LEGAL MARIJUANA COMES WITH MANY RULES AND NEW TAXES

The pot shops will soon open and even though recreational marijuana is legal now, there are still plenty of reasons a black market in marijuana sales will not be going away with the opening of your local cannabis shop. To begin with, the laws regulating the legal cannabis shops are onerous. In fact, it might be a challenge to even understand all the regulations in the 276-page Bureau of Cannabis Control regulations book. And that’s not all: cannabis shops also have to abide by regulations promulgated by the California Department of Food and Agriculture and the Department of Public Health.

The cannabis products that do end up for sale must be tested and tracked under strict rules including limits on the amount of THC allowed in edibles. Furthermore, the fees and licensing requirements are confusing and often costly.

There are kangaroo courts….and then there are donkey jails. While kangaroo courts don’t actually have kangaroos sitting in court, donkey jails do indeed have donkeys cooling their hoofs in jail, at least in one town in India. In the Northern Indian town of Orai, eight donkeys found a tasty meal that just happened to be expensive saplings outside of the local jail complex. When the donkeys were caught red-hoofed chowing down on the pricey plants, the local police constable took it into his own hands. The furry criminals were arrested and herded off to jail. Hard to believe, but apparently this is true; even the New York Times reported the story. And there is some “cute animal” video footage of the arrest; it’s a nice break from cat videos.

The donkeys’ owner was in a frantic search for his animals. When he found out they were in the big house, he begged the police to set them free. But apparently the poor owner could not afford the bail. So, he sought justice through his local politician. Reportedly the bail was paid by the politician and the donkeys were released. The donkeys spent a total of four days in jail, there is no report as to whether they complained about the jailhouse food.

Now lest you think this Indian town is just a bit foolish, the jail superintendent explained that there is not really a donkey jail in Orai and donkeys can’t really be arrested. The donkeys were taken into “custody” to teach their owner a lesson. The owner had been warned repeatedly about his animals roaming in the town but had done nothing about it. Still, you have to admit, this story makes great copy and is good for a chuckle.

Before he resigned as Health and Human Services Secretary, Tom Price created a bit of an uproar over comments about medication-assisted treatment for opioid addiction. It was reported that former Secretary Price stated that providing drugs that reduce craving for opioids is just replacing one opioid for another. To a point, that is true. But it is not that simple. Secretary Price’s comments were somewhat more nuanced but the news reports that Secretary Price suggested that medication-based treatment for opioid addiction was not an effective treatment prompted 600 medical experts and academics to pen a letter to Secretary Price asking him to reconsider.

Secretary Price is no longer head of Health and Human Services but the issue of medication-assisted treatment as one option to address this country’s opioid crisis. The medication treatments most commonly used to treat opioid addiction, buprenorphine, naltrexone, and methadone, are called “opioid agonists” or “partial agonists.” These drugs activate receptors in the brain, creating a high similar to what the addict experiences when he or she takes other opioids but the drugs do not have the same effect of physiological dependence, nor do they make the user feel euphoric.

While the treatment drugs do activate opioid receptors, they do so less strongly and they relieve drug cravings and withdrawal symptoms. It is true that with medication-assisted treatment, the addict may never be free of drugs but the drug they are taking allows them to function normally, without the causing the user to be a highly addicted individual ever searching for a stronger fix. Furthermore, the treatment drugs do not render the user unable to function normally. By substituting a medication-based treatment for an opioid addiction, the former addict has the opportunity to become a contributing member of society rather than a strung-out addict looking for the next high, possibly stealing from others to get the money to feed his or her addiction.

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.