Tuesday, May 31, 2011

Full Text of Fross v. Allegheny County, PA Supreme Court

Below is the full opinion of the Pennsylvania Supreme Court in Fross v. County of Allegheny, the decision striking down Allegheny County's sex offender residency restriction Ordinance.

No. 17 WAP 2010
Certification of Question of Law upon
Petition of the United States Court of
Appeals for the Third Circuit
ARGUED: October 19, 2010
Upon certification by the U.S. Court of Appeals for the Third Circuit, we accepted for
review the issue of whether Allegheny County Ordinance No. 39-07-OR (the “Ordinance”),
which imposes residency restrictions on certain offenders, is preempted by the
Pennsylvania Prisons and Parole Code, 61 Pa.C.S. § 101 et seq., (“Parole Code”) and/or
by the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et seq. (“Sentencing Code”).
The Ordinance applies to offenders subject to the registration requirements of those
provisions of the Sentencing Code collectively known as Megan’s Law. See 42 Pa.C.S. §§
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9791-9792; 9795.1-9799.4; 9979.4-9979.9.1 For the reasons that follow, we hold that the
Ordinance impedes the accomplishment of the full objectives of the General Assembly, as
expressed in the Sentencing and Parole Codes, and is, therefore, invalid pursuant to our
conflict preemption doctrine.
Pennsylvania’s current version of Megan’s Law requires individuals convicted of,
inter alia, kidnapping, indecent assault, or promoting prostitution, to register for ten years
following release on probation or from prison. Persons convicted of two or more offenses
subject to ten-year registration, sexually violent predators, and persons convicted of, inter
alia, rape, involuntary deviate sexual intercourse, or aggravated indecent assault, are
subject to lifetime registration upon release. 42 Pa.C.S. § 9795.1(a)-(b); see 42 Pa.C.S. §
9792 (defining “sexually violent predator”). In addition to requiring the registration of these
offenders (“sex offenders” or “registrants”), the act also provides for notification of
community members that such an offender will live in or near their neighborhood and
mandates counseling for released sex offenders. 42 Pa.C.S. § 9791(b) (declaration of
legislative policy). According to the General Assembly, Megan’s Law facilitates community
access to information regarding the presence in the neighborhood of sexually violent
predators and other sex offenders, in recognition that these offenders pose a high risk to
re-offend upon release and, thus, to endanger public safety. See 42 Pa.C.S. § 9791(a)
(legislative findings). Safety of the public, according to the Legislature, is of “paramount
concern.” 42 Pa.C.S. § 9791(a)(3). A secondary interest is the effective operation of
government. 42 Pa.C.S. § 9791(a)(5).
1 Acceptance of certification from the Third Circuit on a question of law is a matter of
judicial discretion. Supreme Court I.O.P. § 10(B). Thus, we accept certification for “special
and important reasons,” including if the question of law at issue “is one of first impression
and is of such substantial public importance as to require prompt and definitive resolution
by this Court.” Id. at § 10(B)(1).
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Pursuant to Megan’s Law, a registering sex offender must provide to the
Pennsylvania State Police information regarding “all current or intended” residences,
employment, and school enrollment. 42 Pa.C.S. § 9795.2(a). After the initial registration,
the offender is to update the information within forty-eight hours of any change in the nature
or location of residency, employment, or student status. Id. The State Police is charged
with a duty to verify the residence of registered offenders either quarterly (for sexually
violent predators) or annually (for other offenders). 42 Pa.C.S. § 9796. For every
registrant, the State Police provides the information collected to local law enforcement
officials where the registered offender resides, works, or is enrolled in school; the State
Police also notifies the offender’s victim(s) and makes information about the offender
available on the Internet. 42 Pa.C.S. §§ 9795.2(c), 9797, 9798.1. Local law enforcement is
responsible for notifying the public regarding the presence of a sexually violent predator in
a community, as provided in 42 Pa.C.S. § 9798.2
The release from custody of a Megan’s Law registrant is conducted pursuant to the
provisions of the Pennsylvania Sentencing and Parole Codes, generally applicable to all
offenders within the Commonwealth’s jurisdiction. Sentencing courts and the Pennsylvania
Board of Probation and Parole (the “Board”) share duties of implementing the two statutes
within their respective spheres.
In this context, the primary role of the court is to determine an appropriate sentence
in each case, including confinement, probation, or intermediate punishment. A court must
consider in selecting a sentence “the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the rehabilitative
2 The General Assembly assigned to the State Police responsibility for the registration
system’s administration but charged courts with informing a sex offender of his/her
obligation to supply the required data to the State Police, and the Pennsylvania Board of
Probation and Parole with collecting the data from sex offenders prior to release, for entry
into the system. 42 Pa.C.S. §§ 9799.1, 9795.3, 9799.2(2)-(3).
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needs of the defendant.” 42 Pa.C.S. § 9721(a), (b). The sentencing court may attach to
probation reasonable conditions tailored to each offender. See 42 Pa.C.S. § 9754(c)
(probation). For offenders who remain under the jurisdiction of the sentencing court, see
infra n.3, the order of probation may be modified by the sentencing court at any time. 42
Pa.C.S. § 9771. Until termination of the sentence, probationers remain under the
supervision of county probation and parole officers. 42 Pa.C.S. §§ 9911, 9912.
Within the same system, the Board’s function is the administration of probation and
parole in Pennsylvania. 61 Pa.C.S. § 6111(a). The Board operates the parole system with
the primary purpose of protecting the public, but also with the twin goals of supplying an
“opportunity for the offender to become a useful member of society” and of diverting
appropriate offenders from prison. 61 Pa.C.S. § 6102(1)-(2). It must also “ensure that
parole proceedings, release and recommitment are administered in an efficient and timely
manner.” 61 Pa.C.S. § 6102(3).3
The Board exercises discretionary parole authority, but must generally balance in
making its decision the “best interests” of the offender which justify or require parole, and
the interests of the Commonwealth that would be injured by the offender’s release on
3 The Board has “exclusive” power “[t]o parole and reparole, commit and recommit for
violations of parole and to discharge from parole” any persons sentenced to imprisonment
in state or county correctional institutions for a maximum term of more than two years or
any persons placed under Board supervision by a court; sentencing courts have residual
authority to parole persons sentenced to a maximum of less than two years. 61 Pa.C.S. §
6132; 42 Pa.C.S. § 9776(a); accord 61 Pa.C.S. § 6134.1(c). Further, the Board supervises
any person placed on probation by special order of the sentencing court. 61 Pa.C.S. §
6133(a). Otherwise, like probationers, parolees are supervised by county probation and
parole officers. 42 Pa.C.S. § 9776. County probation and parole officers are subject to
certain “uniform [s]tatewide standards” established by the Board regarding qualifications,
minimum salaries, and quality of services. 42 Pa.C.S. §§ 9756(b)(3), 9775, 9776(d), 9911;
61 Pa.C.S. § 6131(a)(5) (uniform standards); accord Timothy P. Wile, “County” parole, 12
WEST’S PA. PRAC., Law of Probation & Parole § 3:2 (2010 ed.).
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parole. 61 Pa.C.S. § 6137(a).4 For these purposes, the Board has a duty to investigate
and consider the individual nature and circumstances of the offender and his offense, the
victim’s wishes, and recommendations from the sentencing judge and prosecuting attorney.
61 Pa.C.S. §§ 6134; 6135(a). The Parole Code requires that, if an offender is eligible for
parole, the Board “shall approve” parole upon a determination that the offender’s reentry
plan is “adequate” and that there is no reasonable indication of the offender posing a risk to
public safety. 61 Pa.C.S. § 6137(g)(4).
Probationers and parolees are subject to general and individual rules of conduct and
supervision described at sentencing and/or in the parole agreement. Wilson v. Marrow,
917 A.2d 357, 363 (Pa. Cmwlth. 2007); see 42 Pa.C.S. § 9754 (order of probation); 61
Pa.C.S. § 6141 (general and specific rules for parolees); 37 Pa. Code §§ 63.4-63.5; 65.4-
65.6; 67.1-67.3 (conditions of parole). For probationers, the order at sentencing may
incorporate conditions to “reside in a facility established for the instruction, recreation, or
residence of persons on probation,” to meet family responsibilities, to obtain employment,
and to attend a drug rehabilitation program. 42 Pa.C.S. § 9754(c). The purpose of Section
9754 of the Sentencing Code is to “insure [sic] or assist the defendant in leading a lawabiding
life.” 42 Pa.C.S. § 9754(b). Similarly, parolees must have their residence
approved by the Board at release, live there, and not change residence without written
permission from the parole supervision staff. 37 Pa. Code § 63.4(2). Other requirements
4 According to the Parole Code, the Board and other paroling entities are also to
consider parole guidelines articulated by the Pennsylvania Commission on Sentencing. 61
Pa.C.S. §§ 6134.1(c), 6102(3); see 42 Pa.C.S. § 2154.5. The General Assembly tasked
the Commission to adopt such guidelines in 2009. Act No. 81 of Sept. 25, 2008, P.L. 1026,
§ 4, effective in 60 days. But, the Commission has yet to publish guidelines, and the Board
has utilized its own informal parole rules since at least 1981. Timothy P. Wile, Parole
guidelines, 12 WEST’S PA. PRAC., Law of Probation & Parole § 8:13 (2010 ed.). See, e.g.,
Appellees’ Brief at 5 (citing Board’s pamphlet “State Parole and Parole Release Plans:
What Inmates and their Families Need to Know,” which provides restrictions on residency
of sex offenders within two blocks of a playground, school, or day care facility).
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include maintaining regular contact with supervisory staff, and refraining from violating
criminal laws, from using or possessing illegal drugs, and from owning or possessing
weapons. 37 Pa. Code §§ 63.4(3)-(5); 65.4(3)-(5).5
In this comprehensive legal context, the political subdivision at issue, Allegheny
County (the “County”) amended its County Code to add a new chapter entitled “Residence
Requirements; Registered Sex Offenders,” which became effective March 1, 2008. In
relevant part, the Ordinance states:
It shall be unlawful for any Sex Offender to establish a
Permanent Residence or Temporary Residence within 2,500
feet of any Child Care Facility, Community Center, Public Park
or Recreational Facility, or School for the duration of his or her
registration under the terms of Megan’s Law, 42 P[a.C.]S. §
9791 et seq.
Ordinance § 275-02(A) (Residency Restriction/Prohibition). “Sex Offender” is defined to
include all Megan’s Law registrants. Ordinance § 275-01 (definitions). According to the
Ordinance, upon determining that a Megan’s Law registrant resides within the prohibited
area, s/he will be notified of the violation and will have forty-five (45) days to move from his
or her residence to a new location, which complies with § 275-02(A). Ordinance § 275-
03(A)-(B). With limited exceptions, each day beyond the forty-five (45) day grace period
that the sex offender resides in a prohibited location constitutes a separate violation of the
Ordinance. Ordinance § 275-03(C); § 275-04 (exceptions); § 275-05 (exemptions).
Violation of the Ordinance constitutes a summary offense subject to a maximum term of
imprisonment of forty-five (45) days and a fine of up to $500, plus the costs of prosecution.
Ordinance § 275-07 (penalties). According to the County, the purpose of the Ordinance is
5 The Board’s regulations also provide that the released offender must “[c]omply with
municipal, county, State and Federal criminal statutes, as well as the Vehicle Code and the
Liquor Code.” 37 Pa. Code §§ 63.4(4); 65.4(4).
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“to augment the provisions of Pennsylvania’s Megan’s Law and [to] better provide for safety
of the County’s residents.”
In adopting the Ordinance, the Allegheny County Council made several legislative
findings based on a 2007 report of the Pennsylvania Attorney General regarding Megan’s
Law compliance, a 2003 U.S. Department of Justice publication on sex offender recidivism,
and similar reports from sister states. The Council also noted that Allegheny County was
joining many other municipalities to adopt sex offender residency restrictions. “White Oak
Borough became the first of the over 130 municipalities within Allegheny County to pass a
residency restriction within the last six months, and it appears that other municipalities are
considering the possibility as well.” Ordinance Preamble.
In relation to the Ordinance, the County published a map depicting the restrictions
on residency imposed by the Ordinance. According to the district court’s unchallenged
finding, “the vast majority of Allegheny County falls within the restricted zone, with
permissible areas generally confined to outlying, suburban communities such as Sewickley
Heights, Bell Acres, South Fayette, Collier, and West Deer. The map does not indicate the
topography of the permissible areas, nor whether residential housing is permitted or
available in them.” Fross v. County of Allegheny, 612 F. Supp. 2d 651, 653 (W.D. Pa.
Appellees Charles Fross, Shawn Czerwien, Charles Meter, Christopher Haigh, and
two unidentified parties (“appellees”) are all convicted sex offenders subject to the
registration requirements of Megan’s Law and the residency restrictions of the Ordinance.
On October 6, 2008, appellees filed suit in federal court against Allegheny County,
challenging the Ordinance on both federal and state law grounds. In relevant part,
appellees asserted that the Ordinance was preempted by the Sentencing Code and the
precursor to the current Parole Code, and requested a declaration that the Ordinance was
invalid, an order enjoining enforcement of the Ordinance, and payment of litigation costs
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and attorneys’ fees.6 The County responded that the Ordinance was a permissible
exercise of its powers and valid.7
The Honorable Gary L. Lancaster of the U.S. District Court for the Western District of
Pennsylvania consolidated appellees’ requests for preliminary and merits relief, and
directed the parties to file cross-motions for summary judgment addressing only the state
law preemption issue. On March 20, 2009, Judge Lancaster granted appellees’ motion for
summary judgment, holding that the Ordinance was invalid pursuant to the doctrine of
conflict preemption. Fross, 612 F. Supp. 2d at 660.
The federal district court agreed with appellees and concluded that the Ordinance
was “an obstacle” to fulfilling the “full purposes and objectives” of Megan’s Law and of the
repealed precursor to the Parole Code. Fross, 612 F. Supp. 2d at 658. According to the
court, the Ordinance forbade what state law allowed and, therefore, conflicted with state
law “in terms of both policy and operational effect.” Id. The court based its conclusions on
findings: (1) that “[r]ehabilitation and reintegration depend on the creation and maintenance
of a stable environment and support system, close to family ties, employment, and
treatment options;” (2) that the Board denied the release on parole of “many” eligible
offenders because housing compliant with the Ordinance was not available; and (3) that a
sex offender seeking parole and approval of a “home plan” in Allegheny County was
subject to a different standard for release than similarly situated offenders in other parts of
the Commonwealth. Id. at 658-69 (citing G.H. v. Twp. of Galloway, 951 A.2d 221, 236 (N.J.
6 At the time appellees filed their federal action, probation and parole in Pennsylvania
were governed by Act 323 of August 6, 1941, P.L. 861, as amended. 61 P.S. §§ 331.1-
331.34a. That act was repealed and essentially reenacted in August 2009. See 61
Pa.C.S. § 101 Historical & Statutory Notes.
7 The County agreed to delay enforcement of the Ordinance pending resolution of this
case. Independently, however, the Board apparently has been requiring that residency
plans comply with the Ordinance. See Fross, 612 F. Supp. 2d at 652 n.1.
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Super. 2008) (local sex offender residency ordinance preempted because New Jersey
Legislature intended to exclusively regulate field)). The district court noted that, currently,
the Board’s statewide policy is to reject the home plan of a sex offender whose victim was a
minor if the proposed residence was located within “two blocks” of a school, day care
center, or playground. But, the Allegheny County Ordinance adopted a residency
restriction which applied to all offenders, regardless of whether the victim was a minor, and
within a radius of 2,500 feet from any school, public park, community or recreational center,
and child care facility. Id. at 658. Judge Lancaster concluded that, by placing strict
restrictions on where sex offenders could reside, essentially prohibiting any sex offender
from living throughout most of Allegheny County, the Ordinance directly interfered with the
goals of the Parole Code’s precursor, namely inmate rehabilitation and reintegration,
avoidance of unnecessary incarceration, and the establishment of a uniform system of
supervising persons on parole and probation. According to the court, “[t]he conflict with
state law is evident: where the state has decided that the offender is ready to return to his
community, the County has placed a nearly insurmountable obstacle in the way of that
return.” Id. at 659.
The district court also underscored that the Ordinance was likely to have
ramifications throughout the state as neighboring communities reacted to a real or
perceived influx of “undesirable residents.” Id. at 660. According to Judge Lancaster, the
Ordinance and similar local regulations interfere with the proper functioning of the Board
and courts, and cumulatively could prevent the effective operation of the Commonwealth’s
probation and parole system. Id. Ultimately, the district court found that the Ordinance was
invalid and unenforceable.8
8 The district court rejected appellees’ alternative field preemption theory as
inapplicable on the ground that this Court, to date, has only recognized a legislative intent
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The County appealed. In January 2010, a panel of the Third Circuit referred the
case for review to this Court, by petitioning for certification of the following legal question
involving Pennsylvania law:
Is Allegheny County Ordinance No. 39-07-[OR] entitled
“Residence Requirements; Registered Sex Offenders”
preempted by Pennsylvania statutory law and the procedures
of the Pennsylvania Board of Probation and Parole?
Petition for Certification at 15. The panel offered no opinion on whether it agreed with the
district court’s preemption conclusions. Third Cir. Op. at 11. On June 3, 2010, this Court
granted the Petition for Certification.
In its brief to this Court, the County argues that we should reject appellees’ various
theories of preemption and find the Ordinance valid.9 The County emphasizes its status as
a home rule county, whose locally-tailored legislation is entitled to deference. The County
claims that the Ordinance conflicts neither with Megan’s Law nor with the Parole Code.
According to the County, the Ordinance shares with the two statewide acts the goal of
protecting public safety, albeit by different means specific to the necessities and concerns
of Allegheny County. Thus, the County argues that the Ordinance regulates where sex
offenders may reside, a subject different from the concerns of Megan’s Law -- registration
and public notification. County’s Brief at 22 (quoting Commonwealth v. Williams, 832 A.2d
962, 973 (Pa. 2003) (Megan’s Law does “not significantly restrain registrants, who remain
‘free to live where they choose, come and go as they please, and seek whatever
to fully preempt local legislation in three areas: alcoholic beverages, banking, and
anthracite mining. 612 F. Supp. 2d at 654-55.
9 Although the question certified by the U.S. Court of Appeals for the Third Circuit
concerns the effect of the current legislative scheme on the Ordinance, the County has
inexplicably referenced the repealed act in its arguments. We, of course, answer only the
question properly before us, the question certified by the Third Circuit.
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employment they may desire.’”). Similarly, with respect to the Parole Code, the County
claims that there is no conflict arising from the Ordinance because, although the Parole
Code grants the Board exclusive power over parole decisions and seeks to establish a
uniform statewide system of parole through detailed regulation, by its plain language, the
Ordinance does not seek “to regulate or intrude upon” these prerogatives. County’s Brief at
25 (citing 61 P.S. § 331.17).
The County also asserts that the parole legislative scheme and the Board’s
regulations generally cannot trump the well-established right of municipalities to adopt local
laws regarding the health, safety, and welfare of their residents. Id. at 28 (citing 37 Pa.
Code § 63.4(4) (offender must comply with municipal and county criminal statutes);
Commonwealth v. Ogontz Area Neighbors Ass’n, 483 A.2d 448 (Pa. 1984) (“Ogontz”) (state
agency must conform to local zoning scheme). Finally, the County concludes that the
Ordinance should be upheld as a mere supplement to existing statutes and as a valid
exercise of the County’s legislative power. According to the County, because the
Ordinance is a valid County Council action in response to a recognized health and safety
concern, we should direct the Board to operate within the regulatory environment created
by the Ordinance.
Appellees, however, urge this Court to find that the Ordinance interferes with the
purposes of the General Assembly in adopting Megan’s Law and the Parole Code and,
therefore, that it is invalid pursuant to the conflict preemption doctrine. Appellees
emphasize that the supervision of sex offenders on probation and parole is highly regulated
in Pennsylvania through comprehensive and detailed statutes. According to appellees,
Megan’s Law, “expressly contemplates residency by sex offenders within residential
neighborhoods and proximate to schools and day care facilities following assessment and
with monitoring, treatment[,] and notification.” Appellees’ Brief at 26. The release into the
community of sex offenders is based on individualized assessments by criminal justice and
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mental health professionals, and is controlled down to “every aspect of [the offenders’]
existence, including specifically where they may or may not live.” Appellees’ Brief at 17,
25.10 The Board’s policy is to prohibit sex offenders whose victims were minors from living
within two blocks of the same schools and day care centers; but, the County created a
restriction that vastly exceeds in scope the Board’s prohibition. According to appellees, the
County usurps the Board’s power to approve a sex offender’s residence by essentially
excluding all sex offenders from Allegheny County and thus limiting the discretion of courts
and of the Board in sentencing and paroling, or in exempting a sex offender from
notification requirements where appropriate. According to appellees, the Ordinance
essentially prohibits residency in areas of Allegheny County that state law allows and
“unduly” restricts the liberty of sex offenders on parole. Appellees claim the Ordinance is a
blunt instrument that fails to take into account individual circumstances and the professional
judgment of experts who assess individual sex offenders and their residency requirements.
Moreover, appellees argue that the Ordinance thwarts the express purposes of the
Sentencing and Parole Codes to ensure public safety, the rehabilitation and integration of
sex offenders in the community, and a reduction in the prison population. Appellees note
that greater access to treatment, employment, family, and other familiar community
supports are generally identified with a decreased risk of recidivism and successful
rehabilitation and reintegration of sex offenders into the community. But, the Ordinance
deprives sex offenders seeking to return to Allegheny County of these advantages by
“single-mindedly focusing on excluding sex offenders from living in the most habitable
portions of the County.” Appellees’ Brief at 29 (citing 61 Pa.C.S. § 6102(1)). Appellees
10 The Association for the Treatment of Sexual Abusers (“ATSA”) filed an amicus
curiae brief on behalf of appellees. ATSA essentially reasserts appellees’ arguments,
claiming among other things that residency of offenders is a critical matter in probation and
parole decisions, with which individuals counties should not be permitted to interfere.
ATSA Brief at 11, 14.
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conclude that, although allegedly intended to reinforce the Commonwealth’s objective of
ensuring public safety, the Ordinance in actuality has the opposite effect. Id. at 31 (citing
G.H., 951 A.2d at 236). According to appellees, the Ordinance conflicts with both the
ameliorative approach of the General Assembly and its goal of protecting the public.
Further, by blocking efforts to release and reintegrate sex offenders into the community, the
Ordinance interferes with the Board’s duty to divert appropriate offenders from prison and
to administer parole release “in an efficient and timely manner.” Id. (citing 61 Pa.C.S. §
Finally, appellees contend that the Ordinance is not legislation legitimately targeted
toward specific local concerns and they reject any suggestion that, pursuant to Ogontz,
supra, the Ordinance is not subject to preemption. Id. at 21, 27-28 (citing G.H., 951 A.2d at
226; City of Northglenn v. Ibarra, 62 P.3d 151, 156 (Colo. 2003) (local ordinance
preempted because “state’s interest in fulfilling its statutory obligations to place and
supervise delinquent children in state-created foster care families in a uniform manner
overrides any city interest in regulating land uses”). Appellees also insist that the Board did
not relinquish any statutory authority by adopting Regulation 63.4(4), which directs parolees
to comply with municipal and county criminal codes. According to appellees, the Ordinance
is a local public safety regulation inconsistent with the comprehensive state legislative
scheme and it is, therefore, invalid. Id. at 33-34 (citing Range Res. Appalachia, LLC v.
Salem Twp., 964 A.2d 869 (Pa. 2009)).11
11 The parties also argue, and disagree on, whether the Ordinance is invalid pursuant
to the field preemption doctrine. Thus, appellees argue that the general tenor of the Parole
Code reflects a legislative intention that it should not be supplemented at a local level.
According to appellees, the General Assembly directed the Board to promulgate
regulations establishing “uniform Statewide standards” for supervision of probationers
governing every aspect of an offender’s life, including residency, and provided the Board
“exclusive power” over the parole system. Appellees also emphasize a “special need for
uniformity” in the areas of probation and parole. In response, the County argues that there
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The application of the doctrine of preemption to invalidate Allegheny County’s
Ordinance raises a pure question of law. Our review of a question of law certified by the
U.S. Court of Appeals for the Third Circuit is plenary. Official Comm. of Unsecured
Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers, LLP,
989 A.2d 313, 327 (Pa. 2010).
Pennsylvania counties are creations of the state with no powers of their own, except
those powers expressly granted to them by the Constitution of the Commonwealth or by the
General Assembly, and other authority implicitly necessary to carry into effect those
express powers. Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 964
A.2d 855, 862 (Pa. 2009) (“Huntley”) (citing City of Phila. v. Schweiker, 858 A.2d 75, 84
(Pa. 2004)). Pursuant to the Constitution, counties may frame and adopt home rule
charters. PA. CONST. Art. IX, § 2 (municipalities may adopt home rule), § 14 (municipality
includes county). Any county which has adopted a home rule charter has the general
authority to adopt ordinances “as may be required” and “may exercise any power and
perform any function not denied by this Constitution, by its home rule charter or by the
General Assembly at any time.” PA. CONST. Art. IX, § 2; 53 Pa.C.S. § 2961 (general
is no precedent for finding field preemption with respect to the regulation of probation and
parole, and that this Court has only recognized field preemption with respect to regulation
of alcoholic beverages, banking, and anthracite mining. Because we conclude that the
Ordinance is preempted pursuant to the conflict preemption doctrine -- which was the
ground for decision of the District Court -- we do not reach the issue of field preemption and
express no opinion as to its operation here.
Similarly, we decline the invitation to decide the County’s claim that, because the
Ordinance is not preempted, this Court must view it “under rational basis” review.
According to the County, the Ordinance is an appropriate exercise of the County’s police
powers in response to the safety and health risk that sex offenders pose to the public at
large. County’s Brief at 32 (citing Conn. Dep’t of Public Safety v. Doe, 538 U.S. 1, 4
(2003)). To the extent that this argument regarding the constitutionality of the Ordinance is
developed, it is not within the scope of our certification order and we will not address it.
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powers of home rule municipalities), § 2901 (part applies to all municipalities except
Although liberally construed in favor of the county, the grant of power to a home rule
county is not absolute. Holt’s Cigar Co. v. City of Phila., 10 A.3d 902, 907-08 (Pa. 2011)
(“Holt’s”); Nutter v. Dougherty, 938 A.2d 401, 411 (Pa. 2007); see 53 Pa.C.S. § 2961. Acts
of the General Assembly may circumscribe, either expressly or impliedly, the power of a
home rule county to legislate in a particular arena, which may give rise to conflicts between
local and statewide legislation. 53 Pa.C.S. § 2961 (county to exercise power not denied
“by statute”). The preemption doctrine has developed to establish “a priority between
potentially conflicting laws enacted by various levels of government.” Huntley, 964 A.2d at
862. Preemption may be express or implied, in the form of field or conflict preemption.
Nutter, 938 A.2d at 411.
This Court recently addressed the doctrine of conflict preemption in Holt’s. Although
sharply divided on the outcome, the entire Court agreed that a local ordinance is invalid if it
stands “as an obstacle to the execution of the full purposes and objectives” of the General
Assembly, as expressed in a state law. Holt’s, 10 A.3d at 907; accord id. at 917 (Castille,
C.J., joined by Todd, J. and Orie Melvin, J., dissenting).12 To determine whether the county
has created such an obstacle, we assess the effect of the challenged ordinance on the
proper functioning and application of the state enactment. See Holt’s, 10 A.3d at 907;
accord Cellucci v. Gen. Motors Corp., 706 A.2d 806, 810 (Pa. 1998) (federal preemption
case; “stands as an obstacle” means state law interference with “methods” by which federal
statute was designed to reach its goal) (quoting Int’l Paper Co. v. Ouellette, 479 U.S. 481,
12 A local ordinance may also be preempted if it is in direct and irreconcilable conflict
with a state enactment, i.e., if simultaneous compliance with both the local and state
enactments is impossible. See, e.g., Mazzo v. Bd. of Pensions & Retirement, 611 A.2d
193, 195-97 (Pa. 1992) (invalidating ordinance that inserted additional requirement and
prohibited reinstatement of pension benefits on conditions devised by state).
[J-79-2010] - 16
494 (1987)). If the local ordinance impedes the operation of the state statute, the
ordinance is preempted. County legislation tailored to the particular locality is permitted, if
the enactment merely aids and furthers the goals of the state statute. Holt’s, 10 A.3d at
907 (quoting Mars Emergency Med. Servs., Inc. v. Twp. of Adams, 740 A.2d 193, 195 (Pa.
1999) (“Mars EMS”)); id. at 918 (Castille, C.J., joined by Todd, J. and Orie Melvin, J.,
dissenting) (same). But, “local legislation cannot permit what a state statute or regulation
forbids or prohibit what state enactments allow.” Huntley, 964 A.2d at 862; see Mars EMS,
740 A.2d at 195 (local ordinance is invalid to extent it contradicts or is inconsistent with
state statute).
The parties agree here that neither the Sentencing Code nor the Parole Code
expressly prohibits the County from adopting ordinances with respect to released sex
offenders. Further, there is no dispute that the County’s authority to adopt local legislation
must be liberally construed. But, even construed in the most liberal light, the Ordinance
here clearly interferes with the statewide operation of the Sentencing and Parole Codes
and with the General Assembly’s policies in these arenas.
The General Assembly has expressly listed among its purposes for adopting the
Sentencing and Parole Codes the rehabilitation, reintegration, and diversion from prison of
appropriate offenders. See 42 Pa.C.S. §§ 9721(b) (court to consider rehabilitative needs of
defendant in determining sentence); 9754(c) (court to impose conditions of probation that
assist defendant in leading law-abiding life); 61 Pa.C.S. § 6102(1); accord Morrissey v.
Brewer, 408 U.S. 471, 484 (1972) (“Society has a stake in whatever may be the chance of
restoring [a parolee] to normal and useful life within the law.”); Commonwealth v. Walton,
397 A.2d 1179, 1184 (Pa. 1979) (“conditions of probation, though significant restrictions on
the offender’s freedom, are primarily aimed at effecting, as a constructive alternative to
imprisonment, his rehabilitation and reintegration into society as a law-abiding citizen”);
Commonwealth v. Basinger, 982 A.2d 121, 128 (Pa. Super. 2009) (conditions of probation
[J-79-2010] - 17
“must be constructive measures directed at rehabilitation through behavioral modification”).
The General Assembly has made a determination that Megan’s Law registrants/sex
offenders, as a class, are eligible for parole and may benefit from these Commonwealth
policies. See 61 Pa.C.S. § 6137(a)(1) (subject to conditions, Board may release on parole
any inmate except “inmate condemned to death or serving life imprisonment”); accord
Poulson v. Pa. Bd. of Prob. & Parole, --- A.3d ---, --- (Pa. 2011) (per curiam); see, e.g.,
Nieves v. Bd. of Prob. & Parole, 995 A.2d 412 (Pa. Cmwlth. 2010). The primary means of
implementing this policy is to offer released sex offenders, like other offenders, familiar and
stable environments, i.e., promote family and community ties, and provide access to
employment, counseling, and supervision. 42 Pa.C.S. § 9754(c); 37 Pa. Code § 63.1(d);
see, e.g., Worthington v. Bd. of Prob. & Parole, 784 A.2d 275, 276 (Pa. Cmwlth. 2001)
(parolee released to community corrections center “for a minimum period of six months and
until his home, employment and drug/alcohol treatment stabilized”); Commonwealth v.
Sharpe, 665 A.2d 1194, 1196-97 (Pa. Super. 1995) (probation was conditional “upon
[probationer] living with his brother, obtaining employment and attending a drug treatment
program”); McCauley v. Bd. of Prob. & Parole, 510 A.2d 877, 879 nn. 4-7 (Pa. Cmwlth.
1986) (parolee’s conditions for release included attending marriage counseling, drug and
alcohol abuse therapy, weekly notifications to parole office of employment status, living at
address approved by Board, and regularly reporting to parole officer).
The Ordinance fails to acknowledge, and effectively subverts, these goals of the
General Assembly. The Ordinance banishes many sex offenders from their preadjudication
neighborhoods and support systems. The Ordinance also consigns all
offenders to isolated suburban areas of Allegheny County that presumably will provide less
access to transportation, employment, counseling, and supervision. Moreover, it is not
even apparent, from the record provided, whether there is appropriate residential housing
available in the areas to which registrants would be banished; what we do know is that
[J-79-2010] - 18
those areas, even if residential, are isolated from other aspects of most residential
communities, such as parks and community and recreation centers. The Ordinance
appears to attempt to ensure public safety, in certain parts of Allegheny County, by
isolating all Megan’s Law registrants in localized penal colonies of sorts, without any
consideration of the General Assembly’s policies of rehabilitation and reintegration.
In formulating its Ordinance, the County also disregarded the General Assembly’s
preference for balancing the best interests of the public and of the offender with respect to
the offender’s release on probation or parole. Although public safety may be the weightier
issue in the calculation of the General Assembly, see 42 Pa.C.S. § 9791(a)(2) and 61
Pa.C.S. § 6102(2), it is not preferred to the exclusion of all other interests which may be
reasonably accommodated. SeeWalton, supra. Even Megan’s Law, which addresses sex
offenders specifically, does not single out these offenders for a heightened standard of
release on probation or parole. The County, however, rejected any balancing approach in
favor of a policy of exclusion and isolation.
The Ordinance also discounts the General Assembly’s policy determination to
facilitate diverting offenders from prison and the Commonwealth’s interest in the timely and
effective administration of probation and parole. See 42 Pa.C.S. § 9791(a)(5); 61 Pa.C.S.
§ 6102(1), (3). Thus, the County’s residency restrictions limit the options available to sex
offenders in designing adequate plans upon release for approval by sentencing courts or
the Board. For example, a sex offender who has a strong family support structure in
Pittsburgh may well have difficulty devising a plan for parole that would both meet the
restrictions of the Ordinance and the Board’s criteria for an adequate release plan.
Considerations of whether the sex offender can meet family responsibilities and receive
family support in return are often weighty in formulating a plan for release. These
relationships contribute to emotional and financial stability, as family may assist the
offender in seeking and maintaining employment and attending counseling. See, e.g.,
[J-79-2010] - 19
Commonwealth v. Sheridan, 502 A.2d 694, 696 (Pa. Super. 1985) (in resentencing inmate
to probation, trial court highlighted that: “(1) Appellee has a supportive family; (2) Appellee
has an eight year old child, with special medical needs, to support; (5) Appellee’s remorse
for her involvement with drugs and her fear of losing custody of her child would act as
deterrents to future misconduct.”).
The added level of difficulty in devising adequate plans for release in this one
County following the adoption of the Ordinance will likely equate to either probation or
parole being granted under conditions less likely to maximize rehabilitation and
reintegration potential, additional, and significant delays in processing the release of eligible
offenders, or a greater number of otherwise eligible offenders simply being denied parole.
See, e.g., Nieves, 995 A.2d at 415 & n.2 (Board may postpone release on parole pending
available opening for residency at community corrections center, part of parolee’s approved
home plan). Where either probation or parole is granted, the placement of a large number
of offenders in fewer and sparsely populated areas of a County is also likely to overtax
available resources in those areas and decrease the quality of services. It cannot be
seriously disputed that the Ordinance will interfere with the “efficient and timely”
administration of the parole system and significantly affect the quality of the
Commonwealth’s probation and parole systems. See 61 Pa.C.S. §§ 6102(3); 6131(a)(5).
These administrative deficiencies may well also produce an unintended effect of
threatening public safety, by depriving sex offenders of access to resources which have
been shown to reduce the risks of recidivism. The Ordinance, therefore, inhibits the
accomplishment of the General Assembly’s administrative policies in addition to its goals of
rehabilitation and reintegration.
The Ordinance relatedly obstructs the operation of the Sentencing and Parole Codes
in several respects. First, although acknowledging the high risk of recidivism among sex
offenders, the General Assembly has generally rejected the option of simply excluding
[J-79-2010] - 20
released offenders from entire communities as the primary or even preferable means of
protecting the public. 42 Pa.C.S. § 9791(a)(2), (b). The General Assembly adopted
instead a calibrated regulatory scheme of registration, notification, and counseling for sex
offenders -- Megan’s Law. See 42 Pa.C.S. §§ 9795.1, 9795.2, 9797, 9798, 9798.1, 9799.4.
Residency restrictions are not excluded but they play a far more limited role in the state’s
legislative scheme than in the scheme adopted by the Ordinance. Thus, the Board’s
guidelines prohibit a Megan’s Law registrant whose victim was a minor from residing within
two blocks from a school, playground, or day care center.
Generally, however, sentencing courts and the Board assess individual sex
offenders (like all other offenders) regarding their suitability for probation or parole, and
impose conditions tailored to the offender. See Walton, 397 A.2d at 1184 (courts “are
traditionally and properly invested with a broader measure of discretion in fashioning
conditions of probation appropriate to the circumstances of the individual case”); Sheridan,
502 A.2d at 696 (“sentences must be imposed individually, taking into account not only the
offense but the characteristics of the offender”); see, e.g., Woodling v. Bd. of Prob. &
Parole, 537 A.2d 89, 89 (Pa. Cmwlth. 1988) (sex offender whose victim was a minor was
subject to condition of probation “that he not associate with minors (under age eighteen)
who were not close relatives (first degree) without his parole agent’s prior approval”). For
example, a parolee’s residency is subject to approval by the paroling entity; and
probationers may be required to live in a facility established for probationers. 37 Pa. Code
§ 63.4(2); 42 Pa.C.S. § 9754(c)(5); see, e.g., Worthington, supra. The Ordinance,
however, establishes a blanket prohibition against residency within 2,500 feet of “places
where children congregate,” on all Megan’s Law registrants. Moreover, the Ordinance
minimizes all Megan’s Law registrants’ contact with children, regardless of whether the
offender’s victim was a minor or the offender is determined to be a threat to minors. The
Ordinance would thus obstruct the operation of the statewide statutory scheme by requiring
[J-79-2010] - 21
courts and the Board to abandon the tailored and proportionate approach of the General
Assembly and attempt to devise new approaches that would satisfy the County’s widerreaching
restrictions. To stand down to the Ordinance, in essence, is to allow the County
to “opt-out” of the statewide plan.
The County nonetheless would have it that the Ordinance, by its plain terms, neither
interferes with the probation and parole systems of the Commonwealth nor touches upon
the operative clauses of Megan’s Law, which provide solely for the registration of sex
offenders and public notification. The main thrust of the County’s argument is that the
Ordinance is an exercise of its home rule powers to devise legislation tailored to the public
health, safety, and welfare of its inhabitants. According to the County, its Ordinance merely
regulates where Megan’s Law registrants may reside and “augments” the statute in
response to local concerns. But, the County’s assessment is implausible. The County’s
legislative findings merely amount to a reiteration of the General Assembly’s conclusions in
relation to Megan’s Law supplemented by various generalized references to national,
statewide, and out-of-state (i.e., Minnesota and Arizona) studies, none of which identify
Allegheny County-specific concerns. In this instance, the General Assembly has already
weighed in on the policy priorities of the Commonwealth with respect to the reintegration of
offenders, including sex offenders, and has devised an approach for how to best
accomplish them. The County reveals no countervailing local concerns to justify its attempt
to opt-out of the General Assembly’s overall scheme of balancing public safety and the
offenders’ best interests, from its policies of rehabilitation, reintegration, and diversion from
prison, or from the means by which the Legislature sought to promote these policies.
Moreover, the County fails to articulate a cogent argument to support its claim that
the Ordinance somehow “aid[s] and further[s]” the public safety goal of Megan’s Law.
Thus, the County provides no explanation why broad exclusions of sex offenders from
population centers are preferable, in Allegheny County, to the statewide individually-tailored
[J-79-2010] - 22
residency plus registration--notification--counseling requirements of the General Assembly.
See, e.g., Dep’t of Licenses & Inspections v. Weber, 147 A.2d 326 (Pa. 1959) (stricter
regulation of beauty salons in Philadelphia appropriate because ensuring “health, safety,
welfare, and comfort of dwellers in urban centers” posed special challenges compared to
rest of state). Indeed, similarly to the district court, we are persuaded by the appellees’
arguments that the County’s Ordinance interferes with the goal of Megan’s Law to reduce
recidivism among sex offenders and improve public safety. Isolating all sex offenders from
their communities, support systems, employment, and treatment is an approach contrary to
that of the General Assembly, which requires individually tailored assessments and
assistance with rehabilitation and reintegration for appropriate offenders. The Ordinance
chooses the importance of residency over all other considerations expressly incorporated
into the probation and parole scheme by the General Assembly. And, finally, it is not hard
to imagine the effect on the statewide legislative scheme if all counties were to adopt
similar residency restrictions. The statewide scheme would be eviscerated.13
13 Wealso reject the County’s secondary argument premised on the notion that parole
regulations require offenders to abide by local ordinances. County’s Brief at 28-29 (citing
37 Pa. Code § 63.4(4)). Regulation 63.4(4) states that if parole is granted, the parolee
shall “[c]omply with municipal, county, State and Federal criminal statutes, as well as the
Vehicle Code and the Liquor Code.” The County suggests that the regulation gives the
Ordinance validity by recognizing that the Board does not have “blanket authority to
override validly enacted local laws dealing with local health, safety and welfare.” Id. at 28
(citing Ogontz, 483 A.2d 448). Setting aside the issue of whether the Ordinance is criminal
legislation (and also any Apprendi concerns), the County’s argument is not persuasive.
See Commonwealth v. Lee, 935 A.2d 865, 873 (Pa. 2007) (citing Apprendi v. New Jersey,
530 U.S. 466 (2000) (statutory scheme that is punitive in purpose or effect entitles
defendant to full panoply of due process protections)). In Ogontz, this Court held that a
Commonwealth agency was permitted to acquire property but the agency’s use of the
property as a mental health facility was subject to the municipality’s zoning ordinance.
Ogontz, 483 A.2d at 455. The Court explained that the contest in Ogontz was “between
two [equal] instrumentalities of the state,” the Commonwealth agency and a home rule
municipality. Id. at 452. Here, however, the direct conflict is between the General
[J-79-2010] - 23

SCOTUS: Prison Crowding, Cruel and Unusual Punishment

Last week, the U.S. Supreme Court ordered California to reduce its prison population by more than 25 percent, finding that overcrowding in the state’s prisons violates the Eighth Amendment ban on cruel and unusual punishment.

According to the Christian Science Monitor, the 5-to-4 ruling in the case, Brown v. Plata, upheld a ruling from a three-judge panel in California that called for the state to release between 38,000 and 46,000 inmates to attain a population of 110,000, still more than 137 percent of the system’s capacity.

As California searches for the resources to comply with the Court's decision many continue to debate how the system became so overcrowded in the first place. There are over 142,000 inmates in 33 adult California prisons, reported the Monitor.

Conventional wisdom holds that “three-strikes, you’re out laws” are one of the main reasons for the overcrowding. According to the Monitor, riding a “get tough on crime” wave, California in 1994 became the second state in the nation to significantly increase the prison sentences of convicted felons who previously had been convicted of a violent crime or serious felony, and to severely limit judge’s freedom to give punishment other than a prison sentence.

Professor Kelly Welch told the Monitor that the decision is “actually a very practical decision,” that will help spotlight the consequences of voter choices to implement three strikes laws in the first place, which have not lived up to their promise of reducing crime.

“There is substantial criminological evidence that the incarceration binge of the last 30 years has actually not reduced crime. Thus, this has been an expense with no appreciable effect on crime. The decision of the Court to allow California to release a percentage of its inmates is probably a smart one, as it will reduce costs as well as treat the inmates that remain incarcerated more ethically by reducing overcrowding.”

To read more: http://www.csmonitor.com/USA/Justice/2011/0523/Supreme-Court-orders-California-to-slash-prison-population-by-more-than-30-000/(page)/2

Monday, May 30, 2011

PA Supreme Court Strikes Down Residency Restrictions

The Pennsylvania Supreme Court unanimously invalidated an Allegheny County ordinance that imposed residency restrictions on registered sex offenders

According to the Pittsburgh Post-Gazette,lawyers argued that the ordinance simply supplemented Megan's Law, but in a 7-0 opinion, Chief Justice Ronald Castille wrote that it conflicted with Pennsylvania Board of Probation and Parole policies and subverted state legislative goals, forcing sex offenders to live in "localized penal colonies of sorts."

"Isolating all sex offenders from their communities, support systems, employment and treatment is an approach contrary to that of the General Assembly, which requires individually tailored assessments and assistance with rehabilitation and reintegration for appropriate offenders," Justice Castille wrote.

To read more: http://www.post-gazette.com/pg/11147/1149501-454.stm#ixzz1NqGVBlSW

Sunday, May 29, 2011

FBI: Violent Crime Continues to Fall

America appears to be safer. Violent crime rates continue to fall across all regions of the country, according to the New York Times. The odds of being murdered or robbed are now less than half of what they were in the early 1990s, when violent crime peaked in the United States. Small towns, especially, are seeing far fewer murders: In cities with populations under 10,000, the number plunged by more than 25 percent last year.

According to the Times, criminology experts said they were surprised and impressed by the national numbers, issued on Monday by the Federal Bureau of Investigation and based on data from more than 13,000 law-enforcement agencies. They said the decline nationally in the number of violent crimes, by 5.5 percent, raised the question, at least in some places, of to what extent crime could continue to fall — or at least fall at the same pace as the past two years. Violent crimes fell nearly the same amount in 2009.

Nationally, murder fell 4.4 percent last year. Forcible rape — which excludes statutory rape and other sex offenses — fell 4.2 percent. Aggravated assault fell 3.6 percent. Property crimes — including burglary, larceny, motor vehicle theft and arson -fell 2.8 percent, after a 4.6 percent drop the year before, reported the Times.

We will explore the reasons behind the continued decline in crime through future blog posts.

To read more: http://www.nytimes.com/2011/05/24/us/24crime.html?_r=1

Saturday, May 28, 2011

The Cautionary Instruction: Can the Courts Generate Revenue?

The Pittsburgh Post-Gazette/Ipso Facto
May 27, 2011

Pennsylvania Supreme Court Chief Justice Ron Castille has informed Governor Tom Corbett and the legislature that the Pennsylvania courts need an additional $71 million next year. Chief Justice Castille said in a statement, “If we cannot pay judges and fund court operations ... those who depend on the judiciary for resolution of issues in civil, family and problem-solving courts may soon face this crisis as well.”

With the state anticipating a $4 billion deficit, can the court system generate its own revenue? Sure, the courts can generate an enormous amount of revenue -- they just have a difficult time collecting.

In Allegheny County alone there is $41 million in uncollected court costs and fees, and another $15 million in uncollected fines. The seven surrounding counties -- Armstrong, Beaver, Butler, Fayette, Lawrence, Washington and Westmoreland—are owed $58.6 million in costs and $24 million in fines. Across the state there is a whopping $1.6 billion in uncollected costs and fines.

Pursuant to 42 Pa. Cons. Stat. § 3571(a) those fines and cost all go into government coffers.

The court’s traditional method of collecting costs and fines has been to revoke or extend the county probation of a nonpaying offender. This is a self-defeating proposition. For instance, an offender owes $1,000 in fines and costs and does not pay. As a result, she is locked up for thirty days at a cost of $40 a day. The cost of incarceration ends up $200 more than what is owed in costs and fines.

State Senator Mike Stack has a different idea for collecting fines and costs. He has introduced Senate Bill 836, which would require individuals to pay all outstanding fines and costs owed to the Court of Common Pleas before they can have their car registration renewed. Once an individual pays their fines, surcharges, fees, or penalties, the court would provide PennDOT with authorization to renew the offenders’s vehicle registration.

Senator Stack’s proposal, while not without merit, has some drawbacks. The penalty for driving without registration is merely a summary offense punishable by a fine. Revoking a nonpayer’s registration does not make their vehicle inoperable. Judging by the amount of unpaid fines and costs this bill will affect a lot of people. It may force some to drive without auto registration and ultimately without insurance, and create a host of new problems for law-abiding citizens while creating a whole new class of offenders.

Certainly there are situations where an offender simply cannot afford to pay fines and costs. However, employed offenders can, yet in Pennsylvania there is no wage attachment except for unpaid taxes and child support.

Visit Ipso Facto

Friday, May 27, 2011

Arizona Executed Child Killer

The 19th Execution of 2011

Donald Edward Beaty was executed this week by lethal injection at a state prison in Florence, Arizona. He was convicted of snatching Christy Ann Fornoff from her newspaper route in Tempe, Arizona, in May 1984. He sexually assaulted her, then killed her by suffocation, according to Reuters.

Court records said he kept the body inside his apartment for two days. She was later found wrapped in a sheet behind a dumpster there.

A jury deadlocked in Beaty's first trial. He was convicted of murder and sexual assault when a psychologist testified that he confessed to the killing in a group therapy session, reported Reuters.

Beaty's last-ditch appeals were dismissed hours before his scheduled execution. His final meal included a double cheeseburger, a shredded beef chimichanga and rocky road ice cream.

With his last words, Beaty apologized to the murder victim's parents. He told them "God will let you see her again," Barrett Marson, an Arizona Department of Corrections spokesman told Reuters. He said Marson added that Beaty was "very emotional" and difficult to understand.

Beaty was the first killer in Arizona executed with the drug pentobarbital. The state switched from sodium thiopental due to the drugs unavailability.

To read more: http://www.reuters.com/article/2011/05/26/us-execution-arizona-idUSTRE74O85J20110526

Thursday, May 26, 2011

Offender Registries Expand, But Do They Work?

According to the New York Times, lawmakers around the country are pushing for online registries, like those used for sex offenders, to track the whereabouts of people convicted of a wide variety of crimes, from arson and drunken driving to methamphetamine manufacturing and animal abuse.

In Illinois legislators are considering a law to create the nation’s first registry for first-degree murderers. In Maine, legislators are debating an online registry of drunken drivers. And proposals to register animal abusers have been put forward in several states; one such registry, in Suffolk County on Long Island, will become operational next week, reported the Times.

Jill Levenson, an associate professor of psychology at Lynn University in Florida, who has written extensively about sex offender registries, has noted that Department of Justice figures suggest that only 13 percent of new sex crimes are committed by known sex offenders, and that such crimes are at least six times more likely to be committed by other types of offenders who do not appear on any sex offender registry, reported the Times.

Only a handful of studies have so far examined the effect of registry and notification laws for sex offenders on recidivism, Dr. Levenson told the Times, “so far, the vast majority of those studies do not show a decrease in repeat sex offenses that can be attributed to sex offender registry or notification.”

Murderers have among the lowest rates of recidivism. Only about 1.2 percent of convicted murderers go on to commit another murder within three years of their release; roughly 35 percent commit other types of crimes within the same time period.

To read more: http://www.nytimes.com/2011/05/21/us/21registry.html?_r=3&ref=us&pagewanted=print

Wednesday, May 25, 2011

Arizona Execution Still on Track

Today’s scheduled execution, in Arizona, of convicted of murderer Donald Beaty is still on track. On Monday, the U.S. Supreme Court rejected an appeal Beaty's attorneys had filed in March.

Beaty was sentenced to death after being convicted in the murder of a 13-year-old newspaper carrier, Christy Ann Fornoff of Tempe.

Beaty still has another appeal before the high court. It claims he had ineffective counsel early in his long legal battle. His lawyers also are asking the state Supreme Court to withdraw his death warrant because justices of the state high court recently toured death row and met with prison officials to discuss execution scheduling and protocols, according to KOLD-TV.

Arizona will use the drug pentobarbital in place of sodium thiopental as part of the three durg lethal injection protocol. Arizona joins Oklahoma, Ohio, Mississippi and Texas among other states to change its lethal injection protocol.

Beaty would be the 19th killer executed in 2011. Executions are running a bit behind last year's pace of 46 executions nationwide.

Tuesday, May 24, 2011

Solicitor General Acknowledges Mistakes with WW II Internment

Acting United States Solicitor General Neal Katyal recently wrote on his blog about the "mistakes" made by the World War II Solicitor General in defending the U.S. government's Japanese-American internment program before the U.S. Supreme Court.

Katyal reviewed evidence unearthed in the 1980s that in 1943 and 1944, then-Solicitor General Charles Fahy failed to tell the court of relevant reports minimizing the danger posed by Japanese-Americans living on the West Coast, according to the Law.com. His omissions and misstatements came in the cases of Korematsu v. United States and Hirabayashi v. United States, in which the court upheld the internment program. The rulings, never overturned, are widely viewed now as embarrassments to the court.

In 1984, Judge Marilyn Patel of the U.S. District Court for the Northern District of California found that Fahy's conduct consisted of "critical contradictory evidence known to the government and knowingly concealed from the courts." She also noted the existence of memoranda between Justice Department officials discussing the obligation to give the courts an honest account of the conflicting evidence about the threat posed by Japanese Americans and whether an internment program was justified. Not presenting the full picture "might approximate the suppression of evidence," one official warned, reported Law.com.

"The information was critical to the court's determination," Patel wrote. "The judicial process is seriously impaired when the government's law enforcement officers violate their ethical obligations to the court." The government dropped its opposition to overturning the conviction, but never explicitly acknowledged its misleading statements.

According to Law.com, Katyal referred to that statement in his blog post, adding: "The court thought it unlikely that the Supreme Court would have ruled the same way had the solicitor general exhibited complete candor."

To read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202494950927&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20110524&kw=Katyal%3A%20SG%27s%20Office%20Made%20%27Mistakes%27%20in%20Japanese%20Internment%20Litigation%20Premium%20Access%20Required&slreturn=1&hbxlogin=1

Monday, May 23, 2011

Developing a Level Playing Field

The Pennsylvania Law Weekly
May 24, 2011

Many facets of state government, as well as entities that depend on state government for funding, are facing difficult times.

County and local municipal government bodies are also feeling the pinch. As state government funding dries up, county governments are scrambling to fund local services.

A significant county expenditure is the funding provided for indigent criminal defense through public defender offices. Pennsylvania is one of only two states — the other is Utah — that contributes nothing toward indigent criminal defense costs. Each of Pennsylvania's 67 counties is responsible for all public defender and court-appointed counsel costs.

As we approach the 50th anniversary of Gideon v. Wainwright , the landmark U.S. Supreme Court decision that first established the right to legal counsel for indigent defendants, some may wonder if the spirit of that decision is being sustained.

Gideon found that a defendant facing trial for a felony was entitled to legal counsel even if he could not afford to retain his own attorney. Since Gideon , the Supreme Court has extended the right to counsel not only to cases involving non-felonies that could result in incarceration, but also preliminary hearings, direct appeals and custodial interrogations.

Pennsylvania requires each county to establish a public defender office to provide legal counsel to any person accused or charged with a crime who otherwise could not afford to retain legal counsel when the accused person's freedom is at stake. But as the responsibility to provide legal counsel has expanded, counties have struggled to provide adequate resources for indigent criminal defense.

Often, counties with few economic prospects and a sagging tax base also face the plight of crime and community upheaval. The result? Counties most in need of resources for indigent defense are least capable of raising sufficient revenue to provide adequate legal representation.

In lean economic times, a county's revenue base may also be strained by the need for emergency services like domestic violence and homelessness. High crime rates, economic disadvantage and failing infrastructure are all magnified by a sputtering economy and tight government budgets.

It's not as though the issue of indigent defense is being raised for the first time during a state budgetary crisis.

The Pomeroy Report, issued in 1982 and chaired by Pennsylvania Supreme Court Justice Thomas W. Pomeroy Jr., as well as the Report of the Commission on Judicial Reform, chaired by Superior Court Judge Phyllis W. Beck in 1998, advocated for the state to finance indigent defense costs.

Also, the Committee on Racial and Gender Bias in the Justice System issued a report in 2003 that, in part, addressed indigent defense.

The committee, appointed by the state Supreme Court, found that "Pennsylvania is generally not fulfilling its obligation to provide adequate, independent defense counsel to indigent persons." The committee recommended that Pennsylvania institute statewide funding and oversight of the indigent defense system by establishing an independent indigent defense commission and appropriating state funds for the support of indigent defense.

The Interbranch Commission on Juvenile Justice was created by an act of the legislature to review the "kids-for-cash" scandal in Luzerne County. The commission issued a report in May 2010. One of the commission's recommendations was "the creation of a state-based funding stream for indigent juvenile defense."

The problem is well known and well documented, yet it continues.

How has local funding affected indigent defense?

The legal representation provided by public defenders is often very good. In fact, at times, public defenders possess an unparalleled institutional knowledge of their respective county court that gives them and their clients an edge over privately retained counsel unfamiliar with local court expectations.

Low salaries for public defenders cause frequent turnover, however, while impacting training regiments — if training is even available — and interfering with the continuity of representation.

Public defender investigative resources are often used to determine whether clients are eligible for services as opposed to genuine investigative work for case preparation and trial.

The hectic pace of public defender offices often necessitates that the courts appoint special counsel for conflicts of interest.

And the pace is indeed hectic.

The Committee on Racial and Gender Bias in the Justice System found that public defenders represent 80 percent of Pennsylvania's defendants. Court- appointed counsel is another indigent defense expense incurred by counties beyond the budget for the public defender's office.

Court appointed counsel is also used for complicated and time-consuming cases like homicide. So, a small county with two capital murder trials pending could incur daunting indigent defense costs.

Often, the court will appoint an attorney for the guilt phase of a capital trial and counsel for the penalty phase. Experts of all kinds may be retained to present an adequate defense. In these lean economic times, the district attorney's decision to pursue the death penalty could have a profound impact on the county's economic well being.

Last year, the Defender Association of Philadelphia presented compelling testimony before the Senate Judiciary Committee's subcommittee on crime and drugs.

In the testimony, the association argued: "Public defenders, as well as private court appointed counsel are overworked and grossly underpaid. The inevitable result of reduced funding and increased caseloads is representation that fails to meet the standards published by the American Bar Association and the National Legal Aid and Defender Association."

Counties are in the untenable position of weathering difficult economic times, providing essential services to its taxpayers and insuring that justice is afforded to the indigent.

As David Carroll recently wrote on the National Legal Aid & Defender web site: "The need to balance these responsibilities while maintaining fiscal accountability to the local citizenry often leaves county officials in the unenviable position of having to choose between funding needed services and upholding the constitutional commitment to guarantee adequate indigent defense services."

It is time for Pennsylvania to provide funding for indigent defense and, with it, provide a uniform set of standards for training, competency, caseloads and accountability.  •

The Cautionary Instruction: Education, Crime and Shrinking Budgets

Pittsburgh Post-Gazette/Ipso Facto
May 20, 2011

As state policymakers search for an equitable plan to distribute scarce state funds, they would do well not to forget the connection between school dropouts and crime.

Pennsylvania is facing about a $550 million reduction in K-12 instruction as well as the loss of an additional $260 million in grants that were earmarked to reduce class sizes and support pre-K programming.

In New York City, Mayor Michael Bloomberg has called for the layoff of 4,100 teachers and the elimination of 2,000 positions through attrition. The NYC school chancellor has said that the cuts will increase the average class size to about 26 students.

In California, school districts statewide have struggled over the past two years with unprecedented cuts to staff and services brought on by the state budget crisis, which has dropped funding for k-12 from $46.2 billion to $36.8 billion.

California School Superintendent Jack O’Connell cited enormous state education budget cuts, larger class sizes, fewer art and music classes, cuts to sports, fewer counselors and less access to career/technical courses as contributing to an unacceptably high dropout rate.

Why should policymakers be concerned with educational failure and a surge in dropouts?
High school dropouts are three and one-half times more likely than high school graduates to be arrested, and more than eight times as likely to be incarcerated, according to School or the Streets: Crime and America’s Dropout Crisis. The report was commissioned by Fight Crime: Invest in Kids, a nonprofit anti-crime organization comprised of police chiefs, sheriffs, prosecutors, other law enforcement leaders.

The report cites University of California at Berkeley economist Enrico Moretti and Canadian economist Lance Lochner. They found that a 10-percentage point increase in graduation rates could reduce murder and assault rates by as much as 20 percent. Increasing graduation rates by 10-percentage points in Pennsylvania could prevent approximately 147 murders and about 6,000 aggravated assaults each year.

The report also includes evidence from two long-term evaluations of pre-k programs showing that participating in high-quality pre-k increases high school graduation rates by as much as 44 percent.

The most recent data available from the U.S. Department of Justice indicates that approximately 34 percent of federal and state inmates and 50 percent of killers on death row lack a high school diploma or GED. Among the general public age 25 and older, about 15 percent have not earned a diploma or GED.

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Sunday, May 22, 2011

Georgia Changes Execution Protocol

State Prepares for Troy Anthony Davis Execution

Georgia has changed it execution protocol. As a result of the state's sodium thiopental being confiscated by the DEA, Georgia will now incorporate Pentobarbital into its three drug execution protocol.

According to the Associated Press, corrections officials met with counterparts in Ohio and Oklahoma, which have already used pentobarbital to execute inmates. They have also collected hundreds of pages of legal filings and other documents about the drugs, and drafted several proposals for the switch

Georgia is now one of at least 10 states that have switched or are considering a switch to pentobarbital, a surgical sedative that's also commonly used to euthanize animals.

Switching to pentobarbital should allow the state to move ahead with the execution of Troy Anthony Davis, whose high-profile case has become a rallying point for opponents of the death penalty, reported the Associated Press.

Prosecutors have spent more than two decades trying to execute Davis, who was sentenced to die for the 1989 slaying of a Savannah police officer, and the state won a key legal battle in March when the U.S. Supreme Court rejected what could be his final appeal. But prosecutors couldn't schedule his execution because Georgia did not have the lethal injection drug.

To read more: http://www.google.com/hostednews/ap/article/ALeqM5jkljaldJv0_dZoTBW7HXOHQX2PwA?docId=04f6abf3a89043baa69942f988797d1f

Saturday, May 21, 2011

Private Prison Cost Savings in Question

As Ohio looks to privatize prisons to save money a recent New York Times article reveals that privatization may be more costly than state run prisons.

Competing studies — some financed by the prison industry — have argued over claims of savings. According to the Times, a University of Utah team including Russ Van Vleet, the former co-director of the University of Utah Criminal Justice Center reviewed years of research, it concluded in 2007 that “cost savings from privatizing prisons are not guaranteed and appear minimal.”

“There’s a perception that the private sector is always going to do it more efficiently and less costly,” Van Vleet told the Times, “But there really isn’t much out there that says that’s correct.”

In Arizona were the state has operated private prisons, and wants to expand,the data suggests that privately operated prisons can cost more to operate than state-run prisons — even though they often steer clear of the sickest, costliest inmates.

Despite an Arizona law stipulating that private prisons must create “cost savings,” the state’s own data indicate that inmates in private prisons can cost as much as $1,600 more per year, while many cost about the same as they do in state-run prisons, according to the Times.

The research, by the Arizona Department of Corrections, also reveals a murky aspect of private prisons that helps them appear less expensive: They often house only relatively healthy inmates. The private prisons, like many half-way houses, have the ability contractually to reject inmates. The rejected inmates are often those with disability, disease, geriatric and mental illness.

Removing those inmates from private prison and keeping them in state run prisons--drives down private costs and increases state costs. Therefore and quick look at private versus public gives a skewed view of what is really happening.

Ohio should proceed with caution as it examines prison privatization.

To read more: http://www.nytimes.com/2011/05/19/us/19prisons.html?pagewanted=1&_r=1&ref=us

Friday, May 20, 2011

Alabama Executes Killer of Four

The 18th Execution of 2011

Alabama executed Jason Oric Williams by lethal injection on May 19, 2011 at Holman Correctional Facility in Atmore, Alabama.

Williams was the first inmate put to death in Alabama using the drug pentobarbital, according to Reuters. The state changed its execution protocol to use pentobarbital instead of sodium thiopental after Hospira Inc., the only U.S. supplier of sodium thiopental, announced that it would no longer manufacture the drug.

According to court records, in 1992 Williams, high on drugs, went to the home of Gerald Paravicini. The family had taken Williams in two weeks earlier after his ex-wife demanded he move out.

When Clair Paravicini's son, Jeffery Carr, opened the door, Williams shot him in the face. He then shot Gerald Paravicini in the chest and neck, killing him. Williams broke Clair Paravicini's jaw with the butt of a 22-caliber automatic rifle and took her purse with her checkbook, credit cards and $530. Clair and her son survived the attack.

Williams then went to a nearby home. When Linda Barber opened the door, Williams shot her in the face and head, killing her instantly. He then killed her husband, Fred Barber, and the couple's son Bryan, who was asleep in his bedroom. Another son struggled with Williams and escaped after being shot in the hand.

Williams did not request a last meal. He ate from the vending machine in the visitation yard and had hot wings and a sandwich before he was put to death. Williams' last words were: "I hope that the family of the victims will forgive me for what I have done,” reported Reuters.

To read more: http://www.reuters.com/article/2011/05/20/us-execution-alabama-idUSTRE74J07120110520

Thursday, May 19, 2011

Justice Thomas: 'A Disease of Illiteracy of Laziness'

U.S. Supreme Court Justice Clarence Thomas took on the "cynics" who demonize those with opposite opinions during a speech at the Augusta, GA Bar Association's Law Day Banquet.

Justice Thomas did not hold back when he said that it often appears those talking about the decisions of the Supreme Court appear to have never read the cases. Thomas said, "I think there is a disease of illiteracy or laziness, because just the commentary will tell you they haven't read it," reported the Augusta Chronicle.

Thomas used a college football metaphor, in the heart of SEC country, to get his point across--those who talk about the court have already picked their team. "You don't go to a Georgia fan to get commentary on the University of Florida, because it's not objective commentary," reported the Chronicle.

"Unfortunately, much of the commentary about the court is from the standpoint of people who have vested interests in particular outcomes, particular policies or particular results. Do you think you are getting an honest assessment?" According to the Chronicle,he said he avoids reading that type of work, but lamented that the public and most lawyers probably do not.

To read more: http://chronicle.augusta.com/news/crime-courts/2011-05-17/thomas-defends-ideals-court

Wednesday, May 18, 2011

Mississippi Executes Man for 1994 KIliing

The 17th Execution of 2011

On May 17, 2011, the state of Mississippi executed Rodney F. Gray for the 1994 kidnapping, robbery and murder of an elderly woman, reported UPI. Gray was convicted of killing 79-year-old Grace Blackwell. Blackwell's body was found at the end of a bridge in rural Jasper County.

The Jackson Clarion-Ledger reported Gray was pronounced dead at 6:12 p.m. at the Mississippi State Penitentiary in Parchman.

The condemned man shook his head when asked if he wanted to make a last statement, the newspaper said.

Mississippi Corrections Commissioner Chris Epps told reporters shortly before the execution Gray steadfastly maintained he was not guilty of the crimes that led to his death sentence. The lead prosecutor in the case has said the evidence left no doubt about Gray's guilt, reported the Clarion-Ledger.

Epps said Gray made at least two phone calls on his last day, one to a friend and another to his spiritual adviser. His mother visited with him for 2 hours during the afternoon. Two of his attorneys and prison Chaplain Willie Bays also spent time with him, reported UPI.

To read more: http://www.upi.com/Top_News/US/2011/05/17/Mississippi-killer-executed/UPI-18181305676952/#ixzz1Mht0ZRxX

Ohio Carries Out 4th Execution of 2011

The 16th Execution of 2011

Daniel Lee Bedford was put to death on May 17, 2011 by lethal injection for a double homicide in Cincinnati in 1984, according to Rueters. Bedford's attorneys had argued for clemency, citing dementia and mental retardation.

A federal judge had granted Bedford a stay of execution Monday, but the stay was lifted by the Sixth U.S. Circuit Court of Appeals, and the U.S. Supreme Court rejected his final appeal.

Bedford was convicted of shooting to death his ex-girlfriend Gwen Toepfert and her boyfriend John Smith. Although, Bedford told the state parole board in March that he does not remember the slayings.

For his last meal, Bedford did not request a special meal, but had the regularly scheduled prison meal of an orange, graham crackers, turnip greens, oven-brown potatoes and wheat bread. He received a two-liter bottle of cola as a special request, according to Reuters.

Bedford said "love you" to his daughter, Michelle, before his death, and "God bless you" to all witnesses present, reported Reuters. Bedford was 63 years old. He was the oldest person executed in Ohio since the state resumed administering capital punishment in 1999.

Bedfrod was the fourth execution carried out in Ohio in 2011. Ohio leads the nation in executions so far this year.

To read more: http://www.reuters.com/article/2011/05/17/us-execution-ohio-idUSTRE74G59T20110517

Tuesday, May 17, 2011

SCOTUS Allows Warrantless Entry by Police

The U.S. Supreme Court ruled police officers legally entered a suspected drug dealer's apartment without a warrant, according to The Crime Report. The decision overruled a ruling by the Kentucky Supreme Court.

In Kentucky v. King, 09-1272, police officers smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises they believed were consistent with the destruction of evidence, so they kicked in the door and saw drugs in plain view.

Writing for an 8-1 majority, Justice Samuel Alito said, "Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue."

In a dissent, Justice Ruth Bader Ginsburg said the court opinion "arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant," reported The Crime Report.

To read the full opinion: http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf

Monday, May 16, 2011

Dropouts and Crime, the Correlation is Clear

As many states prune their education budgets it is worth considering the impact of fewer dollars being spent on education. A decline in academic achievement means an increase in students who fail to finish high school.

High school dropouts face many hardships ranging from lower incomes to higher rates of incarceration. According to the Trends in High School Dropout and Completion Rates in the United States: 1972–2008, compiled by the National Center for Education Statistics,
the median income for people ages 18 through 67 who had not completed high school was roughly $23,000 in 2008. By comparison, the median income for people ages 18 through 67 who completed their education with at least a high school diploma, including a General Educational Development (GED) certificate, was approximately $42,000. Over a lifetime, this translates into a loss of approximately $630,000 in income.

An income on average 40 percent lower than an educated counterpart may not necessarily seem like a reason to turn to a life of crime, but estimates from the most recent data available indicate that approximately 34 percent of federal and state inmates and 50 percent death row inmates lack a high school diploma. Estimates for those 25 and older indicate that during the same years 15 percent of the general population were dropouts.

Educational failure and crime rates correspond. Policymakers would do well not to ignore public safety when considering the impact of cuts in education funding.

To read more: http://nces.ed.gov/pubs2011/2011012.pdf

Sunday, May 15, 2011

NYC to Cut 4,000 Teachers: Will Crime Rates be Affected?

New York City plans to layoff 4,000 teachers as part of Mayor Michael Bloomberg’s new budget. The mayor says he has no other options after state lawmakers cut education funding. The teacher layoffs would save only $270 million out of a $65.7 billion budget.

Mike Alberti writing for the web site Remapping Debate points out that a modest tax increase could easily fund the retention of all 4,000 teachers. However, the Republican mayor says he will follow the example of the Democratic Governor Andrew Cuomo who has declared a de facto moratorium on new taxes for state government.

How modest would the tax increase be to save the teachers? A household with an adjusted gross income of $300,000 would pay about $365 a year more in taxes. Anyone making less than $200,000 a year would play nothing. Yet, lawmakers in New York City would opt to lay off 4,000 teachers.

The layoff will undoubtedly have an impact on pre-school programming, academic achievement and graduation rates. All three in turn have an impact on community safety and crime rates.

A 40-year study of the Perry Preschool Program in Ypsilanti, Michigan, showed that children left out of the program were five times more likely to become chronic offenders by age 27 than those who participated. Similarly, studies of the Chicago Child Parent Center early education program showed that kids left out of the program were 70% more likely to have been arrested for a violent crime by age 18 than those who participated.

“Far too often, today’s dropouts are tomorrow’s criminals,” Monroe County District Attorney Michael Greene told fightcrime.org. “We want kids earning diplomas instead of rap sheets. We know that high quality preschool is an investment that can help us achieve this goal.”

Nearly 70% of all inmates in our nation’s prisons failed to earn a high school diploma. Research shows that high school dropouts are three-and-a-half times more likely than graduates to be arrested and eight times more likely to be incarcerated. In New York, 31 percent of students fail to graduate on schedule.

“It just isn’t acceptable that 31% of our students fail to graduate each year,” said state director Meredith Wiley. “But that is the state average. In many of our cities, it is actually much worse. All over the state kids are failing.” In New York City—48% are failing to get their high school diplomas.

New York City has experienced an unprecedented decline in crime. Has education contributed to the decline? The cutback in education funding may provide a glimpse into the connection between educational achievement and crime.

To read more: http://www.fightcrime.org/state/new-york/news/new-york-law-enforcement-dropout-rates-fueling-violent-crime-2

Saturday, May 14, 2011

The Cautionary Instruction: Kudos to the Allegheny County Courts

Pittsburgh Post-Gazette/Ipso Facto
May 13, 2011

The Allegheny County Court of Common Pleas has launched a sex offender court. Problem-solving courts have been around for some time. Sex offender courts are a little different. The Post-Gazette reported, “[U]nlike the county's much-lauded "problem-solving courts" -- such as DUI court and mental health court, which focus first on therapeutic goals -- sex offender court will focus first on accountability.”

The Center for Court Innovation, a group that helped launch the first sex offender courts in New York, suggests that sex offender courts are not designed as alternatives to incarceration, they are not diversion courts, and they are not treatment courts. Sex offender court participants do not opt-in but rather all cases of a certain nature or charge are automatically routed for their entire processing and adjudication. Sex offender courts emphasize the need for offender accountability and increased community safety.

The Allegheny County Courts should be commended for taking a calm and reflective approach to sex offender management -- the Court acted after deliberation, not as a knee jerk reaction to a tragic event. The sex crime section of the crimes code, state and federal, is replete with legislation created in the wake of a tragic crime. The Jacob Wetterling Act, Megan’s Law, Jessica’s Law, Amber Alerts, the Adam Walsh Act and Chelsea’s Law to name a few.

Sex offenders are easy targets. The depravity of a sex crime, particularly those involving children, has no defenders. The merit of Allegheny County’s pro-active efforts comes more into focus when looking at what is going on in other places. Sex offender residency restrictions enacted around the country, including in some Pennsylvania municipalities, can have the unintended consequence of exacerbating factors related to recidivism.

The Chicago Tribune reported that draconian residency restrictions for sex offenders are actually making Illinois a more dangerous place.

In 2008, the U.S. Supreme Court struck down the death penalty for child rape. That did not stop the Oklahoma House, last year, from voting 91-2 in favor of legislation that would impose the death penalty on repeat child molesters.

Last fall, in California, the Governor signed Chelsea’s law. The "one-strike" provision in Chelsea’s Law provides that a first time sex offender could be sentenced to life in prison if the crime involved force against a minor that included certain aggravating factors.

In Louisiana, a 78-year-old sex offender cut his prison sentence in half by voluntarily submitting to castration. Castration is legal in eight states.

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Friday, May 13, 2011

Former CA Corrections Director Does About Face on Death Penalty

Jeanne Woodford resigned as director of the California Department of Corrections and Rehabilitation four years ago, dismayed over state authorities' clinging to policies such as the death penalty that she had concluded are wasteful, discriminatory and fail to make the public safer, according to the Los Angeles Times.

California has rebuilt its execution chamber and is poised to begin carrying out executions after a five-year legal hiatus. However, Woodford has crossed to the other side of the contentious debate over capital punishment. The anti-death penalty group Death Penalty Focus recently announced Woodford's appointment as executive director. Woodford’s a new role will place her in direct opposition to any execution of the 713 inmates currently on California’s death row.

Woodford says she sees an opportunity to get rid of the death penalty in the current quest for budgetary restraint. If the public can be educated about the true costs of capital punishment — at least $200 million a year, she says — as well as it’s potential for irreversible error, support for the ultimate penalty would wither, Woodford predicts. It is that prospect that has lured her from a brief retirement to the post with Death Penalty Focus from which she will lobby against the policy she once imposed, reported the Times.

To read more: http://www.latimes.com/news/local/la-me-0512-warden-anti-death-penalty-20110512,0,5642988.story

Wednesday, May 11, 2011

Mississippi Executes Killer Using Pentobarbital

The 15th Execution of 2011

The state of Mississippi has executed Benny Joe Stevens convicted of killing four people, including two children, in 1999, according to the Associated Press.

"What I did was terrible," he said just before a mix of pentobarbital, Pavulon and potassium chloride was pumped into his veins. "Ain't no forgiveness," reported the USA Today.

Officials at the state penitentiary at Parchman said Stevens was declared dead at 6:22 p.m. on May 10, 2011 after his execution using Pentobarbital in place of sodium thiopental in the three drug execution protocol. Mississippi joins a growing number of states using pentobarbital for lethal injection. Oklahoma, Ohio, Texas and South Carolina have used the drug without incident.

Stevens was sentenced to death for killing four people at a mobile home in Mississippi’s rural Marion County. Those killed were Stevens’ former wife, 38-year-old Glenda Lee Reid; her 38-year-old husband, Wesley Lee Reid; the Reids’ 11-year-old son, Dylan; and Dylan’s friend, 10-year-old Heath Pounds.

Corrections Commissioner Chris Epps said Stevens’ father and brother visited the inmate Tuesday. Stevens also wrote a letter to his daughter, Erica, who survived the attack, according to the Associated Press.

To read more: http://www.usatoday.com/news/nation/2011-05-10-mississippi-execution-drug_n.htm

Tuesday, May 10, 2011

Oregon Man Wants to Volunteer for Execution

Gary Haugen, an Oregon death-row inmate, wants to drop any further appeals and die by lethal injection as soon as possible. Haugen is what is known in capital punishment circles as a volunteer. Each year in America a handful of condemned inmates are executed because they want to be executed.

Pennsylvania has executed thee inmates in thirty years. All three were volunteers. The last execution in the United States, Jeffrey Motts of South Carolina was also a volunteer. If Haugen gets his way, he will become the first prisoner put to death in Oregon in almost 15 years.

Haugen is scheduled to appear Friday before a Marion County judge at a hearing he requested to explain his desire to be executed. If the judge finds that Haugen is mentally competent to drop his appeals, he could be executed this summer, officials said Monday, reported the Statesman-Journal.

Haugen and another inmate, Jason Brumwell, landed on death row in 2007, when both were convicted of killing a third inmate at the Oregon State Penitentiary in Salem. The inmate suffered a crushed skull and 84 stab wounds. The two assailants used homemade knives, a large steel screw and a leg from a stool as murder weapons. The prosecution asserted that the slaying was motivated by drug conflicts, revenge and a mistaken belief that the victim was an informant for prison officials, according to the Statesman-Journal.

To read more: