Wednesday, November 7, 2012

Election 2012: What's New in Criminal Law?


Last night, voters turned out to decide the future of the country.  Here at the SoCal Law Blog, our interest was devoted to a few ballot initiatives with special implications for criminal justice in California and around the nation.  I've summarized some of these developments below:

-Prop. 34 (California): Would have abolished the death penalty in CA and replaced it with "life-
without-parole".  The measure would have also transferred $100 million from the State to local law enforcement agencies to help investigate cold cases.

Proponents of the measure argued that CA's death penalty system is expensive, dysfunctional, discriminatory, inhumane, and just plain ineffective as a deterrent.  Opponents were backed by various law-enforcement and victims' rights groups.

The measure failed by a margin of 52.8% to 47.2%.  Looks like we will have a (nominal) death penalty in the Golden State for at least 4 more years, when this issue will almost certainly come before voters again.


-Prop. 35 (California):  Increases penalties for human trafficking, requires convicted traffickers to register as sex offenders, and requires registered sex offenders to disclose details regarding their internet usage.

This one passed by a huge margin of victory.  No real surprises here.  Who votes against such a no-brainer?  This guy, for one.

Prop. 35 is a "feel-good" measure that will make people feel like they're making a positive difference (as are most criminal-justice related ballot proposals), without really making any important changes to protect children from becoming victims of sex abuse.  The activities punishable under this act were already illegal before its passage.  This measure merely represents our collective disgust with sex traffickers and not an actual policy shift to help stop that activity.

Sex offenders on probation or parole must already cooperate with any reasonable directives of their supervising probation / parole officers.  This supervision already includes monitoring of the sex offender's internet activity.

Prop. 35 requires that any person who derives income from the work of prostitutes must register as a sex offender.  The intent was to publicly "out" pimps and others who earn their livings by managing sex workers.  The lead opponent of the measure, Maxine Doogan, is a professional "erotic service provider" (her euphemism, not mine).  Since Ms. Doogan provides financial support for her adult son while he attends college, she fears that he could be prosecuted and required to register as a sex offender for life, simply for accepting support from his prostitute mom.  See how good intentions can have counter-intuitive results?


-Prop. 36 (California):  Amends the "3 Strikes" law so that a 3rd, minor felony will not automatically result in a "25-to-life" sentence.  It also passed by a comfortable margin.

California's 3 Strikes law currently works as follows:  if an individual has two prior convictions for certain, enumerated "serious or violent" felonies (e.g. rape, assault with a deadly weapon, residential burglary, etc.), ANY third felony would automatically result in a prison sentence of 25 years to life in prison, regardless of how serious or petty the third felony is.

Many people are currently serving life sentences in California for very ticky-tacky 3rd "strikes".  For example, petty theft can be charged as a felony if the defendant has a prior misdemeanor conviction for petty theft.  If you've got two prior strikes and a misdemeanor conviction for stealing a candy bar, stealing another candy bar will land you behind bars for the rest of your natural life.

Similarly, "Commercial burglary" can also be charged as a felony.  The crime of commercial burglary is defined as "entering property, other than an inhabited dwelling, with the intent to commit theft therein".  Walking into Walmart with a plan to shoplift is commercial burglary even if you don't actually steal anything.  This means that if you have two prior strikes and you walk into a Walmart with a plan to steal a pack of gum, you might as well shoot somebody in the face because the penalty for doing so would be the same (25-to-life either way).

There are many other seemingly-petty crimes that can be charged as felonies, or even as "strikes" in certain situations.  Stealing a bicycle out of an open garage, for example, can be charged as "residential burglary", which is considered a "serious or violent crime" and can be treated as a strike.

Prop. 36 amends this hyper-rigid sentencing scheme so that ALL THREE felonies must now be "serious or violent" in order to trigger the mandatory 25-to-life sentence.  A third conviction for a minor or petty felony will no longer automatically result in a life sentence.  This common sense approach will save taxpayers millions of dollars every year in prosecution and incarceration costs.  It grants more flexibility to District Attorneys and judges and it better serves the interests of justice by making the punishment fit the crime.


-Amendment 64 (Colorado):  Amends the State Constitution to allow for the personal and recreational use of marijuana by adults 21 and older.  Directs the legislature to implement a system to regulate the production, sale, and taxation of marijuana.

Congratulations to the people of Colorado!  On Tuesday, November 6 you became the first jurisdiction in the history of the world to repeal marijuana prohibition by popular vote.  Amendment 64 represents a huge step towards finally adopting a more rational policy regarding drug use in this country.  Hopefully, your achievement will soon be mirrored throughout the western states.

Cracks have begun to appear in the great dam of prohibition.  Alcohol prohibition finally failed once states began to thumb their noses at the federal government and repealed local booze bans.  When the dominoes started to fall, Uncle Sam just couldn't afford to continue his wasteful, failed War on Alcohol.  Drug policy reformers are now mimicking the strategies that worked in the 1930s.  The strategies still work, prohibition still doesn't.

Once again, way to go, Colorado!


-I-502 (Washington):  Three short hours after Colorado passed Amendment 64, Washington voters approved I-502, effectively legalizing marijuana in that state, too.

Like Amendment 64 in Colorado, I-502 removes criminal and civil penalties for the adult possession of limited quantities of marijuana and marijuana-laced products.  It also directs the state's Liquor Control Board to draft regulations regarding licensing for growers and distributors.

I-502 generated a lot of debate and contention within the marijuana legalization community because it includes a very controversial provision regarding driving under the influence of marijuana.  Under I-502, the state will impose a threshold "per se" blood-level for delta-9 THC, marijuana's psychoactive ingredient.  Any person caught operating a motor vehicle with greater than 5 ng / ml of THC in his or her blood will be deemed guilty of "driving under the influence of marijuana".

We all agree that driving while stoned is certainly dangerous and could impair one's ability to safely operate a vehicle, but many activists and experts feel that the 5 ng / ml limit is arbitrary, ridiculously low, and really not based on any reliable science.  Most studies indicate that a person would remain well above that level for 12-24 hours after smoking.  If you take a toke before bed, you could be arrested for DUI while driving to work the next day.  Daily smokers would almost never fall under the legal threshold to drive a car.

It will be interesting to see how this all plays out!  Watch for updates as the feds almost certainly sue to prevent the full implementation of Amendment 64 and I-502.