Did you see the 2002 movie Minority Report? Back then, it was science fiction; now it’s getting close to reality. In Minority Report, police departments had “PreCrime” units where “precogs” (strange psychic bodies that lived in liquid pools) were able to predict when a person was going to commit a crime. Based on this knowledge, the police would arrest the individual before they had the chance to commit the crime.

Today, police departments are utilizing predictive policing technology to pre-empt criminal activity. They don’t employ precogs, but they do use algorithms. And they aren’t arresting people before they commit a crime – at least not yet, but they do plan policing day-by-day based on software predictions. Utilizing algorithms, the Los Angeles Police Department’s program PredPol (the title itself sounds dystopian) identifies 150 square-meter areas where certain types of crime are more likely to occur on any given day. The PredPol technology got its start when then LAPD Chief, Bill Bratton, went to UCLA researchers seeking a way to use the historical data compiled by the LAPD to pre-emptively deploy the police force wherever crime was likely to occur.  Using the PredPol algorithms the LAPD sends units to patrol these “hotspots” based on the predictions.

This is not a matter of just beefing up the police force in high-crime areas, it’s way beyond that. Data is continuously fed into the model resulting in ever-changing predictions. The algorithms predict the highest risk areas for any particular crime on any particular day and at any particular time, thereby theoretically (and perhaps factually) stopping the crime before it happens, or at least being there when it does.

The #MeToo meme has been front and center news ever since the Harvey Weinstein story broke. Many a career has since been ended by revelations from inappropriate workplace flirting to aggressive sexual assault. If the adults can’t navigate this potential minefield, what about the college students? If any group is in the trenches, it’s the kids in college.

This demographic is characterized by raging hormones, immature decision-making skills, and for many, unfortunately, binge drinking. Yet, they are expected, actually required, to navigate the very treacherous territory of sexual consent.  The so-called “active consent” lawenacted in California in 2014, applicable to most colleges and universities in California, requires the schools to have a policy in place that sanctions sexual misconduct.  Sexual misconduct can be heinous acts such as a forced and violent rape, but it can also include an ambiguous sexual encounter. This gray area includes sex that was not affirmatively consented to.

What does that mean? It’s not entirely clear and the students subject to this policy cannot be expected understand the nuances of affirmative consent.  To begin, very often, both parties are inebriated. But under the active consent law, a person is not capable of consenting to sex if she (and it’s almost always a female) is “incapacitated” by drugs or alcohol, even when her intoxication was of her own volition. At what point does one become incapacitated? The law defines it a state induced by drugs or alcohol that prevents a person from understanding the fact, nature, or extent of the sexual activity. If a person has sex with another who is “incapacitated,” even if she was the initiator or aggressor, consent to the sex is, under this law, impossible. (It is similar to the laws that make consent of a person under the age of 18invalid because it assumed a minor does not have the capacity to consent.)

In 2017, Stanford Law School’s Justice Advocacy Project studied the long-running problem of mental illness among prison inmates in California. Using data provided by the California Department of Corrections and Rehabilitation (CDCR), the Justice Advocacy Project studied the continuing trend, concluding that the problem is getting worse.  According to the CDCR, at the beginning of this century, less than 15% of California’s prisoners were receiving treatment for a “serious mental disorder,” now that number tops 30%.  The most dramatic increases have occurred in the last five years. A “serious mental disorder” are DSM Axis I diagnoses such as schizophrenia, psychotic disorder or bipolar disorder.

Ironically, it might be the recent criminal justice reforms that is one of the driving forces behind this increase in mentally ill prisonersexpressed as a percentage of all prisoners. The reforms, such as the Public Safety Realignment Actand the Public Safety and Rehabilitation Act (Prop 57), are directed at reducing the prison populations by rewarding good behavior in prison and the reforms assess suitable candidates for early release. But for the mentally ill prisoner, prison conditions often exacerbate his or her illness with the end result that the prisoner’s behavior deteriorates. Even the Supreme Court observed that the conditions in California prisons can worsen prisoner’s mental illnesses and cause the development of overt symptoms. (Brown v. Plata(2011) 563 U.S. 493.)  The mentally ill prisoner may for example, have a psychotic episode, attempt suicide, or lash out, all of which will end in conduct violations and sanctions meaning a loss of custody credits; these credits reduce the time the prisoner must serve.

At the same time, CDCR has a psychiatric staffing shortage, with many positions left unfilled. Governor Jerry Brown’s new state budge has earmarked $117 million to address mental health programs and services for mentally ill prisoners. But Senator Jim Beall (San Jose) doesn’t believe more money is the answer. He is pushing for reforms that would keep the mentally ill out of the prison system. His proposed legislation would require the courts to consider a defendant’s mental illness in sentencing decisions and give the courts discretion to order some defendants to treatment. Senator Beall believes that mental health professions, law enforcement, social workers, and the courts need to work together to address this growing problem.

Imagine being charged, convicted, and serving years in prison for a crime you did not commit. As I have documented, this happens more than anyone cares to think about. With the advent of DNA evidence analysis, hundreds of individuals have been freed from prison based on DNA testing that proved their innocence; some of these exonerated individuals were on death row. How many people have been executed over the years for a crime they did not commit? We don’t know, but it is certainly more than a few. Some may argue that in an imperfect system, it is better to occasionally make the mistake of convicting an innocent person than to let the guilty go free. I challenge anyone with that perspective to honestly consider whether they would still believe that if the wrongly convicted innocent person was themselves or a member of their family. (And, besides if you convict an innocent person, then the actual perpetrator IS allowed to go free.)

DNA exonerations aside, what about persons who are convicted based on shoddy forensic evidence, questionable science, or dubious expert testimony. Many people are unaware that it is not unusual for a person to be convicted solely on the testimony of an expert. Case in point: This month a man who had served 25 years on California’s death row was freed after his conviction for the rape and killing of his girlfriend’s 2-year-old daughter. Pretty horrific crime. However, the man, who is now 68 years old, was convicted on false medical testimony according to the California Supreme Court.

At the trial, a forensic pathologist and numerous medical doctors testified that the child died as a result of sexual assault. What makes this particularly shocking is that years later, many of the doctors who testified, recanted. Turns out they had not actually reviewed the full medical records of the child, which would have informed these experts that their testimony was false. The records admitting the child to the hospital, which incredibly, the testifying experts had not reviewed, did not reveal any sexual assault. The evidence the experts testified to was actually a result of medical interventions at the hospital. This is truly egregious behavior on the part of these testifying experts. What expert would put a person’s life and freedom on the line so carelessly? We expect more from professionals but the reality is, these professionals are often paid a handsome sum to testify. I am not accusing the particular experts for carelessness in favor of personal benefit, but our justice system should deal with the fact that some testifying experts are in it for the money and will skew the testimony to the paying side, be it the prosecution or the defense.

A person who is not a citizen of the United States—even one who is legally residing in this country—can be permanently deported if he or she has committed certain crimes. I discussed thisin greater detail last year. Immigration law is administered by the federal government but most often, a person is deported because he or she was convicted of a criminal act under state statute. While some of the federally enumerated deportable offenses are unambiguous and are consistent across states, such as assaultor kidnapping, other crimes may be punished differently in different states.  Among the crimes for which a person may be deported under federal law are “aggravated felonies.” An “aggravated felony” is a “crime of violence” for which the punishment is one year or more.

But what is a “crime of violence?” Under federal statute a felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” (18 U.S.C. §16(b).) So, would it be a crime of violence if a person was arrested for threatening to harm another? Or would a conviction of first-degree burglaryin California be a crime of violence even though no violence was committed during the burglary? (In California, a first-degree burglary is the unlawful entry into an occupied residence with the intent to commit a felony or theft.)

It is true that the majority of individuals deported under U.S. immigration law are deported after being convicted of a crime specifically enumerated in the federal code, such as rape, murder, assault, and so on. But some convictions do not fall under any specifically enumerated crime of violence. It is those types of crimes under which 18 U.S.C. §16(b) is applied in deportation proceedings.

For those of us who live in Southern California, the increasing sight of homeless encampments has been cause for both compassion and alarm. The ever-increasing number of homeless people in our area is often attributed to spiking rental rates and the increasing costs of living here. But there may be an additional explanation that we don’t often hear about or read in the news: out-of-state addicts are being lured into Southern California by unscrupulous drug and alcohol rehab operations.

Driving this trend is the California law that allows a person to sign up for an Affordable Health Care Act (Obamacare) health insurance plan the day that person arrives in California. Not all states have the easy signup that is allowed through the program known as Covered California. Because anyone can be covered under this plan in California, recruiters fan out across the country looking for addicts they can lure to a California rehab facility.

There are approximately 10,000 patient beds in licensed rehab centers in Southern California alone. But these rehab facilities, although they must be licensed by the state, have few state requirements. Basically, anyone can open such a facility. While many rehab centers are legitimate and offer substantive helpto addicts, many others facilities that are nothing but addict churning mills established to bilk insurance companies and skim millions of dollars for their owners.

The opioid epidemic is costing the state and federal government billions of dollars. Numerous lawsuits have been filed by cities and counties in courts across the nation. Recently the federal government indicated it is exploring a lawsuit against the companies that manufacture and distribute opioids seeking reimbursement of the costs the government has expended fighting the epidemic.

Tens of thousands of people die each year in this country from opioid overdoes and exponentially more individuals receive treatment, often—if not usually—at the taxpayer’s expense. The lawsuits accuse the pharmaceutical companies with deceptively marketing the drugs as safe, non-addictive painkillers. When these drugs were first introduced, many doctors and patients believed the pharmaceutical companies’ representations. It wasn’t long before it became obvious that these drugs were highly addictive and dangerous. As more patients became addicted, the demand for these drugs increased. Yet, the opioid manufacturers and distributors ignored the proliferation of suspicious orders for the drugs.

Over 400 cities and counties across the country are plaintiffs in a multidistrict federal lawsuit in the Northern District of Ohio. The defendants are pharmaceutical companies that manufactured and, as the plaintiffs allege, “aggressively marketed” opioid drugs even though the companies were aware that the drugs were addictive and dangerous. The lawsuit names not only the pharmaceutical companies as defendants but also pharmacy chains, alleging that the pharmacies sold these drugs to individuals even though they were aware that many of the individuals were returning again and again to fill these prescriptions, which should have alerted the pharmacies that the individuals were addicted or otherwise using the medications for other than legitimate medical reasons.

Many of my clients are surprised at the amount of information law enforcement has gathered about them. I wrote awhile back about how ubiquitous law enforcement surveillance is in our everyday lives.   Many of my clients learn the hard way. Not only is it impossible to hide from the police these days unless you go live in the woods (well, not even that), but past crimes that many think they have escaped often come back to haunt the present because technology has conquered our “secret” world.

One of the “gifts” to law enforcement is the cell phone. Cell phones make it so much easier now for law enforcement to track down a suspect, discover a suspect’s plans or activity (although this usually will require a search warrant or consent in California), and learn much more about a suspect just by reviewing cellphone or cell tower data. We want to believe law enforcement conducts their cell phone surveillance lawfully but in this age of whistle blowers, we know that is not always the case.

One of the supposed advantages of iPhones is that the data on the phone is encrypted. Even law enforcement cannot access information from an iPhone…or so they say. The reader may recall the outrage over the reported inability of the FBI to access the iPhone data of the San Bernardino terrorist. The FBI couldn’t crack the iPhone code and asked (well, ordered) Apple to create software that would allow the FBI access. Apple refused. Before the FBI went to court to compel Apple to crack the code, the FBI paid a third-party “hacker” to break into the phone’s data.

Recently New York Public Radio station WNYC profiled an in-depth investigation on police misconduct in the New York Police Department. The investigation revealed hundreds of incidents of misconduct by NYPD officers, including stealing and assaulting New York City residents. The investigation revealed that some of the officers were found to use excessive force by internal affairs, others of firing their gun unnecessarily, and that is just a sampling of the offenses the internal affairs department of the NYPD found officers committed. Most of these officers did not lose their job and many are still on the beat.

Sometimes officer misconduct can ruin an innocent person’s life. For example, recently a New York Police Department officer was convicted of fabricating drug evidence. His false evidence sent an innocent man to prison. Another NYPD homicide detective, once renowned for his investigation skills, is accused of tampering with evidence, prompting the district attorney to review over 40 cases the detective was involved in, which has already resulted in the court overturning 7 of the cases. This is similar to the Baltimore scandal where numerous cops were found to be planting evidence. The worst part is: innocent people end up losing their freedom because of bad cop behavior and often the public is completely oblivious.

In New York, as well as in California (and the only other state being Delaware), law enforcement misconduct records are shielded by law from disclosure to the public. May we reasonably infer that California law enforcement records contain similar incidents of misconduct?

APPELLATE COURT FORCES CHANGE IN BAIL HEARINGS

I have previously written about the judicially appointed Pretrial Detention Reform Workgroup’s efforts to analyze and recommend reforms to the California bail system and the California Money Bail Reform Act. Both efforts are directed at reforming the inherently unfair bail system in California that sends poor people to jail before they are convicted of the crime because they cannot afford the bail ordered by the court.

Earlier this year, the Court of Appeal stepped in front of this issue. The court’s published decision in In re Humphrey, Court of Appeal, 1st Appellate Dist., 2nd Dv. (January 25, 2018) will force changes in the bail system, even if our representatives never get around to bail reform legislation. In this case, San Francisco resident Kenneth Humphrey was arrested and charged with robbery. Mr. Humphrey’s bail was set at an amount he could not afford. He was remanded to jail where he remained prior to any hearings or trial on his guilt or innocence.