Police may have done a double take when they arrested two men for allegedly breaking into a rare coin and bullion shop in Costa Mesa. The two men, with almost the same name—Jamal and Jamel—look like the same person. That is because they are identical twins. The two 42-year old brothers from Los Angeles were caught on monitored security cameras breaking into the front doors of the shop in the early morning hours this past Sunday. The break-in was reported to the police but not before the brothers managed to grab some loot and speed away.

A car chase ensued with Costa Mesa police in pursuit on Newport Boulevard onto the eastbound 55 Freeway. Shortly after merging onto the 55, the twins stopped their car and jumped out. The police then chased the suspects on foot, at which point the suspects entered two building by breaking through the windows. The police finally caught up and the two men were arrested. It sounds like a scene out of a cop and robber movie with a twist. The cops must have been surprised to find that their suspects were identical twins.

When the brothers took off, they left their loot in the car. Police found coins and the brother’s burglary tools in their abandoned vehicle. News reports state the men face counts of burglary, conspiracy to commit a crime and evading peace officers. I would think theft would be added to those charges.

When a person is charged with a crime, the prosecution is bound by law to provide all the evidence supporting the charge or charges, including evidence that might exonerate the defendant. Evidence that is favorable to the defendant is called “exculpatory evidence” and back in 1963, the United States Supreme Court held that the prosecution must give all this exculpatory evidence to the defense. This case, Brady v. Maryland, 373 U.S. 83, was the seminal case on exculpatory evidence. These days, attorneys refer to Brady evidence when they are talking about exculpatory evidence.

Unfortunately, the prosecution sometimes plays fast and loose with exculpatory evidence. And if the defense doesn’t know the evidence exists, it may be hidden by the prosecution and not available in the discovery, leaving the defendant at a disadvantage. This doesn’t happen in every case, most prosecutors run an honest practice, but it happens. A few years ago, the Orange County District Attorney’s office was scandalized by allegations that it withheld material evidence from the defense and the court in a high-profile murder case. That led to a new law in California that provides for criminal punishment of a prosecutor who withholds evidence.

Sometimes, the discovery that a prosecutor has withheld exculpatory evidence does not become known until years after the trial. For example, just this year, disciplinary charges were filed by the State Bar of California against a former L.A. City Attorney who was accused of withholding potential exculpatory evidence in a murder case that took place 30 years ago. The case was a death penalty case and the defendant was convicted and sentenced to death.

A little over 20 years ago, the Violent Crime Control and Law Enforcement Act of 1994 was passed by an act of Congress. The act was precipitated in part by the increased attention to violent crime including street gang violence and mass shootings. The bill was introduced by the federal government as part of the “get tough on crime” climate of that era. It was sweeping legislation that continues to be in force today. Among the many legislative staffers who worked on the bill was GOP staffer Kevin Ring. Twenty years later, Mr. Ring was convicted by the federal government on fraud and conspiracy charges in connection with an illegal lobbying scheme. He was sentenced to 20 months in prison and served his time in a minimum-security prison until his release in 2015.

Now the former lobbyist, lawyer, and legislative aide who fought for and believed in tougher criminal laws has had a change of heart. Looking back, Mr. Ring says that too many bills are written by 20-year-olds with no experience but a lot of opinions. That’s a frightening statement but it is true. The “Hill” is staffed by mostly young people, Mr. Ring himself was in his mid-20’s when he helped push through the Violent Crime Control and Law Enforcement Act of 1994. Now with more experience and some prison time under his belt, he along with two other former GOP operatives who ended up in federal prison are working on prison reform. They have some strong allies in Mark Zuckerberg and the Koch brothers, who are helping to fund their initiatives.

Mr. Ring is president of FAMM (Families Against Mandatory Minimums), which advocates for humane and individualized sentencing. The focus of FAMM is the mandatory minimum sentencing, which allows little to no discretion in sentencing offenders for certain crimes. More than one-fifth of federal offenders sentenced last year were sentenced under a mandatory minimum sentence. Mr. Ring believes that mandatory minimums are not only inherently unfair but inflate the sentences across all offenses, even those not subject to mandatory minimum guidelines.

When a person is arrested in California for a felony, and some misdemeanors, he or she will be detained—most often at the county jail—until an arraignment before a judge. At the arraignment, the judge will set bail, or in some cases release the defendant on their own recognizance. Depending on the seriousness of the crime, the bail amount can run into the tens of thousands or hundreds of thousands, sometimes even millions, of dollars. If the defendant has the resources to pay the bail, which will usually be 10% of the bail amount paid to a bail bondsman. Current law mandates the bail system and its due for reform.

Consider that the way it is set up now: those who have limited resources often find themselves unable to post bail. Even though they are still innocent of the crime for which they are charged, they will remain incarcerated because they don’t have the funds to pay a bail bondsman. It is not as uncommon as you might think to see a person’s freedom taken away for months, even years, only to be acquitted of the crime for which they were accused. On the other hand, a person with enough resources who is charged with a crime, even one that is very serious (even a person charged with murder may be entitled to bail), will be able to secure his or her release from jail. This is an inherently unfair system.

In 2016, the Chief Justice of California established a Pretrial Detention Reform Workgroup to analyze pretrial detention in California and recommend policy reform. The panel, which consisted of Superior Court Judges from a variety of California counties just published its findings and recommendations. They came up with ten recommendations for pretrial reform:

Sometimes a person is arrested for a crime they did not commit. In the nightmare scenario, they are charged and maybe even convicted. But often the prosecutor declines to prosecute or, if charged, the charges are dismissed or the person is acquitted.

For example, say you are at a party and someone starts a fight. You are in the fray but only as a spectator. You do not throw a single punch or otherwise harm anyone, but some of the participants are injured. The police arrive and you find yourself arrested for aggravated assault, which is a serious charge. The subsequent police investigation exonerates you: plenty of witnesses tell the investigators that you were not one of the participants but only standing on the sidelines. The district attorney recognizes that there is no reason to pursue charges against you. All you suffered is the arrest and nothing else; you are in the clear, right?

Not exactly. That arrest is now on your otherwise pristine California Department of Justice criminal history record (commonly called a “rap sheet”). In the era of instant information, having an arrest show on your criminal record means that current and future employers may find out about it, your school may learn of it, even your landlord may know. Furthermore, if you have a job that requires a state or federal license or clearance, the arrest may affect your job or future application for such a job.

Under California Penal Code section 12022.5, when a person uses a firearm during the commission of a felony, he or she will almost certainly be charged not only with the felony conduct but also with an enhancement for the use of the firearm. The firearm need not be engaged or even operable for the enhancement to attach. If the defendant is convicted of the felony and the firearm enhancement is found or admitted to be true, the law requires the court to add an additional and consecutive term to the sentence. The term, depending on the type of firearm used and on the underlying crime, can range from 3 years imprisonment up to 20 years. The sentence is mandatory.

For example, a person convicted of felony assault with a non-assault weapon firearm will face a sentence of 2, 3 or 4 years in prison. But because he or she used a firearm, on top of that sentence, will be an additional 3, 4, or 10 years for use of the firearm. The court can choose the low, middle, or high term depending on a variety of factors but the court must order at least the low term.

Beginning January 1, 2018, changes to Penal Code section 12022.5 go into effect that will give more discretion to the court. The bill, which was signed into law by Governor Brown last week, that makes these changes was introduced after a California senator recognized the inequitable result when a 17-year-old was convicted for a drive-by shooting. The teen was in the car but denied that he was the one who shot the gun. Following the conviction, the judge had no choice but to sentence the teen to 25 years in prison because of the enhancement.


California’s sex offender registry currently lists over 100,000 sex offenders. The registry has a long history; it was first employed (although not in its current form) 70 years ago. It is estimated that around 650 registrants on the list today were first registered in the 19040’s and 50’s. Since many sex crimes in California mandate sex offender registration once convicted of the crime and in almost all cases, the mandate to register is a lifetime requirement, the registry has grown so large that it has become unwieldy. California is one of only four states in the country that requires a lifetime registration. Not only is the registry becoming unmanageable for law enforcement due to the number of individuals on the registry but the registry has also forced many registrants to live on the margins of society thereby imposing a kind of de facto life sentence.

The largest number of sex offenders on the registry, approximately 65,000, were convicted of misdemeanor or non-violent sex offenses. Some of these crimes were presumed by the offender to be a sex act with a consenting, but under age 18, partner (under California law, a minor cannot consent) or for something as non-threatening as indecent exposure. In previous decades, not that long ago, gay people were targeted by the police for having consensual sex in the park. Many of these individuals were arrested for indecent exposure and ended up with a conviction that required them to register as a sex offender. Those individuals are still required to register.

While some of the offenses may be deplorable, they do not in all cases mean the offender is a sexual predator that must be forever watched by law enforcement, yet that is how anyone on the sex offender registry is branded.

For almost as long as the federal government has harshly prosecuted drug use, researchers have been studying the psychologically beneficial effects of the very drugs that can land a person in prison. Clinical studies on both animals and humans have demonstrated the beneficial effects of many hallucinogenic drugs in treating PTSD, anxiety, depression, addictions, and other mental health disorders. Drugs, commonly taken recreationally, such as LSD, Ayahuasca (DMT), Ecstasy (MDMA), and magic mushrooms (psilocybin), show varying degrees of promise in a clinical setting. These drugs, along with marijuana, are currently classified as Schedule 1 drugs by the federal government. A Schedule 1 classification means that “there are no currently accepted medical use and a high potential for abuse.”

The Multidisciplinary Association for Psychedelic Studies (MAPS), a research and educational organization focused on discovering beneficial uses of psychedelics and marijuana, with a goal of translating those benefits into safe and legal prescription medicines, has long lobbied the U.S. Food and Drug Administration (FDA) to move forward to that goal. Recently MAPS succeeded in its efforts to convince the FDA to consider MDMA as a treatment for PTSD. The drug received “Breakthrough Therapy Designation” by the FDA, meaning that the FDA has agreed that MDMA may be a better treatment for PTSD than what is currently available. In granting this designation, the FDA has indicated the FDA’s intent to assist in the development and review of MDMA treatment for PTSD, putting MDMA above the other PTSD therapies up for review by the FDA.

MDMA, the main ingredient in the recreational drug known as Ecstasy or Molly, binds to serotonin transporters, giving the user feelings of euphoria. We’ve all heard of the “love” that Ecstasy users experience; this is a product of the flood of serotonin in the brain. Researchers have found that these feelings of euphoria and empathy open the otherwise troubled mind of a PTSD sufferer to psychotherapy. Using established psychotherapy techniques, a trained psychotherapist employs these techniques on the PTSD sufferer while he or she is under the influence of a controlled dose of MDMA.

INDEFINITE CONFINEMENT MAY ENSUE-NOT GUILTY BY REASON OF INSANITY PLEAS

It is estimated that over 10,000 people who have never been convicted of a crime are incarcerated in the United States. The states, under various statutes, confine individuals to mental health facilities who are found not guilty by reason of insanity or who are found mentally incompetent to stand trial. While these individuals are not considered “incarcerated”, for all intents and purposes, they are. Technically, they are hospitalized—against their will and with no liberty to end their hospitalization.

The New York Times recently profiled a man in his early 40’s who has been confined against his will in a New York State psychiatric facility since he was 20 years old. He was accused of rape—a crime that carries a sentence of 5 to 25 years in prison in the state of New York. But this man was never tried or convicted for the crime. Prior to his trial, doctors diagnosed him as having borderline personality disorder. Without fully understanding the consequences, the diagnosis allowed him to plead “not guilty by reason of insanity.” The court, by accepting this plea, found him legally not responsible for the crime. In New York, this plea allows an indefinite detention in a mental health facility.

PORTUGAL’S DRUG POLICY IS WORKING

As the “War on Drugs” threatens to heat up, we might ask our current administration to take a step back and consider Portugal. In 2001, Portugal decriminalized all drugs—yes, all—including hard drugs like heroin and meth. Critics expected the incidence of drug abuse in Portugal would skyrocket as a result. That is not what happened. Drug use fell over the ensuing 15 years and more importantly, drug-related deaths fell precipitously.

Drugs aren’t legal in Portugal but being in possession of any drug is also not criminal. Rather the country treats drug use as a health issue. Anyone caught with less than a 10-day supply of any drug is required to get drug treatment. There is no criminal charge, no court hearing, and no incarceration. The policy isn’t expected to rid Portugal of drug abuse; rather, the intended outcome is harm reduction.