Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Friday, September 28, 2007

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.

3 comments:

SamiDoDamage said...

Just wanted to check on you. I bookmarked your blog when hubby went in (just about the time you got out) and I check in a couple times a week now. Hoping you're doing OK, and that you're just not blogging because you're getting on with your life. Your perspective has been priceless.

Anonymous said...

As always Bill, I enjoy the Blog. I'm sorry to hear about your friend that you can not communicate with. The rule is pretty absurd in your situtation.

Do you have any thoughts about Vick turning himself in early? Will this buy any leniency? I personally don't think so, but think it's smart of him to do as he needs to get back to the field to make money. This means he is more likely to experience Diesel Therapy though? Correct?

Bill Bailey said...

I don't have any strong thoughts on the subject. I am not optimistic early reporting will buy him any leniency. The judge has a tough reputation and testing positive for pot probably hurt him more than reporting early helps him.

I understand the desire to report early. I was ready to "get the show on the road" a couple weeks before reporting. If you know you are going to go to prison (and in his case, he is already in a sort of psychological prison while awaiting sentencing that can drive you crazy), you might as well go ahead and start your prison time and get it over with sooner.

As for diesel therapy, he is currently in the local federal holding center I believe, which would be in the same physical complex as the courtroom he will be sentenced in. Presumably, he will then go right back to the holding facility after sentencing until he receives his BOP designation. Then he will be transported. I already made a bad forecast on the Jim Black transfer so I will just have to wait and see how long it takes for Vick to reach his final destination.

My prediction is that the judge will give him 15 months, not that I have any inside knowledge.