Sunday, May 30, 2010

NY Legislator Proposes Police No-Kill Bill

New York Assemblywoman Annette Robinson introduced a bill that would require cops to shoot to wound rather than shoot to kill. Similar bills have been proposed in the past as knee jerk reactions to police shootings.

Police officers are trained to shoot center mass. The center mass of a human is the torso or chest, which is the largest target on the body. Normally the police are instructed to fire two quick shots into the center mass. In New York the law provides, “A person may not use deadly physical force upon another person . . . unless: he or she is . . . a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction,”[35.15(2)(a)(ii)].

Robinson's bill would require police officers to shoot for the leg, arm or even the hand holding a weapon. The bill is unrealistic and dangerous. Imagine a suspect bearing down on a police officer with a AK-47 and in return the officer or officers make a split-second decision to shoot the suspect in the leg?

Police Commissioner Ray Kelly said the bill "makes no sense to anyone who knows anything about law enforcement." Robinson has admitted that she is one of those people who knows nothing. She told the New York Post, "Not being a police officer, I would not be able to discuss the instance or the time that happens, but I do know that it happens."

My Take

The bill is going no where. However, it is frightening that a legislator could support such a dangerous and irresponsible piece of legislation. The audacity to curry favor with your constituents at the expense of men and woman who put their lives on the line everyday.

The example above of a suspect with an AK-47 is not really a difficult decision. How about the knife wielding guy, high on meth charging at a police officer. Do you shoot to wound? Do you have time to think about it? Not if the officer or his colleagues want to survive. In a life-threatening situation, it is unrealistic for a police officer to do anything but take definitive action to insure complete and immediate incapacitation.

When considering what is at stake, it is clear that Robinson's efforts are more than political expediency, they are reprehensible and irresponsible.

To read more:

Saturday, May 29, 2010

CA Supreme Court: Jury Experiment Not Prejudicial

The California Supreme Court upheld a death sentence where one of the jurors conducted an outside experiment that he shared with fellow jurors. The juror made a diagram on a computer which was reviewed during deliberations. Originally, the trial judge granted a new penalty phase trial based on juror misconduct.

According to the Metropolitan News-Enterprise, the district attorney appealed and the Court of Appeals reversed the trial judge and remanded the case for sentencing. The case made its way to the California Supreme Court.

The Supreme Court upheld Scott Forrest Collins’ convictions and sentence on charges of first degree murder, robbery, and kidnapping for robbery, with special circumstances of kidnapping-murder and robbery-murder. A Los Angeles Superior Court judge sentence Collins to death for the murder.

Justice Carol Corrigan, writing for the high court, cited a series of cases dating back a century and explained that a jury room experiment is only improper if it involves matters extrinsic to the evidence presented in the courtroom, according to the News-Enterprise.

“Within the range discussed by Dr. Sherry [the pathologist who conducted the autopsy] and the variety of possible physical positions, jurors conducted a demonstration to evaluate alternatives that could have produced the downward trajectory of Rose’s wound,” wrote Justice Corrigan. “The jurors directed Juror C.C. to assume various positions. They specifically examined the prosecution’s theory that (victim) was ‘executed’ while on his knees, and also considered whether (victim) was shot while standing with his head tilted back. Their evaluation critically considered the evidence presented. It did not invade a new field.”

According to the News-Enterprise, Corrigan also said there was nothing improper about a juror making a diagram to confirm what his own experiences told him about the evidence.

Justice Corrigan further wrote,“Juror G.B’s computer use was part of his individual contemplation of the evidence after the matter had been submitted to the jury.... The jury’s demonstration in the deliberation room was simply a ‘more critical examination’ of the evidence admitted....In neither situation did jurors receive extrinsic evidence. As a result, there was no basis for the trial court’s conclusion that jurors committed misconduct, and thus no basis for granting of a new penalty phase trial.”

To read more:

Friday, May 28, 2010

DOJ Supports Judicious Use of Mandatory Sentences

U.S. Attorney for the Northern District of Georgia Sally Quillian Yates testified on behalf of the Justice Department at a Sentencing Commission Hearing. In her prepared testimony, Yates noted that "We support the continued but judicious use of mandatory minimum sentencing statutes."

Yates also expressed that there is not much support in Congress or within the federal criminal justice system for a major change in federal sentencing. Although she acknowledged that mandatory minimum sentencing laws have placed a strain on the federal prison system, disparately impact demographic groups and result in undue leniency for white collar crimes and some child exploitation offenses.

According to Main Justice, When pressed by members of the commission, Yates would not say which of the 170 mandatory minimums the Justice Department did not believe were necessary. She said the department’s position was that the commission should recommend to Congress which statutes should be revised, but said the DOJ would be happy to work with the commission.

To read more:

Thursday, May 27, 2010

SCOTUS Will Hear Another DNA Case

The U.S. Supreme Court has agreed to hear another post-conviction DNA case. In Skinner v. Switzer, No. 09-9000 the Court will decide whether a prisoner can seek DNA testing by means of a civil rights claim pursuant to 42 U.S.C. 1983.

Last summer, the U.S. Supreme Court avoided making that very decision in District Attorney's Office v. Osborne, 557 U.S. ___ (2009). Many Court observers thought that Osborne would ultimately test the Heck doctrine. The court ruled in Heck v. Humphrey, 512 U.S. 477 (1994), a prisoner in state custody may not sue under 1983 to challenge the fact or duration of his confinement. A state offender may only pursue a challenge to his conviction through habeas corpus.

William G. Osborne was convicted in Alaska of kidnapping and sexual assault. He raped, beat and shot in the head a prostitute near the Anchorage Airport. After his conviction, Osborne sought a more definitive means of DNA testing for evidence used to convict him. Prior to trial he sought a method of testing that would only “not eliminate” him as a suspect. He wanted some wiggle room to argue that he was not responsible for the victim’s death.

The Federal Court of Appeals for the Ninth Circuit ordered Alaska to turn over the evidence requested by Osborne. The matter was appealed to the Supreme Court. The Court never got to the issue of Heck and the right to challenge a conviction through a 1983 claim.

Instead the court focused on Osborne’s contention that pursuant to the due process clause of the Fourteenth Amendment he was entitled to retest DNA through a new method at his own expense. The court refused to recognize a free-standing due process right to DNA evidence, separate from a claim seeking vindication. Chief Justice John G. Roberts wrote for the majority, “Moreover to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by congress and the states.”

The Supreme Court will now have another chance to review Heck. In 1995, Skinner was convicted of the brutal strangulation and beating death of his girlfriend and the stabbing deaths of her two adult sons. Skinner asserts that he was intoxicated to the point that he could not have possibly carried out the murders. On the evening of the murders he showed up at a former girlfriend’s house in bloody clothing and with a knife wound on his hand.

Skinner's appeals were denied. His habeas corpus, state and federal, petitions were denied. He sought to have evidence retested for DNA purposes. He finally filed a civil rights suit pursuant to 42 U.S.C. 1983. The District Court dismissed the complaint and the Fifth Circuit Court of Appeals affirmed. The Supreme Court granted certiorari.

The Court will not make a decision until 2011.

To learn more:

Wednesday, May 26, 2010

Philadelphia DA Looks to be on Cutting Edge

The Philadelphia District Attorney's Office is exploring the use of technology to make their prosecutions more efficient and transparent. District Attorney Seth Williams, has obtained a $492,000 grant to equip his office with software that, for the first time, will be able to routinely produce conviction data, according to the Philadelphia Inquirer. Eventually, his office plans to make the results publicly available on what it says will be a greatly retooled office website.

"Seth's view is that this stuff should be open and transparent," said Sarah Hart, deputy district attorney for performance and policy, a new post. "I suspect it won't always be pretty, but it's important we shine a light on it," Hart told the Inquirer.

Hart said the office's new software would remedy that, producing data showing not only how many cases fail to end in conviction, but the precise reasons.

The office will seek to scientifically measure such factors as threats to witnesses, the number of times a witness has to show up in court per case, and much more.

With a new "attrition analysis" in hand, Hart said, the office will be able to fix key breakdown points.

M. Elaine Nugent-Borakove, president of the nonprofit Justice Management Institute and an expert on prosecutorial policy, told the Inquirer that Hart's project appeared to be on the cutting edge in a field where data are sometimes scarce or not shared with the public.

To read more:

Tuesday, May 25, 2010

Parole Violator Found Not-Guilty of 41-year-old Murder of Police Officer

According to the Philadelphia Daily News, William J. Barnes was found not guilty yesterday of murdering a former Philadelphia Police Officer who died 41 years after Barnes shot him.

The Daily News article is below:

Though Barnes, 74, cried tears of joy after a jury found him not guilty of first-, second- and third-degree murder in the August 2007 death of former Officer Walter Barclay, he could still stay behind bars for years, due to parole violations, according to attorneys on both sides of the case.

Despite that, Barnes savored yesterday's verdict, which came after a day and a half of jury deliberations and a weeklong trial in Common Pleas Court.

"Thank you, all," the tall, white-haired man said as the jury of nine women and three men left the courtroom, which was filled with about 15 members of his family and friends.

"That's the first time I've seen him cry in his life. My brother's a tough old convict," Jimmy Barnes, 57, said minutes after the verdict was read.

Barclay's sister, Rosalyn Harrison, cried too, but her tears were from disappointment.

She stormed out of the courtroom immediately after the verdict.

Surrounded by police officers including Fraternal Order of Police President John McNesby, Harrison, 71, declined to speak with reporters as she left the Criminal Justice Center.

After living paralyzed in a wheelchair for 41 years, Barclay died at age 64 of a urinary-tract infection that the District Attorney's Office said was a direct result of being shot by Barnes during a 1966 burglary of an East Oak Lane hair salon.

Barnes, a career criminal known as the Cowboy, shot the 23-year-old rookie cop in the leg and shoulder, partially severing his spinal cord.

Barnes served 16 years for the shooting, made parole and was working at a Roxborough grocery store when he was charged with murder in September 2007.

He was arrested with a cell phone and a set of car keys in his pocket - both violations of his parole terms.

"He has these technical parole violations that he's in on. He has to go before the parole board before he can get out," said defense attorney Samuel Silver.

Barnes is not scheduled to go before the board until 2013.

Assistant District Attorney Edward Cameron said Barnes has four years remaining on the 10-to-20 year sentence he received for shooting Barclay, while other crimes he committed after making parole in the early 1980s could keep him locked up until 2030.

"We're still of the opinion that he caused the death of Officer Barclay. I just think that the time element was a little too much for the jury to overcome," said Cameron, adding that he'd encourage Harrison and the FOP to oppose Barnes' receiving parole.

"Your heart breaks for the family that came in and shared what this time was like for [Barclay] and how difficult and debilitating this injury was," said Assistant District Attorney Bridget Kirn, who tried the case with Cameron.

Silver, who called only one witness during the trial, said he was "obviously thrilled, relieved and gratified for a job well-done by the jury."

During the trial he argued that linking Barclay's gunshot wound to his death 41 years later wasn't plausible because he had accumulated a mountain of unrelated medical maladies over the ensuing decades.

Among them, Silver noted, were injuries from three car accidents, two falls from a wheelchair and nightmarish neglect and abuse at the hands of caregivers who were paid to take care of Barclay during the final decade of his life.

"[Barnes] has long expressed remorse and regret for shooting Officer Barclay, but he did not feel that that shot or shots caused Officer Barclay's death," Silver said.

FBI: Violent Crime Down 5.5%

Press Release
May 24, 2010
FBI National Press Office

Preliminary 2009 statistics indicate that violent crime in the nation decreased 5.5 percent and property crime declined 4.9 percent when compared with data from 2008, according to the FBI’s Preliminary Annual Uniform Crime Report, which was released today. Data in the report came from 13,237 law enforcement agencies that submitted six to 12 months of data in both 2008 and 2009.

Violent Crime

All four violent crime offenses—murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault—declined nationwide in 2009 when compared with 2008 data. Robbery dropped 8.1 percent, murder decreased 7.2 percent, aggravated assault declined 4.2 percent, and forcible rape decreased 3.1 percent.
Violent crime fell in all city groupings. The largest decrease, 7.5 percent, was in cities with populations ranging from 500,000 to 999,999 inhabitants. Violent crime declined 4.0 percent in the nation’s metropolitan counties and 3.0 percent in nonmetropolitan counties.
Cities with 25,000 to 49,999 inhabitants were the only city population group to report an increase in the number of murders, 5.3 percent. The number of murders in the nation’s nonmetropolitan counties also rose, 1.8 percent.
Forcible rape trends dropped in all city population groups. The largest decrease was 7.3 percent in cities of less than 10,000 residents. Metropolitan counties reported a 3.7 percent decline in the number of rapes, but the number of rapes reported in nonmetropolitan counties rose slightly, 0.3 percent.
All population groups reported decreases in the volume of robbery in 2009. Of the city groups, cities with populations of 100,000 to 249,999 had the largest decrease at 10.3 percent. Metropolitan counties reported a 6.7 percent drop in robberies; nonmetropolitan counties reported a 0.7 percent decline.
The number of aggravated assaults declined in all population groups, with cities of 500,000 to 999,999 inhabitants reporting a 6.3 percent decrease. Aggravated assaults declined 3.7 percent in nonmetropolitan counties and 3.0 percent in metropolitan counties.
All four regions in the nation showed decreases in violent crime in 2009 when compared with data from 2008. Violent crime decreased 6.6 percent in the South, 5.6 percent in the West, 4.6 percent in the Midwest, and 3.5 percent in the Northeast.

Property Crime

All property crime offenses—burglary, larceny-theft, and motor vehicle theft—decreased in 2009 when compared with 2008 data. Motor vehicle theft showed the largest drop in volume at 17.2 percent, larceny-thefts declined 4.2 percent, and burglaries decreased 1.7 percent.
The nation’s largest cities, one million or more inhabitants, reported the greatest decrease, 7.9 percent, in property crime overall. Of the city groupings, this population group also reported the biggest decreases in the offenses that comprise property crime: a 21.1 percent drop in motor vehicle theft, a 5.7 percent decline in burglary, and a 5.5 percent decrease in larceny-theft. In the nation’s nonmetropolitan counties, larceny-thefts fell 9.5 percent; in metropolitan counties, larceny-thefts declined 5.9 percent.
The only population group to indicate a rise in any type of property crime was in nonmetropolitan counties, where burglary rose 0.5 percent.
In comparing 2008 data and 2009 data by region, law enforcement agencies in the West reported the biggest decline in property crime, with a decrease of 6.8 percent. Property crime declined 5.6 percent in the Midwest, 5.3 percent in the Northeast, and 3.2 percent in the South.


Arson offenses, which are tracked separately from other property crimes, declined 10.4 percent nationwide. All population groups reported decreases in the volume of arson offenses. In addition, arson fell in all four of the nation’s regions: 11.6 percent in the West, 10.6 percent in the South, 9.2 percent in the Midwest, and 8.6 percent in the Northeast.

The complete 2009 Preliminary Annual Uniform Crime Report is available exclusively at

Sunday, May 23, 2010

Colorado Senator Exposed for Self Dealing

Colorado state Sen. Joyce Foster, has undermined the reauthorization of the Sex Offender Management Board. She attached a last minute amendment to the bill modifying the manner in which sex offenders are assigned to treatment. Foster's amendment gave sex offenders a choice of three treatment programs instead of being assigned to a specific program.

The proposal was passed by a voice vote of the legislature. The amendment doesn't sound completely outrageous until you hear the motive. Foster said a treatment agency she thinks mistreated her brother-in-law should be barred from working for the state. Her brother-in-law, Julian Neuman, was a convicted sex offender in Wisconsin. He was involved in treatment with Teaching Human Existence (THE). Due to program failures Nueman was returned twice to authorities in Wisconsin.

Foster, without disclosing her family connection to the program, THE, criticized the provider, saying on the Senate floor, "I personally don't even think (THE) should be on the provider list," as she introduced the amendment, according to the Denver Post.

Governor Bill Ritter has vetoed the bill leaving the Sex Offender Management Board in jeopardy. Ritter's decision will force the legislature to quickly decide early in 2011 whether to reauthorize the board.

According to the Denver Post, Ritter vetoed the bill because, "On an issue that is this critical to public safety and the overall success of the sex-offender treatment program, this failure of adequate vetting and thorough debate constitutes a fatal flaw with the bill."

My Take

Senator Foster's selfish, personal crusade to cause harm to a program that has been widely described as "cutting edge" and "excellent" is the embodiment of a self serving politician. Foster's reckless disregard for the safety and security of the citizens of Colorado is a clear example of why there is disdain for public officials.

Although it is common for lawmakers to use their considerable power to make backroom deals that can harm people or interests we don't often get to see such conduct on the assembly floor. Foster was not politically savvy enough to get this down in private. Instead, she attacked THE when introducing her amendment. For this THE should be grateful, a more skilled politician would have destroyed THE before they knew what hit them.

Foster's antics go on around the country--we just never hear about them.

To read more:

Saturday, May 22, 2010

Greenblatt: Should Juveniles be Charged as Adults?

Alan Greenblatt wrote and interesting article for Governing Magazine about the age that young people should be afforded responsibility for their conduct. Greenblatt looked at everything from driving to drinking alcohol. The article also explored prosecuting juveniles as adults. Below is an excerpt from Greenblatt's article, particularly as it relates to criminal behavior and punishment, "What is the Age of Responsibility?"

Some states are starting to rethink the wisdom of sending 13-year-olds to spend hard time among older, more experienced criminals. According to the federal Centers for Disease Control and Prevention, youths who had previously been tried as adults are 34-percent more likely to commit a crime again than those who went through the juvenile justice system. Not only do young offenders treated as adults reoffend sooner and more frequently, they're also more likely to go on to commit violent crimes.

On this matter, states are finding, nothing is more persuasive than crime data. Despite all the media attention given years ago to superpredators, the vast majority of youth crimes involve property theft and drugs and seldom involve murder. And while there are still roughly 250,000 juveniles tried each year, the rate of crime for this cohort, as measured by arrests, has gone down in each of the past 15 years.

Tough policies toward juveniles remain prevalent, but a few states have begun loosening up. In 2005, Illinois ended its policy of automatically transferring juvenile misdemeanor cases to adult courts, leaving the decision up to judges. A follow-up study found a dramatic drop in the number of cases referred to adult court, suggesting that most of the old automatic transfers had not involved serious crimes.

As of January 1, Connecticut will end its policy of treating all offenders 16 and up as adults. A similar proposal in North Carolina stalled this summer. While the latest research and crime statistics have opened up room for a fresh debate about juvenile justice, that space could evaporate at any time. There's no telling when a high-profile teen crime may catch the attention of cable news. "If we have another crime wave for whatever reason," says Shay Bilchik, of the Center for Juvenile Justice Reform, "it will be very difficult to resist going back to lock 'em up."

It's precisely because policy toward teens can be so random and emotionally charged that some people find the discoveries about brain development reassuring. The brain scans are putting hard science behind what anyone who has raised an adolescent knows--that young people simply aren't always capable of making good decisions.

Increasingly, this scientific evidence is being introduced in regard to juvenile justice. In 2005, the U.S. Supreme Court struck down the juvenile death penalty after receiving stacks of briefs summarizing the latest adolescent brain research. The justices will surely get an update on the science this fall when they hear a pair of cases from Florida meant to determine whether sentencing juveniles to life without parole constitutes cruel and unusual punishment.

NOTE: The Supreme Court, since the publication of this article, struck down life in prison for juveniles who commit nonhomicide offenses, Graham v. Florida, 560 U.S. ___ (2010). Justice Anthony M. Kennedy did cite the neuroscience that was addressed in Roper v. Simmons, 543 U.S. 551 (2005).

Scientists now regularly appear before legislative committees, showing pictures that make clear the developmental differences between a 16-year-old brain and that of a 25-year-old. The scans show, in the words of Temple University psychologist Laurence Steinberg, that juveniles may be "less guilty by reason of adolescence."

But while brain research is "sexy," Steinberg says, it hasn't necessarily persuaded legislators that they need to change laws regarding crime and punishment. Nor has it fundamentally changed the way policy makers view the age of responsibility in terms of when young people can drink, smoke or drive. The conclusion that 25 might be the most scientifically defensible age for any of those things is simply a nonstarter politically. Texas state Representative Jerry Madden says he's sympathetic to the argument that "the brain isn't fully developed until 25, and that's when people should be allowed to do certain things." But he says he suggested to a brain scientist who once made that case to him that "she could carry that bill--I wasn't going to."

Even scientists are cautious about leaning too hard on the neurobiology. Research linking brain structure to actual human behavior is still limited. And neuroscientists are clear about the fact that different parts of the brain mature along different timetables. In other words, executive thinking may not reach its peak until 25 but most people are capable of performing many adult functions adequately at an earlier age--probably between 16 and 21. "We're very early in the curve of finding out how the brain research should be interpreted," says Ronald Dahl, a professor of pediatrics and psychiatry at the University of Pittsburgh.

To read more:

Friday, May 21, 2010

Death Penalty Likely Issue in California Elections

The California Democratic Party has formally come out in favor of abolishing the death Penalty. According to the San Francisco Chronicle, the platform plank was approved April 18 at the party's convention in Los Angeles. The plank includes a declaration that Democrats will "replace the death penalty with a term of permanent incarceration, which will serve to protect the public, provide swift and certain justice for victims' families, and save the state an estimated $1 billion over the next five years."

The Chronicle reported that nationally, the Democratic platform backed capital punishment from 1992 through 2000 but took no position in 2004, with death penalty opponent John Kerry heading the ticket. The platform in 2008, with Barack Obama as the candidate, said only that "the death penalty must not be arbitrary," and that defendants should have competent lawyers and access to DNA testing.

California has the nation's largest Death Row, with more than 700 inmates, but has executed only 13 men since 1992, when the current law was implemented. Executions have been on hold since 2006, when a federal judge found that the state's lethal injection methods could inflict prolonged and excruciating pain on a condemned inmate. However, the U.S. Supreme Court has found that lethal injection does not violate the Eighth Amendment ban against cruel and unusual punishment, Baze v. Rees, 553 U.S. 35 (2008).

According to the Chronicle, Republican candidates are likely to raise the capital-punishment issue this fall against Attorney General Jerry Brown the likely Democratic nominee. Brown has been an outspoken opponent of the death penalty. The state Republican Party platform supports the death penalty for murder.

To read more:

Thursday, May 20, 2010

Prison Budgets Slashed: At What Cost?

The recession, and the drain it’s put on state budgets, has produced significant cost cutting in many state legislatures according to The trend in corrections this year is much the same as it was in 2009 — the first year in a long time that state spending on prisons actually went down. Lawmakers are still searching for savings anywhere they can find them. examined a number of states that are cutting back on corrections cost in a way that could jeopardize public safety.

In Kansas,lawmakers have slashed funding for substance-abuse treatment slots at the heart of the state’s community corrections program. The program, create in 2007, was model for other states and had a significant impact on recidivism. The bad economy isn’t just resulting in budget cuts for corrections. The tough job market also is intensifying the strain on those released from prison — which can increase the chances that some will return to crime. Already, the state finds itself 120 prisoners over capacity.

The same is true in Oklahoma. “We have no drug treatment programs at medium security or above (facilities),” says Justin Jones, director of the Oklahoma Department of Corrections. “We eliminated all sex offender treatment, even though it was mandated by statute. We have reduced our staffing to below 75 percent of what is authorized.”

More than most states, Oklahoma is an example in austerity. The Department of Corrections has absorbed a 10-percent cut in the current fiscal year, and Jones is bracing for additional cuts of up to 7.5 percent for the fiscal year that begins in July. What other states only now are slashing from their prison budgets, Jones says, Oklahoma cut years ago. It is one of very few states, for example, to double-bunk its death-row inmates, and even the tiny portion of the corrections budget that pays for inmate programs — as opposed to employee salaries and other operational costs — has been cut by 50 percent, according to Jones.

In New Jersey, which has among the largest budget deficits in the nation, the head of the state corrections department recently outlined the steps he would have to take to make ends meet. The cuts range from more double-bunking to the most mundane details of daily prison life: Inmates’ work boots will be replaced by cheaper sneakers.

State lawmakers, meanwhile, are realizing that some prison budget cuts they have approved can be counterproductive from a political point of view. California, Illinois and Oregon each have tried to thin their prison populations — and cut costs — by allowing thousands of inmates to shave time off their sentences through earned-time credits and other forms of accelerated release.

To read more:

Wednesday, May 19, 2010

Supreme Court Upholds Civil Commitment

This week the U.S Supreme Court upheld the indefinite detention of sexually violent federal offenders. The Court had previously upheld civil commitments on a state level in Kansas v. Hendricks, 521 U.S. 346 (1997). In fact there are eight men in prison in Pennsylvania who have completed their sentence. Pennsylvania is one of 20 states that provide for the civil commitment of sexually dangerous offenders. There are more than 3,600 men, and some women, committed or detained across the country.

This week the U.S. Supreme Court decided a challenge to the federal government’s authority to impose civil commitments through 18 U.S.C. § 4248, which authorizes federal district courts to order the civil commitment of sexually dangerous federal prisoners even after they have served their criminal sentences.

In U.S. v. Comstock, 560 U.S. ___ (2010), the High Court was asked to decide if the federal government usurped the power of the states through the Adam Walsh Act. Graydon Comstock was sentenced to three years in prison for possession of child pornography. Just days before the end of his sentence he was designated “sexually dangerous,” was civilly committed, and has been kept in a North Carolina institution for the last two years along with 105 other similarly situated men.

Solicitor General Elena Kaganargued the government's case in front of the Supreme Court. Kagan has now been nominated to replace the retiring Justice John Paul Stevens.

Writing for a 7 to 2 majority, Justice Stephen Breyer penned the opinion that upheld the federal civil commitment statute. Chief Justice John G. Roberts joined Breyer's opinion in full. Although disagreeing with some of the language in the majority opinion, Justices Anthony Kennedy and Samuel Alito each wrote a separate opinion agreeing with the result. Only Justices Clarence Thomas and Antonin Scalia dissented.

The Court found, after close scrutiny of five considerations, it was compelled to conclude that Article I’s Necessary and Proper Clause granted Congress authority sufficient to enact 18 U.S.C. § Section 4248.

First, the Court emphasized that Congress has broad powers to create federal crimes to further various enumerated powers. Congress can then ensure enforcement of these crimes, and guarantee the safety of those who may be affected, by imprisoning offenders in federal prisons.

Second, Congress has long enacted prison-related mental health statutes. There are laws that permit the postdetention civil commitment of federal prisoners who are deemed mentally ill and dangerous.

Third, as a custodian of its prisoners, the federal government has a responsibility to protect the public from the dangers created by an individual’s release from federal custody. Congress could have reasonably concluded that some federal inmates suffer from a mental illness that causes them to "have serious difficulty in refraining from sexually violent conduct."

Fourth, Section 4248 does not interfere with or limit state sovereign authority. The Necessary and Proper Clause is not “reserved to the States.”

Finally, Section 4248 is narrow, applying only to a small fraction of prisoners.

Justice Breyer concluded, "Taken together, these considerations lead us to conclude that the statute is a "necessary and proper" means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute."

To read full opinion:

Is the Door Open to Further Eighth Amendment Scrutiny?

Professor Douglas A. Berman of Ohio State University in his Sentencing Law and Policy blog suggested, as I did in yesterdays posts, that Chief Justice Roberts concurring opinion in Graham v. Florida, 560 U.S. ___ (2010) may be a harbinger of coming scrutiny of the Eighth Amendment jurisprudence.

Professor Berman wrote:

Third and perhaps most consequential, Chief Justice Roberts' Graham concurrence could readily be seen as an invitation to a more robust consideration by lower courts of the Eighth Amendment as a real limit on all sorts of non-capital sentences. Footnote 1 of the Graham dissent of Justice Thomas makes this point clear:

Both the Court and the concurrence do more than apply existing noncapital proportionality precedents to the particulars of Graham’s claim. The Court radically departs from the framework those precedents establish by applying to a noncapital sentence the categorical proportionality review its prior decisions have reserved for death penalty cases alone. The concurrence, meanwhile, breathes new life into the case-by-case proportionality approach that previously governed noncapital cases, from which the Court has steadily, and wisely, retreated since Solem v. Helm, 463 U.S. 277 (1983).

I do not see anything in the Chief's concurrence that suggests he is troubled with his concurrence being read to "breath[] new life into the case-by-case proportionality approach." In fact, I see the Chief's failure to take issue with Justice Thomas' characterization as evidence that he would like to breath new life into Eighth Amendment review of non-capital sentences. And if this is true, perhaps we may see the Justices taking up more and more Eighth Amendment challenges to non-capital sentences during the Roberts era.

Tuesday, May 18, 2010

Graham v. Florida: A Brief Analysis

The U.S. Supreme Court has banned life without parole for juvenile nonhomicide offenders. In Graham v. Florida, 560 U.S. ___ (2010), the high court held that Terrance Graham, who was sentenced to life in prison as a juvenile for a burglary and robbery, is entitled to some opportunity to have his sentence reviewed for the purpose of release. In doing so the Court held that “the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.”

Graham appears to be another in a line of cases that have restricted the use of the death penalty and the imposition of punishment with regard to juveniles.

In Graham, the court suggested that there are two methods to review punishment for purposes of determining a violation of the Eighth Amendment ban against cruel and unusual punishment. The proportionality approach which looks for unconstitutionally excessive punishment for a particular crime. The second approach focuses on a category of offenders. Prior to Graham the categorical approach had only been applied to the death penalty.

The categorical approach had been recently used to ban the death penalty for nonhomicide offenses, Kennedy v. Louisiana, 554 U.S. ___ (2008); the execution of the mentally retarded, Atkins v. Virginia, 536 U.S. 304 (2002); and the execution of juveniles, Roper v. Simmons, 543 U.S. 551 (2005).

The analysis for the categorical approach begins with “indicia of national consensus.” The Court acknowledged, but rejected, Florida’s suggestion that there was no national consensus against juvenile life without parole because only 6 states specifically ban life in prison for juveniles. The Court held that “there are measures of consensus other than legislation.”

It is interesting that the Court would downplay legislation when in fact the Court relied on legislative action in both Roper and Atkins when the Court noted that 35 states had abolished the death penalty for the mentally retarded and juveniles.

The Graham Court relied on the fact that only 129 juveniles were serving life sentences for nonhomicide offenses nationwide. Seventy-seven were in Florida and the remaining 52 were spread across only 10 states. All in all 12 jurisdictions were imposing life in prison for nonhomicide committing juveniles.

Those findings were used by the court to demonstrate a national consensus. The Court specifically found, “The comparison suggests that in proportion to the opportunities for its imposition, life without parole sentences for juveniles convicted of nonhomicide crimes is as rare as other sentencing practices found to be cruel and unusual.” Namely those sentenced to death for crimes other than murder, Kennedy; and the execution of the mentally retarded, Atkins.

Justice Anthony M. Kennedy wrote for the 5 to 4 majority in Graham as well as the opinions in Roper and Kennedy. In Roper, Justice Kennedy wrote that juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” In Graham, Justice Kennedy wrote, "No recent data provide reason to reconsider the Court’s observations in Roper about the nature of juveniles. As petitioner’s amici point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”

When Justice Kennedy alluded to the Roper opinion it suggested that the Court will soon be reviewing other forms of punishment for juveniles. Although, Graham seems to leave open the possibility for the continued use of life in prison for juvenile killers, the use of the brain development data lends itself to arguing that life without parole is inappropriate for any juvenile offender regardless of offense.

Only 13 years before Roper the Supreme Court, in Stanford v. Kentucky, 492 U.S. 361 (1989), upheld the execution of juveniles 16 years of age and older. In that short period of time the Court found “evolving standards of decency that mark the progress of a maturing society,“ and outlawed the execution of juveniles. Currently there are over 2,500 juveniles serving life without parole. Forty-four states, the District of Columbia and federal government currently have statutes that permit the sentencing of juveniles to life in prison.

The Graham Court also dismissed any penological justification for juvenile life without parole. The Court methodically reviewed retribution, deterrence, incapacitation and rehabilitation. None were enough to convince the Court to continue with juvenile life without parole for nonhomicide offenses.

Finally the court examined the sentencing practices of other nations. The Court found a worldwide consensus against the practice of sentencing juveniles to life in prison.

In the end, the Court did not find that states must provide parole for juveniles. The Court even acknowledged that some juveniles may be “irredeemable” and therefore should spend the rest of their life in prison. The Court concluded, “A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

Another interesting aspect of this decision is the concurring opinion of Chief Justice John G. Roberts. While Chief Justice Roberts would not extend the ruling to all young offenders who are serving life for nonhomicide offenses, he did find that Graham's punishment was not proportional to the offense.

More importantly, Chief Justice Roberts acknowledged that juveniles are generally less culpable than adult offenders as established by Roper. Chief Justice Roberts' opinion was a departure from the conservative block of the Court and it may be a signal that the Chief Justice is willing to compromise on Eighth Amendment issues.

To read full opinion:

Monday, May 17, 2010

Supreme Court Upholds Indefinite Confinement of Some Sex Offenders

The U.S. Supreme Court has upheld the federal law authorising the civil commitment of sex offenders.

According to the New York Times, the civil commitment law allowed the federal government to continue to detain prisoners who had engaged in sexually violent conduct, suffered from mental illness and would have difficulty controlling themselves. If the government was able to prove all of this to a judge by “clear and convincing” evidence — a heightened standard, but short of “beyond a reasonable doubt” — the court may hold such prisoners until they are no longer dangerous.

Justice Stephen G. Breyer writing for a 7 to 2 majority held, that the civil commitment law satisfied the standard providing for, “the government’s custodial interest in safeguarding the public from dangers posed by those in federal custody.”

To read more:

ALERT: Supreme Court Bans Life in Prison for Some Juveniles

Associated Press
May 17, 2009

The U.S. Supreme Court has ruled that juveniles may not be locked up for life without a chance of parole if they haven't killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

"The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law," Justice Anthony Kennedy wrote in his majority opinion. "This the Eighth Amendment does not permit."

Chief Justice John Roberts agreed with Kennedy and the court's four liberal justices about Graham. But Roberts did not join the majority opinion as it applies to all young offenders who are locked up for crimes other than murder.

The decision in Graham v. Florida, No. 08-7412 will be explored in more detail in future posts.

To read more:

Sunday, May 16, 2010

AG Holder Seeks Miranda Exception for Terrorists

Attorney General Eric Holder has announced the Obama Administration's intention to ask Congress to create an exception to the Miranda rights warning for terrorists. Miranda forbids prosecutors from using statements made to police before suspects have been warned that they have a right to remain silent and to consult a lawyer.

The instructions were named for Ernesto Miranda who, in 1963, was arrested for robbery. While in the midst of a custodial interrogation by police he confessed to raping an 18 year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to 20 to 30 years in prison. Miranda appealed and his case made its way to the U.S. Supreme Court.

The Supreme Court ruled in favor of Miranda and suppressed his confession. In Miranda v. Arizona, 384 U.S. 436 (1996), the court imposed the following procedures to safeguard a suspect’s Fifth Amendment privilege against self-incrimination: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

In two recent terrorist attempts in the U.S., Detroit and New York City,the administration relied on an existing exception to Miranda for immediate threats to public safety. That exception was established by the U.S. Supreme Court in New York v. Quarles, 467 U.S. 649 (1984). According to the Supreme Court, Miranda warnings did not need to be administered when there was an imminent threat to public safety. Anything a person said, self-incriminating or not, could be used by the police to prevent further crimes or violations of the law where it is within the authority of the police to intervene, whether or not that intervention violates the interest of the person from whom the police obtained the information.

Attorney General Holder contends that the imminent threat exception doesn't go far enough. According to the New York Times, Holder defended the legality of the delays in the Detroit and New York City cases, noting that the Supreme Court had set no time limit for use of the public-safety exception. He also indicated uneasiness about the executive branch unilaterally pushing those limits, and called for Congressional action to allow lengthier interrogations without Miranda warnings in international terrorism cases.

“If we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception,” Holder, quoted in the Times, said, “And that’s one of the things that I think we’re going to be reaching out to Congress to do: to come up with a proposal that is both constitutional but that is also relevant to our time and the threat that we now face."

To read more:

Saturday, May 15, 2010

Washington State Law to Transfer Mentally Ill to Prison

This spring Washington Governor Chris Gregoire signed into law a provision that would allow the Secretary of the Washington Department of Social and Health Services to move a patient found not guilty by reason of insanity, from a hospital to a prison.

The law does not provide for a hearing, legal counsel, or any other due process measures to stop the government from moving a patient, acquitted of a crime, to prison. The law only requires the government to make a written statement that the person can’t be managed in the hospital because of security concerns. The patient cannot object, request a review or have a hearing on the matter.

Before the bill was signed into law a number of organizations that represent the interests of the mentally ill, as well as the ACLU, and criminal defense attorneys encouraged the governor to veto the bill on the basis of its questionable constitutionality.

The law imprisons people who have been found not guilty. If that were not repugnant enough to the rights and liberties afforded by the U.S. Constitution think about the following; the law deprives individuals of due process and assistance of counsel, it violates double jeopardy by punishing people for crimes for which they were acquitted, it violates ex post facto by creating a new punishment retroactively and it singles out for punishment individuals with an acknowledged disability-mental illness.

The ill conceived nature of this law becomes even more poignant with the release of a recent survey by the National Sheriffs' Association and the Treatment Advocacy Center that found 3.2 times as many seriously mentally ill people in prisons than in hospitals. Couple those prison findings with the explosion of people suffering from debilitating mental illness and a law like the one in Washington come into clearer focus.

In Anatomy of an Epidemic, Robert Whitaker describes the extent of debilitating mental illness in America. The number of adults, ages 18 to 65, on the federal disability rolls due to mental illness jumped from 1.25 million in 1987 to four million in 2007. Roughly one in every 45 working-age adults is now on government disability due to mental illness.

The future doesn't look very promising. The epidemic has extended to the nation's children. The number of children who receive a federal payment because of a severe mental illness rose from 16,200 in 1987 to 561,569 in 2007, a 35-fold increase.

My Take

America's prisons are already de facto mental hospitals. The Sheriffs' Association report found that about 1 in 6 inmates are seriously mentally ill. The deinstitutionalization movement of the 1960s and 10970s has yielded little positive effect on the seriously mentally ill. Treatment in the community has been ineffectual and often the unmedicated seriously mentally ill have been incarcerated rather than treated.

Homeless, seriously mentally ill people often become chronic offenders. Crimes like trespass, retail theft, public urination, disorderly conduct and panhandling add up, over time, to more serious sanctions and often prison time.

Going to prison for a seriously mentally ill offender is not like a healthy offender going to prison. Mentally ill inmates can at times be disruptive or display chronic behavior problems. Those problems make them less likely to be paroled and more likely to end up in restrictive housing units-solitary confinement-which further exacerbates their condition.

Seriously mentally ill inmates often serve their maximum sentence. They leave prison without supervision and no place to live. They end up on the street and the cycle begins again.

A more humane way to handle the seriously mentally ill would be to house them in hospitals rather than prisons. If you're going to spend $25,000 as year to house a seriously mentally ill person in prison, couldn't you send that amount on housing that individual in a psychiatric hospital? The state could save on the related law enforcement and court costs. Hospitalization could reduce the victimization costs related to the nuisance crimes and provide a more appropriate disposition for the patient and his or her family.

Unfortunatley, hospitalization is no longer a real option in most cases. In 1955, there was one hospital bed for every 300 Americans. Today, there is one bed for every 3,000 Americans. Society needs to immediately rethink the criminalizatiion of the seriously mentally ill.

Friday, May 14, 2010

The Cost of the War on Drugs

In 1970, President Richard M. Nixon said, "Public enemy No. 1 in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive. So began the war on drugs. Forty years later the United States has spent over a trillion dollars ($1,000,000,000,000) and even the current drug czar Gil Kerlikowske told the Associated Press, "In the grand scheme, it has not been successful."

President Nixon's first drug-fighting budget was $100 million. Now it's $15.1 billion, 31 times Nixon's amount even when adjusted for inflation.

Using Freedom of Information Act requests, archival records, federal budgets and dozens of interviews with leaders and analysts, the Associated Press tracked where that money went, and found that the United States repeatedly increased budgets for programs that did little to stop the flow of drugs. In 40 years, taxpayers spent more than:

_ $20 billion to fight the drug gangs in their home countries. In Colombia, for example, the United States spent more than $6 billion, while coca cultivation increased and trafficking moved to Mexico — and the violence along with it.

_ $33 billion in marketing "Just Say No"-style messages to America's youth and other prevention programs. High school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have "risen steadily" since the early 1970s to more than 20,000 last year.

_ $49 billion for law enforcement along America's borders to cut off the flow of illegal drugs. This year, 25 million Americans will snort, swallow, inject and smoke illicit drugs, about 10 million more than in 1970, with the bulk of those drugs imported from Mexico.

_ $121 billion to arrest more than 37 million nonviolent drug offenders, about 10 million of them for possession of marijuana. Studies show that jail time tends to increase drug abuse.

_ $450 billion to lock those people up in federal prisons alone. Last year, half of all federal prisoners in the U.S. were serving sentences for drug offenses.

These expenditures do not include the indirect cost of lost productivity due to drug abuse, medical costs for long term medical problems, residual cost of broken families
and blighted neighborhoods. The costs associated with those victimized by drug users looking for cash. The families devastate by the loss of life in the battles for drug turf.

The costs associated with the war on drugs and the devastation left in it's wake are staggering.

To read more:

Scrutiny for Pennsylvania's Crime Reduction Efforts

An interesting perspective on crime prevention, treatment and incarceration in Pennsylvania by Melissa Brooks of the Norristown Times Herald.

Risk prevention strategies face funding issues

Published: Sunday, May 09, 2010
Times Herald Staff

At the same time the only line item in the Pennsylvania state budget requiring communities to use proven effective prevention strategies to reduce crime and delinquency is being cut year after year, the level of state funding for the Pennsylvania Department of Corrections has increased by 649 percent from 1985 to 2010.

This, according to Brian Bumbarger, director of the EPIS Center, who said that before repeated budget cuts came, from 1998 to 2002, Pennsylvania was making a pretty significant investment in community prevention coalitions and evidence based programs. The commonwealth actually served as a model for the rest of the country for its forward thinking, he said.

At that time the Pennsylvania crime commission was actually funding nurse home-visitation programs," Bumbarger said. (The Nurse Family Partnership is now funded by the Department of Public Welfare). "That’s pretty progressive. Pennsylvania recognized that if we want to reduce crime, we need to start when these babies are born (to low-income, first-time mothers)."

A March 2010 report from the Pew Center on the States announced that for the first time in 38 years, the number of state prisoners in the United States has declined. However, while the prison count dropped in 27 states from 2008 to 2009, Pennsylvania’s state prison population grew by more than 2,000 inmates, the most significant increase of the other 23 states.

"When you look at the biggest crisis Pennsylvania is facing right now, it is the corrections crisis," Bumbarger said. "We’ve got almost 60,000 people in our state prisons. They’re so overcrowded that we’re actually paying neighboring states to house our overflow of prison inmates."

He called it "shameful" that the state funding level for proven effective prevention strategies has been proposed to be reduced, yet again, to just over $1 million, while funding for the state funding level for proven effective prevention strategies has been proposed to be reduced, yet again, to just over $1 million, while funding for the state correction system is proposed to increase to $1.8 billion in 2011.

"Instead of investing in closing the barn door, they’re investing in expensive strategies to go out and chase the horse down after he’s already committed the crime," Bumbarger said.

He put into perspective $1.8 billion a year: It translates to almost $5 million a day. "We spend more providing breakfast and lunch to state prison inmates in one day than we spend on proven effective prevention programs for youth in one year."

"A lot of strategies are being discussed in Harrisburg to try to get a handle on (the corrections crisis)", Bumbarger continued. "But all the discussions involve reducing sanctions for people already convicted of committing crimes."

"They’re talking about letting people out early, increasing parole, diversion programs (rather than send them to prison, send them to drug treatment) — that’s great — but they all happen after the crimes have been committed. Nobody is talking about what we can do to prevent."

Wednesday, May 12, 2010

Criminalizing Mental Illness

Seriously mentally ill people are 3.2 times more likely to be incarcerated than hospitalized. A survey conducted by the Treatment Advocacy Center and the National Sheriffs’ Association, More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States, compared the number of seriously mentally ill in prisons to those in hospitals on a state by state basis.

The survey also found that at about 16-percent of inmates in jails and prisons have a serious mental illness. In 1983 the seriously mentally ill accounted for only 6.4 percent of all incarcerated offenders. The survey also found that 4 in 10 individuals with serious mental illness have spent some time in jail or prison.

The alarming number of seriously mentally ill in prison is the result of a cultural shift that has its origins in the 1960s. The idea of deinstitutionalizing the mentally ill had wide support. The expanded use of psychotropic medication encouraged policymakers to shift from institutionalization to community treatment. However, the psychiatric hospitals were prematurely dismantled and community treatment underfunded.

Has the incarceration of the seriously mentally ill had an impact on prison crowding? A comparison of the Sheriffs’ Association survey and a recent Pew Center report is instructive. The Pew Center report found a nationwide decrease in prison population for 2009. However, 24 states had some increase in prison population. Below are the nine worst states when it comes to prison to hospital ratio for seriously mentally ill.

State --M/I Ratio --Prison Population
Nevada ... 9.8 to 1 ... -1.6
Arizona... 9.3 to 1 ... +2.4
Texas... 7.8 to 1... -0.7
South Carolina...5.1 to 1... -1.0
Georgia ... 5.1 to 1... +1.6
Florida ... 4.9 to 1 ... +1.5
Louisiana... 4.6 to 1 ... +3.6
Michigan ... 4.3 to 1 ... -6.7
Ohio ... 4.0 to 1 ... -0.2

Five out of the nine states listed had a decrease in prison population in 2009. North Dakota has the nation's best 1 to 1 ratio (that means for every seriously mentally ill person in prison there is one in a hospital), yet they had a 2.3 percent increase in prison population in 2009. In fact, none of the states with the largest increase in prison population (Indiana, West Virginia, Vermont, Pennsylvania) are in the top 10 of the mental illness ratio.

There does not appear to be a correlation between increasing prison population and incarcerating the seriously mentally ill. However, there is a connection between incarcerating the seriously mentally ill and cost savings. In these difficult economic times states can save on the bricks and mortar of psychiatric hospitals, the cost of staffing those institutions and the expenditures for meaningful treatment.

Unfortunately, if states wanted to even out the ratios listed above they couldn’t. In 1955 there was one psychiatric hospital bed for every 300 Americans. Today, there is one bed for every 3,000 Americans. The numbers are reminiscent of the 19th century.

The criminalization of mental illness is an American disgrace. Locking up the seriously mentally ill does nothing more than pump-up law enforcement statistics, prey on the homeless and eradicate neighborhood nuisances.

Not everyone is taking the incarceration of the seriously mentally ill sitting down. According to the USA Today, Summit County, Ohio Sheriff Drew Alexander threatened to stop accepting violent mentally ill people at the county jail. "We don't want to be a dumping ground," Alexander told the paper. "Everybody knows we need someplace other than a jail for these people."

E. Fuller Torrey, a psychiatrist who founded the Treatment Advocacy Center told the USA Today that the Ohio sheriff is the first he has heard rebel, "but I think it's a harbinger of what's coming.”

To read full report:

British Woman Closer to Execution

Linda Carty is a grandmother and one-time teacher from the West Indies nation of St. Kitts, a former British colony. She is also on death row in Texas for the murder of a young mother and the kidnapping of her 4-day-old baby. Texas prosecutors were able to convince a jury that Carty wanted a baby in order to save her marriage. She hired three men to help her get a baby. They robbed, kidnapped and killed to get that baby.

The U.S. Supreme Court recently refused to hear her appeal. She contends that her trial attorney was ineffective. Although, this appears to be her final appeal she has not given up her efforts to prove that she is innocent.

Carty has made a public plea to British citizens, asking them and human rights groups to intervene and win her clemency.

The British government has also joined with her new legal team and contend that the British consulate should have been given access to her upon her arrest.

According to CNN, the British Foreign Office has filed two amicus briefs in U.S. federal courts in Carty's case, which complain that Britain was not notified of her original arrest. According to a spokesman,the Foreign Office remains in close touch with Carty and her legal representatives.

"We're continuing to provide her with consular assistance," he said. "We've also made the U.S. aware of our stance (against) the death penalty."

To read more:

Tuesday, May 11, 2010

Death Penalty an Issue in Maryland Governor's Race

Former Maryland Governor Robert L. Ehrlich Jr., said that he plans to make the death penalty an issue in the race for governor, accusing current Governor Martin O'Malley of "shenanigans" to avoid carrying out the death penalty.

"This is the kind of thing that makes people cynical about the criminal justice system," said Ehrlich, who presided over the state's last execution, in 2005. "Governor O'Malley took an oath to uphold the law. He's certainly violating the spirit of it."

Governor O'Malley has tried unsuccessfully to push the legislature to abolish the death penalty. According to the Washington Post, during Ehrlich's last full month in office in 2006, Maryland's highest court ruled that the state's death penalty procedures had not been properly adopted, halting executions until new regulations were issued by the administration.

O'Malley, the former mayor of Baltimore, focused instead on lobbying the legislature to repeal the death penalty. In high-profile testimony shortly after he took office in 2007, the governor, a Catholic, argued that capital punishment is "inherently unjust," does not serve as a deterrent to murder and consumes resources that could be better used preventing crime, according to the Post.

The debate in Maryland, one of 35 states with a death penalty statute, comes as capital punishment continues to draw attention across the country. Executions nationwide increased by nearly 40-percent in 2009 and a 2007 Gallup Poll showed that 69-percent of Americans support the death penalty.

To read more:

Monday, May 10, 2010

Young and in Prison

Matthew T. Mangino
Pennsylvania Law Weekly
May 11, 2010

Lawrence County Judge Dominick Motto has given the green light to prosecutors who are pursuing a 12-year-old boy as an adult for the murder of his father's girlfriend.

Motto found that Jordan Brown would not be amenable to treatment within the nine years he would be under the jurisdiction of the juvenile courts if tried as a juvenile.

Brown was 11 years old when he allegedly shot his father's girlfriend. She was pregnant and asleep when she was shot in the head with a 20-gauge shotgun. In denying the defendant's request to transfer the case to juvenile court, Motto wrote, "(The) defendant ... killed his father's fiancée who was 8 1/2 months pregnant, by administering a shotgun blast to the head. The evidence further shows that the defendant acted alone and without provocation from the victim. Further a degree of sophistication was shown in concealing evidence of the commission of the crime."

Motto further wrote, "Experts from both the defendant and the commonwealth have agreed that in order for rehabilitation to occur in the juvenile court system, defendant must take responsibility for the offense and at this juncture, has failed to do so."

If convicted of first degree murder, Brown must be sentenced to life in prison without the possibility of parole. According to the Pittsburgh Post-Gazette, he would become the youngest person in the United States to serve a mandatory life sentence in prison without parole.

This case brings to the forefront a divisive issue that is not unique to Pennsylvania, although Pennsylvania has more offenders serving Life without parole for crimes committed as juveniles than any other state. The issue is so emotionally charged that opposing groups cannot even agree on the numbers. According to a report prepared by the University of San Francisco, Pennsylvania has at least 330 offenders who were sentenced to Life without parole as juveniles. Across the country there are approximately 2,381 offenders serving life sentences in adult prison for crimes committed as minors.

Juvenile Life without parole has generated a lot of attention since the 2005 United States Supreme Court decision in Roper v. Simmons, which outlawed the execution of juvenile killers pursuant to the Eighth Amendment's ban against cruel and unusual punishment.

In Roper, there was a clear consensus that state lawmakers were turning away from executing juveniles. The majority opinion, written by Justice Anthony M. Kennedy, also alluded to brain development and its potential impact on decision making among young offenders.

This argument has been appropriated by those who believe that juvenile Life without parole is also unconstitutionally cruel and unusual. Last fall, the U.S. Supreme Court heard arguments on whether sentencing a juvenile to life in prison without the possibility of parole, for a non-homicide offense, violates the Eighth Amendment.

Across the country, there are 109 non-homicide juvenile offenders serving life sentences, according to a September 2009 Florida State University study. Seventy-percent of those offenders are in the state of Florida, the study continued.

Appropriately, in the cases that have made their way to the U.S. Supreme Court — Graham v. Florida and Sullivan v. Florida — the litigants — Terrance Graham and Joe Sullivan — were both sentenced by Florida courts. Graham has argued that life without parole is nothing more than "a delayed or a disguised death sentence."

In Roper, the high court held that a national consensus was established against the death penalty for juveniles. Thirty of 36 states that permitted the death penalty had excluded juveniles from being sentenced to death, according to the opinion. The same argument was presented to the court in Graham and Sullivan. Only eight states have laws that permit the imposition of Life without parole for non-homicide juvenile offenders.

However, the same cannot be said when it comes to juvenile Life without parole for homicide.

According to an August 2009 Heritage Foundation report, 43 states have legislation that permits Life without parole for murder and 14 states allow a minor to be tried as an adult at any age.

The idea of locking a juvenile away for life has gotten the attention of lawmakers.

Last year, Congressman Bobby Scott, D-Va, proposed the Juvenile Justice Accountability and Improvement Act of 2009. The bill provides that states must enact laws to grant child offenders who are serving a life sentence a meaningful opportunity for parole at least once during their first 15 years of incarceration and at least once every three years thereafter. The bill has only three co-sponsors and has been stuck in committee since last May.

In California, lawmakers have proposed similar legislation — the Fair Sentencing for Youth Act — that would allow courts to review cases of juveniles sentenced to Life without parole after 10 years, potentially providing a new sentence of 25 years to life. A legislative committee on public safety approved the act in January.

And in Pennsylvania, state Rep. Kenyatta Johnson, D-Philadelphia, has proposed a bill that would abolish Life without parole for juveniles, allow current juvenile lifers to appeal their sentences and provide parole hearings at least once during the first 15 years of a life sentence and every three years thereafter.

If Jordan Brown were charged with any other offense but homicide, he could not be charged as an adult.

In fact, in Pennsylvania, a child under 10 cannot be charged with any crime but murder. A delinquent child, under Pennsylvania law, is defined as "a child ten years of age or older whom the court has found to have committed a delinquent act and is in need of treatment, supervision or rehabilitation."

Although Brown could end up the youngest person in the United States ever sentenced to Life without parole, he is not the youngest child to be charged with murder as an adult in Pennsylvania.

In 1989, 9-year-old Cameron Kocher was charged as an adult in Monroe County for the shooting death of a 7-year-old girl. Kocher later pleaded guilty to involuntary manslaughter.

Brown and his legal team have proclaimed his innocence. Brown is entitled to the presumption of innocence and his right to face his accusers and demand the Commonwealth prove its case beyond a reasonable doubt. The exercise of these rights has already played a significant role in not having his case transferred to juvenile court and may play a role in whether he spends the rest of his life in prison.

In order to avoid a clash between a child exercising his constitutional rights and the prospect of an 11-year-old offender spending life in prison without the possibility of parole, the Legislature must act.

Juveniles charged as adults should not be subject to mandatory sentencing. The U.S. Supreme Court has acknowledged that children should be treated differently, at least with regard to the death penalty. We'll soon find out about the court's position regarding Life without parole for non-homicide offenses.

This is not to suggest that child offenders should not be held accountable for their conduct, nor that the punishment should not be commensurate to the crime. But should children, who are literally not entitled to legally make any decisions on their own behalf, be held to the same standards as adults when it comes to meting out punishment?

The Legislature should act now and give judges the discretion to mold sentences for individual juveniles charged as adults. We elect judges to make those difficult decisions.

Sunday, May 9, 2010

Mangino Interview on Jordan Brown

See my two-part interview with Youngstown, Ohio's NBC affiliate WFMJ-TV. I was interviewed concerning Jordan Brown the 11-year-old being charged as an adult in the killing of his father's pregnant girlfriend. If convicted Brown may be the youngest person in America sentenced to life in prison without the possibility of parole.

Links to interview:

For more details on Jordan Brown:

A Backdoor Assault on the Death Penalty

The American Board of Anesthesiologists has voted to revoke the certification of any anesthesiologist who participates in executing a prisoner by lethal injection. The organization represents more than 40,000 members. Under the policy, any activity that directly relates to execution could lead to a loss of certification.

According to the Washington Post, about half of the 35 states performing executions require a doctor to be present. Other states have also recruited doctors, including anesthesiologists, to play a role in executions involving lethal injections. In some jurisdictions, anesthesiologists consult prison officials on dosages. In others, they insert catheters and infuse the three-drug cocktails.

Not all states continue to use the three drug cocktail. Ohio and Washington state have started using one anesthetic, similar to animal euthanasia. Ohio has successfully carried out two executions using the single drug method.

According to the Post, the identities of executioners are kept secret, therefore no one knows how often doctors assist in executions. But in California, a judge in 2006 ordered that a doctor be present for executions. Two anesthesiologists who had agreed changed their minds at the last minute, however. In Missouri in 2006, a judge ordered the state to revise its procedures and consult an anesthesiologist. Although that decision was overturned, the state recruited an anesthesiologist anyway.

My Take

This is a transparent effort to influence the death penalty. The lethal injection argument has failed before the highest court in the land. The U.S. Supreme Court in Baze v. Rees, 553 U.S. 34 (2008) found that the use of lethal injection did not violate the Eighth-Amendment ban against cruel and unusual punishment. This was when all states were still using the lethal three-drug cocktail.

Now, states like Ohio and Washington have narrowed the procedure to only a lethal dose of anesthesia. This has further eliminated the concerns about the paralytic and heart stopping drugs that were associated with pain. Ohio has carried out one-drug executions without incident.

This latest effort by the American Board of Anesthesiologists will not deter executions. The lethal dosage can be administered by prison staff, a nurse or medical assistant. Executions increased by 40-percent in 2009, the most executions since 2006. More than 2 out of 3 states permit the death penalty and according to a 2007 Gallup Poll 69-percent of Americans support the death penalty.

The interesting thing about the American Board of Anesthesiologists position is that they claim to take no position at all. According to the Post, "While not taking a stand against capital punishment per se, the Raleigh, N.C., board decided that not only was the participation of an anesthesiologist unethical, but also it could make patients wary about standard medical procedures."

Instead of taking a legitimate position opposing the death penalty on moral grounds the association has instead tried to use a backdoor strategy to bog down the operation of the death penalty. A form of punishment that a majority of Americans and a majority of lawmakers support.

To read more:

Saturday, May 8, 2010

Juvenile Sex Offender Registration Examined

The Associate Press has examined the status of sex offender registration requirements for juvenile offenders. There is a wide spectrum of legislative action across the country. The required registration of teenage offenders for consensual sexual contact with another minor close in age has raised concern among many in the criminal justice system. Below are some excerpts from the article and a link to the entire article.

Twenty-one states currently require juveniles convicted of a serious sex crime to register with law enforcement, according to an Associated Press review of state laws and interviews with state officials.

In 19 other states, only juveniles convicted as adults or who move from a state that requires registration are required to provide their information to authorities. In the remaining states, the laws vary. In Nevada, for instance, a juvenile sex offender can petition a judge to set aside registration requirements.

In 2006, President George W. Bush signed a law requiring states to adopt a series of sex offender measures, including the registration of all juveniles who commit serious sex crimes such as abuse or rape. The law was designed to create a national sex offender registry and toughen penalties for those who fail to register.

It's unclear how many of the nation's estimated 686,000 sex offenders are juveniles. But a recent study by the University of New Hampshire Crimes against Children Research Center that found more than a third of those who sexually abuse children are juveniles.

Ohio is so far the only state to meet the new federal standards, but states have until July to comply so they can build up their online registries and ensure the information can be incorporated into the national database.

In Texas, where judges decide whether to put juveniles on the registry, lawmakers led a push several years ago to make it automatic. But the measure's sponsor, Texas state Rep. Jim McReynolds, said he abandoned the effort after concluding the new requirements would be too costly and may end up harming the juvenile offenders. "The more I began to look at it, the more I saw it was pretty doggone tough on juveniles," said McReynolds, who chairs the House Corrections Committee. He now favors more treatment.

In Maryland, powerful lawmakers are aiming to require those 14 and older who commit rape and other serious sex crimes to register. "Juveniles are treated as adults in other areas of the law," said Delegate Bill Frank of Baltimore County, one of the measure's sponsors. "And if a juvenile commits a first-degree rape, that juvenile should be required to register as a sexual offender."

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Friday, May 7, 2010

Sherman Introduces Crime Harm Index

Interview with Lawrence Sherman, Ph.D. — Less Prison, More Police, Less Crime: How Criminology Can Save the States from Bankruptcy

This five-part interview followed the presentation "Less Prison, More Police, Less Crime: How Criminology Can Save the States from Bankruptcy" given as part of NIJ's Research for the Real World Seminar Series by Lawrence Sherman, Ph.D.
•Segment 1: The "Power Few" and "Push-Button" Criminology
•Segment 2: The Crime Harm Index
•Segment 3: Crime and Justice Research Needs to Evaluate Cost-Effectiveness
•Segment 4: The Role of the Federal Government in Solving Crime and Justice Problems
•Segment 5: Criminological ForecastingThe "Power Few" and "Push-Button"
(You can link to the video below)

CriminologyLawrence Sherman: The concept of the power of few is absolutely critical to criminal justice policy. It means that a very small proportion of the units in any population is accounting for a very high proportion of whatever problem or opportunity you're trying to deal with. It's the frequent flyers who drive the airline industry. It's the repeat offenders who commit the majority of the offenses. It's the hot spots of crime where the majority of the crimes occur, and once we identify these high-risk targets, we can completely transform the entire enterprise of crime prevention just as businesses have done very successfully. But we haven't really made the most of power few yet, so that's why we have to keep talking about it even though people say, "Yeah, I understand that." Yeah, but why don't we do something about it? That's the question.
Push-button criminology identifies the buttons that a governor can push, or even a prosecutor, maybe even the President of the United States, in the same way that push-button economics tries to deal with depressions and recessions.

Paul Krugman says that the discipline of economics was all very interesting, but it didn't have any buttons to push when the Great Depression hit. And what John Maynard Keynes did was to transform a very interesting field into a very useful field by identifying the buttons that governments could push to try to get the economy restarted. And so he talked about deficit financing, and interest rates and the supply of money as all being critical to creating more consumer demand, which would then drive up the employment rate.

So his model of the buttons to push when economies get into trouble got discredited when they pushed too many buttons in that direction and caused inflation in the '70s, and Keynes fell out of fashion until the Lehman Brothers bust of 2008. And now Keynes is a very popular fellow in Washington because it seems that all the buttons that we could push in the wake of that were the ones that everybody agreed to push with the Recovery Act and the stimulus package and so on. It's all Keynes. It's all inconceivable before Keynes because nobody ever thought that it was legal or wise for governments to do those kinds of things.

We've got a sentencing policy in this country right now that has the highest incarceration rates in history. We still have too much violent crime. Maybe we don't have enough police. The question of how you push these buttons and who can push them has never really been raised before. And what I think criminology can do for the states, and the cities and the nation is to talk much more about the relative investment between the different parts of the criminal justice portfolio and to ask systematic questions about whether we're putting too many people in prison and we don't have enough police on the streets, and whether we need to reconfigure the way we do our sentencing and our prosecution and even the arrest policies of the police in a way that emphasizes much more about prevention through visibility, and police patrol and problem solving, and much less about incapacitation. except to the extent that we would incapacitate the right kind of people, the power few who are posing the greatest harm that will drive the nation's fear of crime and the suffering from crime in a way that we're not even tabulating right now with the crime rate.

Part of the idea of push-button criminology is to put together all of the decisions that affect criminal justice at the local, state and national level. And because different decision-makers have different parts of the investment portfolio in criminal justice, they don't think about it as a total portfolio. The only people who should think about it are the taxpayers, who have to pay local, state and federal taxes. And it's in our interests to get the overall portfolio in the right balance between prison and policing. Policing is primarily a local cost. In recent years it's had some federal input, but it's a tiny fraction of all of the police costs. Governors don't think about police costs because they have to run a state where the police are all local but they've got to pay for the prison system.

So nobody is being given an accountable blame for getting the portfolio investment wrong, and I think that's the unique role of federal leadership in a place like NIJ to start talking about that and to suggest that the governors ought to get a handle on this as something that they can do if only to get their own prison populations down, not because it will save money, which is a really disastrous political approach, but because it will reduce crime. If the state can figure out how to cut the prison population, save that money and invest it in local policing, I think you've got much greater chances of success than simply releasing thousands of inmates before the end of their term willy-nilly.

[End of video clip]
The Crime Harm IndexLawrence Sherman: When people see different crime rates, they tend to ask whether they're going up or down. They don't ask the question that is important, which is, "How does it all add up?" So if we multiply a murder by the cost that murder entails, and lifetime earnings or any other metric, and compare that to a burglary or to a car break-in, we see the price of those crimes is very different, or the impact, the harm they've caused is very different. If we could agree on what the price list is or the amount of harm is for each of those, and then multiply every time that crime occurs by that value, what we could see is that it could take 50,000 break-ins or 100,000 to make up for one murder. And so the murder rate, which is the most visible and the most reliable crime rate, certainly gets a lot of attention at the moment, but if it's up or down a little bit, it may not reflect the overall amount of harm that society is suffering.

So it's kind of like the gross domestic product, is another way to think about it. When we have people who are unemployed, they're not making things; they're not producing services or goods. And all of that gets reflected in the growth rate of the economy. So everybody knows that China's growth rate was steadily rising while we were tanking during the last two years. But they don't know that about crime, and they don't know that because we don't tell it to them. So my challenge to the Bureau of Justice Statistics today is to get on the stick and develop a crime harm index that could take the most reliable data and explain to a grateful nation exactly how in totality the crime situation is doing — getting better or worse.

[End of video clip]
Crime and Justice Research Needs to Evaluate Cost-EffectivenessLawrence Sherman: Researchers want to know what works to solve problems, and when they see in an experiment or some other research that a policy that is different from the one we're doing now does a whole lot better — it has a big effect — that's what they get excited about. When we do systematic reviews, we report effect size. We don't report a cost effect size or a cost-benefit ratio. I have not seen a systematic review that compares policies on the basis of cost benefit, just on the magnitude of the raw effect size.

So I think what we've got to do, and I hope NIJ can take the lead on this, is to put much more pressure on researchers to include cost data in their studies and research grants, to have cost estimates and effect sizes adjusted by the cost involved, because once we do that, we begin to get much more realistic about how much crime prevention we can afford, how much we want to spend on it. Governor Schwarzenegger wants a constitutional amendment to limit the prison budget to the budget of the University of California. That's the kind of context of the cost of criminal justice which had been rising faster than anything else except health, at least in the state budgets, and that's almost all in prisons. But we have to put in the context of 100,000 to 300,000 teachers being laid off — which the secretary of education predicts for this coming year — is that because we're putting too much into criminal justice? It's hard to compare the cost-effectiveness of primary education to the cost-effectiveness of prison, but that's the kind of thing we're going to have to do to have a meaningful democratic deliberation about how we want to invest our scarce tax dollars.

I argue that using our current research on prisons and police would tell us that we'll get a lot more benefit out of prisons if we limit them to the most dangerous people, the people who are, with new techniques, now predictable to be the Willie Hortons of the future. And if we restrict prison to the incapacitation of those people for a long period of time, we can be very confident that that will be the result for those people. Right now the evidence suggests that there's a lot of people being put in prison to protect us from crimes that they're never going to commit and that we have spent money on doing that — putting people in prison who aren't that dangerous — that we could have been spending on police who could prevent more crimes out on the street if they were in the hot spots, if they were doing the problem solving that the research shows is effective.
So at 35,000 per prisoner who's locked up who doesn't need to be there, that's close to the salary of a police officer who could be out there deterring hundreds of crimes a year. There's not that many offenders who are going to commit hundreds of crimes a year — there's a few — but even they aren't the ones who are going to be committing mass murder or horrible crimes against children, and with the capacity to combine the prediction of very serious crime with the prediction of huge benefits from policing, I think we have the data right now that says, let's reconfigure this portfolio, reduce your investment in prisons, increase your investment in policing, and then manage the investments much more aggressively in the direction of the strategies that are effective.

[End of video clip]
The Role of the Federal Government in Solving Crime and Justice ProblemsLawrence Sherman: I think that the federal government role is crucial, and it's been a consensus on both the right and the left in criminal justice policy for a long time, that only the federal government has the economies of scale to do the kind of research and development that could transform local and state criminal justice operations, and that is something that I think we still need to work on. And at this time, with the bankruptcy of excessive prison costs creating the opportunity, I think the federal role could be much more clear. And in a historic effort, the Obama administration could go right from health care to criminal justice to helping to change the paradigm — to help us think about criminal justice as a multi-governmental effort that has to be integrated, especially at the state and local level, and to get the actors involved to be under more transparent political accountability for getting that balance right.

I think when we have this discussion, a lot of people will come together right around this notion of reducing the prison costs in order to drive up the police budget and to make policing more effective. I think that's the formula. It's not just about the latest research on prisons, the latest research on policing. It's about seeing the connections between these two in order to make a fundamental leap forward in federal leadership of criminal justice policy and the buttons that we need to push.

[End of video clip]
Criminological ForecastingLawrence Sherman: A lot of what I'm saying depends on the accuracy of forecasting, and simply because of weather forecasts and other experience people have had, they tend to be a bit skeptical because there is a range of error around any forecast. When the RAND Corporation developed the idea of selective incapacitation with NIJ grants 30 years ago and recommended that we try to use prison much more selectively to keep the prison population down — to keep the cost down — the National Academy of Sciences review panel was very skeptical because they thought the false-positive rates, the errors would be way too high.
And the tragedy is that by keeping our hands clean, criminology stayed away from decisions that judges and prosecutors and police were going to make anyway. And when they made those decisions without guidance from criminology, what they decided to do was to play it safe and to put as many people in prison as possible. And so 500 percent growth in the prison population later, I think it's time for criminology to ask, "Do we want to get our hands dirty? Do we want to make the best predictions that we can make even if they're going to have error?" Because those predictions will be much more accurate than people looking at a rap sheet and saying, "This guy's dangerous; lock him up," when in fact his first offense was not until age 21 or it's all been property offenses. The cost-effectiveness of locking that person up as opposed to keeping close tabs on him out on the street would be very low.

We now, I think, have to accept that the prediction tools have gotten a lot better — we have supercomputers, we have vast databases that are comparable to the weather forecasting databases. Weather forecasting has gotten twice as accurate in the last 20 or 30 years than it was beforehand. And most of us don't pay any attention to that sort of thing. But just compare it to volcano prediction, and you'll see how much better weather forecasting is than other kinds of forecasting. And crime is getting very close to at least a weather forecast for the next day, or at least for the next 12 hours. If you're going to look in the short term like, in the next two years, is this person going to commit a horrible crime of the kind that we absolutely have to protect the public against? We can make those kinds of forecasts with much better accuracy than judges and prosecutors are making by the seat of their pants. And I think the prosecutors, when given the opportunity to base those decisions on those models, will be grateful to have something to hang their hat on as opposed to having to take all of the blame and get none of the help that criminology can offer.

To link to the interviews:

This five-part interview followed the presentation "Less Prison, More Police, Less Crime: How Criminology Can Save the States from Bankruptcy" given as part of NIJ's Research for the Real World Seminar Series by Lawrence Sherman, Ph.D.

" gratefully acknowledges the U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, for allowing us to reproduce, in part or in whole, the video Less Prison, More Police by Dr. Lawrence Sherman. The opinions, findings, and conclusions or recommendations expressed in this video are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice."