Texas Criminal Lawyer Blog

At the Sierra Blanca border checkpoint, and at other areas along the United States-Mexico border, vehicle searches and seizures for illegal immigrants or drugs are common occurrences. However, there may be less of a reason for a Border Patrol agent to pull over a vehicle these days. Border apprehensions of illegal immigrants have dropped to just 340,252, one-quarter less than the numbers in 2010 and one-fifth the number of apprehensions in 2000.

Border Patrol officials believe that fewer apprehensions may be due to fewer attempts to cross the border. This may be due to a variety of factors. One factor, of course, is the beefed-up presence of the Border Patrol. This past year, the number of Border Patrol agents reached its highest number ever -- 21,444. The heightened presence has led not only to the greater likelihood of apprehension, but has led to the biggest crackdown on illegal drugs to date: nearly five million pounds of narcotics were caught at the border, an increasing of 20% over 2010. Many people south of the border believe that the heightened presence of Border Patrol agents has made getting smuggled into the country more dangerous than ever, so many don't try it.

Another reason is due to the poor shape of the U.S. economy. Many people who enter this country illegally pay smugglers up to $3,000 to take them across the border. The danger and expense don't seem worth it if there isn't a job on the other side. Add in the fact that the Mexican side of the border has been caught up in drug violence, and the risk may simply be too big to take. Finally, the Mexican economy is actually doing fairly well at the moment, and the overall birth rate in Mexico has declined, creating less of a need to move to the U.S. for a better life. So all of this combined has led to a reduction in illegal border crossings. Still, the number of illegal immigrant apprehensions remains highest in southwestern states, with the biggest hot spots being Arizona (129,118), Texas (118,911), California (72,638) and New Mexico (6,910).

These numbers are likely to convince the Border Patrol that it is on the right path in terms of cracking down on drugs and illegal immigrants. That is not necessarily encouraging when you consider that the Border Patrol's tactics are often heavy-handed and not always lawful. While there have been some encouraging attempts to place limits on the Border Patrol's scope -- such as by preventing them from investigating transit stations without knowledge of a clear threat -- it isn't enough. Too many Border Patrol agents are stopping cars at the border based on prejudice or a hunch -- neither of which amounts to a "reasonable suspicion," the legal standard required. They then come up with a post hoc rationale once they find the evidence that they were looking for -- drugs or people being smuggled. Many of the people they arrest are then taken to the local jail, where it is up to an experienced federal criminal defense attorney to defend their rights.

At a time when it seems as though the Border Patrol's powers are ever expanding, one limit has finally been put in place: Border Patrol agents no longer get free rein to visit airports and other commercial hubs.

It used to be that if a Border Patrol agent suspected drug smuggling or other illegal border activity, they could visit any airport, bus, or train station where the suspect might be. However, this past October, the Border Patrol implemented a policy that prevented agents from visiting commercial hubs unless they had "intelligence indicating a threat." This policy began along the northern border of the United States, but has now been extended to some sectors along the southern border, including the El Paso sector, which includes part of western Texas.

Officials at U.S. Customs and Border Enforcement, which oversees the Border Patrol, state that this will allow the agency to use its resources more effectively. Local "field commanders" would analyze the intelligence to consider threats and risks and are send out to "mitigate these threats accordingly, using a variety of enforcement techniques." One also senses that this system is in place to promote greater accountability. One spokesman stressed: "There has to be op orders drawn up. It has to be run up the chain of command, sometimes almost all the way up to D.C."

Of course some don't like the changes, particularly the National Border Patrol Council. The Council is a labor union that includes former Border Patrol agents. The Council complains that the latest policy is designed to "handcuff the effectiveness of Border Patrol agents" at performing searches and seizures. Because of "bureaucratic red tape," Border Patrol agents cannot get authorization to operate in certain areas, giving criminals "a free pass to exploit these transit systems."

Yet if you asked people at transit hubs in Texas, you might find that the new policy has made very little difference. Employees at a Greyhound bus terminal in Laerdo, Texas claimed that Border Patrol agents still regularly appeared. One passenger noted that they gave him a "bad feeling," even though he was a citizen and otherwise law abiding.

Medical marijuana has been in the spotlight this past month, with a focus on its shaky legality. One of the main reasons is because the federal government, which was tolerant of state medical marijuana laws for the past couple of years, has started cracking down in California. Federal government officials argued that they were only targeting those who took advantage of the medical marijuana law to sell the drug for profit. Now advocates of medical marijuana are suing the federal government.

Anti-medical marijuana states such as Texas are no more tolerant of other states' medical marijuana laws than are the Feds. Under Article IV of the U.S. Constitution, the "Full Faith and Credit Clause," states have to respect the "public acts, records, and judicial proceedings of every other state." However, there are limits to this respect -- such as if the laws of one state conflict with the laws of another state. Therefore, states do not necessarily need to apply another state's conflicting laws when deciding issues to which their own laws speak. Here in Texas, this has meant direct conflict with other states with medical marijuana laws, and with "prescriptions" written by doctors in California or Oregon or other states in which marijuana is prescribed legally.

Section 481.116(a) of the Texas Health and Safety Code states: "Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice." Penalty Group 2 under the Code includes certain forms of marijuana. Someone who commits an offense under Section 481.116(a) faces punishment ranging from a state jail felony to imprisonment in the institutional division of the Texas Department of Criminal Justice for life-- depending upon the amount of drug in possession. It has been my experience that California medical marijuana tests out as hashish-a second degree felony in Texas.

Texas prosecutors claim that Section 481.116(a) prohibits all possession of marijuana -- even if it was obtained through a valid prescription in a state where medical marijuana is legal, such as California or Washington. Therefore, if a police officer found medical marijuana during a vehicle search and seizure, the owner would be left alone in California, but would be treated just like someone using recreational marijuana in Texas. Yet does Section 481.116(a) really criminalize prescription marijuana from states where it is legal? Given that Texas itself does not legalize medical marijuana, could its silence imply that Section 481.116(a) criminalizes out of state prescriptions?

So far, evidence suggests overwhelmingly that the Texas approach is to prosecute people with medical marijuana. Last year, for instance, two Texans were charged with felonies for possession of medical marijuana in hash and pill form from a California dispensary. One suffered from severe asthma, while the other was a quadriplegic. Meanwhile, Texas legislators have successfully banned K2, a synthetic substance similar to marijuana.

Most experienced federal criminal defense attorneys deal with their fair share of illegal vehicle searches and seizures. In Sierra Blanca, near the United States-Mexico border, most of these searches and seizures come in the form of Border Patrol agents stopping vehicles and seizing drugs and other property inside without justification. These searches violate the Fourth Amendment and a good attorney can often get the evidence thrown out in court. However, what if the one that violates the Fourth Amendment is your car's GPS system? The Supreme Court will have to decide after it hears arguments on United States v. Jones November 8th.

The main issues in United States v. Jones are whether the Constitution permits police officers to install a tracking device in someone's car without first getting a warrant or the car owner's permission, and whether police can legally follow a car's location through the tracking device. In Jones, the facts are as follows: in 2004, a Safe Streets Task Force of the FBI and the Metropolitan Police Department began investigating Antoine Jones, owner of a Washington, D.C. nightclub, for cocaine trafficking. After trying several different surveillance techniques, the agents got a warrant from a federal judge authorizing them to covertly install a GPS system on Jones's car. The warrant authorized the agents to install the GPS system within 10 days and only within the D.C. area, but the agents waited 11 days and did not install it until Jones's car was parked in a public parking lot in Maryland.

The GPS system gave accurate information on the car's whereabouts within 50 to 100 feet and generated information only when the car was moving. The GPS system provided data about the car's location, but not about the car's driver or any of its passengers. Using the GPS system and other surveillance information, agents were able to track Jones to a Fort Washington stash house. After obtaining warrants, they uncovered $70,000 from Jones's car and large amounts of cocaine, firearms, and other drug-related goods. Jones was charged by a federal grand jury with conspiring to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of federal law. Jones sought to suppress evidence obtained through the GPS system.

It's easy to say that any tracking system installed in someone else's car without their knowledge is bad, but the facts show that circumstances are a little more muddled. Police used other (supposedly legal) methods of obtaining information, and did get a warrant before installing the system (even if they basically ignored its restrictions). On the other hand, for police to go to the act of installing a device on your vehicle seems like a great intrusion -- too great.

The Supreme Court has been tolerant of tracking devices in the past, namely in United States v. Karo, where it stated that a beeper in a can did not constitute a search and seizure. However, in Karo the can was accepted knowingly and brought into the house, while the agents installed the GPS system without Jones ever being aware. It would be nice for the Supreme Court to take a hard line against tracking devices, in a pushback against ever-eroding privacy standards. However, this Supreme Court over the past several years has been far too willing to erode personal liberties in the face of security.

Back in July, this blog discussed a disastrous attempt by the Bureau of Alcohol, Tobacco, and Firearms (ATF) to track down Mexican drug cartel leaders. They let 2,000 guns be smuggled across the border, thinking that they could keep track of each one, only to lose most of them and be indirectly responsible for 150 murders, including a Border Patrol agent's. Now the ATF is trying to redeem itself with a new leader, B. Todd Jones. Jones is a former U.S. Marine who once commanded a military police unit. His goal is to get the ATF to focus back on stopping violent crime, rather than the two big federal investigations taking place in Washington under the watchful eye of House Republican Darrell Issa.

The ATF's general mission is to prevent illegal use of firearms and explosives, and the smuggling of alcohol and tobacco products. It is one of many active federal agencies along the U.S.-Mexico border, sometimes involved in house and vehicle searches and seizures that are possibly illegal. While many of its aims are worthy ones (such as stopping violent crime), it has a somewhat checkered history. Besides the total failure that was its "Fast and Furious" program, the ATF was also part of the tragedy at Waco, Texas in 1993, when agents held a 51-day standoff with the Branch Davidian sect, ending with a fire that killed 76 people. At the same time, it is hard to fault the ATF for trying to regulate firearms, which are so numerous and unregulated that even Al Qaeda instructed its members to go purchase weapons at gun shows.

It is too early to know what to expect of B. Todd Jones's leadership. It certainly can't be any worse than his predecessors'. Even now, crimes continue to be committed with weapons connected to the "Fast and Furious" program -- the most recent in Arizona, where a Mexican national committed aggravated assault on a police officer. If Jones succeeds in cleaning up the ATF, it would be a good thing for all of us. However, it would be even better if he could do it without violating people's rights. The temptation is there: the ATF needs to look responsible, find the missing weapons, and prevent catastrophes like "Fast and Furious" from ever happening again. So they become even more aggressive with their searches, leave no stone unturned and no house or car unexplored -- even if that means entering stopping a car without reasonable suspicion, searching a house without an adequate search warrant, and questioning suspects without first informing them of their Miranda rights. With his military background and history cleaning up the Minnesota District Attorney's office, Jones sounds tough, but is he tough enough to stand up to potential abuses?

Criminal defense attorneys in Texas and other border states see too many cases where criminal suspects must answer charges based on evidence that the police gained illegally. A skilled criminal defense attorney can do his best to get illegally obtained evidence suppressed, but it is always better when we don't have to.

Recent news headlines have reported the Hudspeth County judge's refusal to allow Willie Nelson to plea to a lesser charge on his pot bust in Sierra Blanca, Texas, the notorious border patrol stop on Interstate 10 about 100 miles east of El Paso.

County Judge Becky Dean Walker, who is not a lawyer (quite common in small counties) is entitled to reject a plea just like any other judge; however, she may not impose a sentence on her own. Rather, she must allow the Defendant to withdraw his plea and the case goes back on the docket.

Kit Bramblett, the County Attorney, told me that he recently took the case to the Justice of the Peace and filed it as a Class C misdemeanor, the lowest misdemeanor in Texas, for the same fine amount he had previously recommended to Judge Walker, who had rejected it. A County Judge can hear a class C at the court's discretion; in this case, Judge Walker rejected the plea offer, and Mr. Bramblett just walked it over to the J.P. and filed it in the lower court, which is set up to take care of traffic tickets, bad checks, and, in this case, the one of greatest entertainment personalities in the world.

Willie may pay the fine just like a traffic ticket. His presence in court is not required.

The lesson here is that a judge cannot tell a prosecutor what to charge or how to charge; all a judge can do is accept it or reject it. In this case, the County Attorney had the option of taking the case to a lower court, which is exactly what he did.

Sources:

Willie Nelson plea rejected in Marijuana Possession case

In what signals a welcome trend, Texas is closing down its first prison. Not only will the state close down the Central Unit in Sugar Land, but it will also shutter three juvenile detention centers. The reasons have to do with budget cuts, as well as a shift from prosecution to rehabilitation for drug use.

In 2005, Texas began to make changes to its sentencing procedures, shifting money the from tough-on-crime approach to rehabilitation and prevention programs. This slowed the number of incarcerations and led to a 12.8% drop in the number of violent crimes since 2003. Since then, the state has seen its crime rate drop to a 38-year low and has saved $2 billion that would have otherwise been spent on building new prisons.

By closing Central Unit and the juvenile detention centers, Texas has become part of a national trend of prison closure. The Central Unit closure in particular has a special significance. Opened in 1909, it was made famous in the folk song "Midnight Special" sung by inmate Huddy "Lead Belly" Ledbetter. Lyrics include "you'd better walk right" or else "Benson Crocker will arrest you, Jimmy Boone will take you down" and "you're Sugar Land bound." Since Central Unit's opening, the surrounding farmland has been replaced by suburban neighborhoods. Since prisons and suburbia don't mesh, the prison's days were numbered. Lawmakers finally decided to close it to save $25 million over two years.

It is exciting to see that Texas's new approach is paying off. A Texas criminal defense attorney knows how frequently clients' freedom can be taken away based on trivial crimes. The state and federal sentencing guidelines have traditionally been tough on repeat offenders, even for nonviolent crimes. Texas's juvenile justice system has often served young people poorly, ignoring constitutional protections and punishing them harshly for minor crimes. Furthermore, prison time is hardly the deterrent that many tough-on-crime advocates believe it to be. People who go to prison often become hardened and are highly likely to return to crime once they are released. Meanwhile, prison conditions can be highly dehumanizing. In Brown v. Plata, the U.S. Supreme Court ruled in favor of federal judges who found that California's overcrowded prisons violated the Eight Amendment ban on cruel and unusual punishment. These judges had ordered the release of 46,000 inmates. While no one has suggested that Central Unit's conditions were so brutal, the prison's age was making it more expensive to maintain. Its 900 inmates have been transferred to other facilities.

There has been so much dismal news about criminal suspects -- usually about how their rights have been chipped away little by little. To hear that Texas is making progress by using a less punitive approach is very welcome news indeed. Coupled with the news that states across the country are rethinking their sentencing guidelines, maybe it is finally safe to say that lawmakers are turning away from the tough-on-crime approach for good. That is something that in the long run could benefit Texans and the country as a whole.

Willie Nelson was in the news again recently. As reported several months ago, the famous country singer was arrested in 2010 after a Sierra Blanca checkpoint search and seizure for possessing six ounces of marijuana. He was later charged with a misdemeanor. Most people in his position are turned over immediately to the Hudspeth County Sheriff's Office, where they might remain in the Hudspeth County jail for 48 hours before seeing a Justice of the Peace and having a bond set.

Nelson recently sought a plea deal, where he would plead guilty to the violation and pay a $500 fine for possession of drug paraphernalia. When the prosecutor floated this idea to Hudspeth County Judge Becky Dean-Walker, she rejected it. Willie Nelson shouldn't get special treatment, she said- claiming that County Attorney Kitt Bramblett wouldn't make this deal with anyone else. In fact, my experience has been that most people with a good lawyer don't end up with jail time, but rather pay a hefty fine and face conviction for a class B misdemeanor.

In Nelson's case, the ball is still in Bramblett's court, because it his responsibility to prosecute misdemeanors in Hudspeth County. That is, it is the County Attorney's job to see to it that the prosecution moves forward -- if not, the case could be dismissed in a few years for lack of prosecution. However, the notoriety of Willie Nelson's arrest makes that prospect a remote one indeed.

The continuation of Willie Nelson's story comes at an interesting time. The federal government recently declared that marijuana has no health benefits. The Department of Justice claimed that "marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision." This might come as a surprise to medical marijuana users in California and the 15 other states that have made it legal. A decade ago, medical marijuana supporters asked the federal government to reclassify cannabis, claiming that it helped treat glaucoma and ease the side effects of chemotherapy. In its latest decision, the government claimed that marijuana had "no accepted medical use" because no adequate studies had been performed of its health benefits. Well that settles everything.

The federal government is in an increasingly awkward position. For decades, it has been locked into the mentality that no drug is a good drug. Mild drugs like marijuana are just a gateway to more lethal drugs. Yet among the general public, acceptance of marijuana use is growing. Many of those who have smoked marijuana during a serious illness have testified to its benefits, while managing to not become serious drug abusers in the process. Many of those caught at border checkpoints like Sierra Blanca or in police raids on their homes did not pose a danger to anyone else. They were not violent or psychotic -- not even Willie Nelson. Yet the Drug Enforcement Administration and the Department of Justice can't just give up decades of strongly held belief. It is easier to force people who dabble in drugs to hire a federal criminal defense attorney to keep them out of jail than to rethink their punishment.

This is not to say that marijuana is harmless and we shouldn't be cautious. Marijuana can have harmful effects on an individual -- but about how many over-the-counter and prescription drugs could we say the same? Studies crop up all the time showing how seemingly "safe" (DEA-approved) drugs harm our bodies. Before too long, there will be a study proving that illicit drugs are safer than some of the most common prescription medicines.

In addition to state "three-strikes" laws, there is a federal counterpart called the Armed Career Criminal Act of 1984. It is meant to provide sentence enhancements for those with prior convictions involving firearms. If you get three such convictions, the ACCA kicks in. The ACCA provides for a 15-year minimum sentence on top of the sentence for the crime itself if you have three prior convictions for a "violent felony" or "serious drug offense," each of which carries a 10-year maximum sentence.

Recently, in McNeill v. United States, the Supreme Court examined the question of whether the ACCA applied even to crimes where the state legislatures later reduced the sentence. McNeill had been convicted of drug trafficking in North Carolina six different times between 1991 and 1994. At the time of conviction, each crime had a maximum sentence of 10 years. In 1994, North Carolina reduced the sentence for selling cocaine to 38 months and the sentence for possessing cocaine with the intent to sell to 30 months. McNeill argued that since the state reduced the maximum amount of time from 10 years, the ACCA no longer applied. In a unanimous decision, the Supreme Court disagreed, holding that the ACCA did apply.

The Court looked at the plain language of the Act and determined that what mattered was the offense at the time of conviction, not at the time of federal sentencing. If when McNeill was convicted, the penalty was 10 years, then he could not avoid the ACCA just because the state legislature later reduced the penalty.

It is hard to disagree with the Court's logic, which is that if they adopted McNeill's argument, some with prior convictions could watch them disappear entirely if the state legislature chose to reduce penalties for the crime. There needs to be some consistency in sentencing, or else law enforcement and the convicted alike will never feel sure of where they stand. Even so, this situation reminds me a little too much of the Federal Sentencing Guidelines. You have a crime (usually involving drug possession) that may not be terribly harmful in the grand scheme of things. Yet the penalty is harsh and unyielding. You may ask whether possessing cocaine (even with the intent to sell) is really on the same level as a violent felony. No matter; for the purpose of sentencing, they are one and the same. At least the North Carolina legislature realized that cocaine possession did not merit such a harsh punishment and reduced it accordingly. Unfortunately, it did so too late for McNeill.

Sentencing needs to be consistent, and to carry weight. However, it is unfortunate that in the case of drug possession especially, there is so little room for sensible reconsideration of the penalties. Many have begun to rethink the war on drugs and the laws that have resulted from them. It could be decades, though, before we start to see widespread changes in, or even revocation of, drug laws across the country. Until then, those facing a drug conviction can only hope that a strong federal criminal defense attorney can reduce their charges before they face a sentence subject to the ACCA.

Last week, law enforcement conducted the biggest immigration raid in Midland County, Texas's history. Almost 40 people were taken into custody after a raid on an apartment complex construction site in Odessa. Eighty officers from different agencies were involved, including Immigration and Customs Enforcement (ICE).

Workplace raids have declined 70% since the end of the Bush administration, but are still, obviously, taking place. They are part of President Obama's ongoing efforts to show his dedication to enforcement and pave the way for comprehensive immigration reform. However, raids like this are more likely to make border security advocates dig in their heels. Why endorse a path to citizenship for illegal immigrants when law enforcement does such a fine job finding and deporting them?

At first glance, it's amazing how the landscape has changed since just 2007, when a comprehensive immigration bill seemed likely to pass. Even more amazing is how much has changed since 1986, when amnesty was the conservative position -- or a conservative's position. President Reagan signed the 1986 Immigration Reform and Control Act, granting amnesty to three million illegal immigrants. Why was he willing to legalize their status then, when politicians to his left are afraid to do so today? The answer lies in the details. If you look closer, you discover that the IRCA was tough on immigration as a whole, and immigration laws have grown harsher over the years.

While the IRCA granted amnesty to illegal immigrants, it also lowered the legal standard for finding an employer guilty of hiring illegal labor. It also introduced penalties designed to discourage employers from hiring illegal immigrants. However, the penalties had little effect, and illegal immigrants in the United States rose from three million to 12 million in the early 2000s. Other "tough on immigration laws" followed, especially after September 11, 2001. These included the 1996 Illegal Immigration Reform and Responsibility Act, which added civil penalties for documents fraud, and the 2005 REAL ID Act, which required states to meet certain security standards before issuing drivers licenses and identification cards.

In late 2005, the House of Representatives passed one of the most punitive immigration bills yet, classifying illegal status as a felony. Why 2005? It might have been a combination of lingering fear after 9-11 and a growing awareness that illegal immigrants were no longer staying in border states like Texas, Arizona, and California. Communities across the country experienced an influx of newcomers, and many did not like it. Meanwhile, the Senate tried to pass a Comprehensive Immigration Reform Act in 2006 and 2007 that provided a "path to citizenship" for illegal immigrants who were otherwise law abiding. It had the backing of President Bush and many Senators, but failed to even reach the Senate floor for a vote. Instead, Congress settled for passing border security laws, such as the Secure Fence Act of 2006, creating the border fence and greater patrol force that we know today.

This recent article discusses a push by conservatives to change criminal sentencing guidelines. The guidelines in question apply only to the state of Arizona, but this issue involves Texas and every other state in the union. Conservatives are realizing that mandatory sentences, modeled after those of the Federal Sentencing Guidelines, often lead to harsh, unfair, and absurd results.

For those unfamiliar with the Federal Sentencing Guidelines, here is a refresher. Up through the 1970s, criminal sentences were determined by judges and reviewed by parole boards, based on individual circumstances. But criticism of uneven sentencing and rising crime in the late 1970s paved the way for the United States Sentencing Commission and the Comprehensive Crime Control Act of 1984. The Commission created a Sentencing Guidelines that dictated the length of a sentence by the type of crime and the defendant's criminal history. Suddenly judges had to put aside their wisdom and experience to issue a sentence already set in stone. Defendants without a strong federal criminal defense attorney had little hope of evading a harsh sentence. United States v. Booker (2005) changed the rules so that the Guidelines were advisory, not mandatory, but they still hold great influence even today.

While the federal guidelines were being developed, states such as Arizona and Texas rushed to create their own sentencing guidelines. Like the federal version, the state guidelines often looked at the type of offense and the defendant's history. The state sentencing guidelines included offenses not listed in the Federal Sentencing Guidelines. And soon, like federal sentencing, state criminal sentences began to produce harsh, unfair, and absurd results.

Much has been made of the disparity in federal drug sentences. Until 2010, there was a 100:1 disparity in the sentences for possession of crack and powder cocaine. Crack cocaine was more "powerful," it was reasoned, so its users deserved more jail time. Never mind that the difference in power was the source of continuous debate. While it's fortunate that the 2010 Fair Sentencing Act reduced the disparity, other absurdities remain. Likewise, the article notes that an Arizona woman spent nearly two years in prison for her first DUI because she had previously been convicted of marijuana possession. Arizona imposes mandatory sentences for nonviolent crimes such as drug possession and DUIs. Its guidelines are especially harsh on repeat offenders can even if their past crimes were nonviolent.

To their credit, conservatives who support tough-on-crime measures think that the Arizona sentencing guidelines need to be reformed. Other states, such as Texas, have begun to reform their procedures as well. In 2007, Texas started a program that created an alternative to prison time by allowing offenders to substitute probation plus time in a substance abuse program. The Texas Public Policy Foundation has a Right on Crime project that is currently reviewing mandatory sentences.

President Obama made an early 2012 campaign stop in El Paso to make the case for comprehensive immigration reform. The time was right, he claimed, because he kept his promise and secured the U.S.-Mexico border. This includes doubling the number of Border Patrol agents since 2004, nearly completing the border fence, tripling the number of intelligence analysts, and setting unmanned aerial vehicles on the border. His policies have resulted in more drugs, currency, and weapons being seized than ever before.

The president's words deserve a grain of salt, since this blog has previously discussed the holes in border security. Even so, border security advocates' embrace of more and bigger barriers is baffling on several levels. Their most often-cited reason is to stop illegal immigrants - the regular economic kind, and the could-be-a-terrorist kind - from entering the country. Yet illegal crossings have actually declined over the years, to less than half of what they were in 2005. To listen to some, you would think that they had doubled. As for terrorists illegally crossing the U.S.-Mexico border, no conclusive evidence has ever been established.

There are some real border problems. Drug smugglers still find their way into the U.S. Conversely, Guns from the U.S. flow into Mexico. Both have led to violence and the destruction of lives. Yet you don't hear border security advocates discuss that very much. In fact, this beefed-up border security has become part of the problem. When the Border Patrol is not looking the other way, its members may be overzealously stopping and searching vehicles belonging to otherwise law-abiding Americans. These people then must find a criminal defense attorney to help fight the federal crimes they have been charged with.

Why shouldn't these practices matter to border security advocates, who claim to care about individual rights and the American way of life? In fact, Citizens are being harmed by these practices. Their rights are being ignored at so-called border stops such as Sierra Blanca, Texas. People are spending time in jail and are charged with felony drug possession for small amounts of drugs or marijuana as a result of border patrol agents and local law enforcement abusing their authority. This should be a big deal, but it's not.

Immigration is an important issue. But the worst fears of border security advocates do not seem to equal what is happening to American citizens every single day. Perhaps they will be satisfied by President Obama's security measures and finally turn their attention to abuses at the border. More likely, though, border security advocates will just demand more security, and the issue of Americans' rights at the border will continue to fall by the wayside.

Last month, Border Patrol agents seized 160 pounds of cocaine worth $5 million from a truck at a Sierra Blanca, Texas checkpoint. They also seized 50 pounds of marijuana, $150,000 in cash, 25 pounds of cough syrup, and a loaded gun.

This is the type of story that makes people feel good when they read it. It makes them think that the Border Patrol is really doing its job, that its methods must be working. Yet while the Border Patrol may sometimes find drugs in a way that does not trigger a Fourth Amendment challenge, this blog has pointed out the ways in which law enforcement has used ridiculous post-hoc reasons for searching and seizing from a vehicle. There is too much opportunity for abuse. People should not have to worry about their privacy every time they cross the border.

Just how effective is the Border Patrol anyway? The U.S. border with Mexico is 2,000 miles long, and the Border Patrol has 20,500 agents guarding 700 miles of it. It is the most frequently crossed border in the world, with 350 million crossings per year. A lot of the action takes place in Sierra Blanca, where Interstate 10 meets a border checkpoint. Yet with so many crossings and so few miles guarded, the Border Patrol can't hope to ever scrutinize all border activity. So many drug smugglers find ways to evade the checkpoints and get their cargo across the border. (That does not even include the smugglers who make deals with corrupt agents for safe passage across.) Maybe to overcompensate for what they can't control, Border Patrol agents find reasons to stop and search ordinary citizens at checkpoints. Many of these people probably showed no sign of suspicious behavior. Yet all at once, they find themselves at a state or federal courthouse, facing the threat of prison time.

People in Texas who are arrested after a car search should not attempt to represent themselves. They should find an experienced federal criminal defense attorney right away. Only a federal defense attorney with years of working on search and seizure cases can give them the help they need. And the next time you read about the Border Patrol finding drugs, remember that there is another, less rosy, side to the story.

Regular readers of this blog will recall that I do a lot of work in Sierra Blanca, the infamous border stop that continues to net few major criminals but a lot of weekend warriors, most of whom had never seen the inside of a jail before their arrival at the checkpoint.

For a long time, Sierra Blanca has existed largely under the radar of our national media, but that all changed last year when legendary vocalist, activist, and pot aficionado Willie Nelson was caught up in its net and was charged in Hudspeth County,Texas with possession of six ounces of marijuana, a state jail felony. But Willy, being the class guy he is, got the charge lowered to a class B misdemeanor, (2oz. or less), by being, well, Willie. My sources from within the Sierra Blanca system report that Willie volunteered to perform at a law-enforcement shindig later this year. That remains to be seen.

In the meantime, Nelson's Sierra Blanca arrest has helped to galvanize a farflung network of people who are working daily to bring about the legalization of small amounts of marijuana for personal use. The problem is that the subject remains too taboo for the mainstream media, as the mere mention of legalization can quickly turn political, and then deteriorate into absurdity.

But it is deeply important to recognize what these efforts are not about: they are not, as many would have you believe, the plaintive cries of a bunch of twentysomethings who just want to kick back with their blacklights and bongs. on the contrary, By far the most compelling argument in favor of legalization is that cannabis is a unique and effective palliative drug, one that is often the only effective way to combat nausea and the crippling discomforts of AIDS and cancer treatment. Further supporting the cause of legalization is the fact that marijuana is statistically far less dangerous than alcohol, and that the only crime committed when a patient or user lights up is a victimless one.

These commonsense arguments have finally gained some traction in recent years, with both sides of the political spectrum getting into the game. Left-leaning activists believe that too much money and resources are being poured into criminalizing otherwise harmless people, while right-leaning activists hate the nanny-state aspect of these highly punitive laws. I recently had the unique opportunity to take an informal poll of members of a Texas banker's organization, who shared my hotel lounge one evening in San Antonio. The vote wasn't even close: the bankers were parents, and they were uncomfortable with the spector of their kids being busted for small amounts of pot by adrenalin-junky cops.

It was perhaps inevitable, then, that the Tea Party would begin organizing its own efforts to address our discredited national drug policy. A number of recent news stories have documented the evolution of this singular movement, which is being dubbed the Teapot Party. (Get it?) Like you, I am curious to see where this effort will lead, and whether the broad array of support it enjoys will ever translate into meaningful legislation.

Until that time, I will continue doing what I do best: defending my clients vigorously from our unjust federal drug crime laws -- and calling Sierra Blanca my home away from home.

By now, most reasonable people would agree that our nation's War On Drugs has been a dismal failure. This "war" has sent incarceration rates skyrocketing, victimized millions of young people with zero violent tendencies, and criminalized medical patients coast to coast suffering with AIDS, cancer and chronic pain. The costs have been exorbitant, the gains few and fleeting. The true beneficiaries of this war are the politicians who earn machismo points for trumpeting "zero tolerance" laws to grab further enforcement funding.

One personal cost that doesn't always earn as much press, however, is the way our War On Drugs can tear families apart.

Recently I read a story that helped crystallize some of these points. A mother in Pennsylvania had her newborn daughter taken away from her by caseworkers and police when the infant was just three days old. The cause? A poppyseed muffin. Yes, it seems the mother, Elizabeth Mort, popped a false positive on a hospital drug test because she ate an offending muffin earlier in the week.

Let's take a few points in order here. First, there is the insanity of what actually happened. This particular hospital has a standing written policy to drug test all new mothers. This may make sense to you, or it may not. (See below.) Either way, what happened next was simply Orwellian - hospital staff, upon seeing a false positive at an astonishingly low level, promptly reported the mother to Lawrence County Children & Youth Services. The staff did this without telling Ms. Mort about her test results, without asking her any questions, and without so much as an interview to be sure they understood the circumstances. Needless to say, this was a gross violation of Ms. Mort's rights as a new parent.

But the larger point is that the policy itself is deeply flawed. Of course nobody wants a truly stricken heroin junkie to take a child home from the hospital. But the mere presence of any drugs in the system, including marijuana, is apparently enough to set the wheels in motion. This despite the fact that there is no data that suggests that anyone who has ever taken drugs is unfit to be a parent. The fact is that not all addicts are abusive parents. When compared to foster care, there is some value to the notion that many addicts may be able to effectively shield their children from the chaos of that narcotic burden while they seek treatment. Practices such as these are completely antithetical to the cause of reasonable drug policy, and the laws that support them deserve aggressive criminal drug attorneys on the other side of the ledger.

One final excellent point from the article:

And a mother who is actually on drugs and is aware of Jameson's practice of reporting mothers to child protective services based on one failed test? She's much less likely now to seek any prenatal care for her unborn baby, making the policy extremely counterproductive if the goal is to protect a child's life and not simply to sell some drug tests and provide an excuse for the local child services bureaucracy to demand more funding.

Revising our nation's absurd policy on drugs is an idea that spans the political spectrum. Left-leaning people want to ease the burden on at-risk kids who are being thrown in jail for victimless crimes. Conservatives and libertarians rightly see "war" is an expensive encroachment on our privacy, our agency, and our free will. I work hard to defend the victims of our nation's War On Drugs because Texas drug criminal defense is what I know best, but make no mistake: there are plenty of families out there getting no help at all.