There's a lively discussion going on over at Atrios about "when no means no" and how (mainly) men can tell.

We wrote about the courts' treatment of "no after yes" in Rape After Consenting to Sex, which we followed up with " Rape After Consenting to Sex, Part Two."

Bottom line is, "No" can be asserted at any time, even after saying "Yes." Provided , it is clearly communicated to the other person.

The October issue of Washington Lawyer has an excellent article on how the federal Sentencing Guidelines have changed the practice of law. The article includes these facts about federal criminal cases:

• Only about 6 percent of criminal cases brought by the federal government go to trial.

• The government secures a conviction in about three-quarters of these cases. White-collar crimes constitute about 17 percent of cases in federal court.

• Each year approximately 19,000 “downward departures”—sentences below the minimums in the guidelines’ range—are granted by federal judges, and about 80 percent of these are requested by prosecutors, usually because of the defendant’s cooperation, under section 5K1 of the guidelines, which grants more lenient sentences for “substantial assistance to authorities.”

The article features interviews with six noted members of the Washington defense bar who describe how the guidelines have changed the way they represent their clients in federal court.

Continuing the topic of taking the War on Drugs to an absolutely absurd level....

In today's news:

Boyfriend and girlfriend, 15-year-olds Brandon Kizi and Andra Ferguson are both asthma sufferers and both students at Caney Creek High School. At least, they were, until Andra began suffering an asthma attack at school.

"I couldn't breathe, and I was just very short of breath," recalled Andra. "My chest was tightened up and it was hurting."

Brandon described the incident. "Her face was turning a little reddish-pink and she looked pale, as far as I could see. I loaned her my inhaler. I walked her to the nurse's office and loaned her my inhaler."

That's when the trouble started. The school nurse called the school police, who arrested Brandon. They charged him with a felony, namely distributing a dangerous drug for loaning out his prescription inhaler. Andra's mother thinks that's wrong. "His (inhaler) is the very same thing. And he has had my permission to give her that medication any time she forgets it," said Sandra Ferguson.

John Walters, Bush's Drug Czar, is seeking to give random urine tests to schoolkids.

President Bush's drug czar told New England governors Wednesday that drug testing in schools would be an effective way to combat a growing problem of drug use among young people, but area school officials caution there are problems with it

Thankfully, school officials are expressing reluctance:

I don't believe it's reasonable to randomly test kids," said Wesley Knapp, superintendent of the Southwest Vermont Supervisory Union.There would have to be some basis for suspecting a student of using drugs before taking further steps, he said. In that case, some action may be justified, he said. "It's an infringement of freedom, and kids have the same constitutional rights as adults," he said.

....Charles Scranton, the headmaster of Burr and Burton Academy in Manchester, said he was completely and totally against across-the-board drug testing. "For those who have put themselves in that position it's one thing," he said. "It could erode a positive culture and climate at a school."

[link via Hit and Run]

[comments now closed]

As expected, President Bush has named James Comey, U.S. Attorney for the Southern District of New York, as the new Deputy Attorney General of the U.S. This is the number two position, under Ashcroft. Comey replaces Larry Thompson, who resigned a few months ago.

Kynn Bartlett over at Shock and Awe has a quote-filled post about Comey and asks our opinion.

Comey appears to be a dream appointment for Ashcroft. His tenacity in terrorism and financial fraud cases is well-known. Two things we haven't liked about his positions:In the case against attorney Lynne Stewart, Comey vowed to keep fighting even after the Judge threw out the terrorism charges against her.

Second, we don't like this quote from a brief he submitted in the Jose Padilla case:

. Comey, U.S. attorney for the Southern District... declared in a brief, "A court of the United States has no jurisdiction ... to enjoin the president in the performance of his official duties." (Source: The Legal Intelligencer August 29, 2003, available on Lexis.com.)

But we're not up in arms about Comey. We're sorry to see Larry Thompson go, but we doubt Bush and Ascroft would ever appoint anyone as reasonable as Thompson to that position again. In a sense, one tough prosecutor is the same as the next. We don't know of any attacks on Comey's integrity as a prosecutor or of charges of deliberate misconduct. We don't doubt we'll be criticizing his policies, but we have no criticism now of him as an appointee. That could change, of course, but that's our position now.

This is an outrage.

CANTON, Ohio (AP) - A man who sold a bag of baking soda as crack cocaine to an undercover police officer in a drug sting has been sentenced to 11 years in prison. Kenyan L. Chandler, 22, of Massillon, was sentenced Tuesday in Stark County Common Pleas Court.

Police said Chandler negotiated a deal with the officer in July that he would deliver 4.5 ounces of crack for $8,000. Chandler produced a small bag and was arrested. Later, tests showed it was baking soda. A jury convicted him last week of cocaine trafficking, which Ohio law defines as selling or offering to sell the drug. It makes no difference that Chandler was peddling a fake, Stark County assistant prosecutor Joe Vance said.

The amount was found to be more than 100 grams, qualifying Chandler as a major drug offender. That brings a mandatory 10-year sentence, and a judge may add up to 10 more years.

Here's the kicker: Chandler could have been charged with selling fake drugs, known as counterfeit controlled substances. The maximum prison term for that offense is one year.

This is a state case. But under Ashcroft's new memos, it could happen easily in the federal system. The case is a great example of why it is such a horrible idea to grant more powers to prosecutors and direct them to file the most serious charges possible, while reducing the role of the judiciary to depart from mandatory minimums and guideline sentences in situations judges believe a departure is called for.

It is now a crime to drive while tired in New Jersey. It's called "Maggie's Law." [Not to be confused with the state's Megans Law."

Under Maggie's Law, police will not be pulling over drivers whose eyelids look heavy. But the law allows prosecutors to charge a motorist with vehicular homicide, punishable by up to 10 years in prison and a $100,000 fine, in the event of a deadly crash if there is evidence the accident was caused by sleepiness.

This strikes us as overkill and another feel-good unnecessary law. There are plenty of laws already on the books that criminalize the conduct of at-fault and negligent motorists who cause an auto accident that results in death. There's no need to specify every type of misconduct that fits the crime of vehicular homicide or criminally negligent homicide or whatever the law is called in a particular state. That's what juries do.

New York and Washington state are considering similar bills.

Drug WarRant has the uplifting story of a former cop who is about to finish a 3,100 mile horse ride across the country to promote the legalization of marijuana. [news article is here]

On the other hand, this post , about a phyisican in South Carolina who is a now a convicted felon facing 100 years in prison for prescribing opiates as pain medication to her patients with chronic, severe pain, is very depressing.

Dr. Deborah Bordeaux used to be a pain management specialist. Now she's a convicted felon facing a 100-year prison sentence as a drug dealer. Bordeaux was arrested when the Drug Enforcement Administration (DEA) and South Carolina law enforcement raided the Myrtle Beach clinic where she once prescribed opioids to severely ill patients... And there are more, a growing number of physicians indicted and sometimes convicted of being drug traffickers but who say they were only doing what was best for patients.

Just in via email from some Houston and Virginia lawyers that specialize in driving under the influence cases:

Stabilizing blood sugar levels is an everyday problem for many Americans. For those who endure the various problems of errors in metabolism, ranging from diabetes to hypoglycemia, the condition often can be not only a medical
one but also a legal one.

As states enforce ever more stringent DUI legislation, an increasingly frequent occurrence for many with blood sugar problems has been to be unjustly charged with a crime that can have long-lasting effects on their lives and careers.

They have written a new article, available free here, that says science shows that plunges and spikes in blood sugar levels can mimic the effect of drinking and driving. If you or someone you care about is in that category, you might want to give it a read. [link fixed]

We're haven't read it so we can't endorse or slam it, but its something worth reading because these cases happen more often than you might think.

If you do read it, we hope you will report back on what you think of the arguments and whether they are likely to be accepted by a court.

The Chicago Sun Times criticizes Attorney General John Ashcroft for his recent memos to Prosecutors reducing their ability to plea bargain and directing them to report Judges who grant downward departures in sentencings contrary to the Government's wishes:

Americans like to be tough on crime. That's why we have a higher percentage of our population in prison than anywhere else in the world. But we also have a lot of respect for our judges and federal prosecutors. Which is why it hurts to see this Cotton Mather who is running the Justice Department keep trying to chain them to a reflexive punitiveness that would shut down the system.

A new law enforcement study in Minnesota makes two important findings: Racial profiling exists--and it is ineffective at ferreting out crime.

Blacks, Latinos and American Indians are more likely than whites to be stopped by police and searched but much less likely to be found with anything illegal, a study of alleged racial profiling by Minnesota law enforcers showed Wednesday.

Analyzing more than 200,000 traffic stops, the report finds racial minorities (black, latino, American Indian) are stopped and searched more often than whites in almost every jurisdiction studied. Even though whites are stopped least often, once stopped they are found to have committed crimes at a much higher rate than racial minorities.

Bill Gillespie, executive director of the 7,000-member Minnesota Police and Peace Officers Association, said the study proves that white and minority suspects are handled differently but doesn't show why. He called the search findings the most disturbing. "That tells me some of those stops of minorities are fishing expeditions," he said. "That needs to be further explored."

So, not only is racial profiling found to exist, it is exposed as a patently ineffective policing tool.

The National Association of Criminal Defense Lawyers (NACDL) has issued a press release applauding the Judicial Conference statement on the need for judicial discretion in sentencing. We wrote about this for Altercation today, so head over there this afternoon for more details.