California Death Penalty. Vote November 8th

There are two measures  that deal with the death penalty in California that are on the ballot in the forthcoming November 8th election. California has the largest number of inmates awaiting the death penalty of all the states. The last execution in California was about ten years ago when it was legally challenged because of a claim, among other things, that the process of using lethal injections was inhumane. The last attempt to abolish the death penalty occurred in 2012.

The first measure on the ballot is Proposition 62, which replaces the death penalty with life in prison without any possibility of parole and applies retroactively to all previous and existing cases in which anyone is currently incarcerated and facing the death penalty. If enacted into law, it will [also] apply to all future first degree murder convictions in which the death penalty would have been the sentence. In September of this year, a Field poll was conducted of likely voters and found that a plurality of voters (the most posted online votes, but not a majority of all votes which would be over 50%) wanted to abolish the death penalty and, therefore, voted that it be repealed. It is noteworthy that there were a substantial number of “undecided” voters, however,  and they will likely make the difference in the outcome on November 8th.

Those that oppose the death penalty cite, among other things, the following reasons: it is unfairly applied to minorities, the procedure is inhumane, and the process is costing far too much to the people of the State of California. Proponents of execution as the form of punishment assert this penalty is reserved for what can best be described as a most heinous and despicable crime against humanity, causing unparalleled and life long suffering to the families of such victims; and, there are newly developed procedures associated with death penalty cases that are being considered.

The second measure on the ballot, Proposition 66, is considered a competing measure and much different than Proposition 62 in that it speeds up executions and the death penalty process by requiring the outcome of a defendant’s appeal to not take more than five (5) years. A little over 1/3 of those in the Field poll noted above were in favor of this Proposition, but more importantly, about 42% of those who were polled were “undecided” and will indeed make a difference in the outcome of this Proposition.

To promote justice for whom they claim at this point in time are at least 1000 victims and their families, there are District Attorneys in the multitude of California counties, the California Highway Patrol Association and Peace Officers Association, along with victim advocates who are among those behind Proposition 66 declaring it to be much needed. The Office of the California Legislative Analyst reported when it last made a study it costs nearly $50,000 per year per inmate to be incarcerated in our State Prisons. The cost of a death row inmate is about $90,000 more per year due to the costs of lengthy and complex appeals to the California Supreme Court, which currently has a backlog that can take ten or more years for a ruling.

Today, there are about 750 Death Row inmates that for decades have been incarcerated in prisons. Proponents of Proposition 66 also note such inmates get three meals a day in state prisons that have heating and air conditioning; with access to cable TV and a library; and each receive nearly unlimited heath care, including but not limited to eyeglasses; dental care; hearing aids; hip, kidney, knee, heart and sex change surgery, all of which are often far better than most of us who do not get free health care, including senior citizens who often cannot afford the escalating cost of living, prescription medicine and/or a satisfactory long term care facility. In summary, these are stated as further grounds to support Proposition 66 and limit the current delays and streamline the criminal justice system in California.

If both measures were to pass on November 8th, then the one with the greatest number of votes will become law in California.

You are urged to vote on these and other critical issues that concern all of us in the forthcoming election.

Unintended Consequences of Criminal Offenders Being Transferred from State Prison to County Jail

The growing population of over 150,000 inmates in state prisons in California has exceeded the level the U.S. Supreme Court opined in 2011 is permissible. There has been litigation in Federal Court to obtain a more speedy reduction of the state prison population, and a new law has been enacted as a result of the Governor and Legislature in California establishing the state’s prison realignment; this is the name given to transferring inmates to county jails to reduce the state prison population to about 110,000. A Federal three-judge court previously set June, 2013 as the deadline for California to reduce by over 37% its state prison population beyond each prison’s building capacity. The date was recently extended to February, 2016.  This narrative has been based upon the perceived challenge of the State of California to provide adequate health care to inmates.

The Federal Court allowed this additional period of time subject to transferring state prisoners to private correctional centers and county jails in California, but not any longer to out of state facilities. This was also based upon, among other reasons, the representation of Governor Brown that shorter sentences would be imposed on non-violent criminals; issuing additional good behavior credits to prisoners so they could be eligible for an earlier release; speeding up and expanding early parole for those over 65 years of age with at least 25 years in prison; along with those who are medically incapacitated, as well as expanding the rehabilitation programs provided to inmates.

The problem is not simply the transfer of inmates to County Jails, but now the local detention facilities statewide are overcrowded. Moreover, it has been alleged there is an even greater conundrum in that far more sophisticated criminals are now incarcerated in County Jails.  For example, the San Diego County Sheriff’s Department that oversees the jails in this County has reported there has been an increased number of drugs being smuggled into the jails; this drug trade that previously was typical of state prisons has now become a serious problem in county jails.  It has been reported there were 221 of these drug and alcohol cases in the San Diego County Jails in 2012, which constitutes over a 50% increase from that in 2011. There was a total of 279 of such cases in 2013, and about 335 of these particular cases between January and September, 2014.

To better address one of  these problems, San Diego has installed body scanners at a cost of $150, 000 each unit and $10,000 each year to provide service and maintenance. This month, the County Board of Supervisors also approved spending more than three-quarters of a million dollars to obtain four additional scanners and for a five year maintenance agreement. Besides visitors hiding contraband, some of those picked up for minor probation and parole violations have been smuggling drugs into the jails, as they may only be incarcerated for up to 10 days.

But what is the best solution? Clearly, we need to implement greater rehabilitation and educational programs. For the most part, we are spending the money to incarcerate people who are addicted to alcohol and drugs, have a mental illness and/or do not have sufficient education and labor skills, when rehabilitation will have a far greater impact on this growing societal problem. Many advocates believe it can help to let local and state legislators know our political views, and of course, to become more involved in community programs.

 

 

Law Enforcement Can Search a Shared Residence Even When a Co-Tenant Objects

In the recent case of FERNANDEZ v. CALIFORNIA, 12-7822 (February 25, 2014) the U.S. Supreme Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, law enforcement can make a warrantless search of a shared residence when a co-tenant provides consent even though the other co-tenant shortly before refused to allow a search.

The general rule as to searches of a residence is that any occupant may provide consent to a search of the premises. Also, searches are considered reasonable and, therefore, deemed permissible without a warrant when the consent comes from the sole occupant of the premises However, when an inhabitant is physically present and refuses to consent to a search, that refusal is deemed legally dispositive, regardless of the consent of a fellow occupant.

Here, the U.S. Supreme Court created an exception and distinguished earlier case law that held the police cannot use any evidence seized as a result of a lawful arrest that takes place when there is a warrantless search performed immediately after a co-tenant refuses to allow a search, even though a co-tenant consents, relying upon the facts in the within case that the objection was made by an occupant that was no longer on the premises.

Some commentators have expressed outrage at the opinion as it would mean law enforcement can only initiate a consensual search if an objecting co-tenant is not standing at the door declaring the police cannot come inside and should stay out. Proponents in favor of the current opinion state the distinction in the current Supreme Court holding is the fact the objecting co-tenant was not present at the exact time a co-tenant gave consent. Nonetheless, defense attorneys would argue these distinctions are illusory since it would mean the police could come back a few minutes after they were told they could not search the premises and do so without a warrant as long as another occupant gave consent. They further contend this ruling makes it easier for law enforcement to search a residence without a search warrant when there are simple procedures for them to first obtain a search warrant. Lastly, those who object to the Court ruling believe it is a further example of the erosion of our civil liberties and right to be safe and secure in our homes without government intervention &/or intrusion.

CA Supreme Court ruled that unlicensed school employees can give insulin injections

Commentary by Sam Spital, California State Board License and Criminal Defense Attorney

It strains credulity to believe the Supreme Court declared that California law permits unlicensed employees to give insulin injections, albeit pursuant to a doctor’s order. It is a slippery slope and this opens the door to even more situations in which the training and education of a licensed nurse are being marginalized.  The American and California Nurses Association based their arguments on California law (Bus. & Profs. Code section 2700 et seq.) that heretofore has held only licensed nurses can administer insulin.Specifically, the Legislature has mandated in the Nursing Practice Act the requirements for licensure with specific courses of education, scientific knowledge, skills and clinical training, and these include the administration of medications [Bus. & Profs. Code section 2725(b)(2)]

The author did not relate any of the pros and cons, nor alternatives to an increasingly important concern in public schools throughout California since more and more parents are discovering school nurses are unavailable on a regular basis (only 5% of the schools in California have a full time nurse on duty; 26% have no nurse on duty and the rest have only part time nurses).

No citation to the actual Supreme Court case was set forth in the article, but the name, citation and link are as follows:  AMERICAN NURSES ASSOCIATION vs. TOM TORLAKSON, August 12, 2013 (Case #S184583) http://www.cde.ca.gov/ls/he/hn/documents/anavtorlakson2013.pdf

 

Peugh vs. United States

On June 10, 2013, the U.S. Supreme Court in the case of PEUGH vs. UNITED STATES, Case # 12-62, in a 5-4 opinion, ruled the Ex Post Facto Clause of the U.S Constitution was violated when the newer 2009 version of the Federal Sentencing Guidelines was applied because it provides (an increased risk of) a much greater punishment when the defendant was sentenced, rather than using the 1988 guidelines that were promulgated prior to the time he was alleged to have committed the crimes in question. The defendant was convicted of five counts of bank fraud relating to criminal acts in 1999 and 2000 and, therefore, the range of sentences was 30 to 37 months in prison under the 1998 guidelines.

Notwithstanding the Constitution forbids the passage of ex post facto laws and after characterizing the case with far more severe consequences under the 2009 Guidelines that set forth a range of 70 to 87 months, the defendant received a sentence of 70 months in prison. The Supreme Court reversed the Court Of Appeals for the Seventh Circuit that previously affirmed the Federal District Court.

It is an elementary principle of law and integral to due process that a defendant should be prosecuted based upon the law at the time he is alleged to be in violation.

Read more here.

 

Supreme Court Ruling Allows DNA Samples After Arrest

The US Supreme Court ruled on Monday that it is legal for the police to take a DNA sample at the time of an arrest for a serious crime.

The ruling came about after a court in Maryland said it was illegal for a police to take Alonzo King’s DNA. King was arrested for felony second-degree assault. When his DNA was checked, it matched the DNA connected to a rape and robbery case from 2003. King was then convicted of rape and received a life sentence.

As well as setting the policy for DNA swabs, the Supreme Court’s ruling reinstates King’s rape conviction, which was overturned when the Maryland court said that his DNA should not have been taken in the first place, since he was arrested for unrelated reasons.

The court was nowhere near unanimous on the issue, with five judges in favor and four dissenting.

 

Should juveniles receive criminal life sentences?

We all make mistakes; some are obviously more serious and have long-standing consequences. When thinking back to when we were adolescents or teenagers, many of us can recall a few, if not more, poor decisions we made. Teenagers are often prone to over-reacting and feeling invincible. They also tend to not weigh consequences and act on impulse.

Recently the United States Supreme Court heard arguments related to whether or not juveniles should ever receive life in prison without parole sentences. Taking the cases of 2,500 juveniles, many whom committed crimes when they were as young as 13-years-old, into consideration, justices will ultimately determine whether teens charged with crimes should spend the rest of their lives in prison.

While family members of those killed by the serious crimes of juveniles often seek retribution in the form of a life sentence without parole, others advocate juveniles simply aren’t able to weigh the consequences of their actions and should not be punished for the rest of their lives for crimes committed during their adolescent years.

Currently, 39 states have laws that allow juvenile prison life sentences without parole in cases related to murder. The high court’s ruling will help determine if these laws are constitutional and also impact future rulings across the country and in states like California.

Many juveniles who commit crimes were born into violent homes and impoverished communities. While this certainly doesn’t give then license to commit crimes, steps towards rehabilitation should be explored rather than simply writing them off, locking them up and throwing away the keys to any type of future.

 

UPDATE:  In the case of Miller vs. Alabama, (Case #10-9646, June 25, 2012) the U.S. Supreme Court interpreted the 8th Amendment of the U.S. Constitution to ban mandatory life sentences for juveniles, and reaffirmed the juvenile justice system must recognize developmental differences between juveniles and adults

Supreme Court rules in favor of strip searches for everyone

Imagine driving along with your spouse. They are pulled over for speeding. You’re a bit annoyed as you’d recommended they slow down five miles back. A police officer approaches the car, runs the plates and determines you have an outstanding warrant due to an unpaid fine. You try to explain that you’ve paid the fine, but are arrested and taken into police custody anyway.

This is the exact scenario that lead to the false arrest of one man recently. The man was held for a week in two separate jails and while there, subjected to humiliating and degrading strip searches which he said man him “feel less than a man”.

Upon being released, the man filed a lawsuit which went all the way to the U.S. Supreme Court leading to a 5-to-4 decision that, , regardless of the offense, strip searches are permissible for every arrest. Dissenting justices evoked the Fourth Amendment which guards against unreasonable searches and seizures citing that strip searches are not necessary for individuals arrested for minor offenses.

While those Justices in favor of strip searches contended that even individuals arrested for seemingly minor offense can turn out to be dangerous criminals, those opposed cited examples where people arrested for driving with a noisy muffler or failing to use a turn signal had been subjected to invasive strip searches.

In addition to the dissenting arguments including the Fourth Amendment and matters related to a general right to privacy, those Justices against strip searches also questioned the effectiveness of the searches in uncovering contraband. They contended that many contraband items detected by jail and prison workers could be detected using much less intrusive means.

The Supreme Court’s ruling on strip searches is troubling as it will likely encourage police and jail workers to increase their practices of carrying out humiliating and degrading strip searches. While safety is a concern for police and law enforcement officials, one has to wonder if there are ulterior motives at play. For example is a nun arrested during an anti-war protest really a danger or likely criminal? Sadly, police who arrested and subjected her to a strip search seemed to think so.