Posted on Mon, Apr. 5, 2010

Philadelphia to ease marijuana penalty

By Craig R. McCoy, Nancy Phillips, and Dylan Purcell

Inquirer Staff Writers

The city’s new district attorney and the state Supreme Court are moving to all but decriminalize the possession of small amounts of marijuana for personal use in an effort to unclog Philadelphia’s crowded court dockets.

Under a policy to take effect later this month, prosecutors will charge such cases as summary offenses rather than as misdemeanors. People arrested with up to 30 grams of the drug – slightly more than an ounce – may have to pay a fine but face no risk of a criminal record.

“We have to be smart on crime,” said District Attorney Seth Williams, who took office in January. “We can’t declare a war on drugs by going after the kid who’s smoking a joint on 55th Street. We have to go after the large traffickers.”

The shift is a major move in a reform agenda being hammered out in an unusual partnership between Williams and two members of the state Supreme Court, Chief Justice Ronald D. Castille and Justice Seamus P. McCaffery, each of whom has a long background in criminal justice.

The goal is to sweep about 3,000 small-time marijuana cases annually out of the main court system, freeing prosecutors and judges to devote time to more serious crimes. The diverted cases amount to about 5 percent of the caseload in criminal court.

Police have been briefed on the policy shift, but appear less than enthusiastic about it.

“We’re not going stop locking people up,” Lt. Frank Vanore, a police spokesman, said Friday. He said marijuana possession remained illegal.

“We’re going to stop people for it. . . . Our officers are trained to do that,” Vanore said. “Whether or not they make it through the charging process, that’s up to the D.A. We can’t control that. Until they legalize it, we’re not going to stop.”

Some key aspects of the change remain unresolved.

Williams’ top aides are still researching whether they can simply convert all the small marijuana arrests into summary charges of disorderly conduct. The shift might require a change in state law or in a city ordinance, his advisers say.

The new approach could generate hundreds of thousands of dollars in fines for the Philadelphia courts. While the amount has not been formally set, fines for minor drug possession would be $200 for first-time offenders and $300 for others.

“We are not looking at it as a moneymaker, but we could use those funds to focus on other efficiencies,” said Castille, who was Philadelphia’s district attorney from 1986 to 1991.

McCaffery, a homicide-detective-turned-lawyer, has talked of using some of the new cash to pay consultants to study further ways to reform the court system.

Castille called the new policy “appropriate” for a system loaded up with a total of 60,000 fresh cases a year, including the arrests of about 5,500 alleged heroin, cocaine, and methamphetamine sellers.

Of marijuana possession, the chief justice said, “It’s a minor crime when you’re faced with major drug crimes.” Taking those cases out of the city’s main courtrooms, he said, “unclogs the system.”

The new approach was endorsed by Chris Goldstein, a leader of the Philadelphia chapter of the National Organization for the Reform of Marijuana Laws (NORML). His group has been quietly lobbying prosecutors and top Philadelphia narcotics police for change.

“The marijuana consumers of Philadelphia welcome this,” Goldstein said.

McCaffery, appointed by Castille to oversee the ongoing shake-up of Philadelphia’s criminal justice system, said the shift would help the courts focus on more serious cases.

“This will free up a lot of time in the courtroom,” he said. “The fewer de minimis cases, the more time the judge and the prosecutor are going to have on other cases.”

The new policy on marijuana is part of a wave of changes under review in response to The Inquirer’s investigative report on the criminal justice system, “Justice: Delayed, Dismissed, Denied,” in December.

The newspaper’s reporting portrayed the Philadelphia system as in crisis, clogged with cases, bogged down by delay, and harsh on victims and witnesses. The paper found that Philadelphia defendants escaped conviction on all charges in nearly two-thirds of violent-crime cases – one of the lowest conviction rates in the nation.

Williams, working with the two justices and others, is also moving forward with plans to streamline preliminary hearings and overhaul the charging unit, rejecting prosecution in some cases and kicking others back to detectives for more investigation.

He and top aides – First Assistant District Attorney Joseph McGettigan and Deputy District Attorney Ed McCann – have been giving misdemeanor marijuana cases special attention. The maximum penalty for possession for personal use is only 30 days in jail, and defendants rarely serve time.

Under Williams’ predecessor, Lynne M. Abraham, the district attorney for 18 years, the office prosecuted about 3,000 such cases a year.

The prosecutions often tied up judges, assistant district attorneys, police, and defense lawyers – not to mention defendants – in Municipal Court for multiple court listings.

Prosecutors would agree to withdraw the charge if a first-time offender completed community service. Offenders with a criminal history could end up with a formal misdemeanor conviction.

Under the new policy, people charged with possession for personal use will still be arrested, handcuffed, searched, detained, and fingerprinted. Then, regardless of their criminal history, their case will be heard by a special late-afternoon summary court in Courtroom 408 at the Criminal Justice Center. This “quality of life” court handles offenses such as public drinking and disorderly conduct.

Defendants determined to fight the charges could still demand a full trial, but few are expected to do so.

Arrests for small amounts of marijuana aside, police still make thousands of drug arrests yearly in Philadelphia – 18,000 last year for drug-related crimes of all sorts, including charges involving possession and dealing.

Of these, they arrested about 2,000 suspects as alleged marijuana dealers and about 2,500 people for possession for larger amounts of marijuana, over 30 grams.

The handling of those more serious cases will not change, prosecutors say.

Police and prosecutors in other cities and states have taken similar steps toward decriminalization or something approaching it. Several dozen cities have enacted “lowest law enforcement priority” ordinances, stipulating that police pursue such cases as a last resort.

Voters in Seattle approved a ballot question mandating this change in 2003. Since then, arrests for possessing small amounts of marijuana have fallen by three-quarters. In 2005, Denver voters approved an ordinance legalizing possession of less than an ounce, or 28 grams. San Francisco passed a similar law in 2006.

Several states, too, have taken a softer stance on marijuana possession. For example, Massachusetts decriminalized marijuana in 2008, making it a civil offense and imposing a $100 fine for possession of less than an ounce.

According to the Department of Justice’s latest report on drug crime, 28 percent of adults ages 18 to 25 who were surveyed admitted using marijuana at least once within the previous year. For the rest of the adult population, 7 percent admitted using the drug during the same period.

McCaffery has considerable experience with the use of special courts operating under the umbrella of Municipal Court. When he was the court’s administrative judge, he pioneered “Eagles Court” for unruly football fans and spurred the collection of fines for “quality of life” summary offenses.

During McCaffery’s final 16 months on the Philadelphia bench, the courts levied $2.3 million in fines. Since he left, the imposition of those fines has diminished, costing the city millions, he said.

Under the new initiative, McCaffery said, the court will resume imposing those charges even when defendants fail to show up for summary court.

According to McCaffery, the court will be able to go after as much as $5.5 million in fees from 2008 and 2009 in this fashion. Any new marijuana-related charges will be on top of that.

Goldstein, of NORML, said his group had been lobbying for relaxed treatment of marijuana cases for more than a year, meeting with members of the District Attorney’s Office, Mayor Nutter’s staff, and police brass.

“This is a very progressive thing to do on the part of the city,” Goldstein said of the new policy. “I couldn’t be happier about this.”

He said the change also would redress a racial pattern apparent in Philadelphia drug-possession arrests. More than 80 percent typically have been of African Americans, Philadelphia police data show.

“All the data from the federal government indicates that blacks and whites consume marijuana at near-equal rates,” Goldstein said, yet “the pattern of arrests is that over 75 percent are black men.”

According to him, the situation is the same in New York City, where research indicated it was due to more intensive police patrol activity in African American neighborhoods.

Goldstein said he was troubled that Philadelphia police would be permitted to keep arresting people for marijuana possession.

“It is completely absurd,” he said. “It’s harsh. For minor marijuana possession, it’s very harsh treatment.”

Police elsewhere merely issue people a ticket and send them on their way, he said.

Leading members of the defense bar also endorsed the new marijuana-prosecution policy.

Joseph C. Santaguida said that “it’s a good idea” to steer these minor drug cases to a diversionary program.

Brian Zeiger, another criminal-defense lawyer, said he saw the move as positive both for taxpayers and defendants.

“The city gets money, and the city doesn’t have to pay [court] overtime to the cops. It’s a guaranteed win for clients. It takes all the risk out of it.”

Below is an excerpt from the 2009 Philadelphia NORML (National Organization for the Reform of Marijuana Laws) rally.

Click here to view the embedded video.

An exception exists to the five year waiting period. The exception is directly written into the expungement statute at 18 Pa.C.S. sec. 9122(a)(3) as:

a person 21 years of age or older who has been convicted of a
violation of section 6308 (relating to purchase, consumption,
possession or transportation of liquor or malt or brewed beverages)
petitions the court of common pleas in the county where the conviction
occurred seeking expungement and the person has satisfied all terms and
conditions of the sentence imposed for the violation, including any
suspension of operating privileges imposed pursuant to section 6310.4
(relating to restriction of operating privileges). Upon review of the
petition, the court shall order the expungement of all criminal history
record information and all administrative records of the Department of
Transportation relating to said conviction.

This means that if you are convicted of a summary offense under 18 Pa.C.S. 6308, you are over 21 years old and you have satisfied all of the requirements from the initial sentence, your summary conviction shall be expunged without the five year waiting period. 18 Pa.C.S. 6308 involves summary offenses related to alcohol.

Therefore, your under aged drinking conviction can get expunged in less then five years.

In Japan its also illegal to purchase alcohol under age. However, you can buy beer from a vending a machine.

Often, a defendant should not testify in their case. Some of the reasons the defendant should not testify: the defendant has bad prior crimes that the district attorney may be able to bring out only if the defendant testifies, the defendant is not a good witness, or while the defendant’s story does not inculpate her, but makes her seem guilty.

When you are faced with the situation the best thing to do, is to be prepared for three scenarios during trial. The first is simple, the district attorney uses the statement that was made by the defendant to the police. The second is to ignore the statement all together, so if the district attorney doesn’t use the statement, you are ready to fight the case and never let the jury know the statement was ever made. The third is to prepare for the defendant to testify.

The hardest part is not knowing what will happen and being able to change on the fly. Not having a set game plan is very tough on some clients, but often the most important part of a case.

interrogation

“Police-panel investigator vows to fight misconduct rap

By DANA DiFILIPPO
Philadelphia Daily News

difilid@phillynews.com 215-854-5934

The President has the power to grant amnesty, commute a sentence, or grant a full pardon for any offense against the United States. However, the President cannot pardon a person for an offense committed against a state. Amnesty means that you are immune from prosecution for a specific act. The best example, would be granting amnesty to all people who peacefully resisted being drafted for a war they opposed. In that instance, if the government was about to charge draft dodgers with a crime, the president could grant amnesty to all of those people.

A commutation is where the President does not remove the record of the conviction, but removes all of part of a sentence. An example of this is when I. Lewis “Scooter” Libby was convicted of crimes, he received a sentence of 30 months in jail. Then President George W. Bush commuted the sentence. In that instance, Libby still remains a convicted felon.

A pardon full removes the conviction, and reinstates all rights of the individual to their rights as they were before the prosecution that caused them to be convicted.

Clemency is a word used to describe the entire umbrella of pardons, commutations and amnesty.

Some weapons in Pennsylvania are called Prohibited Offensive Weapons, and if the weapon you possess meets any of the definitions below, you cannot carry the weapon even for defensive purposes. Further, note in the definitional section below the of the actual offensive weapons, that a blackjack and a spring loaded weapon are both mentioned. Many defensive weapons fit a combination of these two and are therefore not allow.

The following picture is an example of a spring loaded baton, and the statute follows.

Spring Loaded Baton

A POW is defined below:

§ 908. Prohibited offensive weapons

(a) OFFENSE DEFINED.– A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.

(b) EXCEPTIONS.–

(1) It is a defense under this section for the defendant to prove by a
preponderance of evidence that he possessed or dealt with the weapon
solely as a curio or in a dramatic performance, or that, with the
exception of a bomb, grenade or incendiary device, he complied with the
National Firearms Act (26 U.S.C. § 5801 et seq.), or that he possessed
it briefly in consequence of having found it or taken it from an
aggressor, or under circumstances similarly negativing any intent or
likelihood that the weapon would be used unlawfully.

(2) This section does not apply to police forensic firearms experts or
police forensic firearms laboratories. Also exempt from this section
are forensic firearms experts or forensic firearms laboratories
operating in the ordinary course of business and engaged in lawful
operation who notify in writing, on an annual basis, the chief or head
of any police force or police department of a city, and, elsewhere, the
sheriff of a county in which they are located, of the possession, type
and use of offensive weapons.

(3) This section shall not apply to any person who makes, repairs,
sells or otherwise deals in, uses or possesses any firearm for purposes
not prohibited by the laws of this Commonwealth.

(c) DEFINITIONS.– As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Firearm.” Any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

“Offensive weapons.” Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

(d) EXEMPTIONS.– The use and possession of blackjacks by the following persons in the course of their duties are exempt from this section:

(1) Police officers, as defined by and who meet the requirements of the
act of June 18, 1974 (P.L. 359, No. 120), referred to as the Municipal
Police Education and Training Law.

(2) Police officers of first class cities who have successfully
completed training which is substantially equivalent to the program
under the Municipal Police Education and Training Law.

(3) Pennsylvania State Police officers.

(4) Sheriffs and deputy sheriffs of the various counties who have
satisfactorily met the requirements of the Municipal Police Education
and Training Law.

(5) Police officers employed by the Commonwealth who have
satisfactorily met the requirements of the Municipal Police Education
and Training Law.

(6) Deputy sheriffs with adequate training as determined by the
Pennsylvania Commission on Crime and Delinquency.

(7) Liquor Control Board agents who have satisfactorily met the
requirements of the Municipal Police Education and Training Law.

Probation is where the sentence, or part of the sentence, is for the person to remain on the street, but to report to an officer to ensure their behavior is good.

If someone is in jail serving their sentence and they want to get out of jail earlier then their minimum date, or they haven’t been paroled at their minimum date, you can file a petition with the sentencing judge called an early parole petition and ask the judge to allow the person to be paroled earlier then had been intended.

If someone is on the street on probation or parole, you can file a petition with the judge for early termination of the probation or the parole.

Note that these petitions are only filed when the sentencing power is with the state court judge and not with the Pennsylvania Department of Corrections. Also, note that parole petitions are usually granted when someone has been in jail, been on good behavior, completed all of the classes they are supposed to complete, and have served their minimum. Also, early termination of probation petitions are usually granted when someone got a very long probation tail to their initial sentence and during the course of the probation they have truly changed their lifestyle, paid all of their fines and costs, paid all restitution, and can show the judge that they are truly worthy of being released from supervision.

To get a pardon, comutation or clemency in Pennsylvania, you must fill out an application. After the application, you must wait to hear if you get a hearing. At the hearing you must get three yes votes to get a recommendation for the pardon or commutation.

In reviewing a case for a pardon, I consider four factors. The first three are: why does the person need a pardon, why does the person deserve a pardon, what has the person done to give back to society.

The fourth factor is the individual’s view of the crime that occurred. The individual can say either that the crime occurred and accept full responcibility for the act, or in the alternative deny the act and have the crime reinvestigated. Obviously, the latter would be exceedingly difficult to show.

The gradation for the above described activity is as follows “An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substaintial harm or serious inconvenience, or if he persists in disorderly conduct after reasonble warning or request to desist.  Otherwise disorderly conduct is a summary offense.“

In my experience people are almost always charged with disorderly conduct as a summary.  The times where I see the commonwealth pursue the misdemeanor is when the defendant’s behavior is extraordinary or where it is done in a highly populated public area.  It is difficult to cause substantial harm or serious inconvenience when you are by yourself or with only a small group of people.  I hope this helps clear up some of the confusion.