in no way take into account the severity of a crime before deciding the punishment. Being that “brutes” and “thugs” are hardly legal terms, what criteria would you use to select those who received your proposed treatment? Would you send white collar criminals to these facilities for their various financial misdeeds? Or, more importantly, would their high-priced lawyers let you?

    I may have heard something about the sheriffs you mention, but if you could direct me to a source of confirmation, I would appreciate it.

    Leviticus (43095b)

  10. Yeah, not everyone jumps for joy at the idea of watching cable TV for 25-Life. That certainly isn’t my idea of a good time.

    Leviticus (43095b)

  11. steve lopez had a good point about how a “major” drug offender gets into the Early Disposition Program and gets the “standard” sentence.

    It is because the L.A.P.D. detective didn’t follow up. It is because the D.A. filing attorney didn’t flag the case.

    nosh (d8da01)

  12. aphrael:

    IIRC, this is the argument for allowing convicts to engage in body-building exercises, and even better, to pursue GEDs and even college degrees.

    Given their confinement and the high degree of boredom, giving convicts an outlet absolutely improves their “handle-ability” by the prison authorities.

    OTOH, it doesn’t look very good when “you’re funding murderers’ education, while cutting public school budgets” gets thrown around as a political football.

    Lurking Observer (ea88e8)

  13. Leviticus, who styles himself from the Old Testament book which sets punishments for many things as being executed, wrote:

    Are you saying that it’s hard to see how Hitler housing the Jews in concentration camps could be construed as “cruel and unusual”? The conditions of their captivity and the conditions you advocate are largely the same (and don’t make some statement as to “the Jews weren’t criminals”. I know that they weren’t for the most part, but some of them probably were; that still doesn’t give me a reason to condone such savagery).

    There’s a difference between a Nazi extermination camp and what I have suggested. For one thing, we do actually feed prisoners in the United States, and I wouldn’t suggest otherwise. We don’t have to beat prisoners or put them to use in slave labor, but that doesn’t mean they can’t be housed in camps instead of concrete prisons.

    Also, you in no way take into account the severity of a crime before deciding the punishment. Being that “brutes” and “thugs” are hardly legal terms, what criteria would you use to select those who received your proposed treatment? Would you send white collar criminals to these facilities for their various financial misdeeds? Or, more importantly, would their high-priced lawyers let you?

    We don’t take into account the severity of the crime now, in setting prison conditions; we simply adjust the length of time of the sentence.

    While an important distinction could be made between violent and non-violent crime, no, I see no reason why someone like Jeffrey Skilling ought not to have the same, harsh conditions as a Philadelphia coke dealer. Maybe, just maybe, that guy teetering on the edge of what he thinks is a great scam would choose not to do so if he knew it wasn’t the Club Fed illusion that awaited getting caught, but a prison camp.

    Dana (3e4784)

  14. One further point: I don’t see being imprisoned outside in the 90º F heat of July or the 25º F cold of January as cruel and unusual, because I work in those conditions, and have for thirty years. My drivers work in those conditions, my loader operators work in those conditions, and that’s simply the way it is. We combitch about it being too hot or too cold (or today, too wet), but that’s simply part of the job; we aren’t being tortured.

    Dana (3e4784)

  15. Lurking Observer — on the other hand, I think we’ll all be better off if those criminals who are being released have the opportunity to develop skills which will be useful to them once they are released.

    aphrael (e7c761)

  16. aphrael:

    No disagreement there. But politically, it can be a hard sell.

    Lurking Observer (ea88e8)

  17. Check the tent city jail in Arizona to see how a jail, for other than those requiring max security facilities, should be operated. Pink uniforms, pink underwear, diet of bologna sandwiches. Sounds like a jail they don’t want to come back to me.

    Scrapiron (a90377)

  18. Scrapiron,
    That sounds like my house after my wife washed all my stuff with her red sundress.

    Dan Collins (6a68a2)

  19. Dana–

    One big problem with getting juries to convict users: a large segment of the population has used illegal drugs at one point or another in their lives. Possibly a majority of current adults. Any jury that halfway qualified as a jury of peers would have feelings of hypocrisy and the possibility of nullification would be high.

    It’s bad enough with dealers, but at least most people who once experimented with drugs can agree that selling crack, or smuggling 100 pounds of pot across the border, is not a victimless crime.

    I’m pretty sure that Patterico would have a hard time remembering the last time he saw a prosecution for a bag of weed for personal consumption, without there being some other “real” reason. If you can’t get a jury to convict for a kilo of coke, what hope do you have prosecuting users?

    Kevin Murphy (0b2493)

  20. Mr Murphy correctly notes that it might be difficult to get juries to convict people for using drugs.

    That means, of course, that we might as well legalize; how can we (reasonably) have a system in which it is de facto “legal” to use recreational drugs, but illegal, and a felony to boot, to sell drugs?

    The illogic of that system is made obvious by our “war” on drugs: cities littered with the dead of drug gang violence, and new drug dealers immediately ready to replace those who do get caught.

    The libertarian part of me says that if someone wants to f up his life by using drugs, that’s fine with me, as long as he, and he alone, is responsible for the consequences. That would mean, to me, that the public, in the form of the government, are not responsible for providing drug treatment and rehabilitation for people who get hooked, and are not responsible to feed and house and clothe people who are FUBARed because of drugs that they can’t hold a job.

    But then there is the other side of me, the side married to a pediatric nurse, a wonderful woman who has seen plenty of child abuse cases in her career, who has shared some stories that would make even our esteemed host cry, and has said that she has never seen an abuse case where there weren’t adults f’ed up on drugs or alcohol — and usually both.

    Unfortunately, drug use is not a victimless crime.

    Dana (3e4784)

  21. There a real way to take care of drug trafficers and drug king pins do the same that we did with the infamous PABLO ESKOBAR hunt them down and kill them

    krazy kagu (9a4519)

  22. Leviticus, who fashions his screen name after nothing more than his actual name (but nevertheless appreciates the observation), writes that

    You may work under severe conditions, Dana, but I can pretty much guarantee that you do so under several conditions: 1) You get paid. 2) Your health is taken into account, and affects your schedule accordingly. 3) You have the prospect of comfort at the end of a day’s work. 4)You aren’t chained to a pole in said 90 degree heat (a chain that is going to get extremely hot over the course of a day).

    As to your claims regarding Hitler’s conditions versus the ones you advocate, Hitler did (nominally) feed many of the Jews in internment camps (the ones he needed for labor). In the U.S., as I’m sure you would acknowledge, their are numerous cases of guards beating (or killing, or otherwise molesting) prisoners; also, there is such a thing as prison labor in this country.

    It’s a slippery slope, my friend. Just give someone an excuse and it all goes South.

    Levitcus (68eff1)

  23. […] Lopez’s desire for lenient treatment of this victim is interesting, given his previous clarion call for prison time for a man convicted of possessing eight ounces of cocaine. […]

    Patterico’s Pontifications » Steve Lopez: Prison for Drug Dealers, Not Violent Offenders (421107)


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