Under Analysis- Change of circumstances, change of view

   Five and a half years ago David, the son of friends of my sister, came to “my town” of St Louis to attend college.  After a month or so, he called me (no doubtedly to get his parents to stop nagging him to do so) and we met for lunch.   I had never met him before, and it was a pleasant conversation.   I never spoke to him again.
   Never, that is, until last week.  I was somewhat surprised to get a call from David out of the blue.  I was more surprised, however, for the reason for his call.  
   “I’ve gotten myself in some trouble,” he said, “and I was wondering if you could come to the meeting with my attorney with me.”
   The attorney to which young David was referring is a criminal attorney.  I, on the other hand, concentrate my practice on the business side of things, doing both trial work and transactional work, but practicing no criminal law whatsoever.   I explained this to David.  He said he knew that, which was why he’d contacted the criminal lawyer to represent him, still, he implored, he would feel better if I could come to the meeting with him. Having no real choice in the matter, I agreed.
   It was a meeting that has changed my view of the law forever.
   David had been arrested for possession of cocaine – a little more than three grams of cocaine to be exact – and was facing a felony charge and significant jail time.  However the police report and prosecutor’s evidentiary disclosures were eye-opening.   It seems that David had finished his last class of his graduate MBA program and had gone out on the town with some classmates.  Although his friends were quite inebriated at the time the car was pulled over, the police reported that David, who was driving, was stone-cold sober.  The evidence packet also reported that David had no arrest record and was not known to consort with criminals.  It painted him as a strait-laced, conscientious student, with good grades and a promising future.  It even noted the volunteer work he does with some charities in town.
   Unfortunately, however, the report did not stop there.  It also claimed the substance, later shown to be cocaine, was found under the driver’s seat on which David sat, in the car that David owned.  It also claimed that the evidence would show that David appeared to be aware of its presence when it was found.  When no one else in the car claimed possession of the substance, and David claimed any knowledge of its ownership, he was deemed to be in possession due to his proximity and ownership of the car.  He was charged with a felony and is facing seven to ten years in jail.
   Listening to the attorney go over David’s options, I couldn’t help but feel that I’d plunged into a scene from some sci-fi movie.  It was surreal.    It appears the state of Missouri offers something called “Drug Court” to first offenders that have a drug problem.  Under this program, the accused pleads guilty, goes through a counseling and rehab program, and the plea is erased and the charges dropped upon successful conclusion of the program.  However, to qualify, the accused must have a drug problem.  Since David has no substance abuse issues, he does not qualify.  Unlike the recidivist drug user, strait-laced David has no “get out of jail” free option.   He can either go to trial and risk conviction and long-term incarceration, or he can structure a plea bargain.   Even if he can avoid jail time, any plea bargain will involve long-term probation – and probation is not as easy as it sounds on television.  While on probation, David would have to report to a probation order every month for how many years the probation lasts. He would also not be allowed to leave the area without permission.  Not only could he not leave the country, he could not leave the state.  Not only could he not leave the state, he could not even leave the immediate metropolitan area.   He would have to be regularly drug tested, and would be prohibited from frequenting certain areas and establishments.    Furthermore, for so long as he was on probation, the case would be deemed active, and would appear on all background checks and public databases.  His chances of employment would be significantly slashed.  His days of volunteering with children are over. 
   David denies the drugs were his, but will not say if he knows to whom they belonged.  It was his car, and his seat, so I have no problem with him being punished for his stupidity.   However, sitting in that conference room, hearing the alternatives spelled out to someone who is clearly a good kid and who had such an obviously bright future, was sobering.   Suddenly the concepts of mandatory sentencing and zero tolerance seemed flawed.   Society will be worse off because of the path it will now force this one-strike kid to travel.
   I can’t say that I used to be for or against strict drug laws.  Frankly, the thought of someone I knew being charged with such an offense was so foreign I never even thought about it.    I suspect that if I had thought about it, however, I would have tended to believe that the laws were appropriate and justifiable.    For the most part, that is probably still true.  However a system that cannot see or make room for the specific case, that cannot see that the punishment inflicted in some circumstances damages us all more than the crime, is flawed.
   I have long heard the rumor that the landmark case of Roe v Wade was supposedly influenced by the “fact” that a young woman in the family of one of the then-sitting Supreme Court justices had become pregnant out of wedlock.  I used to believe that, if true, the Justice should have recued himself rather than allow the personal perspective to influence the Court’s decision.   That is also something I now see differently.    It is the judges and lawmakers who act WITHOUT considering what it would feel like if their own families were feeling the effects of the decisions they make, and the laws they enact, that are acting capriciously.   There, but for the grace of god, go us all.

© 2010  under analysis LLC.   Under analysis is a nationally syndicated column of the Levison Group. Charles S Kramer is a principal of the St Louis, Missouri law firm, Riezman Berger, PC.  Comments or criticisms about this column may be sent to the Levison Group c/o this paper or direct via email to comments@levisongroup.com