Williamson county to pay DPS $112,525.52 to speed testing

Williamson county has come up with an interesting method to speed forensic blood and drug testing–in FY 2015 they will pay the Department of Public Safety lab to hire two employees who are supposed to expedite the return of blood and drug testing.  

It has been obvious for some time that the DPS lab is grossly understaffed, judging by the very long turnaround times for lab testing.  It has not been unusual for drug or blood testing to take the DPS lab six months or more.  The new contract is supposed to guarantee that lab test results will be delivered within 30-days.

As long as the new push for speed does not lead to corner-cutting or sloppy results, it will certainly be a welcome development to see forensic testing done more quickly.  

Williamson county impact story

Gant exception is not swallowing the rule

In 2009, TCDLA published an article of mine dealing with inventory searches that I wrote after the Supreme Court's decision in Arizona v. Gant, 129 S.Ct. 1710 (2009)

In Gant, the Supreme Court said that police could no longer automatically search a vehicle whenever they had arrested an occupant of that vehicle. The theory that had been used to justify these blanket searches was that even if the arrestee was arrested and secured in the police car, that person could somehow magically escape to their own car and find a weapon to use against the police.  The Gant court recognized that despite the protestations of police, offier safety is really not compromised by disallowing these "searches incident to arrest," and that there was really no valid justification for the blanket rule.

Some commentators wrote that it was unclear how much the Gant ruling would actuallly change police behavior in a way that would help criminal defendants, for two reasons. First, inventory searches are still permitted providing the police follow the proper protocols.  Second, because Gant contains an internal exception: when it is reasonable to believe that evidence related to the offense for which the arrest was made might be found in the vehicle." 

This exception only makes sense–essentially, if the cops have probable cause to arrest, that same probable cause extends to a reasonable belief that there might be evidence relating to the arrest in the arrestee's immediate vicinity.  So, if a person is being arrested for failing to wear a seat belt, the police have no justification for searching the vehicle.  But if a person is being arrested for some other offense, the police might be able to justify a search to look for evidence of that crime. 

The Eastland court of appeals recently wrote on this issue in an amusing case styled Daves v. StateThanks to B.W. Barnett's Liberty and Justice for Y'all blog for finding this case.  In Daves, the driver was pulled over for running a stop sign, and due to the odor of alcohol on his breath the officer asked him to perform sobriety tests.  Then the hilarity ensued:

During the ensuing field sobriety tests, the driver, Cody Large, decided to prove to Officer Welch that he was not intoxicated, and he devised his own field sobriety test: he tried to walk on his hands. As Large was attempting to perform that task, various items began to fall from his pockets. One of those items was a purple marihuana pipe.

The Eastland court agreed with the trial court that the paraphernalia possession provided sufficient probable cause to search the vehicle including passenger's purse which contained various controlled substances.  I would argue that this is a pretty thin basis for PC to search the whole vehicle, but PC itself is a pretty weak standard.

Fortunately, thus far, the Gant exception does not seem to be an exception that has swallowed the rule. 

Calls for retroactive crack sentencing relief

I have long felt that to a great extent we in this country have wasted the potential of a generation of motivated, entrepreneurial black males through the overcriminalization of crack cocaine.  I represented young black men in the mid '90's who could have sold ice to eskimos (can I say that?), but who were caught up in the federal crack cocaine dragnet and were sent to federal prison for over a decade as a result.  Instead of redirecting these young men with great potential and enabling them to give back to our country, we sent them to waste their youthful energy and creativity on a taxpayer sponsored $35,000.00 per year vacation.

Now that there is a possibility of some of these young men being resentenced, I would love to say that I see a wave of popular support for retroactive application of the new "crack" cocaine sentencing guidelines.  I am not sure I see that wave yet, but I am hearing a growing chorus of cries for relief.  Here is a sampling of articles calling for retroactive reform.  Feel free to add more links in comments.

Time magazine asks Will Crack-Cocaine Sentencing Reform Help Current Cons? by Theo Emery, August 7th, 2009.

From the Huffington Post article by Julie Stewart, president of Families against Mandatory Minimums, August 3rd, 2010:

When a manufacturer issues a defective product, they don't just fix the problem going forward; they do a total recall. Recalling the defective 100-to-1 disparity for everyone will bring relief to thousands of families and increase respect for the justice system. 

The Sentencing Project wrote a letter to the United States Sentencing Commission urging that they use their power to make the amendments retroactive:

Despite sensationalized warnings of administrative burden and increases in crime, these concerns have not been borne out. This success should encourage the Commission to continue on its path towards increased sentencing fairness by applying the Fair Sentencing Act to persons sentenced before its enactment.

Austin Chronicle write Jordan Smith urged the USSC to make the amendments retroactive on August 20th, 2010:

 The next step? Get Congress to make the new crack sentencing law retroactive, as the USSC did with the guidelines.

Blogger and Attorney Chad VanCleave in Cameron, Texas  and Dallas lawyer and blogger Cint Broden discuss possible remedies for any retroactive crack cocaine sentences on August 25th, 2010.

From Jeralyn Merritt at Talk Left: Crack Retroactivity: Don't Look to Obama for Help, discussion of the unlikeliness of blanket presidential clemency action to reduce pre-reform crack sentences from President Obama on September 12th, 2010.
From The Crime Report writer Justin Smith, September 22nd, 2010:

While the new act has returned some element of fairness to an issue  that had been clouded by the rush to punishment fueled by the “law and order”  anxieties of the 1980s, the injustice arguably continues.

From the National Law Journal opinion piece by Harlan Protass and Mark D. Harris, September 28th, 2010:

…permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less.