Pubdate: Sun, 27 Sep 2015
Source: Huntsville Times (AL)
Copyright: 2015 The Huntsville Times
Author: John P. Gross
Note: John P. Gross is an assistant professor of Clinical Legal 
Education and director of the Criminal Defense Clinic at the 
University of Alabama School of Law.


Police and prosecutors constantly urge legislatures to give them more 
power to fight crime. That power comes in the form of laws that are 
overly broad and unnecessarily punitive. Alabama's chemical 
endangerment statute is a perfect example. The statute allows police 
to arrest you and prosecutors to charge you with a felony if your 
child comes into contact with "drug paraphernalia."

So, what exactly constitutes "drug paraphernalia?"

Alabama defines "drug paraphernalia" in the broadest way possible as 
"all equipment, products, and materials of any kind which are used, 
intended for use, or designed for use, in planting, propagating, 
cultivating, growing, harvesting, manufacturing, compounding, 
converting, producing, processing, preparing, testing, analyzing, 
packaging, repackaging, storing, containing, concealing, injecting, 
ingesting, inhaling, or otherwise introducing into the human body a 
controlled substance in violation of the controlled substances laws 
of this state."

Items specifically mentioned as potential "drug paraphernalia" 
include blenders, bowls, containers, spoons, balloons and envelopes.

Books, movies and television lead us to believe that the way a 
criminal charge is resolved is through a trial where a prosecutor and 
defense attorney call and cross-examine witnesses, while a neutral 
judge makes sure that they play by the rules, and the fate of the 
defendant is ultimately in the hands of a jury. The reality is that 
trials hardly ever happen.

In fact, ninety four percent of criminal convictions that occur in 
state courts are the result of guilty pleas.

Plea bargaining, something that occurs largely without judicial 
supervision, has effectively ended trial by jury.

In order to have a criminal justice system that disposes of cases 
through pleas instead of trials there need to be powerful incentives 
for those accused of crimes to waive their constitutional rights. 
That is why prosecutors push for crimes to be broadly defined and for 
sentences to be harsh.

The easier it is to obtain a conviction and the greater the potential 
length of the sentence upon conviction, then the more likely it is 
that an accused person will simply plead guilty and relieve the state 
of Alabama of their burden of proving the charges beyond a reasonable doubt.

Here is how it works in practice: imagine a police officer who 
decides to search a home without a warrant. Inside that home he finds 
a small amount of marijuana. He arrests the couple who owns the home 
and decides to interrogate them without advising them of their right 
to remain silent or their right to an attorney. During that 
interrogation both of them admit to occasionally using marijuana. The 
officer charges them with possession of marijuana and possession of 
drug paraphernalia, both misdemeanors.

The couple learns that the search of their home was conducted without 
a warrant and they retain a lawyer to represent them. At first, the 
prosecutor is concerned about the police officer's blatant violation 
of the couple's constitutional rights but then learns that the couple 
has a two year old child living in the home.

Now Alabama's chemical endangerment law gives the prosecutor the 
upper hand. He or she can demand that the couple waive their right to 
contest the legality of the search of their home, waive their right 
to challenge the admissibility of their statements to the police and 
waive their right to a trial and instead plead guilty to the charges 
or face a felony charge of chemical endangerment and potentially ten 
years in prison.

Who wouldn't waive their rights and plead guilty when faced with such a choice?

When a legislator questions whether we really need to make something 
a crime police and prosecutors typically respond by saying that the 
new law will just be one more tool in their toolbox. The problem is 
that these laws are often more coercive than constructive.

They aren't tools for fighting crime they are weapons used to 
threaten the accused in order to extract a guilty plea.

The disparities in the way prosecutors in Alabama apply the chemical 
endangerment statute illustrates a pervasive problem in our criminal 
justice system: overly broad criminal laws and the threat of severe 
penalties following conviction have made prosecutors the most power 
officials in our criminal justice system.

The result is that our jury boxes are empty but our prisons are overcrowded.
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MAP posted-by: Jay Bergstrom