Tuesday, May 17, 2005

"Interests of Justice"

There are two provisions in the Criminal Procedure Law allowing a motion to dismiss "in the interests of justice". The provisions (I think it's 170.40 for dismissing an information or complaint, and 210.40 for dismissing indictments) include a laundry list of factors the judge "must" consider if raised and relevant.

A few years ago I wrote an article aimed for law reviews, titled: A Substantive Due Process Challenge to the War on Drugs. The link is to a pdf version of the article on my marijuana lawyer page.

The article makes a very specific argument as to why the war on drugs is unconstitutional. Incarceration infringes fundamental rights. When a government policy infringes fundamental rights, the policy must be narrowly tailored to a compelling interest. The drug war does not work, so the policy is not narrowly tailored. So the incarceration of drug offenders is unconstitutional. The article spells this out in great detail, with 30 pages of text and 50 pages of endnotes.

I'm thinking about adapting the argument into a "interests of justice" motion. Combining a "good" defendant (such as a college student with a clean record) with the argument, and adding in some appropriate witnesses on other issues (defendant's character, police conduct, etc.) might put this argument over the top. We'll see if I can get this going.
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