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November 21, 2023
Quite the SCOTUS Term shaping up for those intrigued by drugs on the docket
Regular readers recall my eagerness to flag the work of the Drug Enforcement and Policy Center at The Ohio State University in the form of our "Drugs on the Docket" podcast. As noted in prior posts when the podcast was first released, a set of six episodes comprises the first season, with each episode running under an hour. The whole original season is fully available on Apple Podcasts, Google Podcasts and YouTube. As noted last month, the "Drugs on the Docket" team (of which I am a member) this fall produced some updated content through shorter recordings covering new developments related to issue each of the full episodes of Season 1.
I have noted before my (admittedly biased) view that the curated discussions in this "Drugs on the Docket" podcast are all interesting and informative, and I am persistently eager to encourage everyone to check out this podcast webpage and to add the podcast to their holiday listening plans. But it dawned on me today, as I was thinking about some of the Supreme Court's recent cert grants in criminal justice cases, that the current SCOTUS Term is full of drugs on their docket. Specifically, I count at least five criminal cases on the Supreme Court's docket that are integrally connected to big issues in drug prosecutions and sentencings. With help from SCOTUS blog, consider:
Pulsifer v. U.S., No. 22-340 [argued 10.2.2023]: sentencing in federal drug cases
Culley v. Marshall, No. 22-585 [argued 10.30.2023]: due process rules for forfeitures (often in drug cases)
Brown v. U.S., No. 22-6389 [to be argued 11.27.2023]: defining serious drug offenses for ACCA sentencing
Smith v. Arizona, No. 22-899 [to be argued: 1.10.2024]: Confrontation Clause rules for experts (often in drug cases)
Diaz v. U.S., No. 23-14 [still to be set for argument]: expert testimony on mens rea in drug offense
And this list leaves out some other notable criminal cases, like Rahimi dealing with the reach of the Second Amendment and the new Erlinger case dealing with ACCA application (among others), that will surely echo through the prosecution of drug defendants in various ways. We are already hard at work on Drugs on the Docket season 2, and SCOTUS may be helping to ensure we have plenty of content for many seasons to come.
November 21, 2023 at 04:28 PM | Permalink
Comments
I have come across an intriguing new issue in the drug war against ever-so-dangerous Fentanyl. We recently had two Hispanic brothers (in their early 40s, with no prior criminal history) arrested over a baggie of a white, powdery substance found on the back seat floor of their car (plain view) during a traffic stop. The brothers were arrested and charged with trafficking in "suspected Fentanyl", even though the police did not Field Test the white powdery substance. At the preliminary hearing, the police officer admitted that he had not field tested the substance and stated that he and his partner did not have a Field Test kit in their cruiser. The state District Court Judge might have dismissed the charges at this point, based upon a lack of probable cause to believe that the white powdery substance was drugs; but the charges were not dismissed, and were sent to the Grand Jury in Circuit Court. At the preliminary hearing, the Judge reduced the Defendants' bonds to $5,000 each from the initial $25,000. Because the substance was actually Amway laundry detergent, it is not surprising that the report from the Kentucky State Police Crime Lab came back 3 weeks later, stating that there were no drugs found in the white powdery substance. The prosecutors in the Commonwealth's Attorney's Office put the KSP Report before a Grand Jury, which returned a NO TRUE BILL, and the charges were dismissed. Defendants had spent 5 days in jail and then recovered their $5,000 bonds. Then, yesterday, I learned from a local police Lieutenant (from Internal Affairs, no less) that it is now the policy of the Police Chief that officers no longer field test suspected Fantanyl and Carfentanyl, because of the health risks to the officers from inhaling the drug or having it absorbed thru their skin or eyes. This new policy has not previously been publicly disclosed in Fayette County, Kentucky to the Judges or members of the criminal defense bar. It means that the police end up arresting far too many innocent people over bags of laundry detergent. The Lieutenant says he has heard this story many times before. And it results in the police being sued for false arrest and malicious prosecution claims, costing the taxpayers many hundreds of thousands of dollars. We think this policy will also be fres news to the Mayor and members of the Urban County Council. We are presently filing Open Records Act Requests to find out when the policy changed, whether there is a written Memo summarizing the change for police officers, and how many people have been wrongfully arrested since the policy change, because their white, powdery substance was laundry detergent, not drugs. Stay tuned. This could get really interesting.
Posted by: Jim Gormley | Nov 22, 2023 12:27:20 PM
