Articles Posted in Criminal

While California prepares to license its first recreational cannabis shops next month, there are hundreds of thousands who have a marijuana-related criminal conviction for conduct that is now legal or less severe under the new laws. Some of these individuals are still incarcerated and some are on probation, but the majority have served their sentence but have a criminal record reflecting the conviction, which often places barriers to employment, professional licensing, firearm purchases, and even traveling to Canada.

Along with the legalization of recreation marijuana, Proposition 64 also included provisions for the reduction of criminal penalties for former marijuana convictions and for resentencing or dismissal of certain prior convictions for the sale of marijuana. Furthermore, certain convictions for conduct that is now legal under Prop 64 (generally, the personal use or possession of recreational marijuana for personal use) can now be dismissed and the record sealed. These remedies are not automatically granted. An individual seeking relief under these new provisions must petition the court for the relief and the court.

For persons who are currently facing sentencing on a marijuana charge or who are serving a sentence, whether in jail or prison, or on probation, the process requires the filing of a petition with the court which can be denied by the court under certain conditions. Eligibility for this petition is not available for all marijuana-related offenses and the petition requirements can be confusing, especially if the matter requires resentencing or custody credits. But the petition is well-worth filing. If successful, it can mean release from jail, prison, or probation and/or a significant reduction in a person’s sentence. It is advisable that an individual seeking relief under these circumstances consult with a knowledgeable criminal defense attorney.

There are kangaroo courts….and then there are donkey jails. While kangaroo courts don’t actually have kangaroos sitting in court, donkey jails do indeed have donkeys cooling their hoofs in jail, at least in one town in India. In the Northern Indian town of Orai, eight donkeys found a tasty meal that just happened to be expensive saplings outside of the local jail complex. When the donkeys were caught red-hoofed chowing down on the pricey plants, the local police constable took it into his own hands. The furry criminals were arrested and herded off to jail. Hard to believe, but apparently this is true; even the New York Times reported the story. And there is some “cute animal” video footage of the arrest; it’s a nice break from cat videos.

The donkeys’ owner was in a frantic search for his animals. When he found out they were in the big house, he begged the police to set them free. But apparently the poor owner could not afford the bail. So, he sought justice through his local politician. Reportedly the bail was paid by the politician and the donkeys were released. The donkeys spent a total of four days in jail, there is no report as to whether they complained about the jailhouse food.

Now lest you think this Indian town is just a bit foolish, the jail superintendent explained that there is not really a donkey jail in Orai and donkeys can’t really be arrested. The donkeys were taken into “custody” to teach their owner a lesson. The owner had been warned repeatedly about his animals roaming in the town but had done nothing about it. Still, you have to admit, this story makes great copy and is good for a chuckle.

A little over 20 years ago, the Violent Crime Control and Law Enforcement Act of 1994 was passed by an act of Congress. The act was precipitated in part by the increased attention to violent crime including street gang violence and mass shootings. The bill was introduced by the federal government as part of the “get tough on crime” climate of that era. It was sweeping legislation that continues to be in force today. Among the many legislative staffers who worked on the bill was GOP staffer Kevin Ring. Twenty years later, Mr. Ring was convicted by the federal government on fraud and conspiracy charges in connection with an illegal lobbying scheme. He was sentenced to 20 months in prison and served his time in a minimum-security prison until his release in 2015.

Now the former lobbyist, lawyer, and legislative aide who fought for and believed in tougher criminal laws has had a change of heart. Looking back, Mr. Ring says that too many bills are written by 20-year-olds with no experience but a lot of opinions. That’s a frightening statement but it is true. The “Hill” is staffed by mostly young people, Mr. Ring himself was in his mid-20’s when he helped push through the Violent Crime Control and Law Enforcement Act of 1994. Now with more experience and some prison time under his belt, he along with two other former GOP operatives who ended up in federal prison are working on prison reform. They have some strong allies in Mark Zuckerberg and the Koch brothers, who are helping to fund their initiatives.

Mr. Ring is president of FAMM (Families Against Mandatory Minimums), which advocates for humane and individualized sentencing. The focus of FAMM is the mandatory minimum sentencing, which allows little to no discretion in sentencing offenders for certain crimes. More than one-fifth of federal offenders sentenced last year were sentenced under a mandatory minimum sentence. Mr. Ring believes that mandatory minimums are not only inherently unfair but inflate the sentences across all offenses, even those not subject to mandatory minimum guidelines.

When a person is arrested in California for a felony, and some misdemeanors, he or she will be detained—most often at the county jail—until an arraignment before a judge. At the arraignment, the judge will set bail, or in some cases release the defendant on their own recognizance. Depending on the seriousness of the crime, the bail amount can run into the tens of thousands or hundreds of thousands, sometimes even millions, of dollars. If the defendant has the resources to pay the bail, which will usually be 10% of the bail amount paid to a bail bondsman. Current law mandates the bail system and its due for reform.

Consider that the way it is set up now: those who have limited resources often find themselves unable to post bail. Even though they are still innocent of the crime for which they are charged, they will remain incarcerated because they don’t have the funds to pay a bail bondsman. It is not as uncommon as you might think to see a person’s freedom taken away for months, even years, only to be acquitted of the crime for which they were accused. On the other hand, a person with enough resources who is charged with a crime, even one that is very serious (even a person charged with murder may be entitled to bail), will be able to secure his or her release from jail. This is an inherently unfair system.

In 2016, the Chief Justice of California established a Pretrial Detention Reform Workgroup to analyze pretrial detention in California and recommend policy reform. The panel, which consisted of Superior Court Judges from a variety of California counties just published its findings and recommendations. They came up with ten recommendations for pretrial reform:

For almost as long as the federal government has harshly prosecuted drug use, researchers have been studying the psychologically beneficial effects of the very drugs that can land a person in prison. Clinical studies on both animals and humans have demonstrated the beneficial effects of many hallucinogenic drugs in treating PTSD, anxiety, depression, addictions, and other mental health disorders. Drugs, commonly taken recreationally, such as LSD, Ayahuasca (DMT), Ecstasy (MDMA), and magic mushrooms (psilocybin), show varying degrees of promise in a clinical setting. These drugs, along with marijuana, are currently classified as Schedule 1 drugs by the federal government. A Schedule 1 classification means that “there are no currently accepted medical use and a high potential for abuse.”

The Multidisciplinary Association for Psychedelic Studies (MAPS), a research and educational organization focused on discovering beneficial uses of psychedelics and marijuana, with a goal of translating those benefits into safe and legal prescription medicines, has long lobbied the U.S. Food and Drug Administration (FDA) to move forward to that goal. Recently MAPS succeeded in its efforts to convince the FDA to consider MDMA as a treatment for PTSD. The drug received “Breakthrough Therapy Designation” by the FDA, meaning that the FDA has agreed that MDMA may be a better treatment for PTSD than what is currently available. In granting this designation, the FDA has indicated the FDA’s intent to assist in the development and review of MDMA treatment for PTSD, putting MDMA above the other PTSD therapies up for review by the FDA.

MDMA, the main ingredient in the recreational drug known as Ecstasy or Molly, binds to serotonin transporters, giving the user feelings of euphoria. We’ve all heard of the “love” that Ecstasy users experience; this is a product of the flood of serotonin in the brain. Researchers have found that these feelings of euphoria and empathy open the otherwise troubled mind of a PTSD sufferer to psychotherapy. Using established psychotherapy techniques, a trained psychotherapist employs these techniques on the PTSD sufferer while he or she is under the influence of a controlled dose of MDMA.

INDEFINITE CONFINEMENT MAY ENSUE-NOT GUILTY BY REASON OF INSANITY PLEAS

It is estimated that over 10,000 people who have never been convicted of a crime are incarcerated in the United States. The states, under various statutes, confine individuals to mental health facilities who are found not guilty by reason of insanity or who are found mentally incompetent to stand trial. While these individuals are not considered “incarcerated”, for all intents and purposes, they are. Technically, they are hospitalized—against their will and with no liberty to end their hospitalization.

The New York Times recently profiled a man in his early 40’s who has been confined against his will in a New York State psychiatric facility since he was 20 years old. He was accused of rape—a crime that carries a sentence of 5 to 25 years in prison in the state of New York. But this man was never tried or convicted for the crime. Prior to his trial, doctors diagnosed him as having borderline personality disorder. Without fully understanding the consequences, the diagnosis allowed him to plead “not guilty by reason of insanity.” The court, by accepting this plea, found him legally not responsible for the crime. In New York, this plea allows an indefinite detention in a mental health facility.

Fire season is upon us and Firefighter Crew 13-3 is ready to swing into action. But Crew 13-3 isn’t the firefighting crew you imagine. Crew 13-3 is an inmate firefighting crew, stationed in Malibu, is one of many inmate crews stationed throughout California. You might be surprised to learn that there are approximately 4,000 inmate firefighters in California. Depending on the location, that makes up between 50 to 80 percent of all ground firefighting crews. The job is offered to inmates who volunteer and are physically able. Most inmates who qualify are incarcerated for low-level crimes, often associated with drug- or alcohol-related offenses. Both men and women serve these crews and, as you might suspect, the work is dangerous and the pay is low.

This program, known as the Conservation Camp Program, has been around since 1946. It is estimated to save California tax payers roughly $100 million a year because the inmate crews are paid a maximum of $2.56 a day—far less than a civilian firefighter is paid. But the work comes with some perks. The inmates aren’t incarcerated in prison; rather, they live in “Conservation Camps” that are more like retreats than prison. The food is good, the scenery is often exquisite, family visits are allowed, and some camps have vegetable gardens, yoga and meditation sessions, among other amenities that most prison inmates don’t enjoy. There is a camaraderie among the inmates that is not found in a traditional prison and many of the inmates report great satisfaction from the work.

The state recognizes that prison incarceration often fails to rehabilitate the defendant. And in the state’s self-interest, the state also recognizes that incarcerating criminals whose crimes were not violent, puts a burden on the prison system. Alternative sentencing schemes are available to address both of these problems. This Conservation Camp Program is one of many alternative sentencing options that are available to persons convicted of crimes in California.

While Orange County law enforcement has been dealing with its own evidence scandals, what has been happening in Baltimore, Maryland rips open the suspicions some have expressed for many years about law enforcement tampering with or planting evidence. Thanks to police body cameras, we are now witness to what appears to be outright manufacturing of evidence by the police, at least in Baltimore. There is no reason to believe that the Baltimore Police Department is the only law enforcement agency in the country that plays loose with the evidence.

Two incidents of police planting evidence in Baltimore have been recently exposed. In both instances, it is believed that the officers involved were not aware that their body camera was running at the time. Is this the tip of the iceberg?

The first exposure involved an incident in January where officers were investigating a drug suspect behind some empty row houses. Unbeknownst to the officer, his body camera was recording as he placed a plastic bag of drugs inside a can in the alley. He then manually turned on his body camera and announced to the other officers that he was going to check the alley. Lo and behold, he finds the can. The suspect was arrested and unable to post bail. It wasn’t until June when the defense attorney representing the suspect received and viewed the body cam footage that the acts of the officer were discovered. After six months in jail, the charges were dropped against the suspect after the body cam revelation.