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June 24, 2018

Remarkable tale of how uncertain criminal laws and their enforcement can produce extraordinary punishment inequities

I understand concerns about the potential for sentencing disparities that can arise from broad judicial discretion, but I have always noticed how many significant inequities can result from many other aspects of criminal case processing.  In this recent post, I flagged this new remarkable series produced by Florida newspapers documenting how prosecutors are responsible for locking up defendants of different races for much different periods.  And this morning my local newspaper has this remarkable story, headlined "Two bath-salts prosecutions lead to far different results," reporting on two similar defendants in Ohio getting remarkably different outcomes: one walking free and the other sentenced to 35 years in prison!  Here are the details:

Both men operated retail stores within blocks of each other in the Short North area. Both were arrested in 2012 and charged with selling bath salts, a synthetic hallucinogen.  One walked free, his case dismissed by a Franklin County judge.  The other, whose case was assigned to a different judge, was convicted and sentenced to 35 years in prison, with no chance for parole....

For Soleiman Mobarak, the man sent to prison, “it’s just a matter of bad timing and bad luck,” said his attorney, Robert Behal. “Hopefully, our system is better than that, where it’s not a matter of luck whether you get 35 years or zero.”

At one point, Mobarak, 35, was set free. In July 2015, 13 months after he was sent to prison, the Franklin County Court of Appeals overturned his conviction.  A three-judge panel ruled that selling and possessing bath salts and other designer drugs known as controlled-substance analogs was not a crime in Ohio when undercover investigators purchased them from Mobarak at his East 5th Avenue convenience store in May, June and July 2012.

Common Pleas Judge Laurel Beatty Blunt had reached a similar conclusion when she dismissed a bath-salts case against Thomas C. Smith in February 2014.  The appeals court upheld Beatty Blunt’s ruling in December 2014.  Smith, 63, who owned three shops on North High Street, and Mobarak both were swept up in a sting operation conducted by the Franklin County Drug Task Force, which was targeting the sale of synthetic designer drugs.

In both cases, the appeals court found that controlled-substance analogs, including bath salts, didn’t become illegal until the Ohio legislature included them in the criminal drug-offense statutes through a bill that took effect Dec. 20, 2012.  The Franklin County Prosecutors Office appealed those decisions to the Ohio Supreme Court. 

The Supreme Court declined to hear the appeal of Smith’s case in October 2015, which put an end to any efforts to prosecute him....  But before the Supreme Court got around to making a decision on the Mobarak appeal, the 12th District Court of Appeals ruled in a Warren County case that controlled-substance analogs were illegal in Ohio as of October 2011.  When that ruling was appealed to the Supreme Court, the justices had two pending cases in which appeals courts had reached conflicting opinions about the issue.  The justices chose to hear the cases, and in December 2016 they agreed with the 12th District court — controlled-substance analogs were criminalized in October 2011, before the sales made by Mobarak and the Warren County defendant.

Franklin County prosecutors filed a motion asking the trial court to revoke Mobarak’s bond and return him prison to complete his sentence.  The judge who sentenced Mobarak, Pat Sheeran, had since retired. His replacement, Judge Jeffrey Brown, inherited the case. June 12, after months of court filings, Brown issued what appeared to be a reluctant ruling.  Twice in his 38-page decision, Brown wrote that he was “troubled” by Mobarak’s situation. “The court’s hands are tied, however,” by the Supreme Court ruling, he wrote. “This court has no authority to modify the sentence ... Mobarak must begin to serve the remainder of his sentence.”

Had the conflicting case from Warren County not intervened, the Supreme Court presumably would have declined to hear the Mobarak case, just as it had done with Smith, Behal said.  Mobarak, like Smith, would be a free man.  “The passage of time created disparate results, and that’s tough to take,” Behal said.

Prosecutor Ron O’Brien has a different view of the fates of the two defendants.  “It’s unfortunate that Smith evaded responsibility just because of timing, but that does not mean Mobarak should evade responsibility,” O’Brien said. “Mobarak shouldn’t benefit from what was a wrong decision from the beginning.  Everybody knew how bad bath salts were, including the people who were selling them.  They were just playing games with the classifications.  Luckily, the Supreme Court finally straightened it out.”

June 24, 2018 at 11:10 AM | Permalink


These flakes on the bench must all be replaced by robots running algorithms written by the legislature, with yearly updates.

Posted by: David Behar | Jun 24, 2018 11:21:00 AM

I find myself uncomfortable with this outcome. Not so much because of the contrast with the other store, but rather because Soleiman appears to have been trying to operate within the law, and to have failed to follow what was obviously a confusing situation, to the point where even the Courts couldn't figure it out.

On another level, the whole drug law situation is just not working. What if we were to legalize them all, provided the packages warn users in the most graphic way imaginable -- photos of Meth users' faces aging, etc.

Lastly, just a note that once again, David's comment simply doesn't help the discussion.

Posted by: William C Jockusch | Jun 24, 2018 11:43:14 AM

William. Let me understand your comment. You propose to offer carfentanyl over the counter, on the open shelves of the pharmacy.

Posted by: David Behar | Jun 24, 2018 12:22:37 PM

The only substances I believe should have any limits on distribution are those like antibiotics where how much they get used will affect future performance. If the only person to be effected by the substance itself is the user then have at it.

I do, however, also believe that voluntary intoxication should not be any sort of defense - for either criminal or civil liability.

Posted by: Soronel Haetir | Jun 24, 2018 5:16:55 PM

"\O’Brien said. “Mobarak shouldn’t benefit from what was a wrong decision from the beginning. Everybody knew how bad bath salts were, including the people who were selling them. They were just playing games with the classifications. Luckily, the Supreme Court finally straightened it out.”

Maybe O'Brien should understand the difference between morally wrong and criminally wrong. We get the concept that bath salts are not a good idea. The issue was whether OHIO law criminalized the same. In Smith, the trial judge said no. In Mobarak, the Ohio Supreme Court subsequently said yes. Prior to the Ohio Supreme court decision there was no binding decision in Ohio saying what Smith and Mobarak did was illegal. In fact, the Columbus, Ohio Division of Police did not believe, at the time, Smith's sales were illegal under Ohio law. (there is police report to that effect). Instead, the Franklin County, Ohio Sheriff's Office (which is for the most part, inside Columbus, Ohio) decided to target Smith. These limited facts inform the background of a disparate outcome.

Posted by: ? | Jun 24, 2018 10:32:11 PM

It is often hard to read this sort of story and take US Sentencing and Policy seriously. 35 years is probably more than double the average sentence for murder in much of the rest of the world. Life is so very cheap in the US justice system. Now it looks like it's even cheaper in the eyes of the US President with his lack of respect for the lives of immigrant children and the latest suggestion that deportations be conducted outside of the Judicial process altogether. Looks like he has as much contempt for US Law and processes as I have, albeit for entirely different reasons.

Posted by: peter | Jun 25, 2018 2:06:36 AM

David -- With appropriate warnings, sellable to adults, yes.

Posted by: William C Jockusch | Jun 25, 2018 9:22:44 AM

The cherry picked, exceptional anecdote in the story means nothing. The story violates the Exception Fallacy.

Posted by: David Behar | Jun 25, 2018 10:24:31 AM

William. Carfentanyl for an elephant who needs surgery, requires a vet anesthesiology expert to maintain elephant respiration, and to prevent the elephant from passing away from too much carfentanyl.

Posted by: David Behar | Jun 26, 2018 4:17:57 PM

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