GateHouse: Life without parole under scrutiny

Matthew T. Mangino

GateHouse Media

December 13, 2019

Life without the possibility of parole (LWOP) is a growing concern in this country. According to the Sentencing Project, the number of LWOP sentences has quadrupled from about 12,500 in 1992 to more than 53,000 as of 2016.

The expansion of LWOP was the result of the confluence of two very different groups. The right-wing - tough-on-crime - hardliners who, beginning in the mid-1980s, declared war on drugs and violent crime and adopted harsher, mandatory sentences, including LWOP.

The second group includes the death penalty abolitionists, left leaning progressives, who adopted LWOP sentences as a logical alternative to the death penalty. As the death penalty wanes - only 22 executions expected in 2019, the fewest since 1991 - those opposed to the death penalty have now set their sights on LWOP.

The cost and morality of locking-up - forever - a wide swath of offenders has come into question.

A number of states are reviewing offenses that are subject to LWOP. In Pennsylvania, for instance, an individual convicted of driving the get-away car in a robbery, that ended in murder could be sentenced to mandatory LWOP. The driver could have had absolutely no intention of killing anyone, in fact the shop keeper could have killed his unarmed accomplice, and the driver could end up in prison for life.

According to the Baton Rouge Advocate, about 15% of Louisiana’s prison population consists of people serving life without parole, which is the highest percentage among all states. Those numbers are the result of sentencing laws enacted decades ago - including abolishing parole for all life sentences.

State lawmakers in Pennsylvania have moved toward changing their laws in recent months, but the latest proposal stalled in committee and did not come before the legislature for a vote. According to The Advocate, the proposal would allow lifers a chance at parole after serving 35 years on a first-degree murder conviction and 25 years on second-degree murder, which under Pennsylvania law refers exclusively to an unintentional killing during the commission of a felony.

In Massachusetts, there are more than a thousand men and women serving life without the possibility of parole. There is pending legislation that would require the possibility of parole and would allow all inmates currently serving life sentences to have the opportunity for a parole hearing after serving 25 years. Release would not be automatic but the parole board would take at least one look at the possibility of parole.

Former California Governor Jerry Brown signed into law a bill that bans sentencing juveniles to life without parole.

The U.S. Supreme Court has chipped away at LWOP parole for juveniles. First, the high court struck down mandatory life without parole for juveniles and later eliminated life without parole for juveniles who committed non-homicide offenses.

The United States is the only country that allows the sentence of life without parole for juveniles. California is one of 20 states and the District of Columbia who have outlawed life without the possibility of parole for juvenile offenders. There are another five states that do sentence juveniles to life without parole.

In 2012, there were only five states that banned life without parole for juveniles - the addition of California quadruples that number and shows momentum toward an emerging “national consensus” against sentencing juveniles to die in prison. This theory of a national consensus and “evolving standards of decency” are the same theories that resulted in the Supreme Court striking down the death penalty for juveniles.

Quinn Cozzens, staff attorney for the Abolitionist Law Center told The Advocate, “Mandatory life without parole reflects a judgement that somebody is irredeemable, essentially social refuse - something to be kept out of sight and out of mind.”

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 at @MatthewTMangino.

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Kentucky governor restores voting rights for 140,000 former offenders

Kentucky’s newly elected Democratic governor, Andy Beshear, signed an executive order on restoring the vote and the right to hold public office to more than 140,000 residents who have completed sentences for nonviolent felonies, reported the New York Times.

With that move, Kentucky joined a fast-growing movement to return voting rights to former felons, leaving Iowa as the only state that strips all former felons of the right to cast a ballot.

Since 1997, 24 states have approved some type of measure to ease voting bans, according to the Sentencing Project, a Washington group that advocates criminal justice policy changes. Kentucky joins Virginia, Florida, Nevada and other states that have extended voting rights in the last few years.

Mr. Beshear said the order would apply to more than half of the estimated 240,000 Kentuckians with felonies in their past, as well as those who complete their sentences in the future.

While he believes in justice, he said, “I also believe in second chances.”

“We’re talking about moms and dads, neighbors and friends, people who have met and taken on one of the greatest challenges anyone can face: overcoming the past,” the governor said. “It is an injustice that their ability to rejoin society by casting a vote on Election Day is automatically denied.”

Voting-rights advocates called Kentucky’s decision a significant advance in a campaign to return the vote to felons that began decades ago and has won widespread attention and support only recently.

But while the most recent changes have returned voting rights to well over 1.5 million people nationwide, it remains unclear how they will affect the political process. A handful of academic studies suggest that former prisoners register and vote at rates well below national averages.

The governor said his order did not extend to those who committed violent felonies because some offenses, such as rape and murder, were too heinous to forgive. The order also excludes those who were convicted under federal law or the laws of other states, although they would be able to apply individually for restoration of their rights.

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Texas carried out state's 9th and final execution of the year

The 22nd Execution of 2019

On December 11, 2019, as Texas inmate Travis Runnels, 46, was executed by lethal injection, reported the Washington Post. Runnels first landed in an Amarillo, Tex., prison over two decades ago, after receiving a 70-year sentence for an aggravated robbery in Dallas.

While he was behind bars, court documents say, he grew angry and dissatisfied about his job as the janitor at an in-house boot factory, which made shoes for Texas prisoners. He had requested a work transfer to the prison’s barber shop but hadn’t received it.

On Jan. 29, 2003, before starting his shift, Runnels expressed his dissatisfaction to three other inmates, making violent threats about the plant manager, Stanley Wiley.

Once he arrived at the factory, Runnels went up to Wiley, tilted the man’s head back and slit his throat with a knife. The wound, spanning about nine inches, was so deep it had cut Wiley’s spine — and would later kill him.

Runnels wiped the knife clean with a white rag and walked away.

“It was cowardly,” prosecutor Randall Sims told jurors at Runnels’s trial, according to the Associated Press.

It was hardly a question whether Runnels, the ninth and final Texas inmate executed on death row this year, had committed a murder. Over a decade ago, the Dallas native pleaded guilty in the 2003 killing of his former prison supervisor, reported the Washington Post.

But things got far more complicated when it came to one of the witnesses in Runnels’s trial. The man’s attorneys charged that a state investigator, A.P. Merillat, had given false testimony. Prosecutors never denied that claim, and even Merillat recently suggested he may have erred.

Yet the question of whether his testimony made a difference in the verdict — and thus, between Runnels’s life and a life sentence — became central to a legal battle that rose all the way to the U.S. Supreme Court this week.

“You shouldn’t be allowed to get a death sentence based on false testimony,” his attorney, Mark Pickett, recently told the Texas Tribune. “This is testimony that … no one is disputing is false.”

Prosecutors, however, argued that even if Merillat had misled jurors, it wouldn’t have made a difference in the verdict. They say that Runnels, who had a record of other assaults against prison guards, was too dangerous and would have been sentenced to death anyway.

Though he knew the state wanted to sentence him to death, Runnels pleaded guilty. So the question at his trial was not one of innocence. It was whether he could coexist with others during a life in prison or whether he posed such a “future danger” — to guards, inmates, and the public — that he should head to death row instead.

To answer that question, prosecutors called on A.P. Merillat. Then a state official who investigated prison crimes, Merillat had often been called on to testify about the harm caused by dangerous inmates.

At the 2005 trial, he appeared to do just that. He told jurors that inmates like Runnels could not be held securely, even if they were sentenced to life in prison without parole. He said that if those convicted of capital murder — like Runnels — were not sentenced to death, they would automatically be placed in dorms or cells alongside other inmates, without much supervision or consideration of their full records. But that perspective went against changes made months earlier to the Texas Department of Criminal Justice’s classification plan, which stated that capital murder convicts sentenced to life in prison would be placed at a stricter level of security.

Runnels’s attorneys said his testimony was “plainly and patently false.” One former prison official would later tell Texas Monthly that it was “bulls---.” And in interviews with Texas news outlets, even Merillat acknowledged he might have been wrong in Amarillo.

The jury voted to put Runnels on death row. The ruling triggered more than a decade of legal disputes about the trial, much of it centered on Merillat’s testimony: Had that falsehood contributed to the punishment beyond a reasonable doubt?

His attorneys argued it had. The purpose of Merillat’s testimony, they said, was to establish that security for prisoners not on death row was “so lax” that Runnels would be a danger to others there, they wrote in a petition.

The sentences of two death row inmates, in 2010 and 2012, had been overturned after the Texas Court of Criminal Appeals ruled that Merillat gave jurors false information, they said, and Runnels had also received shoddy representation.

“Travis, just like anybody in this country, deserves a trial where people aren’t lying,” Pickett told the Houston Chronicle. “No matter what you did, what the jury should be hearing is the truth.”

Yet prosecutors said that Runnels’s crime — and his subsequent behavior in prison — was enough to make him a future threat in prison and merit a death sentence, with or without Merillat’s testimony. After killing Wiley, they said, Runnels threw feces and a lightbulb at other prison guards.

“The jury would undoubtedly have found Runnels to be a future danger,” Jefferson Clendenin, Texas assistant attorney general, wrote in a brief to the U.S. Supreme Court on Monday.

The case made its way through Texas courts, which repeatedly rejected his appeals. Runnels’s supporters argued that he had changed, following years on death row, but the prisoner’s options grew few and far between. Amid a rising wave of scrutiny, Merillat chimed in too.

“If the jury gave him the death penalty because of his particular crime and the heinousness of it and the actions he committed after his crime … then the jury’s verdict should stand,” he told the Tribune. “If they gave him the death penalty because of what I said and I was wrong, I don’t want him to have the death penalty.”

Late on Wednesday afternoon, though, U.S. Supreme Court justices refused to block Runnels’s execution.

Less than an hour later, he was injected with a lethal dose of a sedative, while strapped into a death chamber gurney in Huntsville, Tex.

Outside the prison, about 70 miles north of Houston, several hundred Texas corrections officers stood in formation, KTVT reported, hugging or shaking the hand of Wiley’s sister and brother-in-law.

Inside, Runnels declined his chance to say any final words. Instead, he smiled and mouthed a kiss toward his friends and attorneys.

By 7:26 p.m., after four quick breaths, he was dead.

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Read the Articles of Impeachment

Read the two Articles of Impeachment filed against President Donald Trump by Representative Jerrold Nadler, Chairman of the House Judiciary Committee.
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PA Supreme Court to hear yet another challenge to the remnants of Megan's Law

The landmark Pennsylvania law that for nearly a quarter of a century has required a public registry of sex offenders and community notification about their whereabouts is facing a life-or-death challenge before the state’s highest court, reported the Philadelphia Inquirer.

Enacted nearly 25 years ago, Megan’s Law was hailed as a pivotal step toward making communities safer by empowering the public with information about where sex offenders live. Now, five separate cases before the state Supreme Court are attacking it as outdated, discriminatory, and unnecessarily cruel, depriving thousands of people of their fundamental rights.

The cases challenge nearly every aspect of the law, which has undergone several incarnations since being signed in 1995, one year after the death of 7-year-old Megan Kanka. The New Jersey girl was raped and killed by a neighbor who, unbeknownst to her family, was a twice-convicted pedophile. Similar laws were adopted across the United States and at the federal level.

Prosecutors believe the pending cases could gut Pennsylvania’s law, allowing sexually violent predators to evade detection and endangering public safety. They also warn that the law’s best-known aspect — the website that lists the thousands of offenders in the state — could be watered down or dismantled. In the last year alone, the website received 411 million page views, state records show.

"Awareness and knowledge are power, and they are precisely why this offender registry exists and what is at stake in the Pennsylvania Supreme Court,” said Attorney General Josh Shapiro, whose office is leading the defense of the law in some of the cases before the high court.

Defense lawyers, joined by a growing chorus of experts in the criminal justice reform movement, dismiss that. They argue the cases expose deep constitutional problems and should at a minimum push the legislature to rethink its approach to managing people who commit sexual violence.

“The way the system works currently cannot continue to function,” said Aaron Marcus, an assistant defender with the Defender Association of Philadelphia and one of the lawyers involved in challenging the law.

At the heart of the majority of cases is the latest iteration of the Sexual Offender Registration and Notification Act, or SORNA, which evolved out of the original Megan’s Law. When SORNA took effect at the end of 2012, it greatly expanded the law, increasing the list of offenses subject to registration and notification — including a handful that are not sexual in nature — and imposing more stringent registration and notification rules.

The state’s Megan’s Law registry more than doubled, growing from about 10,000 people to just over 20,000, according to the Pennsylvania State Police, which oversees the registry.

Marcus said that after “decades of trial, mountains of empirical evidence and close to one million people around the country being denied their rights to liberty and their reputation," no hard evidence exists that the public is any safer or that assaults have been prevented.

One of the most closely-watched cases before the high court deals with requirements under the current law for people classified as “sexually-violent predators," those who have committed the most serious offenses and who are considered to have a high likelihood to reoffend. They are subject to lifetime registration, as well as lifetime counseling and community notification.

The case centers on whether those rigorous registration, notification and counseling requirements constitute unlawful punishment.

Brought by a Butler County man who pleaded guilty to statutory sexual assault and corruption of minors, the case targets the state’s little-known process for assessing sexual offenders. A board of psychiatrists, psychologists and criminal justice professionals in Pennsylvania make recommendations to the court about whether someone should be classified as a sexually violent predator.

Since 2000, the board has completed 20,260 assessments, according to state officials. In 6,027 of those cases, it has recommended that the offender be classified as a sexually violent predator, although the courts have not always agreed.

“This is the case that will dictate how we operate going forward,” said Meghan Dade, the board’s executive director. “This is a pivotal moment in Pennsylvania.”

Another case before the court arose from the convoluted registration system for offenders. Because of a separate legal challenge, the law now imposes two different sets of rules: one for people who committed crimes prior to Dec. 20, 2012 — when the current law went into effect in Pennsylvania — and another for people who committed crimes after that date.

Lawyers for a Chester County man — a biochemical engineer with no prior record who was convicted in 2017 of aggravated indecent assault and subject to lifetime registration — are arguing the law violates a fundamental right to reputation under the state constitution. It presumes that people convicted of certain sexual offenses cannot change and therefore are prone to reoffending, they contend.

In court papers, the lawyers, led by Marcus, cite experts and studies that show the public holds a false perception that people convicted of sexual offenses will go on to reoffend, and that their risk for doing so lasts for years. They said only a small number of offenders fit that bill, while the rest get lumped into that group, suffering a lifetime of harm.

Their arguments go to the heart of the criminal justice reform movement blossoming across the country that aims to reduce harsh penalties for smaller offenses, and reform policies for offenders who, after serving prison time, suffer myriad social and financial hardships.

“It is difficult to overstate the impact that sex offender registration has on a person’s life,” Marcus said.

Lawyers are paying close attention to the case because it takes aim at the state’s sex-offender website, which some view as aiding in destroying reputations because it is so widely accessible.

“The long-term viability of the Megan’s Law website could be implicated,” said Carson Morris, a deputy attorney general in the state Attorney General’s Office who is defending Megan’s Law in one of the five cases before the high court.

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SCAN a dubious police investigation 'tool' in use around the country

A dubious police investigation “tool” well known to many police departments but little known to the public is called Scientific Content Analysis, or SCAN for short.

SCAN, a product sold by a company called the Laboratory for Scientific Interrogation (LSI), has, in the words of four scholars in a 2016 study, “no empirical support” — meaning, there’s no dependable research showing that it works, reported ProPublica and the South Bend Tribune.

Scientific Content Analysis is akin to other investigative tools scrutinized by ProPublica, including bloodstain-pattern analysis and photo analysis. These analytical techniques promise a degree of certainty — about how blood came to spray across a wall, or whether a particular plaid shirt was worn by a robber — that can guide an investigator or shore up a case. The trial evidence presented against Joyner included yet another example: a prosecution expert testified that two plastic garbage bags — one found in Joyner’s apartment, the other around Hernandez’s head — had “definitely” once been connected. (A statistician said in an interview that this testimony was laced with “a lot of unproven assertions.”) Law enforcement officials hold these tools out as science, even though they have little or no scientific backing.

SCAN’s creator has written, “I am pleased to say SCAN has helped solve thousands of cases over the years.”

While police in Elkhart and elsewhere have used the tool to make critical decisions that can establish an investigation’s direction, SCAN has escaped the scrutiny that comes with being offered in court as proof. Appellate opinions often refer to key pieces of evidence used at trial, but a search of legal databases with opinions from around the country turns up precious few mentions of SCAN.

The detective who used SCAN in the Joyner case was Steve Rezutko. He resigned from the Elkhart police in 2001 after an internal investigation found he had engaged in sexual misconduct with an informant. He died, in an apparent suicide, this year.

In 1994, two years after Hernandez’s death, Rezutko was asked in a deposition to describe his training in SCAN.

“Not great,” Rezutko said. “Been to two schools. At the time, I hadn’t done an awful lot, maybe 40 or 50 interpretations, but I had been to a weeklong school in Indianapolis under the guy who … developed the procedure.”

Joyner’s lawyer asked whether a person’s ability to read and comprehend the English language could affect the results of the questionnaire.

“Well ... you struggle with the same questions I struggled with when I went through the school, went through the sessions,” Rezutko said. “I guess it’s kind of like two and two is four. Why is it four? It’s two and two is four all over the world. Why it is I have no idea.”

Rezutko, like officers across the country, took it on faith that SCAN works, without really understanding how or why.

Local, state and federal agencies from the Louisville Metro Police Department to the Michigan State Police to the U.S. State Department have paid for SCAN training. The LSI website lists 417 agencies nationwide, from small-town police departments to the military, that have been trained in SCAN — and that list isn’t comprehensive, because additional ones show up in procurement databases and in public records obtained by ProPublica. Other training recipients include law enforcement agencies in Australia, Belgium, Canada, Israel, Mexico, the Netherlands, Singapore, South Africa and the United Kingdom, among others.

The tool’s lack of scientific grounding aside, criminal investigators have been quick to seize upon sales pitches for training, exemplified by a company commander with the famed Texas Rangers, who, in an email to his fellow majors, wrote that SCAN’s creator is “a true master at detecting deception.”

For Avinoam Sapir, the creator of SCAN, sifting truth from deception is as simple as one, two, three.

1. Give the subject a pen and paper.

2. Ask the subject to write down his/her version of what happened.

3. Analyze the statement and solve the case.

Those steps appear on the website for Sapir’s company, based in Phoenix. “SCAN Unlocks the Mystery!” the homepage says, alongside a logo of a question mark stamped on someone’s brain. The site includes dozens of testimonials with no names attached. “Since January when I first attended your course, everybody I meet just walks up to me and confesses!” one says. Acronyms abound (VIEW: Verbal Inquiry - the Effective Witness; REASON: REport Automated SOlution Notes), as do products for sale. “Coming Soon! SCAN Analysis of the Mueller Report,” the website teased this year. LSI offers guidebooks, software, kits, discount packages, cassette tapes of seminars and, for computer wallpaper, a picture of a KGB interrogation room.

SCAN saves time, the site says. It saves money. Police can fax a questionnaire to a hundred people at once, the site says. Those hundred people can fax it back “and then, in less than an hour, the investigator will be able to review the questionnaires and solve the case.” “Past students … have reported a dramatic increase in the amount of information obtained from people,” the site says. “Thus, costly and time-consuming outside investigation was reduced to a minimum.”

SCAN works, the site says. “Analysis of statements has been found to be highly accurate and supported by a validation survey conducted in a U.S. governmental agency. In that survey, when SCAN was compared to other methods, the validity of SCAN reached above 95%,” the site says, without identifying the agency or citing or linking to any survey.

Sapir has outlined his background on LinkedIn and in books he’s written, including one in which he uses SCAN to analyze the biblical book of Genesis. He was born in 1949 in Israel. He got a bachelor’s degree in psychology and criminology at Bar-Ilan University and a master’s in criminology at Tel Aviv University. His master’s thesis was on “Interrogation in Jewish Law.” He served in Israeli military intelligence Unit 8200 (a high-tech spy agency akin to America’s NSA). He became a polygraph examiner with the Israel police. In the mid-1980s, he moved to the United States, where he began teaching SCAN to investigators “on six continents.”

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DOJ Inspector General: FBI and DOJ investigation of Russia/Trump justified

The FBI mishandled parts of its application to monitor a Trump campaign aide as it was probing possible Russian interference in the 2016 election, but the overall investigation was justified, according to a long-awaited report by the Justice Department's watchdog that rebuts the president's depiction of a politically biased plot against him, reported NBC News.

The report by Justice Department Inspector General Michael Horowitz concluded that the FBI and the Justice Department launched their investigation into the 2016 campaign not for political reasons, but because of evidence the Russian government was using cutouts to reach out to the Trump campaign as part of its efforts to influence the election.

Horowitz found that political bias did not taint the actions of former FBI leaders who have frequently been the subject of presidential attacks on Twitter, including former Director James Comey, former Deputy Director Andrew McCabe and former Deputy Assistant Director Peter Strzok.

"We did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions" to open investigations into four Trump campaign aides, the report says.

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