New California Criminal Laws in 2018

We’ve already touched on four of them: Recreational pot. A ban-the-box law for employers. An overhauled sex-offender registry beginning in 2021. New rules for picking juries in civil and criminal cases.

Here are five more this week, with five more to come next week.

Lawyers can advise clients on cannabis. This is Assembly Bill 1159. It amended the Evidence Code to protect attorney-client privilege and confidentiality for legal services rendered in compliance with state and local law. The lawyer must also advise the client on the current conflict under federal law. Lawyers are already advising the cannabis industry, of course. But generally speaking, there’s no attorney-client privilege for legal services that are sought to help someone commit a crime or fraud. It’s the famous crime-fraud exception to the privilege. This law makes clear that, notwithstanding federal law, there’s no crime-fraud exception here just because it’s pot. The law also amended the Civil Code to support commercial cannabis activity that complies with state and local law.

You can seal your arrest record automatically if you weren’t charged or convicted. This is Senate Bill 393. It amended the Penal Code to permit most people who’ve been arrested but not charged or convicted (or whose convictions were overturned on appeal) to seal their arrest record. You may even be entitled to it as a matter of right in many cases; otherwise, you have to show that sealing your record would serve the interests of justice. Before this law, you couldn’t seal an arrest unless you proved your innocence, which is often difficult or impossible even when people did nothing wrong. But the law doesn’t apply if you could still be charged with something, so you must wait until the statute of limitations has run.

You don’t need to plead guilty to get drug treatment for simple possession. This is Assembly Bill 208. It amended the Penal Code to change a type of drug-treatment program we wrote about two weeks ago. The program used to be called deferred entry of judgment; now it’s called pretrial diversion. Before, you had to plead guilty and complete a program that ran 18 months to three years. If you completed the program, your case was dismissed, but if you didn’t, you’d be sentenced on your guilty plea. Now, you can plead not guilty, and the program runs only 12 to 18 months. But you have to waive your right to a jury trial, so if you don’t complete the program, you’ll go before a judge for trial.

The military diversion program includes misdemeanor DUI. Speaking of pretrial diversion, this is Senate Bill 725. It amended the Penal Code to extend a military diversion program to misdemeanor DUIs. This program enables a court to postpone a misdemeanor prosecution and place the defendant in a treatment program in which he may earn a dismissal if he is or was a member of the U.S. military and may be suffering from significant trauma or mental health problems as a result of his service. It wasn’t clear if the program included DUIs; two cases had decided it differently. This law resolves that it does. But it doesn’t guarantee diversion, and it doesn’t stop the DMV from taking your license.

It’s okay to enter a crosswalk during the countdown signal as long as you reach the other side before it ends. This is Assembly Bill 390. Before, you could only enter a crosswalk on a “walk” sign or symbol, and it was a crime (well, an infraction) to do it during the countdown. Who knew? So what if there’s no countdown, but the “don’t walk” sign or symbol is flashing? You’re not supposed to enter the crosswalk.

 

New Year’s Resolutions

Speaking of compliance, here are two businesses that ended the year resolving charges they violated U.S. trade sanctions by dealing with blocked countries, people, or entities.

Both cases show how the government enforces its sanctions regime, and they illustrate how an ounce of prevention can beat a pound of cure. Both cases were brought by the Office of Foreign Assets Control, or OFAC, which is an agency within the Department of Treasury.

The first case concerns a dental-supply company that agreed to pay $1.2 million to settle charges that it violated the Iranian Transactions and Sanctions Regulations. The government alleged that, from the end of 2009 through the middle of 2012, the company exported 37 shipments of dental equipment to distributors in other countries knowing, or having reason to know, they would end up in Iran.

According to the government, it wasn’t an egregious case because the exports were likely eligible for a license if the company had only applied for one. But it didn’t, and that ended up costing it a lot more on the back end.

The second case concerns a luxury-goods company that agreed to pay $300,000-plus to settle charges that it violated the Foreign Narcotics Kingpin Sanctions Regulations. The government alleged that, from October 2010 to April 2011, the company exported four shipments of jewelry to a Hong Kong entity that was on OFAC’s list of blocked persons and interests. The blocked entity’s name and address squarely matched those of the ship-to party, but the company didn’t flag the transaction before shipping the goods.

According to the government, this wasn’t an egregious case either, but if you add up the settlement costs and legal fees, it sure does eat into the margin.

The Most Patriotic Thing

Here’s a gift for the holidays: James P. Gray relentlessly arguing against drug prohibition as he has for twenty-five years now. He calls it the best thing, the most patriotic thing, that he can do for his country.

If you don’t know Jim Gray, you should. He’s a former state judge from Orange County, California who used to be a Republican, now is a Libertarian, and ran for the Vice-Presidency of the United States in 2012. He’s also a national treasure. He served in the Peace Corps after college, the Navy JAG Corps after law school, and the U.S. Attorney’s Office after that. As a federal prosecutor, he handled some of the major drug cases of his day, and as a trial judge, he presided over the drug cases that flooded his courtroom. He saw the system from every perspective, and his experiences changed him.

Way before it was popular to say so, especially in Orange County, Judge Gray held a press conference to criticize the war on drugs. It was 1992, and he may have been the first sitting judge ever to do so. He risked his career and reputation in doing so, but he was right then as he is now. Most of the problems we associate with drugs, he says, are drug-prohibition problems, not drug-use problems.

“Drug prohibition is the biggest failed policy in the history of the United States, second only to slavery. And if you listen, regardless of what your interests are—I will tell you, regardless of what that is—be it education, healthcare, crime, terrorism, or the environment—I will show you to your satisfaction how it is made worse by our policy of drug prohibition.”

 

Reasonable Minds Can Differ

But they will usually find more to agree on.

Case in point: this short interview with the junior U.S. senator from Utah.

He’s considered one of the more conservative members of Congress, but he’s also part of a bipartisan group that’s pushing to reform our criminal justice system.

As a former federal prosecutor, he’s asked how he feels about the justice system and what’s changed for him over time.

He points to one case in particular that, presumably, he didn’t charge. The defendant was a man with two young children. He sold very small amounts of marijuana to an informant three times. He also owned a gun at the time, though he didn’t use it or brandish it during any of the sales. Based on those facts and the way he was charged, the man received a mandatory sentence of 55 years.

Even the sentencing judge openly criticized the sentence, but he wrote that his hands were tied under the law. He also said that it was a problem only Congress could fix.

The senator remembered those words when he got to Congress, and now he’s trying to do something about it.

Why is he doing this when he’s supposed to be a conservative Republican? That’s exactly why he’s doing it, he says.

No Correlation Between Drug War and Use

According to an independent, well-regarded think tank, there is statistically no reason to think that we can reduce drug abuse by locking more people up.

The nonprofit Pew Charitable Trusts spelled it out in a letter this summer to a federal commission that’s looking at ways to combat the widespread problem of opioid abuse.

Its study, which drew on data from the federal government and all fifty states, found no statistically-significant relationship between a state’s rate of incarceration and its rate of drug use, drug arrests, or overdose deaths.

Put another way, locking up more people didn’t correlate with lower rates of drug use, drug arrests, or overdose deaths. These findings held even when the study controlled for race, income, unemployment, and education. The arrest and incarceration rates came from state corrections departments and the U.S. Justice Department. The drug-usage rates came from an annual, national survey funded by the U.S. Department of Health and Human Services. The overdose-death rates came from the Centers for Disease Control and Prevention. The demographic data came from the U.S. Census Bureau, and the income and unemployment data came from the U.S. Labor Department.

The more effective response to opioid abuse, says the letter, is a combination of law enforcement to curb drug trafficking; sentencing alternatives to divert nonviolent people from costly imprisonment; treatment to reduce addiction; and prevention efforts like prescription-drug monitoring programs, which we wrote about last week.

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%)

White-Collar to Blue-Collar in One Day

Last week, the U.S. Supreme Court issued two notable decisions on the same day.

One was a civil white-collar case, the other a criminal drug-trafficking case, and in both cases, the Court reversed the lower-court ruling on appeal.

In the civil case, the Court imposed a five-year statute of limitations on SEC cases that seek to disgorge profits. That’s the same period that applies in cases to enforce a fine, penalty, or forfeiture. Although disgorgement of profits is traditionally a form of restitution that’s measured by a defendant’s wrongful gain, the Court ruled that it’s a penalty in SEC cases for a couple reasons. First, the agency uses it to deter and punish defendants as much as to compensate victims. Sometimes, the money goes to Uncle Sam, and sometimes, the only victim is the public at large. Second, the agency often disgorges more than defendants have gained, leaving them worse off than before they broke the law. That may be the point, but that makes it a penalty.

In a footnote, the Court even seemed to call into question whether courts could order disgorgement at all. That’s something they’ve been doing since the 1970s, so it’s a big deal. For more in-depth analysis of this decision, see here.

In the criminal case, the Court reined in the government’s forfeiture power. Forfeiture allows the government to seize money or property that’s derived from a crime. But the law limits this to what someone actually and personally receives or obtains. That means you can’t be responsible for amounts obtained by someone else. So the hypothetical college student who gets $500 per month to drop off a few packages isn’t on the hook for the whole multimillion-dollar drug enterprise.

Here, two brothers worked in a hardware store together. One of them owned the store, and the other was a salaried employee. The two were charged with selling large amounts of a product they knew or had reason to know was being used to make meth. In three years, the store grossed about $400,000 from selling the stuff and netted $270,000.

The government wanted the $270,000 in profits. The owner agreed to forfeit $200,000 of it when he pleaded guilty, but the employee went to trial. He was acquitted of three counts, convicted of eleven, and sentenced to sixty months in prison. Then the government went after him for the remaining $70,000.

Although the government agreed that the employee had no ownership interest in the store and didn’t personally benefit from the illicit sales, it argued that, in a conspiracy, everyone is responsible for the full proceeds of the conspiracy. And it won that argument on appeal.

But the Supreme Court rejected that and reversed.

 

The New DOJ Policy on Charging Decisions

Two weeks ago, the new U.S. Attorney General announced a new policy for charging and sentencing in criminal cases. Although the policy targets drug cases in particular, it applies to all federal prosecutions.

You can break it down into three parts.

First, prosecutors should file the “most serious, readily-provable” charges in each case. The most serious charges are those that carry the stiffest sentence, including any mandatory-minimum sentence. To deviate from this policy, prosecutors must get approval from a supervisor, document their reasons for it, and be able to point to “unusual facts.”

Second, in most cases, prosecutors should seek a standard sentence under federal sentencing guidelines. If they want to deviate from the guideline sentence, they must get supervisory approval and document their reasons in the file.

Third, prosecutors should discard inconsistent policies of the prior administration. Under prior policy, prosecutors still charged the most serious offense that was consistent with a defendant’s conduct and likely to yield a solid conviction. But they were also encouraged to evaluate cases individually to decide which charges to file, and they were told to seek sentences that were fair and proportional under all the circumstances.

In particular, prosecutors now must ignore two prior policies that tried to reduce harsh sentences in low-level, nonviolent drug cases. Under one policy, they were not to charge a specific drug quantity if it triggered a mandatory-minimum sentence, and they were to avoid charging prior drug convictions that doubled the minimum sentence or put someone in prison for life. We wrote about this before here. Under the other policy, they could not threaten to charge such priors just to force you to plead guilty. I guess that’s fair game now.

The new policy has sparked criticism across the spectrum. Lawmakers from both parties have railed against it. One former U.S. Attorney decried its “stunning lack of faith” in line prosecutors. A coalition of state and local prosecutors has published an open letter against it. And the National Association of Criminal Defense Lawyers had this reaction:

“This Attorney General has taken away the discretion of professional prosecutors to determine what sentence serves justice in any given case. Instead, prosecutors are now required in every case mindlessly to seek the maximum possible penalty…. This policy will lock up non-violent offenders with little or no criminal history, waste untold millions of dollars, devastate families and whole communities, and yet not make us any safer.”

New California Criminal Laws: Part Deux

To conclude our series on new criminal laws, here are two more notable ones.

You have more protection against abusive asset forfeiture. This is Senate Bill 443. It amended the Health and Safety Code to curb law enforcement’s ability to take and keep your property without convicting you of a crime. For more background see here.

Under the new law, the authorities must convict you of a crime in order to take your cash if it’s less than $40,000. The prior threshold was $25,000. As before, they also must prove up their forfeiture case against the money beyond a reasonable doubt. For cash of $40,000 or more, they still don’t need to convict you of a crime, but as before, they must prove their forfeiture case by clear and convincing evidence.

Furthermore, the authorities may no longer bypass state law by asking federal agents to adopt the forfeiture under federal law. Even in cases of a joint task force or investigation, they may not share in the proceeds of a federal forfeiture if state law would’ve required a conviction but there wasn’t one.

You’ve got a much better shot at getting a new trial based on newly-discovered evidence. This is Senate Bill 1134. It amended the Penal Code to include a new standard for writs of habeas corpus based on new evidence. Before, you would only get a new trial if your new evidence pointed “unerringly to innocence” and completely undermined the state’s case. That was a nearly impossible standard to meet.

Now, you can get a new trial if you present new evidence that’s “credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.” Much better.

You Won’t Ever Die From Boredom In a Police Raid

That’s the nice thing about it.

But the same can’t be said for being rash or reckless, which is how some police departments are prone to execute their warrants. They may use SWAT teams as a default option for every search or arrest, and they may go in like gangbusters if they do.

When they do, everyone makes more mistakes, and everyone pays a price. They may hit the wrong address and terrorize an innocent family. Or they may hit the right address but kill someone for no good reason.

Here’s an alternative then.

It comes from this essay by a veteran police officer who served sixteen years on a SWAT team. You could say he’s served a lot of warrants.

His very first search was all smash and grab, and it gave him a rush.

But over time, he says, his team gravitated toward a different default: surround the place and call people out. They realized it worked better. Everyone made better decisions.

What are the downsides? Fewer adrenaline rushes. Fewer cool stories for friends and family. More evidence or contraband flushed down a toilet.

The upsides? Lower risks of harm for everyone. More compliance from people on the receiving end. More people on all sides going home to their families at the end of the day.

Police raids still have their place, the author says. Sometimes, it just isn’t safe for cops to stand around and wait. Or they may be hitting multiple locations at the same time. Or they may lose valuable evidence if they don’t go in fast.

Other times, though, they go in hard and fast to save money on overtime pay or to avoid rush hour later that day, and those aren’t good reasons.

So here’s to slower, safer, smarter law enforcement. May boredom reign.

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