Sunday, February 14, 2016

The Vindicator: Landmark Miranda case celebrates its half-century anniversary

Matthew T. Mangino
The Youngstown Vindicator
February 14, 2016

Fifty years ago this month, U.S. Supreme Court Justice Potter Stewart asked Atty. John J. Flynn, representing Ernesto Miranda before the court, what rights an accused should be advised of while in custody. Flynn replied, “[H]e had a right not to incriminate himself, that he had the right not to make any statement, that he had a right to be free from further questioning ... to be represented adequately by counsel in court, that if he was too indigent and poor to employ counsel, that the state would furnish him counsel.”
So was born Miranda v. Arizona, the landmark Supreme Court decision that has become a part of American culture. Miranda’s conversion from legal holding to cultural icon is due mainly to the nation’s insatiable appetite for television crime dramas. Everyone with a TV has heard Miranda warnings.
What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested on a robbery charge. While in the midst of an interrogation by police, he confessed raping an 18-year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. Miranda appealed, and his case made its way to the U.S. Supreme Court.
The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court’s opinion finding a confession would be barred under the Fifth and Sixth Amendments unless a suspect had been made aware of his rights and the suspect had waived them. Warren made it clear, “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”
Far from pristine
As we mark the 50th anniversary of Miranda, it is important to note that the decision has remained far from pristine over the years. Nor was the ruling placed on a pedestal beyond the reach an activist courts – quite the contrary – the U.S. Supreme Court has continually tested, and at times, expanded and restricted, the decision.
For instance, in 1981 the Edwards rule was established. The court held once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.
That changed in 2010. In a case out of Maryland, the court established a bright-line rule finding if at least 14 days passed from the time the suspect invoked his rights under Miranda, the police could again initiate an interrogation of the suspect.
Although the Miranda warnings are etched in nearly everyone’s consciousness, the Supreme Court found that police do not have to use those magical words to get the point across. In a 2010 case out of Florida, the court said as long as the rights are articulated to a suspect in a reasonable manner and the rights are understood, they are sufficient.
Justice Ruth Bader Ginsburg wrote, “The four warnings Miranda requires are invariable, but this court has not dictated the words in which the essential information must be conveyed.”
Then in 2011, the Supreme Court decided a North Carolina case establishing that law enforcement must consider a suspect’s juvenile status when carrying out the requirements of Miranda. “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave ... we hold that a child’s age properly informs the Miranda custody analysis,” wrote Justice Sonia Sotomayor.
Although Miranda has been revered for half a century, its evolution may continue for years to come.

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 and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

Saturday, February 13, 2016

U.S. Supreme Court Justice Antonin Scalia dead at age 79

U.S. Supreme Court Justice Antonin Scalia, who served on the nation's highest court since 1986, died on Saturday at the age of 79.

The justice passed away due to natural causes at the Cibolo Creek Ranch, a luxury resort in West Texas, federal authorities told the San Antonio Express-News. According to the paper, Scalia attended a function on Friday and was found after failing to appear for breakfast the next morning.

GateHouse: The politics of fear doom criminal justice reform

Matthew T. Mangino
GateHouse Media
February 12, 2016
When a group of six senators led by Republican Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, announced a rare bipartisan criminal justice bill last October there was much fanfare on Capitol Hill.
The Sentencing Reform and Corrections Act of 2015 would have reduced penalties for repeat drug offenders and eliminated the “three strikes” mandatory life sentence. Grassley called it “the biggest criminal justice reform in a generation,” and both parties were on board. However, calls to crack open the champagne in celebration of bipartisan criminal justice reform was a bit premature.
When Senator Bernie Sanders (I-Vt.) won the New Hampshire primary he mentioned criminal justice reform in his victory speech. He isn’t a johnny-come-lately to the issue. On his campaign website he touts his recent introduction of the Justice is Not for Sale Act of 2015, which would ban all private prisons and bring back parole on a federal level to “reduce the proliferation of mass incarceration.” He also wants to eliminate mandatory minimum sentencing. Sanders is not out of step with the mainstream on these issues. According to the The Sentencing Project, at least 12 states authorized new sentencing laws or modified policy practices to address prison population growth. Connecticut reduced criminal penalties for certain drug offenses; and Oklahoma’s governor directed parole officials to establish a sentence reduction policy for offenders sentenced to certain mandatory penalties.
Evan the ultra-conservative Koch brothers support criminal justice reform, going so far as to collaborate with left-leaning organizations to push for change.
In President Barack Obama’s final budget to Congress, he asked for $500 million to help states make broad criminal justice reforms.
The new “21st Century Justice Initiative” was announced as part of a $29 billion budget request for the U.S. Department of Justice. According to The Crime Report, the new program has three objectives: reduce crime, reverse policies that cause “unnecessarily long sentences and unnecessary incarceration” and build community trust in the justice system.
Why is opposition to reform percolating among national, state and local candidates? Although violent crime rates are at near record lows, a Gallup poll released last fall found that nearly six in 10 Americans — 59 percent — say crime in the United States is an “extremely” or “very” serious problem.
The politics of fear is helping push reform aside. Without public support for change reform is doomed especially in the midst of an election year.
With the presidential race in full throttle, priorities, and positions, have changed. GOP Presidential Candidate Senator Ted Cruz (R-TX) has argued on the campaign trail that the bipartisan senate legislation would increase the crime rate and allow offenders out of jail who are likely to commit additional crimes.
Although Cruz supported the Smarter Sentencing Act — a prior version of the Sentencing Reform and Corrections Act — he came out against the new bill. Cruz’s GOP colleagues in the senate have not only quashed reform, some are looking to add new barriers to reform efforts already in place.
Senator Tom Cotton (R-Ark.) introduced a partisan bill this week, backed by Senator David Perdue (R-Ga.), Senator Jeff Sessions (R-Ala.) and Senator Orrin Hatch (R-Utah) that would require the administration to disclose recidivism rates for federal inmates released early because of reduced sentences.
The four senators also called the Sentencing Reform and Corrections Act “dangerous for America.”
In fact, Cotton wrote in a recent op-ed, “This in nothing short of a massive social experiment in criminal leniency. And this experiment threatens to undo the historic drops in crime we have seen over the past generation.”
And so, as Sen. John Cornyn (R-TX) made clear this week, Congress will not be passing a major criminal justice reform bill while President Obama is office.

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 and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

Friday, February 12, 2016

Conflict arises among federal circuit courts regarding remote video surveillance

A federal appeals court is upholding the firearms conviction of a Tennessee man whose brother's rural farm was monitored for 10 weeks straight by a remote-controlled camera the authorities installed on a utility pole 200 yards away—without a warrant, according to the website Ars The decision is in conflict with other Circuits.
The decision by the 6th US Circuit Court of Appeals affirms the nine-year sentence of Rocky Houston, who was caught by the camera as being a felon in possession of a gun. 
"There is no Fourth Amendment violation, because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads," Judge John Rogers wrote for the unanimous court, which ruled 3-0 to uphold Houston's 2014 conviction. 
"The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm. Additionally, the length of the surveillance did not render the use of the pole camera unconstitutional, because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations. While the ATF agents could have stationed agents round-the-clock to observe Houston’s farm in person, the fact that they instead used a camera to conduct the surveillance does not make the surveillance unconstitutional."
The Cincinnati, Ohio-based appellate court added:
"Moreover, if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely."
The decision conflicts sharply with a Washington state federal judge who in 2014 tossed an alleged drug dealer's conviction that was gained under the same circumstances, the warrantless spying of a suspect via a webcam attached to a utility pole near his property. In May, the government dropped its appeal of that decision, without providing any reason.
To read more CLICK HERE

Thursday, February 11, 2016

The Sentencing Project: The State of Sentencing 2015

The Sentencing Project has issued a new report on the state of criminal justice reform across the country.  The report, The State of Sentencing 2015, was written by Nicole D. Porter, Director of Advocacy Sentencing.  The findings include:

New Sentencing Laws: At least 12 states authorized new sentencing laws or modified policy practices to address prison population growth. Nebraska lawmakers abolished the death penalty; Connecticut reduced criminal penalties for certain drug offenses; and Oklahoma’s governor directed parole officials to establish a sentence reduction policy for persons sentenced to certain mandatory penalties.  
Mandatory sentencing reform: Maryland, Oklahoma and North Dakota authorized sentencing judges to depart from mandatory minimums in certain circumstances. These reforms generally allow a departure from statutory mandatory minimums based on the nature of the crime, mitigating circumstances, defendant’s character, and the defendant’s chances of successful rehabilitation.
Probation and parole: Lawmakers in at least six states – Arkansas, Connecticut, Georgia, Montana, Texas, and Utah – modified policies relating to community supervision. Included among the law changes is statutory guidance designed to reduce returns to prison for technical probation and parole violators.

Collateral consequences: Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction. Notably, officials in California restored voting rights to 60,000 people on probation supervision and Kentucky reinstated voting rights to an estimated 100,000 citizens. Also, Alabama lawmakers eliminated the federal lifetime ban on food and cash assistance for persons with felony drug convictions, while Texas officials modified the ban on food assistance. Other reforms included authorizing fair chance hiring policies – “Ban the Box” -- for persons with criminal records in at least five states. offenses; and Oklahoma’s governor directed parole officials to establish a sentence reduction policy for persons sentenced to certain mandatory penalties.
To read the full report CLICK HERE 

Wednesday, February 10, 2016

Trump:“Every single" drug dealer released by Obama will return to selling drugs

Donald Trump said at a New Hampshire town hall the day before the primary that “every single one” of the convicted drug dealers released under President Obama will return to selling drugs, reported TIME.
“These people are babies that think differently,” Trump said of the inmates. “And a lot of them don’t even think differently, they just don’t care. Frankly, I don’t even think they care, it’s almost likely they don’t like the country. But out of those 6,000, every single one of them will be back selling drugs. It’ll be very rare for one that doesn’t.”
Six thousand inmates were released from prison at the end of 2015 as part of the Obama Administration’s effort to downsize the federal prison system and reduce sentences for nonviolent drug offenders. The administration supported the changes, but the release was made on the recommendation of the U.S. Sentencing Commission, an independent agency in the judicial branch that was created by Congress.
The snowy Londonderry talk was Trump’s second town hall-style event of the day, marking a noticeable shift from his usual arena rallies the day before the New Hampshire primary.
To read more CLICK HERE

Arkansas Senator Tom Cotton's warning about mandatory minimum sentencing

Below is an op-ed by Senator Tom Cotton challenging the need for criminal justice reform at

In the past 25 years, the United States has enjoyed a steady and dramatic drop in crime. This broad-scale enhancement of public safety has reaped immeasurable benefits in terms of lives saved, strengthened communities, and economic revitalization. But the U.S. Congress may be on the verge of throwing all that progress away.
The Senate is considering a bill that would impose broad and deep cuts to mandatory minimum sentences. This would make thousands of drug traffickers, armed robbers, carjackers, and other violent criminals eligible for early release from prison.
This in nothing short of a massive social experiment in criminal leniency. And this experiment threatens to undo the historic drops in crime we have seen over the past generation.
Since 1991, the nationwide violent crime rate has dropped 49 percent. Murder rates have dropped 52 percent. Robbery, a 59 percent drop.
This astounding reduction in crime was not an accident. It was the result of higher mandatory minimums put in place in the 1980s coupled with vigilant policing strategies pioneered by Rudy Giuliani and other American mayors and law enforcement officials.
Like almost all conservative achievements, the drop in crime is one built on the hard lessons of experience. The combination of mandatory minimums and innovative policing was designed and perfected through tough trial-and-error performed at local, state, and eventually federal levels. It is a strategy that arose from advocacy that originated in the communities and the cities that were hardest hit by the drug scourge of the 1980s. And it is one that has a proven record of success.
We should not lightly yield the criminal justice wisdom accumulated over decades to the passing fashions of current thinking. We should not blithely move from a proven strategy of accountability and vigilance to an experimental theory of leniency and impunity. We should not trade away concrete, hard-won gains when the results may be devastating to American communities.
But that is exactly what the sentencing bill moving through the Senate proposes to do. In a nation where more than half of released felons are rearrested within a year and 77 percent are rearrested within 5 years, we will see more needless crimes committed by those who are released early from prison. That is indisputable. And those new crimes will wreak havoc on individuals, families, and communities in each of the fifty states.
At this political moment, perhaps the proven and effective anti-crime strategy of strong mandatory minimum sentences is falling victim to its own success. Perhaps some have lived so long with relatively low crime rates that they’ve come to believe they are a given condition of our times. That makes them feel free to take chances with the nation’s safety.

But enhanced public safety is like oxygen: you don’t notice its presence until it’s gone. If public safety begins to dissipate, it’s the American people who will notice it. They will be the ones who suffer the consequences of this Congress’s decision to reverse 25 years of progress.
To read more CLICK HERE