Author Archive for alexander-kreit

“On the phone with this fat chick… where my IHOP.”

posted by Alex Kreit

My criminal defense attorney friends not-infrequently lament that their clients foolishly post incriminating information to facebook, twitter, myspace, etc.  But, it turns out that social networking sites can help criminal defendants too.  From New York comes news of a robbery suspect who had the charges against him dropped because of a facebook status update that gave him a rock-solid alibi.  At the time of the crime, the now-cleared Rodney Bradford was on his computer and posted the message that is the title of this post to facebook: “On the phone with this fat chick… where my IHOP.”

Update: Though I posted this as a quick, semi-humorous, item, SueSimp raises a good and substantive point in the comments that this case presents an example of the difficulties of eye-witness ID.  The suspect in this case was originally picked out of a lineup and, if not for his facebook status update, he may very well have ended up in prison on the basis of what we now know was a mistaken ID.

  November 13, 2009 at 3:36 pm   Posted in: Uncategorized   Print This Post   2 Comments

Blogging the Drug Policy Alliance Conference 2: 10 Rules for Dealing with Police

posted by Alex Kreit

Last night, I attended a “sneak-preview” conference screening of “10 Rules for Dealing with Police,” a new video by Flex Your Rights.  Any profs out there who advise Street Law or similar programs should be sure to order this DVD once it is released (currently scheduled for late this year or early next).  10 Rules features super-star criminal defense lawyer Billy Murphy (who you may remember from his cameos on HBO’s The Wire) and provides practical and accessible guidance for dealing with the police.  The video weaves vignettes of fictionalized police encounters in with advice from Murphy about what to learn from each encounter.  Aside from including the “rules” every criminal defense attorney wishes their clients would follow about how to protect their constitutional rights (such not consenting to searches), the video also provides rules on how to be courteous to the police, etc.   I think 10 Rules will be an incredibly valuable tool for educating high school students and other lay audiences as part of “know your rights” or similar events and programs.

By the way, for those interested, DrugWarRant is providing some more detailed coverage of the Drug Policy Alliance conference.

  November 13, 2009 at 3:25 pm   Posted in: Uncategorized   Print This Post   No Comments

Blogging the Drug Policy Alliance Conference

posted by Alex Kreit

I’m currently in Albuquerque, New Mexico for the Drug Policy Alliance’s biannual conference.  The event brings together a mixture of people–from folks in the non-profit world to academics to activists–who are interested in drug policy reform issues.  This afternoon I spoke on a panel about state medical marijuana laws that included individuals involved in implementing medical marijuana laws in New Mexico, Colorado, and Rhode Island.  I offered my thoughts on the law in California, with a focus on my experience as Chair of the City of San Diego’s medical marijuana task force. It was a great discussion and especially fascinating to hear about the various approaches that states and cities are taking to the issue–for anyone with an interest in federalism, medical marijuana laws would certainly make an excellent case study.  (Speaking of which, Robert A. Mikos of Vanderbilt has a wonderful new article out considering the limits of federal supremacy in the context of California’s medical marijuana laws.)  I’m currently being dragged away from my laptop by some hungry colleagues for dinner, so I must keep this post brief.  But, I plan to blog more about California’s medical marijuana laws and my experiences in San Diego over the coming days.

  November 12, 2009 at 7:28 pm   Posted in: Uncategorized   Print This Post   2 Comments

Changes on the Fourth Circuit

posted by Alex Kreit

The past week has seen some interesting developments for the U.S. Court of Appeals for the Fourth Circuit Court, where I clerked for Judge M. Blane Michael (who, in addition to being one of the most brilliant people I know, is also one of the nicest.)  Last week, President Obama announced two new nominees to the Court (one of whom once worked as a public defender) and earlier this week the Senate confirmed Andre Davis to fill a seat that has been vacant since 2000.  Davis’ confirmation tipped the balance of the Court to 6 Judges appointed by Democrats to 5 appointed by Republicans.  To be sure, we should always be careful not read too much into a court based on how many of its members were appointed by Democrats versus Republicans.  Still, the number does provide a stark (if overly simple) contrast to the state of the Fourth Circuit just six years ago when the New York Times proclaimed it to be “the shrewdest, most aggressively conservative federal appeals court in the nation.” And after President Bush won reelection in 2004, most observers believed that the Court would become even more conservative.

So, what happened?  Unexpected events can be blamed in part for the shift–specifically, Judge J. Michael Luttig’s sudden decision to step down in 2006 and the very sad news earlier this year that Chief Judge Karen J. Williams was resigning after having been diagnosed to be in the early stages of Alzheimer’s.  But, some odd missteps by the Bush Administration also played a role.  After Democrats gained control of the Senate following the 2006 elections, for example, conservatives expressed concern that Bush would need to act quickly and wisely to avoid losing control of the Court.   And yet, when Republican Senator John Warner and Democratic Senator Jim Webb submitted a list of five potential nominees, Bush inexplicably nominated someone who was not on that list and had instead been backed by the Republican Senator that Webb had defeated.

In any event, whatever the reasons, today’s Fourth Circuit certainly looks a lot different than it did when I was clerking there just a few years ago.

  November 12, 2009 at 4:56 am   Posted in: Uncategorized   Print This Post   One Comment

Some Thoughts on Graham and Sullivan

posted by Alex Kreit

I’ve been in Washington, DC for the past few days to attend the oral arguments in Graham and Sullivan, the juvenile life-without-parole cases.  Though I’m not normally in the habit of flying across the country to see oral arguments, I’m team-teaching a small seminar about the two cases and we decided to organize a class trip for the occasion.  There were a few snags, but all in all it was a lot of fun.  (It also brought back some wonderful memories for me of my very first trip to see oral arguments at the Supreme Court as part of a seminar I took in college.)

I ended up listening to the arguments from inside the “lawyer’s lounge” for overflow Supreme Court bar members (one of the aforementioned snags was our miscalculation of exactly how tough it would be to get in to hear the arguments.)  I don’t have too much new to add to all of the excellent (and much more timely) commentary on cases.  Like many others, I thought that the most interesting development was Chief Justice Roberts’ focus on incorporating age into Eighth Amendment proportionality review.  The idea is not one any of the parties discussed in their briefs.  The attorneys for Graham and Sullivan advanced the view that life without parole for juveniles for a non-homicide offense is cruel and unusual.  Meanwhile, the State of Florida took the position that the standard proportionality test should apply and that the sentences in each case easily met that standard.  Splitting the difference by incorporating age into proportionality review seems to be an appealing way to reconcile the Courts’ jurisprudence regarding juveniles and the death penalty with its proportionality jurisprudence.  And, at least on the surface, the idea seems like it might provide an avenue for a majority of the Court to come together around a single standard.  I do wonder, however, how an approach along the lines of what Justice Roberts’ seemed to be proposing might actually play out in these cases.

Assuming, for the sake of argument wild speculation, that Roberts can get a plurality together to adopt his idea (let’s say, himself, Kennedy and Sotomayor), there is certainly no guarantee that they would be able to agree about the details–namely, the weight an offender’s age should be given in the test.  Conceivably, we could see a highly fractured Court with a number of Justices coming together around the basic premise of incorporating juvenile status into proportionality review but then diverging significantly (and in very different ways) after that.  I’ll admit that I have not yet had the opportunity to read all of the great commentary on the case and so I imagine someone has already speculated (very likely much more insightfully than I have) about how a Roberts-test might result in a number of different opinions that each follow his basic idea but agree on little else.  However, having gone to DC for the argument while guest-blogging here, I could not resist writing up a quick a post to add my two cents about the case (especially since doing so has been a convenient way to productively avoid the mountain of email waiting for me in my inbox.)

  November 11, 2009 at 6:07 am   Posted in: Uncategorized   Print This Post   4 Comments

Update on the Grassley Amendment

posted by Alex Kreit

It appears that Sen. Charles Grassley (R-IA) has pulled his amendment (that I blogged about on Tuesday here) to the National Criminal Justice Commission Act that would have prevented the commission from even discussing the decriminalization or legalization of any controlled substance.  Grassley was asked about the amendment by a reporter yesterday during a conference call.  He did not explain why he decided to pull the amendment, but did affirm that it would have applied to stop the discussion of even medical marijuana by the Commission.  Law Enforcement Against Prohibition has the relevant exchange between Grassley and the reporter.

  November 5, 2009 at 4:53 pm   Posted in: Uncategorized   Print This Post   No Comments

Election Night 2009

posted by Alex Kreit

Like any good political junkie, I have been spending the past few hours switching back and forth between MSNBC and CNN on the television while frantically reloading talkingpointsmemo.com on my laptop.  We have results in for the two big governors races, with Republicans picking up wins in Virginia and New Jersey.  Meanwhile, the most closely watched ballot initiative, the marriage equality initiative Measure 1 in Maine (for those who have not been following the measure closely, a “No” vote on Measure 1 is a vote in favor of gay marriage), remains too close to call.

Flying under the radar (on this already somewhat under the radar election night), however, were two drug policy reform measures in Maine and Breckenridge, Colorado.  And both appear to have won handily, with Mainers voting to approve the creation of a licensed medical marijuana dispensary system for patients to obtain medicinal marijuana and Breckenridge residents voting to decriminalize possession of up to one ounce of marijuana.

And with that, it’s back to reloading talkingpointsmemo.com for me.

  November 3, 2009 at 9:59 pm   Posted in: Uncategorized   Print This Post   6 Comments

Politicians: Have you talked to your constituents about drug policy?

posted by Alex Kreit

Thanks to Deven and the rest of the Concurring Opinions crew for the opportunity to guest-blog this month, I’m very excited to be here.  I’ll be blogging mostly about drug policy issues, though I will likely touch on some other topics along the way as well (warning to those easily bored: this may involve me giving into my nerdiest law nerd-temptations and writing a post or two about facial and as-applied challenges.)

In my first post here though, I’d like to raise the question of why it is that reforming drug policy in the United States continues to be such a taboo political topic.  This something that I think about often, but it is especially fresh in my mind with some less-surprising-than-it-should-be-news from today about Senator Jim Webb’s (D-VA) bill to create a historic blue-ribbon commission to study our nation’s criminal justice system, with a focus on reducing our unusually high incarceration rate.  Sen. Charles Grassley (R-IA), has proposed an amendment to the bill that would prohibit the commission from making any “findings related to . . . criminal justice policies and practices or reform recommendations that involve, support, or otherwise discuss the decriminalization of any offense under the Controlled Substances Act or the legalization of any controlled substance listed under the Controlled Substances Act.”

Grassley’s proposal would be odd enough if it merely prevented the panel from recommending the decriminalization or legalization of any controlled substance.  After all, it isn’t as if Webb’s commission will be writing the laws themselves; their task will to make recommendations that law-makers would be free to ignore or follow as they choose.  Grassely’s proposal goes beyond restrictions on recommendations, however, by seeking to prohibit even the mere discussion of decriminalizing or legalizing any controlled substance.  While Grassley is at it, maybe he should also instruct the commission members to shield their eyes from recent reports by the United Nations and the CATO Institute that found Portugal’s 8-year-old drug decriminalization policy has been a great success.

Of course, Grassley is far from alone among politicians in his aversion to even discussing alternatives to our current drug policy.  In many ways, President Obama’s “drug czar” Gil Kerlikowske has been a breath of fresh air for his willingness to entertain and even advocate for certain drug policy reforms.  But, when asked about legalization, his stock answer is that “legalization is not in the president’s vocabulary, and it’s not in mine.”  Even the judiciary has gotten into the act, with the Supreme Court’s 2007 decision in Morse v. Frederick, which held that the First Amendment does not apply to protect student speech that school officials reasonably view as promoting illegal drug use.

So: why are we so afraid even to discuss ideas like decriminalization or legalization?  For some of my quick, initial thoughts (and a request for yours as well), follow me to the flip… Read the rest of this post »

  November 3, 2009 at 5:03 pm   Posted in: Uncategorized   Print This Post   5 Comments