Friday, August 29, 2014

The Cautionary Instruction: This week marks the 90th anniversary of the Leopold and Loeb case

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 29, 2014
Ninety years ago this this week, Clarence Darrow gave a 12-hour summation in the sentencing hearing for Richard Loeb and Nathan Leopold.
The case known as Leopold and Loeb was heralded as the “trial of the century.” The case was not really a trial at all. Darrow had changed the young men’s pleas from not guilty to guilty and focused his efforts on preventing a death sentence.
On May 21, 1924, Leopold and Loeb rented a car and stocked it with tools to commit the “perfect crime.” Then they drove to a park near a local prep school to wait for the perfect victim. They found Bobby Franks.
The two wealthy University of Chicago students lured the 14-year-old Franks into the car. The two men murdered Franks for the thrill of the kill.
The next morning, a man on his way to work found Frank’s naked body, his face and genitals burned with acid, in a culvert in an isolated field outside of Chicago.
Darrow’s change of plea had turned the case on its head. Darrow, a graduate of Allegheny College in Meadville, Pennsylvania, needed only a reduction from death by hanging to life in prison to win the case.
Darrow’s summation has been characterized as one of the greatest orations ever presented in opposition to the death penalty.
Darrow asked the judge, “Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way.”
He continued to argue, “Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!
Darrow pleaded, "If the state in which I live is not kinder, more humane, and more considerate than the mad act of these two boys, I am sorry I have lived so long."
He concluded “Your Honor, what excuse could you possibly have for putting these boys to death? You would have to turn your back on every precedent of the past. You would have to turn your back on the progress of the world. You would have to ignore all human sentiment and feeling …You would have to do all this if you would hang boys of eighteen and nineteen years of age who have come into this court and thrown themselves upon your mercy.”
Cook County Circuit Court Judge John R. Caverly was impressed. He imposed a sentence of life in prison for both men.

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 28, 2014

Sex offenders being held in custody because of residency restrictions

Dozens of sex offenders who have satisfied their sentences in New York State are being held in prison beyond their release dates because of a new interpretation of state residency restrictions, reported the New York Times.
The law, which has been in effect since 2005, restricts many sex offenders from living within 1,000 feet of a school. Those unable to find such accommodations often end up in homeless shelters.
But in February, the Department of Corrections and Community Supervision, which runs the prisons and parole system, said the 1,000-foot restriction also extended from homeless shelters, making most of them off limits because of the proximity of schools.
The new interpretation has had a profound effect in New York City, where only 14 of the 270 shelters under the auspices of the Department of Homeless Services have been deemed eligible to receive sex offenders. But with the 14 shelters often filled to capacity, the state has opted to keep certain categories of sex offenders in custody until appropriate housing is found.
About 70 of the 101 sex offenders being held are New York City residents, prison authorities said. Some have begun filing habeas corpus petitions in court, demanding to be released and claiming the state has no legal authority to hold them.
The onus of finding a suitable residence upon release is on the sex offender; the state authorities will consider any residence proposed, but will reject it if it is too close to a school or violates other post-release supervision conditions.
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Wednesday, August 27, 2014

Locking more people up does not lead to safer communities

The latest information from the Bureau of Justice Statistics (BJS) and the Uniform Crime Reports (UCR)— the leading crime and prison data sources for the country—shows that locking more people up does not lead to safer communities, wrote Marc Schindler is the Executive Director of the Justice Policy Institute at The Crime Report.
The Justice Policy Institute (JPI) compared the UCR crime rate and the BJS incarceration rate from 2002 and 2012. The data reveals a nation divided.
The 2012 data was released in the summer and fall of 2013. Twenty four states experienced falling crime and incarceration rates, while twenty three states experienced rising incarceration rates and falling crime rates. Only three states experienced rises in both (including West Virginia, which coupled a 7 percent increase in crime with a 51 percent increase in its incarceration rate).
Some numbers stand out as signs that states can opt for smarter and safer justice policies:
  • Many states that saw falling incarceration rates saw large drops in crime: the ten states that decreased their incarceration rate by 10 percent or more saw crime drop at an average rate of 24.1 percent,
  • States that increased their incarceration rate saw much smaller drops in crime: the fifteen states that increased their incarceration rate by 10 percent or more saw, on average, only an accompanying, 12.8 percent drop in crime, much lower than the national average, 20.26 percent, decrease in crime for the same period.
The data shows that Virginia experienced a 25 percent drop in crime, and 2 percent drop in its incarceration rate.  Other Southern states saw a much bigger drop in incarceration, and a drop in crime.
JPI’s report Virginia’s Justice System: Expensive, Ineffective, and Unfair, as well as its follow up study, Billion Dollar Divide, recommends that states like Virginia follow the lead of these other Southern states, and reconsider and review their sentencing laws, practices and policies, reduce the collateral consequences of criminal convictions and introduce more effective public safety and drug policies. Such steps can and should be taken by the states whose incarceration rate has increased or only minimally declined over the past decade.
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Tuesday, August 26, 2014

Policing is the difference in New York City

New York not only became safer than any large city in America, it did so while its population grew and its prison population fell, wrote Franklin E. Zimring, the Simon Professor of Law at the University of California, Berkeley, in the  New York Post.
Some say that crime dropped nationwide, so New York isn’t unique. More criminals were locked up, or demographics changed. Some even credit the legalization of abortion or the introduction of unleaded gasoline.
Statistics illustrate that policing has been the difference in New York City. While the homicide rate dropped by half in the nine largest cities other than NYC between 1990 and 2009, it dropped by 82 percent here. Rapes dropped 77 percent in New York, compared with a median rate of 49 percent in those other cities.
New York showed larger declines in every major crime, though particularly in robbery, burglary and auto theft. While robberies dropped 49 percent in other major cities, they fell an astounding 84 percent here.
Consider: In 1990, there were 2,272 homicide victims in New York City. If that rate had remained unchanged, more than 2,400 would have been killed in 2013.
Instead, there were 335. For one year alone, 2,000 fewer homicides.
The only logical explanation for the New York difference, then, is how New York fought crime. The NYPD rapidly expanded the police force and targeted specific crimes in specific areas, like cleaning up outdoor drug markets.
The only logical explanation for the New York difference, then, is how New York fought crime. The NYPD rapidly expanded the police force and targeted specific crimes in specific areas, like cleaning up outdoor drug markets.
To be clear, this isn’t really “broken windows,” though that term gets much of the credit. The broken windows theory says you flood marginal neighborhoods with “order maintenance” enforcement, making sure it doesn’t slip into a chaotic spiral.
Instead, the NYPD targeted the hot spots where violence was highest. Rather than do sweeps for all low-level crimes, the department experimented with what arrests would be most effective in finding and removing serious offenders. “Zero tolerance” policing never existed in New York (or anywhere else) and would have been a disaster if it had.
Al Sharpton, who led a march on Saturday protesting the NYPD, blames the broken windows approach for the death of Eric Garner, subdued for selling loose cigarettes.
Is the Jack Maple theory to blame? No. Garner’s death is proactive policing done wrong, not right. Garner was already known to the officers and was not a public danger. He was a non-dangerous “dolphin,” and the police knew this.
The tragedy will be tried in the court, and it rightly led to Police Commission Bill Bratton ordering the retraining of all police on the use of force.
Broad slogans like “quality of life” and “order maintenance” that mischaracterize the strategic reason for police stops invite exactly the confusion that produce disasters like the Garner case.
But should this really lead to the elimination of the strategy that made the city safe? Done right, the benefits of intensive patrol and aggressive policing are real.
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Monday, August 25, 2014

Nearly a third of Americans have arrest record

According to, practically a third of Americans have an arrest record, which can create problems when looking for work and housing, The Wall Street Journal reported.
Most employers conduct criminal background checks on job applicants. With more police making more arrests, and with the Internet providing easy access to the criminal database, Americans are learning that the stigma of rap sheet is hard to shake.
In response to rising crime levels in the 1980s and 1990s police followed a zero tolerance approach for even minor infractions. Crime went down and more serious offenses were probably deterred, law enforcement authorities say. Now, the FBI criminal database contains some 77.7 million names amounting to one out of three adults. Thousands of new names are added daily, according to the WSJ.
A University of South Carolina study found that some 40 percent of men had been arrested by age 23. Among African Americans the rate was 49 percent, for Hispanics 44 percent, and for whites 38 percent. Almost 20 percent of women have also been arrested by the age of 23. Forty-seven percent of people arrested were not convicted, the WSJ reported.
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Sunday, August 24, 2014

The Delaware County Daily Times: Individual liberties at risk if Ebola hits Pa.

Matthew T. Mangino
The Delaware County Daily Times, Guest Column
August 22, 2014
Tom Frieden, the director of the U.S. Centers for Disease Control, said recently that there’s a very real possibility that someone infected with Ebola will enter the United States. However, he suggested the chances of a U.S. outbreak are highly unlikely, “it is a matter of isolating patients.” Can a patient with Ebola, or merely exposed to Ebola, be isolated or quarantined in Pennsylvania?
The U.S. Constitution prohibits the federal government as well as state governments from depriving individuals of specifically protected liberty rights. There are exceptions. In Pennsylvania, the health and well being of the community at large may supersede individual rights of freedom and liberty.
Although matters relating to public health have been left largely to individual states to manage, the federal government does have jurisdiction over cases where communicable disease is introduced into this country from a foreign source or to prevent or curtail the interstate movement of communicable disease.
In more than 40 years, only one person — Andrew Speaker a newlywed form Georgia who was honeymooning in Europe in 2007 and contracted a drug-resistant form of tuberculosis — has been isolated under federal law.
In Pennsylvania the Disease Prevention and Control Law (DPCL) provides that the state Department of Health, county/municipal health departments or a local heath authority may — without court intervention — order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and no lesser restrictive means is warranted.
The DPCL defines quarantine as the “limitation of freedom of movement of persons ... who have been exposed to a communicable disease.” The limitations may continue for a period of time equal to the incubation period of the disease. Isolation is the separation of persons already infected, from other people to prevent direct transmission of disease.
“Ebola is so scary and so unfamiliar; it’s really important to outline what the facts are, and that we know how to control it,” Frieden told NBC News.
In 2002, only months after the 9/11 attacks, the Pennsylvania Legislature went even further by enacting the Counterterrorism Planning, Preparedness and Response Act. The law provides the governor with authority to order the temporary isolation or quarantine of individuals or groups. The law was intended for use following a suspected act of bioterrorism. The statute does not specifically preclude the law from being utilized during a pandemic.
The governor also has the authority to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such an act by the government has serious civil rights implications. People who have no apparent manifestations of a disease are forced, against their will, to remain in an area where other people are infected.
Another concern is the cost of quarantine or isolation and who bears the responsibility for payment. A 1990 tuberculosis outbreak in Fort Worth, Texas, resulted in various levels and durations of quarantine and isolation for 10 patients. The cost reached nearly $1 million. Pennsylvania public health authorities may be required to provide reimbursement for costs associated with isolation or quarantine.
In Pennsylvania, the local health office may order treatment, put restrictions on an individual’s movement, restrict an individual to his or her home, put the individual under surveillance or even isolate the individual in an institution to ensure compliance.
However unlikely an outbreak of Ebola may be in Pennsylvania, it appears the commonwealth has the tools to deal with it in an effective and efficient manner -- even if it means some civil rights get trampled in the process.
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 @MatthewTMangino.
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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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