In recent weeks, a number of folks have called and asked me questions about the confusing world of criminal procedure. The most frequent areas of concern pertain to preliminary hearings, grand jury indictments, and post-arrest arrest warrants. The typical scenario goes something like this: A person is charged with a crime and goes to the first court hearing. He or she is handed a criminal complaint and told to come back for another court hearing, usually called a dispositional conference. If s/he decides not to plead guilty at the dispositional conference, s/he is told to come back in a couple weeks for a preliminary hearing. Weeks pass and shortly before the date of the preliminary hearing, the person is told that the preliminary hearing has been canceled. In its stead, and arraignment date has been set. At the arraignment, the person is served with an indictment and an arrest warrant. None of this is explained to the person and it scares the hell out of them. They don’t know why the preliminary hearing was canceled or why an arrest warrant has been issued. Here is an explanation that I hope will help answer the questions and allay some concerns:

Recently I blogged about the lack of political discourse in our recent campaigns about the crushing financial and social burden caused by the overcriminalization and overincarceration of people in this country. It has been a topic that has been largely ignored by politicians because they fear being considered “soft on crime.” However, that does not mean the topic is being completely ignored by policy makers. I was catching up on reading over the Thanksgiving Day holiday and came across an editorial in the American Bar Association’s fall issue of Criminal Justice. The editorial, written by William Sheperd, the chair person of the ABA’s Criminal Justice Section, argues that overcriminalization is one of the greatest challenges facing the criminal justice system in the United States.

This post is a reprint of an article to be published in the next issue of The Barrister Magazine[1] by John R. Murphy, J.D., With Research Conducted by Bradley Richardson (U.S.D. School of Law) Several months ago I was able to attend one of the Governor’s Criminal Justice Stakeholder Meetings. These meetings have occurred throughout the state. The purpose of the meetings was to seek solutions to the pending financial problems the State of South Dakota is facing based on the cost of incarcerating criminal defendants. The Governor’s initiative should be applauded. At the meeting I attended, it appeared that his staff was committed to addressing the problem in a meaningful way. His staff made it clear that all suggestions would be considered. In that spirit, I’ve spent several months thinking about the issue. Below is a description of the problem and my proposal for a solution to part of the problem. It is not meant as a panacea for the entire problem, nor is it meant to suggest that other proposals like drug courts and expansion of the 24/7 program are improper or unnecessary. Rather, I believe that a multi-faceted approach that begins by limiting the number of people labeled as felons is the best way of reducing the costs of incarcerating individuals.

In the same vein as recent posts on this blog, the New York Times has an excellent article on the financial and societal costs of lengthy prison sentences for non-violent drug offenses: http://www.nytimes.com/2012/12/12/science/mandatory-prison-sentences-face-growing-skepticism.html?adxnnl=1&emc=eta1&adxnnlx=1355346297-vJTHk8jMY5jg6VRF0aT8Ng

This afternoon I was researching an issue involving a very modern trend: the trafficking of medical marijuana from states where it is legal to those where it is not. As I searched for case law to help my client, I stumbled upon a Colorado case from 1942, Payne v. People. It is the kind of case that is a marvel to read. Its language is antiquated. It openly and unabashedly projects the prejudice and racism of our past. And, in the end, it shows that certain principles of justice are so powerful that they cannot be suppressed. Wanda Lee Payne was about the least likely person to be treated justly by the criminal justice system in Colorado in the early 1940s. She was 22 years old, she was black, she was a prostitute, and she was charged with killing a white man. The allegation was that Wanda lured Mr. Mott, a white man, into an alley to have sex. Once Mott was in the alley, he was beaten to death and robbed of his money ($5.00) and his watch by Wanda’s boyfriend/pimp and another man, both of whom were black. Afterward, Wanda and the two other men split the money and Wanda destroyed the watch to conceal the crime.

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.