Monthly Archives: July 2009

Race and Criminal Injustice

Is there credible, scientific evidence to support the existence of “race” among humans?  No.  Does that mean “race” does not matter in our society?

“Race” matters in our society – despite its lack of biological basis in fact – because it is a human, social construct that influences how people perceive and treat each other.  It seems that in the United States we wish that we were beyond race; but the superstition lingers and affects us all.  How does it affect our human efforts at justice in the criminal courts?

Our sense of identity – who we believe ourselves to be, what and who we identify with – has a significant influence over how we perceive events, and other people.  Race, gender, and other socially defined demographic variables are among the ideas that influence our sense of identity, and our perception.

In the United States, our consensus seems to be that judging others based upon “race” is wrong.  People resist recognizing (perceiving) that they themselves could or would do something wrong.  As a result, we as a people tend to believe that attitudes about race do affect other people, but not us as individuals.  Ironically, this kind of projection of an unfavorable characteristic which we deny in ourselves and project onto “the other” is a the key aspect of racial stereotyping.  However we define ourselves and the groups with which we identify as members; we tend to think simplistically – “we” are good; “they” are bad.

Another problem here is fear of the unknown.  We feel that we know ourselves, and the cultural milieu from which we come.  “The other,” the outsider – who comes from a different culture, a different experience – we may lack understanding.  We may think that “they” are unknown to us.  They therefore may seem unpredictable to us, which can lead us to fear them.

The there is the problem social psychologists have called “the self-fulfilling prophecy phenomenon” – captured well in the aphorism “what a fool believes, he sees.”  If a person believes a theory about a member of a perceived “other” group, scientists have learned that the person will ignore all facts inconsistent with the theory and only perceive the facts consistent with the theory – even if 99% of the facts contradict the theory, and only 1% of the facts support it.  Because of this phenomenon, people generally will deem the theory proven true, even though 99% of the evidence disproved it!  If the theory is about people of a perceived “race,” then the result is a racial stereotype.  People who believe racial stereotype theories defend them based upon the argument that they are true, or partly true (because they believe them to be true).  But examined against all of the facts, they are not.

police light bar

police light bar

One common racial stereotype involves the theory that minority-race people are more often committing crimes than majority-race people, and that is why there is a greater percentage of the minority race community being arrested, charged with crimes, convicted, and sentenced to prison; as compared to the majority-race community.

Of course – numerous studies have been done, by the American Bar Association and others, proving otherwise.  We know that African-Americans use illegal drugs at the same per capita rate as does the general population in the United States.  Yet, people socially defined as African-American are arrested, criminally charged, convicted, and incarcerated at a vastly higher rate than non-African-Americans.

“The National Institute of Drug Abuse estimated that while 12 percent of drug users are black, they make up nearly 50 percent of all drug possession arrests in the U.S. (The Black and White of Justice, Freedom Magazine, Volume 128).”

from article: the Truth About Black Crime, R. Jeneen Jones, Jan 16, 2000.

And the problem goes beyond illegal drug crime cases:

Figure 1. Racial Disparity Matrix

Column A                Column B                   Column C                  Column D
Decision Point        % African-                % at preceding       Disparity
                                      American                  decision point         ratio
                                                                            African-
                                                                            American

 Total Population   15                                   N/A                               N/A

Arrest                        30                                  15                                   2.00

Detention                  35                                  30                                   1.17

Prosecution             37                                  35                                   1.06

Conviction               45                                   37                                  1.22

a. Probation          38                                  45                                   0.84

b. Incarceration 50                                  45                                   1.11

source: chart from a 2000 report from the Sentencing Project at page 29.

Given the evidence that people are being treated differently by the criminal justice system based upon “race,” it is clear that the reason is not that minority-race people are committing criminal acts at a higher rate than majority-race people.  After all, the illegal drug use rates are the same, but African-Americans are being disproportionately arrested, charged, convicted, and incarcerated:

  • African-Americans are arrested at much higher rate than people the percentage of all races committing crimes;
  • Of those of all races arrested, a disproportionate percentage of African-Americans are being charged;
  • of those of all races charged, a disproportionate percentage of African-Americans are being convicted;
  • of those of all races convicted, a disproportionate percentage of African-Americans are being sentenced to prison.
  • At each of these significant stages of the exercise of human discretion – by police, by prosecutors, by jurors, by judges, African-Americans are being treated unfairly, and more harshly than the general population.   Yet we must assume that nearly every individual exercising that discretion sincerely believes their decision is not based upon race.  How can this conflict be reconciled?

Though few people view themselves as racist – few police, few prosecutors, few defense attorneys, few judges, few jurors – the aggregate result is one of a strong, unfair impact based upon a person’s “race.”

Putting to one side the racist origins in history of Drug Prohibition laws as well as the severe disparate impact of them on minorities today; the effect is seen across the board for every type of criminal case.  Space does not permit a serious discussion here of the solutions.  Still, here are a few thoughts about solutions.

Awareness of the problem may be a first step.  Be suspicious of any theory based upon race – or race-code words.  And when you hear one of those, challenge it.  When we develop our empathy for others, and get to know and love other cultures, we are on the path towards a solution.  In the end, society is made up of individual people.  We can change ourselves.  We can change our society.  We can make the world a better, and more fair place.  Liberty for one, is liberty for all.

by Thomas C Gallagher is a Criminal Lawyer in Minneapolis.

Know Your Rights: Protect Yourself from The Police

We The People: know your rights

We The People: know your rights

Do you know your rights?  When Government turns its awesome power on you, what should you do?:

1. Panic.
2. Try to talk your way out of it.
3. Show submissive behavior, like a non-alpha dog would.
4. Confess early and often – even to things you know nothing about, to please them.
5. None of the Above.

Correct – none of the above. Panic, submission and wishful thinking – while all too common, are not the way to protect yourself.

Well then, what should you do?

Do Not Trust Them. Trust Yourself

Know your rights.  And assert your rights.  You can and must do this.  But don’t make the common mistakes.

Do not lie. Do not tell the truth. Say nothing. Consult a criminal defense lawyer before making any statements to police. That is the general rule, with few exceptions. When in doubt, remain silent. If you hear a Miranda Warning, the alarm bells should be going off – be quiet!

Why? Police are generally good people. Like the rest of us, they too have a tough job, pressures. They are human – not perfect. Police have a point of view, a bias.  And, like all of us, they are subject to the “self-fulfilling prophecy” phenomenon.  Have you ever noticed that people tend to side with whoever complains to them first? Think police officers are immune to that? Suffice it to say that there are many reasons and causes for police misinterpreting other people; coercing unreliable statements, or both.

You can always make a statement later, if that makes sense, after consulting with your criminal law attorney. Police try to create a sense of urgency.  But their efforts to create a crisis, to invite making a statement are self-serving.  They don’t want you to “lawyer up.”

Avoid Consenting to a Search

When you know your rights, you don’t consent to a search.

They train police to get “consent” to search where possible. Consent is an exception to the judicial search warrant requirement of the United States Constitution. If they get valid, voluntary consent, a judge will likely rule the search legal. But why would a sane person give real, voluntary, consent to a police search? Nothing better to do? Almost every so-called consent search involves a degree of coercion by police – more or less.

Giving in to police coercion to “consent” to a search is a bad idea.  Don’t think  that a lawyer may be able to fix it later.  There is no guarantee of that! Refuse to consent to any search by police – of your person, belongings, vehicle, or living or work-space.

A majority of police contacts happen as the result of traffic stops. It is generally better for the defense, to endure delay, detention, even arrest – rather than consent to a search. Some may think “why not consent.  They say or look like they’ll search anyway.”

That is a bad idea.  And what they want you to think.   Because your “consent” would likely prevent a judge suppressing evidence from an illegal search.

If police can search lawfully with a warrant, they do not need consent.   With a search warrant, you should not physically or verbally interfere.  But you do not need to speak.

Good legal hygiene

You should know your rights.  Should?  Know them better!  It’s a lifelong process.  Learn as much as you can about the law.   That way you can better protect yourself and your loved ones, legally.

Under 21?  Know your rights under Minnesota’s underage drinking laws.  Drive car?  Learn tips on avoiding traffic stops.  You have a wealth of legal information here at your disposal.

Gallagher-Defense-logoAnd remember, if police contacted you, about a possible crime, know your rights.  And consult a criminal defense lawyer quickly, to seek investigation representation or pre-charge counsel. Your lawyer can help you take steps to protect yourself from the injustice and awesome power of the government.

By: Thomas C Gallagher, a Minneapolis Criminal Lawyer

A Rose is a Rose is a … Sale? Marijuana Cultivation Laws in Minnesota

Marijuana Growing Indoors: Minnesota marijuana cultivation laws

Marijuana Growing Indoors: Minnesota marijuana cultivation laws

Does the word “Cultivate” mean “Sell?”

No?   Well, the Minnesota legislature has decreed otherwise.  Minnesota’s marijuana cultivation laws contain nonsense.

Minnesota lawmakers, influenced by the state’s prosecutors, have taken a page from Humpty Dumpty in Alice Through the Lookinglass:

“When I use a word,” Humpty Dumpty said in a rather scornful tone, ” it means just what I choose it to mean – neither more nor less.”

The question is,” said Alice, “whether you can make a words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be the master – that’s all.”

Statutory nonsense verse

The legislature thinks it can define terms in any way they wish, regardless of common meaning.  Like Humpty Dumpty in Alice, sometimes they go too far.   The legislature gives words a statutory definition completely divorced from their common meaning.  And they’ve done it again – in Minnesota’s marijuana cultivation laws.

The limits on legislative power

Yet – their power does have limits.  We, the People, are complicit in unjust laws to the extent that we tolerate them.  We must hold the legislature accountable, when needs be.

The courts can strike down such nonsense as unconstitutional.  And we can ask the courts to do so.

And the People on the Jury have the power of Jury Nullification.  The jury can acquit anyone of criminal charges based on a law that that the Jury finds to be nonsense. 

Even one juror can veto the law.  One lone dissenter on the juror has the power to stop a “guilty” verdict.  Why?  Because a verdict in a criminal case must be unanimous.

The framers designed this jury power to be a check and balance on government power.   The jury’s power limits the power of the elites in the legislative, executive and judicial branches.

If the judge won’t dismiss a prosecution based on these nonsense marijuana cultivation laws, they jury still can.

Grow a tomato; money magically appears?

If you grow a tomato in your backyard, then eat it there off the vine; have you by doing so also “Sold” it?  Replace “tomato” with “marijuana.”  Same conclusion?

Minnesota Statutes §152.01, subd. 15a, defines “Sell” to include “to manufacture.”  Then, , their definition of “Manufacture” in Minnesota Statutes §152.01, subd. 7, means “cultivation” of “drugs.” 

Tricky, aren’t they?

Liberty-Lawyer.com logo sm wide

By redefining the common meaning of words, they’ve turned “growing marijuana” into a “sale,” where no sale took place.  No money.  No buyer.  That’s how low Minnesota’s marijuana cultivation laws go.

For more on marijuana cultivation laws take a look at our Minnesota marijuana grow defense page – by Thomas C Gallagher, Minneapolis Criminal Defense Lawyer, and legalization activist.