New York Criminal Attorney Blog

The Assumptions Relied Upon by Congress When it Passed the Mandatory Minimums for Crack Cocaine Offenses Have Proven False. The Justifications for the Sentencing Disparity Between Powder Cocaine and Crack Cocaine are not Supported by Fact or Reason

February 17, 2009 | Tilem & Associates

As I have previously discussed, Congress justified Draconian mandatory minimum sentences for federal crack cocaine offenses upon their mistaken belief that, among other things, crack cocaine was more dangerous than powder cocaine because it was believed to be more addictive and create more violence than powder cocaine; that it was more harmful than powder cocaine; that it was popular with teenagers; and that its low cost made it more accessible and popular.

These concerns and beliefs have proven false. As observed by Congressman Alcee Hastings (D Fl): “Rather than waging war on drugs, [the mandatory minimums for crack offenses] waged war on America’s poor and minorities.” Rep. Hastings also noted that the crack mandatory minimums were “rooted in propaganda rather than empirical data.” (See Congressman Alcee Hastings’ website )

The reality is, the mandatory minimums are not being imposed on the “major” and “serious” suppliers of crack cocaine but instead the majority of crack cocaine defendants are small-scale, street-level dealers. The 100:1 ratio disproportionately impacts far more low-level traffickers than it does the intended targets of the ratio. As observed by the Supreme Court, “the 100-to-1 ratio can lead to the anomalous result that retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.” See Kimbrough v. U.S., 128 S.Ct. 558, 564 (U.S.,2007).

The Anti-Drug Abuse Act of 1986 Established a 100:1 Crack Cocaine to Powder Cocaine Ratio Resulting in Crack Offenders Receiving Decades in Prison While Powder Cocaine Offenders Receive Months or at Most Several Years in Prison for Offenses Involving the

February 14, 2009 | Tilem & Associates

New York criminal defense firm Tilem & Campbell is vigorously challenging the constitutionality of the mandatory minimum sentences for federal crack cocaine offenses set forth in the Anti-Drug Abuse Act of 1986 (ADAA). We currently have one appeal on this issue pending before the Second Circuit Court of Appeals and will be filing another appeal shortly.

The ADAA established a two-tier system of sentencing with 5 and 10 year mandatory minimum sentences for certain manufacturing and distribution offenses. Congress passed the 10 year mandatory minimum to combat “major drug dealers” while the 5 year mandatory minimum was for the “serious traffickers”. In reality, however, the mandatory minimums are weight driven. It is the weight of the drugs involved that controls with no regard for whether the defendant is a “major dealer” or “serious trafficker”.

The ADAA also established a 100-to-1 disparity between the distribution of powder cocaine and crack cocaine (21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B)). For example, distributing just 5 grams of crack cocaine (about a thimble full) carries a mandatory minimum five-year federal prison sentence. However, one must distribute 500 grams of powder cocaine to trigger that same five-year federal prison sentence. (21 U.S.C. § 841).

The Anit-Drug Abuse Act of 1986 and the Revival of Draconian Federal Mandatory Minimum Sentences

February 11, 2009 | Tilem & Associates

Just 16 years after the passage of The Comprehensive Drug Abuse Prevention and Control Act of 1970 which all but eliminated harsh mandatory minimums for federal drug offenses, Congress reversed course and passed The Anti-Drug Abuse Act of 1986 (ADAA). The ADAA was passed by Congress during the media frenzy that followed the cocaine induced death of University of Maryland basketball star Len Bias. The ADAA established harsh mandatory minimum sentences for federal drug offenses involving “crack” cocaine (referred to as “cocaine base” in the federal statutes).

Congressional members used Bias’ high-profile death as a political opportunity to portray a “tough on crime” stance. However, Congress utterly failed to undertake any discussion or debate about the failings of the mandatory minimums found in the The Boggs Act of 1951and the Narcotics Control Act of 1956 (which I have discussed in previous blogs).

In fact, Sen. Specter noted that Congress “may be acting with undue haste” and Sen. Mathias stated that none of the members of the Senate “had an adequate opportunity to study this enormous package” and that the ADAA “did not emerge from the crucible of the committee process, tempered by the heat of debate.”

CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE – SWITCHBLADE KNIFE.

February 8, 2009 | Tilem & Associates

“Switchblade Knife” is defined in New York as any knife that has a blade which opens automatically by hand pressure applied to a button, spring or other device within the knife’s handle. (For the exact definition of “Switchblade Knife” see NY Penal Law § 265.00(4)).

It is an “A” Misdemeanor to possess a switchblade knife (Penal Law § 265.01(1) – Criminal Possession of a Weapon in the Fourth Degree). However, it is not a crime to possess a switchblade knife if it is for use while fishing, hunting or trapping and you have a valid license to fish, hunt or trap issued pursuant to section 11-0713 of the New York Environmental Conservation Law (See Penal Law § 265.20(a)(6).

Although not stated in the statute, in order to be convicted in New York of illegally possessing a switchblade knife, you must “knowingly” possess the knife (See Model Jury Charge for Criminal Possession of a Weapon in the Fourth Degree (CJI 2d N.Y. Penal Law § 265.01(1); People v. Ford, 66 N.Y.2d 428, 440, 497 N.Y.S.2d 637).

YONKERS CITY COURT IN THE SPOTLIGHT

February 6, 2009 | Tilem & Associates

The City of Yonkers, New York is the largest, and perhaps most diverse city in all of Westchester County. Located at 100 South Broadway, the Yonkers City Court is a bustling Court that reflects the dynamic of the City of Yonkers. As an attorney based in White Plains, the Yonkers City Court is one of the Courts that has become a home away from home. The Court handles everything from the most serious unindicted criminal felonies (indicted felonies are transferred to the Westchester County Courthouse) to less serious misdemeanor criminal cases and a very busy traffic calendar to landlord-tenant cases and civil cases involving disputes of $15,000.

With a population of about 200,000 people, Yonkers is the fourth largest city in all of New York State. Located just north of the Bronx it is the literal gateway to New York City with major highways such as the New York State Thruway (I-87), the Sprain brook Expressway, the Cross County Parkway, The saw Mill River Parkway and Bronx River Parkway, all running through Yonkers. Needless to say Yonkers speeding tickets are the bread and butter of any traffic ticket lawyer in Westchester County and all types of traffic infractions and traffic misdemeanors pour through the Yonkers Courthouse.

With the Cross County Mall, Yonkers Raceway which now has a casino called Empire City, shopping areas throughout downtown and Central Avenue, numerous residential neighborhoods and industrial centers other crimes abound including shoplifting, drugs, grand larceny, guns, robbery, assault and domestic violence. Despite the volume, however, the Court runs well, moves fast and in many ways is a model of efficiency.

New York Speeding – Don’t Get Caught Below The Speed Limit

February 2, 2009 | Tilem & Associates

A New York driver must drive at a “reasonable and prudent speed” and reduce his or her speed below the posted speed limit when necessary to do so. Notwithstanding the posted speed limit, you still must drive at a speed that is reasonable and prudent (VTL 1180(a)). Therefore, even if the posted speed limit is 65 mph, you must nevertheless reduce your speed if say for example, it is raining or foggy. Furthermore, you must also reduce your speed at a railroad crossing, when approaching and crossing an intersection, when you go over the crest of a hill, on winding roads, when a special hazard exists with respect to pedestrians or if weather or highway conditions require a reduced speed (See VTL 1180(c)). These statutes have been held constitutional. See People v. Lewis, 13 N.Y.2d 180, 245 N.Y.S.2d 1, 194 N.E.2d 831 (1963); People v. Nappi, 18 N.Y.2d 136, 272 N.Y.S.2d 347 (1966).

If you have been issued a speeding ticket anywhere in New York State including White Plains, New Rochelle, Harrison, Yonkers, Greenburgh or any other jurisdiction in New York State call Tilem & Associates at 1-877-DR-SUMMONS (1-877-377-8666) or visit www.DrSummons.com, www.TrafficTicketExpress.com, www.WhitePlainsSpeedingTicket.com, or www.HarrisonSpeedingTicket.com.

ITS ILLEGAL TO SELL USED AIRBAGS IN NEW YORK

January 31, 2009 | Tilem & Associates

In New York and elsewhere, it’s common for brake parts to be replaced with rebuilt parts. For example, it’s common for garages to install rebuilt brake calipers, brake pads and shoes, master cylinders and power brake boosters. Furthermore, when repairing or maintaining brakes on trucks, its also common to use rebuilt air compressors and brake valves. Therefore, the most important system on any vehicle, the braking system, is routinely repaired and maintained with re-built or refurbished parts. Many times, the parts to be rebuilt (the “cores”) are obtained from salvage yards (junkyards).

However, the New York State Legislature, in its infinite wisdom, has found it necessary to bar the installation of salvaged airbag systems (called inflatable restraint systems under New York law). Effective March 1, 1999, airbag systems in New York may only be replaced with new systems or salvaged systems which have been certified pursuant to standards set by a nationally recognized testing, engineering and research organization (See VTL § 398-d(6)(e) & 415-c (2)).

Here’s the problem with this law; leave it to the New York State Legislature to pass a law requiring salvaged airbag systems to meet standards set by a nationally recognized testing, engineering and research organization when no such standards or organization to develop such standards exist. And, leave it to the New York Court of Appeals to hold that the failure of the Department of Motor Vehicles to develop such standards did not invalidate the law. N.Y.A.A.D., Inc. v. State of New York, 1 N.Y.3d 245, 771 N.Y.S.2d 54 (N.Y. 2003)

PRISON WARDENS, PROBATION OFFICERS, FEDERAL JUDGES AND LAW ENFORCEMENT PERSONNEL OPPOSE MANDATORY MINIMUMS FOR DRUG OFFENSES

January 26, 2009 | Tilem & Associates

In continuing with my commentary on federal mandatory minimum sentencing for drug offenses and Tilem & Campbell’s challenge to the constitutionality of such sentences, it’s of paramount importance to point out other, influential groups and individuals who are also opposed to mandatory minimums for drug offenses. As previously discussed, former Presidents Kennedy, Johnson and Nixon were all opposed to mandatory minimums for drug offenses and, at Nixon’s urging, in 1970, Congress abolished almost all mandatory minimum sentencing for federal drug offenses with the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

These former Presidents were not, and are not, the only influential individuals opposed to such sentences. With regard to the Boggs Act of 1951 and the Narcotics Control Act of 1956 (both of which contained draconian mandatory minimum sentences for federal drug offenses), a Senate Judiciary Subcommittee found that 92 percent of federal prison wardens who responded were opposed to the mandatory minimum sentences, and 97 percent were opposed to the prohibition against probation or parole. Of the probation officers who responded, 83 percent were opposed to mandatory minimums while 86 percent were opposed to prohibition against probation or parole. Of the federal judges who responded, 73 percent were opposed to mandatory minimums, and 86 percent were opposed to the prohibition against probation or parole.

Many members of law enforcement also supported the Comprehensive Drug Abuse Prevention and Control Act of 1970 and its elimination of the mandatory minimum sentences found in the Boggs Act of 1951 and the Narcotics Control Act of 1956. According to then Congressman William L. Springer (R Ill.): “It is the opinion of most law enforcement people that the harsh mandatory sentences in narcotics law have been a hindrance rather than an aid to enforcement.”

NEW YORK CRIMINAL LAWYER PETER TILEM ADMITTED AS A MEMBER OF THE BAR OF THE UNITED STATES SUPREME COURT

January 23, 2009 | Tilem & Associates

New York criminal lawyer Peter H. Tilem has been admitted to practice before the United States Supreme Court, effective January 12, 2009. Having been recommended for admission by two current members of the bar of the US Supreme Court the motion for Mr. Tilem’s admission was granted and his admission has taken effect.

The admission of Mr. Tilem to this prestigious bar will enhance the appellate practice of Tilem & Campbell and will give it the ability to challenge cases already in the United States Court of Appeals at the United States Supreme Court level, without seeking outside counsel. Tilem & Campbell has several criminal appeals pending in the United States Court of Appeals for the Second Circuit and is currently challenging the mandatory minimums applicable to crack cocaine cases in federal courts.

THE RICHARD NIXON ERA – THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970 ELIMINATES MANDATORY MINIMUMS.

January 19, 2009 | Tilem & Associates

Tilem & Campbell is currently appealing the constitutionality of the federal mandatory minimums for federal crack offenses and the 100:1 powder cocaine/crack cocaine rationale. In continuing with a thorough review of the failings of prior mandatory minimums for drug offenses, I previously touched on the Boggs Act of 1951 and the Narcotics Control Act of 1956. When Richard Nixon took office in 1969 he supported enforcement of then current drug laws to combat the county’s admitted drug problem. However, he came to realize that was not the best course of action.

(See www.presidency.ucsb.edu/ws/index.php?pid=2353&st=&st1=. (Visited December 14, 2008).

Nixon backed away from mandatory minimums and pushed The Comprehensive Drug Abuse Prevention and Control Act of 1970 (hereinafter the “1970 Act’) through Congress which eliminated all of the mandatory minimum drug sentences but one. (Mandatory minimums from between 10 and 20 to life remained for Engaging in a “continuing criminal enterprise”). The 1970 Act was an acknowledgment of failings of both the Boggs Act of 1951 and the Narcotics Control Act of 1956. The 1970 Act was in lock-step with President Kennedy’s aversion to the mandatory minimums, Kennedy’s Commission’s findings against the mandatory minimums and President Lyndon Johnson’s opposition to the mandatory minimums. The Act had wide bi-partisan support including that of then Congressman, and future President of the United States, George H. W. Bush who supported the repeal of the mandatory minimums found in the Narcotics Control Act of 1956.