GETTING CONVICTED: THE PENALTY BOX

GETTING CONVICTED: THE PENALTY BOX

The penalty laws of most states and countries are built on a series of leg­islative acts that happened over a long period of time, and thus, they are complicated and not easily summarized. Possession of modest amounts of marijuana can result in a slap on the wrist in some places and serious jail time in others. The same is true for other drugs, although they are usually taken more seriously, even in very small amounts. Often the prosecuting attorney has some leeway about the level of crime with which to charge an individual. The problem is that it is difficult to be sure of (1) the latest changes in the law, (2) the attitude that the prosecu­tor is taking toward drug crimes, and (3) whether that individual will be charged under state or federal statutes. Thus, conviction for the posses­sion of a small, recreational amount of heroin or cocaine could result in either a modest sentence or a huge fine and a long prison term, depend‑

ing on the exact circumstances and the mood of the legal officials over­seeing the case.

It is important to recall that in some states and in the federal system there is structured, or guideline, sentencing. That means that once an individual is convicted of some drug crimes, the sentence is regulated by law and might not be alterable by the judge no matter what the circum­stances. Coupled with the fact that there is no parole in the federal system (and increasingly in the state systems), a conviction can mean long prison time, even if the prosecutor and judge wish it were otherwise.

Here's an example of how things can go terribly wrong as a conse­quence of alcohol, a prescription drug, and harsh laws. One of us (WW) testifies as an expert in legal cases, and a recent one illustrates how the law, the prosecutor, and the courts can interact to ruin the life of an indi­vidual. A man was at a party with his neighbors outside of his home. He consumed a modest amount of alcohol throughout the evening, but at some point he decided to go to bed and took his nightly medicine, which included the sleeping pill zolpidem (generic for Ambien). Before going to bed, he came back to the party but soon appeared intoxicated. He then prepared for bed and went to sleep. Shortly thereafter, he awoke and came out of the house without his shoes, false teeth, or hearing aid, clearly hav­ing just awakened. But he had a gun, which he had retrieved from his bedside where he kept it. He fired twice as he yelled an obscenity to the individuals at the party. No one was hurt. The police were called, and he was arrested.

The man was charged with aggravated assault, and everyone thought he was intoxicated with alcohol. In the law of most states, that is consid­ered "voluntary intoxication" and thus is not a defense against any charges. His defense team argued that he was not intoxicated with alco­hol, but with his prescribed zolpidem, which is known to produce odd behaviors such as sleep driving, sleep sex, sleep shopping, sleep eating, and so forth. If it were the zolpidem, that would be "involuntary intoxica­tion," and that is a defense against such charges.

The jury heard the case and decided that he was intoxicated by alcohol and was therefore guilty. Now, here is where the disaster occurred. In that state, commission of many crimes (such as aggravated assault) with a gun is a mandatory ten-year sentence. If the gun is fired, the mandatory sen­tence is twenty years. In this case the prosecutor chose to charge the man for each of the six people present at the party, and the law requires that the mandatory sentences apply to each charge and be served consecu­tively. This means the man (who has not been sentenced at this writing)

must, by law, be sentenced to 120 years in prison. The judge has no discre­tion in this case.

This is a terrible example of the interaction of intoxication, harsh laws, vigorous prosecution, and finally, the presence of a gun where a sleepy, intoxicated person could access it and fire it. This man had no history of behavior like this and was a decorated soldier. It is very likely that the zolpidem produced the bizarre behavior, but the prosecutor and jury did not see it that way.

The lesson from this is that if a person chooses to intoxicate himself and then commits a crime, that intoxication is usually not a defense against any crime he committed, no matter how impaired he was at the time of the crime.