Re-thinking sentencing in the age of criminal justice reform

The nation needs to fundamentally rethink who is brought into the criminal justice system and how they are sentenced, a summit hosted by the Aleph Institute was told Monday, according to The Crime Report.

“The paradigm shift should focus not on crime-fighting but [on] community protection,” said John Gleeson, a former U.S. District Judge for New York and one of the speakers at Rewriting the Sentence, the summit held at the Columbia University Law School.

Alternatives to incarceration such as rehabilitation programs, restorative justice practices, and community service-based solutions are positive steps that have shown to increase public safety, panelists said.

Criminal justice reform requires programs to support and reinvest in the potential of those convicted of crimes, and prioritize their mental health, said Esther Salas, a U.S. District Judge from New Jersey.

“People need to be seen and encouraged,” Salas said. “Many of these people have been told their whole lives that they are worthless.”

Matthew Alsdorf, the founder and president of Pretrial Advisors, recommended that the system of money bail be eliminated, because it jails low-risk individuals who cannot pay while allowing high-risk individuals who can to go free.

“We are asking the wrong question when it comes to pretrial detention,” he said. “The right question is: should this defendant be detained?”

Alsdorf continued, “The question that judges answer is: How much money should this defendant pay to get out of jail?”

Joanna Weiss, the co-founder and co-director of the Fines and Fees Justice Center argued the U.S. should work toward the elimination of criminal fees and fines, which have the effect of  criminalizing poverty.

“This really creates two tiers of justice,” Weiss explained. “All those who can pay and leave the system and walk away have one form of punishment. For the people who can’t afford to pay, they end up getting further and further entrenched in the system, until they enter an endless cycle of punishment and also an entrenchment of poverty.”

Weiss pointed to a prominent example of this phenomenon in which individuals who cannot pay their fees have their driver’s license suspended. Because most people need to drive to carry out their basic functions, such as going to their job, these people drive anyway and face criminal charges when they do so.

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SCOTUS remands case for application of Fist Step Act

In the case of Frank Richardson v. United States, SCOTUS remanded the case back to the Sixth Circuit declining the case but directing the circuit court to apply the new First Step Act, reported Jurist. Richardson is currently attempting to appeal his conviction for “aiding and abetting” under the Hobbs Act. Richardson argues that as his appeal is still pending, he may be entitled to resentencing under the First Step Act which was passed earlier this year to lighten harsh federal criminal sentences. The Court agreed with Richardson, but declined to take his case up themselves instead remanding back to the Sixth Circuit to consider the First Step Act.  in the case of Frank Richardson v. United States. Richardson is currently attempting to appeal his conviction for “aiding and abetting” under the Hobbs Act. Richardson argues that as his appeal is still pending, he may be entitled to resentencing under the First Step Act which was passed earlier this year to lighten harsh federal criminal sentences. The Court agreed with Richardson, but declined to take his case up themselves instead remanding back to the Sixth Circuit to consider the First Step Act.

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Alabama will chemically castrate some sex offenders

Alabama enacted a law that will require, as a condition of parole, that some convicted child sex offenders undergo “chemical castration,” reported The Atlantic.

The new law will mean that those who abused children under the age of 13 will be injected with hormone-blocking drugs before leaving prison. The medication will have to be administered until a judge, not a doctor, deemed it no longer necessary.

A similar bill was proposed last year in Oklahoma but met strong opposition. The former Soviet republic of Moldova also passed a law mandating chemical castration for child sex offenders, in 2012. It was repealed the following year on grounds that it was a “violation of fundamental human rights.”

Unlike castrating a bull, chemical castration does not involve removing a person’s testicles—though the Alabama bill’s sponsor, Representative Steve Hurst, initially advocated the surgical approach. Instead, the procedure uses various drugs to render the testicles irrelevant. In most cases, medication triggers the pituitary gland to reduce testosterone to prepubescent levels. During debate of the bill, Hurst said that if chemical castration, which has a stated goal of decreasing libido to prevent future crimes, “will help one or two children, and decrease that urge to the point that person does not harm that child, it’s worth it.”

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GateHouse: When plea bargaining is the only avenue to freedom

Matthew T. Mangino

GateHouse Media

June 14, 2019

In the classic movie adaptation of Mario Puzo's novel "The Godfather," Vito Corleone, played by Marlon Brando, tells his godson Johnny Fontane, played by Al Martino, that he was going to make a move producer "(A)n offer he can't refuse."

Ironically, every day in jails across the country impoverished inmates are made offers they can't refuse. The reason they can't refuse is because their liberty is at stake.

On a daily basis in this county, about a half-million people sit in county jails awaiting trial, most because they are unable to afford bail. According to The Appeal, a 2018 study of defendants in Philadelphia and Miami-Dade counties - by researchers at Princeton, Stanford, and Harvard - reports that people being held for an inability to pay bail earned on average roughly $4,500 a year.

A recent analysis of the Franklin County Jail in south central Pennsylvania found that poor inmates - those who could not afford bail - served their jail time before their sentence. How can an inmate serve his sentence before he or she is determined to be guilty?

In 2016, according to The Appeal, more than 100 people held in Franklin County were found not guilty, had their cases dismissed, or entered a guilty plea and got released on a non-incarceration sentence.

According to The Appeal, in more than 75 percent of the cases, the person charged faced no more than a misdemeanor as the lead charge. The average case lasted 30 days before the defendant was released.

That is how we get to the "unrefusable" offer in the criminal justice system. An accused is arrested on a felony. The defendant does not have the wherewithal to make bond. She sits in jail. The state realizes their case isn't great - witnesses disappear, evidence is weaker than first thought, the defendant has an alibi - the prosecutor offers a plea to a lesser charge and time already served in jail.

The plea is the defendant's ticket out of jail. Now, the defendant could refuse to plead guilty and go to trial. That might mean sitting in jail for months while the case is prepared and scheduled for trial.

Do you see "the offer the defendant can't refuse?" Liberty right now or further incarceration and the risk of conviction at trial and a harsh sentence.

Although there seems to be something inherently wrong with locking up poor people who can't afford bond and then offering the time they already served as the penalty - it is not just the poor who get through the system by negotiation.

Most defendants who pass through the criminal justice system waive the right to a trial, and all the constitutional protections that come with being charged, in exchange for a plea bargain. Emily Yoffe wrote in The Atlantic that the vast majority of felony convictions are now the result of plea bargains - about 94 percent at the state level, and 97 percent at the federal level. Estimates for misdemeanor convictions run even higher.

Although, the American criminal justice system prides itself on the heavy burden placed on the state to prove those accused of a crime guilty beyond a reasonable doubt - very few are actually subject to that burden.

Supreme Court Justice Anthony Kennedy acknowledged as much in 2012, when writing an opinion in a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Kennedy wrote plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."

For those without the ability to post bail, plea bargaining is often the only avenue to freedom.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Maine legalizes medically assisted suicide

Maine legalized medically assisted suicide, becoming the eighth state to allow terminally ill people to end their lives with prescribed medication, reported The Associated Press.

Democratic Gov. Janet Mills, who had previously said she was unsure about the bill, signed it in her office.

“It is my hope that this law, while respecting the right to personal liberty, will be used sparingly,” said Mills.

Oregon was the first state to legalize such assistance, in 1997, and it took over a decade for the next state, Washington, to follow suit. While still controversial, assisted suicide legislation is winning increasing acceptance in the United States, and this year at least 18 states considered such measures.

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Catholic Church leaders face possible racketeering charges over sex abuse scandals

State Attorneys General are looking to just prosecute Catholic priests, some are considering using state racketeering laws usually reserved for organized crime to prosecute higher-ups in the church, reported the Associated Press.

For decades, leaders of the Roman Catholic Church were largely left to police their own. But now, as American bishops gather for a conference to confront the reignited sex-abuse crisis this week, they’re facing the most scrutiny ever from secular law enforcement.

A nationwide Associated Press query of more than 20 state and federal prosecutors last week found they are looking for legal means to hold higher ups in the church accountable for sex abuse. They have raided diocesan offices, subpoenaed files, set up victim tip lines and launched sweeping investigations into decades-old allegations. Thousands of people have called hotlines nationwide, and five priests have recently been arrested.

“Some of the things I’ve seen in the files makes your blood boil, to be honest with you,” Nessel said. “When you’re investigating gangs or the Mafia, we would call some of this conduct a criminal enterprise.”

If a prosecutor applies racketeering laws, also known as RICO, against church leaders, bishops and other church officials could face criminal consequences for enabling predator priests, experts say. Such a move by Michigan or one of the other law enforcement agencies would mark the first known time that actions by a diocese or church leader were branded a criminal enterprise akin to organized crime.

“That would be an important step because it would set the standard for pursuing justice in these cases,” said Marci Hamilton, a professor at the University of Pennsylvania and CEO of CHILD USA, a Philadelphia-based think tank that tracks statute of limitations reforms.

Monsignor G. Michael Bugarin, who handles sex abuse accusations for the Detroit Archdiocese, said they too are committed to ending abuse and cover-ups. Bugarin said they cooperate with law enforcement, and that won’t change if the attorney general is considering organized crime charges.

“The law is the law, so I think we just have to respect what the current law is,” he said.

Some defenders of the church bristle at the notion of increased legal action, saying the Catholic institution is being singled out by overzealous prosecutors. A spokesperson for the United States Conference of Catholic Bishops refused to comment on law enforcement investigations into specific dioceses across the country, instead referring all such inquiries to the dioceses themselves.

Seventeen years after U.S. bishops passed a “zero tolerance” policy against sexually abusive priests, they too are considering new measures for accountability over abuse. And last month Pope Francis issued a global order requiring all Catholic priests and nuns to report clergy sexual abuse and cover-ups to church authorities.

At the conference on Tuesday, Archbishop of Miami Thomas Wenski asked if a greater emphasis should be placed on swiftly reporting allegations to civil authorities.

“If this is something that’s criminal, isn’t the first response to the alleged victim to tell them, ‘this is a crime, call the authorities’?” Wenski asked. “Where we got into trouble before was, before reporting crimes we wanted to take it upon ourselves to determine whether there was a crime to report, and that’s not what we should be doing.”

In response, Cardinal Joseph W. Tobin, chair of the Clergy, Consecrated Life and Vocations Committee, said all bishops should follow the law in reporting crimes to authorities.

The meeting follows a grand jury report that documented decades of clergy abuse and cover-ups in Pennsylvania, which thrust the Catholic Church’s sex assault scandal back into the mainstream last fall and spurred prosecutors across the U.S. to launch investigations of their hometown dioceses.

Since then, many states have launched telephone hotlines or online questionnaires for confidential complaints including Virginia, Nebraska and California.

Pennsylvania has been flooded with calls, some 1,800 from victims and families over the last three years. In Iowa, 11 people who identified themselves as victims and their relatives came forward in the hotline and questionnaire’s first three days. New Jersey and Michigan’s tip lines have received about 500 calls each, while Illinois has received nearly 400 calls and emails, including 160 from survivors.

In contrast, Delaware’s attorney general tip line has had four calls since November, 2018, a spokesperson said. Officials in Vermont say they cannot comment because the investigation is ongoing, but that they are aware of dozens of victims of alleged criminal misconduct.

While priests have been prosecuted in the past, top law enforcement scrutiny of church authorities has been relatively rare. In 2012, Bishop Robert Finn of the Kansas City-St. Joseph diocese in Missouri was the first and only American prelate convicted for his role in aiding a priest, when he was found guilty of failing to report child pornography on a cleric’s laptop to authorities.

AP reached out to attorneys general in 18 states, federal prosecutors in three jurisdictions and the U.S. Justice Department to learn more about the new round of investigations. Some of the accused priests in Pennsylvania had ties to other states, prompting those attorneys general, such as New Mexico, for example, to take a fresh look.

Before Pennsylvania’s attorney general got involved, cases against predator priests were largely the purview of local police and prosecutors, or private attorneys bringing lawsuits and civil claims. Although Pennsylvania’s attorney general office says prosecutors have spoken with their counterparts from almost every state, most attorneys general in the U.S. have not taken public action.

In Kentucky, Attorney General Andy Beshear wanted to investigate but lacked jurisdiction. He worked to change state law, but the bill failed to make it through the legislature.

Attorneys general who are investigating are using a range of tools. Michigan executed search warrants, which means police show up and raid the offices. Delaware, West Virginia and Nebraska have issued subpoenas, which is a less assertive approach, making a legal request for the records. New Jersey officials have started to make arrests, while Washington D.C.’s attorney general is weighing civil charges.

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The Appeal: Pleading guilty to get out of jail in Franklin County, Pennsylvania

In 2016, more than 100 people held in Franklin County Jail who were found not guilty, had their cases dismissed, or entered a guilty plea and got released on a non-incarceration sentence, reported The Appeal. The Appeal collected and reviewed more than 2,200 criminal dockets filed in the county by scraping dockets filed in the Unified Judicial System of Pennsylvania. The review includes all of the criminal cases filed in the county that were not expunged before the review.

In more than 75 percent of the cases, the person charged faced no more than a misdemeanor as the lead charge. The average case lasted 30 days before the defendant was released. What’s more, those cases in which the individual did not pay bail have cost the county the equivalent of more than 8,000 bed days at the jail, or an average of roughly $71 per person, per day.

“We’ve created a machinery that churns out low-level convictions based not on individual guilt or culpability, but on an individual’s ability to pay,” Alexandra Natapoff, professor of law at the University of California, Irvine and author of “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” told The Appeal.

Natapoff described the combination of prosecution of misdemeanor level offenses and unreasonably high bail amounts as the “criminalization of poverty,” lamenting “a now-infamous phenomenon of people pleading guilty merely to get out of jail.”

On any given day, approximately 500,000 people sit in county jails pretrial across the United States, most because they are unable to pay bail. A 2018 study of defendants in Philadelphia and Miami-Dade counties by researchers at Princeton, Stanford, and Harvard universities reports that people being held for an inability to pay bail earned roughly $4,500 a year on average.

The researchers found that less than half of the people who were required to pay bail were able to do so within three days—yielding negative impacts on their cases, such as a higher likelihood of guilty pleas, and on their post-release lives, such as a loss of employment and a greater likelihood of committing a new crime. The authors also found that, compared to defendants who were held for three days or more pretrial, people who were able to post bail within three days were nearly 25 percent less likely to be found guilty or plead guilty. People who were able to post bail were also nearly 25 percent more likely to find gainful employment afterward.In Franklin County, the criminalization of poor people also costs taxpayers. Between 2009 and 2019, the county jail’s operations budget increased more than 40 percent to nearly $13 million per year, which is paid almost exclusively through tax revenue. In that time, the jail’s population has also swelled. In 2009, an average of 297 people per day were held there, according to data compiled by the Vera Institute. About 94 of those people were being held pretrial. By 2015, those numbers rose to 394 and 175. In April, roughly 500 people were being held, and 200 of those were awaiting a trial or sentencing each day.

And yet, the number of reported crimes, criminal case filings, and people receiving a jail sentence—all of which are factors that could cause a rise in incarceration—have remained largely flat. The jail incarceration rate in Franklin County is now more than double that of neighboring Cumberland County and higher than the state average.

Franklin is a rural county in south-central Pennsylvania, on the border with Maryland, that has about 150,000 residents with a median household income of roughly $58,000. More than a quarter of all households earn less than $35,000 and a little more than 10 percent of the population lives at or below the federal poverty line.

The county jail has a rated capacity of a little more than 300 people, which this year forced officials to send an average of 24 people each month to other jails to reduce overcrowding. As a result, the county must pay a daily rate of $55 to $65 per person to use other county jails, costing more than $170,000 through the first four months of this year alone.

Dave Keller, chairperson of the County Commissioners, acknowledges that bail amounts are higher than other counties, but he said he did not believe bail was the driving factor in the increase in the jail population. Keller said the average length of a jail stay has risen substantially while the use of a day reporting center, which allows people to be released before completing their minimum sentence, has decreased.

However, those factors are most likely to affect people who are sentenced to jail and would not account for the more than doubling of the number of people in jail awaiting trial or sentencing.

Keller said the county is in the process of implementing new software that will help better evaluate the role of bail and pretrial incarceration on the jail population.

“The heart of the reform, the heart of the change, would require the misdemeanor system to stop criminalizing poverty,” Natapoff said. “To stop conditioning incarceration and punishment on an individual’s ability to pay.”

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