About Anne K. Ritchie

Anne K. Ritchie is an attorney practicing criminal defense in Houston. She edited law books for many years before deciding that the courtroom was a more appropriate place to use her law degree. She is a veteran of the U.S. Navy and used to run a computer servicing company.

Texas Lawyers Assistance and Confidentiality

helpI was recently at the Texas Court of Criminal Appeals-sponsored Trial College in Huntsville, where one of the speakers gave a great presentation on mental impairment and how to identify it in our clients, our colleagues, and ourselves. Being a volunteer with the Texas Lawyers’ Assistance Program (TLAP) peer support program, none of the information was new to me. TLAP offers confidential support for lawyers, law students, and judges who are having trouble with mental health issues, substance abuse problems, chronic stress, or cognitive decline. However, while hanging out with some of the young lawyers in my group (Go, Group H!), I learned that many had either never heard of TLAP or did not believe that the peer support on offer is truly confidential. I did not have my facts together that night, but today I want to set the record straight:

TLAP exists under the auspices of Section 467 of the Texas Health and Safety Code. Section 467.003 allows for the creation of TLAP (Section 467.0035 allows law students to participate). Section 467.006 allows the State Bar Office of Disciplinary Counsel and the Board of Law Examiners to refer attorneys and law students to TLAP in lieu or in conjunction with discipline. Section 467.007 provides that the records of TLAP are confidential except in the following circumstances:

  1. at a disciplinary hearing before a licensing or disciplinary authority in which the authority considers taking disciplinary action against an impaired professional whom the authority has referred to a peer assistance program under Section 467.006(a) or (b);
  2. at an appeal from a disciplinary action or order imposed by a licensing or disciplinary authority;
  3. to qualified personnel for bona fide research or educational purposes only after information that would identify a person is removed;
  4. to health care personnel to whom an approved peer assistance program or a licensing or disciplinary authority has referred the impaired professional;  or
  5. to other health care personnel to the extent necessary to meet a health care emergency.

Tex. Health & Safety Code Ann. §467.007(b). That’s it. Those are the only times when TLAP can release information.

The executive commissioner of the Health and Human Services Commission sets out minimum criteria for peer support programs. TLAP has qualified under these criteria for about 30 years. Confidentiality has been maintained since the inception of TLAP.

How TLAP works:

If you or a colleague are experiencing substance abuse, mental illness, chronic stress, or cognitive decline, you can call TLAP in confidence and talk to someone about the situation. For instance, if you refer a colleague because you believe that she is depressed, TLAP will contact one of its hundreds of volunteers across the state to get in touch with that lawyer and will offer her support in the form of peer support, access to the Sheeran-Crowley Memorial Trust to pay for mental health care, and support groups across the state. If you call for help for yourself because you feel you have a substance abuse issue, a lawyer who has been in that situation will be in contact with you to help you figure out what will work in your circumstances.

TLAP, along with the entire State Bar of Texas, are currently under sunset review. The proposed changes can be found here. The biggest proposed change is to the bar’s rulemaking power; the sunset commission recommends that rulemaking power be taken from members of the bar and consolidated in the Supreme Court of Texas. Along with this change, it recommends allowing broader input by bar members before changes are made.

In another change, the sunset commission proposes changes to the attorney discipline system, including expanded access to criminal history information, discipline imposed in other states, and trust account overdraft notification. They also propose requiring comprehensive sanction guidelines in the Texas Rules of Disciplinary Procedure and requiring more detailed tracking and reporting of disciplinary case outcomes. In addition, they recommend reinstating the Office of Chief Disciplinary Counsel’s subpoena power.

Even with these new powers, the Office of Chief Disciplinary Counsel would still not have access to TLAP’s records, as they would remain confidential under Health and Safety Code Section 467.007. Sunset review does not propose changing any of the confidentiality or reporting requirements that apply to TLAP. Because of this, TLAP and its volunteers will be able to continue to confidentially serve the legal community in Texas for years to come.

Rethinking Marijuana

The FDA is considering rescheduling marijuana. Under the federal scheme, marijuana is currently a Schedule 1 drug, that is, it has “no currently accepted medical use and a high potential for abuse” and is considered one of “the most dangerous drugs.”

Marijuana was originally placed in Schedule 1 in the 1970’s. Other drugs in Schedule 1 include heroin, ecstacy, and LSD. In the 1970’s the Nixon administration did not really know where to place marijuana on the list of schedules. It was placed in Schedule 1 pending review.  Following the enactment of the Controlled Substances Act (which set out the Schedules), the National Commission on Marihuana and Drug Abuse issued a series of reports (report 1, report 2) on marijuana use in the United States. The Commission acknowledged that marijuana was not so much a serious threat to public health and more of a sensitive social issue. It recommended changes to federal law that would permit citizens to possess a small amount of it at a time but suggested that the marijuana should still not be legalized. Congress did not follow up on the Commission’s suggestions. And here is where things get ugly.

One commentator has suggested that this failure to act was based at least partially on racism. Because, at the time the reports came out, most of the users of marijuana were black or Hispanic, keeping marijuana in Schedule 1 was a way to keep tabs on this minority population. Further, in a Senate hearing in 1974, Senator James Eastland of Mississippi stated, “If the cannabis epidemic continues to spread at the rate of the post-Berkeley period, we may find ourselves saddled with a large population of semi-zombies – of young people acutely afflicted by the amotivational syndrome.” This view persisted throughout the 1970’s and then in the 1980’s came the “Just Say No” campaign, which lasted for 20 years or so. It has only been in the last 10-15 years that legalization and rescheduling of marijuana have come to the forefront.

Advocates for rescheduling note that over 20 states have legalized marijuana for medical purposes and the current U.S. Surgeon General has stated that “marijuana can be helpful” for some medical conditions. Rescheduling marijuana to Schedule 2 or Schedule 3 would allow proper medical research to take place. As things currently stand, the University of Mississippi has an exclusive contract with the federal government to provide medical marijuana to researchers. During the past five years, an average of only nine researchers per year were supplied with marijuana through official channels.

Opponents of legalizing marijuana range from those who say that marijuana is not medicine to those who find that it is highly addictive in some people. These views should not be ignored. Some 30% of the population is prone to addiction to marijuana and the adolescent brain is particularly susceptible to damage if the individual starts smoking too early in life. Other health problems exist: marijuana smoke contains more of certain toxins than cigarette smoke; it can cause temporary sterility and impact a baby’s long-term health; and it has been linked to a higher incidence of psychosis.

So, what do we do? As a society, we allow social use of other dangerous drugs, namely alcohol and tobacco. Marijuana is being used by individuals behind everyone’s backs and the War on Drugs is not working. Marijuana use is becoming more and more socially acceptable. President Obama has even said that marijuana use is no more dangerous than alcohol.

In Harris County, stops for less than two ounces of marijuana no longer result in a trip to jail if stopped by the Houston Police Department. Instead, they are given the option to be put on pretrial diversion and take drug education classes. They end up with no conviction if they stay clean and complete the classes.

The idea behind this program should be expanded. Just as with alcohol and tobacco, the general public should be educated about the down sides to marijuana use. But ultimately, the drug should be rescheduled to allow its social use, maybe with a stop along the way for medical use only.

When armed with education and knowledge, most people will make the right choices. If people choose to use marijuana, most people will do so in a responsible way. Those who make poor choices under an open system would have made poor choices under a more restrictive system, too. Sometimes our clients are their own worst enemies.

Throwaway People? The Economics of Criminal Justice Reform

A recent client, asking for probation, told the judge that he was not a throwaway person. He is correct. None of our clients are throwaway people.

Last week, the White House issued a paper entitled “Economic Perspectives on Incarceration and the Criminal Justice System” in conjunction with National Reentry Week. The paper was prepared by the Council of Economic Advisors and was presented at the White House by the President’s top advisor Valerie Jarrett along with American Enterprise Institute and the Brennan Center for Justice. (The video is available.)

Today’s incarceration rate is 4.5 times higher than it was in 1980. We are incarcerating people at a rate never seen in this country. This increase is attributed to criminal justice policy, not in an increase in underlying criminal activity.

Criminal Justice policies increase incarceration rates

while crime rates consistently fall.

Crime levels are actually lower now than they were in the 1980’s, but we are locking people away at a higher rate than during that decade.

  • Adjusting for population, the incarceration rate grew by more than 220 percent between 1980 and 2014. The U.S. incarceration rate is higher than the any other country in the OECD, and is more than four times the world average.
  • At the same time, crime rates have fallen sharply; between 1980 and 2014 violent crime rates fell by 39 percent and property crime rates fell by 52 percent.
  • Economic research has found that incarceration growth is unlikely to be a root cause of the drop in crime. Instead, research finds that the decrease in crime may be attributable to a number of other factors, including demographic changes, changes in policing tactics, and improved economic conditions.

What has really changed is not crime, according to the CEA, it is criminal justice policy:

  • If prison admission rates and average time served in prison remained the same as they were in 1984, research suggests that State imprisonment rates would have actually declined by 7% by 2004, given falling crime rates. Instead, State prison rates increased by more than 125%.
  • Changes in the severity of sentencing and enforcement, which have led to longer sentences and higher conviction rates for nearly all offenses, have been the primary drivers of the incarceration boom.
  • Changes in arrest patterns have also likely contributed to incarceration growth. As crime rates have fallen, arrests have also declined but at a slower pace, resulting in increases in arrests per crime, for both violent and property crimes. Meanwhile, drug arrest rates grew by over 90% between 1980 and 2014.

The brunt of this increase has been borne by people less likely to be able to defend themselves: the poor, the mentally ill, the disadvantaged, and minorities:

  • Though blacks and Hispanics represent approximately 30% of the population, they comprise over 50% of the incarcerated population.
  • A large body of research finds that, for similar offenses, blacks and Hispanics are more likely than whites to be stopped and searched, arrested, convicted, and sentenced to harsher penalties.
  • Approximately 65% of prisoners have not completed high school and 14% have less than an 8th grade education.
  • Over one-third of the prison population has received public assistance at some point in their lives, 13% grew up in foster care, and over 10% experienced homelessness in the year prior to entering prison.
  • Over 50% of those incarcerated have mental health problems, while approximately 70% were regular drug users and 65% regularly used alcohol prior to being incarcerated.

The paper goes on to discuss how economics can provide a useful viewpoint from which to view criminal justice reform. However, as Arthur Brooks, president of the right-leaning American Enterprise Institute said in his remarks introducing the paper, criminal justice reform is not about economics, it is about human lives. It is about not throwing away millions of lives every year.

America spends over $80 billion per year incarcerating 2.2 million people. Simple division shows that we spend an average of over $36,000 per prisoner. If they were simply allowed to be productive members of society, they could contribute to the economy instead of being part of the deficit.

Sending non-violent drug offenders to jail is a waste of resources. The conclusion of the CEA paper is that locking up so many people for so long is a hugely inefficient way of achieving the goal of stopping crime. The paper concedes that longer sentences do stop certain property crimes, vehicle theft in particular. But prison is overall a clumsy deterrent. It is more likely to harden young offenders than it is to deter them from further crime.

People want to feel safe in their homes and neighborhoods, but the numbers show that more incarceration will not achieve that goal. Locking people up for low-grade crimes is no way to solve our security problems.

We should not be throwing away over 2 million lives every year. We should be finding ways to rehabilitate the ill, educate the uneducated, and integrate society’s outliers. Reversing our increased sentencing habits is a good place to start. Stop throwing people away.

They Did What? Microsoft Stands Up For the People

When did corporations become the bell ringers for individual freedoms in the United States? Last week, Microsoft sued the Department of Justice to declare part of the Electronic Communications Privacy Act (18 U.S.C. § 2705(b)) unconstitutional for violating the First and Fourth Amendments. Apple recently refused to comply with a demand to hack into one of its own products. (Blackberry, on the other hand, has been revealed to have given access to all of its security—the strongest thing that Blackberry had going for it—to the Canadian government in 2010).

Why do these tech companies act this way? Andy Grove of Intel, who recently passed away, was born into a Jewish family in Budapest in 1936 Hungary, then managed to survive both the Holocaust and the Hungarian Communist Party before immigrating to the United States in 1956. Despite this background, he came out in favor of the Clipper Chip in 1994:

They have to get a warrant, but they can tap it. Now just because the information goes digitally, I don’t see the difference. The government for its own law enforcement needs should be able to tap digital information just as well as they have had the right to tap analog information forever.

These are the same arguments that the FBI and Justice Department are making now to get Apple to comply with its request and that Microsoft is arguing against in its declaratory action.

The latest instance with Microsoft is illustrative. Their complaint for declaratory judgment notes that “as Microsoft’s customers increasingly store their most private and sensitive information in the cloud, the government increasingly seeks (and obtains) secrecy orders under Section 2705(b). . . . People do not give up their rights when they move their private information from physical storage to the cloud.”

Microsoft further states in its blog dated April 14, 2016,

We believe that with rare exceptions consumers and businesses have a right to know when the government accesses their emails or record. Yet it’s becoming routine for the U.S. government to issue orders that require email providers to keep these types of legal demands secret. We believe that this goes too far and are asking the courts to address the situation.

Microsoft argues that Section 2705(b) infringes on free speech because it is overbroad in that it curtails Microsoft’s ability to communicate the fact of the government’s searches to the target of the search (or to anyone else). It notes that over the past 18 months 2,576 gag orders have been served on Microsoft along with warrants. 68% of those gag orders were indefinite. Microsoft argues that these facts justify a finding that Section 2705(b) is unconstitutional because the Section is not narrowly tailored to promote a compelling interest. Microsoft also argues that Section 2705(b) violates restrictions on unlawful searches and seizures because it does not give notice to the people whose data is being searched or seized.

Microsoft and Apple have come out in favor of individual rights. Blackberry and Intel have not. Why the difference? Some say that Tim Cook believes in individual rights strongly because he grew up gay in the South. Maybe so, but using that reasoning, wouldn’t Andy Grove have been anti-Clipper Chip? Blackberry can be partly excused from the debate for working under a different legal framework; its CEO John Chen even wrote in his blog last year that “we reject the notion that tech companies should refuse reasonable, lawful access requests.” However, in 2013 in R. v. TELUS Comm’s Co, the Supreme Court of Canada found that the reasonable expectation of privacy protected by Section Eight of the Canadian Charter of Rights and Freedoms (which gives everyone in Canada protection against unreasonable search and seizure) applies to modern technology such as text messages even if it is located on a third-party server.  Unfortunately for ordinary Canadians (and anyone using a Blackberry anywhere in the world), the Royal Canadian Mounted Police used the Blackberry encryption key to read over two million encrypted messages over the Blackberry network sent between 2010 and 2012.

So, back to Microsoft and Apple. What is driving them today to buck the system? Is it simple marketing? Does Microsoft hold a grudge due to the nonrelenting antitrust warfare against it by the DOJ in the 1990s? In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the right of free speech was given to corporations.  Maybe, just maybe, some of our corporations have recognized the responsibilities that go with free speech.

These responsibilities include avoiding slander, libel, threats, treason, copyright infringements, trade secrets, and promoting unlawful acts. Microsoft and Apple (as well as Google, Facebook, Amazon, and Twitter) are acting in a way to avoid promoting unlawful acts committed by the government.

Their responsible position is appreciated by this customer.