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.

DRUG LAWS

DRUG LAWS

The drugs in this book are subjected to a variety of laws. Tobacco and alcohol are legal to possess and use in the United States, as long as you are at least eighteen years old (for tobacco) or twenty-one years old (for alco­hol). The same pertains for many of the over-the-counter cold medica­tions that can be used as precursors of methamphetamine and for dextromethorphan—if you show identification and are at least eighteen years old, you can possess amounts for personal use. Most herbal drugs we discuss (except ephedrine) can legally be purchased and possessed by anyone.

Most of the other drugs are covered by the Controlled Substances Act. According to this federal law, some substances cannot be purchased or possessed by anyone, while others can be used if they have a prescription from a doctor. There are different "schedules" that are based on the dan­ger of abuse, and the medical use. These are described in what follows. These drugs can be purchased and possessed only with an appropriate

license from the Drug Enforcement Administration (DEA) or a prescrip­tion from a physician.

· Schedule I: Drugs in this class have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse. They cannot be purchased or possessed by anyone. Some of the drugs in this category are all forms of marijuana (natural and synthetic), heroin, all serotonin­related hallucinogens (LSD, psilocybin, and all their derivatives), MDMA and all its congeners, and all cathinone derivatives (bath salts). These can be possessed only for research purposes with an appropriate license.

Schedule II: Substances in this schedule have appropriate medical use but a high potential for abuse that may lead to severe psychologi­cal or physical dependence. This includes many opiates, such as methadone, morphine, opium, oxycodone, fentanyl, meperidine, and codeine; some sedatives like pentobarbital; and stimulants that are used clinically, including amphetamine, methamphetamine, and methylphenidate.

· Schedule III: Substances in this schedule have a potential for abuse less than substances in Schedules I or II, and abuse may lead to mod­erate or low physical dependence or high psychological dependence. Drugs in this class include combination products containing some opiates like hydrocodone with acetaminophen; buprenorphine for­mulated with naloxone (Suboxone), which is used to treat opiate addiction; the anesthetic ketamine; and testosterone.

·  Schedule IV: Substances in this schedule have a low potential for abuse relative to substances in Schedule III. Drugs in this category include many benzodiazepine sedatives, including diazepam (Valium), alprazolam (Xanax), and triazolam (Halcion).

·  Schedule V: Substances in this schedule have a low potential for abuse relative to substances listed in Schedule IV and consist primarily of preparations containing limited quantities of certain narcotics.

This list is not comprehensive, but it provides enough examples. The penalties that result from purchasing or possessing them vary by the schedule and by how much you have in your possession, so you should consider this only as an introductory guideline. You need to understand that if you purchase or possess anything in these schedules without a doc‑

tor's prescription, you are breaking the law. In addition, state laws may differ from federal laws. For example, marijuana is scheduled much lower by most states, but many states have broadly liberalized availability for medical purposes (although it is not completely legal in any state).

We have a word of caution about the scheduling of drugs. While this list describes the various schedules for drugs, placement at a given level in the list does not necessarily represent the degree of safety of the drug. For example, marijuana is a Schedule I drug, but it is almost impossible to die from it acutely. On the other hand, benzodiazepines are Schedule IV drugs, and with regular use over a period of time, an individual can become very tolerant to them. At that point, stopping their use can be almost impossible without medical help. If you take one of these drugs, get good information about it and don't depend on the level of scheduling to keep you safe.

Not all psychoactive drugs are controlled substances and, therefore, are on these schedules, but they do require a prescription. In most situations, you are breaking the law if you possess these drugs without a prescription and particularly if you give or sell them to another person.

GETTING SEARCHED

There's this joke about a very large canary: Where does an eight-hundred­pound canary sit? Anywhere he wants to! Likewise, a law-enforcement officer will search just about anywhere if he really wants to do it. Eventu­ally the courts could decide whether the search was legal, but if an officer has reason to believe that a crime is being committed, he may well initiate the search process and let the lawyers settle the issue later.

Laws in the United States on the subject of a search are extremely com­plicated, in part because the legal rights of individuals have been defined over the years by many different court cases. However, there are a few general principles that govern when someone can legally be detained and searched.

First is the "expectation of privacy." The expression "A man's home is his castle" applies here. To search a residence usually requires more strin­gent legal prerequisites than searching elsewhere. Often a search warrant signed by a judge is required, unless there is evidence of a major and immediate threat to public safety.

Next is the automobile. This is the place where most individuals con‑

front the law. An officer will see a traffic violation in progress, stop the vehicle, and then come to suspect that illegal drug activity is being car­ried out. If an officer reasonably believes that a crime is being committed, then he probably has the right to detain the occupants of the car until a legally proper investigation can be carried out. Remember, this officer can stop and hold someone if he believes that a crime is being committed, even if he is wrong!

A court official gave us an extreme example: Say a murder has been committed in the course of a bank robbery and the killer is driving away in a 2007 blue four-door sedan. In the heat of the moment, an incompe­tent 911 operator becomes confused and broadcasts that the killer is leav­ing the scene in a 2003 red pickup truck. An officer down the road sees a 2003 red pickup truck and stops it, removes the occupants, and searches the truck for weapons. He finds illegal substances. Was the search legal? Probably, because the officer had reason to suspect that the occupants were criminals. He was wrong, but with good reason, and the occupants may well be convicted for whatever offense they committed.

There are equally odd outcomes in which convictions are not possible because the officer was found to have no reason to search a vehicle. That is why most officers ask permission to search a car before doing so. That permission usually makes the search legal and any evidence is thus legally obtained. If permission is not given, then the officer may choose to detain the individuals further and call for a drug dog or other assistance to examine the vehicle. This issue then gets very complicated.

The practical side of all this is that a law officer has quite a lot of power to detain and arrest, because the lawmakers have decided it is in the pub­lic good to be able to temporarily detain potential criminals and, to some extent, to ask questions later. Even if an officer is eventually found in court to be wrong, the suspected individuals would have suffered loss of time and perhaps arrest, legal bills, and considerable life discomfort.

Finally, there is the situation when a person is out in public and walk­ing about. This is the least "private" act, and so there is the least expecta­tion of privacy. In this case a law officer has much more leeway in searching a person for the protection of the officer herself and for that of the general public. For example, imagine that an officer sees a person walking down the street in and out of traffic, in an erratic manner. She has the right to stop and talk to that person to ensure that he and the driving public are safe. If in the process of that stop the officer suspects

 that the individual may be carrying a weapon, she could search him by doing a pat down. If in the course of that search the officer feels some­thing she recognizes to be an illicit drug, the officer can seize the drug. Can the person be convicted of a drug-law violation? It is very likely that he can because the search was legal.

The same rules might apply at a concert. Let's say that two students are obviously intoxicated and fighting. An officer moves to stop the fight, the students resist, they are appropriately searched for weapons, and illicit substances are discovered. If the officer chooses to charge them, there is a good probability that the charges will stick.

Do law-enforcement officers have a pathological agenda to harass driv­ers and students at a concert, looking for drugs everywhere? Rarely. Most law officers see their work as a job, not a mission. Think of all the traffic laws that are broken every day and how seldom stops occur. Think of how seldom someone who is innocent of any law violation is stopped in a car or interdicted at a concert. By and large, the legal community just does its job.

Structural Therapy

Structural Therapy

The structural approach to family therapy is most closely identified with Salvador Minuchin, Braulio Montalvo, and associates. Its litera-ture has been covered by at least two reviews5' '" and the principles and techniques appear in four books. '"' [In* It has demonstrated its utility and efficacy with a variety of different kinds of symptoms and problem groups. It has also been applied with a range of therapist types—a prime example being the important and effective work with psychosomatic families by Minuchin et al.'"L'ul in which their 53 cases were seen by 16 therapists who differed greatly in levels of experience and who came from four different disciplines.

The coverage of structural therapy here will necessarily be brief. However, while there are specific features of structural therapy that distinguish it from other modalities, it is important to note that a structural aspect of treatment applies to all therapies and to therapists of all persuasions, as follows: Any therapeutic intervention made by any therapist necessarily includes a structural component. For ex-ample, by choosing to talk to or interact with one family member or another, or with two parents together, the therapist makes a structural decision, whether or not he is aware of it; not to do so would mean that the therapist acts at random with the participants. In focusing his attention on, or making a statement about, a given member (or subsystem) at a particular point, he is, by nature of the power and stat-us vested in him as a therapist, elevating that person and separating him from the other(s). He shares his power by his atten-tion, so that, as Haley°5 states, "A comment by the therapist is not merely a comment but also a coalition with one spouse in relation to the other or with the unit against a larger group- (p. 160). The therapist cannot (and probably should not) avoid doing this in most treatment contexts, so the important point is that he should do it with some plan in mind and remain consistent with his plan. In other words, does his (structural) intervention lead the family toward the change that he would like to implement? Ignoring this notion handi-caps the therapist and can even prove detrimental to treatment.

Relative to, for example, certain strategic approaches that em-phasize change and, on the average, are more likely to treat in-dividuals,'" in structural therapy the focus is less on theory of change than on theory of family.'" The model is not particularly complex, theoretically. Some of the primary concepts are:

1. Attention is paid to proximity and distance between family members and subsystems and these are defined through boundaries, that is, the rules that determine -who participates and how- in the family.'°", P

2.    The extremes of the proximity and distance continuum are enmeshment and disengagement, with most (i.e., -normal's) families and subsystems lying at intermediate points between

the two poles.

3.    A family is described or schematized spatially, in terms

of its hierarchies and its alliances or coalitions.

4.    Problems result from a rigid, dysfunctional family

structure.

Some of the basic structural therapeutic techniques are as follows:

1.  The primary goal is to induce a more adequate family organization of the sort that will maximize growth and potential

in each of its members.'°°

2.  The thrust of the therapy is toward -restructuring" the

system, such as establishing or loosening boundaries, differenti‑

ating enmeshed members, and increasing the involvement of

disengaged members.

3.    The therapeutic plan is gauged against a model of what

is normal for a family at a given stage in its development, with due consideration of its cultural and socioeconomic context.

4.    The desired interactional change must take place within the actual session (enactment), with the family sitting in the

room.68'

5.    Techniques such as unbalancing a system and intensifying

an interaction are part of the therapy.

6.    The therapist -joins- and accommodates to the system

in a sort of blending experience, but retains enough independ-ence both to resist the family's pull and to challenge (restructure) it at various points. He thus actively uses himse/f as a boundary-maker, intensifier, and general change agent in the session

7 . Treatment is usually limited to include those members of a family who live within a household or have regular contact with the immediate family. This might involve grandparents

living nearby, or even an employer, if the problem is work-rela ted.

8.    The function of assigning tasks and homework is usually

to consolidate changes made during sessions and extend them to the real world.

9.    The practice is to bring a family to a level of "health" or -complexity- and then stand ready to be called in the future, if

necessary. Such a model is seen to combine the advantages of short- and long-term therapy.