Michael Vick Tested Positive For Drug Use On Purpose?

In this article and in a question posted by a reader in response to an earlier post, it has been suggested that Vick may have intentionally tested positive for pot in order to gain access to the BOP DAP program (drug and alcohol program). I originally thought the reader's question was absurd but then I read an article (linked above) suggesting the same thing and I still think it is absurd.

The premise of this theory is that there is only one statutory basis for reducing one's federal sentence other than the 15% good-time credit all inmates are entitled to... getting into the drug and alcohol program. Since Vick has no documented drug history, why not create one? The positive test cannot technically be the basis for an enhancement for the charges he pled guilty to so where's the risk.

I think there are several.

First, according to Vick's plea agreement, he is facing 12-18 months, assuming the judge does not depart from the guidelines. The drug program takes 9 months to complete plus a mandatory 6 months in a halfway house for a total of 15 months.... once you get in, which takes a month or two minimum. If Vick gets the 12 month sentence, with good time, he would only do 9.5 months plus 1 month in a halfway house for a total of 10.5 months. He has nothing to gain by getting into the drug program. Vick's best strategy is to do everything he can to persuade the judge to sentence him to the lower end of the range so he can be done in 10.5 months.

Second, the judge did not have to let him out on bail pending sentencing after he entered his guilty plea, although that is common in non-drug and non-violent (human violence) offences. By violating the conditions of his release he basically spit in the face of the guy who is going to determine how much time you spend in prison. Of course, having now pissed of the judge, he may get a long enough sentence that getting in the drug program actually may be of some benefit! This is taking 5 steps backwards in order to take 1 step forward. Dumb. Dumb. Dumb.

Third, Vick's re-entry into the NFL is of major importance. By testing positive for drugs, he makes it more likely that Commissioner Goodell will suspend him after he gets out of prison, further delaying his opportunity to make millions of dollars.

I simply cannot imagine a situation in which any competent lawyer would intentionally advise his client to commit a crime (smoking pot is a crime) in order to, by some perverse logic, potentially shorten his sentence by providing a factual basis for getting into the drug program.

Finally, with respect to the presentence report, it is true that the contents of this report, which is an exhaustive intrusion into every aspect of a defendant's life, goes a long way towards determining one's eligibility for the drug program. But all Vick has to do is say that he has used drugs in the past (they will ask him this) and that it impaired his judgement when he commited these crimes. He doesn't have to test positive again while on pretrial release to make the point!

If I had suggested such a strategy to my lawyer, she would have slapped me upside the head (figuratively, not literally). Now I was certainly prone to suggesting "out of the box" ideas and strategies, of which this would definitely qualify, and she was equally adept at shooting them all down.

There was only one rational posture for Vick once he entered his guilty plea and that was remorse. Whether one is sincerely remorseful or not, you should at least do a credible job of faking it!

Testing positive for pot is nothing but sheer arrogance, not some clever sentencing strategy. Judge Hudson is known as a tough sentencer. I don't think he will be impressed.