Friday, January 29, 2010

California to Review Civil Commitment Under Equal Protection

The California Supreme Court recently raised some concerns regarding the state's sex offender civil commitment statute. Jessica's law provides for the indefinite detention of sex offenders who have completed their sentence but have been deemed sexually violent predators.

Richard McKee was convicted of lewd acts on two girls ages 11 and 8. After serving his prison sentence, a San Diego Superior Court judge committed him indefinitely to the State Department of Mental Health. He appealed alleging a violation of equal protection.

The court did not find the statute unconstitutional, but according to the Los Angles Times, remanded the case to the trial court for a fact-finding hearing to determine whether valid reasons exist to treat sex offenders differently than say mentally ill patients. California has more civilly committed offenders than any other state.

In the case of an institutionalized mentally ill patient the state reviews their detention at least every two years. A sex offender is detained indefinitely and has the burden of proving that he is no longer a danger to society. The trial court must determine if the statute violates equal protection guarantees.

The court wrote that “imposing on one group an indefinite commitment and the burden of proving they should not be committed, when the other group is subject to short-term commitment renewable only if the People prove periodically that continuing commitment is justified beyond a reasonable doubt, raises a substantial equal protection question that calls for some justification by the People.”

This raises an interesting question in light of the U.S. Supreme Court's recent oral argument on a challenge to the federal government's right to detain sex offenders through civil commitment.

Thursday, January 28, 2010

Kansas Abortion Trial: From Surreal to Insane

The Bizarre trial of anti-abortion zealot Scott Roeder who confessed to shooting and killing abortion provider Dr. George Tiller has gotten even more surreal. Roeder allegedly shot Tiller in church before Sunday services last May near Wichita, Kansas.

Today, Roeder took the witness stand in his own defense. His testimony followed an unsuccessful effort by his attorneys to have former Kansas Attorney General Phil Kline testify. Apparently, Kline would have testified that what Tiller was doing was murder and that Roeder was justified in killing him.

However, Roeder's testimony seemed to fly in the face of his justification defense. CNN reported that Roeder first said he thought abortion could be acceptable if the mother's life was in "absolute" danger. "I struggle with that decision," he said, "because I believe that ultimately, it is up to our heavenly father. But if there was a time, that would be it."

When defense attorneys asked about his belief regarding abortion in the case of rape, Roeder said, "I do not believe that is justified. You are taking the life of the innocent. You're punishing the innocent life for the sin of the father. Two wrongs don't make a right."

Asked about incest, he said his beliefs were the same. "It isn't our duty to take life, it's our heavenly father's," he said.

Roeder believes taking a life is the sole province of the heavenly father, yet he admits to killing a doctor who performs abortions and apparently believes he is justified. It sounds as though Roeder would have been better served by an insanity defense.

Monday, January 25, 2010

Sotomayor Upholds Death Penalty for Alabama Killer

U.S. Supreme Court Justice Sonia Sotomayor issued her first opinion on the death penalty. In a 7-2 ruling the high court upheld the death penalty for Holly Wood of Alabama, Wood v. Allen, Dkt. No. 08-9156. In 1993, Wood killed his former girlfriend with a shotgun while she was sleeping.

According to the Washington Post:

The Alabama Supreme Court upheld Wood's sentence, but a federal judge agreed with Wood that the lawyer's performance was incompetent. The U.S. Court of Appeals for the 11th Circuit reversed that decision.

The Supreme Court on Wednesday said the appeals court was right. "Even if it is debatable, it is not unreasonable to conclude that . . . counsel made a strategic decision not to inquire further into the information contained in the report about Wood's mental deficiencies and not to present to the jury such information," Sotomayor wrote.

She noted that the report contained information about Wood trying to kill another ex-girlfriend in much the same manner.

The decision was applauded by death penalty supporters.

Wednesday, January 13, 2010

A Constitutional Ripple Effect

This week the U.S. Supreme Court heard arguments in U.S. v. Comstock. The case represents a challenge to a federal law enacted in 2006 when the Congress authorized the indefinite civil commitment of offenders designated "sexually dangerous."

The law essentially permits the federal government to continue to detain a sex offender after he has served his sentence. Such commitments on a state level have passed constitutional muster. The high court has found neither a violation of double jeopardy or ex post facto, Kansas v. Hendricks, 521 U.S. 346 (1997).

There are 20 states that have statutory provisions for the civil commitment of sex offenders. The list of states with sex offender civil commitment laws include Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin, (Deming, Sex Offender Civil Commitment Programs).

According to Robert Barnes of the Washington Post, During the Comstock argument a majority of U.S. Supreme Court justices seemed inclined to accept that the federal government has the power to indefinitely hold prisoners who are deemed sexually dangerous, even if they have completed their sentence.

Some court observers are concerned. "The main danger of civil commitment of sex offenders is that it provides a precedent for doing an end run around those governmental protections, and we all may be comfortable right now because we say, 'Well, this is those people. It's not us. It's not our rights that are at stake,'" Eric Janus, author of Failure to Protect, told "I think we all ought to be cognizant of the fact that these laws set a precedent that greatly expands the power of government to take away our liberty, not for something we've done in the past, not after we've been convicted and punished, but out of fear that we might commit a crime in the future, and this is a very very powerful and dangerous idea," Janus said.

Nina Totenberg raised similar concerns during her NPR report on the Comstock argument. If you can civilly commit someone as sexually dangerous, why not civilly commit people believed to be just dangerous in general?

Kansas Solicitor General Stephen McAllister says civil commitment has to be linked to a mental abnormality or condition. But a lot of people in prison are deeply disturbed. There are drug addicts, kleptomaniacs, vicious sociopaths. So why not commit them too once they have completed their prison terms?

"Constitutionally, it might be possible," to extend the rationale for civil commitment to other kinds of crimes, McAllister says. "I don't have a constitutionally limiting line for what kinds of mental disorders might be permissible and what [might] not. If they lead to danger to others, potentially, they could be covered under such a law."

In other words, this is a case that could have a constitutional ripple effect.

Doing Time . . . And Doing It Time and Time Again

Sunday, December 19, 2004
Washington Post
By: Matthew T. Mangino

In 1994, John Popovich, a 34-year-old convicted felon, was found guilty on charges of forging a drug prescription -- a crime committed almost exclusively by substance abusers. He was sentenced to five years probation.

During the 10 years since, he has violated his probation and then his parole eight times. By July 1, 2004, Popovich had served more than two years in jail, even though his original sentence did not require jail time.

Today, Popovich sits in a state correctional facility, having been resentenced to a prison term of 2 1/2 to five years. Popovich doesn't deserve pity; he has a criminal record dating back to 1981. He also committed at least two additional criminal offenses while on probation. But his case, which I have followed with growing dismay, highlights the need to make real changes in the rehabilitation and treatment of prisoners in order to end the cycle of re-incarceration.

Every page of Popovich 's lengthy criminal history is evidence not only of enormous waste of public resources but also of a correctional system that has run amok. So much so, that I sometimes feel as if we are operating a revolving door in the courtrooms here in Lawrence County, just north of Pittsburgh, where Popovich is only one of many repeat offenders. Our experience is not unusual. State and local governments are being crushed under the fiscal demands of America's prison system. Cells across the country are full, not because of mandatory sentencing or the incarceration of drug offenders, but because the system produces thousands of people like Popovich every day, having repeatedly failed to help them gain the skills necessary to manage life on the outside.

We are incarcerating more people for longer periods than at any time in our history. That number isn't just increasing; it is soaring. In 1980, the United States had approximately 316,000 inmates in state and federal prisons; by 2000, there were 1.3 million. Currently, we have more than 2 million people incarcerated when you add together federal, state and local jails, not to mention an additional 4.8 million people who are on parole or probation, totaling approximately 3.2 percent of the adult U.S. population.

Behind those numbers lie patterns of behavior that could be treated. Nearly 75 percent of people who enter the prison system have substance abuse problems; they are drug addicted or alcohol dependent. Nearly one in five has mental health issues. There are few life sentences in this country. Virtually everyone who goes into prison eventually gets out, and many go right back.

Here is the irony of the situation: As the cost of maintaining and expanding prisons has increased, most of the funds that states set aside to help prisoners make the transition from prison to life outside have been slashed. In 1991, one in four state prison inmates received treatment for drug addiction. By 1997, one in 10 received treatment. This has occurred even in light of research suggesting inmates in federal prison who receive residential drug treatment are 73 percent less likely to be rearrested.

Of course, the lack of support for inmates goes beyond drug treatment. A significant majority of released inmates face challenges in housing, education, employment and the availability of assistance on release from incarceration. Imagine yourself as an unskilled, unemployed, homeless parolee, possibly prohibited from getting a driver's license, student loans or even access to public housing. What are your options?

Few, as Popovich found out. Sixty-seven percent of parolees nationwide are rearrested or back in prison within three years.

The costs of this are staggering. Between 1980 and 2000, when the total prison population quadrupled from 500,000 to 2 million, corrections' share of all state and local spending doubled while education's share of all state and local spending dropped by 21 percent. In fact, state spending on incarceration increased annually by 6.2 percent, outpacing health care at 5.8 percent, education at 4.2 percent and natural resources at 3.3 percent.

There is another way to look at how we are spending money on prisoners. The average annual cost to incarcerate an inmate in state prison is $22,650, according to the Bureau of Justice Statistics. If the cost of meaningful substance abuse treatment, skills training and reentry support added 25 percent to the cost of incarceration and reduced recidivism by 25 percent, states would face a short-term loss, then break even within six years and save money within nine. More importantly, there would be 75 to 100 fewer victims of crime for every 100 inmates during that period. With fewer victims, the nearly $450 billion in annual losses experienced by crime victims would also begin to decrease. Not to mention that 37 former inmates would be gainfully employed, paying taxes, raising families and contributing to the local, state and federal economies.

Unfortunately, few people think in these terms, and they often confuse the cause for the burgeoning prison population with measures designed to get tough on crime. Because of mandatory sentencing, criminals who committed multiple violent offenses, used weapons or sold drugs have been put behind bars. Such efforts have had an impact on violent crime. However, those who have paid their debt to society should be given an opportunity to succeed upon reentry into society. Instead they are being dumped on the street to fend for themselves and will eventually feed the cycle of reincarceration.

To complicate matters, in an effort to deal with the soaring costs, government leaders are arbitrarily releasing inmates. Kentucky, Oklahoma and Texas, to name a few, are opening prison doors, often commuting sentences or repealing mandatory drug sentences. This shortsighted reaction does nothing but put citizens at risk.

Parole and probation officers, burdened by ever-larger caseloads, struggle with their evolving roles in the criminal justice system. Inmates are normally released conditionally, for a period of parole for which they must comply with rules and regulations monitored by a parole officer.

With the enormous caseload that most parole officers handle -- 50 percent higher on average than it was in the mid-'70s -- interactive supervision has given way to electronic surveillance, rigid drug testing and mandatory reporting. Instead of providing support for a former inmate, parole officers have become quasi-law enforcement. They carry guns, wear badges and often re-incarcerate parolees for technical violations like failing to report or failing a drug test.

In 1985, 70 percent of parolees successfully completed their parole periods. By 2003, fewer than 47 percent were making it through their parole periods, according to national averages for state prisons. Those who violate their parole and are re-incarcerated account for 35 percent of all prison admissions -- the fastest growing area of incarceration.

There is some reason for hope. Organizations like the Chicago Project for Violence Prevention at the University of Illinois at Chicago, for example, provides innovative programs aimed at treating violence as a disease. The Chicago program, called CeaseFire, uses ex-offenders in much the way Alcoholics Anonymous uses recovering alcoholics to convey a message of recovery and hope. Some suggest that CeaseFire is part of the reason the homicide count in Chicago has dropped significantly from last year's nation-leading numbers. There were 393 homicides through the beginning of November 2004, down 126 from the same time the previous year.

Many progressive counties are considering reentry programs to assist former inmates to reintegrate into their communities. The programs vary in scope, but the emphasis is on providing life skills, employment opportunities, housing options and educational enhancement. Drug and alcohol treatment, mental health services and behavioral disorders are also provided. Through such efforts, the goal of local government is to help former inmates become productive, law-abiding citizens.

The federal government has also acknowledged that helping ex-offenders successfully reenter society can prevent and deter future criminal acts, although it has not allocated anywhere near the amount of resources needed to deal with the problem.

If men and women like John Popovich are to have a good chance of making a go of it on the outside, governors and state legislatures will ultimately have to deal with this issue, even in an era of declining state budgets. Logic dictates that re-incarcerating two out of every three offenders is a costly, self-defeating effort. A public official can still be tough on criminals while being smart on crime prevention by reducing the cycle of incarceration and, in turn, reducing costs and victimization.

Sunday, January 10, 2010

Clemency Comes Under Scrutiny

Senseless killings by paroled murderers constrain the political capacity for mercy

The Pennsylvania Law Weekly
January 11, 2010

The tragic murder of four police officers in Parkland, Wash., has created a fire-storm regarding the place of clemency in America's criminal justice system.

Maurice Clemmons walked into a coffee shop Nov. 29 where four Lakewood Police officers were working on laptop computers preparing for their upcoming shift. Without provocation or apparent motive, Clemmons gunned down the four police officers.

The shock of the senseless killings had barely set in when it was discovered that Clemmons had been sentenced to 108 years in an Arkansas prison and would not have been eligible for parole until 2015. He was a free man because Gov. Mike Huckabee commuted his sentence.

Huckabee was governor of Arkansas when Clemmons sought to have his sentence shortened. According to The Seattle Times, Clemmons wrote in his clemency application, "I succumbed to the peer pressure and the need I had to be accepted by other youth in my new environment and fell in with the wrong crowd and thus began a seven month crime spree which led me to prison." Clemmons also included in his petition that he came from "a very good Christian family" and "was raised much better than my actions speak."

Only time will tell if the maelstrom that erupted around Huckabee's commutation will have a chilling effect on the willingness of governors to grant clemency to violent offenders who have not completed lengthy sentences.

Clemency is a general term that encompasses a pardon, the forgiveness of a crime and the penalty associated with it; a commutation, the lessening of the penalty of the crime without forgiving the crime itself; and a reprieve, which is the temporary postponement of punishment.

Pennsylvania has experienced firsthand how a tragedy involving clemency can alter the political and criminal justice system landscape. In 1992, Reginald McFadden had served 24 years of a life sentence for murder. McFadden had sought a commutation and the Pennsylvania Board of Pardons recommended his release to Gov. Robert P. Casey. The board voted 4-1 in favor of McFadden's release. The sole dissenting vote was that of Attorney General Ernie Preate.

McFadden was released from prison and within two years he killed two people in New York. He is once again serving a life sentence.

McFadden's release had a significant impact on Pennsylvania. Lt. Gov. Mark Singel, who voted for McFadden's commutation as a member of the Board of Pardons. He was a candidate for governor when McFadden killed again. The Washington Post referred to Singel's campaign against Tom Ridge as "Willie Horton: part two."

Willie Horton was the lifer who was furloughed and committed a rape while Michael Dukakis was governor of Massachusetts. Horton's furlough was effectively used by President George H. W. Bush against Dukakis during the 1988 presidential campaign.

Ridge defeated Singel and moved quickly to change the Board of Pardon's procedure for recommending clemency for those serving life in prison or a death sentence. In 1997, an amendment to Pennsylvania's constitution was approved requiring a unanimous recommendation for clemency by the five-member Board of Pardons, for any petitioner serving life in prison or on death row.

What effect has the change in policy had on clemency? According to the New York Times, Gov. Milton Shapp, who served as Pennsylvania's governor from 1971 to 1978, granted clemency to 251 inmates serving life in prison. Ridge did not grant clemency to a single lifer. Gov. Mark Schweiker granted clemency to one lifer.

Gov. Edward G. Rendell has granted clemency to only two offenders serving life sentences. The most recent was last summer, when he commuted George Orlowski's life sentence. Early in Rendell's first term, the Board of Pardons sent him Orlowski's petition along with Michael Anderson's, whose life sentence was commuted in 2007. All in all, the Board of Pardons has recommended clemency for three lifers in the last 12 years. Since Attorney General Tom Corbett assumed office in 2005 no lifer has received a clemency recommendation by the Board of Pardons.

That is not to say that no one is receiving clemency in Pennsylvania. A 2006 investigation by the Pittsburgh Tribune-Review found that in the previous five years there were more than 2,900 applications for clemency filed with the Pennsylvania Board of Pardons. The board reviewed about 1,900 cases, and relief was granted in about a third of those filings. In most cases, clemency was granted for minor offenses, committed long ago by aged petitioners.

This past summer, U.S. District Judge A. Richard Caputo of the U.S. District Court for the Middle District of Pennsylvania gave some hope to many inmates serving life in prison even in light of the bleak history of clemency for lifers since 1997. Caputo ruled that applying the requirement for unanimous approval by the board to lifers sentenced prior to 1997 was an unconstitutional ex post facto law. This was the second time Caputo made such a finding. His decision in 2006 was overturned on appeal and remanded for further proceedings. The new decision opens the door to hundreds of lifers who were sentenced prior to 1997. Those petitioners would need only an affirmative vote from a majority of the Board of Pardons to put their petitions on the governor's desk. Judge Caputos' second ruling has also been appealed to the 3rd U.S. Circuit Court of Appeals.

Tyrone Werts and William Fultz were the first petitioners sentenced to life in prison prior to 1997 to appear before the Board of Pardons following Caputo's ruling. The board voted to delay any decision on the petitions.

Lt. Gov. Joe Scarnati, the board chairman, said that the board had little choice but to delay decisions on Werts and Fultz because of the uncertainty over which legal standard the board should apply. "We're not clear if we need three votes or a unanimous vote in order to pardon these two lifers. And to take a vote that may conflict with a court ruling weeks down the road, I think, would be inappropriate," he said.

Pennsylvania's "life-means-life" law, coupled with the near absence of clemency for those serving life sentences has far reaching implications. Pennsylvania has more than 4,000 inmates serving life in prison without the possibility of parole. Nearly 400 of those serving life sentences are inmates who committed their crimes as juveniles.

The purpose of executive clemency is to grant mercy where it is warranted, and to correct injustices that cannot, or are not, corrected by the judiciary. While clemency will not, and should not, be used to clear out death row or whittle away at the number of inmates serving life in prison, it is disconcerting that the need to show mercy or correct injustice was present in only three cases in 12 years.

Tuesday, January 5, 2010

New York crime stats impressive

Youngstown Vindicator
 January 3, 2010

New York City is only 93 miles north of Philadelphia. In terms of crime, they are worlds apart. New York is preparing to celebrate its lowest number of homicides since the city starting keeping track in 1962. On the other hand, Philadelphia currently holds the distinction of being the most violent of the 10 largest cities in America.
In 2008, Philadelphia’s murder rate was 23 killings per 100,000 residents. New York’s murder rate was six per 100,000. During the first half of 2009, the murder rate dipped 10-percent nationwide and to Philadelphia’s credit the murder rate dipped a little better at 11-percent. Yet, Philadelphia’s rate of homicide, rape, robbery and aggravated assault continued to outpace every other major U.S. city.
Can Philadelphia look to New York’s model as an inspiration for reform? Philadelphia needs to look somewhere for help—there is much that needs fixed. Last week, the Philadelphia Inquirer published a four-part series providing a stunning exposé of Philadelphia’s criminal justice system. Some of the most disturbing findings were:
• Only one in 10 people charged with gun assaults are convicted of that charge;
• Nationally, big city prosecutors win felony convictions in 50-percent of violent cases. In Philadelphia, prosecutors win 20-percent;
• Philadelphia has about 47,000 fugitives walking the streets who have jumped bail.
Most startling is that for a quarter-century the Inquirer has been sounding the alarm about Philadelphia's criminal justice system. In 1973, the Inquirer reported, "It is a system that really is no system at all and it has very little to do with justice." In 1986, they reported, "In a two-year investigation of Philadelphia's courts, the Inquirer has found a system that often delivers anything but justice." Recently, the Inquirer reported, "It is a system that all too often fails to punish violent criminals, fails to protect witnesses, fails to catch thousands of fugitives, fails to decide cases on their merits-fails to provide justice."
Philadelphia’s soon-to-be district attorney, Seth Williams, thinks that New York can be a model for change. The Inquirer recently reported that Williams talked admiringly of the Brooklyn District Attorney's Office, which has an entire unit dedicated to crime prevention. Williams said, "There has to be new ways to figure out what it means to be a D.A." He discussed the nontraditional ways of attacking crime, such as reaching out to community groups and schools.
New York Mayor Michael R. Bloomberg told the New York Times that he attributes declining crime rates to better race relations. He said, “Today, people understand that crime is a bad thing, but it is not an ethnic thing or race-based thing or a religious thing.”
That culture doesn’t seem to exist in Philadelphia. The system is rife with witness intimidation. Over 300 people a year are charged with witness intimidation and 13 witnesses, or their family members, have been murdered in the last decade.
New York’s success can also be attributed to efficiency and innovation. The Times reported that Police Commissioner Raymond M. Kelly said, “success can be traced to eight years of programs like Operation Impact, which attacks stubborn crime plateaus, and the Real Time Crime Center, which feeds detectives instant intelligence.”
There again, efficiency appears to be sorely lacking in Philadelphia. There is the embarrassing "bring-down problem." Until some recent changes, county officials had failed to bring defendants from county lock-up to the courtroom in one in four cases, often resulting in dismissal of the charges. Philadelphia has nearly 47,000 fugitive bail-jumpers. According to the Inquirer, the bail jumpers owe Philadelphia $1 billion. The clerk of courts acknowledged that there are no computerized records of the debts, only a notation in 47,000 different files.
Just 93 miles up the road there are promising practices that could help Philadelphia reinvent its criminal justice system. However, is there the will to implement meaningful reform? The new D.A. told the Inquirer, "We have to change this.” That much is obvious; yet the ability to achieve substantive change in Philadelphia has been elusive.