Saturday, December 3, 2016

GateHouse: Drawing the line on civil commitments

Mathew T. Mangino
GateHouse Media
December 2, 2106
A popular phrase among zealous law and order advocates is “Do the crime, do the time.” Many law abiding citizens would be surprised to know that there are thousands of people in this country who have done their time and remain behind bars indefinitely.
Civil commitment gained support in state capitols around the country a quarter century ago as cable news channels brought high profile sex offenses into living rooms nationwide. A crime across the country had the same emotional effect on viewers as a crime across the street.
Today, 20 states, along with the federal government, detain some sex offenders for treatment beyond their prison time.
Minnesota has the highest population of civilly committed offenders per capita in the nation, and the lowest rate of release. Costs have soared as well. According to the New York Times, it costs about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota.
Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are considered sexually violent predators, as determined by a civil court, and are being detained indefinitely.
Pennsylvania’s neighbor to the west, Ohio, does not have a civil commitment statute for sex offenders.
Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality and a likelihood to re-offend.
In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. The high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.
In 2006, the federal government got into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status.
To secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.
In 2010, the Supreme Court ruled that the federal government has the authority under the U.S. Constitution to require the civil commitment of individuals already in federal custody. According to the Washington Post, during the argument before the court, Justice Ruth Bader Ginsburg said, “You are talking about endangering the health and safety of people. The government has some responsibility.”
Just how far does the concept of protecting the health and safety of the public reach? The state of Virginia uses risk assessment to determine the duration of sentences. The Pennsylvania Commission on Sentencing has been charged with incorporating risk assessment into the state’s sentencing guidelines. The City of Philadelphia uses risk assessment to determine appropriate supervision of probationers. Couple a high risk for violent re-offending with a mental abnormality and could the civil commitment of extremely violent predators be far off?
Stephen McCallister, a law professor and Kansas solicitor general does not think it implausible. He told NPR in 2010, “Constitutionally, it might be possible,” to extend the rationale for civil commitment to other kinds of crimes. “I don’t have a constitutionally limiting line for what kinds of mental disorders might be permissible and what (might) not. If they lead to danger to others, potentially, they could be covered under such a law.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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Friday, December 2, 2016

PA DA's Association release guidelines for officer involved shootings

The Pennsylvania District Attorneys Association presented guidelines  to all 67 counties on how to investigate and prosecute officer-involved shootings, reported the Harrisburg Patriot.
Dauphin County District Attorney Ed Marsico said, in some ways, the added public and media interest in police-involved shootings is good for transparency. Yet, video can shape judgment before an investigation is complete.
“These investigations have changed,” Marsico said. “Ferguson, Baltimore have put a different spin on them.”
Marsico said prosecutors need to evolve on the way an investigation is handled. He was an active member of the Best Practices Committee for the PDAA. Over the past several months, the committee comprised 16 guidelines to best handle an officer-involved shooting.
“There are things that have been tested and are working for prosecutors for these really important investigations,” he said. “(PDAA) wanted to give guidance to prosecutors ... it’s really important that we have an independent investigation.”
Hiring an independent agency or investigator is the main recommendation for all counties to follow. Most counties, including Dauphin County, already do this as standard procedure. However, there were never any concrete policies in place.
Prosecutors are also encouraged to communicate with the public more often, explain the process, and release preliminary findings to help ensure transparency. Marsico said this was key during the Earl 
Another lesson learned was the challenge of releasing video to the public in a timely manner while holding the integrity of the investigation. 

Thursday, December 1, 2016

Parole boards ignore U.S. Supreme Court on JLWOP

Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home, said the U.S. Supreme Court. The high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change, reported The Marshall Project. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.
But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.
Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.
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Wednesday, November 30, 2016

SCOTUS decides double jeopardy case

The U.S. Supreme Court ruled that double jeopardy doesn’t bar the partial retrial of a corporate president and a Puerto Rican senator when a jury delivered inconsistent verdicts, but the counts on which they were convicted were vacated because of incorrect jury instructions, reported the ABA Journal.
The unanimous decision (PDF) by Justice Ruth Bader Ginsburg in Bravo-Fernandez v. United States allows retrial on the federal-program bribery count for which the two defendants were originally convicted.
The corporate president, Juan Bravo-Fernandez, had been accused of financing a Las Vegas trip for then Puerto Rican senator Hector Martinez-Maldonado. Though jurors convicted the men on the bribery count, they acquitted them on counts of conspiring and traveling to commit the bribery.
Defense lawyers had argued retrial on the overturned bribery count was barred because the jury necessarily found that the defendants didn’t violate the bribery statute when it acquitted them on the related charges of traveling and conspiring to commit the bribery.
But the Supreme Court said retrial was allowed because the bribery conviction was vacated for a reason unrelated to the inconsistent verdicts. The general rule of allowing a new trial to rectify trial error applies, Ginsburg wrote.
“Because we do not know what the jury would have concluded had there been no instructional error,” Ginsburg wrote, “new trial on the counts of conviction is in order.”
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Tuesday, November 29, 2016

Group studies traumatic brain injuries among Pennsylvania prisoners

No one has a good estimate of the number of US prison inmates who have suffered traumatic brain injuries, reported Vice. The Centers for Disease Control estimates the portion of the male incarcerated population with these kinds of problems somewhere in their past at a frustrating 25 to 87 percent. It is clear that the percentage is far higher than the roughly 8.5 percent of the general population that reports traumatic brain injury.
The proliferation of head trauma adds another mental health challenge to America's mess of a prison system. Depression and anxiety, substance abuse, violence and suicidal thoughts are all associated with head injuries. Cognitive impairment can also make prison life—rife with rules, jobs and social norms—more difficult, and the culture shock and byzantine prohibitions imposed by parole practically unbearable.
For these reasons, the Pennsylvania Commission on Crime and Delinquency awarded the Brain Injury Association of Pennsylvania a $250,000 grant to screen for head trauma among men on track to be paroled from SCI Graterford, the idea being to smooth their transition back into the outside world. The prison, with more than 3,000 inmates, is about 35 miles from Philadelphia and releases men into the five counties around the city. The program is one of a few around the country aimed at tailoring reentry to the unique needs of a traditionally brain injury-prone population as some states and localities (and for now, at least) the federal government scale back incarceration.
What is known that head injuries often lead to more head injuries. After an initial one, a person is three times more likely to experience a second. After a second, he or she is eight times more likely to suffer a third.
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Monday, November 28, 2016

Conservatives call on Trump and Sessions to pursue criminal justice reform

On the campaign trail, President-elect Donald Trump called himself "the law and order candidate,' pledging to crack down on crime from the Oval Office.
But now, a coalition of conservative heavyweights are urging him – and Sen. Jeff Sessions, his nominee for attorney general – to make criminal justice reform "a top priority for your first 100 days in office," reported US News.
"We share your goal of enhancing public safety and encourage you to consider that, just as with energy policy, it requires an all-of-the-above strategy," a letter addressed to Trump from conservative members of the U.S. Justice Action Network states. Just as dangerous criminals must be incarcerated, for "addicts and those with mental illness," society's interests "can best be advanced through treatment-based approaches."
"With your administration comes momentum and a clean slate for change," the letter says.
Timothy Head, executive director of the Faith and Freedom Coalition and a signatory to the letter, says his organization senses an opportunity to advance criminal justice reform with the incoming administration – particularly if Sessions, a conservative senator, is confirmed to lead Trump's Justice Department.
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Sunday, November 27, 2016

Steinbeck's 'Of Mice and Men' and capital punishment

In 2002, the Supreme Court ruled that executing someone with an intellectual disability is a “cruel and unusual punishment,” prohibited by the Eighth Amendment.
Psychologists typically diagnose intellectual disability with tests of a person’s IQ and “adaptive behavior,” meaning the interpersonal and practical skills needed for everyday life. The tests examine a broad range of abilities, including whether the person can clothe and feed themselves, handle money, read and write, and whether they are gullible and easily led. But in Moore’s case, the state of Texas instead relied in part on a stereotype based — literally — on a tragic character from John Steinbeck’s Of Mice and Men, wrote Peter Aldhous at
In 2004, when ruling on the case of José García Briseño, convicted of murdering a sheriff, the Texas Court of Criminal Appeals took inspiration from a character in Of Mice and Men: Lennie Small, a lumbering migrant worker who understands neither the world around him nor his own strength, and ends up killing a woman who flirts with him.
“Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt,” Judge Cathy Cochran wrote in her opinion. But she questioned whether the scientific definitions of “mental retardation” should apply to the death penalty.
Calling the measurement of adaptive behavior “exceedingly subjective,” Cochran proposed seven questions, now called the “Briseño factors,” to help judge whether a convicted killer has the intellectual capacity to justify facing the death penalty. She did not specify exactly how they should be used.
In 2014, in an opinion written by Justice Anthony Kennedy, the court ruled that Florida was wrong to use a rigid cutoff of 70 IQ points or less. Today’s IQ tests, which are set so that 100 points is the average score, have a measurement error of three points or more. This means that any score should be considered as a range, not an absolute value. After that court decision, Florida reduced the sentence of convicted killer Freddie Lee Hall, who had scored 71 on one IQ test, from death to life in prison.
Now, the U.S. Supreme Court will hear the case of Booby James Moore, asking the justices to consider once again how to define intellectual disability.
In April 1980, 20-year-old Moore and two other men attempted to rob the Birdsall Super Market in Houston. Moore carried a shotgun, and one of his accomplices had a pistol. As an accomplice opened a bag to fill with money, Moore, wearing a wig and sunglasses, pointed his gun at two store clerks. When one of the clerks shouted, Moore shot the other in the head, killing him instantly.
Moore has been on death row for 36 years. His guilt is not in question, but his lawyers say he does not have the mental capacity to justify executing him for his crime.
To read more CLICK HERE