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If there is one book every prosecutor, LEO, and judge should have to read it is The Economics of Prohibition by Mark Thornton (available for FREE here). TEOP explains, with a precision and clarity that can only be found in economic theory, the set-your-watch-by-it predictability of Prohibition's horrible externalities. That is, what terrible things happens every time a government chooses to make popular recreational drugs illegal. (Spoiler alert- cartel violence, black markets, mass incarceration, corruption, inter alia). Today's dreadful consequence of prohibition is the "potency effect".

From the brilliant Mark Thornton via mises.org-http://mises.org/daily/4971

Economics provides the best explanation for the surge in popularity of meth despite the disproportionate danger of its use. Increased enforcement of drug laws, backed by increased penalties, led to higher prices and decreased availability of preferred recreational drugs such as marijuana and cocaine. High prices and periodic shortages led drug dealers and consumers to find substitutes -- ersatz goods that would produce similar results but at a lower cost.

The scourge of crystal meth is another example of the "potency effect" or what has been called the "iron law of prohibition." When government enacts a prohibition, increases enforcement, or increases penalties on a good such as alcohol or drugs, it inevitably results in substitution to more adulterated, more potent, and more dangerous drugs.

In the case of crystal meth, authorities have tried to restrict the supply of the basic ingredient, which is a common component in cold medications. They required that such medications be sold in pharmacies from behind the counter and limited to a one-month supply. More recently, some states have required that buyers be tracked electronically to prevent purchasing from multiple pharmacies.

In response, meth producers have recruited large numbers of intermediaries, including their friends, relatives, college students, and even children and the homeless. These recruits buy the cold medicine and can sell it to the labs for a 500 percent profit. A review by the Associated Press shows that thousands of people are being lured into this drug trade. "Law enforcement was surprised," St. Louis County Sgt. Tom Murley said. "People that normally wouldn't cross the line are willing to do so because they think it's such a sweet deal, and because of the economy."

Fortunately, in addition to answers and explanations, economics can show us the path away from this now decades-old trend -- the trend toward more potent and more dangerous drugs. After all, a certain portion of society will, regardless of legal restrictions and enforcement, choose to use drugs. So the solution is quite simple, really: end the drug war. Less enforcement and lower penalties would reduce the price of marijuana and shift demand from crystal meth back to marijuana, a drug that has few of the problems associated with meth.

When a meth lab operator (MLO) is apprehended, our criminal justice system puts all responsibility, punishment, and impetus to change behavior on the MLO and his smurf friends. During punishment the government stands up with a smug sense of bueracratic moral certainty and declares said MLO a scourge on society, solely responsible for his actions, and worthy of a lengthy sentence. The defense lawyer tries to rehab the client, and seek mercy on this individual for his choices. More often that not, MLO goes away for a few years or decades, taxpayers foot the bill, a new MLO takes his place, and the perpetual assembly line of drug arrests, prosecutions, and convictions continues unabated.

If the MLO is responsible for cooking the ice, shouldn't the DEA be accountable for creating the ice industry? I'd love to argue, but probably never will, that the MLO and his merry band of smurfs wouldn't be here if we had ended this drug war nonsense years ago, and let market forces provide the preferred substances in a regulated market environment. But for the government's drug war, crystal meth wouldn't have a market, or even have been invented in the first place.

Want to end smurfing, backyard meth labs, and the inane Sudafed registry at CVS? Regulate and tax the "preferred recreational drugs". Otherwise don't act surprised when a new potent drug comes down the crack/ice pipeline. It's not just "evil" dope cooks who deserve society's wrath, it's the failed policies that guarantee a future supply of dope cooks.

Lawrence Boyd is a great guy, and a badass Dallas DWI lawyer. He literally wrote the book on Texas ALR hearings. The best DWI lawyers in Texas pay to hear Mr. Boyd speak at seminars.

I had the pleasure of hanging out with Lawrence at a conference last summer (SPI), and am proud to have him as a colleague, and facebook friend.

Facebook is how I got Lawrence thoughts on the Lujan disaster. Larry wrote out the following, as a comment to my shameless facebook link to my own blog post on Lujan vs. State.

Before you read Mr. Boyd's insight, you must be forewarned that his thoughts and writings are the intellectual property of Knowles publishing, and not to be reproduced without their consent.

A type of roadblock to verify drivers licenses and vehicle registration may be permissible, but checkpoints to detect evidence or ordinary criminal wrongdoing are not. During the direct-examination in Lujan, the "AO" stated that the officers were just there to check drivers licenses; however, on cross, he stated that the purpose of their unit was to take care of racing, DWI, traffic enforcement, narcotics, and other particular tasks. They were present for any violations they would see.

In the trial court in future cases, we have to have the court issue specific findings of fact and conclusions of law that the Judge did not believe that the roadblock was there for the primary purpose of checking for licenses but that the presence of dogs and other admissions by the police undermined the credibility of the officer to the extent that the trial court concluded that it was an impermissible "general purpose roadblock.".

When I spoke @ the Stu Kinard Advanced DWI course on 11/18, 2010, I warned everyone there that, since this appeared to be a settled area of the law, then why would the Court of Criminal Appeals grant a petition in this case?

As you point out, our Court appears to be on an activist binge to eliminate our Fourth Amendment rights again. So much for judicial self-restraint. If you haven't read the Foster case, they also greatly reduced the State's burden to show reasonable suspicion of DWI by requiring only "some minimal level of objective justification" for the stop. I expect more bad news forthwith.

Judge Meyer's dissent in Lujan is worth reading because The Supreme Court of the United States has "never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, 412000).

The checkpoint in Lujan included a K-9 unit. So, if the primary purpose of this checkpoint program was, as the majority concludes, to check drivers' licenses and insurance, then the deputies did not need drug-sniffing dogs. This was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based upon the facts of this case, Judge Meyer disagreed with the majority and would have concluded that the primary purpose of the checkpoint was to "uncover evidence of ordinary criminal wrongdoing," in contravention of the Fourth Amendment.

The legislature has batted around the idea of DWI checkpoints for years. Fortunately, our elected officials have never decided to approve the deplorable practice of treating every Texas driver like a criminal sans cause.

Despite the best efforts of MADD, Texans want the police solving crime, not harassing innocent motorists.

Fortunately for the "papiere bitte" crowd, the legislature isn't the only way to create new police powers in Texas. Save that lobbyists money MADD, invest in a few Amicus Curiaes instead. A body of elected officials in Austin just approved drug detection roadblocks, and it wasn't the legislature.

Lujan vs State- (here is a good summary at Justice for Yall)

What happened? The El Paso Sheriff set up a roadblock, in which they stop, detained, and harassed drivers without cause. The deputies testified that the "primary purpose" of this roadblock, was to check for insurance/ DLs. But they just happened to have a K-9 drug detection unit nearby, to, you know, help check for insurance.

Lujan was detained, didn't have his license, the K-9 was unleashed on his car, and the cops found a few grams of cocaine. Drug war rant- engage! Think about the tax dollars wasted on the prosecution and appeals, all over a few grams of coke. What, is El Paso out of blow now? What if Lujan was going to be the next Barack Obama, or W? Both former cocaine consumers who didn't get caught, and became POTUS. Did I mention that over 30,000 Mexicans have died in the last 4 years because we gave the cartels a monopoly on the American cocaine market. And if that's not enough now the government wants to repeal another piece of the 4th Amendment to save this meaningless conviction. Ok. Back to Lujan's appeal.

Lujan appealed his conviction, arguing that this roadblock was a subterfuge to check for drugs and a 4h Amendment violation. The court of criminal appeals disagreed.

From the opinion-

If the primary purpose of the checkpoint is lawful- a license check as opposed to general law enforcement-police can act on other information that arises at the stop. The checkpoint's primary purpose of license and insurance verification does not prohibit police from considering other unrelated offenses that they discover during the stop. Edmond, 531 U.S. at 48. In Edmond, the Supreme Court made clear that officers are not required to conduct the license and registration check wearing blinders and ignoring any other violations of the law that they observe. Officers can still act on what they learn during a checkpoint stop, even if that results in the arrest of the motorist for an offense unrelated to the purpose of the checkpoint. Id.

A brief suspicionless stop at a checkpoint is constitutionally permissible if its primary purpose is to confirm drivers' licences and registration and not general crime control. Id., at 39. In denying the motion to suppress, the trial court implicitly found that the primary purpose of this checkpoint was a permissible license and insurance check. Ross, 32 S.W.3d at 855. This finding was supported by the record.

That almost sounds like protection from over zealous police checkpoints. But guess what? Right now, every cop in the State is being told to testify their checkpoint was just to check for DLs/insurance. Police policy memos will be drafted stating that the "primary purpose" is not for drugs/DWI, but have a K-9 unit, or DWI investigator handy anyway.

It's a drug detection roadblock in all but name, all cops have to do is apply the right label to their activity, and it can pass fourth amendment muster. Words spoke louder than actions in Lujan.

The system has eaten one of it's own. The Hammer got 3 to do, and 5 for 10. The same tuff on crime ethos that Tom championed for years has finally bitten him in the ass. Here's newly minted felon, Tom DeLay, on crime.

From OnTheIssues.Org

Voted NO on funding for alternative sentencing instead of more prisons. (Jun 2000)
Voted YES on more prosecution and sentencing for juvenile crime. (Jun 1999)
Voted NO on maintaining right of habeas corpus in Death Penalty Appeals. (Mar 1996)
Voted YES on making federal death penalty appeals harder. (Feb 1995)
Voted NO on replacing death penalty with life imprisonment. (Apr 1994)
Rated 30% by CURE, indicating anti-rehabilitation crime votes. (Dec 2000)
More prison cells; more truth in sentencing. (Nov 1993)
More prisons, more enforcement, effective death penalty. (Sep 1994)

Tom DeLay on Drugs
Voted YES on military border patrols to battle drugs & terrorism. (Sep 2001)
Voted YES on prohibiting needle exchange & medical marijuana in DC. (Oct 1999)
Voted NO on subjecting federal employees to random drug tests. (Sep 1998)

The same pol who wanted to limit writs and warehouse more Americans in government cages, is now facing the working end of those ideals. I haven't kept up with the details of the prosecution. I know Tom saw his prosecution as a political witch hunt. That's rich coming from a guy who has been carrying the pitch fork with the GOP mob all these years.

Guess what Tom? Our modern criminal justice system is full of witch hunts. We've got the Drug War, DWI, ILLEGALS, sex offender boogeymen etc. You just don't like the particular witch hunt that landed you in jail.

Here's how Tom felt about his verdict in November. From ABCnews-

"They've got to bankrupt you, ruin your family, put you in jail, put you in the grave, and then dance on your grave. That's not good for the country."

So spare me the outrage Tom. You helped create the system where prosecutors can unilaterally decide which citizen to destroy, and now they've chosen you.

I didn't see any of this concern for the million of families the drug war has ruined. When you're in prison Tom you can meet a few hundred new friends who have been bankrupted, incarcerated, and had their families destroyed by the criminal justice system you worked to create. (I know this is a State prosecution, and Tom was a fed pol, but the principles are the same).

Remember folks, it's always easier to be tuff on crime when you don't think you'll ever be prosecuted. In a State with over 2,300 felony offenses (11 involving oysters), be careful about casting that first stone.

Have a loved one stuck in the Kaufman county jail? Want to know what the charges are and how much bail is set at?

Here's where you need to go for all your Kaufman county jail inmate information.

Kaufman County Jail Look Up

If the case has been filed, you can look it up here.

Kaufman County Case Information

I'll be on with Gary Johnson, 90.1 FM out of Austin tomorrow night at 8pm CT.

http://www.ruleoflawradio.com/#listen

Not sure what our topics are at this point. Gary asked what I wanted to speak on. I told him my best subjects are
1. War on Drugs/Cannabis Prohibition
2. Traffic Tickets
3. How to handle traffic stops/LEO interactions
4. DWI

We'll see where this goes. Should be fun. I'll be on for 60 minutes, so tune in and call 512 646-1984 to ask me a question.

Kaufman County had a rare flying while intoxicated arrest this week. Allegedly, the pilot landed on FM 429 and was arrested shortly after.

Best quote about this arrest from Kaufman Chief Public Defender Andrew Jordan. "This defendant may have trouble making bail... because he poses a flight risk." Rim shot!

In my entire legal career I had never seen a Texas FWI case. It just doesn't happen that often. First, most pilots don't land near police officers. They go from small airport to small airport. Second, we don't have any aeronautic speed traps. Pilots don't face the constant leo harrassment that drivers face. If you can find a way to only commute in an airplane, you'd save a lot in potential traffic tickets/police harassment (thought not enough to cover your airplane overhead).

I'm not sure most people know that FWI is a crime in Texas. When most people think "while intoxicated", they think driving, not flying, or assembling an amusement ride, which is also illegal.

I'm on a boat!

Boating while intoxicated is another one that most people aren't aware of until they get arrested. I've been on many Texas lakes and spent a fair amount of time observing the lake going public. Many of you think intoxication is the point of going out on Joe Pool etc. Unfortunately, the kill joys in the legislature want to ruin your Cedar Creek lake cruise.

Keep any eye out for the LEO on the lake. Aqua fuzz doesn't need a reasonable suspicion or probable cause to stop your boat and bust up your party. Lake cops have the power to do a "safety check" sans cause, because nothing makes you feel safer than a few cops on your boat.

How are safety checks constitutional?
Good question. First, this is Texas, everything law enforcement does is constitutional. Ok, seriously our state's highest criminal court decided that the State could keep us safer, if we ignored the 4th Amendment, and got rid of the whole warrant/probable cause/reasonable suspicion paradigm for boats. We traded our maritime liberty for the State's false promise of boat safety.

BWI presents a whole slew of logistical problems for law enforcement. Try and do field sobriety tests on a boat. The one leg stand and walk and turn are BS on land. On the lake, or with a person who just gotten off a boat, it's comedy. That leaves only the completely discredited HGN for many BWI defendants.

So remember, if you're flying, or boating, or amusement ride operating, be wary of your alcohol intake, and be careful not to cross our State's arbitrary unknowable make believe "intoxication" threshold.