Friday, July 12, 2024

Mangino talks with Jesse Weber on Law and Crime's Sidebar about parole for Susan Smith


Thursday, July 11, 2024

The Sentencing Project: Media Guide for reporting on crime

 From The Sentencing Project:

Misleading news coverage of crime and criminal legal policies has played an integral role in the over 50-year history of mass incarceration. Following is The Sentencing Project’s guidance to newsrooms and journalists on how to accurately cover crime and justice. News coverage that adds context, mitigates biases, and ensures veracity can inform the public and policymakers on how to pursue the most effective and humane public safety policies.

  • Situate crime trends and policies within their broader historical and geographic context.Nationwide, crime rates reached their peak levels in the 1990s then fell roughly 50% by year end 2019—a trend to which mass incarceration contributed only modestly. Then, the economic, social, and psychological turbulence of the COVID-19 pandemic created a seismic shift for the most serious crime: homicide. Homicides spiked up 27% in 2020 and remained at elevated rates until beginning a substantial decline in 2023. Reported rates of violent and property crime exhibited typical fluctuations amidst the pandemic, although household surveys of violent victimization showed a more dramatic increase across the country. Motor vehicle thefts, which were at near-historic lows by 2019, also increased in the subsequent years, as did carjackings.The country’s experience with mass incarceration has shown clearly that ratcheting up harmful police and prison policies is a counterproductive response to upticks in crime. Well-framed stories about crime increases should consider the following questions: Is the shift unique to one form of crime and is it attributable to a change in crime reporting or recording? How does the uptick compare to historical crime peaks and lows, and how does it compare with crime trends in other jurisdictions? If crime rates increased in several otherwise unrelated jurisdictions, this should inspire skepticism that a particular local reform is to blame. Be sure to also request and assess evidence of the effectiveness of proposed solutions. What broader policy shortcomings does the crime uptick point to and what broader solutions are being implemented? (E.g., access to mental health care and effective drug treatment programs, community-based violence prevention programs, gun control, summer youth programs, affordable housing, underemployment and low wages, unaddressed residential segregation, etc.).U.S. crime rates increased dramatically beginning in the 1960s, but between 1991 and 2019 crime rates fell by about half, just as they did in many other countries around the world. The decline has been especially steep for youth, whose arrest rate fell by 80% from 1996 to 2020. Polls show that throughout most of this crime drop, the majority of Americans continued to believe that crime was increasing nationwide. Sensationalist coverage does not advance public safety and distorts public understanding. Given longstanding public misperceptions about crime trends, consider: Why cover a crime incident at all? Routinized crime coverage and click chasing promote punitive and ineffective crime policies. As the Center for Just Journalism recommends, also consider whether you’re giving adequate attention to broader forms of harm caused by violations of civil or criminal law by powerful people.Media coverage should also test causal claims about the effectiveness of past crime policies by comparing local crime trends with regional and national patterns. The nationwide crime drop between the 1990s and 2019 challenges any claim that a particular local policy brought down crime rates. Do not award credit for crime declines to particular leaders, laws, or tactics without a rigorous assessment.
  • 2.      Recognize the limited role of youth crimes and evidence on appropriate responses to adolescent crime.For much of the past quarter century, both youth crime and incarceration levels have fallen dramatically. Between 1999 and 2020, the youth arrest rate fell by 80%. Meanwhile, the number of youth held in juvenile justice facilities fell from 107,000 to 25,000 – a 77% decline – during roughly the same time period. The recent uptick in certain youth crimes has occurred alongside other promising trends. The most recent data show 32% fewer youth arrests in 2022 than in 2019, the year before the pandemic began. This general trend masks increases in youth arrests for homicide (up 45% from 2019 to 2022) and weapons offenses (up 19%). However, youth arrests for other serious offense categories fell over this period, such as for aggravated assault (down 14%) and robbery (down 36%). Overall, youth’s share of total arrests nationwide reached 9% in 2022. These trends have been misrepresented in a recent wave of alarmist youth crime coverage.In the mid-1990s, media reports, relying on unqualified sources, trumpeted “a ticking time bomb” of adolescent crime perpetrated by a new wave of allegedly remorseless and morally impoverished young “superpredators.” These predictions were based on faulty science and proved wildly inaccurate: youth crime rates began a sizable and prolonged downturn in the mid-1990s. Yet the coverage helped spark a wave of counterproductive, punitive laws that contradicted all available evidence on what works to address delinquency. In 2020, NBC News reviewed this history and concluded: “Though it failed as a theory, as fodder for editorials, columns and magazine features, the term ‘superpredator’ was a tragic success—with an enormous, and lasting, human toll.” Avoid repeating this history: double-check the data to verify an alleged trend, interview multiple experts, and ask hard questions before feeding a crime wave/surge narrative. Be aware that voluminous research finds that over-responding to adolescent misbehavior typically damages young people’s futures and harms public safety. Youth do better and reoffend less when they’re diverted from the court system rather than prosecuted, and incarceration likewise leads to worse public safety and youth development outcomes.
  • 3.      Avoid amplifying false or unsupported claims: fact check police, prosecutors, and legislators. “Man Dies After Medical Incident During Police Interaction,” the Minneapolis police department reported after its officers killed George Floyd. Video of the incident contradicted their account, reinforcing that police reports cannot be trusted as facts. Relatedly, there’s a growing understanding that prosecutors don’t just enforce laws, but play an active role in creating them, making them active players in many legislative debates. This is why it’s important to verify claims about crime incidents and trends, and to include sources beyond criminal legal practitioners to ensure that you are reporting the truth. Seek out the perspective of currently and formerly incarcerated people as both sources and journalists. Also, remember that not all numbers are equally reliable: apply a critical lens to internally-conducted polls whose questions and sampling methods are obscure, such as those conducted by some police unions of their members. Finally, report verifiable facts as facts, rather than as claims. For example, did an expert claim that people with violent convictions leaving state prisons have lower recidivism rates than others, or does data show it to be a fact? (See #8.)
  • 4.      Reassess the newsworthiness of crimes and identities.Given the racial biases in criminal legal enforcement and the lasting harm of being named in media stories that are easily accessible on the internet, some outlets including The Boston Globe are scaling back their coverage of petty crimes and trimming the long tail of these stories by amending or erasing their archives. The Associated Press will stop naming individuals involved in stories about low-level arrests. “A consensus appears to be emerging among newspaper publishers,” writes The Washington Post’s Erik Wemple, “that crime coverage and its stickiness in a search-engine world need a systemic update.” News outlets should emulate these “right-to-be-forgotten” initiatives and ensure that they are accessible and fair. As a rule, news media should not reveal the names or include photos of young people who are involved in the juvenile court system, which seeks to protect their identities to minimize the long-term consequences of youthful misbehavior.
  • 5.      Avoid creating backlash bait with partial coverage of reforms and recidivism.Situate the impact of sentencing reforms within the massive scale of mass incarceration. For example, 448,000 people were released from prison in 2022 (see Table 9 here for a state breakdown). If a particular reform expedites the release of some hundreds or thousands of people, contextualize that within the much larger number of people that are typically released from prison each year. Unless the pace of decarceration dramatically increases, it will take over seven decades to return to 1972’s prison population, before the era of mass incarceration. If you have identified unfairness in the reform process, be sure to also hold government officials accountable for the persistent unfairness and ineffectiveness of current prison sentences, which scholars have shown to be too long, imposed too frequently, and racially imbalanced.Even the best policies that dramatically reduce recidivism rates cannot get these rates to zero. If policies are evaluated by the recidivism of the few, then elected officials and practitioners will be pressured to abandon effective policies in the face of public opinion misinformed by skewed media coverage. As The Marshall Project explains, furloughs and work release programs in prisons were otherwise hugely successful but news coverage of “Willie” Horton brought that to an end. Avoid turning one tragic incident into the harbinger of tragic criminal legal policies by informing your audience about the relative infrequency of such incidents, and by asking what preventative policies—beyond further incarceration—might avert another similar tragedy. If an arrest you’ve covered results in a dismissal or finding of innocence, ensure that your coverage follows through to the conclusion of the case.
  • 6.      Conduct a racial equity audit on the quantity of your crime coverage.Media coverage often overrepresents crime committed by Black males and victimization experienced by white females. Researchers have shown that journalists gravitate to unusual cases when selecting homicide victims (white women) and to more common cases when selecting people who have committed homicide (Black men), suggesting that newsworthiness is not a product of how representative or novel a crime is, but rather how well it can be “scripted using stereotypes grounded in White racism and White fear of Black crime.” Homicide victims were more likely to make the news if they were white or killed in majority-white neighborhoods, according to a Chicago study. Media outlets should therefore conduct an audit comparing how their crime coverage compares to the community’s crime and victimization rates, with awareness that arrest rates oversample crimes committed by people of color. Such audits should also be conducted of headlines and push notifications. Examine also whether your coverage reflects the fact that immigrants commit crimes at lower rates than native-born citizens. Also ensure diversity among sources and news staff, in terms of racial and other identities including exposure to the criminal legal system.
  • 7.      Conduct a racial equity audit on the quality of your crime coverage.Ensure that your crime coverage is treating people of color—both those accused of crime and those who are victims—as humanely and fairly as it is treating white people in similar circumstances. Chicagoans killed in predominantly Black and Latino neighborhoods were less likely to be treated through the “lens of complex personhood,” such as by noting the victim’s family and community roles. White mass shooters have been presented more sympathetically, such as by recognizing underlying mental illnesses, than Black counterparts. News images of people—often white—impacted by the opioid crisis have depicted well-lit spaces, stressed domesticity, and emphasized close-knit communities while past drug crises tended to depict nighttime scenes on seedy streets or portrayed individuals—often Black—interacting with the police, courts, or jails, and often using starker black and white photography. Past research on television news found that Black individuals accused of crime were presented in more threatening contexts than whites: Black individuals were disproportionately shown in mug shots and in cases where the victim was a stranger. Black and Latino individuals were also more often presented in a non-individualized way than whites—by being left unnamed—and were more likely to be shown as threatening—by being depicted in physical custody of police. Regular audits can help to catch and correct biased coverage. To correct these disparities, level up rather than down: reassess whether crimes are newsworthy (see #4) and present the nuance and humanity of everyone.
  • 8.      Be cognizant that growing prison terms for violent crimes are a key driver of mass incarceration and its racial disparities, and that an abundance of evidence has proven these sentences to be largely ineffective.Over half of the prison population was convicted of a violent offense, which ranges from assault and robbery to sexual assault and murder. Growing sentence lengths for this population has been a major driver of mass incarceration. Over 200,000 people in U.S. prisons were serving life sentences as of 2020—more people than were in prison with any sentence in 1970. Nearly one in five imprisoned people have already served at least 10 years, the maximum duration of most “criminal careers” and a point at which recidivism rates fall measurably. Racial disparities in sentencing also grow with sentence length. People released after decades of imprisonment for the most serious crimes have extremely low recidivism rates. This fact indicates that they have been imprisoned long past the point at which they pose an above-average public safety risk. More generally, when the Bureau of Justice Statistics examined individuals released from state prisons in 2008, it found that those with violent convictions were less likely to be arrested than those with drug or property convictions. Consider these facts when reporting on reforms impacting, or omitting, people convicted of violent crimes. Since most coverage focuses on people at the time of their crime and not years later, profiling people released after spending many years in prison is an important contribution.
  • 9.      Accurately present crime victims and survivors as having a complexity of views.Crime survivors are not monolithic and many have unmet needs that go beyond extreme punishment. Increasingly, victim services and advocacy organizations are supporting criminal legal reforms, noting that incarcerated people are often victims of crime and trauma, and are calling for effective investments to prevent future victimization. Black and Latino people have been far more likely than white people to be serious crime victims, and to be more fearful of becoming crime victims, and yet they have been less supportive of punitive criminal legal practices while being more supportive of investments in rehabilitation and crime prevention. Be mindful of the impact of your reporting on crime survivors and assess whether your coverage includes a spectrum of views. Ultimately, a survivor’s desire for punishment must be balanced with societal goals of advancing safety, achieving justice, and protecting human dignity.
  • 10.  Use humanizing language and toss doublespeak and the exonerative tense.Remember that crime coverage is fundamentally about people. Using person-first language (e.g., people in prison, people with criminal records, youth) impacts public perception of these individuals and supports humane policies. Using shorter labels or bureaucratic jargon (e.g., prisoner, inmate, felon, juvenile) in headlines or stories comes at the expense of casting stigma on a vulnerable population by defining them based on a negative dimension of their lives. Destigmatizing language regarding substance use disorders supports public health solutions, instead of the failed War on Drugs. More precise and accurate language for people convicted of a crime of a sexual nature can also support their rehabilitation.Many punitive criminal legal concepts have Orwellian names that downplay their harm and exaggerate their efficacy, such as “truth in sentencing” and “sentencing enhancements.” The catchall “tough on crime” label is also a form of doublespeak. While such policies are certainly tough on people accused or convicted of crime, why echo this term for policies that often contribute little to community safety?Finally, the “exonerative tense” replaces “police shoot and kill man” with “man struck by officer’s bullet.” The noun “officer-involved shooting” is no clearer than “officer shooting” in conveying who did the shooting and who was shot. Strive for clarity and precision, especially with headlines. According to the AP Stylebook: “Avoid this vague jargon for shootings and other cases involving police. Be specific about what happened. If police use the term, ask for detail. How was the officer or officers involved? Who did the shooting? If the information is not available or not provided, spell that out.”


Wednesday, July 10, 2024

Senators ask DOJ for special counsel to investigate Justice Clarence Thomas

Two Democratic U.S. senators announced Tuesday that they are seeking a criminal investigation of Supreme Court Justice Clarence Thomas over gifts of travel, a loan for a recreational vehicle and other benefits he received from wealthy benefactors, reported the Washington Post.

Sens. Sheldon Whitehouse (D-R.I.) and Ron Wyden (D.-Ore.) said they sent a letter to Attorney General Merrick Garland last week requesting he appoint a special counsel to probe whether Supreme Court Justice Clarence Thomas violated ethics, false statement and tax laws.

The action marks a significant escalation in efforts by Democratic senators to address ethics controversies related to Thomas and the court in recent years. Whitehouse’s staff said it was likely the first time anyone had requested a special counsel investigate a Supreme Court justice. Whitehouse sits on the Senate Judiciary Committee, while Wyden chairs the Senate Finance Committee.

Jeremy Fogel, a former federal judge and executive director of the Berkeley Judicial Institute, said the Justice Department has the legal authority to appoint a special counsel to investigate Thomas, but whether it would is another matter. “Inevitably it would be seen as political retribution for rulings the justices made that they don’t like,” he said.

Special counsels are generally appointed when the attorney general wants to assure the public that a sensitive investigation will be conducted fairly and free from political considerations; Garland has appointed three special counsels during his tenure, to oversee investigations involving former president Donald TrumpPresident Biden and the president’s son, Hunter Biden.

To read more CLICK HERE


Tuesday, July 9, 2024

Pa. High Court: Hearsay Evidence Not Enough to ID a Defendant at a Preliminary Hearing

Matthew T. Mangino
The Legal Intelligencer
July 2, 2024

The Pennsylvania Supreme Court has yet again addressed the issue of proving a prima facie case at a preliminary hearing. The Supreme Court has clarified that inadmissible hearsay alone will not be adequate to identify a defendant at a preliminary hearing.

The high court initially sought to clarify when the commonwealth may properly use hearsay evidence to establish a prima facie case at a preliminary hearing in Commonwealth v. Ricker, 135 A.3d 175 (Pa. 2016), an appeal dismissed as improvidently grant, and in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2022).

In 1990, the Pennsylvania Supreme Court decided Commonwealth Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990).

Prior to Verbonitz prosecutors could establish a prima facie case at a preliminary hearing by presenting only hearsay evidence. In Verbonitz, the only evidence offered by the commonwealth at the preliminary hearing was the testimony of a police officer about a statement made by a witness. The Pennsylvania Supreme Court held that the commonwealth failed to establish a prima facie case. Justice Rolf Larsen wrote in a plurality opinion, “Fundamental due process requires that no adjudication be based solely on hearsay evidence.”

Twenty years after Verbonitz, Pennsylvania Rule of Criminal Procedure 542 was established and preliminary hearings were got a bit twisted. Subsection (E) provides as follows:

“Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense requiring proof of the ownership of, nonpermitted use of, damage to, or value of property.”

Rule 542 was established in 2011. It appeared that the new rule was intended to lessen the burden on prosecutors to call witnesses to prove “ownership of, nonpermitted use of, damage to, or value of property.”

However, the new rule’s comments appeared to imply that hearsay could be used to establish any element of a prima facie case. Prosecutors ran with that interpretation.

In 2013, the comment to Rule 542 was amended. The comment, as it reads today, provides “Hearsay, whether written or oral, may establish the elements of any offense. The presence of witnesses to establish these elements in not required at the preliminary hearing.”

In 2017, the Pennsylvania Superior Court ruled in Commonwealth v. McClelland, 165 A.3d 19 (Pa. Super. Ct. 2017), in support of hearsay at a preliminary hearing, “admitting hearsay at the preliminary hearing would be irrelevant if the defendant was convicted at trial, and if the defendant was acquitted, then the error’s impact would be ‘minimal’ because there would be no permanent loss of liberty.” The logic employed by the Superior Court appeared to render the preliminary hearing meaningless.

Then in 2020, the Pennsylvania Supreme Court reversed the Superior Court in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020), which has come to be referred to as McClelland II.

In McClelland II, the Supreme Court had “little difficulty in stating with certainty that five justices in Verbonitz agreed a prima facia case cannot be established by hearsay evidence alone, and the common rationale among those Justices involved due process considerations.” The court held that hearsay evidence alone cannot establish a prima facie case at a preliminary hearing.

That bring us to the Supreme Court’s latest iteration of the preliminary hearing. On Jan. 3, 2022, the Superior Court decided Commonwealth v. Harris, 2022 Pa. Super. 1 (Pa. Super. Ct. 2022).

Ronald Harris was accused of shooting a man over drugs. The victim failed to show up for two preliminary hearings. When the victim failed to show for a third hearing the district attorney’s office called the police officer who took a statement of the victim. The officer testified over the objection of Harris’ counsel. The case was bound to trial.

Although Harris filed a motion to quash the information, he remained incarcerated for nearly 18 months, despite the fact that the commonwealth had a witness unwilling to cooperate.

The Superior Court in Harris found that “Nothing in Rule 542 (E) prevents the application of Verbonitz requiring that all material elements of the criminal offense need to be proved at a preliminary hearing by nonhearsay evidence.”

The Superior Court concluded, “The Supreme Court’s holdings in Verbonitz and McClelland precludes the commonwealth from relying on hearsay alone at a preliminary hearing to establish a prima facie case that the defendant committed a crime.”

The Supreme Court permitted the commonwealth to appeal, by allowance, the Superior Court’s decision in Harris, Commonwealth v. Harris, No. 31 EAP 2022, decide May 13, 2024. The Supreme court narrowed its inquiry as to whether Rule 542 (E) permits the use of hearsay alone to prove the defendant’s identity.

The Supreme Court found that “Rule 542 (E)’s first sentence requires the preliminary hearing judge to consider hearsay in determining whether a prima facie case has been established … as to both the commission of a crime and the identity of the defendant.” The second sentence of 542 (E) is significant, it provides that hearsay shall be sufficient to prove “any element of an offense including, but not limited to. those requiring proof of ownership of, nonpermitted use of, damage to, or value of property.” The second sentence does not refer to identification. The court went on, “This strongly suggests hearsay relating to the identity of the offender is insufficient to prove a prima facie case under Rule 542.”

Although the Supreme Court did not approve of the rational of the Superior Court in Harris in all regard, the court was unequivocal in holding:

To summarize the state of the law regarding the use of hearsay at preliminary hearings, Rule 542 (E) is intended to allow some use of otherwise inadmissible hearsay by the commonwealth to establish a prima facie case that an offense has been committed.

Finally, we now hold, based on the plain language of Rule 542, that inadmissible hearsay alone may not be used to prove a prima facie case as to the defendant’s identity. This means the commonwealth at a preliminary hearing is required to produce some nonhearsay or admissible hearsay evidence to sustain its prima facie burden as to the defendant’s identity.

The Supreme Court has distinguished between the evidence needed to sustain a prima facia finding of the elements of an offense at a preliminary hearing and the identity of the alleged offender at the preliminary hearing.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on X @MatthewTMangino or contact him at

To read more CLICK HERE

Monday, July 8, 2024

Lawfare: A Decision of Surpassing Recklessness in Dangerous Times

Quinta Juecic and Benjamin Wittes writing for Lawfare: The United States has gone for two-and-a-half centuries without a constitutional rule concerning presidential immunity, and it has been able to do so for a very simple reason: Most presidents aren’t criminals and don’t use their official functions to commit crimes.

The question of whether a president has some form—and if so, what form—of immunity for official acts thus hasn’t come up much. Where presidents have broken the law, the country has resolved the matters by means other than criminal charges. We saw a pardon in the case of Richard Nixon, and we saw a negotiated resolution short of prosecution in the case of Bill Clinton. In some cases, we just looked the other way. And the country and its presidency moved on.

Had it come outside the context of the once and possibly future presidency of Donald J. Trump, the Supreme Court’s decision Monday in Trump v. United States would still have been wrong, and it would still have been objectionable, and it would still have been dangerous.

But it would have been dangerous primarily in a hypothetical kind of way. It would have made it more likely that some future president might theoretically take this doctrinal tiger and ride it into a life of official crime without fear of repercussions. It would have made it more likely that some president might find in the Supreme Court’s ruling a license to corruption or a license to wield enhanced substantive power, because no law—or chains—could bind him or her.

But these dangers, though real, would have been somewhere off in the future. They might never come to be. And the United States, after all, has lots of constitutional law that, exploited by bad people, could theoretically produce bad outcomes.

The Supreme Court’s decision, however, does not come decontextualized in a casebook. And it is not, however much the justices of the majority may pretend otherwise, about the presidency in the abstract. Of course, it also affects the presidency in the abstract—and all future presidents who wield its powers. But this is a case about a particular man in interaction with the presidency. And those actions are not all in the past tense.

It is a case in which the Supreme Court was asked whether it wanted to enable Trump’s avowed authoritarianism in a future presidency by disabling his prosecution for crimes committed in his prior presidency. 

It is, in other words, about some very immediate—and very non-hypothetical—dangers.

And it comes at a very specific political moment: Trump is currently leading in most polls. According to Nate Silver’s forecast, Trump has a 71 percent chance of winning the election in November. That chance is only 51 percent if you prefer the 538 forecast. But he’s the current front-runner by any reasonable measure. His opponent’s campaign is in no small turmoil following Joe Biden’s disastrous performance in last week’s debate. Trump is, in short, the single most likely person in the world to wield the powers of the American presidency come Jan. 20, 2025.

He is also a convicted criminal—no small matter when one is writing a “rule for the ages” about prospective presidential impunity, as Justice Neil Gorsuch put it during oral arguments. The court majority may flatter itself that it’s staying out of politics. But this is a fairy tale the justices are telling themselves—if they are, in fact, telling themselves this pleasant little tale. In fact, they are handing a powerful immunity to an adjudged felon who may be about to assume “the executive power” of the United States, and they are doing it by corroding—and perhaps rendering impossible—accountability for his past crimes.

There’s another sense in which the Supreme Court has failed here: It has articulated a set of standards for presidential immunity that are utterly opaque. The most fundamental job of an appellate court, even when it’s articulating an objectionable principle, is to give actionable guidance to lower courts. The Court in this case has not done this. Reading the opinion alongside the indictment, it is completely unclear how to apply it to the instant case along a number of different axes and with respect to a number of different allegations.

This task the majority remands to the district court—with Trump careening toward the presidency—and it does so reserving for itself another round of interlocutory appeal before the matter can proceed to trial.

The Error! The Error!

The notion that there is some form of presidential immunity for some official acts—or at least some constitutional limit on Congress’s authority to criminalize the conduct of presidential acts—is not horrible in and of itself. Whether one calls this a limitation on Congress’s legislative authority or calls it a presidential “immunity” is a largely semantic distinction, though it’s a semantic distinction with an important procedural consequence. If we think of this protection for presidential action as merely a constitutional limitation on congressional power, it doesn’t convey an interlocutory appeal to a former president charged with a crime, whereas if we call it an immunity, these issues have to be resolved pretrial.

Had the Court merely contended that there is some irreducible core of presidential conduct that Congress cannot regulate, this likely would have been an uncontroversial decision, perhaps garnering unanimity as even the dissenters seem to concede it. Moreover, it would not either have gravely encumbered the prosecution or handed Trump a loaded weapon should he return to office.

But the Court went a lot further.

It held that with respect to all other official presidential acts, there is at least a presumption of immunity and there may be absolute immunity as well. The Court isn’t telling just yet which it is, writes Chief Justice John Roberts: “[W]e need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”

This immunity may, or may not, be overcomable by the prosecution to the extent it can show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” 

With respect to unofficial conduct, the former president has no immunity, but the Court offers Trump an Easter egg here as well: “In dividing official from unofficial conduct,” Roberts writes,  “courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.”

As an example of the absurdity of this proposition, imagine a hypothetical only one shade from something that actually happened. Imagine that Trump as president had offered Ukrainian President Volodymyr Zelensky a frank bribe, instead of using the word-salad he gave in his “perfect” phone call with the Ukrainian leader. Imagine for example that he had said, “I will give you $10 billion in military aid if you deliver me dirt on Joe Biden.” Such an offer would be a crime if it were a corrupt offer meant to dig dirt on a rival; but if the president were earnestly concerned about, say, protecting national security and believed that “the dirt” referred to something genuinely sinister, this might be a defensible exercise of the president’s Take Care Clause responsibilities. The difference is purely one of intent and motive.

Yet under this ruling, Trump would likely be immune whether he did this for the most venal of personal reasons or the most noble, good-faith reasons of state. A court could not even consider the motive in assessing whether immunity attaches to the act. 

The Court went further still. Not only is the former president absolutely or presumptively immune for all official acts in the sense that he cannot be charged with them as crimes, he is immune from their use as evidence against him in a prosecution for some other crime. As Roberts writes, “If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated.” The result is that the president is at least presumptively immune and maybe absolutely so for taking a bribe in exchange for some official act, because the evidence of the official act could never be used. Justice Amy Coney Barrett notably declined to join this portion of the opinion, writing that “[t]he Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”

If this all sounds less than coherent, as well as dangerously enabling, that’s because it is both.

Error Exacerbated by Incoherence

Even if you accept the majority’s three-category system for slicing and dicing presidential conduct, the problems begin as soon as you start to try to distinguish between the different categories. The borders of each are remarkably ill-defined.

Consider the distinction between Categories One and Two. Roberts explains that Category One comprises actions within the president’s “conclusive and preclusive” power; it does not include “conduct in areas where [the president’s] authority is shared with Congress.” As examples, he points to the president’s authority to grant pardons, recognize foreign countries, remove officials whom he has appointed under the Appointments Clause, and engage in “investigative and prosecutive decision-making.” For this reason, Roberts carves out as immunized the portion of the Jan. 6 indictment concerning Trump’s efforts to appoint Jeffrey Clark as attorney general in order to direct the Justice Department to investigate alleged election fraud.

But where exactly does the “exclusive sphere” of presidential authority that receives absolute immunity move into the more ambiguous zone of conduct for which immunity may—or may not be—only presumptive? Roberts spends almost no time on this point.

Yet consider a string of hypotheticals raised by Justice Sonia Sotomayor in her dissent:

When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.

Roberts does not directly address any of these hypotheticals in his opinion, choosing instead to mock the dissents’ “tone of chilling doom.” So we are left on our own in sorting through where exactly the conduct described by Sotomayor would fall. As to taking a bribe in exchange for a pardon, it seems clear—under the examples that Roberts himself provides—that this would fall into Category One and receive absolute immunity. To make matters more confusing, Roberts oddly suggests in a footnote that the prosecution might use the public record to establish the fact of the official act.

What about ordering Seal Team Six to assassinate a political rival or organizing a military coup? Both these activities would fall under the president’s Article II authority as commander in chief. But is that authority “conclusive and preclusive”? It’s hard to say, and it depends on context. After all, Congress has established the Uniform Code of Military Justice to govern permissible conduct by members of the military, and Congress may also constrain the president’s offensive use of military power.

But then again, Congress has also produced legislation in areas that touch on the Appointments Clause—such as the requirement that the president must appoint someone “learned in the law” to serve as solicitor general. Yet Roberts identifies the Appointments Clause and the president’s power over firing principal officers at the Justice Department as an area of core authority protected with absolute immunity. Where exactly does this leave us?

When the Seal Team Six hypothetical first arose during oral argument at the D.C. Circuit and then at the Supreme Court, commentators pointed to it as an example of the dangerous extremes of presidential power that Trump’s arguments could result in. George Conway described the admission by Trump’s counsel that such an order would constitute an official act as equivalent to walking into a “nasty trap.” And yet it is far from obvious that such conduct would not be immune under the Supreme Court’s reasoning. It’s clearly an official act, after all, and it would therefore be at least presumptively immune and maybe absolutely immune. And depending on how one interprets the Commander in Chief Clause, it could be argued to be a conclusive and preclusive power. Nobody else, after all, is allowed to command the military, and Congress is famously not allowed to order the president which hill to take.

So that’s the porous border between Categories One and Two. What about the border between Two and Three? Presidential conduct moves beyond the outer perimeter and into activity unprotected by presidential immunity when it is “manifestly or palpably beyond [the president’s] authority,” Roberts writes. But remember that in “dividing official from unofficial conduct, courts may not inquire into the President’s motives”—nor may they “deem an action unofficial merely because it allegedly violates a generally applicable law.” What’s more, “some Presidential conduct … certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision.” 

“Distinguishing the President’s official actions from his unofficial ones can be difficult,” Roberts notes helpfully. Some examples. Roberts points to the component of the Jan. 6 indictment that focuses on Trump’s efforts to bully Vice President Pence into upending the electoral count. This, according to the majority, falls into Category Two: “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.” But what about the fact that Pence was presiding over the activities of the Senate, as part of a process established by the Constitution as the role of Congress without any role for the president? The majority identifies this as one reason why the prosecution might be able to rebut the Category Two presumption of immunity. But couldn’t one just as easily argue that this should place Trump’s conduct toward Pence in Category Three to begin with? After all, the two men are talking about Pence’s exercise of his powers in an area in which Trump has no constitutional role and is operating as a candidate, not as an official. It’s certainly within Pence’s official responsibility, but why is it within Trump’s, unless we can say the same for any matter of public moment?

Likewise, the majority suggests that Trump’s involvement in the fake electors scheme is entitled to presumptive immunity because, in Trump’s view, “it was undertaken to ensure the integrity and proper administration of the federal election,” under the president’s constitutional authority to faithfully execute the laws. In her concurrence, though, Justice Amy Coney Barrett argues that this conduct is “private and therefore not entitled to protection” because “a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors.” The fact that the majority itself cannot agree on how to apply its own standard is not encouraging. Nor is the majority’s vastly expansive view of where the outer perimeter lies. Under this logic, it is not at all clear why, say, the president denying an allegation of rape by E. Jean Carroll would not be considered an official act, since he’s commenting on a matter of public interest that could undermine the public’s confidence in his leadership and administration. And what about if, during a second term, he groped Italian Prime Minister Giorgia Meloni while attending the G7?

Even for conduct firmly within Category Two, how exactly are prosecutors meant to rebut the presumption of immunity that the Court has established? This question has both substantive and procedural elements. The government, Roberts writes, must “show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” It’s difficult, though, to determine how precisely to apply that standard, especially given the majority’s hawkish approach to policing any conceivable limit on executive power. The two of us would not previously have imagined that pressuring Pence might fall into this category to begin with—how are we supposed to gauge whether criminalizing such conduct would intrude on presidential power?

Moreover, it is completely unclear from the opinion what kind of litigation procedure might address this question. Is it purely a question of law in which the district court is to take as true the allegations in the indictment? Or are the parties to call witnesses and develop a record on which the court then rules? What if there are disputed questions of fact?

We could go on. The bottom line is that the Court has created a profoundly muddled test that provides woefully insufficient guidance for lower courts—and for Judge Tanya Chutkan’s court in particular. In doing so, the majority also extinguishes whatever vestige of deterrence might have remained for presidents considering using their office as a shield for criminality. The standards set out in this opinion are so vague that an enterprising defendant could contort them in all kinds of ways, particularly given the limitations on inquiry into motive and available evidence. It’s hard to imagine that a president would, in light of this, be much discouraged by the ever-dimmer prospect of criminal liability.

In his speech last night in reaction to the decision, President Biden made a revealing remark:

[W]ith today’s Supreme Court decision, ... it will depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency, because the law will no longer do it. I know I will respect the limits of the presidential power, as I have for three and a half years. But any president, including Donald Trump, will now be free to ignore the law.

Illegal presidential actions do not become lawful because some doctrine of immunity protects a person who violates them from consequences. Crimes are still crimes. And criminals are still criminals, even if they cannot be adjudged as such. But Biden is correct to observe that what the Supreme Court has done here is to make compliance with the law, at least presumptively as to official acts, an entirely voluntary matter.

And it has done so knowing full well that a convicted felon who tried to overturn a lawful election waits in the wings to inherit the powers of the presidency.

The justices in the majority will surely tell themselves that deciding who wields the powers of the presidency is a political question, not the province of the judiciary to meddle in. But deciding with what new tools of abuse and impunity to arm the presidency just as such a man is on the verge of its accession is a decision, not an ineluctable deduction from history and text and case law.

 It is a decision of surpassing recklessness in dangerous times. 

To read more CLICK HERE

Saturday, July 6, 2024

Mangino discusses SCOTUS Chevron decision with WFMJ-TV

Watch my interview with Lindsay McCoy on WFMJ-TV21 discussing the U.S. Supreme Court's Chevron decision.

To watch the interview CLICK HERE

Friday, July 5, 2024

Alabama's death penalty rolls on in face of national decline

As one of only five states that executed people this year—and one of only seven states that sentenced people to death—Alabama remains an outlier in its continued use of the death penalty, according to the Death Penalty Information Center’s Year End Report.

According to the Equal Justice Initiative, the death penalty’s nationwide decline continued in 2023, which DPIC reports is the ninth consecutive year with fewer than 30 people executed and fewer than 50 people sentenced to death.

Alabama imposed three of this year’s 21 new death sentences. Two of the three were sentenced to death even though jurors did not agree that death was the appropriate sentence.

Allowing death sentences to be imposed without unanimous agreement from all 12 jurors is an outlier practice barred in almost every other state. Indeed, until Florida changed its law earlier this year, Alabama was the only state that allowed a person to be condemned to death without a unanimous jury vote.

Alabama put to death two of the 24 people who were executed this year in the U.S. Both men were executed despite the fact that all 12 jurors did not agree they should get the death penalty—a fact that would bar the death penalty in nearly every other state.

Alabama stands out as the state with the worst record of failed and botched executions after its torturous multi-hour execution of Joe James and its failed attempts to execute Alan Miller and Kenny Smith in 2022.

It retained that outlier status this year when the governor declared Alabama was ready to resume putting people to death after the same officials responsible for the failed and botched executions conducted a truncated, nontransparent “review” that failed to identify any problems with its protocol or explain what went wrong in its last three scheduled executions—in sharp contrast with the independent, comprehensive investigations ordered in states like Arizona and neighboring Tennessee.

The only specific change that resulted was an unprecedented new rule that made Alabama the only state in the country that allows executions without an established time frame, giving executioners unprecedented power.

And just last month, the Alabama Supreme Court authorized the use of an untested, unproven, never-before-used execution method when it gave prison staff a second chance to attempt to kill Kenny Smith by forcing him to breathe nitrogen gas.

The majority of states (29) have abolished the death penalty or stopped executions by executive action. Only a small handful of states continued to use the death penalty in 2023; indeed, the number of states conducting executions (5) and imposing death sentences (7) this year matched record lows.

Three more people were exonerated in 2023, bringing the total to 195 people who have been exonerated after being sentenced to death in the modern death penalty era.

Several other cases with strong evidence of innocence received intense media attention and unprecedented support from state lawmakers, prosecutors, judges, and other officials, likely contributing to the finding that more Americans now believe the death penalty is applied unfairly than fairly.

The number of new death sentences has dropped steadily over the past two decades, DPIC reports, thanks to new laws providing life-without-parole as an alternative sentence as well as “the elimination of non-unanimous death sentences in most states, the exclusion of people with intellectual disability from death penalty eligibility, and changes in the common and scientific understanding of mental illness and trauma and their lasting effects.”

These developments, together with apparent changes in jurors’ attitudes about the effectiveness, reliability, and fairness of the death penalty, underscore DPIC’s sobering conclusion that most of the people who were executed this year would not be sentenced to death today.

To read more CLICK HERE