2018 saw major change on California’s statute books, many within the criminal law arena. Below are some of the changes in law that impact those who may be facing criminal charges and those who have already been convicted.

JOB APPLICANTS WITH CRIMINAL CONVICTIONS

You may have heard the term “Ban the Box.” This term refers to new legislation in California that now prohibits an employer with five or more employees from requiring a job applicant to disclose past criminal convictions during the application process.  Practically speaking, the new law prohibits most employers from including “the box” on an employment application that asks if the applicant has ever been convicted of a crime. The law now also prohibits the employer from asking the applicant about his or her criminal history during the interviewing process. It is only after an employer makes a conditional offer of employment that the employer can ask the potential employee about previous criminal convictions. If the employer then rescinds the conditional offer, the employer must inform the prospective employee in writing with an explanation of why the offer is being rescinded. The law allows the applicant to dispute the evidence provided by the employer in the notice and the employer must consider the applicants submission.

This is a true crime story with a twist:

Ascension Alverez-Tejeda and his girlfriend were transporting drugs in their vehicle. They stopped at a traffic light and when the light turned green, the car in front of them began to move through the light then stalled. Mr. Alverez-Tejeda stopped in enough time to avoid rear-ending the stalled car but the truck behind him did not. The truck tapped the bumper of Mr. Alverez-Tejeda’s vehicle. Two police officers responded, and the truck driver ended up getting arrested for driving drunk. Since there was no damage to Mr. Alverez-Tejeda’s vehicle, he asked the responding officers if he could leave. He was told that the officers needed a statement from him and he was directed to move to a nearby parking lot.

Mr. Alverez-Tejeda and his girlfriend were then told by the officers to give their statements inside the police cruiser. While they sat in the police car, Mr. Alverez-Tejeda’s vehicle was stolen. The police took off after the thief but returned to tell Mr. Alverez-Tejeda that the thief got away. What a stroke of bad luck for these would-be drug transporters. But it got worse: When the police recovered the stolen car, they obtained a search warrant and the drugs were found in the vehicle. Mr. Alverez-Tejeda was arrested and charged with transporting cocaine and methamphetamine.

Last month at a U.S. District Court in Maryland, a judge stepped down from his bench to shake the hands of two defendants and tell them he was sorry. The two defendants had, at different times, pleaded guilty to drug charges years ago in that same judge’s court. The convictions had just been vacated by the judge. One of the men, Umar Burley, pleaded guilty to manslaughter and heroin possession. He had spent seven years of his 15-year sentence when he was released. The other man pleaded guilty to drug charges and had served four years when he was released. So why did the judge shake these men’s’ hands and apologize? Because they were both innocent.

Last spring, Baltimore prosecutors charged at least eight officers, who were members of a special police task force, with gross misconduct, including planting drugs on innocent people. These officers were as crooked as it gets. Suspiciously, the Baltimore detective who was investigating this rouge police squad was fatally shot a day before he was scheduled to testify before a federal grand jury.

The two recently released men are expected to be only the first of many who will be released. The district judge stated this is not over yet. Baltimore prosecutors estimate that there are at least 2,000 cases that involve arrests by this crooked task force.

While California prepares to license its first recreational cannabis shops next month, there are hundreds of thousands who have a marijuana-related criminal conviction for conduct that is now legal or less severe under the new laws. Some of these individuals are still incarcerated and some are on probation, but the majority have served their sentence but have a criminal record reflecting the conviction, which often places barriers to employment, professional licensing, firearm purchases, and even traveling to Canada.

Along with the legalization of recreation marijuana, Proposition 64 also included provisions for the reduction of criminal penalties for former marijuana convictions and for resentencing or dismissal of certain prior convictions for the sale of marijuana. Furthermore, certain convictions for conduct that is now legal under Prop 64 (generally, the personal use or possession of recreational marijuana for personal use) can now be dismissed and the record sealed. These remedies are not automatically granted. An individual seeking relief under these new provisions must petition the court for the relief and the court.

For persons who are currently facing sentencing on a marijuana charge or who are serving a sentence, whether in jail or prison, or on probation, the process requires the filing of a petition with the court which can be denied by the court under certain conditions. Eligibility for this petition is not available for all marijuana-related offenses and the petition requirements can be confusing, especially if the matter requires resentencing or custody credits. But the petition is well-worth filing. If successful, it can mean release from jail, prison, or probation and/or a significant reduction in a person’s sentence. It is advisable that an individual seeking relief under these circumstances consult with a knowledgeable criminal defense attorney.

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.