The Cautionary Instruction: A rocky start -- Public safety director takes on the DA

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 1, 2014
Last week, I wrote about Pittsburgh Public Safety director Stephen A. Bucar’s charge: Lead by example. He said after his confirmation hearing “the way forward is to build leadership that instills respect in the rank and file… [and] reach out to communities that have seen a deteriorating relationship with the department.”
Then his first step as public safety director was to make a questionable challenge to the authority of the district attorney. That won’t do much to boost confidence in the police and criminal justice system. He issued a statement saying that the city police bureau will not adopt practices on eyewitness identification implemented by Allegheny County District Attorney Stephen A. Zappala Jr.
“Although the model is endorsed by certain academic and research facilities, there is dissenting opinion in those same communities that disputes the conclusion that the best practice for eyewitness identification procedure lies with a sequential process rather than a simultaneous process,” Mr. Bucar said.
United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty years ago, “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”
More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous.  One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.
Even U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness identification. She wrote, "eyewitness identifications' unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial."
According to the Post-Gazette, Bucar cited debate in the scientific community over the most effective means to utilize eyewitness identification. Nancy Steblay, a leading eyewitness scientist from Augsburg College in Minneapolis, said that’s not the case anymore.
A 2011 review she co-authored reported that the sequential process is superior.
“We have over 70 studies we’ve reviewed and verified, and you see the pattern over and over again for sequential,” Ms. Steblay said. “In an enormous set of studies, you’re always going to find some outliers. But that’s what science does — look for the pattern.”
Zappala is advocating for the sequential process. “Although it’s not perfect, it’s far superior — significantly superior — to the simultaneous procedure,” said Steblay.
In fact, this area of the law is rapidly changing. The Pennsylvania Supreme Court ruled recently that criminal defendants have the right to offer expert testimony about the reliability of eyewitness identification. The decision overturned a 20-year prohibition against using such experts in Pennsylvania.

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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 www.mattmangino.com 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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The Crime Report: What’s the Matter With the Death Penalty?

Matthew T. Mangino
The Crime Report
July 31, 2014
There have been three “botched” executions across the country in the last six months.
On January 16, Dennis McGuire in Ohio gasped for air for some 25 minutes before succumbing to Ohio’s new two-drug lethal injection protocol.
On April 29, during Clayton D. Lockett’s execution in Oklahoma, he “began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow.” The director of the Oklahoma Department of Corrections halted the execution—Lockett died of a heart attack 43 minutes after the process began.
Just last week in Arizona, the execution of Joseph R. Wood, III began at 1:57 p.m. and he was pronounced dead at 3:49 p.m. The execution did not go as planned.
“I’ve witnessed a number of executions before and I’ve never seen anything like this,” Dale Baich, one of Wood’s attorneys, told The Washington Post. “Nor has an execution that I observed taken this long.”
Stephanie Grisham, spokeswoman for the Arizona attorney general’s office took a contrary position. “I’m telling you he was snoring,” she told  the Arizona Republic. “There was no gasping or snorting. Nothing. He looked like he was asleep.”
Even those witnessing the execution couldn’t agree on what happened.
One thing for sure: the three executions described here were not what Americans have come to expect from lethal injection—the accepted and antiseptic form of state-sponsored death.
Since 2009, when Ohio Governor Ted Strickland stopped Romell Broom’s execution because prison personnel took more than two “painful” hours to search for a suitable vein, executions have been more or less routine, sterile and swift.
Between Broom and McGuire there were 170 lethal injection executions (not to mention two electrocutions and a firing squad) without incident.  All of those executions were uneventful and swift.   For some, it was too swift and too easy.
In researching my book “The Executioner’s Toll, 2010,” I found that some of the victims’ families were struck by the ease with which the condemned slipped into a lethal slumber.
“I think the way he went . . ." a family member said as she paused, breaking into tears, "It was too easy for him."
“It was like laying down and going to sleep," said the relative of another murder victim.
Speaking after his daughter’s killer was executed, an angry father put it this way, “I wish my daughter could have died the way he died today. Wasn't no pain.”
What is different today than in 2010?
As states scrambled to obtain increasingly scare execution drugs, new compounds were being used in new combinations. Within two months of Broom’s failed execution in Ohio, the state carried out a single-drug execution using sodium thiopental.
Prior to Broom, every state used a similar lethal three-drug cocktail to carry out executions. But, in 2010, Oklahoma changed the drugs in its execution protocol to include midazolam; in 2011 Ohio switched to a single dose of pentobarbital; in 2013 Florida changed the drugs in its three drug protocol; in 2014 Ohio switched to a two-drug protocol to include midazolam; this year Arizona switched its protocol to include midazolam.
Lethal injection has been around since 1982, when Texas first used the method touted as the most humane way to carry out an execution.  The U.S. Supreme Court agreed.  In 2008, the Supreme Court decided in Baze v. Rees. The opinion written by Chief Justice John Roberts ruled that lethal injection was humane and constitutional.
However, Justice John Paul Stevens made an interesting observation in a concurring opinion in Baze. “I am now convinced,” he wrote, “that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.”
The paralytic agent was added to the original three drug protocol not because it made the execution more humane for the condemned offender, but because it made the execution more tolerable for witnesses.
State officials did not want the inmate to squirm, gyrate and writhe during the process—offending the sensibilities of those observing.
Should states be concerned with those sensibilities?
Just before Woods’ execution in Arizona, U.S. 9th Circuit Court Chief Judge Alex Kozinski dissented to an order halting his execution.  He wrote: "Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and beautiful—like something any one of us might experience in our final moments."
And he added:  “Executions are, in fact, brutal, savage events, and nothing the state tries to do can mask that reality.”
Kosinski told the Los Angeles Times he would scrap lethal injection for other forms of execution.
"I personally think we should go to the guillotine, but shooting is probably the right way to go.”
The guillotine was quick and "pretty much foolproof," he said, but probably would not be accepted by the public. A firing squad would be "messy but effective."
The guillotine has never been used in the U.S. in a state sanctioned execution. However, the firing squad is not that far-fetched. Ronnie Lee Gardner was executed by firing squad in Utah in 2010.  In fact, Deborah W. Denno, a law professor at Fordham University and an expert on the death penalty told the New York Times the most humane way to carry out the death penalty is through the use of a firing squad.
Denno said the firing squad is quick, effective and affordable.
”It’s the most humane procedure,” he  said.
Earlier this month, U.S. District Judge Cormac Carney ruled in Jones v. Chappell that California's death penalty violates the Eighth Amendment ban on cruel and unusual punishment, reported the Los Angles Times. The state’s death penalty, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.
Has the death penalty come full circle?
In Furman v. Georgia, the 1972 decision that struck down the death penalty, Justice Potter Stewart wrote: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”
Justice Potter further noted, “I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."
Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972.  There are about 742 inmates on California’s death row, a state that has not carried out an execution in more than eight years.
If one of those inmates is suddenly scheduled for execution—wouldn’t that be a lot like being struck by lightning?
 
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 & Company. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

Paper: Vast majority of executed offenders possess significant functional deficits

The overwhelming majority of those facing execution today have what the court termed in Hall v. Florida to be diminished culpability, wrote Harvard professor Charles J. Ogeltree, Jr. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows. The Failure of Mitigation?, a new study by Robert J. Smith, Sophie Cull and Zoë Robinson, published in Hastings Law Journal, of the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits.

One-third of the offenders had intellectual disabilities, borderline intellectual function or traumatic brain injuries, a similarly debilitating impairment. More than half of the 100 had a severe mental illness such as schizophrenia, post-traumatic stress disorder or psychosis.
The Smith, Cull and Robinson concluded that the vast majority of executed offenders possess significant functional deficits.
To read more Click Here

Mangino commentary on WYSU-FM

Listen to my commentary on the plight of the mentally ill in prison on National Public Radio affiliate WYSU-FM (88.5) at Youngstown State University.  Click HERE to listen.

Mangino talks death penalty with Antonio Mora on Al Jazeera America

Watch my interview with Antonio Mora host of Consider This on Al Jazeera America.  Click HERE to watch the interview.

California death penalty decision unlikely to sway U.S. Supreme Court

A federal judge's decision striking down California's death penalty would be unlikely to receive a warm reception from the U.S. Supreme Court, which repeatedly has turned away similar challenges during the past 20 years, according to The National Law Journal.
U.S. District Judge Cormac Carney of Santa Ana, Calif., ruled on July 16 in Jones v. Chappell that the state's death penalty violates the Eighth Amendment ban on cruel and unusual punishment. The state’s death penalty, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.
Those delays exceed 25 years on average, said Carney, who was appointed by President George W. Bush, and "are inherent to California's dysfunctional death penalty system, not the result of individual inmates' delay tactics, except perhaps in isolated cases."
The national average of time to execution was an estimated 12.5 years between 2000 and 2012. In 2012, the delay increased to 15.8 years, according to the U.S. Department of Justice.
California Attorney General Kamala Harris had yet to announce whether she would appeal to the U.S. Court of Appeals for the Ninth Circuit.
"It doesn’t totally surprise me that every few years a judge will speak honestly about what's going on," said death penalty litigator Bryan Stevenson of the Equal Justice Initiative. "Although some people would disagree with his legal conclusion, most people don’t disagree with his analysis of how things are functioning."
Carney's decision differed from rulings by other state and federal judges who have identified various problems with death sentences, said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.
"The judge here has pulled together all of the ways the system is dysfunctional," she said. "He is not challenging the policy per se; he is saying that in practice, this isn't working in a constitutional way. His analysis is applicable to the rest of the country. It has implications certainly for the Supreme Court, but also for policy analysis."
In his 29-page Jones decision, Carney wrote that since 1978, when California voters restored the death penalty, more than 900 people have been sentenced to death. Of that number, he said, 13 have been executed.
In my book The Executioner's Toll, 2010 I made similar argument about the arbitrary way in which the death penalty is carried out. 
To read more Click Here

GateHouse: ‘Ban the Box’ provides opportunity for ex-offenders

Matthew T. Mangino
GateHouse News Service
July 25, 2014


A prison term should not mean a lifetime of misfortune for a former offender. Yet that is what the criminal justice system produces every day. Former offenders are saddled for life with criminal records that make employment, education and public benefits difficult, if not impossible, to obtain.

Job seekers with criminal records have always struggled to find work. It is not just violent offenders and felons who are rejected by employers. A misdemeanor or an old conviction can be enough to cost a person a chance at a job.

As “tough-on-crime” politicians pressed for draconian penalties and ever-widening collateral sanctions, more and more offenders seeking to enter the workforce have been strapped with debilitating limitations. About 70 million people in the U.S. have been convicted of a crime.

A conviction has real and lasting consequences. Forbes Magazine reported that a survey by the Society for Human Resources Management found that 96 percent of human resource professionals say their companies perform criminal background checks on applicants.

Many criminal justice practitioners point to the lack of employment opportunities for returning prisoners as the most important obstacle to a successful reentry. A failed re-entry means a return to prison, soaring taxpayer funded corrections costs and increased victimization.

Some states, and cities, are trying to do something to eliminate barriers for former offenders seeking employment.

There is a growing movement called “Ban the Box,” a reference to the check box on a job application that asks, “Have you ever been convicted of a crime?” Having the checkbox may prevent many ex-offenders from getting a fair shot at a job.

Some employers immediately set aside an applicant who checks the box. This prevents prospective employees from having an opportunity to sell themselves in an interview and it prevents prospective employers from evaluating an applicant on the merits.

Ban the Box will not prevent employers from checking an applicant’s criminal record. The measure merely postpones the review to later in the assessment process to give former offenders a chance at getting a job.

Four states — Hawaii, Massachusetts, Minnesota and Rhode Island — have passed laws that force private employers to remove the question regarding conviction history from job applications, according to National Employment Law Project (NELP).

Eight more states — California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nebraska, New Mexico — have removed the question from applications for public or state jobs.

In addition, more than 60 cities have banned the box, including Baltimore, Louisville and Indianapolis. According NELP, New York City is considering its own version, called the NYC Fair Chance Act.

Federal law already provides some protection for former offenders seeking employment, although the law does not prohibit employers from asking about an applicant’s criminal history.

The U.S. Equal Employment Opportunity Commission prohibits employers from discriminating when they use criminal history information. The Civil Rights Act of 1964 prohibits employers from treating people with similar criminal records differently because of their gender, religion, race or national origin.

Like laws in Pennsylvania, New York and Wisconsin, federal law prohibits an employer from using an applicant’s criminal record in employment decisions if the conviction does not help the employer accurately decide if the person is likely to be a responsible, reliable or safe employee.

Is America a country where people get second chances or a country where a single mistake follows a person for life?

There is a lot of work to be done to provide former offenders with a meaningful opportunity to earning a living wage. Progress is being made. This week, Washington, D.C., banned the box, Illinois’ governor signed a similar law and, according to National Public Radio, Walmart and Target have eliminated the criminal history question from their employment applications.

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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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