A Model Penal Code for the 21st Century

Charging decisions, which we wrote about last week, matter for many reasons. They drive plea bargains, and they affect sentencing. You file a felony, for example, so that the guy will plead to a misdemeanor without giving you much trouble. It happens all the time.

Bad charging decisions, though, don’t just cause wrongful convictions or unjust sentences.

They cause other consequences that continue to torment you after you’ve served your sentence. Your actual sentence may include your jail or prison time, the fines you must pay, or the terms of probation you must follow. You did the crime so you should do the time and pay the fine, right? Okay, but then even after you do, you still may not be able to cast a vote, land a job, rent a home, hold a license, or get a loan. These are the so-called collateral consequences of a conviction.

But the future may be brighter.

Last week, the American Law Institute approved major changes to the Model Penal Code to address these consequences. The ALI is the leading scholarly body that aims to clarify, modernize, and otherwise improve American law. The Model Penal Code is its seminal work in the area of criminal law. It doesn’t have the force of law by itself, but it’s influential. Most states have used it in passing their own laws, and courts cite to it often.

The new provisions would require you to prove, by clear and convincing evidence, that a collateral consequence of your conviction imposes a heavy burden on your ability to rejoin society and that public safety doesn’t need you to suffer it.

If you do that then a court could relieve you from that burden. A court could even issue a certificate of rehabilitation that shields employers, landlords, or others who give you a second chance from civil liability.

Already, state legislatures have been proposing and passing laws to give people a fair shake to prove themselves before dismissing them based on the past.

Hopefully, that momentum keeps building. We should consider what it means to have a record, anyway, when most people either have one, know someone close to them who does, or would have one but for the grace of God. And we should consider how we judge people altogether in a world in which our every action can leave a permanent trace.

The twenty-first century may demand it.

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.

Reduce Your California Felony Conviction to a Misdemeanor

Can you do that? Yes, you can. Look up Penal Code Section 17(b) if you don’t believe us. You can also reduce certain felonies to misdemeanors under Proposition 47, and we wrote about that previously here.

Under Section 17(b), you can even reduce your felony to a misdemeanor long after you’ve served out your sentence. If you haven’t considered it, you should. If you’re currently facing felony charges then you can try reducing them at your preliminary hearing or at sentencing, but you should talk to your lawyer about that.

Once you reduce your felony to a misdemeanor, it’s considered a misdemeanor from that point on (with some exceptions). Then you can legally and truthfully say that you have not been convicted of a felony when you go about your business or apply for loans, housing, employment, or professional licenses or credentials (again, with exceptions). One big exception? It won’t relieve you from having to register as a sex offender.

To be eligible, you must meet two criteria. First, your felony must have been a wobbler, meaning it could’ve been charged as a felony or misdemeanor. If you were convicted of a straight felony then you’re out of luck. Second, the court must have put you on probation but without actually imposing a felony sentence. This is important, too. It’s not enough if the court imposed a sentence but suspended its execution in favor of probation; it must not have imposed a felony sentence at all. So if you were sentenced on the felony then you’re out of luck even if the court suspended its execution and put you on probation.

Bottom line: You are eligible if you were convicted of a felony that could’ve been charged as a misdemeanor and the court put you on probation without imposing a felony sentence.

How will a court decide your motion? By analyzing the same factors that guide other sentencing decisions. These include the facts of the case; the nature of the offense; your personal history and characteristics; and how well you did or have done on probation.

 

A Penny For Your Thoughts, Judge

Thank God we live in a country whose leaders speak like this. What if they didn’t, or couldn’t?

In this case, maybe it’s because the speaker, Alex Kozinski, a prominent federal judge, was an immigrant born behind the Iron Curtain, the son of two Holocaust survivors who came here when he was twelve. Maybe we value the rule of law more viscerally when we’ve seen firsthand—when we know and understand—what government is capable of.

In any event, Judge Kozinski sat down recently for an interview on criminal law and justice, and it’s riveting. Courtesy of the Washington Post, the interview is split into five short video clips on the topics below. I’ve excerpted some of his comments here, but each clip is only one or two minutes long, and they’re worth watching and listening to.

On police militarization and surveillance. “I somehow got on a law-enforcement mailing list. I don’t know whether they send this to all judges, but I do get these catalogues that show all the equipment that they make available for the police. And my word, those things really look like they belong in the military…. It’s important to fight crime, it’s important to fight terrorism, and we certainly rely on police to do many things that, God knows, most of us would not want to do. So I think we should be very grateful to the police for being willing to put themselves out there in harm’s way on our behalf, but I think there is such a thing as too much. There is such a thing as being too zealous and entrenching on people’s freedoms. We do not want to live in a militarized society.”

On redemption and rehabilitation. “So … we have made it much easier to keep track of people and to have the past revealed, and in some cases that’s justifiable for the protection of society. But I think we have gone too far. I think there’s such a thing as privacy. There’s such a thing as forgiveness. There’s such a thing as giving people truly a clean break to remake their lives. And our system tends to pull them back, tends to pull them down. And basically says you’ll never get away, you will never have a normal life again. And I think that’s too bad. I don’t think that’s a society we want to live in. I think … we have traditionally believed in the concept that people can reform toward good. They’re not inevitably evil, and they’re not forever evil. And that concept seems to be dwindling, and I’m sorry to see it go.”

On guilty pleas and false confessions. “Well there are many reasons somebody may plead guilty, even though there may be doubts, or even though they may be innocent. One of the principal reasons is that, often, there are very serious charges laid on by the government and going to trial is so risky that taking a guilty plea on something that is much less seems the only rational choice. Because if you go to trial and lose, you’ll never see the light of day. There are also many cases where people are interrogated by the police for a very long time, and they wind up giving confessions—confessions that turn out not to be true…. DNA proves it, witnesses prove it, somebody else was out there. But the police managed to extract a confession. Well, once you confess to the police, any lawyer will tell you it’s very hard to persuade the jury that you are not guilty. So people may take a guilty plea in that kind of situation just because they think they have no hope of being acquitted, and the guilty plea at least gives them some measure of hope that they will someday see the light of day.”

On overcriminalization. “As the law gets more complex and as more things are criminalized and as more statutes are added, the line between what is criminal and what is not criminal becomes very blurry. Oftentimes you don’t know that something is criminal or you don’t imagine that something is criminal until you get charged with a crime…. Now I don’t think we ought to be charging things that are not clearly crimes. Criminal prosecutions ought not to be an invention. People ought to be charged for crimes for things that are clearly criminal. Not things that a prosecutor can imagine might be a crime.”

On punishment and mandatory-minimum sentences. “One of the things I suggest is that … the jury be consulted. And that right now, in most places in the United States, except in the case of capital cases, the juries have no idea when they convict as to what the likely or the possible sentence would be. I think that’s sort of a mistake. I think we ought to let juries know whether they are weighing the facts and deciding whether someone is going to go to prison two or three years or whether he is going to go to prison likely for the next twenty or thirty years. In life, we don’t make decisions in the abstract. We always know the consequences, we weigh the consequences of the decision. It seems to me the jury ought to be informed, the jury ought to have a say in what the sentence should be.”

Why Soak the Rich When We Can Punk the Poor?

Speaking of probation, it’s supposed to be that you don’t go to jail for being poor.

Thirty years ago, the U.S. Supreme Court ruled that a court couldn’t revoke your probation and imprison you for not paying a fine or restitution unless the court found, after inquiry, that you somehow could pay the fine or restitution, or even if you couldn’t, that no other alternative to imprisonment, like community service, would adequately punish or deter you. See Bearden v. Georgia, 461 U.S. 660 (1983).

But according to a yearlong NPR study, we’re not there yet. The study researched the law in all fifty states and conducted over 150 interviews with lawyers, judges, public officials, policy experts, and probationers in and out of jail. Two key findings emerged:

  1. Defendants are charged for a long list of services that were once free—including ones that are required by the Constitution.
  2. Poor people sometimes go to jail when they fall behind on their payments.

As we’ve noted before, the problem gets worse when we outsource these core public functions to private, for-profit enterprise.

Here’s how one civil-liberties lawyer put it: “It’s not that it’s wrong to charge people money as a way to punish them. But there have to be alternatives for people who can’t pay. And that alternative cannot be: incarceration if you’re poor, payment if you’re rich.”

Meanwhile, meet two Harvard-trained lawyers whose non-profit law firm works to reconcile our values and reality. In particular, they’ve sued private probation companies to stop abusive practices that fleece people for minor offenses then throw them in jail when they can’t pay the surcharges. You can find their website at www.equaljusticeunderlaw.org.

They deserve our support.

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.

The Power, Politics, and Problems of Parole

Here again from the nonprofit Marshall Project is this balanced, sobering look at our nation’s parole boards, part of its months-long investigation into our modern use and disuse of parole, especially in cases of a life sentence with the possibility of parole.

We may define parole in that context as the provisional release of a prisoner before the end of his maximum sentence based on his surrendering to certain conditions.

And it may be a tough nut to crack, but we must strive to do better than this.

A Teenage Prank Gone Wrong

If you’re bored and feel compelled to shine a commercial laser pointer at passing aircraft, don’t do it, and if you need someone to explain to you why, ask one young man from North Hollywood, California, who was staring at a 30-month sentence in federal prison until three weeks ago, when the court of appeals reviewed his case and sent it back.

The boy probably never saw it all coming, either.

Three years ago, he was an 18-year-old high-school student who probably thought it was a toy or a joke. One of his friends had a green, commercial-grade laser pointer, and the two of them had been goofing around with it, pointing it at stop signs, parked cars, and other objects in their neighborhood. One night, as he was sitting in his backyard near the Burbank airport, the guy shined the laser at an incoming, seven-passenger Cessna. That caused the local police department to send a helicopter to find the source, and when it came, the guy pointed the laser at the helicopter, too. When the authorities got to his house, he admitted he was the one with the laser, and they arrested him on state charges of pointing a laser at an aircraft. Three weeks later, though, they took him federal, indicting him under a new and analogous federal law that had gone into effect six weeks before the night of his arrest. See 18 U.S.C. § 39A. It’s punishable by up to five years in prison, a $250,000 fine, or both.

The problem is that commercial laser pointers can cause flash-blindness to the pilot of an aircraft or otherwise distract him or her, endangering the flight during critical phases like takeoff and landing. You may not know it, but the beam of the laser spreads and expands the farther out it goes, even beyond what your eyes may see, and worse, the beam can refract off the glass of a cockpit in a way that lights the whole thing up. It can be especially disorienting at night, when a pilot’s eyes have adjusted to the dark.

But there was no evidence the teenager knew any of that, and the government didn’t present any. Nor did it prove that within six weeks of the federal law’s effective date, these dangers were generally known to the average person, much less the average teen. The guy’s friend had warned him not to shine the laser directly at someone’s eyes, but that’s very different from warning him that the laser could reach an aircraft and blind a pilot inside the cockpit from thousands of feet away. In fact, the government even believed the teen was suitable for a pretrial diversion program that would have required him to plead guilty but then put him on probation, where he could earn a dismissal. But the court denied it.

Anyway, the guy pleaded guilty, and the only issue at sentencing was whether he deserved an enhancement under the federal sentencing guidelines for “recklessly endangering” the safety of an aircraft. See U.S.S.G. § 2A5.2(a)(2)(A).

That made a big difference to him because the enhancement doubled his guideline score, so to speak. Without it, his range was zero to six months, and he had a good chance of probation. With it, he was looking at 18-24 months in prison.

Because of this pronounced impact, the government needed to prove the enhancement by clear and convincing evidence. United States v. Gonzalez, 492 F.3d 1031, 1039-40 (9th Cir. 2007). But the court applied it even though there was no evidence, let alone clear and convincing evidence, that the guy understood the risk that his conduct created. The court then imposed an above-guideline sentence of thirty months in prison followed by three years of parole. But the sentence was wrong, so the court of appeals sent it back.

U.S. Sentencing Commission Amends Guidelines for White-Collar Fraud Cases

Any day now, the U.S. Sentencing Commission will submit to Congress a set of proposed amendments to the federal sentencing guidelines that it voted to approve three weeks ago. That matters because, in federal court, the guidelines drive most sentences and influence nearly all of them. If Congress doesn’t object to the amendments, they will go effective on November 1. Here’s a copy of the April 9 press release, and here’s a link to the text of the amendments on the Sentencing Commission’s website.

In particular, the proposed amendments will affect the main sentencing guideline that governs white-collar fraud cases. See U.S.S.G. § 2B1.1. Let us count the ways.

First, the amendments will change the definition of a defendant’s “intended loss,” which is important because § 2B1.1 punishes you based on the amount of loss you cause, and it defines “loss” as the greater of the actual loss or the intended loss. Currently, the guideline defines “intended loss” as the monetary harm that “was intended to result from the offense,” but the amendments would define it as the monetary harm that “the defendant purposely sought to inflict.” The aim of the new language is to align your punishment more with your specific intent and mental state.

Second, the amendments will change the way § 2B1.1 accounts for the number of victims. Right now, the guideline punishes you at progressively higher levels if your offense involved ten or more victims, fifty or more victims, or 250 or more victims. The amendments will shift the emphasis away from just the number of victims, which can include people whose losses were negligible, and toward the number of victims who suffered “substantial financial hardship” as a result. With this change, if even one victim suffered substantial financial hardship from the offense, the guideline will punish you for it, and it will punish you at progressively higher levels if you’re deemed to have caused such hardship for five or more victims or 25 or more victims. So what qualifies as substantial financial hardship? The court will decide that based on whether your victims became insolvent, had to file for bankruptcy, lost a big chunk of their savings, or other such factors.

Third, the amendments will revise the enhancement for offenses that involve the so-called use of “sophisticated means.” Right now, you get a bump in your sentence if the court concludes that your offense involved especially complex or intricate conduct. The amended guideline will clarify that this enhancement doesn’t apply unless you personally engaged in or caused the conduct that constituted the sophisticated means.

The proposed amendments include other important or interesting changes. They will affect how the guidelines compute your criminal history and how they assess the scope of your liability for the acts of others. They will adjust the various monetary tables in the guidelines to account for inflation. And they will make changes associated with the reclassification of hydrocodone from a Schedule III to a Schedule II controlled substance.

But the amendments to the fraud guideline have made the biggest splash, even as the defense bar continues to debate and analyze their sweep and significance.

Will they apply retroactively? Here’s a report that suggests the answer may be no.

Our Ballooning Sex-Offender Registries

California’s not the only state having trouble with its sex-offender-registration regime. In New York, the prisons are holding people past their release dates because they can’t find anywhere to live, and nearly 95% of the homeless shelters are off-limits, too.

The problem is that we don’t pass these laws on the basis of reason and evidence but on the basis of an emotional reaction to bad facts in higher-profile cases. That’s not good policy, but that’s how we get laws that require lifetime registration for every sex offense regardless of the offense or the person’s risk of re-offending (which is the case in California). Or how we get laws that register people for things like consensual teenage sex (as in at least 29 states), peeing in public (at least twelve states), or prostitution (at least six states).

The consequences are that we spend many millions of dollars to maintain registries that don’t help us distinguish high-risk offenders from low-risk ones and that permanently deprive people of any hope, housing, employment, or positive human relationships by branding them as monsters for life.

A large, growing body of research, however, says that we’re wrong about two key assumptions: that sex offenders re-offend at a higher rate than others and that most of them are strangers lurking among us. To the contrary, they are no more likely to re-offend than others—or even less likely to do so—and they are overwhelmingly not the bogeymen in the bushes but, rather, the (unregistered) people we know.

Who says so?

Well, the U.S. Department of Justice, for starters. Here’s a 2009 DOJ-funded study, for example, that found lower rates of recidivism based on its meta-analysis of 23 prior, accredited studies. And here’s a 2003 DOJ report that tracked nearly two-thirds of all the sex offenders who were released from state prisons in 1994 and found they had a lower rearrest rate than non-sex offenders.

Or how about the California Sex Offender Management Board, which oversees the largest state registry in the country in the first state to create one (back in 1947). The Board is comprised of prosecutors, police officers, and parole agents among other experts and officials. Around this time last year, it released a white paper that proposed replacing mandatory lifetime registration in California with a three-tiered system:

  • lifetime registration for sexually-violent offenders, repeat offenders, and other high-risk offenders;
  • a twenty-year registration for those who are convicted of serious or violent offenses but are not high-risk re-offenders; and
  • a ten-year registration period for misdemeanor offenders and others convicted of non-serious or non-violent offenses.

The Board’s proposal would help focus resources on those who truly present a risk while permitting others to develop stable lifestyles and move forward with their lives. We should lend our support to legislators who sponsor a bill to enact its recommendation.

Or how about Patty Wetterling, whose eleven-year-old son, Jacob, was kidnapped in 1989. Afterward, she worked hard to move more states to create sex-offender registries, and in 1994, President Clinton signed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act into law. Today, Ms. Wetterling is the Chair of the National Center for Missing & Exploited Children, and she has served on its Board of Directors for over twenty years. But she is also one of the sharpest critics of the spiraling, ballooning use of registries that does more harm than good.

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