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THE ULTIMATE PUNISHMENT

California is one of 30 states in which the death penalty is legal. In the last election, California voters voted to keep capital punishment legal (Proposition 62) and, beyond that, voted to speed up the process (Proposition 66). Proposition 62 would have replaced the punishment for those convictions under which a person could be sentenced to death to life imprisonment without the possibility of parole. The California voters soundly defeated this proposition with 53% of the voters voting nay. A corollary proposition, Prop 66, approved by 51% of the voters, shortens the time a death row inmate can take to appeal his or her sentence to a maximum of five years. Opponents of Proposition 66 have filed a lawsuit in the Californian Supreme Court challenging the legality of Proposition 66. That lawsuit is pending.

So what is the fate of an estimated 750 death row inmates presently sitting out their time in California prisons? The last time a person was executed in California was in January 2006, when 76 year old Clarence Ray Allen was put to death by lethal injection. A month after Mr. Allen’s execution, the U.S. District Court blocked a scheduled execution after a lawsuit was filed challenging the lethal injection protocol as cruel and unusual punishment. Since this challenge, there has been an almost eleven year stay on lethal injections in California. That stay was challenged in 2010, but the Ninth Circuit Court of Appeal ruled that the stay continued to apply. Even though no one has been executed in this state since 2006, prosecutors continue to ask for the death penalty and new death row inmates are added to the prison population every year.

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Researchers have discovered a there is a genetic link between personality and mental illness. As one of the researchers explained: “Mental illnesses can be viewed as maladaptive or extreme variants of personality traits.” The researchers studied the genetic profiles of 260,000 people focusing on the five long-established personality traits (extraversion, neuroticism, agreeableness, openness to experience and conscientiousness) that are considered the basic categories of personality. What the researchers found was that these personality dimensions when identified on a person’s genome map (yes, there are “personality genes”) strongly correlated to gene variations that predicted various mental illnesses.

Now you might say, “What’s new?” It is observable in our everyday life that people we know who have, for example, a neurotic personality also tend to have anxiety disorders and depression. These links between personality and mental illness have long been observed and studied. What this study reveals however is that there is a genetic link; in other words, it’s not all nurture. The researchers theorize that the personality a person is born with may tip over into mental illness when pushed to extremes by life experiences.

This field of research, which is sure to eventually unlock the keys to mental illness, is a potential minefield in terms of the criminal justice system. It would not be a stretch to say that many criminals are born. In other words, a criminal is born with a certain personality type—as are we all— but the criminal personality is one susceptible to the risk of mental illnesses, such as antisocial disorders or psychopathy. Indeed, it is estimated that more than half of all incarcerated criminals have some kind of mental illness. (Removing the large numbers of persons incarcerated for victimless crimes would increase that percentage substantially.)

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On November 8, 2016, California voters passed Proposition 57, The Public Safety and Rehabilitation Act of 201, by an overwhelming majority of 64%. This proposition contained two key provisions:

1) It makes certain non-violent felons eligible for immediate parole and

2) It requires a court hearing before a juvenile can be tried in adult court.

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Until the passage of Proposition 57 on November 8th, minors over the age of 14 charged with a criminal offense would often find themselves directly charged in adult court rather than juvenile court. The two courts are very distinct because the focus of court in a juvenile criminal matter is rehabilitation and education whereas a juvenile who faces charges in criminal court will be treated as an adult and faces the same punishments an adult would on the same charges.

Prior to the passage of Prop 57, prosecutors could, and were often mandated to, directly file charges against a juvenile age 14-17 in adult court. In those cases where the juvenile 14 years or older, direct file was mandatory under the law for certain serious felonies such as murder and many sex crimes. For other crimes, the prosecution could file the charges against a child as young as 14 directly in adult court under what was known as discretionary direct file. Many of the laws regarding direct file were a result of an earlier proposition passed by California voters in the year 2000, known as Proposition 21. Proposition 57 reversed the “get tough on juveniles” sentiment of Proposition 21.

Now under Proposition 57, which became the law on November 9th, prosecutors can no longer directly file charges in adult court under any circumstances. The law now requires a hearing before a juvenile court judge before any person who committed a crime while under the age of 18 can be transferred to adult court on criminal charges. Additionally, prior to Proposition 57, the prosecution could move the juvenile court to transfer the matter to adult court in what was called a “fitness hearing” for those juveniles whose case was not “direct filed.” The criteria under which juvenile judges were mandated by statute to consider the transfer favored the prosecution. Now, all juveniles charged with a crime will appear before the juvenile court in a “transfer hearing,” which requires the juvenile judge to consider five criteria:

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PETITION UNDER PROPOSITION 64 TO DISMISS AND SEAL OR TO REDUCE A PRIOR MARIJUANA CONVICTION

By a hefty margin of 56%, Prop 64 was passed in California on November 8. It is now legal for Californians over the age of 21 to possess, transport, and buy 28.5 grams (a little over one ounce) of marijuana for personal use. It is also now legal to grow up to six marijuana plants at a time.

So, what about all those Californians who were arrested and convicted for possessing or transporting amounts of marijuana now legal under the law?

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Dystopian films and literature are usually thought of as science fiction, but while this entertainment might be classified as fiction, it often portends a future that may already be here. That is especially true when it comes to crime fighting. In my previous post, I discussed a few of the tools now at law enforcement’s disposal that would have been considered science fiction only a generation ago. Are we heading towards a world with oppressive societal controls and a loss of civil rights as the dystopian novels and films depict? Many civil rights advocates fear just that.

One of the emerging crime fighting techniques is facial recognition and many fear that this technique not only violates the rights of innocent people. There is also legitimate concern about facial recognition errors identifying innocent people. No one really knows how widespread the use of this law enforcement technique is because there are very few controls or reporting requirements and almost zero transparency. Police can scan images from virtually any photograph, including DMV photos, social media, and even video webcams set up to scan the public. Facial recognition software can then be used to scan through these digitized images to look for a match in the search for a suspect. What’s wrong with that, you might ask?

Well, to begin, it is essentially a virtual lineup. Maybe you are in that lineup and you don’t even know it – actually you may have already been in one of these lineups or soon will be. Remember, law enforcement is able to scan through thousands of images at the push of a computer button.

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The Brave New World of Law Enforcement Investigation

The digital age has changed everything in the world around us and law Enforcement is no exception. Back in the old days, police investigation procedures were limited to talking with potential witnesses, taking lots of photographs, lifting fingerprints, forensic analysis of blood, and that sort of thing. Now law enforcement has investigation tools that make their job easier and make it harder for the criminal to “get away with it.” But these tools present their own dangers to the public. As civil rights advocates warn, the brave new world of law enforcement tools endanger our civil liberties. I will discuss why this may be so in my next post but today, let’s review just a few of the new age law enforcement tools.

We might begin with DNA analysis, which was no doubt the first huge law enforcement tool of the digital age. We are all familiar with DNA analysis, but it’s pretty amazing to think that it has only been around since the mid-1980s. DNA has proven to be a very effective law enforcement tool and on the flip side, DNA evidence techniques have freed individuals who were wrongly convicted of a crime.

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NEW CALIFORNIA LAW PULLS IN THE REINS ON LAW ENFORCEMENT’S SEIZING OF PROPERTY

You have probably heard of civil asset forfeiture but did you know that under this procedure law enforcement can confiscate property—be it money, a house, a vehicle, or any other asset—without any due process to the owner of the property. The property can simply be seized under civil asset forfeiture laws on the “suspicion” that the asset was gained by or used for a criminal enterprise.

While the owner of the asset can petition for the return of asset, the petition must be filed within a very short period of time and the process is daunting. In the end, the government can refuse to return the asset on the continuing suspicion that the asset is connected with criminal activity. And guess what: Even if the owner of the asset is never convicted of any crime as it relates to the suspected criminal activity for which the asset was seized, the asset is not returned to the owner.

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In earlier blog posts, I discussed the CalGang Database, a database collected and used by law enforcement throughout California. I discussed how this database is kept in secret and many who are included in the database are unaware of their inclusion and worse yet, many who are listed in the database are listed in error.

In a victory for the civil liberties and social justice organizations that pushed for it, a new law was just signed by the governor, to go into effect on January 1, 2018, that is designed to end the secrecy of this database and give those on the database an opportunity to contest inclusion of their name on the database. This is an important piece of legislation because inclusion on this database can have serious consequences and affects the due process rights of those who have been placed on a gang database.

As I previously discussed in earlier blog posts, a person might be put in a gang database for simply being in detained by the police in a certain neighborhood or even put on the database in error. For those later arrested for a crime, being in the database will, in many cases, result in the prosecution alleging gang enhancements, which necessarily carry greater punishments than the underlying crime itself. For undocumented immigrants, being included on a gang database can be cause for their deportation without hearing, even if they are mis-classified on the database.

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In 2015, Orange County Superior Court Judge Thomas Goethals removed the Orange County District Attorney’s Office from the trial of Scott Dekraai, who was accused and since convicted of the worst mass murder in Orange County. Judge Goethals booted the District Attorney’s Office from the case after an investigation initiated by the defendant’s lawyer revealed that law enforcement investigating the case withheld material evidence from the court. Law enforcement officers are agents for the District Attorney and as such, the judge found that the District Attorney’s Office was responsible for the illegal withholding of evidence in the trial. Although Judge Goethals found that the district attorneys on the case had committed serious misconduct, but concluded that their actions were not intentional.

Some legal observers would beg to differ with the judge’s ruling. Many defense attorneys have long suspected, or even known, that the District Attorney’s Office regularly withholds exculpatory evidence at trial. Sometimes a trial seems more like a competition, with the District Attorney out to win at all costs, than the right guaranteed by our Constitution for a fair and impartial presentation of facts to be heard and decided by a trial of peers. This is not only a violation of the defendant’s due process rights but it perverts the criminal justice system. The withholding or distortion of evidence denies a defendant a fair trial and, worse—it can (and has) result in the conviction of an innocent person.

Jumpstarted by the events in Judge Goethals courtroom, Assembly Bill 1909, was signed into law by Governor Brown last month. This law, which will be added by a subdivision to Penal Code section 141, punishes prosecutors who are found to abuse their power by “intentionally and in bad faith” tampering or withholding evidence in a criminal trial. The new law requires that the prosecutor knew the evidence was “relevant and material to the outcome of the case” and acted with “specific intent.” In the Orange County case, Judge Goethals found that the district attorneys did not act intentionally. So even though this new law was prompted by the actions in that trial, the district attorneys involved would not be prosecuted under this new law.

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