Official Corruption Prosecutions Drop Under Trump

The latest available data from the Justice Department show that during the first eleven months of FY 2018 the government reported 340 new official corruption prosecutions,. If this activity continues at the same pace, the annual total of prosecutions will be 371 for this fiscal year. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is down 23.5% over the past fiscal year when the number of prosecutions totaled 485.

The comparisons of the number of defendants charged with official corruption- offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys (see Table 1).

Compared to five years ago when there were 636, the estimate of FY 2018 prosecutions of this type is down 41.7 percent. Prosecutions over the past year are lower than they were ten years ago. Overall, the data show that prosecutions of this type are down 45 percent from the level of 675 reported in 2008 and down 59.1 percent from the level of 906 reported in 1998.

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Opposition to Congress reducing federal criminal penalties for drug traffickers

A new survey commissioned by the Foundation for Safeguarding Justice finds opposition to proposals in Congress that would reduce federal criminal penalties for drug traffickers and allow the release of prisoners to “home confinement,” reported The Crime Report.

Three out of four people surveyed (74 percent) said that they oppose proposals that reduce penalties for criminals involved in the trafficking of heroin, fentanyl, and similar drugs. The foundation was created by the National Association of Assistant United States Attorneys (NAAUSA), who prosecute criminal cases in federal courts.

The foundation says that the FIRST STEP Act, now pending in the Senate, would permit the release of drug traffickers serving time in federal prison, with the remainder of their sentence spent under “home confinement.” Critics say that home confinement allows drug traffickers to continue illicit activities while serving their sentences. A proposal to reduce federal penalties for traffickers in heroin, fentanyl, and similar drugs is opposed by 87 percent of Republicans, 70 percent of Democrats and 73 percent of independents, the foundation says. 

Only 14 percent of survey respondents believe the federal government is too tough in its handling of drug trafficking, while three out of four (76 percent) think that the federal government is either not tough enough (51 percent) or about right (25 percent) in its current handling of drug traffickers.

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PA prisons implement new, and costly, drug eradication system

Rather than allow inmates to receive personal letters, drawings from their children, photographs, birthday cards, and other kinds of mail directly, the Pennsylvania Department of Corrections will use a new service that will cost taxpayers at least $376,000 a month, or well over $4 million a year, reported Reason Magazine.

As explained on its website, the department implemented the new policy after staff members were reportedly sickened by an unknown substance, which prompted the announcement of a statewide lockdown in August. Mail will first go through a Florida-based service called Smart Communications. The company will scan the mail and then send black and white digital copies to inmates. The original mail, including photographs, will then be held for 45 days and subsequently destroyed. The electronic mail will only be saved for seven years. Mail related to legal matters and other official documents will be forwarded to the institutions, opened in front of the inmate, copied, and the originals will be destroyed after a 15-day retention period. Inmates will not be able to keep the originals.

The department maintains that the process will help cut down on a the amount of drugs smuggled into state prisons, even documenting drug finds on various inmates. It's also a good business opportunity for private companies seeking to contract with prisons. Smart Communications already provides limited email technology and a teleconferencing system to prisons, and now touts its mail system as completely eliminating postal mail. Bloomberg quotes Corrections Accountability Project Director Bianca Tylek, who believes digitized mail services could earn private contractors "more than $180 million annually."

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GateHouse: Another chapter to the Laquan McDonald murder

Matthew T. Mangino

GateHouse Media

October 13, 2018

There was an extraordinary verdict in Chicago last week. A white police officer was convicted of killing a black teenager. A Chicago police officer hasn’t been convicted of killing a suspect while on duty in more than a half century.

What might be even more extraordinary is that the police officer was charged at all. Jason Van Dyke was a 13-year veteran of the force. According to The Associated Press, he was the subject of at least 20 citizen complaints — eight of which alleged excessive force.

The killing occurred in 2014. Van Dyke shot 17-year-old Laquan McDonald 16 times as McDonald carried a knife and refused to heed the orders of police. The dash cam video of the incident is shocking and has been viewed by millions of people across the country.

The video is graphic and shows Van Dyke emptying his service pistol into McDonald as he fell and lay motionless on the ground. The video was concealed from the public for 13 months. Had the video remained under wraps Van Dyke might still be patrolling the streets of Chicago.

Even before the trial, the case had an impact on law enforcement in Chicago. The city’s police superintendent was fired and the county’s top prosecutor, who waited 400 days to file charges, lost a bid for reelection. The killing also led to a Department of Justice (DOJ) investigation.

Nicole Gonzalez Van Cleve, an Associate Professor at The University of Delaware, wrote in The Atlantic that the DOJ report detailed excessive use of force, including shooting unarmed citizens who did not pose a threat. The disciplining of officers was both rare and inconsistent. The report revealed that the Chicago Police Department engaged in coordinated efforts to “coach and conceal” misconduct.

A week before jury selection, Mayor Rahm Emanuel became the latest victim of the alleged cover-up, announcing he would not seek a third term. Emanuel faced fierce criticism after he fought the release of the dash cam video until after his re-election in 2015.

Prosecutors in Chicago charged Van Dyke with first-degree murder.

To find him guilty of first-degree murder, jurors had to find that Van Dyke “intended to kill or do great bodily harm to Laquan McDonald or he knew that such acts would cause death or he knew that such acts created a strong probability of death or great bodily harm” and he “was not justified in using the force which he used.”

Prosecutors had to prove his intent beyond a reasonable doubt — the highest standard of proof in the court system. Jurors clearly crossed that threshold, reported the Chicago Sun-Times. But the judge also instructed them to consider a “mitigating” factor.

Van Dyke’s lawyers had to prove that he, “at the time he performed the acts which caused the death of Laquan McDonald, believed the circumstances to be such that they justified (the) deadly force he used, but his belief that such circumstances existed was unreasonable.”

Van Dyke was convicted of second-degree murder and 16 counts of aggravated battery for each shot fired into McDonald. Following the verdict, three jurors said they had problems deciding between first and second-degree murder.

“Second-degree was the mitigating factor that in Mr. Van Dyke’s mind he was doing the right thing, he was experiencing an extreme threat, in his mind that’s how he’s experiencing it, and he felt like he needed to protect himself,” said one of the jurors.

This case is not over. Three other Chicago police officers — David March, Joseph Walsh and Thomas Gaffney — are charged with lying about the shooting and conspiring to protect Van Dyke from possible prosecution.

The three officers pleaded “not guilty” and are scheduled for trial beginning Nov. 26.

For some in Chicago, the next trial is as important as the last. Confidence in the police has eroded as a result of the alleged cover-up and the many cover-ups that created a 50-year lull in prosecuting police officers for using deadly excessive force.

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 @MatthewTMangino.

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Washington state Supreme Court rules death penalty unconstitutional

Washington’s Supreme Court unanimously struck down the state’s death penalty as arbitrary and racially biased, making it the 20th state to do away with capital punishment, reported the Seattle Times.

Execution was already extremely rare in Washington, with five prisoners put to death in recent decades and a governor-imposed moratorium blocking its use since 2014.

But the court’s opinion eliminated it entirely, converted the sentences for the state’s eight death row inmates to life in prison without release, and furthered a trend away from capital punishment in the U.S.

 “The death penalty is becoming increasingly geographically isolated,” said Robert Dunham, executive director of the Washington, D.C.-based Death Penalty Information Center. “It’s still on the books in 30 states, but it’s not being used in 30 states. It’s becoming a creature of the Deep South and the Southwest.”

Texas continues to execute more prisoners than any other state — 108 since 2010. Florida has executed 28, Georgia 26 and Oklahoma 21 in that time frame. But nationally, death sentences are down 85 percent since the 1990s, Dunham said.

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Philly DA charges two officers for illegal stop-and-frisk

Philadelphia’s District Attorney’s Office last week quietly pressed charges against two PPD officers in a stop-and-frisk case criminal justice experts say may be first of its kind in the nation, according to Billypenn.com.

DA Larry Krasner has made steady progress on his campaign promise to hold police accountable for alleged criminal misconduct. In his first nine months in office, his office has filed charges against eight city officers for six alleged on-duty incidents.

Most of the alleged incidents were violent in nature: There was the case against two ex-SEPTA Transit officers over the 2017 beating of an intoxicated man on an El platform in Frankford, which a judge dismissed during a preliminary hearing last month for lack of evidence. Then there’s the ongoing case against a former Kensington officer who was captured on cell phone video body-slamming a handcuffed man. And highest-profile among the eight charged officers, Krasner is pursuing a murder case against former PPD officer Ryan Pownall over the 2017 shooting of David Jones.

While those cases have dominated headlines, the stop-and-frisk charges could have lasting effects on the city’s law enforcement agencies, regardless of the case’s outcome.

Two officers stand accused of making a pedestrian stop-and-frisk, detaining a citizen without cause, and then lying about it on official paperwork. While the police department itself has been sued over its rampant stop-and-frisk practices before, Philly officers have rarely, if ever, been taken to court over the department’s long-sanctioned policy, which critics say amounts to “stop first, justify later.”

“I don’t know if I’ve ever seen it before,” said David Rudovsky, one of the civil rights attorneys who has sued the department over the practice, about last week’s charges.

Such a case is unprecedented even on the national level, said Thomas Nolan, a Boston-based criminologist and a former senior policy analyst at the Department of Homeland Security.

“This will no doubt prove to be extremely unsettling to the police rank and file,” Nolan said after being briefed on the charges. “Overt acts of criminality — such as robbing a drug dealer or shooting an unarmed fleeing suspect — were always at least potentially prosecutable. But it was almost an article of faith that the police would often engage in stops and create the justification for them after the fact.”

Some experts dismiss the case as a lost cause. Some worry about it exacerbating the highly disputed “Ferguson effect” among city officers. Others call the charges necessary to ensure oversight in a police department entrenched in its own toxic culture. All agree: This is a strange, new ballgame for criminal justice.

14th District Officers Matthew Walsh and Marvin Jones stand accused of illegally detaining a man in East Mount Airy last April.

Investigating a civilian complaint filed by the detainee, the department’s Internal Affairs Bureau found video evidence that contradicted the officers’ legal justification for the stop. In official paperwork, the officers alleged that their suspect was “apparently using narcotics.”

Investigators determined that Walsh and Jones fabricated their cause for the frisk, which was that the man wouldn’t remove his hands from his pockets. “The citizen was fully compliant at the time of the stop,” police officials wrote in a press release announcing both officers’ arrest and impending dismissal.

Investigators said the officers detained the man for about 15 minutes, drove him around the block and released him. The detainee later filed a civilian complaint against the officers, triggering the Internal Affairs investigation that would result in their arrest.

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Justice Sotomayor cites Dickens to blast solitary confinement

After the Supreme Court shot down a challenge to the use of solitary confinement in prison, Justice Sonia Sotomayor voiced alarm about depriving inmates of daylight for months and years, according to Courthouse News Service.

Consolidated from two appeals at the 10th Circuit, the case at issue stems from the incarceration of Jonathan Apodaca, Joshua Vigil and Donnie Lowe at the Colorado State Penitentiary.

Sotomayor noted that while the three men were in so-called administrative segregation, doing stints that ran between 11 and 25 months, none were allowed outside except for “recreation time” in a small room with a chin-up bar.

Measuring 90 square feet, this room did have two windows, but the metal grates covering them could almost be said to be more cruel than sealed glass.

“The grates have holes approximately the size of a quarter that open to the outside,” a prior district court described it, as quoted Tuesday by Sotomayor. “The inmate can see through the holes, can sometimes feel a breeze, and can sometimes feel the warmth of the sun. This is his only exposure of any kind to fresh air.”

Sotomayor went on to explain that the court has for years recognized the perversion in capriciously depriving a prisoner of outdoor exercise for extended periods of time.

“It should be clear by now that our Constitution does not permit such a total deprivation in the absence of a particularly compelling interest,” she wrote.

The opinion also notes that petitioner Lowe died in the spring after he was released directly onto the streets after 11 years in solitary confinement. The crime that had sent him to prison was second-degree burglary and introduction of contraband.

“While we do not know what caused his death in May 2018, we do know that solitary confinement imprints on those that it clutches a wide range of psychological scars,” she wrote.

Today Colorado allows all inmates “access to outdoor recreation” for at least one hour, three times per week, subject to “security or safety considerations,” Sotomayor added.

She emphasized that such changes represent “steps toward a more humane system” but “cannot undo what petitioners, and others similarly situated, have experienced.”

Quoting a 2015 concurrence from Justice Anthony Kennedy in the case Davis v. Ayala, Sotomayor also noted that the experience of solitary confinement described in “A Tale of Two Cities” was inspired by a real-life visit Charles Dickens paid to Philadelphia’s Eastern State Penitentiary.

“Dickens did not question the penal officers’ motives,” Sotomayor wrote. “He concluded, rather, that they did ‘not know what it is that they are doing’ and that ‘very few’ were ‘capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers.’ The pain caused was invisible and inaudible, such that ‘slumbering humanity’ was ‘not roused up’ to put a stop to it.

“We are no longer so unaware. Courts and corrections officials must accordingly remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world, in what comes perilously close to a penal tomb.”

The Supreme Court did include any grant of certiorari today in its batch of orders.

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