Pubdate: Mon, 23 Sep 2013
Source: St. Louis Post-Dispatch (MO)
Copyright: 2013 St. Louis Post-Dispatch
Contact: http://drugsense.org/url/qFJNhZNm
Website: http://www.stltoday.com/
Details: http://www.mapinc.org/media/418
Author: Julian Bush
Note: Julian Bush is a circuit judge in the city of St. Louis.

MAKE FIRST-TIME DRUG POSSESSION A MISDEMEANOR

Two hundred and fifty years ago, Cesare Beccaria, an early 
criminologist, emphasized that punishment that is swift and sure does 
far more to discourage crime than punishment that is severe.

In the intervening years, criminologists have repeated that lesson to 
us. Regrettably, the criminal justice system in the city of St. Louis 
is failing abysmally in the task of punishing criminals swiftly.

During the most recent year for which statistics are available - the 
fiscal year ending June 30, 2012 - the average number of days for 
disposition of felony cases (felonies are more serious crimes; 
misdemeanors are less serious crimes) in the city of St. Louis is 248 
days from the filing of an indictment or information charging the 
commission of a crime.

This is a dismal record: There are 115 counties and 45 circuits in 
Missouri, and this showing places the city of St. Louis in 112th 
place and 44th place, respectively. And it is worse than this.

Typically, an indictment or information isn't filed until about six 
weeks have passed since a crime was committed, and the figure does 
not include days that have elapsed when a warrant has been issued for 
the accused and not executed or when the accused is in a diversion 
program. Moreover, a disposition is counted as of the date a plea is 
entered or a guilty verdict is returned; sentencing, that is, the 
imposition of punishment, will often follow a guilty verdict or plea 
by six weeks or so. If all of these days were counted, the 248-day 
average would be extended considerably.

To place this in further context, the Supreme Court of Missouri has 
promulgated time standards to measure whether cases are resolved in a 
reasonable time. Those standards provide that 90 percent of felony 
cases should be disposed of within 10 months of the filing of the 
indictment or information, and that 95 percent should be disposed of 
within 14 months.

In the city of St. Louis, 31 percent of cases take more than 10 
months to reach disposition, and 17 percent, still a significant 
number, take more than 14 months to be disposed of.

During the many months that these cases remain pending, the accused 
is often incarcerated in jail waiting for the disposition of his 
case. Some of these folks (not many) are, inevitably, not guilty. 
Imagine the feeling of injustice suffered by an innocent person who 
has been locked away in jail for nine months waiting for trial.

Many of the accused are on pretrial release, and some of them are out 
committing more crimes while they wait for their cases to be reached. 
Imagine the fury of being victimized by a criminal out on the street 
for nine months after being charged with an earlier crime.

And, perhaps most important of all for society at large, consider how 
little deterrent effect a punishment imposed nine months after the 
commission of a crime has on people who are criminals, partly because 
they have unusually limited time horizons.

There are many reasons why so many cases take so many months to reach 
disposition. Many cases are postponed when, months after a case has 
been filed, the public defender tells the judge that he is not yet 
prepared. Many other cases are postponed because the public defender 
(or the private lawyer) or the assigned prosecutor is trying another 
case and is unavailable. Sometimes cases are continued because there 
is no judge available because all of the judges are hearing other 
matters. There are many other reasons that cases are postponed and, 
it must be said, cases are postponed because there is a legal culture 
that tolerates this leisurely pace.

But the overarching reason that the docket creaks along at this pace 
is that the Legislature has given the criminal justice system a job 
that is too large for the resources that the Legislature has provided.

When a job is too large for the resources devoted to performing a 
job, the solution is to make the job smaller or to make the resources 
greater. If the solution chosen is to make the resources greater, the 
starting point needs to be the allocation of sufficient additional 
funds to the state public defender so that cases don't have to be 
postponed because the assigned assistant public defender has been 
unable to prepare a defense or is unavailable because the public 
defender is trying a different case. It might include making sure 
that the counties, including the city of St. Louis, upon whom the 
Legislature has assigned the responsibility of funding the circuit 
attorney, provide a sufficient number of prosecutors. It might even 
include providing for more judges, if that should be determined to be 
a significant bottleneck. Of course, all of this would cost more 
public revenue.

A better solution is to make the job smaller.

As everyone familiar with the system knows, a very substantial 
portion of the felony docket in the city of St. Louis, as is the case 
in other jurisdictions, is made up of drug possession cases.

The possession of illegal narcotics (except the possession of small 
amounts of marijuana) is a C felony, which means that the range of 
sentence is from one day in jail to seven years in prison, the 
payment of a fine, or both. An accused can also be placed on probation.

In real life, almost all first-time offenders who plead guilty or are 
found guilty of possession are placed on probation.

I think that it is safe to say that, if any of the many thousands of 
first time offenders who have been charged with possession has ever 
been sentenced to seven years in prison, it was a very long time ago 
indeed. Is there anybody who thinks that a sentence of seven years is 
appropriate in such cases?

I don't think so.

The processing of a misdemeanor case demands much less in the way of 
public resources that does a felony case: less prosecutor time, less 
public defender time and less judge time. And misdemeanor cases are 
processed much more quickly, as is evidenced by the time standards 
that I referred to above.

While those standards provide that 95 percent of felony cases should 
be disposed of in 14 months, they provide that 95 percent of 
misdemeanor cases should be disposed of in just eight months.

Is there anybody who believes that a sentence of one year in jail, 
the maximum sentence that may be imposed for a misdemeanor, for a 
first-time possession offender is insufficient? I don't think so.

The transferring of possession cases from the felony docket to the 
misdemeanor docket would not only result in the more timely 
disposition of the possession cases but, far more importantly, permit 
the remaining felony cases to proceed more quickly to disposition. 
Burglars, car thieves, robbers, violent criminals, and all of the 
other criminals who do merit punishment beyond that in the 
misdemeanor range will be brought to justice more quickly, and the 
deterrence that we seek in imposing punishment will be enhanced.

I don't wish to rehearse the arguments in favor and against the 
legalization of drugs: They are considerable on both sides, and it is 
a difficult issue for many. But if no one believes that first-time 
drug possessors should be incarcerated for more than one year and no 
first-time drug offender is incarcerated for more than one year, let 
us make the crime a misdemeanor, and free the resources that would 
permit the more timely disposition of other felonies.

Deterrence would be enhanced, and crime would be reduced.
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MAP posted-by: Jay Bergstrom