Saturday, August 23, 2014

GateHouse: The constitutional right to bear … cameras

Matthew T. Mangino
GateHouse News Service
August 22, 2014
Ferguson, Missouri, has stumbled into the national spotlight for all the wrong reasons. From the tragic homicide of Michael Brown, an unarmed teenager, at the hands of the police, to the large-scale protests—peaceful and violent — to the para-military police response and the intervention of the National Guard, Ferguson has taken a hit.

Rolled into all of this have been some obvious, even outrageous, infringements on individual constitutional rights. Amid all the chaos, tear gas, rubber bullets, arrests and violence, the trampling of the First Amendment has been particularly egregious.

Last week, Washington Post reporter Wesley Lowery was arrested while covering the protests. He was told by police to stop recording video on his smartphone.

The editor of the Post, Marty Baron, complained that the order to stop filming was illegal. He was right. While state laws in most states do not address the legality of recording the police at work, courts across the country have ruled that the First Amendment protects videotaping or photographing police conduct during arrests, traffic stops and even protests.

In general, an individual can record an on-duty police officer when the individual is legally authorized to be present, the police activity is in plain view, and the recording is not being obtained through some surreptitious means.

But even in public spaces, police officers may legally order an individual in the act of taping to stop if the activity is interfering with legitimate law enforcement operations. The police may ask someone who is taping an incident to move to another spot. However, the police may not ask an individual to stop taping simply because they do not want to be taped.

When it comes to actual footage, police generally cannot confiscate or demand to view video taken of police conduct without a warrant. In addition, officers are never authorized to destroy film or delete video.

This year, the U.S. Supreme Court ruled that police must obtain a search warrant to inspect the contents of data on a cellphone including photographs and videotape. The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence, reported the New York Times.

Chief Justice John Roberts did not buy either argument. Police may inspect a cellphone to protect themselves from potential harm from hidden weapons, “once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.”

In a recent memorandum, the New York City Police Department confirmed a citizen’s right to photograph or videotape an encounter with the police.

The memo affirmed that “Members of the public are legally allowed to record police interactions,” according to the New York Daily News. “Intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

In 2012, the U.S. Department of Justice distributed a memo supporting “that private individuals have a First Amendment right to record police officers in the public discharge of their duties, and that officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process.”

However, the law is unsettled regarding police officers using wiretapping statutes in certain states to arrest and prosecute those who attempt to record police activities using video cameras that include audio.

In a number of states — Florida, Maryland, Massachusetts, New Jersey, Pennsylvania — there is no general right to record audio. Appellate courts have interpreted the wiretap laws as prohibiting audio recording if the parties have a reasonable expectation of privacy. The police working in a public space normally do not have an expectation of privacy.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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Friday, August 22, 2014

The Cautionary Instruction: Predicting crime is fine, predicting criminals … not so fast

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 22, 2014
Predictive analytics has made its way into the criminal justice system through the use of assessments to predict future risk. U.S. Attorney General Eric Holder doesn’t think it’s a good idea.
Predictive analytics is the process by which analysts are able extract information from a huge amount of data in order to reveal patterns and make predictions about what might happen in the future. Predictive analytics is not a crystal ball, but it is a tool that looks into the future with an acceptable level of reliability.
Holder cautioned against the use of data in sentencing criminal defendants, saying judges should base punishment on the facts of a crime rather than on statistical predictions of future behavior that can be unfair to minorities.
"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place," Holder said.
The concept is not new. The Commonwealth of Virginia has used risk assessment in sentencing for 15 years. The higher the assessment score, the less likely the offender will be diverted from prison. The result has been fewer people in prison and a crime rate lower than the national average.
Risk forecasting is not just relegated to the courtroom. Police departments have been refining forecasting over the last two decades.
Five years ago, Holder’s justice department sponsored a National Institute of Justice Symposium on Predictive Policing. Then Assistant Attorney General Laurie O. Robinson told the conference attendees, “Eric Holder is thinking a great deal about where we are in the evolution of law enforcement. He knows, as all of you do, that we’re at a point where some very strategic, and collaborative, thinking is in order.”
Predictive policing is the use of analytical techniques to identify promising targets for police intervention with the goal of preventing crime, solving past crimes, and identifying potential offenders and victims. These techniques can help departments address crime problems more effectively and efficiently.
Jeremy Heffner of Azavea, a firm specializing in geographic information system mapping said, “You can kind of think of crime as a disease. If a crime happens, we can see how it affects the likelihood that another incident is going to happen within a certain area in a certain amount of time after that.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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Thursday, August 21, 2014

Supreme Court justice signals potential demise of the death penalty

David Menschel, Criminal Defense Lawyer and President of the Vital Projects Fund wrote on the American Constitution Society website how U.S. Supreme Court Justice Anthony Kennedy quietly empowers death penalty opponents. 
Menschel suggested, that since Atkins in 2002, the Supreme Court has used a “national consensus” analysis in a series of cases striking down various punishments as violating the cruel and unusual punishment clause of the Eighth Amendment. For example, the Court has ruled that certain groups of people (for example, juveniles or those who are intellectually disabled) or those who have been convicted of certain crimes (child rape, non-homicide crimes) are exempt from certain punishments (death penalty, life without the possibility of parole) because there is a national consensus against the punishments.
To determine whether a national consensus exists, the Court has used a state-counting process that it sees as providing an “objective” indication of how Americans feel about a punishment. The Court asks questions like: How many states have abolished the punishment? How many states still use it? In the states that retain it, how frequently is it used? The Court then groups states accordingly.
In Atkins, the Supreme Court found that a total of 30 states had abolished the punishment, either because the state had no death penalty or because it had the death penalty but did not subject the “mentally retarded” to it. Three years later, in Roper v. Simmons, the Court abolished the death penalty for juveniles. In Roper, the Court again counted 30 states that had abolished the punishment. Finally in 2010, in Graham v. Florida, the Court struck down the punishment of life without the possibility of parole for juveniles who committed crimes other than homicide. In that case, though only 13 states had abolished the punishment, the Court nevertheless found a national consensus against the punishment because an additional 26 states did not actually have any juveniles serving such a sentence.
What makes this term’s ruling in Hall so important is the way Justice Kennedy characterizes certain states for state-counting purposes.
For example, consider how Justice Kennedy characterizes Oregon. Oregon has only executed two people since the Supreme Court revived the death penalty in 1976. And, though Oregon has approximately 36 people on death row, it currently has a moratorium on executions imposed by Gov. John Kitzhaber. In Hall, Justice Kennedy describes Oregon as having “suspended the death penalty” and having “only executed two individuals in the past 40 years.” Strikingly, Kennedy goes on to place Oregon in the same category as the 18 abolitionist states for state-counting purposes. He specifically refers to Oregon and the abolitionist states jointly as “on the other side of the ledger.” In other words, Kennedy counts a state that has not abolished the death penalty as the equivalent of an abolitionist state.
It is not entirely clear whether Kennedy’s characterization of Oregon is influenced more by the fact that Oregon has a gubernatorial moratorium in place, or because it has executed so few people over the past four decades, or some combination of the two. Nevertheless, Kennedy’s doctrinal move is terribly important, because it expands the ways that death penalty opponents can demonstrate progress to the Supreme Court.
If, doctrinally speaking, gubernatorial moratoria are as valuable as statutory abolition, additional states warrant the Court’s attention. Since Hall was initially briefed, Gov. Jay Inslee of Washington state also imposed a moratorium, thus potentially adding Washington (along with Oregon) to the abolitionist side of the ledger. In addition, Colorado Gov. John Hickenlooper granted an indefinite reprieve to the sole man on death row who is even remotely near execution. In other words, Gov. Hickenlooper has, in effect, created a moratorium on executions, even if he has not used that word to describe it. In any event, as governors impose moratoria like these in various states, there may be additional states where moratoria might be imposed, thereby potentially adding states to the abolitionist side of the ledger.
Pennsylvania has carried out three executions in more than 30 years and all three inmates volunteered to be executed.  Pennsylvania has not carried out an involuntary execution since 1962.
At the same time, Justice Kennedy’s comment about Oregon having “only executed two individuals in the past 40 years” suggests that disuse may also warrant counting a state that retains the death penalty as a de facto abolitionist state. Kennedy expands on this theme obliquely when he refers to Kansas. He says Kansas “has not had an execution in almost five decades,” and he goes on to quote Atkins, “[s]ome States… continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States.” As Kennedy no doubt understands, this insight can be applied to abolition legislation generally. The impetus to abolish the death penalty is diminished in states where executions are exceedingly rare. In other words, Kennedy seems to suggest that we should not see the retention of death penalty statutes in states where there have been few executions in decades – like New Hampshire (no executions since 1939), Kansas (no executions since 1965), Wyoming (one execution since 1965) and Colorado (one execution since 1967), Montana (three executions since 1943), etc. – as evidence of a popular will in favor of the death penalty. Kennedy makes a similar point in Graham, where he places states that allow a punishment but practically speaking do not use it, at the center of his analysis. This insight – that the Court may see states that retain the death penalty statutorily but rarely use it as non-retentionist or even de-facto-abolitionist – expands the ways that death penalty opponents may demonstrate to the Supreme Court that there is a consensus against the punishment.
Hall contains one other important doctrinal nugget of significance. As part of its national consensus analysis, in addition to counting the absolute number of states that have abolished a punishment, in Atkins, the Supreme Court emphasized the general trend, as 16 states had passed statutes exempting the “mentally retarded” from the death penalty in the previous 13 years and none had changed their laws in the other direction. This trend inquiry – which the Supreme Court refers to as the “consistency of the direction of change” – was deemphasized in subsequent opinions like Roper, to the point that it disappeared entirely in recent cases like Graham.
The trend inquiry is revived in Hall where Kennedy characterizes 11 states that had changed their laws in 12 years as a significant trend, even though two states had changed their laws in the opposite direction. Hall shows that this trend inquiry, though once dormant, is still very much alive, and importantly, in Kennedy’s eyes, 11 states in 12 years constitutes a significant trend, even in light of two countervailing states. Considering that six states have abolished the death penalty in the past six years, Hall’s 11 states in 12 years represents a goal to which death penalty opponents might reasonably aspire.
If one looks only at the 18 states that have abolished the death penalty, it may seem that death penalty opponents have a frightfully long distance to travel before they might reasonably look to the Supreme Court to vindicate their cause. And if one looks at Hall for its direct, practical impact, one might easily be underwhelmed. But through Hall Justice Kennedy speaks to death penalty opponents, alerting them to new opportunities that could ease the path that they must travel in order to demonstrate to the Supreme Court that the death penalty violates the Eighth Amendment. Death penalty opponents should pay attention.
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Wednesday, August 20, 2014

Police shootings result in about 400 deaths per year

Nearly two times a week in the United States, a white police officer killed a black person during a seven-year period ending in 2012, according to the most recent accounts of justifiable homicide reported to the FBI, reported by the USA Today.
The killings, about 400 a year, are self-reported by law enforcement and not all police departments participate so the database undercounts the actual number of deaths. Plus, the numbers are not audited after they are submitted to the FBI and the statistics on "justifiable" homicides have conflicted with independent measures of fatalities at the hands of police.
About 750 agencies contribute to the database, a fraction of the 17,000 law enforcement agencies in the United States.
University of South Carolina criminologist Geoff Alpert, who has long studied police use of deadly force, said the FBI's limited database underscores a gaping hole in the nation's understanding of how often local police take a life on America's streets — and under what circumstances.
''There is no national database for this type of information, and that is so crazy," said Alpert. "We've been trying for years, but nobody wanted to fund it and the (police) departments didn't want it. They were concerned with their image and liability. They don't want to bother with it.''
Alpert said the database can confirm that a death has occurred but is good for little else.
"I've looked at records in hundreds of departments,'' Alpert said, "and it is very rare that you find someone saying, 'Oh, gosh, we used excessive force.' In 98.9% of the cases, they are stamped as justified and sent along.''
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Tuesday, August 19, 2014

ABA: Stand Your Ground Increases Homicides

A yearlong national study by the American Bar Association National Task Force on Stand Your Ground Laws found that Stand Your Ground laws increase homicides, have no deterrent on serious crimes, result in racial disparities in the criminal justice system and impede law enforcement.
Since the nation’s first Stand Your Ground legislation was signed into law by then Florida Gov. Jeb Bush in 2005, a total of 33 states now have similar laws. Stand Your Ground has changed the legal definition of self-defense because it eliminates the duty to retreat rule. It has been part of the public debate since the February 2012 fatal shooting of Florida teenager Trayvon Martin by George Zimmerman, who was found not guilty a year later in a highly publicized trial.
The study revealed five key findings and resulted in a number of recommendations. The findings were:
  • Stand Your Ground states experienced an increase in homicides.
  • Multiple states have attempted to repeal or amend Stand Your Ground laws.
  • The law’s application is unpredictable, uneven and results in racial disparities.
  • A person’s right to self-defense was sufficiently protected prior to Stand Your Ground.
  • Victims’ rights are undermined in states with statutory immunity from criminal prosecution and civil suit related to Stand Your Ground cases.
Among the report’s 11 recommendations were that states repeal or do not enact Stand Your Ground laws, training for law enforcement agencies on best practices for investigating Stand Your Ground cases, and that states with statutory immunity provisions related to Stand Your Ground modify them to eliminate civil immunity provisions.
One of the most telling failures of the Stand Your Ground laws for panelist and task force member David A. Harris, a professor of law at the University of Pittsburgh, is that the law has had the opposite effect of what it was intended to be.
“The Stand Your Ground law was sold on the basis that it would lower serious crime and, in particular, it would lower homicide rates. Those were the two promises,” Harris said. Citing two separate university studies done at Texas A&M and Georgia Tech with data collected from 2000-2010, it did not lower serious crime and homicide rates increased in both studies.
“In the Texas A&M study homicide rates increased by 8 percent,” Harris said. “If your city went up 8 percent in murders do you think there would be a little excitement down at city hall? Yeah, I think so.”
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Monday, August 18, 2014

50 years after the last execution in the U.K., 45% still support the death penalty

50 years ago this month two unremarkable murderers became the last people to be executed in Britain. Few expected their sentences to be the last of their kind, but that year the death penalty for murder was suspended for a trial period and in 1969 it was abolished completely.
The Commons vote which ended capital punishment was a milestone for British justice, yet YouGov research finds it to be one of those issues where the views of the British public go against the political consensus.
By 45-39% people tend to support the reintroduction of the death penalty for murder.
Support has been dropping steadily - in 2010, 51% were in favour and 37% opposed, and people born after 1964, in the 18-39 age bracket, tend to oppose its reintroduction. This may suggest that we are approaching a moment when people will tend to oppose it, but we are not there yet.
Interestingly, in the US where the death penalty is still legal in some states, YouGov research has found that confidence in its effectiveness as a deterrent is lower (35% compared to 45% in Britain).
The method of Britain’s last state executions – hanging – is also disapproved of by 68-23% amongst all British people, and even by 49-45% amongst those who favour reintroducing capital punishment. Lethal injection is seen as the most appropriate method, approved of by 51% of the general public and 88% of those pro-reintroduction.
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