Friday, July 19, 2019

Time to stand up to the U.S. internment of human beings

Manisha Sinha writes in the New York Review of Books: Some historical analogies can mislead, granted, but we should be mindful of the lessons from history that can shine light on our current humanitarian crisis. The first is that evils we had thought long banished from civilized societies can reappear, and with alarming speed. From concentration camps for Uighurs in China, the largest mass-detention since the Holocaust, to migrant detention centers in America, we’re seeing an increase in the systemic internment of human beings worldwide. In the US, perhaps the most fraught example is Fort Sill, Oklahoma, an Army post proposed as a migrant detention center. Fort Sill symbolizes a bloodline of state-sponsored cruelty throughout American history, first as a reservation for dispossessed Native Americans, then as an internment camp for Japanese-American citizens during World War II, and now in its present planned use by ICE as a holding pen for migrants.
The second lesson from history is how quickly such measures can be accepted as necessary, even “natural.” That ordinary people of any ethnicity or nationality can partake in and support evil actions at any time is not news to historians. The blithe assurance of top advisers like Stephen Miller and senior bureaucrats like Kirstjen Nielsen who devise cruel policies to suit the needs of the system they’re working within, and implement them seemingly without thought, recalls Hannah Arendt’s “banality of evil.” More shocking is that many border patrol agents appear not only to be following orders but, according to a recent ProPublica report, have paraded their own racist, misogynistic, and sadistic tendencies in Facebook posts. That the Trump administration has announced new nationwide raids by ICE agents recalls the kidnappings and roundups by nineteenth-century slave-catchers and federal marshals.
The out-group mentality is always a danger, but there are still individuals who, regardless of race and ethnicity, do not accept or support their government’s unjust and inhumane policies. If the history of slavery and the fight against it has taught us something, it is that racial proscriptions and divisions suit those who seek to dehumanize and exploit people they construe as the other. For this reason, the interracial nineteenth-century abolition movement can provide valuable inspiration to those involved in today’s efforts to provide humanitarian aid to migrants and refugees and to resist the threatened descent into authoritarianism, mass atrocity, and inhumanity.
The 1793 federal Fugitive Slave Act required Northern free states to return runaway slaves to Southern slaveholders, enforcing the fugitive slave clause of the US Constitution. By the turn of the nineteenth century, free blacks and mostly Quaker abolitionists resisted the implementation of the fugitive slave law by forming humane societies to prevent the kidnapping of free blacks, as well as fugitive slave rendition. Northern states such as Pennsylvania, Massachusetts, and New York passed personal liberty laws guaranteeing the due process of law and trial by jury for suspected fugitives.
The plight of today’s “Dreamers” and citizens and legal immigrants married to undocumented immigrants is comparable to the status of runaway slaves who married free blacks and raised children in free states. 
The prosecutions of those rendering aid to migrants and refugees across Europe and America demand that we extend anew our moral imaginations and recommit ourselves to universal human rights and democracy. The abolitionists’ protests against the fugitive slave laws, which deprived large groups of people of their liberty and criminalized those who offered assistance to them, should be an inspiration in our dismal times.
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Thursday, July 18, 2019

Philly DA supports inmates' request to abolish death penalty

A petition before the Pennsylvania Supreme Court by two death row inmates could upend Pennsylvania's dysfunctional death penalty, and it has one extremely unusual supporter: the Philadelphia District Attorney's Office, reported Reason.
In a legal brief filed Monday night in support of the petition, Philadelphia D.A. Larry Krasner, who ran for office promising to never pursue a death sentence, argues Pennsylvania's death penalty is applied unreliably and arbitrarily, violating the state constitution's ban on cruel punishment.
To reach its conclusions, the Philadelphia District Attorney's Office reviewed every case where a Philadelphia defendant received a death sentence between 1978 and 2017. The study found that 72 percent of those 155 sentences were ultimately overturned—more than half of them for ineffective legal assistance.
"Where nearly three out of every four death sentences have been overturned—after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires," the office wrote in its brief. "Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the 'worst of the worst.'"
The brief was filed in the case of Jermont Cox and Kevin Marinelli, who were sentenced to death for three drug-related murders in 1992 and a fatal 1994 shooting, respectively. Their petition argues that the Pennsylvania Supreme Court should strike down the state's capital punishment system because of its "pervasive unreliability" and "systemic dysfunction," citing the scores of reversed death penalty sentences, as well as six death row exonerations.
Cox and Marinelli's petition has attracted amici briefs from groups like the Pennsylvania chapter of the American Civil Liberties Union (ACLU) and the NAACP Legal Defense Fund.
Meanwhile, the Pennsylvania attorney general, the Philadelphia chapter of the Fraternal Order of Police, and several groups of Republican state lawmakers filed briefs opposing the petition. But it appears to be the first time, at least as far as several criminal justice experts can tell, that a district attorney has argued broadly in court against a state death penalty. 
"There have been individual cases where a particular defendant challenges the death penalty and a prosecutor who reviews the case on appeal decides, you know, we can't defend what happened here," says David Rudovsky, a professor at the University of Pennsylvania Law School. "I don't know of any case of a broad-scale attack like this on the whole system, where a prosecutor agreed that the death penalty, at least in application here in Pennsylvania, is unconstitutional."
Last year, the prosecuting attorney for King County, Washington, wrote an op-ed calling on the state to end the death penalty.
Krasner, a former civil rights attorney, was elected in 2017 and is one of the most high-profile members of a wave of progressive candidates who have run for prosecutor offices in major cities in recent years, promising to roll back policies they say contribute to mass incarceration.
Krasner pledged during his campaign to never seek the death penalty. That decision, along with others, has led to intense opposition from police unions and critical local news coverage.
Although Pennsylvania is one of 30 states where the death penalty is still on the books, there have only been three executions in the state since 1978. The last took place in 1999. Four years ago, Pennsylvania Democratic Gov. Tom Wolf announced a moratorium on the death penalty that still remains in place.
Nationwide, the use of capital punishment has steadily declined and become more geographically isolated over the past few decades. Only a handful of counties in the U.S. are responsible for the majority of new death penalty sentences. Last year, the Washington Supreme Court struck down the state's death penalty "because it is imposed in an arbitrary and racially biased manner"—much the same argument that Cox and Marinelli, as well as Krasner, make.
However, the extraordinary cost of death penalty trials and near non-existence of executions have not stopped Pennsylvania prosecutors from pursuing capital punishment. A 2016 analysis by the Reading Eagle found that the state had spent $816 million on the death penalty since 1978.
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Wednesday, July 17, 2019

PA Supreme Court case that could end death penalty

A little-known case before Pennsylvania’s highest court could strike down the death penalty and block the executions of scores of people on death row, reported the Philadelphia Inquirer.
At the heart of the case before the state Supreme Court, Commonwealth v. Cox,  is whether Pennsylvania’s death-penalty system is so flawed that it violates the state constitution’s prohibition on cruel punishment. The justices’ decision could affect not just future cases, but also the 142 inmates awaiting execution, potentially forcing the courts to resentence them. 
 “If the death penalty is abolished, that would have a very real effect on a limited number of cases — which happen to be the most heinous cases,” said Greg Rowe, legislation and policy director for the Pennsylvania District Attorneys Association.
It could also set the stage for another showdown with the Republican-controlled legislature, which just last year accused the Democratic-majority court of trying to set public policy from the bench.

Tuesday, July 16, 2019

Monday, July 15, 2019

PA legislature gives AG role in Philadelphia gun case

Philadelphia District Attorney Larry Krasner and state Attorney General Josh Shapiro wound up on opposing sides of a bill designed to give the AG’s office new powers to prosecute gun crimes in Pennsylvania’s largest city, reported WHYY-FM.
Proponents of the new legislation, which quietly passed last week, say expanding Shapiro’s role will help stem the tide of shootings in the city. But critics say establishing so-called “concurrent jurisdiction” between the city’s DA and the state AG weakens Philadelphia’s home-rule powers, and Krasner’s supporters say it’s designed to undermine the progressive district attorney’s efforts to choose which cases do — and don’t — go to trial.
But on Tuesday, Shapiro was quick to distance himself from the legislation and pledged to continue collaborating with his Philadelphia counterpart.
“I’m going to continue to work in partnership with the District Attorney’s Office,” he said. “I didn’t seek this law and I didn’t advocate for it … And it doesn’t change anything.”
Krasner, who has sought to cut the city’s jail population and reduce criminal sentencing, has already seen federal U.S. Attorney William McSwain file tougher federal charges in a case in which Krasner’s office accepted a plea deal, and Police Commissioner Richard Ross has implied that too many gun charges were being sent to diversionary programs. And Shapiro’s office has notably hired some of the prosecutors dismissed by Krasner during his first week in office.
However, Shapiro’s comments were also a surprise to some of the state lawmakers who said they were confused about the language in the bill and stunned by its swift and near-unanimous passage during the hectic climax of Harrisburg’s budget season.
State Rep. Chris Rabb, who sits on the House Judiciary Committee and was one of the few Democrats who voted against the final version of the bill, was succinct when asked who was lobbying for the concurrent-jurisdiction legislation.
“The attorney general,” he said.
Rabb allowed that Republican State Rep. Martina White, who cosponsored the legislation, and Philadelphia’s Fraternal Order of Police were active in promoting the bill as well. But State Rep. Mary Jo Daley also told the online news outlet The Intercept –– which first broke news of the legislation –– that Shapiro’s office had sought to quickly pass concurrent-jurisdiction language.
Rabb called it “a pretty bad bill,” and echoed other critics’ observations that the language was pared down to only extend Shapiro’s powers in Philadelphia and only for the duration of Krasner’s first term in office.
“It was amended to punish Philadelphia. That’s ultimately what Martina White’s bill did,” he said.
Gov. Tom Wolf similarly criticized the final amendment for failing to create a statewide concurrent-jurisdiction system. Advocates of this language counter that Philadelphia drives much of the state’s gun crime.
“District Attorney Krasner deserves a direct explanation from Attorney General Shapiro of how this targeted attack on his local authority came to be authored, passed without the apparent knowledge of most lawmakers, and signed into law by a Democratic governor who otherwise is supportive of efforts to dramatically reform our system of criminal justice,” Krasner’s office said in a statement.
In an earlier comment to The Intercept, Roh said she had “serious concerns” with the bill “and what it signifies for the justice movement at large.”
Shapiro still struck a positive tone Tuesday. He pointed to a collaborative relationship between his and Krasner’s offices through the state-funded Gun Violence Task Force, which focuses on clearing illegal guns off city streets.
“[Concurrent jurisdiction] doesn’t change the great, collaborative work that’s being done literally right now by the task force,” Shapiro said. “People are dying every single day in the city of Philadelphia because of everyday gun violence. And it’s critically important that no one, my office or anyone else, acts territorial.”
The AG made these remarks while flanked by numerous local law enforcement officials, during a press conference to announce a joint drug raid that had broken up a fentanyl ring in Philadelphia’s Kensington neighborhood. Among them was Police Commissioner Ross and Executive Deputy AG Jen Selber, who left the city’s District Attorney’s Office for Shapiro’s about one year before Krasner’s inauguration.
Krasner, meanwhile, was not in attendance. A staffer from his office observed the proceedings along with reporters and other onlookers.
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Sunday, July 14, 2019

GateHouse: Pre-trial electronic monitoring as onerous as cash bail

Matthew T. Mangino
GateHouse Media
July 13, 2019This week the Pennsylvania Supreme Court decided to weigh in on the use of cash bail in the city of Philadelphia. In March, attorneys from the American Civil Liberties Union filed a lawsuit on behalf of 10 inmates, arguing that “bail magistrates in Philadelphia’s First Judicial District have failed to consider alternatives to cash bail and have assigned cash bail to people who are too poor to afford it.”
According to the Pennsylvania Capital-Star, ACLU Executive Director Reggie Shuford said, “People who have not been convicted of a crime are sitting in Philadelphia jails only because they are too poor to pay the bail they’ve been assigned. The Philadelphia courts have effectively criminalized poverty.”
As advocates scramble to find alternatives to pretrial detention, one option may be as detrimental to the accused as incarceration.
The movement to overhaul cash bail by challenging the constitutionality of jailing defendants pretrial, has pushed judges, prosecutors and law enforcement to turn to electric monitoring as a “humane” and cost effective substitute.
Electronic monitoring is a method of supervising an accused pre-trial without housing the individual in a costly jail or prison.  The defendant wears an electronic GPS monitor, housed in an ankle bracelet, permitting court or law enforcement personnel to can keep track of their movements. The monitor provides a layer of public safety that doesn’t exist when a defendant is simply walking free pending trial.
States and cities incur the brunt of the costs for jails and prison.  In an effort to cut down on government expenses, more and more local policymakers are passing the financial burden of the monitoring devices onto those who wear them.
A recent investigation by ProPublica and the New York Times cited a 2014 study by NPR and the Brennan Center that found, with the exception of Hawaii, every state required defendants to pay at least part of the costs associated with electronic monitoring.
As the cost of incarceration has soared, and state and local budgets have shrunk, electronic monitoring—paid for by the accused—must have seemed like a life preserver floating in a sea of government debt.
Yet as ProPublica and the New York Times suggested, “like the system of wealth-based detention they are meant to help reform, ankle monitors often place poor people in special jeopardy.”
Many local government agencies engage private entities to operate and manage pre-trial monitoring programs. These for-profit entities often charge defendants more over time than the cost of cash bail at the outset. Private companies set their own rates and charge interest when defendants fall behind in payments. Defendants can pay with a credit card or utilize financing set up through the company and often rack up debt they can never repay. 
In some jurisdictions the expanding use of electronic monitoring has outpaced court rules. Some judges do not, nor are they required to, conduct hearings on a defendant’s ability to pay for private supervision before assigning them to wear a bracelet rather than sit in jail.
It’s not only debt that can send defendants back to jail. Individuals being monitored can be punished for breaking the rules that come with the devices—things like curfew, use of alcohol or maintaining a job.
In 2011, then U.S. Attorney General Eric Holder stated that keeping people awaiting court dates in county jails costs around $9 billion a year. The urgency to address those costs and the concern that cash bail disproportionally affects the poor has created a form of “debtor’s supervision.”
Today, eight years after Holder’s admonition, policymakers risk further exacerbating the plight of the poor by forcing those merely accused of a crime to choose between financial stability and 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 and follow him on Twitter @MatthewTMangino)
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Saturday, July 13, 2019

Pa. Supreme Court: Possession of Gun Alone Not Indicia of Dangerousness

Matthew T. Mangino
The Legal Intelligencer
July 11, 2019
Michael Hicks walked into an Allentown convenience store at 3 a.m. on a summer morning in 2014. He had a handgun in his waistband and a license to carry a concealed weapon. That didn’t prevent the police from stopping Hicks’ vehicle before he left the parking lot.
Things got worse for Hicks. Once confronted by the police the officer smelled alcohol and found marijuana in his pocket.
How did Hicks, lawfully carrying a firearm, end up arrested for DUI and possession of marijuana?
The police relied on a 50-year-old landmark U.S. Supreme Court decision and a 1991 ruling from the Pennsylvania Superior Court.
Prior to Terry v. Ohio, 392 U.S. 1 (1968) the concept of an investigatory stop was pretty straightforward. A police officer could act on a hunch and attempt to voluntarily engage an individual. However, once that encounter became involuntary the suspect was considered seized and the police needed probable cause to detain the suspect.
That all changed after Terry. The Supreme Court created a degree of suspicion somewhere between a hunch and probable cause—now known as reasonable suspicion. The Supreme Court authorized police officers lacking probable cause for an arrest to conduct a frisk for weapons if the officer believed the individual was dangerous.
On Halloween in 1963, a veteran Cleveland detective saw two men standing on a downtown street acting in a way that seemed suspicious to the detective. The detective observed the two men, one of whom was John Terry, take turns walking back and forth, in front of a store window. After each trip the two men would talk. The detective recalled that the men repeated this ritual at least a half dozen times. A third man came along as the two men spoke.
The detective approached the three, suspecting they were planning to rob the store. He identified himself as a police officer, and asked their names. Unsatisfied with the responses, the detective spun Terry around, patted down the outside of his clothing, and felt a pistol in his overcoat pocket.
Terry and another man were subsequently charged with carrying a concealed weapon and both filed a motion to suppress the guns as the fruits of an unlawful search.
The Supreme Court found that the detective “seized” Terry and subjected him to a “search” within the meaning of the Fourth Amendment. But the Fourth Amendment protects against unreasonable searches and seizures, so the court next had to determine whether Terry’s seizure and search were “reasonable.”
The events the detective witnessed made it reasonable for him to believe that either Terry or his companions were armed. “The record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.”
The court found that the search was reasonable, and concluded that the gun found on Terry was properly admitted into evidence.
Over time the reasonable suspicion standard from Terry evolved from an investigatory tool to a crime-fighting tool through the advent of “stop and frisk.”
In the early 1980s, if a police officer had reasonable suspicion of a possible crime, she had the authority to stop an individual and ask questions. Reasonable suspicion could be established by a neighborhood’s crime rate or even the time of day or night. For her safety, and the safety of others, the officer could pat-down the individual—if a gun was found the inquiry could continue or an arrest, based on probable cause, could ensue.
If, based on the subject’s answers, the suspicion level did not escalate to probable cause for an arrest the person would be released immediately.
Stop and frisk became popular in New York City. Opponents of stop and frisk argued that the police stops were discriminatory because they did not reflect the city’s overall census numbers.
Supporters argued there were 2,245 murders in New York City in 1990. By 2012, the number had dropped to 414, the lowest since police began keeping records.
Finally, in 2012, U.S. District Judge Shira Scheindlin put a stop to it. She called the city’s stop-and-frisk tactics “indirect racial profiling.” The police used the tactic more than 4.4 million times between 2004 and 2012. The vast majority of the stops were of African Americans, 52%, and Hispanics, 31%. And 88% of stops resulted in no further law enforcement action.
Stop and frisk is not unconstitutional. There is no question that Pennsylvania law provides that an individual may be stopped, briefly detained and frisked for investigatory purposes if the police observe unusual and suspicious conduct on the part of the individual seized.
That brings us closer to Hicks’ dilemma.
In 1989, Charles Robinson Sr., was observed by a Pittsburgh police officer bending over into a van with a gun sticking out of the back of his pants.
Because of the presence of children in the area, the officer decided to confer with her partner. The officers returned and stopped Robinson’s van.
After Robinson stepped out of the van, the officer informed him that she had seen a gun in the back of his pants. She performed a quick pat down of Robinson and discovered a holster inside the back of his shorts.
The officer then looked into the van and saw a gun on the floor beside the driver’s side seat with deep scratches through the serial number.
In Commonwealth v. Robinson, 600 A.2d 957 (1991) the Pennsylvania Superior Court found that possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous. The court found that the observation of a weapon in and of itself was enough to trigger reasonable suspicion—and permit a police officer to temporarily detain that individual.
In Commonwealth v. Hicks, No. 56 MAP 2017, decided May 31, the Pennsylvania Supreme Court overturned Robinson, a 28-year-old precedent.
Hicks was armed and had a license to carry a concealed weapon. Pennsylvania Supreme Court Justice David Wecht writing for the majority contends, “A police officer in the field naturally relies upon his or her common sense when assessing criminal activity. When many people are licensed to do something, and violate no law by doing that thing, common sense dictates that the police officer cannot assume that any given person doing it is breaking the law. Absent some other circumstances giving rise to a suspicion of criminality, a seizure upon that basis alone is unreasonable.”
In overturning Robinson the Pennsylvania Supreme Court said evidence from Hicks’ detention should have been suppressed. Wecht wrote, Robinson “contravenes the requirements of the Terry doctrine and thus subverts the fundamental protections of the Fourth Amendment.”   Wecht concludes, “The Superior Court patently has erred in concluding that the ‘possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous.’”
Some people are barred from gun ownership, and a license is required for a concealed firearm, the court said. But “there is no way to ascertain an individual’s licensing status, or status as a prohibited person, merely by his outward appearance.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George/ His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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