When a person is arrested and questioned regarding the crime he or she has been arrested for, police officers are required under constitutional law to inform that person of his or her Miranda rights. These rights include the well-known “right to remain silent” and “right to an attorney.” These rights are case made, meaning there is no mention of Miranda rights in the Constitution or any of its the amendments, but rather the U.S. Supreme Court derived these rights from the 5th Amendment during its judicial review of the case Miranda v. Arizona (1966), a landmark case in criminal law.
The Legal Information Institute states the following regarding Miranda rights: “Explanation of rights… must be given before any custodial interrogation, stemming largely from the Fifth Amendment privilege against self-incrimination. The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent.” 
Know Your Rights
Source: Miranda Warning
While the statement may have an air of humor in the common vernacular, “pleading the 5th” is a reference to the 5th Amendment to the U.S. Constitution that provides crucial safeguards against abusive collective of evidence for persons in government custody. Americans can become so accustomed to the concept of having rights that it may be shocking to consider there was a time in American and British history when people could be apprehended, thrown in jail, and not even know the charges against them.
When an arrested person being interrogated invokes the protections of the 5th Amendment, it usually means that he or she does not want to provide any statements to the arresting officer(s) for fear of self-incrimination. Potentially, any statements made after a Miranda advisement can be used against the arrested person in his trial. To avoid this possibility, it is best practice is to say “I am exercising my right to silence,” or “I want an attorney.” Either statement should stop the officer cold. Further, it is important for the arrested person to remain silent as, under case law, a person can destroy their invocation of this right if he later voluntarily speaks. Although it will not clear to an arrested layperson, the entire arrest process is fraught with rules and procedures that can directly come to bear on any subsequent court proceedings. Understanding this simple fact should motivate anyone to remain silent, unless there is good reason not to do so.
For any arrested person who believes there were any irregularities in the arrest process (one can go with their gut and need not be a lawyer to know that something is amiss), it is advisable to speak with an attorney, whether a private lawyer is retained or a public one assigned. Officers do not have carte blanche to stop and arrest anyone without some level of reason; there are different legal standards for stopping and frisking, and searching and arresting. Any charges that may eventually be imposed can be challenged on procedural grounds, and a competent, professional criminal attorney should explore these possible defenses.
Processing After the Arrest
An arrested person will be taken to a precinct for initial processing. This phase includes giving police basic identifying information and surrendering all belongings, including those on the arrested person’s body. A voucher will usually be provided so that the arrested person can later claim their possessions (if the officer is too busy to provide a voucher, the arrested person should request a voucher number). If the arrested person is in possession of any contraband, such as drugs or firearms, these items will not be returned later and will likely be used as evidence to support the criminal charges, if any.
If the arrested person is charged with a felony or a misdemeanor, fingerprinting and photographing will occur. Though processing times vary from precinct to precinct across America, in New York, for instance, the processing period usually takes about four to six hours. For most of this time, the arrested person will be placed in a cell.
At this point, depending on the state’s policy, the arrested person will be allowed to go a free and/or collect call on a public phone. This is a good time to find a private lawyer and put loved ones on notice of the arrest. For the purposes of a bail determination (at the arraignment), having loved ones in the courtroom can be helpful. After the initial processing is complete, the arrested person is transferred to central booking in the courthouse where he will await an arraignment (court appearance).
In New York, safeguards are in place to ensure that an arraignment happens within 24 hours. In other jurisdictions, the wait time may be longer, but arrested persons will usually have an opportunity to meet with their lawyer during this period.
After the arrested person is docketed (the case has been assigned to a judge), a private attorney (if retained) will enter her “Notice of Appearance” alerting the court of her representation of the arrested person. If a private attorney is not retained, a public defender will be assigned and go on record as the attorney. The arrested person will be able to speak with his attorney to:
- Learn the specific criminal charges.
- Find out if the district attorney or judge has offered a plea.
- Accept or reject any plea offer.
- Decide how to proceed (e.g., to plead guilty or not-guilty).
- Provide information about life circumstances that can help the judge decide whether to provide bail.
When the arrested person is before the judge, the arraignment will take place. Arraignments usually happen very quickly as judges, public defenders and the district attorney usually have a long criminal docket to get through. One of the main functions of an arraignment is to put the arrested person on notice of the charges against him and to hear at least the initial evidence against him. Any applicable plea offers will be made in open court, and the arrested person will have an opportunity to accept or reject the plea deal and enter his own plea.
The defense attorney and district attorney will argue bail terms. At this point, if loved ones are present, they can vouch for the arrested person, to help influence the offer of bail.. Any release that occurs will be done so pending further court proceedings.
Every state has laws that prohibit the possession, sale and manufacture of illegal drugs, including lawful pharmaceuticals that are used unlawfully. In general, federal drug laws only come into play when the possession, sale or manufacture involves crossing state lines. It should be no surprise then that most state drug arrests are for possession, and most federal ones are for trafficking.
As each state carves out its own drug laws, and most drug users, abusers and addicts are not aware of the details of these laws, taking drugs is always a legal gamble. Most drug charges are felonies. However, drug charges are usually based on the following factors:
- Type of drug/classification under the drug schedule or any applicable drug act
- Intent to sell or distribute
- Where the act occurs within proximity to a school, as there may be an added charge(s) under these circumstances
The Crimes Code of Commonwealth of Pennsylvania is an example of a drug law. For an idea of how drug laws work in general, consider the following excerpt:
- Possession of 30 grams or less of marijuana: This is a misdemeanor offense with a maximum of 30 days in jail and a $500 fine.
- Possession of more than 30 grams of marijuana: Penalties include an automatic loss of license for six months, a maximum of one year in jail, and $5,000 in fine. There is also a risk of being charged with possession with an intent to deliver or distribute.
- 1st offense of possession of controlled substances (not marijuana): Examples of included drugs are Vicodin (for non-prescription purposes), heroin, cocaine, meth, and illegal steroids. The penalty is up to one year in prison and/or a $5,000 fine.
- 2nd and 3rd offense: Penalties include up to two years and three years in prison, respectively.
- Possession of more than 5 grams of crack cocaine: Possible penalty includes a minimum of five years in prison.
- Selling marijuana to a minor: This is a felony that carries up to two years in jail and a $5,000 fine.
Facing drug charges is a serious life event. Although state laws vary, subsequent offenses bring higher penalties across all states, and in some jurisdictions, repeat offenders run the risk of invoking the state’s three strikes rule (not all states have such a rule). This rule sets higher than usual incarceration sentences for a third offense or more. Overall, the rule is a no-nonsense way for states to send repeat offenders to jail for a long time while also sending out a message that recidivism will not be tolerated.
Statistics on Drug Charges
A national perspective on the incidence of drug charges provides a helpful gauge as to the severity of the problem. The Drug Policy Alliance has collected the following data involving drug charges across the US:
- There were 1.55 million people arrested on non-violent drug charges in 2012.
- In 2012, 749,825 people were arrested for marijuana law violations.
- In 2012, 658,231 of the total arrests for marijuana law violations were for possession only (88 percent).
- More than 200,000 students have been stripped of financial aid because of drug charges.
- In 2010, 38,329 people died from a drug overdose.
- The US has the not-so-proud distinction of being home to the highest incarceration rate in the world. In 2012, one in every 108 adults was in a federal, state, or local penitentiary system (2,228,400 inmates in total).
- If illicit drugs were legalized and taxed at the rate of tobacco and alcohol, the US would earn revenues of 46.7 billion.
While these statistics can potentially bring law enforcement measures to curb substance abuse under fire, it is uncertain as to how much worse the drug epidemic would be without those efforts. A main criticism lodged against the War on Drugs is that substance abusers need treatment and not the incarceration they often face. In an effort to provide substance abusers with rehabilitation rather punishment, some states provide alternative sentencing — a program whereby substance abusers can offset jail time through participation in rehab.
In contrast to the custodial setting of prison, participants in alternative sentencing programs have an opportunity to treat the addiction that landed them in legal trouble in the first place. Though critics may argue that drug treatment should be a voluntary decision, creating an incentive through lessening or eliminating a prison sentence is potentially beneficial to the substance abuser and the criminal system.
Alternative sentencing programs usually involve the interaction of the state’s criminal justice system and government-run or non-profit agencies that provide the rehab services. In New York, alternative sentencing falls under Alternate to Incarceration (ATI) Program. There are currently 165 programs administered by the state or nonprofits that work in close conjunction with the criminal justice system. Some of these programs are specifically dedicated to providing substance abusers with treatment. For instance, in an effort to coordinate services, the state collaborates with expert agencies like the NYS Office of Alcoholism and Substance Abuse Services. New York’s Treatment Accountability for Safer Communities (TASC) program, among other programs, receives state funding to provide treatment services to persons over 16 years of age who are facing a prison sentence but show indications of alcohol or drug abuse.
In addition to providing a more humane and less punitive solution to drug charges, especially for young and first-time offenders, alternative sentencing is usually more cost-effective than prison. According to extensive research of the prison system in 40 states, the Vera Institute of Justice reports that taxpayers spent an average of $31,286 per prisoner in these states, with $14,603 at the lowest end (Kentucky) and $60,076 at the highest end (New York). The alarming rate at which the state prison system has expanded may owe in part to state drug laws that incarcerate substance abusers rather than remand them to drug treatment programs.
As research on the impact of substance abuse on the brain continues, and as more findings support that addiction is not simply a matter of exercising free will but rather being controlled by cravings, the incarceration of some substance abusers may be increasingly hard to justify. As much of criminal law is built on the concept of “mens rea” – the intent to commit a crime – changing perceptions of the substance abuser’s ability to form a guilty intent may directly impact the penal dimension of drug laws. While substance abusers may not be able to entirely escape liability for the crime of violating drug laws, there is no sense in punishing them for the sake of punishment alone (at least not in the case of possession alone; manufacturing and distributing are another matter entirely).
The criminal justice system is currently the governing authority on drug crimes specifically because substance abuse is characterized as a drug crime. A growing public awareness of the nature of addiction may one day conclusively result in a nationwide reformulation of addiction as a mental illness and take this illness out of the prison system and into the care of recovery programs.
If you know someone who could benefit from addiction treatment, or if you are that person, contact Michael’s House at 760-548-4032. We can help you get started on a fulfilling journey to recovery.
“Crimes Code of the Commonwealth of Pennsylvania.” (n.d.). Bloomsburg University of Pennsylvania. Accessed Sept. 18, 2014.
“The Price of Prisons What Incarceration Costs Taxpayers.” (July 20, 2012). Vera Institute of Justice. Accessed Sept. 18, 2014.