Flesh and Blood

July 15, 2008 11:13 PM

"'I am not a defendant,' Mitchell declared. 'I do not have attorneys.' The court 'lacks territorial jurisdiction over me,' he argued, to the amazement of his lawyers. To support these contentions, he cited decades-old acts of Congress involving the abandonment of the gold standard and the creation of the Federal Reserve ... Judge Davis ordered the three defendants to be removed from the court, and turned to Gardner, who had, until then, remained quiet. But Gardner, too, intoned the same strange speech. 'I am Shawn Earl Gardner, live man, flesh and blood,' he proclaimed." Too Weird for the Wire: How black Baltimore drug dealers are using white supremacist legal theories to confound the Feds. [via]
posted by nasreddin (75 comments total)

If by "confound" you mean "laugh at". Obviously those, erm, legal techniques don't work. The judge even writes "Perhaps they would even be humorous ... were the stakes not so high"
posted by delmoi at 11:32 PM on July 15, 2008 [1 favorite has favorites]

I guess this explains why they were ghetto drug dealers, not constitutional lawyers.
posted by UbuRoivas at 11:37 PM on July 15, 2008 [2 favorites has favorites]

The judge even writes "Perhaps they would even be humorous ... were the stakes not so high"

Don't be dense. The judge is part of the conspiracy.
posted by Mr. President Dr. Steve Elvis America at 11:42 PM on July 15, 2008 [3 favorites has favorites]

Nice post. My favorite bit from this potpourri of legal nonsense is the obsession these dingbats have with the flags in the courtroom and whether or not they have gold fringes or an eagle atop the flagpole. If only the physical nature of the flag itself had such bearing on the justice system.
posted by Sticherbeast at 11:49 PM on July 15, 2008

Furthermore.
posted by Sticherbeast at 11:51 PM on July 15, 2008

Oddly it seems to have worked, after a fashion: it clogged up the system so badly that the Feds took the death penalty off the table.

I wonder whether that means that every other defendant facing capital punishment will do the same thing? And since it did work (albeit not on its own merit), will defense attorneys in the future risk accusations of inadequate representation if that don't attempt it?
posted by Kadin2048 at 11:57 PM on July 15, 2008

This part is troubling:

The U.S. Attorney’s office also added new charges of felony obstruction of justice, citing the disruptive nature of the fleshand- blood defense. The prosecutors weren’t just rejecting the defense as an argument for innocence. They were saying that it was, itself, a crime.
posted by rdr at 12:00 AM on July 16, 2008 [1 favorite has favorites]

“You have invoked ideas formulated and advanced by people who think less of you than they think of dirt,” [Judge] Davis continued. “The extremists who have concocted these ideas that you are now advancing in this courtroom are laughing their heads off. You are giving them everything they ever wished for. They should be paying you to do what you are doing. They are going to make you the poster child for their movement. When you complete this suicide, they will honor you because you are doing their work, better and more effectively than any of them ever dreamed they could do. Some of them—”

somebody should shout that judge a membership here!

“I object,” said Gardner, interrupting. “The government wants to do the same thing anyway. So what’s the difference?”

Well, that's a tough one, Einstein. The government wants to punish you for being a cocksucking, lowlife murderer, which is perfectly reasonable under the social contract*. Whining about being different in flesh & blood to a capitalised name on an indictment is an argument pathetic beyond all human imagination, and following that bullshit to your death, instead of trying to mount an even vaguely coherent defence, is what the white supremacists would be finding hilarious beyond belief.

* IANAL, but I do not purport to claim that the Social Contract is binding upon any Court of Law
posted by UbuRoivas at 12:09 AM on July 16, 2008 [1 favorite has favorites]

I've heard these wacko interpretations of law called "rural myths," as opposed to the urban variety.
posted by Cool Papa Bell at 12:10 AM on July 16, 2008

Fascinating! Good post.
posted by spiderskull at 12:15 AM on July 16, 2008

If I ever found myself at the barrel end of a federal death penalty case I'd probably go bat-shit insane myself.
posted by EmptyK at 12:23 AM on July 16, 2008 [3 favorites has favorites]

"cocksucking" was uncalled for, UbuRoivas
posted by ryanrs at 12:49 AM on July 16, 2008 [2 favorites has favorites]

Sheeeeeeeieeeeeiiiiiit.
posted by Token Meme at 1:15 AM on July 16, 2008 [9 favorites has favorites]

true. they're probably too homophobic to do such things.
posted by UbuRoivas at 1:26 AM on July 16, 2008

This part is troubling:

The U.S. Attorney’s office also added new charges of felony obstruction of justice, citing the disruptive nature of the fleshand- blood defense. The prosecutors weren’t just rejecting the defense as an argument for innocence. They were saying that it was, itself, a crime.

Don't you have "contempt of court"?

One form (other than, say, ignoring an injunction or things like that) allows the Judge to effectively say "STFU, you're wasting everybody's time" and if you don't STFU, that, in itself, is a crime?

(I mean, a defendant (or their attorney) still has a chance within the proceedings to make arguments of fact or law, but continually disrupting the court with claims against its legitimacy are nothing but disruptive. Assuming the US is anything like Australia, interpretations of the Constitution can only be decided in the Supreme Court anyway, so you can't even raise that sort of argument in a lower court. If they knew anything about the legal system, they'd know the process is to take the rap lower down, then raise those arguments on appeal. If the Supreme Court grants them leave to do so. Which they wouldn't. Because the arguments are crap.)
posted by UbuRoivas at 1:35 AM on July 16, 2008

As Kadin2048 points out, the defence succeeded in its purpose: derailing the case just enough to avoid the death sentence.

It's worth noting that the fact that these lowlives have little schooling does NOT mean that they are stupid. Indeed, the account of their criminal exploits (well, leaving apart the cell phone incident) suggests that their tactical skills could give Macchiavelli a run for his money. They knew that their defence on matters of fact was hopeless and that the jury would be far from sympathetic anyway. Basically their main chance (or even their only chance) to avoid the gallows was to be disruptive. As Gardner himself guardedly pointed out, it wasn't as if they had anything to lose. They also knew that others (Burpee) had been successful in frustrating federal prosecutors using the same approach.

Despite the fact that I'm strongly against the death penalty, I'm frankly angry that the prosecution decided to withdraw it. Now even more imitators will follow suit.
posted by Skeptic at 1:41 AM on July 16, 2008 [2 favorites has favorites]

The defense, such as it is, boils down to this: As officers of the court, all defense lawyers are really on the government’s side, having sworn an oath to uphold a vast, century-old conspiracy to conceal the fact that most aspects of the federal government are illegitimate, including the courts, which have no constitutional authority to bring people to trial.

A defense which worked so well for Wesley Snipes.
posted by three blind mice at 1:44 AM on July 16, 2008

That was well-written and interesting. Solid post, thanks!
posted by Edgewise at 2:07 AM on July 16, 2008

Yeah, true. A really well-written & interesting article. Not only for the ghetto crime & courtroom shenanigans, but also for the history behind the McVeighs & Koreshes of America.
posted by UbuRoivas at 2:13 AM on July 16, 2008

Assuming the US is anything like Australia, interpretations of the Constitution can only be decided in the Supreme Court

Actually, in Australia constitutional law is interpreted by the High Court.
posted by Thoth at 2:24 AM on July 16, 2008

duh, i know that; i was writing for the septic tanks.
posted by UbuRoivas at 2:37 AM on July 16, 2008

This is me not derailing this thread. Twice.
posted by CautionToTheWind at 3:24 AM on July 16, 2008 [1 favorite has favorites]

A defense which worked so well for Wesley Snipes.

There were no windows in the courtroom which took away the daywalker's advantage. The vampires aren't stupid.
posted by srboisvert at 3:37 AM on July 16, 2008

Here I am, also not derailing the thread.
posted by Kirth Gerson at 3:53 AM on July 16, 2008

That's what you get for googling "Who is RON PAUL?"
posted by trondant at 4:00 AM on July 16, 2008 [1 favorite has favorites]

Like the Midwestern farmers before them, the Baltimore inmates were susceptible to the notion that the federal government was engaged in a massive, historic plot to deprive them of life, liberty, and property.

Except that the Baltimore inmates are essentially correct, what with the mandatory drug sentencing laws, property forfeiture laws, etc. under which non-violent drug crimes (not the issue for the four defendants in the article I know) will get longer sentences than violent crimes.
posted by caddis at 4:11 AM on July 16, 2008 [3 favorites has favorites]

American justice.
Let's show those third world fucks how it's done.
posted by brevator at 4:16 AM on July 16, 2008

Despite the fact that I'm strongly against the death penalty, I'm frankly angry that the prosecution decided to withdraw it. Now even more imitators will follow suit.

um, Skeptic, since you're strongly against the death penalty, why aren't you in favor of more people trying to avoid it?
posted by sineater at 5:19 AM on July 16, 2008 [1 favorite has favorites]

This was a fascinating article, nasreddin. Thanks. It does an especially good job of showing us how reprehensible the protagonists are while still allowing us to root for them (at least for them to avoid the death penalty.)

This kind of denial of jurisdiction has another precedent besides white supremacy: war criminals and deposed dictators use it all the time, as has the Bush administration with regard to Guantanamo Bay. I find it amusing that issues of jurisdiction remain so thorny in jurisprudence. Nothing makes a court go into apoplectic fits of self-justification faster than the claim that they don't have the right to decide the case before them.

BTW: 25% of African Americans think that the government created AIDS?!?
posted by anotherpanacea at 5:58 AM on July 16, 2008

As a government lawyer who has had to deal with these "sovereign citizen" arguments for years, I sympathize with the court's exasperation. Ironically, the prison system is now the vector of choice for the transmission of the "sovereign citizen" meme. Folks in stir have lots of time to ruminate on all this.
posted by rdone at 6:05 AM on July 16, 2008

Assuming the US is anything like Australia, interpretations of the Constitution can only be decided in the Supreme Court anyway, so you can't even raise that sort of argument in a lower court.

IANAL, but AFAIK this is exactly backwards for the US. Any court (or at least any court of record) can render a judgment about the Constitution -- a state court can rule that the law you're being tried under does or does not violate the US Constitution. And to a very rough approximation, you can't bring up a claim before the US Supreme Court unless you brought it up at your original trial. You have to argue that the law is unconstitutional, or the evidence is inadmissible, or whatever first and then appeal that lower court's decision later.
posted by ROU_Xenophobe at 6:15 AM on July 16, 2008 [1 favorite has favorites]

Despite the fact that I'm strongly against the death penalty, I'm frankly angry that the prosecution decided to withdraw it.

That doesn't make much sense.
posted by delmoi at 6:26 AM on July 16, 2008

AFAIK this is exactly backwards for the US. Any court (or at least any court of record) can render a judgment about the Constitution -- a state court can rule that the law you're being tried under does or does not violate the US Constitution.

interesting to hear. but does that mean that lower courts can try test cases relating to the constitution, as opposed to applying existing law relating to it? i'd still assume that only the SCOTUS can interpret the thing. the others should presumably only parrot the SCOTUS rulings, no...?
posted by UbuRoivas at 6:32 AM on July 16, 2008

"Midwestern farmers" is a pretty broad brush. But it probably looks that way from Dupont Circle...
posted by MarshallPoe at 6:45 AM on July 16, 2008 [1 favorite has favorites]

This is really fascinating -- thanks for finding this.
posted by Forktine at 6:49 AM on July 16, 2008

Dammit. Now I'm late for work... good read.
posted by ph00dz at 7:24 AM on July 16, 2008

UbuRoivas, you're wrong about lower courts being able to interpret the Constitution. Lower courts do this sort of thing all the time. The thing to remember is though they have the ability to do this, their opinion is not binding on any other court. The significance of Supreme Court review is that a SCOTUS opinion is binding on every other court, state or federal. But constitutional arguments are made in state trial courts all the time, and if there isn't existing SCOTUS precedent on the issue (a rare occurrence) they go ahead and make a ruling of their own. If the Supreme Court declines to hear the case, the interpretation stands.

The "felony obstruction of justice" charge is actually entirely appropriate. It's okay to mount a factual defense that doesn't have a prayer of winning. That's your right as a criminal defendant, the right to attempt to convince a jury that your side of the story is the correct one. But these defendants aren't making factual arguments. They're making legal ones. Legal arguments are for the judge to decide, not the jury, and if he says "That isn't going to work," then it won't. Even and especially if the defendants believed what they were saying, this represents a deliberate attempt to frustrate the operation of the justice system, the very definition of "obstruction of justice."

I'd be in favor of Congress passing a law making it a felony even to advance these arguments. They're a waste of time and the cut at the very heart of federal sovereignty.
posted by valkyryn at 7:27 AM on July 16, 2008 [1 favorite has favorites]

Despite the fact that I'm strongly against the death penalty, I'm frankly angry that the prosecution decided to withdraw it.

There's no contradiction there. One can believe that the death penalty should be eliminated as a matter of policy. That doesn't imply that in the interim you're pleased to see the penalties that Federal prosecutors are asking for be changed by cynical gaming to gum up the court system.
posted by tyllwin at 7:29 AM on July 16, 2008 [4 favorites has favorites]

Conspiracy theories are not restricted to white christians:
But ask any of the book vendors along 125th Street in Harlem or at Los Angeles's swap meets about their bestsellers and invariably they cite Behold a Pale Horse, (1991) by William Cooper; The Unseen Hand: An Introduction to the Conspiratorial View of History, (1985) by A. Ralph Epperson; The New Age Movement and The Illuminati 666, (1983) by William J. Sutter; and The Conspirators' Hierarchy: The Committee of 300, (1997) by Dr. John Coleman.
And "The Plan", from TAL:
Act Two. The Plan.
American cities have gone through a massive wave of gentrification in the last few decades. To some people, it's not a natural ebb and flow of the real estate market, but a plot, by rich, mainly white people, to take over the neighborhoods of poor, mainly black people. This American Life producer Jon Jeter reports on how, in neighborhoods all over the country, the plot has a name, "The Plan," and most people you talk to know about it.
posted by 445supermag at 7:32 AM on July 16, 2008

Despite the fact that I'm strongly against the death penalty, I'm frankly angry that the prosecution decided to withdraw it. Now even more imitators will follow suit.

um, Skeptic, since you're strongly against the death penalty, why aren't you in favor of more people trying to avoid it?

Well, congratulations to these gangstas for succeeding in their plot, revolting as everything else about them may be. However, one can be against the death penalty and yet disgusted at justice being perverted to avoid it. I would also be angry if somebody avoided execution by hostage-taking, blackmail, or just bumping off the judge (and it doesn't sound as if these choirboys would hesitate in taking that route if necessary).

I just hope that they live long enough to become painfully aware of their guilt.
posted by Skeptic at 7:49 AM on July 16, 2008 [2 favorites has favorites]

Well, in their defense the entire War on (Some) Drugs can quite easily be seen as a continuation of institutional racism by judicial means. I mean, the entire powder cocaine vs. crack cocaine minimum sentencing guideline alone looks like a clear cut case of someone deciding to mete out harsher penalties to blacks than to whites.

That said, pseudo-legal gobbledygook coupled with bizarre conspiracy theory ranting is pathetic.

ubuRoivas To the best of my knowledge in the US most Constitutional issues begin in lower courts and are only elevated to the Supreme Court following a series of appeals that kick the issue to successively higher courts.

I know that one way the Supreme Court settles matters is by simply refusing to hear a case, in which event the lower court's ruling remains in effect.
posted by sotonohito at 7:53 AM on July 16, 2008

As Ozzy Osbourne said, drugs will never take you any place worth going to. He should know.
posted by Daddy-O at 7:55 AM on July 16, 2008 [1 favorite has favorites]

Isn't this really just another form of trying to muck up the proceedings so much that the prosecution throws up their hands and goes for a lesser offense?

Defendants have been doing this general sort of thing for ages, using all manner of different guises (eg: Kaczynski swapping out lawyers non-stop), but the overall goal is the same: exhaust the opponent and the system in the hopes that they will make a crucial error or just get tired of the whole thing.
posted by aramaic at 8:03 AM on July 16, 2008

sotonohito wrote: Well, in their defense the entire War on (Some) Drugs can quite easily be seen as a continuation of institutional racism by judicial means. I mean, the entire powder cocaine vs. crack cocaine minimum sentencing guideline alone looks like a clear cut case of someone deciding to mete out harsher penalties to blacks than to whites.

Could you explain? Especially the "clear cut" part. I'm really curious, as I've heard this charge before and never really understood it.
posted by MarshallPoe at 8:05 AM on July 16, 2008

If the gov doesn't fit you must acquit.
posted by srboisvert at 8:13 AM on July 16, 2008

Crack Cocaine Sentencing Policy:

Although the two types of cocaine cause similar physical reactions, the sentences that users and sellers of the drugs face are vastly different. For powder cocaine, a conviction of possession with intent to distribute carries a five year sentence for quantities of 500 grams or more. But for crack, a conviction of possession with intent to distribute carries a five year sentence for only 5 grams. This is a 100:1 quantity ratio.

Under this format, a dealer charged with trafficking 400 grams of powder, worth approximately $40,000, could receive a shorter sentence than a user he supplied with crack valued at $500. Crack is also the only drug that carries a mandatory prison sentence for first offense possession. A person convicted in federal court of possession of 5 grams of crack automatically receives a 5 year prison term. A person convicted of possessing 5 grams of powder cocaine will probably receive a probation sentence. The maximum sentence for simple possession of any other drug, including powder cocaine, is 1 year in jail.

In addition to the federal mandatory minimum sentences, 14 states differentiate between crack and powder cocaine. However, none have a quantity ratio as large as the 100:1 disparity in federal law.

Approximately 2/3 of crack users are white or Hispanic, yet the vast majority of persons convicted of possession in federal courts in 1994 were African American, according to the USSC. Defendants convicted of crack possession in 1994 were 84.5% black, 10.3% white, and 5.2% Hispanic. Trafficking offenders were 4.1% white, 88.3% black, and 7.1% Hispanic. Powder cocaine offenders were more racially mixed. Defendants convicted of simple possession of cocaine powder were 58% white, 26.7% black, and 15% Hispanic. The powder trafficking offenders were 32% white, 27.4% black, and 39.3% Hispanic. The result of the combined difference in sentencing laws and racial disparity is that black men and women are serving longer prison sentences than white men and women.

posted by anotherpanacea at 8:28 AM on July 16, 2008 [4 favorites has favorites]

Although much of this will change due to Kimbrough v. US.
posted by anotherpanacea at 8:30 AM on July 16, 2008

MarshallPoe Its fairly straightforward. Crack and powder cocaine are (or were at the time of the original laws) consumed by mostly separate demographics. Powder cocaine tends(ed) to be consumed mainly by rich white yuppie types, while crack cocaine tends(ed) to be consumed mostly by poor ghetto kids, and the mandatory sentencing is quite different for the two:

Simple possession of 5 grams or more of crack cocaine is a felony and carries a minimum sentence of 5 years, while first time simple possession of any quantity of powder cocaine (or most other drugs) is a misdemeanor and punishable by a *maximum* of one year.

It takes roughly 100 times the quantity of powder cocaine to get the same mandatory penalty for crack cocaine. So, if a person is caught with 5 grams of crack cocaine he'd get the same penalty as a person caught with 500 grams of powder cocaine.

Given the demographics its pretty hard to see the disparity in sentencing as being anything other than racially motivated.
posted by sotonohito at 8:48 AM on July 16, 2008 [1 favorite has favorites]

It was stupid that federal prosecutors dropped the death penalty, but quite funny.
posted by jeffburdges at 8:48 AM on July 16, 2008

while crack cocaine tends(ed) to be consumed mostly by poor ghetto kids

Although this is a popular misconception, it is not in fact the case the majority of crack users are black (which is what I assume you mean by 'poor ghetto kids.' They're not urban, either.) A majority of crack convictions are black and urban, however. The sentencing guidelines only play a part of the role in the discriminatory results.
posted by anotherpanacea at 8:58 AM on July 16, 2008

Those who think that the distinction between crack and powder in the law is evidence of racism would do well to remember that the introduction of crack into American urban areas was accompanied by a huge crime wave that powder simply did not have. Its purity is higher, and it caused a 300%increase in the number of cocaine-related visits to emergency rooms.

Whether or not the distinction is good policy is certainly debatable, but let's not pretend that it isn't a rational distinction. The fact that crack was largely used by poor urban blacks is unfortunate, but need not have been the basis for any legislation or law enforcement policy.
posted by valkyryn at 8:58 AM on July 16, 2008

The fact that crack was largely used by poor urban blacks is unfortunately not a fact, only a justification for the fact that the majority of convictions are poor urban blacks.
posted by anotherpanacea at 9:00 AM on July 16, 2008

"Where am I?"
"In the Village."
"What do you want?"
"Information."
"Whose side are you on?"
"That would be telling…. We want information. Information! INFORMATION!"
"You won't get it."
"By hook or by crook, we will."
"Who are you?"
"I am Number Two."
"Who is Number One?"
"You are Number Six."
"I am not a number — I am a free man!"

FWIW, I find myself on the side of the Feds only because this sort of defense seems to work to form a public opinion that confirms in many minds the lack of moral foundation of all "inner city" "urban" (insert euphemism here) citizens. And because the judge seemed, from what I read, to be quite reasonable.

There has never been a lack of the prosecution overreaching in order to "send a message." And sometimes in ends up with the prosecution getting blowback.

Maybe if we worked harder for affordable housing, real jobs with real wages instead of abandoning whole tracts of cities (and rural areas--from what I've read, your violence problems associated with drug sales and use are as bad as in the cities), and quit believing the fiction that the private sector and American exceptionalism will cure all ills, we'd have fewer people believing that the "gold class" has constructed underground parallel governments. (e.g. more than 500K hits for "shadow government")
posted by beelzbubba at 9:02 AM on July 16, 2008

As Ozzy Osbourne said, drugs will never take you any place worth going to. He should know.

If Ozzy ever had a moment in which he said something that was the result of sober, intelligent thought, I'd buy it. However, based on what I've seen of him trying to figure out the remote control on his tv on top of my own experience with certain drugs, I'd say most of what he utters is shite and best viewed as comedy.
posted by spicynuts at 9:03 AM on July 16, 2008 [2 favorites has favorites]

Could you explain? Especially the "clear cut" part. I'm really curious, as I've heard this charge before and never really understood it.

Rich white frat boys and investment bankers use coke. Crack is cheap, so those less 'flush' with cash (code: inner city types) use crack. Note: those less flush with cash in the burbs use meth.
posted by spicynuts at 9:05 AM on July 16, 2008

more than 500K hits for "shadow government"

Probably because there actually -is- a shadow government.
posted by anotherpanacea at 9:05 AM on July 16, 2008

There’s no international cabal

Mmmhmm. Suuure.
posted by lunit at 9:08 AM on July 16, 2008

[quote]Probably because there actually -is- a shadow government.
posted by anotherpanacea [/quote]

Yeah, I didn't 'splain myself particularly well. I meant the one that has everybody's name & SSN in capital letters in the underground tunnel under NYC. Of course, that's offset by ones like the underground torture room run by the Chicago PD that Royko wrote about, the city denied, until it was ultimately uncovered after 20 some years of rumor. Makes it harder to debunk some of the closely held beliefs that the gov't really is fuckin' wid us.
posted by beelzbubba at 9:38 AM on July 16, 2008

interesting to hear. but does that mean that lower courts can try test cases relating to the constitution

I'm not sure what you mean by "test case."

There are essentially no "test cases" in the US in the sense that ~all cases are actual controversies between real people with something real at stake, if that's what you mean.

But: let's assume a case about whether a law that someone is being tried for is constitutional.

In the US, this will start in some trial court, probably a state one. A basic county courthouse. In this trial, the defendant's lawyer will move for dismissal on the grounds that the law in unconstitutional. The judge will rule that it is in fact constitutional. This is a real, honest to god judicial decision, but it isn't binding on anyone except the judge him or herself.

Then the defendant's attorney will appeal to some level of intermediate appeals court in the state. This court will also reach a decision about whether that law is unconstitutional, which will also be an honest to god real court decision. It will be binding, generally, on the lower courts in that appeals court's jurisdiction.

Then whoever loses that appeal will appeal to whatever the highest court of criminal appeals is in that state -- think of it as the state Supreme Court even though it will almost certainly not be named that. Again, they will render a decision about the constitutionality of that law, and it will be binding on all state courts in that state. Or, the highest appeals court might refuse to hear the appeal, in which case the lower appeals court's decision stands and (usually) remains binding on the courts in its jurisdiction until some higher court rules otherwise.

Whoever loses in the state's highest court -- probably the defendant -- can usually appeal to the US Supreme Court, bypassing several layers of other federal courts. If they hear the case, they render a decision about the constitutionality of the law. Their decision is binding on all courts in the US. But, they almost certainly will choose to ignore the appeal, and the state court's decision will therefore stand.

This means that it is possible for the same law to be constitutional in Alabama but unconstitutional in Mississippi, or for a law to be constitutional in one federal circuit but not in another. Disagreement between state highest courts about what the US Constitution says is one reason why the US Supreme Court sometimes steps in to render a final decision.

At every level, all of these are real, no-shit judicial decisions about whether the law is constitutional or not. The only thing that makes the US Supreme Court special is that there's no appeal from its decisions. Making decisions about the Constitution is not unique to the Supreme Court. Only un-appeal-ability is unique to the Supreme Court.
posted by ROU_Xenophobe at 9:41 AM on July 16, 2008 [1 favorite has favorites]

Best of the web, indeed. Great post, thanks.
Nice article, well researched, and all on one web page !
posted by lothar at 9:49 AM on July 16, 2008

sotonohito wrote: "Given the demographics its pretty hard to see the disparity in sentencing as being anything other than racially motivated."

Thanks for the explanation. Is there anything beyond the demographics of use (in some dispute, I gather) and conviction (disproportionately afro-am) to support the arguement that the "disparity in sentencing" is "anything other than racially motivated?"
posted by MarshallPoe at 10:04 AM on July 16, 2008

It never fails to amaze me when people do crazy things like this.
posted by dirtynumbangelboy at 10:46 AM on July 16, 2008

Rich white frat boys and investment bankers use coke. Crack is cheap, so those less 'flush' with cash (code: inner city types) use crack.

Or, more accurately, the mandatory sentencing guidelines were passed in 1986, after crack had become epidemic in the inner cities and, as someone stated upthread, cocaine related emergency room visits had increased 300%. Reactionary, yes, good policy, no. Intentionally racist? Probably not.
posted by electroboy at 11:05 AM on July 16, 2008

after crack had become epidemic in the inner cities and, as someone stated upthread, cocaine related emergency room visits had increased 300%.

I don't think you have your history correct. Read Cocaine: An Unauthorized Biography for actual details. IIRC, the book makes the point that nobody cared about this 'epidemic' until the media sensationalized it as a violent threat to white communities. That's when the mandatory sentencing rolled in. Also 'cocaine related' emergency room visits - are you saying CRACK related only? Because that's the issue.
posted by spicynuts at 11:15 AM on July 16, 2008

Is there anything beyond the demographics of use (in some dispute, I gather) and conviction (disproportionately afro-am) to support the arguement that the "disparity in sentencing" is "anything other than racially motivated?"

Let's look at it this way: Cocaine is cocaine, regardless of it's purity, concentration, wallop, power, whatever you want to call it. If crack is simply concentrated cocaine, then why is the punishment harsher for possession of it then cocaine? Do you get a harsher MANDATORY sentence for having marijuana that is hyper-potent? Or for heroin that is hyper-pure or potent? No, you get sentenced based on the AMOUNT you have in possession.

So, crack is nothing more than concentrated cocaine. However, it is much much cheaper. Which means that people who are, shall we say, less economically fortunate can afford it. Which means that MORE people can afford it, which means it becomes much more visible when the Po Po starts finding it on a lot of the people they bust. Which makes it look like it's some kind of epidemic of a new drug, when in fact it's just that entrepreneurial dealers discovered a way to decrease the manufacturing/distribution cost of an existing drug and thus decrease the cost and increase the supply of an existing drug. Violence increases cuz the market for a cheap drug is huge and there's lots of profit to make. Turf wars over these markets explode.

Now, nobody who could afford it stopped using cocaine. Difference is, rich folk can afford better lawyers and better discretion in purchase/distribution and in general don't get the kind of scrutiny from the general public that makes for good headlines. It's the same damn drug, but it's more expensive. The problem with this 'new drug' crack is, the people using it are brown and live in the 'ghetto'. Add 'the ghetto' to the violence and you've got a lot of newspapers to be sold, hence OH NOES EPIDEMIC. Public outrage. But public outrage against cocaine in general? No, outrage against the cheap version that lots of visible people can afford. Which leads to ridiculous mandatory sentence laws for crack. But not cocaine.

Perhaps the racism isn't OVERT, but it sure is the basis for the idea of the 'crack' epidemic vs. the cocaine problem. It only becomes more evil because the kind of people that can afford it scare the general public. This is why the penalty is harsher and the fact that it is cheap is why the percentage of busts for it is higher in the particular demographic in question. If cocaine is bad, it's bad - everyone, regardless of the price they paid for it, should get the same sentence.
posted by spicynuts at 11:38 AM on July 16, 2008

Why is the weight of the Blotter used to calculate the charges in an LSD case?

they should chemically analyse the cocaine or crack and charge you by the number of molecules of the prohibited drug found in your posession. That could include blood tests for people who are just really jumpy.

basic chemistry and math tells us the expected number of cocain Molecules and we would have a consistent policy.
posted by Megafly at 12:07 PM on July 16, 2008

Isn't this really just another form of trying to muck up the proceedings so much that the prosecution throws up their hands and goes for a lesser offense?

That's exactly what it amounts to in practice. What the people advancing it actually thought, we'll probably never know. Maybe they took the arguments seriously, or maybe they were just play-acting in order to create a shitstorm. I'm not sure it matters.

What matters is that the system was gamed by a meritless argument. That's a failing, a vulnerability, in the system, which we should probably try to fix.
posted by Kadin2048 at 12:09 PM on July 16, 2008

Also 'cocaine related' emergency room visits - are you saying CRACK related only?

Probably impossible to determine, for several reasons:

1. Chemically, it's the same thing.
2. Self-reporting for OD cases is probably not accurate.
3. Stats differentiating the two don't seem to exist.

The more general point is that drug related violence gets politicians to act, moreso than either an increase in emergency room visits or an uptick in rich douchebags in rehab. And when they act in cases like these, they usually overreact.

Perhaps the racism isn't OVERT, but it sure is the basis for the idea of the 'crack' epidemic vs. the cocaine problem. It only becomes more evil because the kind of people that can afford it scare the general public.

I don't know, I think that the homicide rate for young black males doubling is a pretty alarming statistic that needed to be addressed. Media generated hype or no, there was a serious problem.
posted by electroboy at 1:00 PM on July 16, 2008

Before long, the relatives of the defendants were scanning Web sites like www.redemptionservice.com, which offers maps showing how Satanic runes were secretly incorporated into the street plan of Washington, D.C., and a deluxe package of instructions for renouncing one’s social security number for only $3,900, payable by check or money order.

The gold standard was abandoned in 1933, so money has no inherent value. Except when it does.
posted by Shecky at 1:13 PM on July 16, 2008 [2 favorites has favorites]

There’s no international cabal

Mmmhmm. Suuure.
posted by the Cabal at 2:34 PM on July 16, 2008 [2 favorites has favorites]

I'm glad my grocer and my landlord still believes in the inherent value of money. Not to mention the gas station owner.
posted by desjardins at 3:10 PM on July 16, 2008

On the other hand, it's good to know that the guy who sells instructions on renouncing my identity is willing to take a check.
posted by box at 6:52 PM on July 16, 2008 [1 favorite has favorites]

I've seen criminal defendants in federal court use an argument that I thought hailed from the Uniform Commercial Code. It seems to spread among inmates incarcerated in federal facilities. It is funny to watch these things happen; the defendant insists on addressing the court directly (despite the presence of his attorney) and then begins to recite this nonsensical, memorized spiel. The judge listens patiently.

The last time I saw this happen, the next attorney to address the court began with, "Your honor will be happy to know that we are waiving our UCC argument."
posted by jayder at 8:48 PM on July 16, 2008 [2 favorites has favorites]

I wonder if its psychologically related to beliefs in bad luck and whatnot? An effort to push responsibility away from oneself, or from the random happenings of the universe, and into a concrete other that can be safely despised?

If a person can convince themselves that all the conspiracy tripe is true then when they're incarcerated despite following the rote stuff they can blame it on the evil corrupt conspiracy rather than their own criminal actions. It probably makes serving a life sentence more palatable if you can think of yourself as a bold and courageous political prisoner rather than a jackass who murdered someone over a few grams of dope. "Well, I wouldn't even be here if it weren't for the UCC illegally taking over the country!"
posted by sotonohito at 6:27 AM on July 17, 2008

That's what you get for googling "Who is RON PAUL?"

When you consider that Ron Paul is the candidate who has been most consistently against the War on Drugs, it's no wonder why some drug dealers would be attracted to Ron Paul. Prodigy from Mobb Deep has already given a shout-out to Ron Paul on some hip-hop stations. Maybe this is where all this "too weird for the Wire" stuff started.
posted by jonp72 at 8:22 AM on July 17, 2008