Our Federal Prisons Are Fueled By Drugs

That’s the takeaway from this report by the federal courts and U.S. Sentencing Commission.

To summarize, there are almost 200,000 people in federal prison today, and almost half of them (or 48%) are there for drugs. Almost all of them (93%) are men, and the vast majority are young, minority men. The breakdown is 35% Hispanic, 35% black, and 27% white.

Here are the top five types of cases:

  1. Drugs (48%)
  2. Guns (19%)
  3. Immigration (8%)
  4. Child pornography and sex offenses (7%)
  5. Major frauds (5.8%)

For fraud cases, the median dollar loss was $800,000, in case you were wondering.

For the drug cases, here’s the breakdown among drugs:

  1. Methamphetamine (32.8%)
  2. Powder cocaine (24.2%)
  3. Crack cocaine (20.9%)
  4. Heroin (9.5%)
  5. Marijuana (8.4%)

Finally, the report shows how often people are sentenced below, above, or within the range that’s recommended by the federal sentencing guidelines. Here’s a crash course on the guidelines if you want to know how they work.

  • Half were sentenced within the guideline range (50.4%)
  • A quarter were sentenced below the range with the government’s support (24.7%)
  • One-fifth were sentenced below the range without the government’s support (21%)
  • Relatively few were sentenced above the guideline range (3.9%)

Can They Search My Phone at the Border?

Suppose you go to visit your aunt in Italy, and you take your phone and tablet with you.

When you come back through customs, can they just search your devices willy nilly?

Probably. Here’s a good overview of your rights at the border, along with some practical considerations. It’s worth reading ahead of time because the government is stepping up its enforcement at points of entry, and there have been some heavy-handed run-ins lately between agents and travelers, including U.S. citizens.

The general rule is that customs and border agents may conduct routine, reasonable searches of you and your belongings, including your electronic devices, for any reason or no reason at all. They don’t need a warrant, and they don’t need any basis to believe they’ll find evidence of a crime. It’s known as the Fourth Amendment’s border-search exception.

But how far can they go?

Can they conduct full, forensic searches or force you to give up your passwords?

According to this 2009 policy memo, the answer is yes. It says agents can seize your device, copy its contents, and search them. To do so, they can hold a device for up to five days with a supervisor’s approval. For longer periods, they must get further approval at higher levels. Ordinarily, they must conduct the search in the presence of a supervisor, too, but if that’s not feasible, they must inform a supervisor about their search as soon as possible. If they find probable cause to believe your phone contains evidence of a crime, you may not get it back for a while, if at all. If they don’t, you should get your phone back eventually, and they’re supposed to destroy any copied information.

The law is evolving, however, to require at least a reasonable suspicion for a full forensic search. That’s already the case in the federal circuit that covers California and eight other states, and the law should continue to trend in that direction. What is a reasonable suspicion? It’s a particularized and objective basis for suspecting someone of a crime.

Still, reasonable suspicion is not a tough legal standard to meet.

Plus, agents can always just ask you to unlock your phone or give up your passwords, and if you refuse, they have plenty of ways to coerce you. They can take your phone; detain you, too; search your bags more thoroughly; deny you entry if you’re visiting; or scrutinize your green-card status. Most folks just want to be on their way.

So happy trails, traveler. Leave the phone, perhaps, but take the cannoli.

New California Criminal Laws in 2017

Let’s get right to it.

We already covered three of them in prior posts. One was Proposition 64, which legalized recreational marijuana. Another was Proposition 57, which expanded parole eligibility for nonviolent felons and cut back on prosecuting kids as adults. A third was Assembly Bill 1909, which made it a felony for prosecutors to commit Brady violations in bad faith.

Here are five more.

Ransomware is a form of extortion. This is Senate Bill 1137. It amended the Penal Code to punish anyone who introduces ransomware into a computer system or network. It doesn’t matter whether you actually got the ransom or not; it’s a felony punishable by two, three, or four years in the county jail. See Pen. Code § 523.

New business search warrants, less drama. This is Senate Bill 1087. It amended the Evidence Code to make it easier for innocent businesses to comply with search warrants for their records. Now, if a business is not a subject of the underlying investigation, it may be able to produce its records by mail or in some other arms-length way. That’s a lot better than having agents show up to go through your stuff. See Evid. Code § 1560(f).

New motion to vacate a conviction or sentence based on immigration consequences or fresh evidence of innocence. This is Assembly Bill 813. It allows you to ask a court to throw out your case in two situations even though you’ve served out your sentence. The first is if you pleaded guilty because of a legal mistake that undermined your ability to understand the immigration consequences of your plea. The second is if you can present fresh evidence that you were innocent. See Pen. Code § 1473.7.

No more possibility of probation for sex offenses where the victim was unconscious or too intoxicated to consent. This is Assembly Bill 2888. It eliminated probation as a possible sentence for rape, sodomy, oral copulation, or sexual penetration with a foreign object if the victim was unconscious or too intoxicated to consent. It extended a rule that already applied to other, serious sex offenses. See Pen. Code § 1203.065.

No more statute of limitations for felony sex and child-molestation cases. This is Senate Bill 813. It eliminated the statute of limitations for a litany of sex crimes, which now may be prosecuted at any time. Previously, they had to be prosecuted within ten years, or if the alleged victim was under 18, before he or she turned 40. See Pen. Code § 799.

The Price of Freedom is Eternal Vigilance

Antonin Scalia didn’t coin that expression, but the late Supreme Court Justice, who died one month ago, once delivered a speech that touched on a similarly uncomfortable notion.

Nearly two years to the day before his death, Scalia was speaking to a group of law students at the University of Hawaii, and he was asked about the Supreme Court’s infamous Korematsu decision from 1944. That’s the case in which the Court approved, by a 6-3 vote, the constitutionality of an executive order that forced the internment of all persons of Japanese descent, including American citizens.

Although Scalia unequivocally called the Court’s decision wrong, he also imparted the following admonition to his audience: “But you are kidding yourself if you think the same thing will not happen again.”

To explain himself, he referred to an older, Latin expression: “Inter arma enim silent leges … In times of war, the laws fall silent.”

And he went on to say, “That’s what was going on—the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again—in time of war. It’s no justification but it is the reality.”

I wouldn’t be surprised, either, and I hope I’m wrong about that, but we’d be wrong to presume that it will never happen again because we’re so much better than we were or because we’ve evolved beyond our basic fears and instincts.

Sometimes, in fact, it seems we scare more easily than ever.

Whether or not you agree with Scalia on other points—and there’s plenty of grist for debate—the foregoing remarks reminded me that the price of freedom—and a better tomorrow—is eternal vigilance by this generation and every one to follow.

New California Criminal Laws: Part Deux

To conclude our two-part series on the state’s new criminal laws, here are three more important ones that went into effect on January 1, 2016.

Both prosecutors and defense attorneys must account for the immigration consequences of a plea deal. This is Assembly Bill 1343. It amended the Penal Code to reflect that defense lawyers must advise noncitizens accurately about the immigration consequences of a proposed guilty plea, and they must ethically defend against such consequences to the extent they can. This is not new, but the statute confirms state and federal case law to that effect. What is new, however, is that prosecutors must also consider such immigration consequences as a factor in their plea-bargaining efforts to reach a just outcome. See Pen. Code §§ 1016.2 & 1016.3.

It’s not a felony to transport marijuana, phencyclidine, or mushrooms unless you’re doing it for sale. This is Assembly Bill 730. It amended the Health and Safety Code to bring the treatment of these drugs in line with that of cocaine, heroin, and others. Two years ago, the state amended its drug-trafficking laws to preclude felony charges for just transporting most drugs unless you were actually trafficking, too—that is, transporting for sale; but the bill left out marijuana, phencyclidine, and psilocybin mushrooms. This bill fixes that. See Health & Safety Code §§ 11360, 11379.5, & 11391.

The police (but not your neighbor) may continue to use pen registers and trap-and-trace devices to investigate you. This is Assembly Bill 929. It amended the Penal Code to provide for police to apply for pen registers and trap-and-trace devices. What are these? Well, pen registers capture and record all the numbers of the phones or devices that you call or send messages to (but not the content of your communications), while trap-and-trace devices capture and record all the numbers of the phones or devices that call or send messages to you (but not the content). They’re often used in tandem, and they’ve been authorized by case law for a long time, but no California statute codified their use until now.

To use them, the police must apply for a court order, certify that the information is relevant to an ongoing criminal investigation, and show probable cause to believe the information will lead to evidence of the crime. If granted, the court order is good for sixty days, and it may be renewed for another sixty days. But if someone installs or uses such devices without a court order, it’s a crime. It may be charged as a felony or a misdemeanor, and it’s punishable by a fine of up to $2,500, imprisonment in the county jail for up to three years, or both. See Pen. Code §§ 638.50, 638.51, 638.52, & 638.53.

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