by

Sometimes a person is arrested for a crime they did not commit. In the nightmare scenario, they are charged and maybe even convicted. But often the prosecutor declines to prosecute or, if charged, the charges are dismissed or the person is acquitted.

For example, say you are at a party and someone starts a fight. You are in the fray but only as a spectator. You do not throw a single punch or otherwise harm anyone, but some of the participants are injured. The police arrive and you find yourself arrested for aggravated assault, which is a serious charge. The subsequent police investigation exonerates you: plenty of witnesses tell the investigators that you were not one of the participants but only standing on the sidelines. The district attorney recognizes that there is no reason to pursue charges against you. All you suffered is the arrest and nothing else; you are in the clear, right?

Not exactly. That arrest is now on your otherwise pristine California Department of Justice criminal history record (commonly called a “rap sheet”). In the era of instant information, having an arrest show on your criminal record means that current and future employers may find out about it, your school may learn of it, even your landlord may know. Furthermore, if you have a job that requires a state or federal license or clearance, the arrest may affect your job or future application for such a job.

Continue reading →

by

Under California Penal Code section 12022.5, when a person uses a firearm during the commission of a felony, he or she will almost certainly be charged not only with the felony conduct but also with an enhancement for the use of the firearm. The firearm need not be engaged or even operable for the enhancement to attach. If the defendant is convicted of the felony and the firearm enhancement is found or admitted to be true, the law requires the court to add an additional and consecutive term to the sentence. The term, depending on the type of firearm used and on the underlying crime, can range from 3 years imprisonment up to 20 years. The sentence is mandatory.

For example, a person convicted of felony assault with a non-assault weapon firearm will face a sentence of 2, 3 or 4 years in prison. But because he or she used a firearm, on top of that sentence, will be an additional 3, 4, or 10 years for use of the firearm. The court can choose the low, middle, or high term depending on a variety of factors but the court must order at least the low term.

Beginning January 1, 2018, changes to Penal Code section 12022.5 go into effect that will give more discretion to the court. The bill, which was signed into law by Governor Brown last week, that makes these changes was introduced after a California senator recognized the inequitable result when a 17-year-old was convicted for a drive-by shooting. The teen was in the car but denied that he was the one who shot the gun. Following the conviction, the judge had no choice but to sentence the teen to 25 years in prison because of the enhancement.

Continue reading →

by

California’s sex offender registry currently lists over 100,000 sex offenders. The registry has a long history; it was first employed (although not in its current form) 70 years ago. It is estimated that around 650 registrants on the list today were first registered in the 19040’s and 50’s. Since many sex crimes in California mandate sex offender registration once convicted of the crime and in almost all cases, the mandate to register is a lifetime requirement, the registry has grown so large that it has become unwieldy. California is one of only four states in the country that requires a lifetime registration. Not only is the registry becoming unmanageable for law enforcement due to the number of individuals on the registry but the registry has also forced many registrants to live on the margins of society thereby imposing a kind of de facto life sentence.

The largest number of sex offenders on the registry, approximately 65,000, were convicted of misdemeanor or non-violent sex offenses. Some of these crimes were presumed by the offender to be a sex act with a consenting, but under age 18, partner (under California law, a minor cannot consent) or for something as non-threatening as indecent exposure. In previous decades, not that long ago, gay people were targeted by the police for having consensual sex in the park. Many of these individuals were arrested for indecent exposure and ended up with a conviction that required them to register as a sex offender. Those individuals are still required to register.

While some of the offenses may be deplorable, they do not in all cases mean the offender is a sexual predator that must be forever watched by law enforcement, yet that is how anyone on the sex offender registry is branded.

Continue reading →

by

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.

Continue reading →

by

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.

Continue reading →

by

PORTUGAL’S DRUG POLICY IS WORKING

As the “War on Drugs” threatens to heat up, we might ask our current administration to take a step back and consider Portugal. In 2001, Portugal decriminalized all drugs—yes, all—including hard drugs like heroin and meth. Critics expected the incidence of drug abuse in Portugal would skyrocket as a result. That is not what happened. Drug use fell over the ensuing 15 years and more importantly, drug-related deaths fell precipitously.

Drugs aren’t legal in Portugal but being in possession of any drug is also not criminal. Rather the country treats drug use as a health issue. Anyone caught with less than a 10-day supply of any drug is required to get drug treatment. There is no criminal charge, no court hearing, and no incarceration. The policy isn’t expected to rid Portugal of drug abuse; rather, the intended outcome is harm reduction.

Continue reading →

by

Equifax Breach: A Cybercrime That Affected Millions of Americans

You have probably heard about the Equifax breach by now. As far as identity theft crimes goes, this was a big one. An estimated 143 million people in the United States may have had their personal information compromised when cybercriminals gained access to the Equifax database, which included social security numbers and driver’s license numbers.

The breach took place from mid-May to July and although it was discovered on July 27, Equifax did not reveal this breach to the public until September 7. It is estimated that over 50% of those with a credit bureau report was affected.

Continue reading →

by

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.

Continue reading →

by

We cannot walk down our streets, drive our cars, or talk on our cell phones without these activities being caught by ubiquitous law enforcement surveillance. Use a cell phone and your location can be easily discovered. Similarly, the license plates of cars everywhere are being continuously scanned and registered in a database. Facial recognition cameras are scanning pedestrians and drivers at every turn. Next time you are walking in town, look up on the light poles and other high public structures. Smile, you’re on candid camera.

This surveillance undoubtedly helps the cops catch the bad guys. I have seen how these techniques have enabled the police to discover the perpetrator of crime and locate him or her quickly. The techniques also often provide the prosecution with solid evidence. The defendant who says, “I wasn’t there” as defendants do, will often find out that the prosecution has irrefutable evidence that the defendant was there. Maybe the defendant’s cell phone signal was running off a cell tower near the location of the crime, maybe the defendant’s license plate was scanned on the street where the crime occurred, maybe the prosecution even has a picture of the defendant from a nearby surveillance camera, and soon, a law enforcement drone or small plane may capture evidence against the defendant. Defendants are often unaware that they have been surreptitiously surveilled – as indeed we all are!

This comes with a price. Every innocent citizen is caught in this web of surveillance implicating our Fourth Amendment Right to be free from unreasonable search and seizure. Many people are willing to be constantly surveilled in trade off for greater crime prevention. But, the wisdom of our Founding Fathers should not be ignored.

Continue reading →

by

In 2014. Governor Jerry Brown signed into a law what is known as “active consent.” This law, incorporated in the California Education Code, applies to California campuses and has often been referred to as the “yes means yes” law. The law requires any post-secondary educational institution that receives state funds for financial student assistance—and basically that means almost every university, college, junior college, or trade school in the state—to enact an “affirmative consent” policy. The affirmative consent policy, as its name implies, means that before there is any sexual activity involving a student there must be ongoing conscious consent. Furthermore, the policy must stipulate that a person cannot give affirmative consent if he or she under the influence of drugs or alcohol to the extent that the nature of giving consent could not be understood. The law does not provide for criminal sanctions but you can easily see how this can be a slippery slope to rape charges.

And that is exactly where this story goes: Two USC undergrads “hooked up” at a club in the wee hours in the morning on April 1st of this year; both were drinking. They ended up in the young woman’s dorm room. Several days later the young man found himself arrested by the Los Angeles Police Department on charges of rape by use of drugs and sexual penetration by a foreign object. The sexual assault was characterized in some newspaper articles as “shocking.”

Apparently, the young woman’s roommate walked into the dorm room in the middle of the alleged assault and the young man left at that point. The young woman reported the sexual assault to USC authorities and told police that she did not remember the encounter. Perhaps she did not.

Continue reading →