Zero Tolerance Policies in Schools

Jeanette Moll of the Texas Public Policy Foundation and Right On Crime recently appeared on Substance Abuse 411 to discuss her research on zero tolerance discipline policies in schools. Moll argues that the policies began as well-intentioned responses to serious crime, but have since become recklessly misused on minor incidents and are now often counter-productive. For instance, Moll notes that some students have been suspended for the offense of truancy: “[It] is an interesting way to respond to someone not coming to school,” she says, “to prevent them from coming to school.”

Click below to listen to the full interview:


Prominent Conservatives Join Amicus Brief in Shaygan v. U.S.

In August, several prominent conservatives who have served as federal judges and prosecutors joined an extraordinary amicus brief, asking the U.S. Supreme Court to review Shaygan v. United States. Among the signatories were Michael McConnell, who is frequently mentioned as a potential Supreme Court nominee in a Republican administration, Paul Cassell, a well-known figure in victims’ empowerment circles, and Solomon Wisenberg, who screened potential judicial nominees for President Reagan. If the Supreme Court grants the petition, it will likely spark a national discussion about prosecutorial misconduct—and the thorny question of how to remedy it without vitiating prosecutorial discretion.

The Shaygan case concerns a famous rider that was attached to an appropriations bill by Republican Henry Hyde of Illinois in 1997. The rider, known as the “Hyde Amendment,” provides that a court may order federal prosecutors to pay attorney’s fees to defendants if “the court finds that the position of the United States was vexatious, frivolous, or in bad faith.”

The dispute in Shaygan concerns the words “the position of the United States.” Do the words mean that attorney’s fees may only be ordered when the government prosecutes without probable cause? Or may the fees be ordered if prosecutors have probable cause, but use abusive tactics in the course of their investigation?

The Supreme Court is being asked to consider the question through the case of Ali Shaygan, a Florida physician. When a patient of Dr. Shaygan’s was found dead from a drug overdose, authorities suspected that Dr. Shaygan may have been improperly prescribing medications. Federal prosecutors originally filed 23 charges against Dr. Shaygan, and then later used a superseding indictment to file 141 charges. The litigation was bitterly adversarial. The details of the prosecutors’ tough tactics are too long to relate here, but suffice to say, the prosecutors themselves acknowledged misconduct, including a “fail[ure] to disclose discovery materials from the investigation.”

Ultimately, Dr. Shaygan was acquitted on all 141 charges. The district court ordered prosecutors to pay over $600,000 in attorney’s fees—fees which of course come ultimately from taxpayers. The Eleventh Circuit reversed the district court’s order of attorney’s fees, holding that whatever tough—or even unlawful—tactics the government may have used, prosecutors had probable cause to pursue the case, and the Hyde Amendment is only a remedy for those cases in which probable cause does not exist, i.e. “the position of the United States is vexatious, frivolous, or in bad faith.”

On July 6th, Dr. Shaygan petitioned the Supreme Court for certiorari.

The government is arguing, essentially, that grand juries serve as a reasonably effective check on meritless prosecutions. Dr. Shaygan is less convinced. He seems more inclined to agree with the well-known observation that a prosecutor could get a grand jury to indict a ham sandwich. To Dr. Shaygan, the Hyde Amendment exists as an additional—and necessary—check.

It is an interesting case, and one that has already drawn considerable attention. In addition to the judges and prosecutors mentioned above, several prominent groups have filed amicus briefs asking the court to grant certiorari: the Association of American Physicians and Surgeons, the Constitution Project, and the National Association of Criminal Defense Lawyers.


Priorities for the new ABA Criminal Justice Chair

William N. Shepherd of Holland & Knight LLP in West Plam Beach, FL is the new chair of the American Bar Association’s Criminal Justice section. Shepherd is also a former prosecutor. In his position, he has a platform to speak and be heard on whatever issue in criminal law strikes him as important. Interestingly, he is making overcriminalization a major priority. See his comments on overcriminalization from 1:06 – 2:16 in the video below.


Right On Crime at the State Policy Network Annual Meeting

Right On Crime will be hosting two events at the State Policy Network’s Annual Meeting in November. The meeting will be at The Ritz-Carlton Hotel, 4750 Amelia Island Parkway, Amelia Island, Florida, 32034. To attend either or both events, you must be registered to attend the State Policy Network Annual Meeting. Register here.

Right On Crime Dinner:

The first event will be a dinner on November 13th, featuring Grover Norquist. Norquist, a Right On Crime signatory, will offer remarks on how free market and limited government principles can guide state public policy decisions about criminal justice.


The Plaza Ballroom


Tuesday, November 13, 2012, 7:30 P.M.

SPN attendees must register separately for the dinner here.

Right On Crime Panel Discussion on Overcriminalization:

On November 15th, Right On Crime will host a panel discussion titled “Overcoming Overcriminalization: How You Can Combat the Criminalization of Capitalism.”

Erick Erickson of and CNN will serve as the moderator.

The three panelists will be:

Paul Larkin, The Heritage Foundation

Isaac Gorodetski, The Manhattan Institute

Marc Levin, The Texas Policy Foundation and Right On Crime


Talbot D


Thursday, November 15, 2012, 4:00 – 5:00 PM

Please also be sure to visit the Right On Crime booth at the SPN Meeting.


Florida Could Limit Prison Growth by Turning to its Drug Courts

The first drug court in the United States was formed in Miami-Dade County in 1989. Since then, Florida has increased that number to 106 drug courts, with at least one in every judicial circuit. In 2011, drug courts in Florida saw about 10,000 participants. The felony recidivism rate for drug court participants is 12 percent, compared to the control group’s rate of 40 percent. Florida continues to expand its problem-solving courts, including Veterans’ Courts and Mental Health Courts.


In many other states where drug courts have blossomed (like Texas), incarceration and recidivism rates have been in decline. Despite being a leader and innovator in problem-solving courts, however, Florida’s prison population has grown at a rate of 11.4 times between 1990 and 2009, while its population in general increased only 2.7 times.

Part of the problem may be that despite being a leader in problem-solving courts, Florida still has some of the strictest mandatory minimum sentencing laws in the county, including for drug offenses. In fact, a person could very well end up spending more time in prison for a drug offense than for manslaughter.

This backwards prioritizing is costing Florida taxpayers millions of dollars. Indeed, in 2010, the Florida Department of Corrections was “housing 5,135 inmates serving mandatory drug sentences,” said DOC spokeswoman Jo Ellen Rackleff. At a cost of $20,108 per year to keep an inmate in prison, mandatory drug sentences were costing Florida almost $103 million.

Florida already has many tools it could use in order to implement more effective, efficient, and affordable alternatives to incarceration, particularly for those addicted to drugs. Drug courts have worked, and continue to work in Florida. It is time for policy-makers in Florida to do their part in reforming the mandatory minimum-sentencing laws that are costing taxpayers millions of dollars and no longer serving their intended purpose.