Thursday, June 30, 2011

Arizona Executes Child Killer

The 25th Execution of 2011

Arizona executed Richard Lynn Bible today at the state prison in Florence. He had been on death row for more than two decades. Bible was convicted of kidnapping and killing 9-year-old Jennifer Wilson, of Yuma, while she was on vacation with her family in Flagstaff. Hikers found her naked, decomposing body three weeks later, according to the Associated Press.

Bible failed to win any of his appeals. Most recently, he asked an appeals court and the U.S. Supreme Court to delay his execution for DNA testing on hairs used as evidence in his trial.

According to KSWT-TV, Bible seemed frightened when he was brought into the death chamber, and swallowed repeatedly throughout his final words, which were "Thank you to my family and my lawyers. I love you all. Everything's ok."

Once the injection was administered, Bible continued to swallow hard, and his right arm twitched and moved several times before he was pronounced dead.

After Bible died, Jennifer Wilson's father addressed the media, thanking everyone for their support, and thanking the Arizona department of corrections, saying he felt justice had finally been served.

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Ohio Passes Ambitious Prison Reform Bill

Ohio Governor John Kasich has signed a significant criminal justice reform package with bipartisan support.

The criminal sentencing reform package is designed to reduce the prison population by keeping low-level offenders out of prison -- placing them instead in halfway houses or community-based correction facilities -- and creating new pathways for certain inmates to shorten their sentences, according to the Cleveland Plain-Dealer.

The reforms also eliminate disparities in punishments for crack cocaine and powder cocaine offenses while making it easier for former prisoners to find jobs.

The changes are expected to save the state more than $46 million over the next four years, according to the Ohio Department of Rehabilitation and Correction.

Undisputed is the need to ease prison overcrowding. Ohio's prison population this month is 50,561, significantly above the corrections system's capacity of 38,389, reported the Plain-Dealer.

The Ohio Prosecuting Attorneys Association was opposed to the legislation. According to the Plain-Dealer executive director John Murphy called the earned credit program a "mockery of our sentencing laws" and questioned the motivation for the bill's early release provisions.

"It appears the only important thing at this stage, however, is that these provisions justify reducing DRC's budget," Murphy testified last month before a Senate committee.

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Wednesday, June 29, 2011

Supreme Court to Take Up Another Sixth Amendment Case

The U.S. Supreme Court has agree to hear a new Sixth Amendment case. The new Confrontation Clause case is Williams v. Illinois. According to Lyle Denniston of the Scotusblog, the fact are as follows the Illinois Supreme Court ruled that prosecutors could introduce the substance of a forensic analyst’s report on a DNA test of evidence by putting an expert witness on the stand and having her analyze the results, which showed a DNA match in a rape and kidnapping case. The lab analyst was called to testify, and the actual lab report itself was not admitted. The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done. The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the findings of the lab report were being admitted not for their truth, but only to explain the expert’s opinion about the results.

The is is similar to Bullcoming v. New Mexico decided just last week by the U.S. Supreme Court. According to Dinniston,the Court in Bullcoming had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible. Justice Sonia Sotomayor sought to show that the decision was a narrow one, and she listed several factual scenarios that she said were not covered wrote Denniston. One of them was a situation in which “an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”

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Tuesday, June 28, 2011

Wisconsin's Uncivil Court

Justices involved in a Physical Altercation

Temperament is always a consideration when selecting a judge. That almost seems a given when talking about a position like supreme court justice. The thought of a robbed justice in an ornate chamber. Words like regal. honorable come to mind. Not in Wisconsin.

Wisconsin Supreme Court Justice Ann Walsh Bradley has accused fellow Justice David Prosser of putting her in a chokehold during a dispute in her office earlier this month.

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Milwaukee Journal Sentinel.

Six of the court's seven justices had gathered in Bradley's chambers. Some were informally discussing the decision.

The conversation grew heated, and Bradley asked Prosser to leave. Bradley was bothered by disparaging remarks Prosser had made about the Chief Justice Shirley reported the Journal Sentinel.

Before leaving, Prosser "put his hands around her neck in what (Bradley) described as a chokehold," the source told the newapaper.

"He did not exert any pressure, but his hands were around her neck," the source told the Journal Sentinel.

The source said the act "was in no way playful."

In an interview, Bradley told the Journal Sentinel: "You can try to spin those facts and try to make it sound like I ran up to him and threw my neck into his hands, but that's only spin."

"Matters of abusive behavior in the workplace aren't resolved by competing press releases. I'm confident the appropriate authorities will conduct a thorough investigation of this incident involving abusive behavior in the workplace."

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Monday, June 27, 2011

SCOTUS Adds to Difficulty With Admission of Lab Reports

According the National District Attorneys Association (NDAA) the U.S. Supreme Court recently decided Bullcoming v. New Mexico. The decision appears to make it more difficult to admit expert lab reports in the aftermath of Melendez-Diaz and Crawford. Those two cases in 2004 and 2009 established parameters for testimonial statements. The Court found that a certification by a forensic lab analyst was a testimonial statement, therefore its admission in lieu of live testimony by the analyst violated the confrontation clause of the Sixth Amendment.

The Bullcoming v. New Mexico opinion authored by Justice Ruth Bader Ginsburg held that the prosecution in a criminal case may not introduce a forensic lab report containing a testimonial certification through the in-court testimony of another scientist who did not sign the certification, or perform or observe the test which is the subject of the certification. The defendant has a right to be confronted with the analyst who made the certification, unless he or she is unavailable at trial, and the defendant has had an opportunity to cross-examine him or her prior to trial.

According to the NDAA’s Executive Director Scott Burns, if an out-of-court statement is testimonial, it may not be used against a defendant at trial unless the witness who made the statement is unavailable and the defendant has had a prior opportunity to confront the witness. Here, the State never asserted that the analyst was unavailable, nor did the defendant have a prior opportunity to cross-examine him.

In a concurrence, Justice Sonia Sotomayor emphasized the limited holding of the case, noting that the substitute analyst had no involvement whatsoever with the testing, was not an expert witness asked to give an independent opinion about testimonial reports not admitted into evidence, there was no suggested alternative purpose for the report, such as medical treatment, and the State sought to admit the first analyst’s statements, not just a printout. Thus, “the court’s opinion does not address, any of these factual scenarios.”

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Sunday, June 26, 2011

Brownback: Volunteers Needed for Prison Mentoring

Kansas Governor Sam Brownback abolished the parole board soon after taking office in January. Parole Board member Patricia Biggs expressed concern that abolishing the Parole Board could lead to decisions by Corrections Department officials to release prisoners to ease overcrowding, or, alternatively, to keep people in prison longer to justify expansion of staff or prisons.

In addition, she said the plan raises constitutional issues of due process of law for alleged parole violators, because the same agency responsible for bringing the accusation would also be responsible for deciding the defendant's guilt and punishment.

Now, Governor Brownback wants to recruit 5,000 volunteers to mentor inmates released from prison, according to the Kansas City Star. Murderers, rapist, armed robbers will have a faith based mentor to help them transition back into the community and stay in the community.

Brownback said he wants a mentor for each released criminal. “What we’re asking is for people of heart in all faiths and people of goodwill to come forward and help us out with this,” he told the Star. “We get it right, the cost to the state goes down, crime goes down in the state.”

Kansas officials say they release about 5,000 inmates a year and about 40 percent of them will return to prison within three years. Kansas believes if you provide faith based mentoring those inmates won't return to prison. Combining prison, parolees and faith is not a new concept.

The 19th century witnessed an infusion of faith based solutions to crime. Pennsylvania's Eastern Penitentiary was intended to keep convicts separate even as they worked, in order to prevent any earthly contamination or distraction that might impede their repentance—hence the term penitentiary. The solitary confinement of prisoners, so they could reflect and repent was viewed by some as worse than physical punishment and was was soon phased out.

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Saturday, June 25, 2011

Georgia Carries Out First Execution With Pentobarbital

The 24th Execution of 2011

Roy Blankenship was executed by the state of Georgia on June 23, 2011 for the 1978 murder of Sarah Mims Bowen, who died of heart failure after she was raped and beaten in her apartment, according to Reuters.

It was the state's first execution using a new sedative, pentobarbital, in place of sodium thiopental. He was pronounced dead at 8:37 p.m. local time, according to a spokeswoman for the Georgia Department of Corrections. The day of the execution the Georgia Supreme Court unanimously rejected Blankenship's last-minute request for a stay, including his claim that using pentobarbital in the execution would cause undue pain and suffering, reported Reuters.

Blankenship did not request a last meal and was offered the prison's normal food but declined to eat. He did not make a final statement.

Georgia now has executed 50 men since the U.S. Supreme Court reinstated the death penalty in 1976. Blankenship was the 27th inmate put to death by lethal injection in Georgia, which has 100 men and one woman on death row.

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Texas Carries Out Sixth Execution of the Year

The 23rd Execution of 2011

Milton Mathis was executed on June 21, 2011 for fatally shooting two people inside a Houston crack house in 1998, becoming the sixth death row inmate executed in Texas this year. The lethal injection was carried out shortly after the U.S. Supreme Court rejected appeals from his defense attorneys, who argued that Mathis was mentally impaired and therefore ineligible for execution, according to the Associated Press.

Mathis, 32, was condemned for a shooting spree that killed Travis Brown III, 24, and Daniel Hibbard, 31, less than two weeks before Christmas in 1998. A 15-year-old girl, Melony Almaguer, also was shot and left paralyzed. Almaguer, seated in a wheelchair and accompanied by her husband, was among a small group of people who watched Mathis die from behind a window at the Huntsville Unit of the Texas Department of Criminal Justice.

"I never meant to hurt you," Mathis, strapped to a gurney with tubing taped to his arms, told Almaguer. "You were just at the wrong place at the wrong time." Her husband stood with his hand on her shoulder and at one point brushed her face with his hand, according to the Associated Press.

Mathis thanked his friends and relatives, and asked for mercy for himself and "these people carrying out this mass slaughter." "The system has failed me," he said, reported the Associated Press. "This is what you call a miscarriage of justice. Life is not supposed to end this way ... I just ask the Lord, when I knock at the gates, you just let me in."

He yawned and gasped, then began snoring as the lethal drugs began taking effect. Nine minutes later, at 6:53 p.m., he was pronounced dead.

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Friday, June 24, 2011

California's Climbing Capital Punishment Costs

U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell authored a report, "Executing the Will of the Voters: A Roadmap to Mend or End the California The Legislature's Multi-Billion-Dollar Death Penalty Debacle." The examination of expenditures for capital cases, conducted over three years estimated that the additional costs of capital trials, enhanced security on death row and legal representation for the condemned adds $184 million to the budget each year, according to the Los Angeles Times.

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty's costs. The death penalty will climb to $9 billion by 2030, when San Quentin's death row will have swollen to well over 1,000, reported the Times.

The authors outline three options for voters to end the current reality of spiraling costs and infrequent executions: fully preserve capital punishment with about $85 million more in funding for courts and lawyers each year; reduce the number of death penalty-eligible crimes for an annual savings of $55 million; or abolish capital punishment and save taxpayers about $1 billion every five or six years.

According to the Times, unless profound reforms are made by lawmakers who have failed to adopt previous recommendations for rescuing the system, Alarcon and Mitchell say, capital punishment will continue to exist mostly in theory while exacting an untenable cost.

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Thursday, June 23, 2011

Senator: Castle Doctrine a God-Given Right

Without debate, the Pennsylvania Senate approved a new Castle Doctrine bill expanding self-defense rights and sent it to Governor Tom Corbett for his signature. Governor Corbett will sign the bill, said a spokesman.

The Senate approved the expanded Castle Doctrine by a vote of 45-5, according to the Pittsburgh Tribune-Review. Under current law, a person can use deadly force -- without retreat -- in his or her home. Outside the home, using lethal force to defend oneself requires first taking steps away from an assailant. The new bill allows someone to shoot an attacker without retreat outside the home -- anywhere a person is legally allowed to be.

Supporters called it "stand your ground" legislation. Critics call it "shoot first" legislation.

Senator Richard Alloway II, a Republican who sponsored the bill, is quick to point out that although the National Rifle Association was the driving force behind the legislation, it is "not a gun bill. It's a personal safety bill."

"I don't know why anyone would draw distinction between someone attacking [you] in your home and someone attacking you on the street when you're walking your dog," said Senator Richard Alloway II, a Republican who sponsored the bill, who also said he believes self defense is a God-given right.

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Wednesday, June 22, 2011

School House Interrogations by Police May be Thing of the Past

Nina Totenberg of NPR suggests that police interrogations at school have a nefarious aspect. Experts say that police questioning in school may no longer be presumed to be legally permissible without advising a youngster of his or her rights.

The recent U.S, Supreme Court decision in J.D.B. v. North Carolina gives a "real world" look at how police operate, Eugene O'Donnell, a former New York City Police officer, and now a professor at John Jay College of Criminal Justice told Totenberg that the police investigator "took great pains to orchestrate an environment where he would not have to give the Miranda warnings," said O'Donnell. "A lot of people think that cops are dying to take out that Miranda card and read the rights to suspects. But in fact the police are very reticent to do that. They rely on … getting people to talk."

Steven Drizen, legal director at Northwestern University's Center on Wrongful Conviction, calls Thursday's ruling "huge."

"This is the first time the court has applied Miranda to an interrogation that takes place in the schools, which is the site of many interrogations of children," Drizen told Totenberg. "This is huge because when police go to locate suspects who are children, the first place they often go is to their school. And many times, police officers will question suspects at the school under the belief that if they do so, then they don't have to apply Miranda because it's not a station-house interrogation. ... It's been a loophole ... and this decision will close that loophole."

Indeed, "juveniles make up a disproportionate number of those who falsely confess," added Drizen, citing recent studies that demonstrate juveniles account for fully one-third of wrongful convictions based on false confessions. "The pressures of police interrogations weigh much more heavily on a juvenile suspect than they do on an adult suspect" leading to "exponentially higher" false confession rates among juveniles, reorted NPR.

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Tuesday, June 21, 2011

SCOTUS Further Narrows the Exclusionary Rule

U.S. Supreme Court Justice Samuel Alito Jr., writing for the 7-2 majority in Davis v. United States, held that a change in the law after a conviction did not make a search conducted during an investigation that complied with the law at the time invalid. Justice Alito said the absence of police culpability at the time of the search "dooms" a defendant's claim that evidence obtained in the search should be excluded at trial, according to

The opinion in Davis v. United States grew out of the conduct of Willie Davis. He was a passenger in a car stopped by police in Greenville, Ala., in 2007. Police arrested the driver for being under the influence of alcohol, then searched the car and found a revolver in a jacket that Davis had left on the car seat, reported At trial on charges of felony possession of a firearm, Davis sought to suppress the gun evidence, citing a related, then-pending Supreme Court case. The evidence was permitted at trial, and Davis was found guilty and sentenced to more than 18 years in prison. The Federal Appeals court dismissed the charge citing the high court’s post conviction decision that changed the law.

"Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule," Justice Alito wrote. Justice Alito said the exclusionary rule had a limited purpose of deterring future police misconduct, and could be ignored if it did not clearly serve that purpose in a given case, according to

“It is one thing for the criminal 'to go free because the constable has blundered.'" Justice Alito wrote, quoting from an early ruling that foreshadowed the exclusionary rule. "It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs."

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Monday, June 20, 2011

Book Review: Erik Larson, In the Garden of Beasts

Every day on this site I blog about issues of crime and punishment. Today’s post is different. Although not the usual law and order subject matter, below is a review of Erik Larson’s In the Garden of the Beast. The book chronicles diplomatic activity in pre-WW II Germany—as well as the rise to prominence of the most infamous mass killer in world history.

William E. Dodd arrived in Germany as American Ambassador about six months after Adolph Hitler was appointed chancellor. Erik Larson in his book, In the Garden of Beasts writes about Dodd and his family during the early years of Hitler’s ascent to absolute power. Dodd was a history professor at the University of Chicago. A close relationship with FDR helped him gain the diplomatic post over the objection of some in the state department.

Under Secretary of State William Phillips, whose wife was a friend of Eleanor Roosevelt, felt Dodd was not fit for such an important diplomatic post. Dodd was not part of the “pretty good club.” In Phillips’ eyes club membership was exclusively for men in the Foreign Service who came from wealth—and Harvard, Yale or Princeton.

Although Larson suggests that Dodd practiced “rudimentary anti-Semitism,” he complained about the number of Jews on his staff, and referred to the mistreatment of Jews in Hitler’s Germany as the “Jewish problem,” he did acknowledge early in his German service that the treatment of Jews by the Nazis was shameful.

Larson’s book focuses on Dodd’s first year in Germany. In fact, 340 of 365 pages of text spans July 1933 to August 1934. Dodd initially believes that the Nazis were becoming more “moderate.” That notion is short lived. Dodd’s daughter Martha soon observed SA Storm Troopers brutally parade a woman through the streets with a placard around her neck, “I have offered myself to a Jew.”

Larson dedicates a significant portion of the book to Martha’s romantic trysts. She was recently divorced from her American husband, a New York City banker. She became involved with Rudolf Diels, the Chief of the Gestapo; Boris Winogradou a Soviet diplomat, who was later revealed as a Soviet spy; Putzi Hansfstaengl the Nazi foreign press chief who introduced Martha to Hitler with a view toward bringing the two together “romantically.”

Despite the frivolity of Dodd’s offspring, he sensed the impending doom hanging over Berlin as described In the Garden of Beasts, “It was something everyone who lived in Berlin seemed to experience. You began to think differently about whom you met for lunch and for that matter what cafĂ© or restaurant you chose…In the most casual of circumstances you spoke carefully and paid attention to those around you in a way you never had before. Berliners came to practice what was known as the ‘German Glance’—der deutsche blick—a quick look in all directions when encountering a friend or acquaintance on the street.”

Dodd’s sense of dread and foreboding came to a head about a year after his arrival in Germany. On June 30, 1934, the “night of the long knives” Hitler ordered the murder of hundreds of SA officers including his long time friend Captain Ernest Rohm.

Although Washington refused to take an official position against Nazism in the aftermath of the massacre, Dodd refused to attend Nazi political functions saying, “It is humiliating to me to shake hands with known and confessed murderers.” Dodd met resistance from the U.S. State Department but managed to hold on to the post for three more years, although Larsen reveals little about those years.

Larsen credits Dodd with being one of the highest ranking American officials to see the Nazis for what they really were, blood thirst mad men who would do anything to advance their agenda and expand their power. Dodd is adulated by Larson, in retrospect, the way Winston Churchill was adulated at the time—a lone voice of dissent. Dodd, through Larsen, was out of his league.

Larson superficially addresses a revealing incident in Dodd’s post diplomatic career. In December of 1938, a year after leaving Germany, Dodd hit a four-year-old girl with his car on the way to a speaking engagement. He left the scene of the accident. He explained his action as, “It was not my fault.” He was later prosecuted and convicted.

Martha, Dodd’s daughter, married again, and lived her life as an expatriate in Prague.

Larson offers a glimpse into Hitler’s early years and how men of intelligence and diplomatic skill failed to intervene. However, the book neither inflames outrage, nor prompts one to seriously reflect on how this could have occurred. Maybe, the genius of Larsen’s book is that its matter-of-fact presentation demonstrates to the reader how easy it is to ignore the obvious when it does not touch one directly.

Sunday, June 19, 2011

Age a Factor for Juvenile Miranda Warnings

U.S. Supreme Court Justice Sonia Sotomayor writng on behalf of the majority in J.D.B. v. North Carolina found "children can not be viewed simply as minature adults." Justice Sotomayor was referring to a new subjective factor in determining if a juvenile is entitled to Miranda warnings.

According to, the high court case arose out of police questioning of a 13-year-old boy in connection with two home break-ins. The boy was taken from his middle school classroom by a uniformed officer to a school conference room where, behind closed doors, he was questioned for 30-45 minutes by a second officer, who knew the boy's age. An assistant principal and an administrative intern also were present. After the principal urged the boy to "do the right thing" and the officer told him that he could be sent to juvenile detention, J.D.B. confessed to his and a friend's involvement in the break-ins. The officer then informed J.D.B. that he could refuse to answer questions and was free to leave.

In her analysis, Justice Sotomayor acknowledged that whether a suspect is in custody is an objective inquiry. Police and courts, she said, look at the circumstances surrounding the interrogation and then ask whether a reasonable person would have felt free to leave. However, she rejected arguments by North Carolina and its supporters — other states and prosecutors — that a child's age, no matter how young, has no place in that inquiry.

A child's age, she said, is far more than a chronological fact. Laws and court decisions throughout history, she explained, have recognized that children cannot be viewed simply as miniature adults.

"So long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test," she wrote. A child's age, she added, may not be a determining or significant factor in every case, but it is "a reality that courts cannot simply ignored," reported

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Saturday, June 18, 2011

Alabama Executes Killer of Elderly Woman

The 22nd Execution of 2011

Eddie Duval Powell was executed for the sexual assault and murder of a 70-year-old woman in 1995. Powell and a friend lived across the street from Mattie Wesson in Holt, Alabama. On the morning of March 25, 1995, Powell borrowed his friend's leather jacket and attacked Wesson in her home, according to Reuters.

Powell's hand print was found on the window on the front of her home -- where a screen had been cut -- and his semen was found on her body. He shot Wesson and her blood was found on his pants and on the borrowed leather jacket, according to court documents.

Powell took small change and jewelry from the home. He purchased wine with mostly nickels at a nearby gas station, and jewelry similar to Wesson's was found in the pockets of the leather jacket.

Powell was tried twice. The first trial ended in a mistrial when the jury could not agree on the punishment. A second jury found him guilty of murder and recommended the death penalty, which Alabama's appellate courts upheld, reported Reuters.

Powell did not request a special last meal. He ate sandwiches, soda and corn chips from a vending machine.

"I'd like to say I'm sorry for the pain I have caused everyone who has had to deal with this situation -- my family, the victim's family and everyone in this state," he said before being put to death, according to the Department of Corrections. "I've made peace with myself and God, and hope that everyone can move on from this situation," reported Reuters.

Powell was pronounced dead at 6:30 p.m., Thursday, June 16, 2011 at the Holman Correctional Facility in Atmore, Alabama. He died four minutes after Lee Taylor who was executed in Texas.

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Friday, June 17, 2011

Texas Executes KIller Who Killed in Prison

The 21st Execution of 2011

Texas executed Lee Taylor for a 1999 murder. His second killing. Taylor used a shank, a home made weapon used in prison, to stab fellow inmate Donta Greene multiple times. The stabbing was described as a fight stemming from racial tension. Taylor, who is white, was a member of the Aryan Brotherhood of Texas, according to the department. Greene was black.

According to Reuters, Taylor said shortly before he died that he was acting in self-defense. "I am sorry that I killed him but he would not have been in prison if he was a saint," Taylor said.

Taylor also talked about the death penalty itself, saying that not everyone on death row is "a monster." "I hope people understand the grave injustice by the state," said Taylor according to Reuters. "It's not right to kill anybody just because I killed your people. Everyone changes, right?"

At the time of the stabbing at the northeast Texas prison, Taylor was serving a life sentence for an aggravated robbery in which an elderly man died, according to the state attorney general's office.

Taylor was pronounced dead at 6:24 p.m. Thursday, June 16, 2011. His last meal included pizza, soft tacos, fried jalapeno sticks, french fries, fried okra and ice cream, reported Reuters. One of the last things Taylor said was: "I'm ready to teleport."

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The Cautionary Instruction: Protecting the 'Snitch', Protecting the Process

Pittsburgh Post-Gazette/Ipso Facto
June 17, 2011

Testimony from an FBI agent during a recent murder trial in Omaha, Nebraska revealed an astonishing glimpse into undercover law enforcement investigations. The FBI paid a confidential informant more than $300,000 over five years for information used to help agents probe a drug operation. The payments were for undercover work conducted mostly in the Omaha area.

In some circles a confidential informant is referred to as a “snitch,” a slang term for a person cooperating with police to infiltrate a criminal enterprise, predominately the illegal drug trade. A confidential informant is a person usually accused of a crime who either comes forward, or is asked by police, to offer to assistance in exchange for leniency. Jailhouse informants, inmates often already convicted, are commonly recruited to testify about statements made by other inmates accused of murder, organized crime, sexual assault and just about any other crime.

The confidential informant has a useful place in the investigation and prosecution of criminal conduct. The closely vetted and reliable confidential informant can provide a wealth of information about an ongoing criminal enterprise. A drug informant can make controlled hand-to-hand purchases of illegal drugs without which there would be few successful drug prosecutions.

There are also drawbacks to using informants.

Professor Alexandra Natapoff recently wrote for Reason Magazine that a 2004 study by researchers at Northwestern University Law School, found that “more than 45 percent of wrongful convictions in death penalty cases were due to false informant testimony, making snitches ‘the leading cause of wrongful convictions in U.S. capital cases.’”

Some states have taken measures to deal with informants. In Florida, Rachel's Law was named for Rachel Hoffman, a recent college graduate who was arrested for possession of marijuana and Ecstasy. She was persuaded by police to cooperate in a large drug sting in exchange for leniency. She was murdered in the process. Rachel's Law now requires training for police who recruit confidential informants; informants must be told that a sentence reduction may not happen; and informants must be told they have the right to consult an attorney. .

In Pennsylvania, Senate Bill 121 seeks to ban internet websites that publish the name or identity of individuals who cooperate with police investigations.

The Florida statute and the Pennsylvania bill are efforts to protect those who cooperate. However, more work needs to be done to establish a uniform set of guidelines for engaging and using informants in police investigations and criminal prosecutions.

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Thursday, June 16, 2011

Scheduled Texas Execution Ignites International Controversy

Texas has executed more convicted killers than any other state. This year the state has executed four men and a series of executions are scheduled for the next 30 days. Executions, at least in Texas, have become routine.

However, the July 7 execution of Humberto Leal Jr. is anything but routine. Leal is a Mexican national, who claims that the Untied States violated the Geneva Convention when it failed to alert him of his right to contact the Mexican Consulate for assistance in his defense.

Article 36 of the Vienna Convention on Consular Relations, provides if an individual who is not a national of the United States is detained or arrested by an officer or employee of the Federal Government or a State or local government, the arresting or detaining officer or employee, or other appropriate officer or employee of the Federal Government or a State or local government, shall notify that individual without delay that the individual may request that the consulate of the foreign state of which the individual is a national be notified of the detention or arrest.

Observing the treaty is not “a favor to foreigners” but a “plainly compelling” national interest in protecting Americans abroad, John B. Bellinger III told the New York Times. Bellinger was the top State Department lawyer under President George W. Bush and who joined other former diplomats in a plea to Texas Governor Rick Perry. Governor Perry is awaiting a recommendation from the State Board of Pardons.

The U.S. Supreme Court has ruled that the consular provision of the Vienna Treaty needs to addressed by congressional action. The congress has not acted. Senator Patarick Leahy has proposed legislation that relates specifically to capital cases.

The Council of Europe, a human rights organization, has called on the Untied States to pass legislation supporting the Vienna treaty, a request that could backfire in Washington, partly because “a push from Europe that focuses on the death penalty will alienate some lawmakers,” Peggy McGuinness, associate director of the Center for International and Comparative Law at St. John’s Law School in New York, wrote in her blog, reported the Times.

With Governor Perry contemplating a run for president, it is unlikely that he will grant a stay that can be perceived as bowing to international pressure. Don't forget that candidate Bill Clinton presided over the 1992 Arkansas execution of a man who's mental state was such, that he saved a piece of pie from his final meal for after the execution.

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Wednesday, June 15, 2011

Aricle Explores Reasons for Staggering Incarceration Rate

According to Veronique de Rugy a senior research fellow at the Mercatus Center at George Mason University, writing for Reason Magazine, the International Centre for Prison Studies at King’s College London calculated that the United States has an incarceration rate of 743 per 100,000 people, compared to 325 in Israel, 217 in Poland, 154 in England and Wales, 96 in France, 71 in Denmark, and 32 in India.

de Rugy writing for Reason suggested that attempts to estimate the costs and benefits of prison have proved difficult and controversial. In 1987, a National Institute of Justice economist Edwin Zedlewski used national crime data to calculate that the typical offender commits 187 crimes a year and that the typical crime exacts $2,300 in property losses or in physical injuries and human suffering. Zedlewski estimated that the typical imprisoned felon is responsible for $430,000 in “social costs” each year he is not in prison. He concluded that the public benefits of imprisonment outweigh the costs by 17 to 1.

Zedlewski’s findings were rebutted by Boalt Hall Law School penologists Franklin Zimring and Gordon Hawkins, according to de Rugy. The Boalt Hall researchers argued that Zedlewski overstated the net benefit of incarceration. According to a 1991 Brookings paper by John J. DiIulio and Anne Morrison Piehl, making one adjustment to the calculations reduces the benefit/cost ratio to 1.38.

de Rugy writes that economists are getting better at understanding how to keep people out of jail. In a 2007 paper for Economic Inquiry, U.C.–Santa Barbara economist Jeff Grogger found there are large deterrent effects from increased certainty of punishment and much smaller, generally insignificant effects from increased severity. Such findings call into question the economic rationality of increasingly long prison terms. Swift justice trumps big justice.

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Tuesday, June 14, 2011

To Avoid Unlawful Search, Know Your Constitution

Pennsylvania Law Weekly
June 14, 2011

The U.S. Supreme Court expanded the exigent circumstances exception to the Fourth Amendment ban against unreasonable searches and seizures. The court has long recognized exceptions to the warrantless entry of a home by the police.

First, the "emergency aid" exception provides that the police may enter a home without a warrant to render emergency assistance to an injured person in the house or to protect an occupant from imminent injury. Second, the police may enter a home without a warrant when they are in "hot pursuit" of a fleeing suspect. Finally, the police may enter a home without a warrant to prevent the "imminent destruction" of evidence.

In Kentucky v. King , the Lexington Police Department was involved in an undercover drug investigation. After observing the drug transaction the police moved in to make an arrest. The suspect fled toward an apartment building with the police in pursuit. As the police entered the building they heard a door close. There were two apartment doors; from under one door emanated the smell of marijuana.

The police chose not to get a warrant, although at that time probable cause likely existed to get a warrant. Instead the police, "banged on the door as loud as possible" and announced, "police, police, police." At that point the police heard movement within the apartment that led them to believe that the occupants were destroying evidence of drug use. The police announced their intention to enter the apartment and "kicked down the door."
The Kentucky Supreme Court held that the exigent circumstances rule to protect evidence from imminent destruction does not apply in this case because the police should have foreseen that their conduct would prompt the occupant of the apartment to attempt to destroy evidence.

The U.S. Supreme Court disagreed with the Kentucky Supreme Court. Justice Samuel A. Alito Jr. wrote for an 8-1 majority that a warrantless entry into a private citizen's home to prevent the destruction of evidence is justified if the police "did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment."

The rationale for the decision gets a little tricky. Essentially, the court is saying ignorance is not bliss especially when dealing with the U.S. Constitution. The court holds a private citizen to a high standard of constitutional literacy concerning when to exercise the protections guaranteed therein and when to constitutionally protect oneself by omission.
Alito wrote, "When the police knock on a door but the occupants choose not to respond or to speak, 'the investigation will have reached a conspicuously low point,' and the occupants will have the kind of warning that even the most elaborate security system cannot provide. And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time."

"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," wrote Alito. Apparently Alito is suggesting that an average citizen must have more than a cursory understanding of the rights afforded by the constitution in order to make competent decisions when interacting with the police. Of course, most will say that if you have nothing to hide answer the door. Sometimes there are things that a home owner may want to hide that are completely legal.

In this case there was illegal activity going on within the residence. But, what if there were a very married couple engaging in what very married couples do in the privacy of their home? Their neighbors across the hall like to smoke a little marijuana now and again. The police smell the marijuana and bang loudly on the couple's door. The couple scrambles to get their clothes on, use the toilet — noises similar to destroying evidence. Should that couple expect that the police will kick their door down as they attempt to get dressed?
Had the police obtained a warrant, the husband and wife would probably have been dressed and more than willing to dispel the idea that they had any evidence to destroy.

Justice Ruth Bader Ginsburg was the lone dissenter in Kentucky v. King . She wrote, "The existence of a genuine emergency depends not only on the state of necessity at the time of the warrantless search; it depends, first and foremost, on actions taken by the police preceding the warrantless search." "Officers must seek a warrant based on probable cause when they believe in advance they will find contraband or evidence of a crime … Wasting a clear opportunity to obtain a warrant," therefore, "disentitles the officer from relying on subsequent exigent circumstances."

The King decision is further exacerbated by the growing movement across the country to expand the "castle doctrine" and "stand your ground" legislation. The idea that police can barge into a citizen's home appears to conflict with the right of citizens to protect themselves within their home — even from the police if their entry is unlawful.

Protecting oneself from illegal entry by the police recently got a little more complicated —at least in Indiana. Indiana's Supreme Court recently decided Barnes v. Indiana . In a 3-2 decision, the court ruled that "this court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right." The decision has created a firestorm of controversy in Indiana.

The U.S. Supreme Court's decision in King has the potential for creating dangerous encounters between the police and citizens. The decision seems to impute to citizens a thorough, yet unrealistic, grasp of complex constitutional issues mixed with clear state legislative action across the country expanding the rights of individuals to use deadly force to protect themselves and their families within the sanctity of their homes. This seems to create a lethal combination of ignorance and bravado.

Megan Kanka's Killer Renews his Appeals

NJ's Elimination of the Death Penalty May have Opened the Door to Killer

Jesse Timmendequas raped and murdered of 7-year-old Megan Kanka. Kanka's murder led to the creation of laws requiring the registration of sex offenders and the notification of residents when sex offenders move into their neighborhoods, universally known as Megan's

Twice convicted of sexual assault before this incident, Timmendequas was sentenced to death for the 1994 murder, kidnapping and aggravated sexual assault of Megan. He lured her to his house where he attacked her, sexually assaulting her and strangling her. Believing she was dead, he dumped her body in a wooded area near a park and later participated in the organized search for her.

Now that New Jersey abolished the death penalty in 2007, Timmendequas has renewed his request to have his conviction overturned. He argued several of the same points he used in his appeals after he was sentenced to the death penalty. But Timmendequas contends he has a right to bring those arguments again because he is not facing death but life in prison.

According to the Star-Ledger, Timmendequas attorney claimed in court papers ineffective counsel at trial because they did not offer proof of Timmendequas' mental retardation and because they did not object to alleged prosecutorial misconduct.

The trial attorneys also erred when they withdrew their request to have Megan and her parents, Richard and Maureen Kanka, identified by assumed names during the trial because of the extensive pretrial publicity, according to the Star-Ledger.

Timmendequas also argued he should have been allowed after his conviction to go for neurological testing. Timmedequas contends he is is entitled to a reversal of his life sentence or at least a new trial.

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Monday, June 13, 2011

Texas Executes Man for 1988 Killing

The 20th Execution of 2011

On June 1, 2011 Gaylord Bradford was executed by the state of Texas for shooting and killing a security guard during a 1988 robbery at a Dallas grocery store.

Bradford was the fourth person executed in Texas this year and second put to death using a new drug, pentobarbital, as part of the execution protocol. According to Reuters, Bradford died at 6:25 p.m. local time, nine minutes after the drug was administered, reported a spokesman for the Texas Department of Criminal Justice.

On December 28, 1988, Bradford told his girlfriend he was going to make some money, showing her a gun before he left her apartment with two other people, according to a report by the Texas attorney general's office. Later that night, he went to a grocery store and shot store security guard Brian Williams in the back. Bradford then took the guard's gun and shot him repeatedly while he was on the ground, according to the Reuters. The robbery netted $7.

Before his death, Bradford said he was at peace and that he had no worries. "Victim's family, may you be at peace also," he said. Bradford's last meal was chicken with jalapenos, peanut butter cake, butter rolls, two steak and cheese omelets, hash browns and ketchup, and a root beer soda.

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CA Struggles to Comply with SCOTUS Prison Crowding Order

California Governor Jerry Brown plans to move more than 30,000 inmates form state prisons to local jails in response to an order from the U.S. Supreme Court to slash the prison population by 33,000 inmates over the next two years.

According to KSBY-TV, the state's 33 prisons house more than 143,000 inmates in a space designed for fewer than 80,000. Local jails in San Luis Obispo and Santa Barbara County are also overcrowded. The Governor's proposal to move prisoners must have a provision that allocates sufficient funding to operate local jails with increased population. The funding is currently being held up in the legislature by Republicans who are opposing the Governor's plan to extend a series of taxes.

"Based on the law they passed, "AB 109," that law in order for it to go into affect there has to be funding and right now there is none," Santa Barbara County Sheriff's Department spokesperson Drew Sugars told KSBY-TV..

Sugars told KSBY-TV the Santa Barbara County Jail is full, "we've had a lack of space now for two decades so to have an influx of inmates coming from the state prison system is simply impossible at this point without help from the state government."

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Sunday, June 12, 2011

Mississippi Reducing Prison Population

Corrections Commissioner Advocates More Spending on Education

Since 2008, Mississippi has trimmed its corrections budget by about 5%, to $332 million, according to Time. Reducing the prison population hasn't caused the state's violent crime rate to rise. In fact, the rate is falling toward 1970s levels, and the state's recidivism rate has decreased to 30% in the last four years — well below the national average.

The state is testing a global-positioning device that costs about $13 a day per convict to keep tabs on an individual — far less than the $41.74 cost to house and feed a prisoner. "We're still monitoring you, which is probably better than in some of my facilities," Chris Epps, commissioner of the Mississippi Department of Corrections told Time. Elderly and terminally ill inmates are being released to their families, or hospices, saving nearly $5 million.

Epps expects the number of people placed on house arrest to increase — as soon as Mississippi's wireless commission, which he chairs, expands Internet access to rural areas. In the coming months, he will push legislation to expand inmates' eligibility for parole — potentially lowering the prison population by 19%, to 17,000, within two years. Projected savings: $52 million. "We can't spend enough on education," he told Time, "and that's a direct correlation to the number of people coming to me."

To read more:,8599,2077089,00.html#ixzz1P4Gv0cRF

Saturday, June 11, 2011

The Cautionary Instruction: Prison and Mental Illness--An American Tragedy

The Pittsburgh Post-Gazette/Ipso Facto
June 10, 2011

Earlier this year, a 20-year-old Utah man starved himself to death after spending four months in the Salt Lake County Jail. The young man was diagnosed with schizophrenia and bipolar disorder. The delusions caused by his illness could be directly linked to his death.

He came to jail weighing approximately 180 pounds. When he died on February 27 he weighed just 77 pounds. His autopsy confirmed he had no prescribed psychiatric drugs in his system.

Why was this young man in prison and not in a psychiatric hospital? The reason is clear and troubling.

Seriously mentally ill people are 3.2 times more likely to be incarcerated than hospitalized. A survey conducted by the Treatment Advocacy Center and the National Sheriffs’ Association compared the number of seriously mentally ill people in prisons to those in hospitals on a state-by-state basis.

In Pennsylvania, the ratio of seriously mentally ill in prison as compared those with serious mental illness in hospitals is 2:1. In West Virginia, the ratio is 2.1:1. In Ohio, the ratio is 4:1-- the tenth highest in the nation.

The survey also found that about 16 percent of inmates in jails and prisons have a serious mental illness. In 1983 the seriously mentally ill accounted for only 6.4 percent of all incarcerated offenders. Today, about four out of every ten individuals with serious mental illness will spend some time in jail or prison.

Unfortunately, if states wanted to even out the ratios listed above it would be difficult. In 1955 there was one psychiatric hospital bed for every 300 Americans. Today, there is one bed for every 3,000 Americans. Those numbers are reminiscent of the 19th century.

Twenty-four percent of local jail inmates have serious psychotic disorders, such as delusions or hallucinations. Fifteen percent of state inmates and 10 percent of federal prisoners have serious psychotic disorders.

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

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

The Law, The Courts, The Theatre of the Absurd

A new hearing has been set for August 5 in front of the same judge that previously ruled an alleged 11-year-old Pennsylvania killer should be tried as an adult, reported the Youngstown Vindicator.

Jordan Brown is charged with a double homicide in the shotgun killing of 26-year-old Kenzie Marie Houk and her unborn child as she slept in the New Galilee farmhouse where she lived with Jordan, his father, and her two daughters. He was 11 at the time and is now 13.

Lawrence County Common Pleas Court Judge Dominick Motto had ruled that Jordan Brown’s failure to admit guilt after two psychologists testified that rehabilitation would make him unlikely candidate for rehabilitation. The Superior Court set aside Judge Motto’s decision in March finding that his reasoning violated Brown’s constitutional right against self- incrimination.

If tried as a juvenile, Brown could only be incarcerated until age 21, while he could face life in prison if tried as an adult. He would be the youngest person at the time of the offense in American history to be sentence to life in prison.

Although the judge in Brown’s case kept him in adult court a New Jersey judge has done the opposite but has been overturned. In a strange twist a Middlesex County, New Jersey judge has been reversed by the state’s appeals court for refusing to grant a motion by prosecutors to try a juvenile as an adult, according to the Star-Ledger.

Last month, Judge Roger Daley, denied a motion by the Middlesex County Prosecutor's Office to try two Perth Amboy juveniles as adults for the murder of a man in Woodbridge.

The appeals court concluded under state law, if a juvenile is more than 16 years old and is charged with committing any of the more serious crimes like murder or attempted murder, "waiver to the (adult court) should follow as a matter of course," if the prosecutor makes the motion and shows there is a likelihood the juvenile committed the crime.

"We are constrained to conclude... that the trial court permitted its personal views to affect its legal analysis," the appellate judges said.

David Oakley, an attorney representing one of the juveniles, told the Star-Ledger "its a shame our law insists on adjudicating juveniles as adults."

"My client's life takes on a new course now," Oakley said.

Judge Daley has been overruled once again, more recently on an assault case involving juveniles. Judge Daley obviously does not agree with the statute relating to charging juveniles as adults. Although he is obligated to enforce the New Jersey statute—he has also taken a courageous position in opposition to a mechanical, unforgiving statute.

If charging Brown with murder as an adult, facing the possibility of life in prison, is not absurd enough, or if New Jersey’s unyielding drive to try juveniles as adults does not cause one to pause, take a look at Missouri. A five-year-old girl could face murder charges in the recent drowning of a toddler in a bathtub, according to

Jermaine Johnson, Jr., 18 months old, was in a Kansas City house on June 3rd with other children, but the 16-year-old girl who was supposed to be looking after them fell asleep, a police spokesman said.

Investigators learned through interviews that the 5-year-old girl in the house got irritated at the boy. "She said she got angry because he would not stop crying and she held him under the water until he stopped crying," according to police.

Kansas City police are waiting for a medical examiner's report on how Johnson died, but have investigated the death as a homicide and murder charges may follow.

Some of the decisions that relate to juveniles, actually children, have distorted what is fair and justice. The courts and legislatures have devolved into the theatre of the absurd--when a judge has no discretion and must act as a rubber stamp for the prosecution; or a five-year-old could face a murder charge; or an 11-year-old could face life in prison.

Friday, June 10, 2011

The Cost of America's War on Drugs

The U.S. government has expanded the use of contractors in the fight to eradicate illegal drug importation. The government has paid more than $3 billion to train local prosecutors and police, help eradicate fields of coca, operate surveillance equipment and otherwise battle the widening drug trade in Latin America over the last five years, according to the Los Angeles Times.

The majority of U.S. counter-narcotics contracts are awarded to five companies: DynCorp, Lockheed Martin, Raytheon, ITT and ARINC, according to the report for the contracting oversight subcommittee, part of the Senate Homeland Security and Governmental Affairs Committee.

Counter-narcotics contract spending increased 32% over the five-year period, from $482 million in 2005 to $635 million in 2009. DynCorp, based in Falls Church, Va., received the largest total, $1.1 billion, reported the Times.

The Department of Defense has spent $6.1 billion since 2005 to help detect planes and boats heading to the U.S. with drug payloads, as well as on surveillance and other intelligence operations.

Can, or should, the government continue these enormous expenditures in an effort that continues to come up short time and time again? Policymakers should begin to look at alternatives to the "war" on drugs.

To read more:,0,1742011.story

Thursday, June 9, 2011

Ohio Governor Commutes Death Sentence on Eve of Execution

Ohio Governor John Kasich commuted double murderer Shawn Hawkins' death sentence to life in prison. Governor Kasich said that Hawkins role in a 1989 double murder in Cincinnati is "frustratingly unclear," according to the Columbus Dispatch.

Because the doubts are so serious, Kasich said, "Ohio shouldn't deliver the ultimate penalty in this case." On the other hand, he said, Hawkins played a "significant, material role in this heinous crime" and should "spend the rest of his life in prison and have no chance of ever getting out."

According to the Disptach, Hawkins was scheduled to be executed this week at the Southern Ohio Correctional Facility near Lucasville for killing Terrence Richard, 18, and Diamond Marteen, 19, in a drug deal gone bad. The two men were found shot to death in a car in a Cincinnati suburb, on June 12, 1989.

It was the first time since taking office in January that Governor Kasich used his gubernatorial clemency power to stop an execution; he previously allowed four killers to be put to death, reported the Disptach.

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Wednesday, June 8, 2011

20-Year-Old Utah Man Starves to Death in Prison

Inmate was Seriously Mentally Ill

The Salt Lake City Tribune recently reported that a young prisoner apparently suffering from serious mental illness died of starvation and dehydration after spending four months in the Salt Lake County Jail. A significant period of his incarceration was spent in restrictive housing otherwise known as solitary confinement. Carlos Umana, 20, weighed approximately 180 pounds when he entered the jail in October 2010; when he died in February, he weighed just 77 pounds. Tests showed that none of his prescribed psychiatric drugs were in his system at the time of his death, reported Solitary Watch.

Tammy Martinez, Umana's mother, was allowed to see nit long before his death. From the other side of the protective glass, Martinez said she could tell Umana was in trouble. He was thin, his eyes were sunken and he had trouble holding up his head. He said something about the water in the jail being too hot, reported Solitary Watch.

“He says, ‘Mom, I need to get out of here. I won’t make it in here,’ ” Martinez recalled.

A jail employee called Martinez the next day to ask how the visit went. Martinez told her Umana was not well. Martinez said she assumed the jail would take care of the problem. Meanwhile, Umana’s court case was delayed while the judge and the attorneys waited for results from a mental health professional about whether Umana was competent to stand trial. The results of that review have not been made public, reported Solitary Watch.

Umana dies with in days. The medical examiner ruled the manner of death was natural causes due to starvation and dehydration, but the medical examiner listed Umana’s mental illness as a likely contributing factor.

The Salt Lake County Sheriff told the Tribune that the jail would be revising its policies on when to commence forcefully feeding or medicating inmates. No legal action had been taken.

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Tuesday, June 7, 2011

California Prison Crisis and Court Intervention

William Burrell writing on The Crime Report recently commented on the California prison overcrowding problem and the U.S. Supreme Courts intervention.

The U.S. Supreme Court case, Brown v. Plata, was about California’s prisons, which are---and have been for years—massively overcrowded. In its ruling on May 23, 2011, the Court upheld the findings of a three-judge appellate panel which ruled that the conditions in California’s prisons violated the Eighth Amendment prohibition on cruel and unusual punishment. The Court ordered the state to reduce its prison population by 30,000 inmates, to a population of approximately 110,000. Even with that drastic a reduction, the prison system will still be at 137.5 percent of rated capacity.

The Court did not prescribe how the population reductions were to be accomplished and gave the state two years to reach the reduced population level.

The original case in this ruling was filed in 1990, a second case in 2001. Multiple efforts by the federal courts over more than two decades had failed to motivate the state sufficiently to resolve the problem. In fact, during that period, California’s legislature and governors have passed numerous additional laws, such as the notorious “three strikes law” which have further exacerbated the prison crowding problem.

Even the state’s own actions suggest the depth of the crisis. In 2006, then Gov. Arnold Schwarzenegger declared a state of emergency in the state’s prisons, due to overcrowding. Yet the population remained unconstitutionally high. As Adam Liptak wrote in the New York Times, “The majority seemed persuaded that the passage of time required the courts to act”.

The case illustrate how democracies with independent judiciaries work to ensure that the constitutional mandates are met.

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Monday, June 6, 2011

Prison Overcrowding and Mental Illness

The prison overcrowding problem has generated a lot of attention. The U.S. Supreme Court has recently ordered California to reduced its prison population by 33,000 inmates. The reduction would still leave California at 137 percent of capacity.

As the economy slowly recovers, many states strapped for cash have looked at their enormous corrections budgets as a place to save money. Suddenly, holding parole violators accountable, or imprisoning "low risk" drug offenders no longer seems to be a priority in fighting crime.

Often over looked in the the prison glut is the failure, and underfunding, of community mental health services. Prisons have become de facto psychiatric hospitals.

According to the National Alliance on Mental Illness, 24 percent of inmates in the United States have serious mental illness. Seventy percent of youth in the juvenile justice system are experiencing some mental health disorder. Fifty percent of previously incarcerated offenders with serve mental illness are returned to prison, often for violations that can be related to conduct brought on by their illness.

While funding for community mental health services has been cut over the last 20 years, corrections' budgets have increased by 350 percent from $10 billion to $45 billion. Funding mental health services and reducing the number of people in prison with severe mental illness will not end the prison crowding problem, but it will have a significant impact and is the humane thing to do.

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Sunday, June 5, 2011

America safer today than it has been for past 40 years

Youngstown Vindicator
June 5, 2011

Violent crime has fallen to its lowest level in 40 years. America is a safer place. According to The New York Times, “the odds of being murdered or robbed [in the United States] are now less than half of what they were in the early 1990s.”

The FBI’s Preliminary Annual Uniform Crime Report for 2010 is based on data collected from more than 13,000 law-enforcement agencies nationwide. The report found a significant 5.5 percent decline in violent crime.

The continued decline in crime seems to fly in the face of accepted theories of criminality. Many legal observers suggested that the recession and high unemployment would usher in higher crime rates — that did not happen. Some suggested that lowering the incarceration rate (in 2010 the number of people in prison fell for the first time in 38 years) would impact crime — it did not. Some said that police lay-offs and law enforcement cut backs would increase crime rates — it has not.

There is one constant, the fear of crime and the lengths that citizens will go to avoid being victimized. According to Gallup, nearly 4 in 10 Americans say they are afraid to walk alone at night within a mile of their home.

The number of Americans afraid to venture out alone at night is lower today than when crime rates were soaring in the 1990s. However, fear has not decreased as sharply as the drop in violent crime. In fact, while violent crime is at a record low, the percentage afraid to walk alone at night has crept up; suggesting the fear of crime is not always dictated by reality.

Ironically, the unrealistic fear of crime has had an enormous impact on crime. Experts may not say it and the average American may not admit it, but decreasing crime rates have come at a precious cost — the sacrifice of personal liberty. John Q. Wilson, a renowned criminologist at Boston College recently wrote in The Wall Street Journal, “Another possible reason for reduced crime is that potential victims may have become better at protecting themselves by equipping their homes with burglar alarms, putting extra locks on their cars and moving into safer buildings or even safer neighborhoods.”

Homes and businesses across the country have taken measures to become more secure. What was once considered extreme is now common place — security systems, spot lights, motion detectors, metal gates over front doors, video surveillance, car alarms, mace, pepper spray, stun guns, hand guns, personal self-defense training, even architectural design with crime prevention in mind.

Driving around rather than through some neighborhoods, avoiding a dimly lit parking lot or spacious parking garage may be accepted as prudent. But it has nonetheless altered the freedom to live and travel as one chooses. A stroll through the park, window shopping or a trip to the ball park involve not only the thought of being entertained but also being safe. Subconsciously most Americans use a mental “safety” check list everyday to keep themselves out of harm’s way.

Most citizens are not even aware that some fundamental constitutional rights have begun to erode in the name of crime fighting. The Supreme Court of the United States has chiseled away at the Sixth Amendment guarantee of “effective” counsel. The High Court recently ruled that a suspect’s request for an attorney does not go on indefinitely and that a police officer does not need to use specific language to inform a suspect of his Miranda rights. In 2009, the court restricted the use of the exclusionary rule as a remedy for state conduct violating the Fourth Amendment. Last month, it narrowed the Fourth Amendment’s protection against unreasonable searches and seizures — making it easier for police to barge into a home without a warrant.

Americans have slowly reinvented their way of life to protect themselves from the threat of violence and that evolution may be driving down crime rates in the process. More research is warranted, but it appears that the key to falling crime rates is not so much a matter of what we do, but rather what we don’t do.

Saturday, June 4, 2011

The Cautionary Instruction: Residenct Restrictions and Sex Offenders

Pittsburgh Post-Gazette/Ipso Facto
June 2, 2011

Last week, the Pennsylvania Supreme Court struck down Allegheny County’s sex offender residency restriction ordinance.

Chief Justice Ronald Castille wrote, “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.”

Chief Justice Castille goes on to write, “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.”

Allegheny County’s ordinance, and many like it, are crafted to protect children from the stranger-predator who trolls the places that children frequent looking for new victims. The U.S. Department of Justice (DOJ) reports that strangers rarely sexually offend against children. In 2000, strangers were reported as offenders in three percent of sexual assaults of victims who were under age six, five percent of the sexual assaults of youth ages six through 11, and 10 percent of assaults of juveniles ages 12 to 17.

According to DOJ, the vast majority of sex offenses against minors are perpetrated by someone the child knows, such as an immediate family member, relative, friend or babysitter.

Some research has created doubts about the effectiveness of residency restrictions. Colorado researchers found that sex offenders who re-offended while under supervision did not live closer to schools or child-care centers than those who did not re-offend.

Researchers also found that placing restrictions on the location of supervised sex offender’s residences did not deter sex offenders from re-offending and was not effective in controlling recidivism. Most importantly, the research found that sex offenders who had a positive support system in their lives had significantly lower recidivism rates and fewer supervision violations than offenders who did not have community support.

According to a Minnesota Department of Corrections report, residency restrictions limit housing options for sex offenders and force them to move to rural areas where they are likely to become isolated with few employment opportunities, a lack of social support, and limited availability of social services and mental health treatment. Such restrictions can lead to homelessness and transience, which ultimately interferes with effective community tracking, monitoring and supervision.

Residency restrictions have the potential to do more harm than good.

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Falling Crime Rates: Plausible Explanations?

Professor James Alan Fox recently wrote in the Boston Globe, that there are a number of "plausible explanations to account for the downturn in lawlessness that this nation has enjoyed since the early 1990s." Fox suggests the same factors that have been repeated by experts over the last fifteen years:

•the calmer aftermath of the late-1980s crack epidemic that had caused city crime levels to spike until the drug market shifted;
•improved police strategies that rely heavily on innovative technology and sophisticated crime analysis tools;
•expanded use of incarceration along with longer sentences that have kept more criminals off the streets; and
•the graying of America whereby the fastest growing segment of the population are the aging "baby-boomers" who are now over 50 years old and hardly babies anymore.

Fox also goes to great lengths to debunk a theory that has been around for awhile raised by Steven Levitt--the abortion theory of lower crime rates.

Fox does concede that he is "baffled" by the short-term plunge in crime from the first half of 2009 to the first half of 2010, especially the 6.2% drop in violent crime that included a 7.1% dip in murder. Fox writes, "there is nothing even close to definitive that can account for such a large reduction over such a limited time period (other than the natural fluctuations inherent of short-term trends)."

Tomorrow, I will post my theory behind declining crime rates when I post my Sunday column in the Youngstown Vindicator.

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Friday, June 3, 2011

Feds Spend $10 million to Send a Lifer to Prison . . . for Life

Vincent Basciano was convicted of murder and sentenced to life in prison by a New York City jury. The federal government had sought the death penalty for Basciano’s involvement in mob killings in the New York area.

More than a year ago, the federal judge presiding over the case said it would be expensive and futile for the government to seek the death penalty for Basciano if he were found guilty, reported the New York Times. Whatever happened in the trial, he would never leave prison alive. Basciano was already serving life without parole “under extremely restrictive conditions in one of the nation’s most secure penal institutions.”

However, the decision to seek the death penalty had already been made by the Bush Administration and the federal government was not turning back. Just finding a jury pool, not selecting a jury, but just finding a pool from which a jury would be selected cost $44,000 according to the Times. Each potential juror was paid the ordinary juror fee of $40 for a day. There were 1,100 potential jurors.

Taxpayers flipped a tab of more than $10 million to send away a killer for life who was already serving life. According to the Times, the final bill for the defense has not been submitted, but as of April, they had reached $4.3 million.

The jury returned a sentence of life over death after about only two and one-half hours of deliberation.

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Thursday, June 2, 2011

Ohio to Execute Inmate with Cancer

Ohio has an execution scheduled for a killer stricken with cancer. The state will make it easier for condemned prisoner Kenneth Smith, who lost his larynx to cancer, to make a final statement immediately before his execution by lethal injection.

According to the Associated Press,the state will raise the gurney where Smith will lie and let him keep one arm free to make it easier for him to use his artificial voice box. It would be the first time an Ohio inmate has not been completely strapped down since the state resumed the death penalty in 1999.

Prison officials are using the change as part of their argument that a federal judge should dismiss a lawsuit challenging Ohio's execution procedures.

The 45-year-old Smith is scheduled to die July 19 for killing Lewis Ray and Ruth Ray in their home in 1995.

Wednesday, June 1, 2011

Pennsylvania Brings Inmates Home

The Pennsylvania Department of Corrections announced that 1,111 inmates housed in Michigan have returned to Pennsylvania. Last year, Pennsylvania sent about 2,000 prisoners to Michigan and Virginia due to prison overcrowding.

It cost $62 per day per inmate to house the prisoners in Michigan. That’s lower than the Pennsylvania average of $90 per day, but the inmates sent to Michigan were Pennsylvania’s least costly: healthy, well-behaved and requiring lower security, according to the Harrisburg Patriot-News.

The Pennsylvania prison population has leveled off, making it possible to return the inmates from Michigan. However, the inmates in Virginia will stay until at least the end of the year according to Secretary of Corrections John Wetzel.

According to the Patriot-News, the U.S. prison population declined for the first time in nearly 40 years, yet Pennsylvania led the nation in adding inmates. Since 1980, state spending on prisons has increased six times faster than spending on education. One Pennsylvanian in 248 is behind bars.

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