It has been several months since I have posted. Frankly, I have been so busy practicing law that I haven’t had time to write about it. However, I wanted to just pass along a couple matters that have been in my “blog bin” for some time. The economics of incarceration has made for strange bedfellows. For many years, “liberals” (to use a generic term) and those concerned with both individual and human rights have been advocating for less incarceration and more rehabilitation. “Conservatives” and law and order folks have been promoting more incarceration and less rehabilitation as a way to address crime. However, the incredible cost of the later approach has made conservatives re-think their policies, especially in light of the economic situation in this country and the dire financial situation that many states and counties find themselves in. In South Dakota, that change in attitude led to the recent passage of Senate Bill 70, which is a sweeping reform of our criminal justice system. It places a much greater emphasis on rehab programs and lowers the penalties for many non-violent drug and alcohol offenses. The legislation was promoted by our Republican governor and passed by a predominantly Republican legislature.

It is pretty common to hear people complain about there being too many lawyers. For whatever reason, many folks seem to think there are too many of us. What most of those folks seem to forget is that lawyers are subject to the same economic forces that shape all other industries. If there weren’t so many clients asking for legal help, there wouldn’t be so many people willing to pay for and suffer through 7 years of higher education to become lawyers. This creates a certain tension in the community. People profess to loathe lawyers until they need one; when they need one, they wish there were more of them available.

Two days ago the National Public Radio show “On The Media” had an excellent radio program on the same topic as my blog last week. The interviewer did an excellent job of covering both sides of the topic. Included in her piece are interviews with attorneys representing Amy and Mr. Paroline. You can listen to it at: http://www.onthemedia.org/story/new-frontiers-child-porn-law/.

This morning the United States Supreme Court reversed a defendant’s conviction and vacated his 20 years sentence in a federal felony drug case. The case is Burrage v. United States and it should be considered a substantial victory for defendants in all federal criminal cases, not just federal drug prosecutions. Burrage was a drug dealer and Banka was one of his clients. In April of 2010, Burrage sold Banka some heroin. Banka died of a drug overdose on the day Burrage sold him the heroin. However, the evidence showed that heroin was far from the only substance Banka used on the day he died. Banka had been on an extended drug binge. On the day in question he had consumed heroin, oxycodone, hydrocodone, alprazolam, clonazepam and marijuana. Burrage had only sold him the heroin.

The South Dakota Supreme Court issued an opinion late last week that highlights some of the problems and injustices that occur within the criminal justice system. It is truly sad when a person such as the defendant, Jason Toben, must sit in prison for years based on mistakes that no one really disputes. Toben worked in a bar in a small town in South Dakota. The bar sold synthetic marijuana products. In 2012, South Dakota passed emergency legislation that outlawed some, but not all, synthetic marijuana products. The bar where Toben worked had been under investigation before and after the law passed. Both before and after the legislation passed, Toben openly sold synthetic marijuana products to an undercover law enforcement agent.

One of the biggest misconceptions among the lay population is the role of the Miranda advisement in the criminal justice system. This comes from the inaccurate way in which most TV programs address Miranda. In shows like Law & Order, the police read just about everyone their Miranda rights prior to questioning. And, if the cops forget to do so, in a moment of dramatic fury, the judge dismisses the case based on this “technicality.” That isn’t the way it works out in real life. First, the police don’t have to read a suspect his or her Miranda rights unless two circumstances exist. First, the suspect must be in custody. Second, the suspect must be subject to interrogation. Custody is defined as being in a situation where a reasonable person in your shoes would not feel free to leave. This means that you must be placed in a scenario where you feel you have no choice but to remain with the police. A common police tactic to avoid having to read the suspect his or her Miranda rights is to take a suspect down to the police station and bring them into an interview room within the bowels of the building. The suspect is then told that that the police have a mountain of evidence implicating him or her in the crime. The police may even lie to the suspect about the state of the evidence in order to rattle them. For instance, the police may say that the suspect’s fingerprints or DNA were located on an object. After this is done, but before the questioning begin, the police then tell the suspect that the door will be closed for the suspect’s privacy, but that the suspect is free to leave if he or she wants to. Of course, the suspect feels trapped, isolated, and compelled to talk. But, because the suspect was told he was free to leave, the courts typically hold that he was not actually in custody. Thus, the police were not required to read the suspect his Miranda rights. This means that the suspect is never expressly told that he has the right to remain silent and the right to an attorney.