When You Walk a Mile in Their Shoes

You may never serve on a jury, but suppose you did.

How would you feel—how would any of us feel—if we voted to convict someone innocent?

This person knows. In 2009, she voted to convict a 17-year-old boy for murder based on the testimony of one eyewitness. The witness and victim were friends, and they were in a car at the time, with the victim driving. They turned a corner and almost hit a pedestrian, which led to a confrontation that ended when the guy pulled a gun, shot the victim, and fled. At trial, the witness took the stand and identified the boy, and that was enough for her and nine other jurors in a state that only required ten of twelve to convict.

When she learned he was innocent, she signed an affidavit that helped free him after nearly ten years in prison. Here’s a local story about his exoneration.

Now when she thinks back to the trial, she sees things differently.

She remembers the boy sitting in court: slumped over, doodling on paper. Back then, she thought his body language seemed cavalier, like he knew he did it but didn’t care. Now she wonders about that, and she sees defeat and despair instead.

She remembers the eyewitness seemed so sure of his identification. Back then, she thought it made sense: If she had seen her friend get murdered, she’d remember who did it, too. Since then, she’s learned that eyewitnesses are often wrong, especially in times of stress and trauma. And yet by the time of trial, they may testify with total certainty.

Today, she wants to sit with the boy and tell him she’s sorry.

And she hopes she never has to be in that situation again.

But if it were me or my loved one, I’d want her on that jury.

Judge Regrets Sentencing Teen to Life Without Parole

Speaking of harsh penalties, how’s 241 years in prison for a 16-year-old boy?

Well, it happened to this boy twenty years ago. The judge who sentenced him told him he’d die in prison. She told him he wouldn’t even be eligible for parole until 2091, when no one he knew would be alive, anyway.

One can forgive the judge her anger. The boy and an 18-year-old friend had robbed a group of six people and shot at two of them. The older boy led the way, but they both had a gun, and they each fired a shot. They could’ve killed someone, but no one was hurt. Then they carjacked and robbed another woman before letting her go. The 18-year-old pleaded guilty and got 30 years. He’ll be eligible for parole this year. The 16-year-old went to trial and lost. He’d already compiled a juvenile record to that point, and the judge was steamed.

But she deeply regrets her sentence now, and she’s joined the boy’s lawyers in asking the U.S. Supreme Court to overturn it.

Their argument is simple. The Court held in 2010 that it’s unconstitutional to sentence a kid who didn’t kill anyone to life without parole. Simply and logically, the same must go for a sentence that doesn’t say “life without parole” but does the exact same thing.

New California Criminal Laws: Part Deux

To conclude the series, here’s the fab five we promised last week.

Kids age 15 or younger must talk to a lawyer before the police interrogate them. This is Senate Bill 395. It amended the Welfare and Institutions Code to require that kids consult a lawyer before they waive their Miranda rights. They can do the consultation in person, by phone, or by video, but they can’t waive it even if they want to. If they don’t get one, a court may exclude their statements from evidence at trial (if it gets there). But it may not as well. And there are exceptions for emergencies. The law expires on January 1, 2025.

Kids whose juvenile cases are dismissed or diverted get their records sealed. This is Assembly Bill 529. It amended the Welfare and Institutions Code to seal records from a juvenile case automatically if the case is dismissed or the kid successfully completes a diversion program. It takes these cases and treats them the same as another recent law that applies when kids complete probation.

More kids get a crack at sealing their records. This is Senate Bill 312. It amended the Welfare and Institutions Code to give kids who weren’t even eligible before a chance. It applies if you were found to have committed an especially serious or violent offense when you were at least 14 years old. Now, a court may consider your petition to seal under limited circumstances. It doesn’t apply if you were required to register as a sex offender. And your records can still be looked at by the courts or district attorney if you get in trouble again. For more on sealing juvenile records, see here.

The state continues to implement Prop 57. Remember Prop 57? It required judges to decide whether a kid age 14 or older could be prosecuted in adult court, and it promised a shot at parole for nonviolent offenders who’ve served the bulk of their sentence. But it also aimed to expand the credits an inmate could earn through good conduct or specific rehabilitative programs. Now, the Department of Corrections and Rehabilitation is finalizing its regulations under Prop 57, and you can find more information about them here.

Your Uber, Lyft, or taxi driver can’t have a blood-alcohol level more than .04. This is Assembly Bill 2687, which passed in 2016. It amends the Vehicle Code to apply the lower limit for truckers and other commercial drivers. The law is effective July 1, 2018.

California’s New Sex-Offender Registry

Big news out of California last week.

Beginning in 2021, the state will replace its current sex-offender registry, which requires everyone to register for life, with a three-tiered system that distinguishes among low-risk, medium-risk, and high-risk offenders.

People in the first tier will be able to petition to end their registration after ten years. You’re in this tier if you were convicted of a misdemeanor or a non-violent, non-serious felony.

Those in the second tier will be able to petition after twenty years. This applies if you were convicted of a serious or violent offense but do not pose a high risk of reoffending.

Those in the third tier will continue to have to register for life. This applies to high-risk offenders, repeat offenders, and sexually-violent offenders.

For juveniles, there are two tiers. Those in the first tier can petition for removal after five years. Those in the second tier can do so after ten years.

In all cases, the district attorney can oppose your petition, and the court can deny it. If it’s denied, you can petition again, but you’ll have to wait at least one year and as many as five.

Almost everyone supported the new law, including law enforcement, which argued the current registry was so large that cops couldn’t focus effectively on the high-risk offenders.

For local and national press coverage, see here, here, and here.

For the text of the new law, see here.

Expunging Juvenile Records in California

If you spent time in juvie, and you don’t qualify to seal your records, you can still petition to expunge your case.

If the court grants your petition, it will set aside the finding of guilt, dismiss the case, and release you from all penalties resulting from it. That’s what the statute says, anyway.

In reality, an expungement doesn’t erase the past or wipe the slate clean. It won’t seal your records and destroy them. It can’t spare you from registering as a sex offender. And if you pick up another case, the prior can be used against you as a strike or other enhancement.

But it’s still worth it because it reflects your rehabilitation and efforts toward it. Your rap sheet will no longer show a conviction as the last line item for the case. Instead, it will show the case as being dismissed. In most situations, you can legally answer that you don’t have a conviction at all. In all situations, you can at least say that the conviction was dismissed, because it was. That can improve your odds of getting that job, loan, housing, or license.

So it gives you a fresh start.

Sealing Juvenile Records in California

In the case we wrote about last week, a California court held that it wasn’t cruel and unusual punishment to require a minor to register as a sex offender for life.

The court noted, however, that a kid could be relieved of this requirement if he got his juvenile records sealed.

So how do you get your juvenile records sealed? Here are the basics in California.

If you are put on some form of probation or supervision, and you complete it satisfactorily, your records should be sealed automatically. That’s new under a law that went into effect in 2015. You can find more information about it here.

Otherwise, you have to petition the court to seal your records. To do that, you must be at least 18 years old or it must be at least five years since the end of your juvenile case. You can’t have a civil lawsuit pending against you because of the case, and you can’t have any adult criminal convictions except for certain misdemeanors. You must apply through the court’s probation department, and you can check this website to see whom to contact in your county. The court may hold a hearing, and it will grant your petition if it finds that you’ve been rehabilitated. That can happen even if you still owe fines, fees, or restitution. If the court denies your petition, you can try again later.

Generally, you’re not eligible at all if you committed an especially serious or violent offense when you were at least 14 years old. You can read more about that here and here.

But you may have a shot if you can persuade the court to dismiss your case based on a special motion that looks at your rehabilitation, your well-being, and the interests of justice. You may bring this motion no matter how long it’s been since your juvenile case ended, so talk to your lawyer. If you win the dismissal then you can petition to seal your records.

Once the court seals your records, your case no longer exists as a public record, and the proceedings are deemed never to have occurred. That means you can legally and truthfully say that you don’t have a juvenile record. Generally, the underlying records aren’t destroyed until you turn 38 years old, and they won’t ever be destroyed in the serious or violent cases. But they may be looked at only in limited situations, such as if you apply to work in the military, law enforcement, or the federal government.

 

Lifetime Sex-Offender Registration for Kids

Do you think sex-offender registration is punishment?

What if it’s for life?

What if it’s for a 12-year-old boy?

Last week, the California Court of Appeal ruled that it’s not punishment to call a kid a sex offender for life because of something he did when he was twelve years old.

According to the court, the boy’s early years were marked by extreme neglect and abuse. He was taken from his mother at age five and shunted from one foster home to another until he was adopted.

Then, when he was twelve, he was processed in juvenile court for pushing a five-year-old boy to the ground and committing a lewd act on him. He was put on probation and ordered to enroll in sex-offender treatment.

After that, he was found to have violated his probation three times: once for hanging out with other minors without adult supervision; once for touching his adoptive sister’s breast, after which he was sent to a group home; and once more for grabbing a boy’s butt there.

At that point, the court put him in juvie and ordered him to register as a sex offender. In California, that meant he would have to register as one for the rest of his life. Wherever he moved, he would have to register with the city police or the county sheriff. If he went to college, he would have to register there, too. Even if he never moved, he would have to register again every year within five days of his birthday.

He appealed on the ground that lifetime registration for kids was cruel and unusual punishment. He also argued that it hindered public safety rather than helped it because it hurt a kid’s chance to live a normal life. Even the juvenile court had acknowledged that it “mess[ed] up the rest of their lives by hanging this tag on them.” Of course, the same could be said for adults, as we’ve explained before.

But the appellate court held that it wasn’t even punishment, let alone cruel and unusual punishment. The court relied on prior cases by the California Supreme Court and the U.S. Supreme Court to that effect. Although those cases didn’t address the question of kids specifically, this court wasn’t going to be the first to carve out an exception for them.

[Update: Beginning January 1, 2021, California will eliminate lifetime registration for many offenses, as we explain here.]

Judge Not, Lest We Be Judged

If you’re still not sold on the power of redemption, I may not be able to sway you.

But consider this guy. He committed a carjacking at 16 and spent eight years in prison for it. Today, at 35, he has a wife, two bouncy sons, and now, a law degree from Yale. He just graduated last month. I guess it’s good we didn’t throw away the key.

His story reminded me of three quotes I saw recently. They each spoke to why we should treat people humanely in our justice system. I saw them in the email signature of a defense lawyer in Texas, and while he and I have never met, I think they say something positive about him, too. If you need a lawyer in his neck of the woods, look him up.

I especially liked how the quotes were attributed to three very different people. An itinerant lawyer and activist. An influential computer scientist. An acclaimed writer and novelist.

Three different walks of life, but they seemed to agree on some things.

  1. Freedom is not worth having if it doesn’t include the freedom to make mistakes.”
  2. “Good judgment comes from experience, and experience comes from bad judgment.”
  3. “Sometimes you make choices in life and sometimes the choices make you.”

Great quotes, all. You live and breathe long enough, you know them to be true.

The Lowdown on California’s Proposition 57

Last week it was Proposition 64; this week, it’s Prop 57.

Voters approved it by a wide margin, but what does it do?

Two things for now.

First, it amended the California Constitution to ensure parole eligibility for people who have been convicted of a nonviolent felony, once they have served the full term for their primary offense. In layman’s terms, that means that you’re eligible for parole once you’ve served the meat and potatoes of your sentence, even if you were sentenced to additional, consecutive time on lesser counts or for sentencing enhancements. But this just means you’re eligible; it doesn’t mean you get released. It just means you’ve got a shot at parole, and something to work toward. No one is automatically released, and no one is entitled to parole.

Second, Prop 57 mandates that a judge must always decide whether a minor age 14 or older should be prosecuted and sentenced in adult court. (Kids 13 and younger don’t go to adult court.) Before, you automatically went to adult court, even at 14, if you were charged with murder or an aggravated sex crime. Or the prosecutor could file your case directly in adult court if you were 16 or 17 and charged with a serious or violent felony or you were 14 or 15 and charged with an especially serious or violent felony. In all cases, the prosecutor could request the juvenile court to transfer your case to adult court, even for a misdemeanor.

Under Prop 57, there’s no direct filing of juvenile cases in adult court, and prosecutors have less discretion to request their transfer. For ages 14 or 15, they may request a transfer only if the kid is charged with a serious or violent felony. For ages 16 or 17, it can be any felony but not a misdemeanor.

Some things haven’t changed, like the criteria for deciding whether a minor’s case should be transferred to adult court. These include the following:

  • the nature and seriousness of the charges
  • the degree of criminal sophistication he displayed, given his age, maturity, intelligence, environment, and upbringing
  • his prior history of delinquency, if any
  • whether he can be rehabilitated by the time he comes of age or close to it

Out of the Mouths (or Lives) of Babes

If you’re on probation, can the court require you to surrender your passwords to your electronic devices and social-media accounts, so they can be searched at any time?

California has been weighing that question lately, and one month ago, the Court of Appeal issued decisions in two separate juvenile cases—one with a girl and one with a boy—that help shed light on the answer.

For starters, courts have plenty of discretion in formulating probation conditions, and when it comes to kids, they have even more latitude than they do with adults because kids need more guidance and supervision, and their rights haven’t ripened to maturity.

The final analysis, however, is the same for kids or adults: A probation condition is invalid if it’s not reasonably related to any of the following: (1) your underlying crime; (2) conduct that is criminal in itself; or (3) conduct that makes it more likely you’ll commit more crime. See People v. Lent (1975) 15 Cal. 3d 481, 486; In re D.G. (2010) 187 Cal. App. 4th 47, 52-53 (applying Lent to juvenile probation conditions).

First, the girl’s case. It began one day when she was meeting with her school counselor, who thought she was high on something because she was acting fidgety and her pupils were dilated. After their meeting, the girl left her purse behind, so the counselor opened it and found a sandwich bag of 30-45 orange pills. The counselor took one of the pills before the girl came back for her purse, and the pill later tested positive for amphetamine.

Subsequently, the girl admitted to misdemeanor possession of ecstasy, and the court put her on probation, which included drug testing as well as searches of her person, room, vehicle, and property.

She didn’t fight those conditions, but another one was that she submit to searches of her electronic devices and surrender her passwords to them. The probation office hadn’t recommended that, and the girl objected to it, but the court wouldn’t budge.

On appeal, however, the court struck that condition because there was nothing in the record that tied the girl’s drug possession to her use of electronic devices. The government argued that she could’ve used her devices to sell the pills, but there was no evidence she ever did that. Since her use of electronic devices was not criminal in itself, and it bore no reasonable relationship to her risk of getting in trouble again, the court struck the condition.

Next, the boy’s case. It began one night when he and his friends robbed and assaulted three different people. The boy was already on probation because of a prior robbery, and he admitted the new violations. The court ordered him detained, and it also ordered all his probation conditions to remain in place, including existing search conditions for his person, room, vehicle, and property. The prosecutor then suggested an additional search condition for his electronic devices, and the court agreed, ordering the boy to submit to searches of his electronic devices and social-media accounts and to turn over all his passwords.

On appeal, the court agreed that the boy, who’d stolen cell phones in the past, would need to submit to searches of devices found in his possession to confirm that he owned them.

But the court stopped short of permitting unfettered searches of the devices he did own or requiring him to give up his social-media passwords. That was a step too far because there was no evidence that the boy used email, text messaging, social media, or other personal data to facilitate his criminal activity, and his personal data implicated not just his privacy rights but those of other kids and people who were not subject to court supervision. So the court modified the electronics-search condition accordingly.

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