Texas Criminal Lawyer Blog

The number of people trying to smuggle illegal drugs across the U.S.-Mexico border every day may include Texas government officials. El Paso County Commissioner Guillermo "Willie" Gandara Jr. was indicted for conspiracy to possess with intent to distribute 50 kilograms of marijuana, as well as possession with intent to distribute. Gandara had previously condemned efforts to legalize marijuana, claiming that he supported "keeping marijuana out of the hands of kids and keeping marijuana proceeds out of the hands of cartels."

Gandara was arrested during a routine traffic stop at the Sierra Blanca border checkpoint. In addition to the conspiracy charges, he stands accused of going by the alias "Godfather" and maintaining property in El Paso for the purpose of distribution since November 2010. Gandara has appeared at the federal court in El Paso and now sits in an El Paso County jail without bond. Gandara's family is well known in El Paso, with his father and brother both having served on the school board or city council. Worth noting is that Gandara's father and brother are no strangers to accusations of law breaking and betraying the public trust. Willie Gandara Sr. was recalled as mayor of Socorro in May 2011 after being indicted in a public corruption investigation, while last month, Jesus Gandara became part of the "largest public corruption case in its history" as a superintendent in San Diego, California. If Gandara Jr. is found guilty, he faces up to 20 years in federal prison for each charge against him.

The Gandara family may be a unique case, but Gandara Jr.'s arrest has raised the question of how many other Texas public officials could be involved in the drug trade. Some have speculated that Mexican drug cartels like the Zetas and Sinaloa could have more public officials on their payroll.

In a situation like this, many would praise the Border Patrol's actions and claim that justice is served. A public official was subjected to the same search and seizure tactics as everyone else. And if the Border Patrol must pull someone over and arrest him at a checkpoint, isn't it right that it should be for the offense of smuggling large quantities of drugs rather than for having a personal stash in the glove compartment?

All of this may be true -- Gandara is innocent until proven guilty, and is entitled to representation by a criminal defense attorney -- and yet it still does not change the Border Patrol's fundamental problems. For all of the large-scale smuggling operations Border Patrol agents have successfully broken up, there are cases where the Border Patrol arrests individuals with negligible amounts of drugs who are otherwise law abiding. Is each success worth the cost of forcing countless people to defend themselves in an overcrowded court system?

Over the past several years, use of synthetic drugs -- especially synthetic marijuana -- has been on the rise. Even though 40 states, including Texas, banned synthetic marijuana, recent news on synthetic drugs shows that there is no sign that teens intend to stop using it. As a result, in March 2011, the Drug Enforcement Administration (DEA) moved to ban the chemicals for making synthetic marijuana for at least one year. Now the House and Senate are in the process of making synthetic marijuana use a federal crime. The House passed a ban late last year on a 317 to 98 vote, while Senate passage is currently being blocked by Senator Rand Paul (R-Kentucky). With so much activity surrounding synthetic marijuana, it is worth taking a look at what it is, how it started, and whether it is worth such alarm.

Synthetic marijuana goes by multiple names, including K2 and Spice. It first appeared in gas stations across the United States in 2006, being sold as tea, incense, or herbs. Although manufacturers claim that synthetic marijuana consists of medicinal herbs that combine to create a "mild" hallucinatory effect, studies show that the herbs are actually sprayed with chemicals to create the effect similar to marijuana. It is likely that synthetic marijuana came into being because its manufacturers thought it could skirt prohibition laws by posing as something natural and even healthy.

However, evidence is mounting that synthetic marijuana is far worse than ordinary marijuana. While marijuana remains in your system for a relatively short amount of time, the effects of K2 or Spice remain in your brain and organs longer. Marijuana combined with alcohol has a very mild effect, while synthetic marijuana combined with alcohol can make people extremely ill. Some side effects of synthetic marijuana that you would not find in ordinary marijuana include vomiting, seizures, and trouble breathing. In the first 10 months of 2011, poison control centers handled 5,741 calls about synthetic marijuana, nearly double the calls received in 2010. Worst of all, synthetic marijuana has been linked to psychosis (while the psychosis effect of marijuana remains inconclusive) and suicidal thoughts.

Since synthetic marijuana only became popular six years ago, its long-term effects remain unknown. Still, it is safe to conclude that all of the concern about synthetic marijuana is warranted. Even so, lawmakers need to move cautiously in banning the substance nationwide. Senator Paul and other Senators raised a valid concern that a new law could interfere with legitimate pharmaceutical research, as well as send plenty of otherwise law-abiding users to prison. Federal criminal defense attorneys already have their hands full defending cases of regular marijuana use, let alone cases of synthetic marijuana use.

Also, even if certain synthetic marijuana compounds are banned (which seems inevitable) on the federal level, there will always be experimentation to arrive at new compounds that create the hallucinatory effects of marijuana. Meanwhile, this entire situation just highlights how inoffensive ordinary marijuana is by comparison. It makes one wonder if the best solution wouldn't just be to legalize marijuana, which would automatically make all of these synthetic drug combinations irrelevant.

Back in August, this blog discussed a relatively new trend of prison closures in Texas. After decades of tough-on-crime rhetoric and tougher prison sentences, the cost of running a prison has risen steeply. One reason is because lengthy sentences have resulted in many prisoners reaching senior citizen status, requiring the health care that comes with it.

According to Human Rights Watch, "between 2007 and 2010, the number of state and federal prisoners age 65 or older increased by 63 percent while the overall population of prisoners grew only 0.7 percent in the same period." In Texas, although senior inmates make up only seven percent of the total prison population (approximately 160,000 inmates), they account for one third of the health care costs.

Now Texas officials are scrambling to find ways of providing low-cost health care. It used to be that the University of Texas and Texas Tech treated inmates, but that system may not be in place much longer, given that last year, their bill for service was $400 million. Just recently, the Texas prison board made a deal worth $46 million with Huntsville Memorial Hospital for the hospital staff to serve inmates who are incarcerated nearby. This type of deal might be extended to other regional medical facilities. Texas also has set up geriatric wards in each prison for inmates 60 years and older.

Otherwise, the Texas solution to stemming the costs of old age is to not have so many inmates reach old age. That is, to find alternatives to putting people in prison. This includes putting more money into rehabilitation programs for drug use and other crimes. Yet the effects of that approach won't be felt for many years. Meanwhile, inmates are getting older faster than non-inmate senior citizens of the same age. They have physical and mental health issues that pose a challenge to any medical staff.

How did the prison population reach this point? Again, much of it has to do with the tough-on-crime attitude that was prevalent for far too long, since at least the 1970s. It can be seen in the Federal Sentencing Guidelines, which were established in 1984 and have been adopted in many states. They were meant to produce "fairness" in sentencing, but have often had arbitrary, overly harsh results of their own. The most infamous example was the sentencing disparity between crack cocaine and powder cocaine, which persisted until 2010. Although the Sentencing Guidelines are meant to be advisory, they continue to carry great weight with federal judges.

Border apprehensions may be falling, but a Border Patrol agent's work is never done. At least based on the number of overtime hours agents are working these days.

Border Patrol agents police the northern and southern borders, especially border checkpoints like Sierra Blanca, mainly for drug and immigrant smuggling. However, border apprehensions are the lowest they have been in 40 years. If that is the case, then why do Border Patrol agents possibly need overtime hours?

Travel is one explanation. Agents may need to drive from a remote location to their home base. Bureaucracy is another -- filling out paperwork from an arrest or a search and seizure. Then there is the unpredictability of hunting down suspects, which can take several hours. All of this adds up to $331 million worth of overtime -- more than twice the amount in 2006, at $155.8 million. This, despite the fact that one million arrests were made in 2006, compared to 340,000 in 2011.

But if apprehensions are down, why are so many overtime hours spent trying apprehend the suspect? Have suspects really become that much craftier since 2006? The perennial reason given is that a safe border requires a strong Border Patrol presence. Border Patrol Deputy Chief Ronald Vitiello claims: "[A]gents are responsible for securing the border against all threats. This means that agents must have the flexibility to develop intelligence, act on that intelligence, interact with the community and work with their law enforcement counterparts on illegal activity that has a nexus to the mission." Vitiello does not explain why this is truer now than it was in 2006.

Nor does he explain why Border Patrol agents on the much quieter northern border collect overtime as easily as agents on the busy southern border. Despite an average of three arrests per agent in 2011, Border Patrol agents on the northern border earned a combined $37 million. Security well worth every penny.