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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.

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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.

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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.

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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.

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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.

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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.

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On the night of January of 2015, two Stanford University graduate students were bicycling on campus when they saw a male behind a dumpster. The male was on top of a female who appeared to the grad students to be unconscious. The grad students approached to investigate at which point the male ran away, leaving the unconscious female lying, nearly naked, on the ground. One of the grad students chased the male, restraining him until the police arrived. The male turned out to be a 19-year-old Stanford University student athlete swimmer, Brock Turner. Mr. Turner was charged with felony sexual assault. The case went to a jury trial after Mr. Turner refused to accept a plea bargain.

At the trial in early 2016, it was established that both Mr. Brock and his victim attended the same party where the both became highly intoxicated. They did not know each other prior to the party. Mr. Brock insisted that the sex behind the dumpster was consensual. The victim testified that she didn’t remember anything and would not have given her consent to a strange man to have sex behind a dumpster. Ultimately, the jury convicted Mr. Brock on three felony charges of sexual assault. The convictions exposed Mr. Brock to a potential 14 years in prison.

But at the sentencing, the judge sentenced Mr. Brock to six months in county jail and a three-year term of probation. Mr. Brock, by operation of law, was also required to register as a sex offender for the rest of his life. There was an immediate outcry at the seemingly light sentence. The details of the assault, as they came out in the trial, were brutal and the jury verdict established that the victim did not consent. Many people were outraged by the verdict because they believed it was unusually lenient due to the fact that Mr. Turner was a privileged white student at Stanford University. If the perpetrator had been a non-white underclass 19-year-old, the critics argued, the sentence would have been far harsher.

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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.

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We are all familiar with the term “statute of limitations” but what does it actually mean. In criminal law, it refers to the time in which a person can be prosecuted for a particular crime according to the statute (law). Each state has devises its own statutorily defined time in which a person can be charged with a crime and the federal government has its own statute of limitations for federal crimes.

In California, crimes that can be punished by death or life in prison without the possibility of parole have no statute of limitations, nor do crimes for the embezzlement of public funds. In 2016, a new bill was signed into law that removes the statute of limitations on prosecutions for certain sex crimes, including rape and child molestation. Previous to this law, rape had a ten-year statute of limitations and sex crimes against children had to be prosecuted before the victim turned 40.

All other crimes have a specified number of years under the California statute in which the prosecutor can charge those crimes, but it’s complicated. Generally, misdemeanor crimes must be prosecuted within one year of the date of the crime while felonies must be prosecuted within three or six years depending on the applicable punishment for the crime. Those crimes that are punishable by imprisonment have a three-year statute of limitations, but if the crime is punishable by imprisonment for eight years or more, the statute of limitations bumps up to six years. There are many exceptions. For example, some crimes against a person over the age of 65 have a five-year statute of limitations and some white-collar crimes such as fraud and embezzlement have a four-year statute of limitations.

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Ah, the Ford Fusion. With apologies to those who own one, it may be the most boring car ever. Well, maybe not anymore. Ford Fusions are made in Hermosillo Mexico and then shipped to Ohio. Some of those Fusions have been carrying a secret. Turns out that numerous Fusions have been found to be carrying lots of weed—that’s marijuana for you Fusion owners—in the spare wheel well. At one Youngstown, Ohio Ford dealership, DEA agents found marijuana worth a million dollars in the wheel wells of Fusions newly shipped from Mexico. Marijuana has also been found in Fusions in 15 other cars in Ohio, and in Fusions in Pennsylvania, Minnesota, and Arizona. I guess this is giving new meaning to the term “car dealership.”

Just during the two months of February and March this year, around 1,100 pounds of marijuana were discovered hidden in 22 newly manufactured Fusions coming to the US from the Mexican plant. In February, another fifteen Fusions on a railcar in St. Paul were reported to the police. Thirteen of the cars had already been shipped out to dealerships and three ended up at the Enterprise rental location at the Minneapolis-Saint Paul International Airport. (Imagine unsuspectingly renting one of those cars and ending up with the police finding it. That’s an immediate arrest despite your protestations that you knew nothing about it.) All 15 cars were recovered by the police with the after-market “extras” still hidden in the spare tire compartments. Each car had between 40 and 60 pounds of marijuana hidden in the spare tire wheel well.

There are many other instances of Fusions “infused” with weed and that’s only the marijuana that has been found. To be sure many more Fusions have entered the US loaded with the “extras” that were intercepted and removed by co-conspirators before the Fusions hit the dealership showrooms.

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