Saturday, April 30, 2011

New Jersey Rescinds Cost Saving Prison Early Release Program

Recently on this blog I explored how states are looking at prison crowding, the enormous price tag for incarceration and the early release of prisoners, or not incarcerating non-violent offenders at all. My blog yesterday at the Pittsburgh Post-Gazette/Ispo Facto took a look at measures in Pennsylvania, Ohio and West Virginia.

However, before states start moving on the prison issue policymakers should look to another Pennsylvania border state, New Jersey. Lawmakers there moved toward eliminating the controversial early-release program, which allowed some inmates out of prison six months ahead of schedule, according to the Star-Ledger.

The program had been sold as a cost-savings measure. Since January 3, 363 inmates have been released early, according to the Parole Board. Twenty-two been arrested for new crimes. That includes Antoine Trent, 25, and Tyree Brown, 24, who were accused of attacking a police officer in Union Township last week, reported the Star-Ledger.

Another former inmate, Quamere Redding, 19, has been charged with attacking and robbing a 49-year-old woman earlier this month in Bridgeton. Governor Christie blames at least two murders on offenders granted early release.

All three of them had been denied parole before being released early through the program, according to Parole Board Executive Director David Thomas.

"There are no more excuses left," Governor Christie's spokesman Michael Drewniak said in a statement. "The Assembly must act immediately to repeal this dangerous failure of a law."

To read more:

Friday, April 29, 2011

The Cautionary Instruction: Sudden interest in non-violent offenders

Pittsburgh Post-Gazette/Ipso Facto
April 29, 2011

Necessity is the mother of invention, and nowhere is that more evident than in the criminal justice system. During the better part of the last four decades policymakers looked to the prison system as a panacea for many of society’s ills.

Sixty-five percent of prisoners in America’s prisons suffer from substance abuse addiction. Ten percent of prisoners have severe psychiatric disorders. Thirty-nine percent of Pennsylvania's state prisoners are non-violent offenders.

No one seemed to mind growing prisons and soaring correction budgets as crime rates dipped to near record lows.

Suddenly, the economy soured, state revenue dried up and policymakers looked for ways to balance the budget. As a result, the clarion call for state lawmaker is now, “Keep ‘non-violent’ offenders out of state prison.”

Auditor General Jack Wagner recently suggested that Pennsylvania could save $50 million this fiscal year by transferring non-violent prison inmates to alternative sentencing programs. More than 19,000 inmates, or 39 percent of the prison population, are non-violent offenders.

"With Pennsylvania facing its greatest budget crisis since the Great Depression, we must look for sustainable savings in every nook and cranny of state government, and that includes the criminal justice system, which is one of the three biggest drivers of increased spending over the past decade," said Wagner.

Ohio Governor John Kasich is currently facing an $8 billion budget shortfall. Ohio’s prison problem is being driven, in part, by county authorities sentencing offenders to state institutions who would have otherwise received a county sentence. This trend in sentencing is a response to crowded county jails.

The governor has his eye on reversing the trend and keeping more non-violent offenders out of state prison. Kasich said at a December press conference, “Do you know what it costs to put somebody in the state pen? I’ve been told 30-40 percent of our prisoners are in the state pen for less than a year.”

According to a West Virginia Department of Military Affairs and Public Safety the number of prisoners is expected to increase to 8,251 by 2015 and to 9,732 by 2020.

The number of violent offenders are expected to drop below 50 percent of the total inmate population by 2015, the report said. Last year more than 72 percent of all new prisoners were serving sentences on nonviolent offenses.

"Nonviolent crimes make up the majority of new admissions to state prisons," according to the report.

Where was the frustration with non-violent offenders five years ago? Why the angst now? Meaningful reform, beyond just balancing the budget, could have a positive impact on the criminal justice system. Piggy bank reform could end up being a threat to public safety.

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Alabama Switches Execution Drug

Alabama is removing the sedative sodium thiopental from its three drug execution protocol. In its place the state will use the drug pentobarbital, according to the Associated Press. The change was made because of a nationwide shortage of sodium thiopental.

Prisons officials had previously said they would switch drugs after the two executions currently scheduled. But pentobarbital will be used in the scheduled executions of Jason Oric Williams on May 19 and Eddie Duval Powell on June 16, reported the Associated Press.

An attorney for Williams says he will ask the courts to stop Williams' execution because the state is changing its protocol. Alabama joins Oklahoma, Ohio, Mississippi, Texas and Louisiana in switching to pentobarbital. Ohio and Oklahoma have used the drug for executions.

Thursday, April 28, 2011

Montana: Life in Prison for Marijuana?

While many states are looking to put fewer non-violent offenders behind bars--some states continue to have draconian laws on the books. In Montana, an offender arrested for selling marijuana could receive a life sentence. Although law enforcement officials say the law would not be used it is on the books.

“Nobody is ever going to ask for life in prison, ever,” Deputy Missoula County Attorney Andrew Paul, told the Missoulian. “It’s not as if any county attorney’s office in the state has a vendetta against small-time weed use.”

A review by the state Public Defender’s Office bore out those statements. Public defenders handled 76 cases statewide between January 2010 and January 2011 involving distribution of dangerous drugs, a category that includes narcotics, opiates, heroin and cocaine. Five of those cases involved small amounts of marijuana and two of the five were in Missoula County. Probationary sentences are typical, according to the Public Defender’s Office, reported the Missoulian.

Still, “I don’t see anything in statutes themselves that would preclude them from applying (the stricter penalty) when they see fit,” Chris Lindsey, a Missoula attorney who often represents people in medical marijuana cases told the Missoulian.

While there’s plenty of gray regarding the penalty, the law regarding the offense is black and white. Jurors could find an accused guilty if she held just 3 grams of marijuana, about a 10th of an ounce. Any sentence could follow--even life in prison.

To read more:

Wednesday, April 27, 2011

D.A. to Appeal Abu-Jamal Ruling

Philadelphia District Attorney Seth Williams said he would appeal a ruling by the U.S. Court of Appeals awarding convicted cop-killer Mumia Abu-Jamal a new sentencing hearing, according to the Philadelphia Daily News.

Williams will ask the U.S. Supreme Court to overturn the appeals court's decision and reinstate Abu-Jamal's death sentence. Williams said Maureen Faulkner was "devastated" by the ruling. Faulkner is the widom of slain police officer Daniel Faulkner.

Abu-Jamal was convicted in 1982 of first-degree murder in Faulkner's slaying and was sentenced to death.

To read more:

Tuesday, April 26, 2011

Georgia Looks to Cut Criminal Justice Costs

The Georgia legislature created a task force to recommend how the state can improve rehabilitation, probation and parole services in a way that will both save tax dollars and reduce crime, according to the Atlanta Business Chronicle.

Governor Nathan Deal recently signed the legislation aimed at reducing the growing costs of keeping criminals locked up in Georgia without compromising public safety. "We know that drug addiction is the root cause of much crime," the governor said during the bill-signing ceremony, "Our entire society benefits if we can turn these tax burdens into taxpayers."

Georgia joins a growing number of states that are trying to ease budget shortfalls by looking to the criminal justice system for relief. Crime rates have fallen to record lows in many parts of the country. The great recession and the great decline in crime are being united as a panacea for budget woes.

Hasty plans cobbled together to save money at the risk of public safety are not only irresponsible--they are reckless and have the potential to put innocent citizens at risk. Meaningful reform is one thing, short term cost cutting to balance the budget is something else.

To read more:

Monday, April 25, 2011

Florida Considers Sell-Off of Prisons to Private Contractors

Florida has been experimenting with private prisons for 16 years, with almost 10 percent of the state’s 102,000 inmates now held in seven private facilities.

Now, Florida is going to take the plunge. The state is thinking of selling-off 14 prisons to private companies. The state agency that oversees prisons says they will save taxpayers almost $90 million over the next three years, according to the Miami Herald. State financial analysts say they cannot show with any certainty how much money they save over state-run prisons.

According to the Herald, while the benefits of prison privatization may be hard to see, the problems have been obvious: Over the years, the arrangement has been marred by mismanagement by state monitors , lax contracts, overbilling by prison contractors, a corruption investigation, and a legal loophole that allowed sexual misconduct in private facilities to go unpunished.

Critics also say the plan to expand prison privatization is aimed at rewarding an industry that donates generously to the state Republican Party. Since 2001, the Florida GOP has received more than $1.5 million from the two largest prison contractors and their affiliates, records show. More than $1 million of that has come from The GEO Group of Boca Raton – formerly known as Wackenhut – which manages two of the state’s private prisons, reported the Herald.

To read more:

Saturday, April 23, 2011

States Begin Transistion to New Execution Drug

Pentobarbital Replacing Sodium Thiopental in Many Execution Chambers

Pentobarbital is becoming the drug of choice among states that carry out executions. According to a recent Associated Press, article ten of the 16 most active death penalty states have, or are considering, replacing the hard-to-find sodium thiopental with pentobarbital.

Two states have carried out executions using pentobarbital. Oklahoma used it for the first time last December as part of three-drug protocol to executed John David Duty. Ohio used the drug this year as part of a single drug protocol to executed Johnnie Baston. Texas, Mississippi, Louisiana and Arizona have switched to pentobarbital.

There a number of states considering pentobarbital including Florida, South Carolina, Georgia and Tennessee.

The sedative previously used for executions, sodium thiopental, has been taken off the market in the Untied States. In addition, shipments of the the drug from overseas distributors have been seized by the DEA.

Arizona plans to use pentobarbital as a single-drug protocol similar to the manner in which Ohio carries out executions.

To read more:

Friday, April 22, 2011

The Cautionary Instruction: Crime Prediction Comes to Pennsylvania

Pittsburgh Post-Gazette/Ipso Facto
April 22, 2011

Imagine representing a client who, after pleading guilty, finds out that her sentence is being enhanced because a forecasting tool used by the court indicated that she is a high risk to re-offend.

Sound a little Orwellian? The future is now in Pennsylvania.

Last fall, then-Governor Edward Rendell signed into law a prison reform bill that directed the Commission on Sentencing to adopt a sentence risk assessment instrument to aid in determining appropriate sentences.

Pennsylvania is not alone. The National Conference of State Legislators reported that at least five states since 2009 have adopted some form of risk assessment procedure with respect to sentencing.

The concept is not new. The Commonwealth of Virginia has used risk assessment in sentencing for 15 years. The higher the assessment score, the less likely the offender will be diverted from prison. The result has been fewer people in prison and a crime rate lower than the national average.

Risk forecasting is not just relegated to the courtroom. Police departments have been refining forecasting over the last two decades.

“You can kind of think of crime as a disease. If a crime happens, we can see how it affects the likelihood that another incident is going to happen within a certain area in a certain amount of time after that,” said Jeremy Heffner of Azavea, a firm specializing in geographic information system mapping.

For instance, Heffner suggests that if a residential burglary occurs within a specific neighborhood the chances that another will occur in that neighborhood increase as a result of the first crime, much like a contained outbreak of disease in a given area.

“It’s like trying to find the needle in the haystack,” warns University of Pennsylvania Professor Richard Berk.

Berk’s research for Philadelphia probation assembled a dataset of more than 60,000 various crimes, including homicide. The model examined more than 24 variables including criminal history, age at first crime, gender, the type of crime and where the crime was committed.

Through powerful computer analysis Berk found a subset of people much more likely to commit homicide when released from prison. However, Berk and his colleagues also revealed a subset of offenders who were least likely to re-offend -- a significant finding in these lean economic times.

Risk assessment is here to stay. Mark H. Bergstrom, Executive Director of the Pennsylvania Commission on Sentencing has suggested, “Risk assessments should always be seen as a tool residing in a larger tool box of information that a judge can refer to when pondering the sentencing decisions.”

NYT Examines Juvenile Life Without Parole

Adam Liptak and Lisa Faye Petak recently wrote an interesting article about juvenile life without parole (JLWOP) for the New York Times. The article examines the U.S. Supreme Court's recent dismantling of severe juveniles punishment and how that rationale might be applied to JLWOP.

In Roper v. Simmons, 543 U.S. 551 (2005) the Supreme Court struck down the death penalty for Juveniles. In 2010, the Supreme Court struck down JLWOP for non-homicide offenses in Graham v. Florida, 560 U.S. ___ (2010). Liptak and Petak ask, is JLWOP for homicide the next frontier for the Supreme Court?

The article goes into detail explaining that circumstances are not entirely the same. With regard to Roper more than 30 states had abandoned the death penalty for juveniles by the time the case got before the court. In Graham, only 12 states were sentencing juveniles to life without parole for non-homicide offenses.

JLWOP for murder does not share that same type of national consensus opposing its implementation. The article is worth reading and can be found at:

Thursday, April 21, 2011

Lawrence County Killer Scheduled for Execution in Tennessee

A man convicted of second degree murder in Lawrence County, Pennsylvania has been scheduled for execution on October 4, 2011 at the Riverbend Maximum Security Institution at Nashville, Tennessee.

In 1988, John Henretta raped and murdered a store clerk in Cleveland, Tennessee. He was not indicted until 1997, following the confession of his co-defendant. He was convicted and sentenced to death. The Supreme Court of Tennessee recently denied his appeal and scheduled his execution, according to the Chattanoogan.

According to court records, Henretta was convicted on June 17, 1991 of second degree murder by the Lawrence County Court of Common Pleas. The murder occurred on September 19, 1988. He was convicted of rape which occurred in Lawrence County on November 14, 1988; and on July 7, 1989, he was convicted federally of kidnapping which occurred on November 23, 1988.

Henretta was on the run from Pennsylvania authorities when he committed the rape and murder in Tennessee. At age 66, Henretta is the oldest person on Tennessee's death row.

To read more:

Wednesday, April 20, 2011

Florida House Looks to Pack Supreme Court

Florida House Republicans look to pack the state Supreme Court for, some suggest, advancing a GOP legislative agenda.

According to the Miami Herald, HJR 7111 asks voters to consider a constitutional amendment that would add three justices to the Supreme Court and create two divisions, one for civil cases and one for criminal. The three justices with most seniority, all appointed by a Democratic Governor Lawton Chiles, would go to the criminal side. Republican appointees would remain on the civil side, where legislative issues would be considered. Republican Governor Rick Scott would fill the empty seats.

The measure also calls for the Senate to confirm the governor’s picks, and expands court funding. Sixty percent of Florida voters would have to approve the amendment for it to become part of the Constitution. There is no companion legislation pending in the state senate.

Democrats pointed out that by the court’s own analysis, there is no problem with efficiency, citing figures that show in 2010, nearly 90 percent of cases were resolved in less than one year, reported the Herald.

It’s clear the changes are all about politics,Representative Richard Steinberg to the Herald. Already, he said, there have been “whispers” that Republicans want to put the proposal before voters in advance of the November 2012 general election so the new court would be in place for redistricting.

Read more:

Tuesday, April 19, 2011

Georgia Cleared to Schedule Troy Davis' Execution

The U.S. Supreme Court recently rejected Troy Davis' appeal clearing the way for state authorities to schedule his execution. Davis was given a rare chance to argue his innocence but failed to convince a federal judge he was wrongly convicted of the 1989 murder of a Savannah police officer, according to the Associated Press.

Davis had long claimed he could clear his name in the officer's death if a court would give him the chance to hear new evidence. The U.S. Supreme Court in 2009 agreed he should be able to argue his innocence, a rare chance afforded no other American death row defendant in at least 50 years.

During two days of testimony in June, U.S. District Judge William T. Moore Jr. heard from two witnesses who said they falsely incriminated Davis and two others who said another man had confessed to being MacPhail's killer in the years since Davis' trial, reported the Associated Press.

Moore concluded last August that several of the witnesses had already backed off their incriminating statements during the 1991 trial — so it wasn't new evidence — and that others simply couldn't be believed. According to the Associated Press, he ruled that while the evidence casts some additional doubt on the conviction, "it is largely smoke and mirrors" and not nearly strong enough to prove Davis' innocence.

Davis sought to appeal Moore's decision, but the 11th Circuit Court of Appeals refused to hear the challenge in November. The Supreme Court then rejected the appeal on Monday, offering no elaboration.

There is one problem, the decision has come at an inopportune time for Georgia authorities, who have set three previous execution dates for Davis since 2007 only to have each postponed so judges could review the case. According to the Associated Press, last month federal regulators seized the state's entire stockpile of sodium thiopental, a sedative used in the three-drug lethal injection cocktail, amid questions about how the state obtained it.

That means prison officials can not schedule Davis' execution until the Drug Enforcement Administration concludes its investigation or Georgia switches to another drug. Arizona, Texas and Ohio have already switched to another sedative, pentobarbital, amid a nationwide supply shortage.

To read more:

Monday, April 18, 2011

Texas Commission Continues Investigation into Arson Conviction that Resulted in Execution

The Texas Forensic Science Commission reviewing the arson investigation that led to the execution of Cameron Todd Willingham made far-reaching recommendations last week to improve and modernize fire investigations.

The report's 16 recommendations could collectively prod state and local fire investigators to adhere to modern investigative standards that have evolved over the past two decades, according to the Fort Worth Star-Telegram.

The commission opened its inquiry in December 2008 after receiving a petition from the Innocence Project. Craig Beyler, a Baltimore fire expert who was hired to review the Willingham arson investigation, concluded that investigators relied on outmoded techniques. He raised the possibility that the fire was set accidentally. A 2009 New Yorker Article by David Grann also generated a great deal of interest in Willingham’s prosecution.

At least eight other experts have reached similar conclusions, according to the Star-Telegram.

Two days before Beyler was to testify before the commission in 2009, Governor Rick Perry dismissed four members of the commission, including the chairman. He then appointed Williamson County District Attorney John Bradley as chairman. Bradley's appointment has never been confirmed by the state Senate and is now stalled in a committee. He can serve until the Legislature adjourns in May.

The commission's inquiry involved two cases -- Willingham's and that of Ernest Ray Willis, who was convicted for setting a 1986 house fire that killed two sleeping women in the small West Texas town of Iraan. Willis, who spent 17 years on Death Row, was set free when prosecutors dropped the case after an inquiry indicated that the fire was accidental, reported the Star-Telegram.

Willingham's three daughters died in the fire at their Corsicana home in 1991. Willingham was convicted of setting the fire and killing them, and he was executed in 2004. He repeatedly maintained his innocence. Death penalty opponents point to Willingham as the first innocent person executed in the modern era of the death penalty. The commission has not yet made that finding.

To read more:

Sunday, April 17, 2011

Book Review: The Autobiography of an Execution by David R. Dow

Providing legal counsel to men and women facing imminent execution is a difficult and often painful occupation. The Autobiography of an Execution by David R. Dow provides an excruciating look at the machinery of state sponsored death and its effect on those close to the process.

Dow began representing condemned inmates in 1989 and has represented over 100 inmates sentenced to death. Dow is also a law school professor and admits that most of his clients are dead. He counts a delay in being executed as a victory—not clemency or exoneration. He knows that a substantial number of his clients are guilty of murder, but he contends that seven of his clients may have been innocent, including Henry Quaker (not his real name) whose story was intertwined throughout the book.

Dow’s book jumps from his frenetic office, to prison visits, to his home with his wife Katya and their young son Lincoln, to the Walls Unit (the death chamber) of the Texas State Penitentiary at Huntsville.

The book is enthralling. Dow is candid, although he created some composite characters and changed the names of the book’s characters citing the Rules of Professional Responsibility governing ethics for lawyers. He reveals sexual advances by a female judge presiding over one of his cases and his own office’s possible malpractice in failing to meet a deadline that may have provided a postponement for a mentally retarded inmate who was executed.

While Dow is ardently opposed to the death penalty and makes no bones about it, he made an interesting point when writing about Clarence Darrow’s waiver of a jury trial for Leopold and Loeb. Darrow put the pressure squarely on the judge to decide his clients’ fate. Dow wrote:

What Darrow understood was that our system of capital punishment
survives because it is built on an evasion. It permits everyone to avoid responsibility. A juror is one of twelve, and therefore the decision is not hers. A judge who imposes a jury’s sentence is implementing someone else’s will, and therefore the decision is not his. A judge on the court of appeals is one of three, or one of nine and professes to be constrained by the decision of the finder of fact, and therefore it’s someone else’s call. Federal judges say it is the state court’s decision. The Supreme Court justices simply say nothing, content to permit
the machinery of death to grind on with their tacit acquiescence.

Darrow didn’t let them hide. He demanded that people who uphold the
law take responsibility for their actions, especially when those actions are momentous.

Dow writes about people and places that are often off-limits to most of society. Whether it is morbid curiosity or just a genuine interest in the plight of victims and the condemned, Dow’s vivid description of the final moments before execution or the area surrounding the death chamber or the death chamber keep the reader turning pages.

Here is an example of Dow’s rich and powerful use of words to set the scene for the often uneasy moments depicted in The Autobiography of an Execution, “The holding cell has a distinctly medieval feel. It is damp and dark and gray. There is no TV or radio, but there is a rotary-dial telephone on the concrete floor that might have been new in the 1970s. To get to the place where the condemned prisoners spend the final three hours of their lives, you pass through the electronically controlled doors. Then you exit the prison through a heavy steel door that opens with a key that is eight inches long. The warden’s assistant, the key dangling around his neck as if he were a character in a Dickens novel…”

If you have an interest in the death penalty, whether you support capital punishment or oppose it, Dow’s book is worth reading.

New York, NY
269 pages

Saturday, April 16, 2011

Missouri Looks to Abolish Sentencing Commission

Missouri has taken a step toward dismantling their sentencing commission. Last week, the Missouri house voted to abolish the commission. Missouri and Pennsylvania are among about 20 states that have sentencing commissions.

According to the St. Louis Post-Dispatch, at issue in Missouri is the development of "evidence-based" sentencing guidelines, which try to assess a criminal's risk of reoffending as an element in whether to send the person to prison.

Legislators established the commission in 1993 to study sentencing practices, then amended the law in 2003 to ask the group to establish a system for sentencing recommendations. Since 2005, judges have received reports that suggest a sentence, taking into account information such as the offender's age, work history, education and criminal history. The judges have discretion in whether to follow the guidelines or ignore them, reported the Post-Dispatch.

In fact, the House's action came a day after a nonprofit group released a national study that singled out Missouri for "dramatic" progress in reducing the number of repeat offenders.

According to the Post-Dispatch, the percentage of Missouri offenders who returned to prison within two years dropped to 36.4 percent for those released in 2009, down from nearly half of those released in 2004, according to the study by the Pew Center on the States. The study gave credit to Missouri for mapping out "a meticulous plan for managing all but the most serious violators in the community" and for extensive training of probation and parole officers in how to use the new "risk assessment" tool, reported the Post-Dispatch.

"The fact is, it's being effective," Mike Wolff, Missouri Supreme Court Justice Mike Wolf who is also the longtime chairman of the state's sentencing commission, told the Post-Dispatch.

"The end of this commission will, in fact, remove the inaccurate information that is communicated to our sentencing judges in the state of Missouri, whereby liberal judges are given cover to release from prison or reduce the sentence and give lighter sentences to the worst offenders, second offenders and violent offenders," the bill's sponsor Representative Stanley Cox, told the Post-Dispatch.

The House passed the bill on a vote of 100-57. It now moves to the Senate, which has until May 13, the Legislature's mandatory adjournment, to decide whether to pass it.

To read more:

Friday, April 15, 2011

The Cautionary Instruction: Crowded Prison and Soaring Costs

Pittsburgh Post-Gazette/Ipso Facto
April 15, 2011

A 2010 report by the Pew Center on the States revealed a decline in prison population for the first time in 38 years.

That is good news considering between 1972 and 2010 prison population increased 705 percent. The bad news is that as of January 31, 2011, Pennsylvania had approximately 51,273 inmates and added more new inmates than any other state in the report.

As a result of continued prison growth, Pennsylvania’s corrections funding increased by 4.49 percent in 2010, second nationwide to only Wyoming and West Virginia.

Here is what some states are doing to deal with crowded prisons and growing costs:

-- California Governor Jerry Brown recently signed into law a measure that will transfer 30,000 low-level offenders to county jails over the next three years. The measure is yet unfunded and looks more like a transfer of responsibility than a genuine effort to get at the problem of over incarceration. California has 152,000 inmates in state prison.

-- Florida’s new Governor Rick Scott promised to cut prison spending by $1 billion and has proposed more spending on drug and alcohol treatment.

-- Alabama’s legislature was told to find a way to reduce the state’s prison population by 3,000 inmates to bring the corrections budget in line with Governor Robert Bentley‘s proposed budget.

-- Ohio Governor John Kasich has proposed selling off three to five state prisons to private entities who will manage those prisons. Ohio's prison inmate population has grown by more than 500 percent since 1972 and is projected to soar to 53,992 by July if proposed sentencing changes and alternatives to punishment are not addressed by the legislature.

-- Iowa, like Pennsylvania, intends to build more prisons. The prison population in Iowa is 23 percent over capacity. Iowa’s nine prisons have a capacity of 7,209 but currently house 8,883 inmates. All of Iowa's prisons are over capacity.

Although there appears to be as many plans to deal with prison costs as there are states with prisons, a handful of states have adopted meaningful reform. Without increasing recidivism, Michigan reduced its prison population by 6,500 inmates and Texas reduced its corrections cost by $210 million. Kansas, Nevada, New Jersey and Georgia have reduced prison costs through a mix of re-entry services and responsible sentence reductions.

Thursday, April 14, 2011

Ohio Executes Clarence Carter, Clarence Carter, Clarence Carter

The 12th Execution of 2011

Clarence Carter was executed after receiving a lethal dose of pentobarbital at the Southern Ohio Correctional Facility at Lucasville on April 12, 2011.

According to the Columbus Dispatch, Carter was immobilized on the lethal-injection table by straps on his wrists and four on his body. Carter spoke his last words into a microphone held over his head by Warden Donald R. Morgan.

"Let them know I'm sorry for what I did, especially his mother," he said of the family of his victim, Johnny Allen. "I ask God for forgiveness and I ask them for forgiveness... God can change you," he said. "God can do positive things in your life."

The execution process then began with "Syringe #1" invisibly pumping the first half of a lethal dose of pentobarbital into Carter's veins in one minute, 35 seconds. A second syringe followed, reported the Dispatch.

The condemned man, who had been praying quietly, closed his eyes at 10:14 a.m. and did not open them again. Soon, his breathing stopped. He was dead at 10:25 a.m.

According to the Dispatch, Carter was sentenced to death for an incident on December 28, 1988, when he choked, stomped, punched and kicked Johnny Allen during a 25-minute fight at the Hamilton County jail annex where both men were incarcerated. Allen lived for two weeks before he died. Carter was being held for a murder he committed in Cincinnati.

To read more:

Wednesday, April 13, 2011

PA House Passes Castle Doctrine Bill

Governor Rendell Vetoed Similar Bill Last Fall

The Pennsylvania House voted 164-37 in support of a Castle Doctrine bill sponsored by state Representative Scott Perry, a Republican. The bill permits the use of deadly force without first having to retreat anywhere a citizen has a legal right to be if he feels his life or safety is in danger, reported the Harrisburg Patriot-News.

Current law allows for the use of deadly force inside a person's home. This measure expands that right to include vehicles, workplaces and other public areas. Critics, like the Pennsylvania District Attorneys Association, argued that the bill could be used by criminals as a defense and that it would invite more violence.

According to the Patriot-News, the bill now heads to the state Senate for consideration. A similar measure by state Sen. Richard Alloway, a Republican, was approved by the Senate last month.

Last year the General Assembly approved a similar Castle Doctrine bill, but it was vetoed by then-Governor Ed Rendell. At he time Governor Rendell said, "The bill as passed encourages the use of deadly force, even when safe retreat is available, and advances a 'shoot first, ask questions later' mentality." The Pittsburgh Post-Gazette reported that Rendell went on to say, "I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves."

To read more:

NY Times Examines Lethal Injection Drugs

There is an ongoing controversy surrounding the drugs drug used for executions. Most states use a three-drug protocol for executions. The protocol consists of sodium thiopental, an anesthetic, which is administered with pancuronium bromide, a paralyzing drug, and potassium chloride, which induces cardiac arrest.

The three drug protocol has was reviewed by the U.S. Supreme Court in Baze v. Rees, 553 U.S. 35 (2008). The Court found that three drug lethal injection did not violate the Eighth Amendment ban against cruel and unusual punishment.

A few states like Ohio, Washington and Arizona have moved to a single drug protocol. A hand full of states— Oklahoma, Texas, Ohio and Arizona—have moved from using sodium thiopental to pentobarbital an anesthetic used primarily for animals. Ohio has used just a single lethal dose of pentobarbital.

Sodium thiopental has become exceedingly hard to get. The American manufacturer of sodium thiopental has discontinued the drug. The shortage has induced states to use pentobarbital for executions. The New York Times recently provided a comprehensive review of the two execution drugs and how they work.

The two drugs come from the same family: barbiturates, drugs that depress the central nervous system. Dr. John Dombrowski, director of the Washington Pain Center and a board member of the American Society of Anesthesiologists told the Times, “it’s like if you ask me what’s the difference between Johnnie Walker Blue, Black and Red — they’re all scotch.” Sodium thiopental has been commonly used as an anesthetic in hospitals.

Pentobarbital has a few medical uses in humans, but is often used by veterinarians to anesthetize or euthanize animals. It has also been used in physician-assisted suicide in Oregon and in Europe. When injected into the bloodstream, both drugs “cross the blood-brain barrier very efficiently,” said Dr. Scott Segal, chairman of the department of anesthesiology at Tufts Medical Center in Boston. “They get into brain tissue itself.”

“All barbiturates put the brain to sleep by slowing down brain function,” Dr. Mark A. Warner, president of the American Society of Anesthesiologists told the Times. “The brain cells that drive the desire to breathe are also suppressed. So any barbiturate, if you give enough of it, somebody quits breathing. Also, if you give enough of it the heart quits pumping as hard and that can cause decreased blood pressure.” But while the way the drugs work might be similar, the effects are different.

Sodium thiopental is used in hospitals because it “has a relatively fast onset and it doesn’t last long,” Dr. Warner said. “You want a patient to go sleep and wake up pretty quickly.” Pentobarbital is a long-acting drug. “If veterinarians are using this, they don’t really care if an animal wakes up faster or not,” Dr. Dombrowski told the Times. “If the dog or cat is still a little sleepy it doesn’t make a difference.”

In euthanizing animals, higher doses are used, and “the lethal effect is a cardiovascular effect,” Dr. Segal said, meaning that it stops the heart. Pentobarbitol is used in hospitals in certain circumstances, like inducing a coma in brain-damaged patients because “that allows the brain to use more energy and oxygen to repair itself,” Dr. Warner told the Times. He said it can also be used to stop seizures in patients for whom other drugs are ineffective.

Opponents of the death penalty object to both drugs. Some say thiopental can wear off too quickly, allowing inmates to feel pain. Others object to using pentobarbital, because it is so infrequently used in humans. Executions using pentobarbital have been successfully carried out in Ohio and Oklahoma.

To read more:

Tuesday, April 12, 2011

Pennsylvania Is Ground Zero for Juvenile Lifer Debate

Two cases offer chances for change outside the legislature

Pennsylvania Law Weekly
April 12, 2011

Pennsylvania has an estimated 472 offenders serving life in prison without the possibility of parole for murders they committed as juveniles.

The number is so large that nearly 20 percent of the country's "juvenile lifers" reside in Pennsylvania, leaving the state at ground zero in the debate about whether killers who committed their offense while under the age of 18 should serve their entire life behind bars.

There are two cases that have sharpened the focus on Pennsylvania and how the state will deal with youthful offenders convicted of first- or second-degree murder.
The first is the case of Qu'eed Batts, who was convicted of a murder he committed while 14. Batts was tried in Northampton County Common Pleas Court at age 16 and sentenced to life in prison without the possibility of parole. The Batts case is currently pending before the Pennsylvania Supreme Court.

The second is the case of Jordan Brown, a Lawrence County boy who, at age 11, allegedly shot and killed his father's pregnant girlfriend while she slept. His case has been remanded to the county court for a new decertification hearing.
In order to fully appreciate the significance of both cases, a look at the recent treatment of juvenile offenders by the U.S. Supreme Court is instructive.

In 2005, the U.S. Supreme Court found in Roper v. Simmons that a national consensus had developed against the execution of juveniles and struck down the procedure as a violation of the Eighth Amendment ban against cruel and unusual punishment.

Christopher Simmons was one of 79 people sitting on death row nationwide for murders they committed as juveniles. In 1993, at age 17, Simmons broke into the home of Shirley Crook. Simmons, along with an accomplice, tied up Crook and tossed her, still alive, off a bridge into a Missouri river.

While planning the crime, Simmons assured his accomplice they would not be punished because they were juveniles.

By the time Roper was argued, 31 states had abolished juvenile executions — one more than had abolished the death penalty for the mentally retarded prior to the U.S. Supreme Court's decision in Atkins v. Virginia that banned the execution of the mentally retarded.

Last spring, in Graham v. Florida , the U.S. Supreme Court banned LWOP for juveniles convicted of non-homicide offenses.

Graham, a juvenile, was on probation when he was convicted of a home invasion robbery with a firearm. A Florida court sentenced him to life in prison. The U.S. Supreme Court held that a sentence of life without parole was unconstitutional. The court's analysis rested on "evolving standards of decency that mark the progress of a maturing society," recognizing the "essential principle" that "the state must respect the human attributes even of those who have committed serious crimes."
The Graham decision applied to only 129 offenders nationwide; 79 were in Florida.

None of Pennsylvania's juvenile lifers are serving sentences for non-homicide offenses, meaning the stage has been set for considering whether life in prison without parole should be outlawed for all juveniles.

And the state Supreme Court is considering just that in Commonwealth v. Qu'eed Batts . The case was argued before the Supreme Court on December 1.

Batts was convicted of first-degree murder for the 2006 shooting death of 16-year-old Clarence Edwards during a shoot-out in Easton. Batts was 14 and a member of the Bloods, a violent street gang, according to the Easton Express-Times .

Batts maintained throughout his trial that he acted under duress and threats of death from a gang leader who ordered the murder. Meanwhile, attorneys for Batts contended Pennsylvania's sentencing scheme was not in line with national trends on sentencing and punishment.

There are only three other states that mandate a sentence of life without parole for a homicide offender who is 14 or younger. The lawyers suggest the constitutional problem with a life sentence in Pennsylvania is that it is mandatory, and life in prison means no possibility of parole, regardless of the age of the offender. They contend that the sentencing law in Pennsylvania not only fails to address the reduced culpability of juveniles, it actually precludes a judge from taking age into account.

Last month, the Superior Court denied the appeal of a Reading man who had been sentenced to life in 1992 for killing a man in a road-rage case when he was 17 years old. The court also denied the appeal of a Lancaster County man who was sentenced to life in prison in 1995 for a killing committed during a robbery when he was 16, according to the York Daily Record.

In both cases, the inmates proceeded pro se.

"The purpose of the appeals is to equate a non-homicide case to a homicide case," said Berks County District Attorney John T. Adams. "No appellate case has taken that position."

According to the Daily Record , Adams offered his support for a change in existing law that would allow a case-by-case review of juveniles serving life sentences.

Finally, the Brown case has received international attention because of the implications of juvenile LWOP.

Last year, Lawrence County Judge Dominick Motto ruled, after a decertification hearing, that Brown should be tried in adult court because he refused to take responsibility for the crime and therefore was not amenable to rehabilitation in the juvenile justice system. If Brown is convicted of first-degree murder, he faces a mandatory sentence of LWOP. He would be the youngest person in the United States to face life in prison.

The Superior Court sent the case back to Lawrence County for a new decertification hearing.

Judge Cheryl Allen wrote for the majority:

"By finding that appellant [Brown] had to admit guilt or accept responsibility for his actions as a condition to proving that he was amendable for [juvenile] treatment, the trial court placed appellant in a situation that needlessly encouraged appellant to sacrifice his Fifth Amendment rights against self-incrimination."

The lone dissenter on the panel, Judge Robert E. Colville, wrote that there was no evidence Brown ever sought to invoke his right against self-incrimination. Even in dissent, however, Colville said the case raised "important and complex questions as to the interplay between the Fifth Amendment and the juvenile decertification and transfer process."

Juveniles sentenced to LWOP in Pennsylvania need not be doomed to a lifetime of hopelessness.

At a minimum, the legislature should provide judges the discretion to sentence juveniles to something other than LWOP following a conviction of first- or second-degree murder. Sentences, especially for juveniles sentenced as adults, should be specifically tailored for each individual offender.

As an alternative, the General Assembly could establish a juvenile life sentence review board. The governor has the ability to grant clemency. The board would be charged with the unique process of reviewing offenders who were sentenced to LWOP as juveniles. The legislature could establish parameters for consideration and guidelines for recommending clemency to the governor.

The final option would be to outlaw LWOP for all juvenile offenders. The Supreme Court may do that with its forthcoming decision in Batts . The legislature has the authority to ban life sentences for juveniles.

Monday, April 11, 2011

High Court Considers Bad Lawyering Cases

Daniel Cook was scheduled to die by lethal execution last Tuesday morning in the Arizona Correctional Facility at Florence for murdering two men in 1987. Cleve Foster was scheduled for execution that same evening in the Texas State Penitentiary at Huntsville for a 2004 murder. The U.S. Supreme Court stayed the executions of both men, according to the Arizona Republic.

The issue in both cases was ineffective assistance of counsel. Did they have bad lawyers? Were their Sixth Amendment right to a fair trial infringed upon?

Cook represented himself at trial and failed to bring up serious issues from his childhood that might have influenced his sentence. Cook's case brings to mind the quote from Abraham Lincoln, "The man who represents himself has a fool for a client." However, Foster had a trained attorney and at trial he failed to engage an expert who might have tipped a jury toward acquittal. Then, the lawyers who handled their appeals failed to present those claims adequately.

The U.S. Supreme Court has not decided whether it will hear the cases. Neither offender is a particularly sympathetic figure. According to the Republic, Foster and another man were convicted of murdering a woman in 2002. She was found with a bullet in her head, and an autopsy showed both men had sex with her. The other man confessed four times to being the sole murderer, but prosecutors argued that she was shot elsewhere and dumped where her body was found. They did not believe the confessor was strong enough to move her body by himself, and so Foster must have helped.

Appellate lawyers argued that a "blood spatter" expert should have been hired during trial to show she had been shot where she was found. But it was not brought up in post-conviction, either. In 2010, such an expert volunteered to do the analysis for free, but the new evidence could not be admitted. The Supreme Court declined to accept the case in January, but stayed Foster's execution Tuesday pending a decision on whether to reconsider.

According to the Republic, Cook and a roommate tortured, sodomized and killed two men in Lake Havasu City in 1987. Cook decided to defend himself, and during the sentencing stage of his trial, he failed to describe extensive sexual and emotional abuse he had suffered as a child and teen. His post-conviction counsel failed to raise the issue. In February, the Supreme Court refused to take the case, but issued a stay of execution Monday, pending a decision whether to hear it.

To read more:

Sunday, April 10, 2011

California Prison Plan: Transfer Inmates to County Jails

Under a new law signed by California Governor Jerry Brown, up to 30,000 low-level offenders would be transferred over three years from state prisons to local jails, according to KGO-TV in San Francisco.

The plan is expected to save billions by lowering the number of inmates who return to prison and keeping them closer to their homes where they can get drug treatment and mental health services. "The prison system has been a failure," Brown told KGO-TV. "After I left the governorship, the next several governors went on a prison building boom and they lost sight of management, they lost sight of reducing recidivism and really, public safety itself."

One problem is that the plan is unfunded. The governor had hoped to pay for the transfer program with the renewal of expiring taxes, but that is still being negotiated with Republicans. However, even if the funding is found, no one really knows if locals can handle the extra workload.

"We worked very hard for the last eight years in particular to be able to get the declines in crime that we've seen across the state, and now there is a concern that the actions driven by the budget will jeopardize that," Long Beach Police Chief Jim McDonnell, told KGO-TV.

California is under a court order to reduce its prison population. California has by far the largest prison population in the country with nearly a quarter of million men and woman behind bars.

To read more:

Saturday, April 9, 2011

Ohio Man Scheduled for Execution Dies in Prison

Edward Edwards, scheduled to die by lethal injection on August 31, 2011, has died of natural causes in the Ohio Department of Rehabilitation and Corrections Medical Center at Columbus.

The 77-year-old serial killer was responsible for at least five murders including his foster son. In 1996, he shot his 25-year-old foster son in the chest with a shotgun to collect a $250,000 insurance policy. According to the Cleveland Plain Dealer, last year Edwards said, "I'm responsible for it. It didn't work on my conscience. I spent the money. I was having a good time. ... you do it, forget it was done and go about your business until next time."

In 1977 he shot and killed a couple in Ohio and in 1980 he murdered a Wisconsin couple. Ohio has carried out two executions in 2011 and had eight more scheduled including Edwards.

Edwards is the 21st Ohio death row inmate to die of natural causes since the death penalty was reinstated in 1999, reported the Columbus Dispatch. Forty-three inmates have been executed in that time.

To read more:

Friday, April 8, 2011

Cautionary Instruction: Judicial systems on the chopping block

Pittsburgh Post-Gazette/Ipso Facto
April 08, 2011

As state judicial budgets shrink, is democracy at stake?

Two years ago, the New York Times opined that slashing judicial budgets jeopardized “something beyond basic fairness, public safety and even the rule of law. It weakens democracy.”

The Center on Budget and Policy Priorities projected that 44 states will have budget shortfalls in 2012. Only five states have a larger projected shortfall than Pennsylvania’s $4.2 billion.

The budget crunch is beginning to have an impact on court systems across the country and will in turn affect those who look to the courts to right a wrong, seek protection or pursue the just imposition of punishment.

Within the last month at least three states have sounded the alarm.

New York's Chief Judge, Jonathan Lippman, said recently that the reduction in financing would require hundreds of layoffs -- at least -- and would include courthouse personnel and not just back-office staff, according to the New York Times.

“It will have a tremendous impact on the system,” Judge Lippman said in a telephone interview with the Times. “At a minimum, you’re going to see delays in the administration of justice, without question.”

The cuts in court funding came two months after Governor Andrew Cuomo took on the judiciary for not agreeing to a 10-percent reduction in spending that he imposed on state agencies. New York has the fourth highest projected budget shortfall at $10 billion.

Pennsylvania Supreme Court Chief Justice Ron Castille asked for $348 million for 2011-12, considerably more than the $277 million that was recommended in the state budget, according to the Post-Gazette.

There are now just over 1,000 judges in the state system -- 550 magisterial district judges, 460 Common Pleas judges and 31 in the three appellate courts. Justice Castille told the Post-Gazette he intends to trim about 50 district magistrates. The number of Common Pleas judges can be reduced only through new legislation.

Minnesota -- where the budget shortfall represents 23.6 percent of the entire state budget -- may be a harbinger of what court systems across the country will be facing in upcoming budget negotiations. Minnesota Supreme Court Chief Justice Lorie Gildea recently lamented the critically underfunded judiciary. However, she didn’t ask for more money, she simply pleaded for no further cuts.

Ohio Schedules Third Execution for Tuesday

Ohio Governor John Kasich rejected clemency for Clarence Carter. Barring court intervention, Carter will be executed at 10 a.m. on April 12, 2011 at the Southern Ohio Correctional Facility at Lucasville.

This is the third condemned inmate that Governor Kasich rejected for clemency since taking office in January, he offered no comment.

The Ohio public defender's office, former Ohio prisons director Terry Collins, and former Ohio Supreme Court Justice Herbert R. Brown urged Kasich to spare Carter's life, according to the Columbus Dispatch. They suggest that Carter should not be executed as the "worst of the worst" because the death of inmate Johnny Allen was "an inmate fight that got tragically out of hand." Allen died after he had been beaten for 25 minutes during a fight with Carter on Dec. 28, 1988. Both men were incarcerated in the Hamilton County jail annex at the time.

Carter will be the third person executed in Ohio this year.

To read more:

Thursday, April 7, 2011

California County Passes Onerous Sex Offender Restriction

Orange County, California District Attorney Tony Rackauckas successfully pushed for an onerous sex offender restriction in his community. Under the ordinance, sex offenders who visit any of dozens of public spaces without prior approval from county officials face up to six months in jail or a $500 fine, according to the Los Angeles Times.

The law, approved unanimously by the Orange County Supervisors, is the latest in a controversial series of ordinances across the country aimed at limiting where sex offenders can live and visit. They are commonly championed by politicians who say the laws are intended to keep sex offenders away from children and families.

The ordinance has more to do with political grandstanding than with actually protecting families. California is court mandated to reduce it enormous prison population. Governor Jerry Brown is about to sign into law an unfunded measure to transfer prisoners from state prisons to county jails. California has the nation's largest budget shortfall at $25 billion. Yet, Orange County wants to lock-up former offenders who go to public parks.

Franklin Zimring, a UC Berkeley law professor, told the Times that the law was overly broad and misdirected, because more than nine out of 10 sex crimes targeting children are committed not by strangers in a park, but by family members or acquaintances. "It's trying to solve a problem nobody knows exists," he told the Times, adding that laws imposing restrictions on sex offenders are snowballing because they are politically popular. "Who's going to lose votes being against child molestation?" he said.

According to the Times, Illinois passed a law last year making it a misdemeanor for sex offenders to be in or within 500 feet of a public park, and a South Carolina lawmaker introduced similar legislation after a 17-year-old was raped and murdered by a convicted sex offender at a park on the other side of the country, in San Diego County.

A bill in the California Legislature last year initially included a provision banning all sex offenders from parks where children regularly gather. But lawmakers ultimately limited the language to parolees whose victims had been under age 14. The change made the ban more enforceable because these parolees are required to wear GPS devices, reported the Times. There have already been legal challenges elsewhere.

In Jeffersonville, Ind., according to the Times, where a city ordinance banning sex offenders from parks was passed in 2007, a man convicted of sexual battery against a 13-year-old girl sued when he was not allowed to watch his son play Little League baseball because of the ban. The Court of Appeal there ruled that in his case, the ordinance was unconstitutional because he had been convicted and completed his registration as an offender before the law took effect.

To read more:,0,2962934.story

Wednesday, April 6, 2011

Alabama Carries Out 2nd Execution of 2011

The 11th Execution of 2011

William Glenn Boyd was executed on March 31, 2011 at the Holman Correctional Facility in Atmore, Alabama, just hours after his last-minute request for a delay was denied, reported Reuters. Boyd was the second condemned inmate put to death in Alabama this year and the first under newly elected Governor Robert Bentley.

According to Reuters, Boyd and another man broke into Fred and Evelyn Blackmon's home in Anniston, Alabama, on March 26, 1986. They demanded ransom for Evelyn Blackmon's daughter, whom Boyd had dated and claimed to have abducted. After forcing Fred Blackmon to cash a $5,000 check, the men bound and gagged the couple and drove them into the woods, where they were beaten and shot to death. Police later found Evelyn Blackmon's body in a metal drum that had been dumped into the Coosa River and Fred Blackmon's body in the trunk of his car, also submerged in the river.

The jury in Boyd's case recommended a sentence of life in prison without parole. But citing the heinous nature of the crime, the trial judge overrode the jury and ordered the death penalty. Alabama is one of the only states that permit the judge to overrule the jury on a life in prison verdict. Alabama is one of two states that permit less than a unanimous verdict on the death penalty.

The U.S. Supreme Court rejected Boyd's appeal on the day of his scheduled execution, reported Reuters. Boyd attorneys argued that the execution should be halted because the trial judge acted improperly. His attorneys said the trial and sentencing judge did not give the jury's recommendation or the neglect and abuse in Boyd's childhood sufficient consideration.

Boyd's last meal consisted of chicken, french fries, applesauce, a tomato and an orange drink, according to an Alabama Department of Corrections spokesman. Boyd also had a meatball sandwich, a Philly cheese steak sandwich, a V8 Splash drink and coffee from the vending machine.

Social Media and Juror Misconduct: A Growing Problem

Juror misconduct has taken-off with with the proliferation of social media like Facebook, Twitter, Myspace and blogging. In the past, an admonishment by the judge not to talk to witnesses, read the newspaper or talk about the case at home was enough to insulate jurors from undue influence. Not anymore. The California Lawyers explores the dangers and pitfalls of jury service and social networking.

Juror misconduct in the electronic media age hits at the heart of a fundmental constitutional right, the Sixth Amendment right to a fair trial. The California Lawyer provides some compelling examples of the growing problem:

-- In California a juror tweeted descriptions he obtained via Internet research on the difference between a medical examiner and a coroner, after the medical examiner testified. He bragged about seeing the judge's sidebar "scolding" of lawyers in the case. And he got feedback on his blog posts from a coterie of sympathetic online readers. After complaining about the length of the 19-day trial, the juror told his readers that he had volunteered to be foreman to "expedite matters." While serving as foreman during deliberations, he used his cell phone camera to photograph the murder weapon--a 15-inch saw-toothed knife--and posted the image on his blog.

-- A judge in Michigan fined a juror $250 last fall, and ordered her to write an essay on the Sixth Amendment, for posting a comment on her Facebook page-before the defense had presented its case-that she thought the defendant was guilty.

-- Five jurors in the corruption trial of former Baltimore Mayor Sheila Dixon last year "friended" one another on Facebook and continued to post comments about their jury service, even after being told not to by the judge.

-- A juror in West Virginia failed to disclose during voir dire that she knew the defendant and had contacted him on MySpace after receiving her jury summons. Her lengthy message included, "God has a plan for you and your life." The state Supreme Court overturned the defendant's fraud conviction, becoming one of the first courts in the nation to base its juror-misconduct ruling on a person's messages to a "friend" on a social networking site (State v. Dellinger, 225 W. Va. 736 (2010)).

The California Lawyer also touches on the way the issue is being addressed:

--The Ninth U.S. Circuit Court of Appeals revised its model jury instructions to account for Internet and other technologies. They read, in part, "Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via e-mail, text messaging, or any Internet chat room, blog, Web site or other feature." (Ninth Circuit Model Crim. Jury Instr. 1.8.)

--Another strategy is to determine which potential jurors are using new technologies before they get on panels. "Along with admonitions, judges and attorneys can ask basic questions of potential jurors--if they are using social media, Twitter, or blogs," Attorney Michelle Sherman told the California Lawyer. "There is no reason a judge can't ask their Twitter name. And they can impress on jurors [that] their activity will be monitored."

However, according to the California Lawyer, there are pitfalls for lawyers who try to monitor abuse. An attorney on Facebook should not be falsely "friending" potential jurors, friends of jurors, or adverse witnesses just to get a look at posts walled off by privacy settings, Attorney Sherman warns. Nor should they let anyone who works for them do so. An ethics committee in Pennsylvania recently said as much (Phila. Bar Assoc., Prof. Guidance Comm., Opinion 2009-02 (Mar. 2009)).

To read more:

Tuesday, April 5, 2011

Ohio A.G. Issues Capital Report

The Ohio Capital Crimes Annual Report was filed on April 1, 2011 by Attorney General Mike DeWine.

According to the Columbus Dispatch, Ohio has executed 43 killers, including two this year, since resuming capital punishment in 1999. Clarence Carter of Hamilton County is scheduled to be lethally injected next on April 12, 2011. Seven other executions are scheduled this year, and two more have been set for early 2012.

Ohio was second in the nation in executions last year, with eight to Texas' 17. Ohio was the only state to increase its number of executions last year. The eight executions last year were the most by Ohio since reinstating the death penalty in 1999. The executions scheduled for this year will surpass last year's total.

DeWine's report showed that the sentences of 14 Death Row prisoners have been commuted, beginning with eight clemencies that Governor Richard F. Celeste granted just before leaving office in 1991. One inmate received mercy from Governor Bob Taft, and five received clemency from Governor Ted Strickland, as reported by the Dispatch.

Twenty inmates on Death Row have died in prison of natural causes before execution. Eight others were released by court order because they were deemed to be mentally retarded and banned from execution pursuant to Atkins v. Virginia, 536 U.S. 304 (2002).

The average age of the inmates who were executed was 43, and the average time they spent on Death Row was 15.3 years, according to the Dispatch.

For the full report:

States Scramble to Reduce Criminal Justice Costs

The 2010 mid-term elections put Republicans in control of 25 state legislatures and 29 governor's offices, and many have pledged not to raise taxes even as they face budget shortfalls. According to the Denver Post, Republican governors and lawmakers pushed for many of the policies that put low-level drug offenders and nonviolent felons behind bars and extended sentences for many convicted criminals.

Now that GOP are in control of financially strapped state governments, a growing number of Republican elected officials favor a review of sentencing laws that contributed to a fourfold increase in prison costs over two decades. The Post reported that the total cost of incarcerating state inmates swelled from $12 billion in 1988 to more than $50billion by 2008.

The Post chronicled four of the 44 states that will experience a budget shortfall in 2012 and how those states intend to deal with sky-rocketing criminal justice costs:

In Florida, lawmakers are considering an overhaul to help close a $3.6 billion shortfall. The state's new governor, Republican Rick Scott, campaigned on a promise to cut prison spending by $1 billion and has since proposed more money to fight drug and alcohol abuse.

Georgia's newly elected Republican governor, Nathan Deal, didn't talk much about the state's high incarceration rates during his 2010 campaign, but he turned sentencing reform into one of his major platforms once he took office. Leaders from all three branches of Georgia state government—and both political parties—appeared together to back a study of reforms that would provide alternative sentences for nonviolent offenders and reduce prison costs. Legislation to create a commission that would rewrite the state's sentencing laws is moving through the statehouse.

In Kentucky, lawmakers from both parties are touting a new law that would bolster treatment programs and offer alternative sentences to keep more nonviolent criminals from prisons. After the state's Republican-led Senate and Democratic-controlled House passed the legislation, Democratic Governor Steve Beshear signed it into law in early March, saying it enables the "state to continue to be tough on crime but at the same time to be smarter about it."

California runs the nation's largest state prison system, with 152,000 inmates, and is under a federal court order to reduce its inmate population as a way to improve medical treatment. It primarily has done so by shipping more than 10,000 inmates to prisons out of state. Last week, lawmakers sent newly elected Governor Jerry Brown a bill, at his request, that would shift tens of thousands of lower-level offenders to counties' jurisdiction, a move designed to save the state money.

To read more:

Monday, April 4, 2011

Book Review: The Road Out of Hell by Anthony Flacco

Thirteen year old Sanford Clark lived through unspeakable horrors at the hand of this Uncle Gordon Stewart Northcott. Uncle Stewart raped and tortured Sanford for two years, while the two lived on Northcott’s isolated chicken ranch in southern California.

However, rape and torture were only part of the story. Anthony Flacco in his meticulously researched book The Road Out of Hell tells the rest of the story. Northcott sodimized, tortured and murdered as many as twenty boys on the ranch, known as the Winesville Chicken Coup. He forced Sanford, under threat of violence, to join in his fiendish conduct. Northcott’s mother, an enabler of her psychotic son, willingly joined in his diabolical murders.

The book’s chilling interplay between mother and child is a vivid portrait of psychopathy. Flacco describes when Northcott invited his mother, under false pretenses, to the ranch because he kidnapped a child whose mother knew Northcott. Northcott’s mother said, moments before she murdered the child, “All of that shit about sick birds. Do you know that I used up my days off for the entire month to come out here?” Flacco described the psychopath, lack of emotion, empathy and remorse, without a single clinical reference.

The Academy-Award nominated movie Changeling directed by Clint Eastwood and starring Angelina Jolie is based in part on the Winesville killings and the haunting relationship between Sanford and Northcott.

Flacco’s story goes beyond the mind boggling deviance of Northcutt. Flacco weaves a story of redemption out of a tale of horror. Sanford Clark’s story doesn’t end at the Winesville Chicken Coup in southern California—it is just beginning.

The Road Out of Hell is riveting. The first 150 pages wherein the book details the tormented life of Sanford Clark, the rape, torture and murder of some of Northcott's many child victims and the twisted relationship between Northcott and his mother was at times difficult to comprehend. However, it was also difficult to put down.

The book is an amazing tale of how little separates the diabolical from the divine. There are countless stories of offenders who blame a childhood of abuse, lack of family support or underprivileged upbringing for their criminal ways. Yet, Flacco provides us with a portrait of a man who overcame abuse and lived, by all accounts, a model life. The Road Out of Hell tells two stories, both equally incongruent, one about evil and one about good.

The Road Out of Hell demonstrates that a victim of the unthinkable can survive and thrive. The book provides the reader with a compelling perspective on victimization, psychopathy and redemption.

Anthony Flacco with Jerry Clark
Sterling Publishing
285 pages

Sunday, April 3, 2011

Ohio must correct ‘crack cocaine’ sentencing disparity

The Youngstown Vindicator
Sunday, April 3, 2011

Ohio continues to use an unfair sentencing law that is a relic of a more violent era. There was a dramatic surge in violent crime in America between 1980 and 1995. In 1991, there were 783 murders in Ohio. By 2009 that number had decreased by 34 percent to 519 murders. Many attributed the surge in violence to the introduction of crack cocaine into many communities.

In response, draconian drug laws were enacted to combat the hysteria surrounding the “crack epidemic.” The penalties were significant and far reaching. The Sentencing Project reported that Americans incarcerated for drug offenses in state prisons went from 19,000 in 1980 to 265,000 by 2008.

In 1986, the federal government enacted the Anti-Drug Abuse Act. Under the law, a person convicted of crack cocaine possession got the same mandatory prison term as someone with 100 times the same amount of powder cocaine. The result of the 100:1 ratio is that sentences for crack cocaine offenders were often much longer than those for powder cocaine offenders.

Ohio lawmakers adopted penalties for crack cocaine in the mid-1990s and established a ratio that fluctuated between 10:1 and 2:1 for low-level crack and powder offenses, according to a report by the Sentencing Project.

Harsher sentences

The chief complaint with the Anti-Drug Abuse Act was that the harsher drug sentences for crack cocaine possession disproportionately affected African-Americans. A 2006 U.S. Sentencing Commission Report found that 82 percent of those sentenced under federal crack cocaine laws were black and only 8.8 percent were white — even though more than two-thirds of people who used crack cocaine were white.

It’s not as though the racial issue had just come to the nation’s attention. In 1991, the Minnesota Supreme Court struck down its state crack/powder cocaine statute because it was “racially discriminatory in its impact.” In fact, 11 years before the Sentencing Commission’s 2006 findings, the Commission recommended to Congress that the 100:1 ratio be reduced to a 1:1 ration. Congress rejected the recommendation.

Fifteen years passed before President Barack Obama signed the Fair Sentencing Act of 2010. The new legislation reduced the ratio to about 18:1. The new law also eliminated the five-year mandatory minimum for first-time possession of crack.

Last month, the Sentencing Project released a report, Cracked Justice. The report found that 13 states maintain sentencing disparities between crack and powder cocaine offenses. Ohio is one of those states. The report found that penalties for crack cocaine are far harsher than those for powder cocaine. For example, a person caught with only 25 grams of crack can be convicted of a first-degree felony, while it requires at least 500 grams of powder cocaine to face the same sanctions.

Equalizing sentences

The Cracked Justice report suggests that attempts to reduce penalties for crack failed in Ohio because lawmakers did not want to be perceived as being soft on crime. During the 2007 legislative session, Ohio lawmakers considered a bill that would have equalized crack and powder sentences by enhancing penalties for powder cocaine while leaving crack penalties the same.

“We’ve got a growing problem in our rural areas of the state, and many of these members are well aware of the problem,” State Sen. Ray Miller told the Cleveland Plain Dealer at the time. “Fundamentally, equalizing the penalties at a higher level as opposed to bringing them down was key to passage.” The measure did not make it out of committee in the state House.

In 2010, Ohio policymakers attempted to reform the state criminal justice system through a comprehensive package of bills that included eliminating the sentencing disparity between powder and crack cocaine. The package included measures to remove any definitions that distinguished crack cocaine from powder cocaine. While the measure garnered bipartisan support, it did not pass.

‘Gate pay’

Ohio has an $8 billion revenue shortfall. The state’s austerity plan needs to look beyond the elimination of expenditures like the $75 “gate pay” given to inmates when they are released from prison. The $374,000 saved over two years on gate pay would pale in comparison to savings from restructured sentencing policies.

Saturday, April 2, 2011

Alabama: Reduce Inmates to Balance Budget

Alabama legislators were told that prison population must be reduced by 3,000 inmates in order to balance Governor Robert Bentley's proposed budget plan. Some victim advocates are concerned that public safety is taking a back seat to state finance.

Alabama Chief Justice Sue Bell Cobb told the Birmingham News, Alabama ranks near the top of the nation in the percentage of people it puts behind bars, but that has not reduced the state's crime rate. Cobb said the goal is to make the people of Alabama safer.

Kim T. Thomas, interim commissioner of the Alabama Department of Corrections, told the News, on average, Alabama prisons are at 190 percent capacity. The Alabama prison system took in 10,219 inmates in 2009 and released 9,033, resulting in a net increase of 1,186 inmates, Thomas said.

State Finance Director David Perry told a joint meeting of the House and Senate judiciary committees that Governor Bentley would prefer the prison population was reduced by changing sentencing laws, rather than releasing inmates, according to the News.

Perry spoke with legislators as they met to begin work on a package of sentencing and corrections bills proposed by the Alabama Public Safety and Sentencing Coalition. The bills are aimed at reducing the state prison population.

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Friday, April 1, 2011

The Cautionary Instruction: Death Penalty

Pittsburgh Post-Gazette/Ipso Facto
April 01, 2011

Has the death penalty lost its way in the muddled political rhetoric of 21st century governance?
Pennsylvania reinstated the death penalty in 1977. There are 222 killers on the state’s death row. Yet, Pennsylvania has executed just three men. All three waived their appeal rights and asked to be executed. Year after year, men and women in Pennsylvania continue to be tried, convicted and sentenced to death.
While Pennsylvania is having trouble carrying out executions, some states are having a tough time getting beyond the decision to have or not have the death penalty.
In Illinois, Governor Pat Quinn recently signed a bill abolishing the death penalty.
According to The Chicago Tribune, a state representative introduced legislation to reinstate the death penalty even before Governor Quinn signed the bill abolishing it.

Former New Mexico Governor Bill Richardson signed a bill outlawing the death penalty in 2009. The state’s newly elected Governor, Susan Martinez, has vowed to bring the death penalty back to New Mexico.
In New Jersey, Assemblyman Reed Gusciora, sponsored the bill that abolished the state’s death penalty in 2007. Recently, he reconsidered his position on the death penalty in light of the shooting of an Arizona congresswoman and the murder of a New Jersey police officer.
Gusciora told The Trentonian, “I would vote on a bill today that would impose the death penalty.”
Ohio is literally setting the standard nationwide for the death penalty. Ohio is on the cutting edge of execution methods. Last year, Ohio executed eight offenders -- second only to Texas.
Ohio has executed two offenders in 2011 and has ten executions scheduled for the year. Ten executions in a year would be the most since the death penalty was reinstated in Ohio.

Just this month, Ohio State Representative Ted Celeste, introduced legislation to ban Ohio's death penalty. Celeste is not without allies. Ohio Supreme Court Justice Paul Pfeifer, one of the authors of Ohio's death penalty statute as a state senator, has recently come out in opposition of the death penalty.
There are 3,373 inmates on death row. There were only 46 executions in 2010. The likelihood that an offender sentenced to death will ultimately be executed has become exceedingly rare. Yet, governors and legislators; prosecutors and defense attorneys; wardens and corrections officers consume a great deal of their time "tinkering" with the death penalty.

Lawyers and prison officials have to -- politicians want to.

Read last weeks The Cautionary Instruction: Crime, punishment and cash