A decade after the September 11, 2001, attacks on the World Trade Center and the Pentagon, federal and state governments are spending about $75 billion a year on domestic security, setting up sophisticated radio networks, upgrading emergency medical response equipment, installing surveillance cameras and bombproof walls, and outfitting airport screeners to detect an ever-evolving list of mobile explosives.
The Los Angeles Times asks, “How effective has that 10-year spending spree been?”
"The number of people worldwide who are killed by Muslim-type terrorists, Al Qaeda wannabes, is maybe a few hundred outside of war zones. It's basically the same number of people who die drowning in the bathtub each year," John Mueller, an Ohio State University professor who has written extensively about the balance between threat and expenditures in fighting terrorism, told the Times.
"So if your chance of being killed by a terrorist in the United States is 1 in 3.5 million, the question is, how much do you want to spend to get that down to 1 in 4.5 million?" he said.
The New York Times listed a series of techniques that researchers and law enforcement officials say can increase the accuracy of eyewitness identification. Those techniques are listed below:
BLIND ADMINISTRATION An investigator who shows the witness a photo lineup can influence the witness’s response, even unintentionally. Departments can remedy this by having someone not familiar with the case run the lineup. In a variation, the investigator cannot see which images the witness is looking at.
SEQUENTIAL LINEUP Show images one by one instead of all at once to avoid “relative judgment” — comparing the members of the lineup to one another for the best match, rather than selecting the image that most closely matches the witness’s memory.
GOOD FILLERS The other people in the lineup should resemble the witness’s description of the person who committed the crime so that the suspect does not stand out.
LOW PRESSURE Witnesses should be told that the suspect may or may not be in the lineup so they will not feel compelled to pick an image. Investigators should not congratulate witnesses for selecting a match or press them to make an identification.
WRITING IT DOWN Witnesses are often somewhat uncertain of their choice at first and become more certain by trial. Recording the witness’s level of certainty at the time of the identification helps prevent overselling the identification.
California has about 295 inmates serving life without parole sentences for offenses committed as a juvenile. For the second consecutive year the California legislature refused to pass a bill that could provide some relief to those one-time youthful offenders.
The bill would have given inmates who committed a crime as a minor and were sentenced to life without the possibility of parole the hope for eventual release. Under Senate Bill 9, an offender who has been in prison for at least 15 years, has worked toward rehabilitation and can prove they are remorseful could ask the court to reduce their sentence. If the court agrees, the inmate would receive a new sentence of 25-years to life in prison, and after serving at least 25 years, could appeal to the state's parole board for release, reported the San Francisco Chronicle.
There is no guarantee the parole board will let them out. Parole is not automatic. Prisoners are released at the discretion of the parole board. Juvenile life without parole came to California as a result of a 1990 ballot measure approved by voters. Juvenile life without parole is on the books in 38 states.
Last year, Illinois Governor Pat Quinn’s canceled an early prison release program. The result has been a prison population dangerously over capacity.
According to the Quad-City Times , an August 11 population report shows the prison system with nearly 49,000 inmates, which is about 147 percent over its rated capacity of 33,373 inmates and about 4,000 inmates more than were in the system before the early release program was shut down.
Pushing more and more inmates into fewer and fewer cell can have serious safety and legal implications for Illinois. In recent months, officials changed the way they calculate capacity.
Instead of using an industry standard based on the number of cells, the state is now measuring capacity based on how many beds can fit in a facility. The new capacity for Illinois’ prisons is listed at 51,000 inmates.
The department of corrections abandoned efforts to gain national accreditation after the inmate population began to grow. As part of the American Correctional Association accreditation process, prisons must meet certain specifications for square footage per inmate — a standard that may not be possible for Illinois, given the additional prisoners, reported the Times.
A California Lawyer told the Times, recalculating capacity based on bed space is “very, very irresponsible” because it could lead to numerous problems.
Crowding typically results in more violence behind bars. It also likely means fewer educational opportunities, which already had been reduced because of Illinois’ on-going budget woes. Crowding also has a impact on inmates with mental illness.
According to the Times, the increase in prisoners also has raised concerns about flat or reduced staffing levels of prison guards.
Last week, the Allentown Morning Call published an interesting article about the myth of indeterminate sentencing in Pennsylvania. Indeterminate sentencing provides that every 'state' sentence have a minimum term and a maximum term, i.e. two years to four years.
Many in the criminal justice system have perpetuated the myth that most offenders serve 85 percent of their maximum sentence before parole, i.e. three years and four months on a four years sentence. The myth has impacted sentencing, plea decisions and has beguiled crime victims and criminals alike. The article below in its entirety is an interesting read--and its implications go far beyond the Lehigh Valley.
The 'baloney' you'll hear in court Violent offenders in Lehigh Valley and beyond don't serve 85% of maximum sentences.
The Morning Call -Riley Yates
August 21, 2011
From the bench of the Northampton County courtroom, a judge sentencing a 27-year-old man for a harrowing home invasion in Bethlehem cited a statistic sure to ease the mind of anyone worried about violent criminals returning to the streets.
Judge Edward Smith told Luis Nestor Martinez he'll probably be forced to serve at least 85 percent of his up-to-50-year sentence — that's 421/2 years — for tying a couple in their basement and ransacking their house on Father's Day 2010.
There's one problem, however.
The figure Smith highlighted last month is a myth, without basis in state parole policy or practice.
In fact, according to a 2007 report by the Board of Probation and Parole, nearly half the violent offenders in Pennsylvania's prison system are released at their minimum sentences, which for Martinez — who is also serving time for a separate Lehigh County case — would be 261/2 years.
Even those convicted of the most serious crimes tend to be paroled at about the same point in their sentences as other convicts, if not slightly sooner, according to 2010 data provided by the board to The Morning Call. An inmate sentenced to five to 10 years for a crime like aggravated assault was out in six years on average, not 81/2 years as many judges and lawyers believe.
But the false number — sometimes given as 85 percent of the maximum sentence, sometimes as 80 percent — is one you're sure to hear if you sit in courtrooms in Northampton, Lehigh and other counties. It is often raised by defense attorneys, and occasionally crops up in newspapers — among them The Morning Call.
"It's intellectual laziness on people's part," said Bucks County District Attorney David Heckler, a former president judge who labels it "baloney" that someone on the bench would cite a number for which he's never seen statistical backing.
"And you can quote me on that," Heckler said. "They used to be my colleagues, but that's wrong."
Call it an urban legend, the courthouse's version of claims that Walt Disney was cryogenically frozen (he was cremated), or that downing Pop Rocks and cola will cause your stomach to explode (it won't).
The claim "has been persistent for years," said Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, which advises the state on sentencing policy. "It's pretty embedded. … It sort of takes on a life of its own."
Northampton County Court Administrator James Onembo acknowledged there is no statistical backing for claims that violent offenders usually serve 80 percent or 85 percent of their maximum sentences.
Comments by judges about future parole decisions are "speculation" based on factors like defendants' prior records, their crimes and their treatment needs, Onembo said. It is ultimately the parole board that determines how much time offenders will serve beyond their minimum sentences, he said.
"A member of the court may be giving his or her opinion," Onembo said, but it is only an opinion.
Smith, a respected judge in his 10th year on the bench, is just one of many who have used the mistaken stat. He declined to be interviewed for this story.
The bad information can gum up plea bargains, with defendants unwilling to take a deal they worry will be harsher than it is in reality. It also can lead victims to expect that their assailants will be locked away longer than is actually likely.
Pennsylvania Victim Advocate Carol Lavery said her office regularly gets calls from across the state from victims who were told by prosecutors or the court that their perpetrators would serve 80 percent or 85 percent of their sentences. Instead, the victims have learned, the defendants are up for a parole hearing after serving their minimum sentences.
"They are very, very unhappy people who feel that they have maybe agreed to a plea agreement based on misinformation," Lavery said, adding: "We often call that re-victimization, the concept that the system failed them."
The parole board, which bases its calculations on an offender's minimum sentence, says the myth has no backing.
For the class of crimes that include third-degree murder, manslaughter, robbery, aggravated assault, burglary, and arson, the average inmate served 119 percent of his minimum sentence last year, or not more than 60 percent of his maximum.
The average sex offender also didn't reach 85 percent of his sentence, though he came closer. Last year, he served 148 percent of his minimum, or not more than 74 percent of his maximum.
By comparison, an inmate for a class of offenses such as forgery, simple assault, drunken driving and fraud served an average of 123 percent of his minimum — higher than for the class of more serious crimes, though less than for sex offenses.
Those imprisoned for drugs usually got out earlier, at 112 percent of their minimums last year.
Bergstrom and the Board of Probation and Parole trace the mistaken violent-crime figure to the 1990s, when the federal government encouraged states to enact "truth-in-sentencing" laws that more strictly regulated when convicts got out.
At the time, many states were allowing prisoners to significantly reduce their jail time through "good-time credits" for working, taking classes or remaining infraction-free. The federal effort sought to goad states into imprisoning violent offenders for at least 85 percent of their terms, and tied that to federal grants.
But Pennsylvania's sentencing structure, which has fixed minimums and maximums, is different from those that issue a specific sentence. In Pennsylvania, inmates must serve their minimum sentences before becoming eligible for release, with the exception of some nonviolent offenses. That structure provided truth in sentencing and satisfied federal officials, Bergstrom and the parole board said.
When deciding when to release convicts, the parole board considers their social and criminal history and the input of prosecutors, judges and jailers. Inmates need to have reduced their risk of offending again, and gotten the counseling and education they need to stay out of trouble.
The treatment requirements help explain why prisoners for less serious crimes tend to serve a higher percentage of their maximum sentences, said Leo Dunn, a parole board spokesman.
Serious offenders typically have longer sentences, giving them the opportunity to complete the classes they need, Dunn said. Those with short sentences sometimes haven't finished their programs before their parole hearings come up, causing delays.
That reality flies in the face of the mythical violent crime stat that many judges and lawyers cite.
In April, Judge Craig Dally sentenced Michael J. Beaman to six to 14 years for a Forks Township bank robbery, then helpfully calculated that Beaman could spend 11.2 years behind bars.
In explaining his decision, Dally said it is a "matter of fact" that defendants such as Beaman "do serve approximately 80 percent of their maximum sentence."
"You are going away for a long time," Dally told Beaman.
Dally, a former state lawmaker in his second year as judge, did not respond to a request for comment.
Even prominent attorneys get the stats wrong.
Easton lawyer Philip Lauer has argued a case before the U.S. Supreme Court and he's also one of the few lawyers in the area to win an acquittal for a defendant charged with murder and facing the death penalty. In appeals, he has used the mistaken 85 percent statistic to try to overturn sentences his clients received, arguing those sentences are harsher than intended.
"Anecdotally, it still appears that particularly in any violent offense, people are doing very close to their maximum sentence," Lauer said in an interview.
When told of the contradictory parole statistics, Lauer said, "That really surprises me."
Northampton County District Attorney John Morganelli believes that those convicted of violent crimes used to be jailed longer than they are today. But he admits that's based on his perception, and not hard data.
"You raise the question, 'Where do you get this, out of the air?' " Morganelli said. "And the answer is, 'Sort of.' "
The Pittsburgh Post-Gazette/Ipso Facto
August 26, 2011
District Attorney Cyrus Vance filed a 25-page memorandum in support of his motion to dismiss the sexual assault charges against French politician Dominique Strauss-Kahn. Vance’s pleading alleged the victim, “has not been truthful on matters great and small” and has the ability to present “fiction as fact with complete conviction.” Those are strong words. The ramifications for this victim are obvious; however, the ripple effect of Vance’s decision may have consequences for sexual assault victims across the country and around the world.
The Strauss-Kahn investigation "certainly makes it a more challenging environment, both for victims and on the prosecution side," said Scott Berkowitz, president of RAINN, the Rape, Abuse and Incest National Network.
According to Department of Justice figures compiled by RAINN, six out of 10 sexual assaults are never reported. "Of the 40 percent that are reported, roughly half will never lead to an arrest -- and of the cases remaining, many of those won't lead to prosecution," Berkowitz said. "So when you boil it down, 15 out of 16 attackers will never spend a day in prison," he added.
Soon after Strauss-Kahn’s arrest the victim’s credibility came into question. Well-heeled investigators retained by Strauss-Kahn’s defense team leaked damaging information to the media and apparently shared it with prosecutors. Victim advocacy groups are alarmed. Vigorous campaigns to undermine the credibility of victims may make sexual assault victims more hesitant to come forward out of fear that they will receive the same treatment.
The idea that only women with a perfect past and a tidy lifestyle will be able to escape the scrutiny that comes with reporting a sexual assault causes a chilling effect that will not only prevent justice from being served, but will keep women from receiving the help and support they need and deserve.
If the victim fabricated her story, it would be unfortunate because "it would perpetuate the stereotype that victims lie about their assaults," said Rita Garza of victim's services agency Safe Horizon.
"The reality is that very few people lie about sexual assault," Garza said. "It is a low one to three percent."
Women feel vulnerable and alone after sex crimes and need to feel confident someone will believe their stories. "Even if she has had credibility problems outside of that day, a strong prosecutor would have said we are ready to stand up for her because it was a crime," said Diane Rosenfeld, a professor at Harvard Law School.
Texas Governor Rick Perry, the newest presidential contender, has presided over 234 executions in his nearly 11 years as governor. He has overseen more executions than any governor in modern history. In fact, Perry has presided over more executions than Oklahoma and Virginia combined, the states with the second and third highest execution totals since the death penalty was reinstated in 1976.
Perry appears to relish the task. In his book “Fed Up!” Perry wrote, “If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas.”
He vetoed a bill that would have spared the mentally retarded, and sharply criticized a Supreme Court ruling that juveniles were not eligible for the death penalty. He has found during his tenure only one inmate on Texas’s crowded death row he thought should receive the lesser sentence of life in prison.
Perry’s role in the 2004 execution of Cameron Todd Wil¬lingham—and subsequent investigation of Willingham’s trial remains a hot-button issue in Texas. When experts were about to testify about faulty forensic science used to convict Willingham, Perry fired several members of the investigatory panel and replaced them with hard-liners. The matter remains under investigation in Texas.
Connecticut Governor Dannel P. Malloy announced this week that he will lay off 56 state troopers to cut costs and help balance the state budget. The Hartford Courant reported that the state has suffered through recessions, budget deficits, Wall Street losses and economic ups and downs during the 20 years since then, but troopers had always been treated as a specialized class in the state workforce and not subject to reductions.
"Laying off 56 troopers is just an unjustifiable risk to public safety,' said Andres Matthews president of the troopers’ union.
The layoffs are the result of the troopers' refusal to take a pay freeze that had been accepted by most other state employees in an attempt to save a projected $1.6 billion over two years. After months of negotiations, state employees agreed to a package that included a two-year wage freeze, along with changes to their healthcare and pension benefits. The troopers voted 657-123, to reject the wage freeze, reported the Courant.
Senator Kevin Witkos, a longtime Canton city police officer, said that the state had wasted $4 million in training expenses and salaries for the 56 troopers, who are now patrolling the state's roads. Witkos told the Courant, "state statute dictates a minimum number of state police officers, and the agency is already well below the minimum operating level of 1,248 due to retirees and a hiring freeze.”
Witkos emphasized, “These layoffs come at a dangerous time; crime in our state's cities is up, the state's buddy system is being leaned on too heavily, and our troopers are the only officers that can cross municipal lines to investigate misdemeanors and patrol state highways. Fewer troopers on the job and more work will also mean that taxpayers will be digesting the increased costs of overtime. Where are the savings?"
The U.S. Supreme Court has agreed to hear an eyewitness identification case for the first time in 34 years. The Court last heard a case reviewing the reliability of eyewitnesses in 1977.
In Mason v. Brathwaite, 432 U.S. 98 (1977) the Court established a framework for addressing claims that an eyewitness identification was made under such suggestive circumstances that due process requires its exclusion from evidence. The Court held that reliability—probable accuracy—“is the linchpin in determining the admissibility of identification testimony.”
According to Adam Liptak of the New York Times, Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.
Mistaken identifications lead to wrongful convictions. The Times reports of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.
According to the Times, many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”
The case before the Court is Perry v. New Hampshire. The issue relates to the New Hampshire Supreme Court imposing an additional condition—that state actors improperly caused an identification to be made under suggestive circumstances—before any due process inquiry can be made pursuant to Mason.
In November 2006, Sen. Stewart J. Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, sponsored a resolution passed by the Pennsylvania Senate that created an Advisory Committee on Wrongful Conviction. Senate Resolution 381 directed that the joint state government committee, which is responsible for performing research for both houses and both parties of the General Assembly, establish the advisory committee.
The Senate resolution provided that the advisory committee on wrongful conviction shall, "Study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future innocent persons will be wrongfully convicted."
The resolution further directed the committee to, "review cases in which an innocent person was wrongfully convicted and subsequently exonerated, review any other relevant materials, identify the most common causes of wrongful convictions." Finally the committee must "consider potential implementation plans, cost implications, including possible savings, and the impact on the criminal justice system for each potential solution."
Nearly five years have passed without the committee issuing a report. Greenleaf's office has said it will be released next month. Meanwhile, several other states have been leading the charge in implementing means of evaluating possible wrongful convictions.
North Carolina is leading the way in government sponsored post-conviction review of innocence claims. In 2006, North Carolina established the Innocence Inquiry Commission, a state agency that investigates and evaluates post-conviction claims of factual innocence. The commission is made up of eight members selected by the chief justice of the North Carolina Supreme Court and the chief judge of the North Carolina Court of Appeals. The members include a Superior Court judge, a prosecuting attorney, a defense attorney, a victim advocate, a member of the public and two discretionary members.
The North Carolina commission has received 850 claims, conducted three hearings and issued one exoneration order.
Until recently, innocence claims were pursued by privately funded organizations.
According to USA Today , in Texas, state leaders are awaiting a commission study on the effects of innocence-related laws on eyewitness identification, the videotaping of interrogations and post-conviction DNA testing. In Florida, a commission created to examine the causes of wrongful convictions delivered a report to the state Supreme Court calling for police to follow state-issued guidelines on photo and live suspect lineups. USA Today , citing the Innocence Project, reported that five states in addition to Pennsylvania — California, Connecticut, Illinois, New York and Wisconsin — have established commissions to study the causes of wrongful convictions and make recommendations to lawmakers, police and the courts.
The state's advisory committee on wrongful conviction consists of judges, prosecutors, defense lawyers, law enforcement officers and victims' advocates. The project is chaired by John T. Rago, a Duquesne University law professor and director of the Cyril H. Wecht Institute of Forensic Science and Law, who, according to the Pittsburgh Post-Gazette , proposed the study to Greenleaf.
The advisory committee has yet to issue its findings. Originally it was reported that a final advisory committee report would be issued in late 2008. In June of 2009, the Pittsburgh Tribune-Review reported that, "The Senate-commissioned Committee on Wrongful Convictions is due to release a report by summer's end that could recommend changes in state law."
Summer came and went in 2009 without a report. At least one of the advisory committee's four subcommittees provided some public feedback. The science subcommittee made four recommendations. First, the science subcommittee called for a regulation mandating the preservation of biological evidence, as well as the creation of a forensic advisory board and implementation guidelines for lab accreditation and training.
In July 2010, the Innocence Project posted on its website: "With the upcoming release of a final report from Pennsylvania's Advisory Committee on Wrongful Convictions, the Pennsylvania Innocence Project is hopeful that Pennsylvania will join the growing number of states that require law enforcement officials to videotape all confessions from start to finish."
Obviously, the "upcoming release" of the report has not happened. However, videotaping confessions is indeed an issue that the advisory committee is considering. While a number of law enforcement agencies across the country have adopted some form of videotaping, Pennsylvania has not mandated videotaping of confessions by law enforcement agencies.
The purpose of videotaping is to ensure that confessions are free and voluntary and that the accused is not laboring under some defect that would render her confession involuntary. The subcommittee charged with evaluating this issue has sought public comment and the committee members are apparently hung up on when the videotaping should begin. Some members suggest that the videotape should not start rolling until the accused has been provided her Miranda rights, while others believe that the videotape should roll as soon as the interview begins.
Judging by the work in other states, the advisory committee should also address the use of informants and eyewitness misidentification. 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.'"
According to the Innocence Project, eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of all wrongful convictions.
Greenleaf's office said that the report is now scheduled for release on Sept. 16 to correspond with the fall legislative session. Only time will tell, as more than four years have passed since the advisory committee on wrongful convictions was established. At the time there were 198 DNA exonerations nationwide and nine in Pennsylvania. Today, according to the Innocence Project there are 273 DNA exonerations nationwide and 11 in Pennsylvania.
Manhattan prosecutors will meet with the woman who accused Dominique Strauss-Kahn of sexual assault on the eve of a court appearance in which they are expected to announce whether they will proceed with the case, according to the New York Times.
Strauss-Kahn was the managing director of the International Monetary Fund and once a leading contender to be the next president of France.
The victim was notified by letter to attend the meeting. “My interpretation of that letter is that they’re going to announce that they’re dismissing the case entirely, or some of the charges,” said the lawyer, Kenneth P. Thompson, who is representing Nafissatou Diallo, the hotel housekeeper who accused Mr. Strauss-Kahn of trying to rape her when she went to clean his suite at the Sofitel New York in May and who would be the central witness against him at any trial, reported the Times.
A sour economy and deep budget deficits have causes many states to rethink the their bulging law and order spending. This has reversed a trend of “tough on crime” policies that lasted for decades and drove the nation’s incarceration rate to the highest — and most costly — level in the developed world, according to the New York Times.
The changes are especially surprising in the GOP states that have been for decades the bastion of "tough" prosecutors, legislator and governors. Those draconian policy makers have now take a new direction.
According to the Times, The movement has attracted the support of several prominent conservatives, including Edwin R. Meese III, the attorney general during the Reagan administration. He is part of a campaign, called “Right on Crime,” which was begun last December to lend weight to what it calls the “conservative case for reform.”
“I’d call it a careful refining of the process,” Mr. Meese said. “Most of us who are involved in this are very much in favor of high incarceration of serious habitual offenders. The whole idea is getting the right people in prison, and for those people for whom there is evidence that chances of recidivism are less, to work with those people.”
Other Republican affiliates of the group include former House Speaker Newt Gingrich; Grover Norquist, an antitax activist; Asa Hutchinson, a former director of the Drug Enforcement Administration; and William J. Bennett, a former White House “drug czar.”
The movement has seen some reversals. At least three states — Washington, Kansas and Delaware — have cut spending on re-entry programs to help close short-term budget gaps, despite criticism that the cuts could result in higher long-term costs if more parolees returned to prison.
In addition, at least three other states — Illinois, New Jersey and Wisconsin — suspended or revoked programs that allowed well-behaved inmates to earn early parole. Earlier this year, for example, New Jersey repealed such a program after two former inmates who had been released early were charged with murders.
The America Bar Association Task Force on Preservation of the Justice System Report to the House of Delegates released its report on the state of America’s court system. The findings are dire.
The report starts out with, “The courts of our country are in crisis.”
The report continues in part: The failure of state and local legislatures to provide adequate funding is effectively –at times quite literally—closing the doors of our justice system. At the same time, Congress has reduced its support for both the federal courts and other programs that directly and indirectly support our justice system at the state, county and municipal levels.
As a result, over the last few years, the courts of virtually every state have been forced
into debilitating combinations of hiring freezes, pay cuts, judicial furloughs, staff layoffs, early retirements, increased filing fees, and outright closures.
State judicial officers have attempted to cope with these cuts in various ways -- all of
which have a direct and negative effect on the pace and quality of adjudications. Over the last two years,
-- Twenty-six states have delayed filling judicial vacancies; thirty-one, judicial support
positions; and thirty-four, vacancies in clerks’ offices.
-- Thirty-one states have either frozen or reduced the salaries of judges or staff.
-- Sixteen have furloughed clerical staff, with commensurate reductions in pay; and nine
have extended those furloughs to judges as well.
-- Fourteen states have simply laid off staff entirely.
-- Some twenty-two state court systems have attempted to offset some of these budget
cuts by increasing filing fees and/or fines.
-- Last, but hardly least, fourteen state court systems have been forced to curtail the
hours and even entire days they are open.
The ABA recommends, among other things, that state and local governments “recognize their constitutional responsibilities to fund their justice systems adequately, provide that funding as a governmental priority, and develop principles that would provide for stable and predictable levels of funding of those justice systems.
Virgina executed Jerry Terrell Jackson by lethal injection at the Greensville Correctional Center south of Richmond, reported Reuters.
Jackson, on death row since 2003, entered the Williamsburg apartment of an 88-year-old woman on August 26, 2001. He told police he did not know she was home.
But she was lying in bed at the time and confronted Jackson. She told him to take what he wanted and leave, but he held a pillow against her face until she stopped screaming, raping her at the same time, reported Reuters.
After killing the woman, Jackson left the apartment through a back window with $60. He stole her car and used the money to purchase marijuana.
Her body was found by her son after she did not attend church or answer her telephone.
A fingerprint on a piece of paper inside a wallet next to the woman's bed and DNA from hair found on and around her body implicated Jackson, and a jury found him guilty of capital murder.
According to Reuters, Jackson met with family members, his spiritual advisor and attorneys. He requested a last meal but asked for details to remain private. Jackson made no final statement.
He was pronounced dead at 9:14 p.m.
Jackson was the first inmate to be put to death in Virginia this year, and the first ever in that state to be executed with a drug mixture that included pentobarbital, a sedative.
According to Reuters, there were no complications with the execution. Virginia, like other states, switched to using pentobarbital instead of sodium thiopental in its lethal injection regime after the sole U.S. supplier of sodium thiopental recently ceased production.
The Florida legislature championed the cost savings of privatizing prisons. Florida is on track to privatize 30 prisons. Recently taxpayers were informed that the state must pay about $25 million in costs to more than 4,000 displaced state corrections workers for their accumulated vacation time, sick leave and special compensatory time for working on holidays, reported the Miami Herald.
The hidden expense was never discussed in public last spring when the Legislature pushed ahead with the most ambitious privatization venture in the history of state government. According to the Herald, the prison system — already coping with a series of budget cuts — is forced to find the money.
According to the Herald, Bonnie Rogers, who oversees criminal justice spending Governor Rick Scott’s budget office, was told in an e-mail, “This amount was NOT taken into consideration by the Legislature, even though they were made aware ... This payout may just cripple the agency for next [fiscal year].”
State Senator Mike Fasano chairs a budget panel overseeing prison spending. He opposed prison privatization. He said he plans to hold hearings this fall on the issue. According to the Herald, Fasano accused top lawmakers of bowing to the political influence of a major private prison operator which is expected to bid on the regional privatization venture.
Federal executions are on hold according to National Public Radio. It is now unlikely that any federal prisoner will face the ultimate punishment, at least not before the end of President Barrack Obama's first term.
This is not a significant shift in the application of the death penalty. The federal government has carried out a total of 37 executions. There have been three federal executions in the last 40 years, the most recent was in 2003.
The Justice Department is reviewing its lethal injection protocols because of a shortage of a key drug. While that study is underway, authorities have backed away from setting execution dates.
The reason for the review is a shortage of sodium thiopental, a one of three drugs that the federal government uses as part of its execution protocol.
According to NPR, the federal prison system told a judge last month they are still working through changes to the execution protocol because of that drug shortage and the changes are not final.
Until those changes are finalized death row inmate will not get a new execution date.
Los Angeles County supervisors condemned the California legislature's cost-cutting decision to keep some state prisoners in local lockups and have parolees be supervised by county agencies, asserting that both would lead to an increase in crime, reported the Los Angeles Times.
Because of the state's continuing budget and prison overcrowding crisis, on October 1California will begin shifting some low-level nonviolent offenders from the state prison and parole system to its 58 county jails and probation departments.
"It's irresponsible for us to turn around and dump these [prisoners] into our communities with an ankle bracelet and hope they don't re-offend," Los Angeles Supervisor Michael D. Antonovich said. Without finding a way to increase prison time, Antonovich said, "I believe we'll have a spike in crime."
The Pennsylvania Supreme Court has announced that it will permit broadcasting proceedings, gavel-to-gavel broadcasting of court proceedings on the Pennsylvania Cable Network, according to The Legal Intelligencer.
The decision culminates years of discussion and debate spilling from the tenure of former Chief Justice Ralph J. Cappy, and will allow more than three million homes, or about 10 million people, in the state to view oral arguments starting next month, the high court announced in a press release.
"My colleagues and I are pleased to open our courtroom to PCN's statewide audience so they can see how our court operates and follow arguments in cases affecting every citizen of Pennsylvania," Supreme Court Chief Justice Ronald D. Castille told The Intelligencer.
The policy comes with a number of exceptions and stipulations, which are detailed in an internal operating rule attached to the per curiam order issuing the decision. For example, sealed cases will not be covered, and the justices may also limit or end coverage in order to protect the rights of parties involved. Additionally, the broadcasts, which will not be aired live, may not pick up audio of discussions among co-counsel or the justices.
In an interview with The Intelligencer, Castille said the issue of televising proceedings became a less narrow debate with the changing "composition of the court" as new justices were elected.
Although the state's judicial system has come under scrutiny lately, Castille said the prospect of "civic education" was the impetus that successfully brought the camera to the court, reported The Intelligencer.
"These are real cases that have pretty wide-ranging consequences," Castille said. "The impetus wasn't anything that happened in any state court; the impetus was a desire to educate the public about what the state courts do."
And while some cases will require PCN's viewers to be armed with "a strong cup of coffee" Castille said it was imperative the proceedings be aired gavel-to-gavel so that viewers get the "full flavor of the court."
"It's not the fake judges they have on TV," Castille said. "These are real cases. They involve real people. And some of the issues are pretty profound, even of life and death."
According to PCN President Brian Lockman, the network will utilize three robotic cameras, all from outside of the courtroom. One camera will be stationed in the back of the courtroom -- a wide angle shot on the seven justices. The other two cameras will give viewers close-ups of the lawyers arguing and the justice who responds.
"You do things a certain way for 300 years and then along comes a way to change it, so naturally you want to think about it for a while," Lockman told The Intelligencer.
As prisons have become more crowded and budgets have gotten tighter—prison officials nationwide are looking for better, more cost efficient ways of doing things. However, no prison in America, at least as far as I know, has taken the extreme measure of incorporating water fowl into prison surveillance efforts.
An overcrowded prison in northeastern Brazil has added a new layer of security against escapes: two geese, reported the Associated Press.
Sobral prison warden Wellington Picanco tells the G1 news website the geese make a lot of noise when they sense "strange movements." He says the geese roaming the prison grounds also will help alert guards to the outbreak of violence among rival gangs at the overcrowded facility. The prison was built to hold 153 inmates. It currently holds 255.
These unstable economic times have fostered a lot of bizarre law and order proposals. Fortunately, in American geese remain the hunted not the hunters.
Today marks the 75th anniversary of the last public execution carried out in the United States. Rainey Bethea was hanged on August 14, 1936 in Owensboro, Kentucky.
Bethea, a farmhand and sometime criminal, went to the gallows near the banks of the Ohio River before a crowd estimated at about 20,000 strong.
The execution drew national media coverage focused on a black man being executed by a white, female sheriff with the help of a professional hangman, according to the Associated Press.
The crime for which Bethea was tried had played as big news in Owensboro. A wealthy, white, 70-year-old widow, Elza Edwards, was raped and strangled in her bed. After less than five minutes of deliberation, a jury convicted Bethea of rape. Had Bethea been convicted of Edwards' murder — prosecutors never pursued that charge — the sentence would have been a private execution in the electric chair at the state penitentiary. Under the law at the time, the maximum penalty for a rape conviction was hanging in the county where the offense occurred.
Bethea made a final request in a note to his sister, Ora Fladger, in Nichols, S.C.: to take possession of his remains and bury them with other family members. "So good by and paray that we will meet agin," Bethea wrote. According to the Associated Press, his remains were not sent east, and there is no record of why. Bethea's body went to a pauper's grave in Rosehill Elmwood Cemetery in Owensboro.
Pictures taken the morning of the hanging show a large crowd — men and women, some holding children — standing in downtown Owensboro, some on the rooftops of brick buildings. They watched as the execution team put a black hood over Bethea's head. Then they saw Bethea fall through the trap door. Doctors pronounced him dead about 10minutes later.
According to the Associated Press, headlines from around the country screamed the news of Bethea’s public execution. From Chicago — "Death Makes a Holiday: 20,000 Revel Over Hanging." From Evansville, Indiana — "Ghostly Carnival Precedes Hanging." From Louisville — "'Did You Ever See a Hanging?' 'I Did,' Everyone in this Kentucky Throng can now Boast." Newspapers described vendors selling hot dogs, popcorn and drinks.
"Every bar was packed to the doors. Down the main street tipsy merrymakers rollicked all night. 'Hanging parties' were held in many a home," Time magazine reported on August 24, 1936.
Kentucky lawmakers cited the negative publicity surrounding Bethea's hanging in ending public executions in the state in 1938. Kentucky was the last state to move executions behind closed doors. Governor Albert B. "Happy" Chandler later expressed regret at having approved the repeal, claiming, "Our streets are no longer safe."
The Pittsburgh Post-Gazette/Ipso Facto
August 12, 2011
A recent court order out of the state of Georgia may have reality television show producers licking their chops. The order is not the settlement of a copyright issue or the resolution of an invasion of privacy case.
A Fulton County Superior Court ordered the taping of Andrew Grant DeYoung’s execution by lethal injection -- the ultimate reality show. Judge Bensonetta Tipton Lane allowed the recording of the execution as part of an effort to secure evidence regarding a claim that lethal injection causes unnecessary suffering.
This is the first known taping of an execution by lethal injection, but the Georgia decision is not unprecedented. In 1992, the execution of a California inmate was recorded when the constitutionality of death in the gas chamber was challenged.
Modern efforts to make executions public through televised broadcasts have been rebuffed by the courts, including a 1977 lawsuit filed by a Dallas public television station seeking to record an execution by electrocution.
Professor Douglas Berman of Ohio State University commented on his blog, Sentencing and Law Policy, “I think it would be foolish for anybody who is authorizing or supervising the videotaping of executions to assume that it will always remain sealed and unseen.” He added, “Somewhere, somehow, at some point, this will become publicly accessible.”
The only news photograph of the exact moment of an execution was taken January 12, 1927 during the electrocution of a woman at Sing Sing Prison in New York. The last public execution in the United States took place in 1936, in Owensboro, Kentucky -- before a crowd of 20,000 people.
As Timothy McVeigh’s execution drew near in 2001 he wrote a letter to the Daily Oklahoman seeking to “hold a true public execution - allow a public broadcast.” McVeigh's attorney said, "He is in favor of public scrutiny of government action, including his execution.” On June 11, 2001, McVeigh died from lethal injection as he stared up at a closed-circuit camera attached to the ceiling of the execution chamber. The execution was broadcast, but only to a room full of victims and family in Oklahoma City.
State-sponsored executions are the last bastion of government secrecy in this age of transparency and open records. Sister Helen Prejean, a death penalty opponent, has suggested that public executions will lead to the demise of capital punishment.
Professor Zachery Shemtob and former federal prosecutor David Lat recently wrote in the New York Times, “We leave open the possibility that making executions public could strengthen support for them; undecided viewers might find them less disturbing than anticipated.”
Meth investigations and arrest are on the decline nationwide, despite evidence that the meth trade is flourishing. Many agencies have moved away from tactics that have been used for years to confront drug makers. The use of undercover agents, door-to-door canvassing and surveillance of pharmacies are all been used less.
According to the Crime Report and Associated Press, the steep cutbacks began after the federal government in February canceled a program that provided millions of dollars to help local agencies dispose of seized labs. Since then, the number of labs seized has plummeted by a third in some key meth-producing states and two-thirds in at least one, Alabama. The trend is almost certain to continue unless more states find a way to replace the federal money or to conduct cheaper cleanups, which typically cost $2,500 to $5,000 per lab.
“They’re not actively out there looking for it,” Tony Saucedo, meth enforcement director for Michigan State Police, told the Associated Press. “And the big issue is money. We have taken 10 steps backward.”
Texas executed Martin Robles by lethal injection on August 10, 2011. He was pronounced dead at 6:21 p.m. according to a Texas Department of Criminal Justice spokesman.
Robles requested no visitors on his side, and no one showed up to witness the execution on behalf of the victims, according to Reuters.
His last words were, "I love you, Israel," according to a spokesman, who said he did not know what that meant or who Israel might be.
Robles did not request a last meal, officials said.
According to Reuters, Robles and another man entered a home in Corpus Christi on November 12, 2002, and used a gun to kill John Commisky and Jesus "Chuy" Gonzalez, both 19, as they slept, according to a report by the Texas Attorney General's Office.
The AG's report said that on the night of the killing, Gonzalez was shot at least 15 times, mostly in the head, while Commisky was shot 14 times, mostly in the back.
This was the 9th execution in Texas this year. More than any other state. Texas has a flurry of executions planned for late summer. Five more executions are scheduled for September.
Seeking the death penalty in Indiana has become an expensive proposition, and one that often doesn't end with execution, according to the Evansville Courier & Press.
Only 16 percent of Indiana's death penalty cases — 30 out of 188 — filed from 1990 through 2009 ended in death sentences, according to the Indiana Public Defender Council.
Such statistics have given death penalty foes a solid economic argument, and even supporters of the death penalty are calling for reforms to control skyrocketing defense costs often born by local and state governments, reported the Courier & Press.All 92 counties can be reimbursed for 50 percent of the defense costs in death penalty cases by the Indiana Public Defender Commission, which oversees the state's Public Defense Fund.
In the 2010-11 fiscal year, the state paid $370,709 to reimburse counties with death penalty cases. In total, the state has paid more than $10.5 million back to counties for death penalty cases since 1990, reported the Courier & Press.
Interesting article by Zack Needles of the Pennsylvania Law Weekly on how the boon in drilling as a result of to the Marcellus Shell is having an impact on crime rate in smaller counties across the commonwealth. The complete article is below:
Does More Drilling Mean More Crime?
Pennsylvania Law Weekly August 8, 2011
The meteoric rise of natural gas drilling in Pennsylvania in recent years has boosted the economies of some of the state's smallest and most rural counties.
But for some members of law enforcement in those counties, the frenzy surrounding the Marcellus Shale has also led to rapid population swells and, by extension, more crime.
"Economic boom equals crime boom," said Daniel J. Barrett, the district attorney of Bradford County, Pa., which borders southern New York.
According to Barrett, his county saw a 60 percent rise in drunk driving arrests and a 35 percent rise in criminal sentences in 2010.
Barrett said he believes those increases are at least partially attributable to the gas industry workers who have come to the county in droves over the past few years.
And local law enforcement, including his office, is starting to feel the strain, Barrett said.
"The issue is we've got an expanded burden on the criminal justice system," he said, adding that while the private housing market, for example, responded to the population uptick by expanding hotels and increasing the number of rental properties, there has been no comparable way for law enforcement to adapt to its increased caseload.
"The hotel that makes lots of money expands, but the criminal justice system that's taking more cases can't look to its customers to fund an expansion," he said.
And while Barrett said he expects his office will call for additional funding from the county government, most law enforcement agencies in the area, including the district attorney's office, are handling the caseload increase simply by "enduring it."
"We've been spending more time on what we do," he said. "As always, we keep looking for ways to get more work done each week ,and we work pretty hard at that. Now we're having to see what else we can do."
The New York Times has used Ohio as an example why the death Penalty should be abolished. In a Sunday editorial the Times cited Governor Kasich postponement of another execution as evidence of a system that is broken and obsolete.
Ohio has been leading the way in executions. Second only to Texas in 2010, Ohio is the first state to move to a single drug protocol and the second to use pentobarbital in its execution protocol.
The Times wrote:
Gov. John Kasich of Ohio postponed for a month the state’s next execution. The decision is an admission that Ohio’s management of the death penalty is broken and further proof that the machinery of death cannot be operated responsibly anywhere.
The governor made the postponement after a federal district judge in Ohio stayed another execution, when that death-row inmate argued that the state had repeatedly violated its own protocols for administering the death penalty. “It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not,” Judge Gregory Frost wrote in a legal opinion last month. The judge observed bluntly, “This is nonsense.”
To the judge, “Ohio’s execution policy now embraces a nearly unlimited capacity for deviation from the core or most critical execution procedures.” The state used to insist that its “written protocol” setting out those procedures had “the force of law.” In this case, the state presented the protocol as guidelines that could carelessly be “ignored.”
The opinion listed several important ways that Ohio has violated its own rules based on facts presented to the court. The state has let into its execution chamber someone who was not a member of the official execution team, a doctor who tried unsuccessfully to insert an intravenous line into an inmate’s arm. It has failed to document the appropriate preparation of the drug used. And it has failed to have two medical-team members present at an execution, to ensure that the injection was properly administered. The judge concluded about the state’s serial errors, “A death warrant cannot trump the Constitution.”
Ohio’s attorney general, Mike DeWine, said the state will use the additional time before the next execution, scheduled for September, to address these problems. Governor Kasich should instead listen to Ohio’s senior Supreme Court justice, Paul Pfeifer, who helped write the state’s death-penalty law as a legislator and has called on Ohio to abolish what he calls the “death lottery.” It is time for every state with the penalty on the books to outlaw this barbaric punishment.
The ill-fated use of a jailhouse informant was chronicled in John Grisham’s first non-fiction book, “The Innocent Man.” Grisham examined the trial, conviction and exoneration of Ron Williamson. The key prosecution witness told authorities she overheard Williamson make incriminating remarks while she awaited her own trial. She had prior felony convictions and this was not her first appearance as a jailhouse informant in a murder trial. At one point, Williamson was five days from execution before he was ultimately exonerated.
Several years ago in Lawrence County, Pa., Thomas Kimbell was prosecuted by the attorney general’s office and convicted of quadruple homicide, in part through the use of a jailhouse informant. Kimbell was later awarded a new trial and found not guilty.
In Greensburg, Pa., Kevin Murphy is being tried for the murder of his mother, sister and aunt. The lead witness is Murphy’s former cellmate. District Attorney John Peck defended the use of jailhouse informants. Peck said he cannot pick and choose which inmates come forward with information. He told the Pittsburgh Tribune-Review, “We very closely scrutinize the information they bring forward.”
Jailhouse informants are nothing new. In 1819, Vermont authorities could not solve an alleged homicide. The victim was missing, and the authorities sought the help of a jailhouse informant who received a “confession” from a suspect, who was ultimately sentenced to death. Only days before the scheduled execution, the “murder victim” strolled back into town very much alive.
A jailhouse informant is an inmate who contacts law enforcement authorities with information about another defendant facing trial. In exchange for helpful information the government provides a benefit to the informant such as a sentence reduction, reduction in charges or some special privilege.
The incentive to come forward with information has been codified on a federal level. Federal Sentence Guidelines permit a judge to impose a sentence significantly below the sentence required by the guidelines if the offender being sentenced has provided “substantial assistance” in the prosecution of some other defendant. While prosecutors say jailhouse informants can provide important — and truthful — testimony, informants have little to lose by lying on the witness stand. Rarely are they charged with perjury, according to the Chicago Tribune. It is not difficult for an informant to piece together the details of a crime from newspapers or legal documents and fabricate a cellmate’s “confession.”
Some jailhouse informants provide useful information that is, at times, essential in the search for truth. However, what are policymakers doing to insure fairness and to prohibit unscrupulous inmates from benefiting by their continuing misdeeds?
Connecticut has adopted a specific informant jury instruction that includes the following language, “You must look with particular care at the testimony of an informant and scrutinize it very carefully before you accept it.” Jury instructions are the rules that juries are bound by as they make a decision. The instructions are provided to the jury by a judge immediately before they begin to deliberate.
Last month California took it a step further. The legislature passed a bill prohibiting future convictions based solely on the testimony of jailhouse informants. The California District Attorneys Association and other law enforcement groups were opposed to the bill. The law would block convictions in cases without corroborating testimony of witnesses or forensic evidence.
Pennsylvania and Ohio are lagging behind in this area of the law. There are general jury instructions, in both states, regarding the credibility of a witness, whether the witness is an eyewitness or an informant.
In Pennsylvania, there is a specific instruction available when a witness has a penal interest in providing testimony, such as a witness who has been promised a more lenient sentence in exchange for testifying. In Ohio, there is an instruction for uncorroborated accomplice testimony, “use it with great caution and view it with grave suspicion.” Ohio does not have a similar instruction for informant testimony.
When a witness is a jailhouse informant her testimony needs to be judged by special precautionary rules. Justice demands those rules be codified in a concise and understandable manner.
The Pittsburgh Post-Gazette/Ipso Facto
August 5, 2011
Last week, New York became the latest state to adopt a 911 Good Samaritan law to fight drug overdoses. The law bars arrests and prosecution for possession of drugs, paraphernalia or underage drinking when someone calls for help to save the life of an overdose victim. New Mexico was the first state to enact a statewide 911 Good Samaritan law in 2007.
The incidents of overdose have risen significantly nationwide and are responsible for more than 28,000 deaths annually. In Allegheny County, the rate of overdose deaths has risen at an even higher rate than the nationwide rate.
Between 1980 and 1990 there was an average of 58 overdose fatalities per year reported in Allegheny County. The number of overdoses has increased each year since 1998. In 2006, the medical examiner reported 252 fatal overdoses for the year—the highest number of overdoses ever recorded in the county. There are more overdose deaths in Allegheny County than deaths from auto accidents and homicide -- combined.
As it now stands in most states, people who dial 911, drop a friend off at a hospital, or otherwise try to get care for someone in the midst of a drug overdose are subject to prosecution for drug use, possession, or distribution. Drug users fear arrest, so much so, that they would forgo dialing 911 for a friend in the midst of a medical emergency. This tragedy is repeated in countless cases across the country.
Multiple studies show that most deaths actually occur one to three hours after the victim has initially ingested or injected drugs. The time that elapses before an overdose becomes a fatality presents a vital opportunity to intervene and seek medical help. It has been estimated that only between 10 percent and 56 percent of individuals who witness a drug overdose call for emergency medical services, with most of those doing so only after other attempts to revive the overdose victim have proved unsuccessful.
In Pennsylvania, Senate Bill 351 provides for Good Samaritan civil immunity for the use of an automated external defibrillator in the case of a heart attack. There is no similar 911 Good Samaritan legislation in Pennsylvania. Washington and Connecticut have passed 911 Good Samaritan laws. California, Illinois and Nebraska are considering similar legislation.
The issue is not being completely ignored. A number of local colleges and universities have extended 911 Good Samaritan immunity to campus incidents of overdose and the Allegheny County Department of Human Services has established Every Life is Worth Saving -- a community-wide initiative to address the issue of overdose in Allegheny County.
Keeping with the the theme of yesterday's blog on broadcasting executions, Gene Policinski a senior vice president and executive director of the Nashville based First Amendment Center wrote this interesting column exploring public executions on First Amendment grounds.
The images would be the ultimate in “reality” programming: A TV broadcast or online streaming video of an actual execution.
Would you watch? Would you want news organizations – or anyone with a computer, for that matter – to broadcast or stream it on a live or delayed basis?
On July 22, Georgia prison officials complied with a request from Andrew Grant DeYoung’s attorneys for a video of Young’s death by lethal injection for killing three people in 1993. There are no plans for the DeYoung tape to be aired anywhere – yet. The video, being held by a court, could be evidence in a future lawsuit over execution methods.
But the incident and predictions of more such requests by death-row inmates raises the possibility that such a video could be leaked and posted on the Web before authorities could react. And, days ago, a university professor and a former federal prosecutor co-authored a commentary in The New York Times Sunday Review that cited the DeYoung taping as they called for executions to be televised. The pair said it was the only way for the public to get firsthand information on whether or not the practice is “cruel and unusual punishment,” given that we now get only “vague contours” from news media or family observers.
According to a display at the Newseum in Washington, D.C. (see http://www.newseum.org/news/2008/01/the-daily-newss-front-page-photo-of-ruth-snyders-execution-new-york-daily-news.html ), the only news photo of the exact moment of an execution was taken Jan. 12, 1927, against prison rules, by a photographer at the electrocution of convicted murderer Ruth Snyder. The front-page photo helped the New York Daily News sell 1 million extra copies – and caused a number of states to enact laws forbidding such photos.
The last public execution in the United States took place in 1936, in Owensboro, Ky. – reported as a sunrise hanging before a crowd of 20,000 and “hundreds of news reporters and photographers.” News organizations today, however, will be caught in ethical and First Amendment free-press crosscurrents in deciding whether to show an execution.
Virtually no news organization, as a matter of policy, prints, airs or posts grisly photos or video of the instant of death or dead bodies. Such policies, though, have been formulated in response to car chases, suicide attempts, storm damage, traffic accidents and the like. No such strictures exist on most websites.
State-sponsored executions have not been part of news-media ethical parsing, in that every state now has laws or regulations that forbid photos, video or audio. Courts have held there is no First Amendment right to such recordings or broadcasts. But what if such recordings become state policy?
Terrorist-produced videos of executions have been posted online. But state-authorized videos in the United States would be public records, and both sides of the death-penalty debate here may well clamor for public viewing “in the public interest.”
Opponents of the death penalty say public viewings would hold prison officials accountable for botched executions, and help counter claims that lethal injection is humane or painless. Death-penalty advocates argue that execution videos would help deter violent crime.
On the public side, there’s little envelope left to push when it comes to what viewers – at least enough to produce acceptable ratings – will accept.
Round-the-clock, highly opinionated reporting in the recent Casey Anthony trial has drawn fire as crass, overblown and exploitive, even from the judge in the case. But the 24-7 shout-fests clearly caught an audience.
Myriad “reality shows” focus on gritty confrontations between police and suspects or bail bondsmen and quarry. The TV series “To Catch a Predator” blended law enforcement’s hidden-camera techniques with the lurid appeal of potential sexual predators’ being brought to justice.
“Means, motive and opportunity” are what any prosecutor in a criminal case needs to get a conviction – and just may be what a producer of a TV crime program will use sometime to get airtime for the ultimate “reality show.”
Last week Zachary B. Shemtob an assistant professor of criminal justice at Central Connecticut State University and David Lat, a former federal prosecutor wrote in the New York Times that executions should be broadcast live.
Shemtob and Lat wrote in part:
There is a dramatic difference between reading or hearing of such an event and observing it through image and sound. (This is obvious to those who saw the footage of Saddam Hussein’s hanging in 2006 or the death of Neda Agha-Soltan during the protests in Iran in 2009.) We are not calling for opening executions completely to the public — conducting them before a live crowd — but rather for broadcasting them live or recording them for future release, on the Web or TV.
Shemtob and Lat continued:
Ultimately the main opposition to our idea seems to flow from an unthinking disgust — a sense that public executions are archaic, noxious, even barbarous. Albert Camus related in his essay “Reflections on the Guillotine” that viewing executions turned him against capital punishment. The legal scholar John D. Bessler suggests that public executions might have the same effect on the public today; Sister Helen Prejean, the death penalty abolitionist, has urged just such a strategy.
That is not our view. We leave open the possibility that making executions public could strengthen support for them; undecided viewers might find them less disturbing than anticipated.
U.S. District Judge Mary A. McLaughlin ruled that Nicholas Panarella, Jr., convicted in a political corruption scheme, is entitled to a "writ of error coram nobis" to vacate his conviction based on an honest services wire fraud scheme, according to The Legal Intelligencer.
Judge McLaughlin ruled that Panarella's conviction is no longer valid in light of the U.S. Supreme Court's 2010 ruling in Skilling v. Untied States, which significantly narrowed the scope of the honest-services-fraud statute.
"Where a person is convicted and punished for conduct that is not a crime, such circumstances constitute the sort of fundamental error that may warrant coram nobis relief," McLaughlin wrote.
McLaughlin said there was "no dispute that Panarella was charged solely with the undisclosed self-dealing theory that was invalidated by Skilling", reported the Intelligencer. As a result, Panarella's conviction "was predicated solely on conduct that is no longer a crime."
Governor Tom Corbett recently signed an execution warrant for Robert Anthony Flor, who was sentenced to death for killing a Bucks County policeman.
Flor, formerly of Bedminster, pleaded guilty to first-degree murder in October 2006 for the shooting death of Officer Brian Gregg, 46, of the Newtown Borough Police Department. A jury sentenced Flor to death the following month.
On the night of Sept. 29, 2005, police took Flor into custody for suspected drunken driving. Flor grabbed another policeman's weapon and started shooting, wounding two others and killing Officer Gregg.
Flor is a prisoner at the State Correctional Institution at Greene. His execution by lethal injection is scheduled for September 29, 2011.
The warrant signed by Corbett's is the fifth execution warrant singed by the governor since January. There have been only three executions in Pennsylvania since 1978. All three inmates volunteered to be executed.
New York state last week became the largest state in the nation to adopt a “Good Samaritan” law to fight overdose. The law bars arrests and prosecution for personal possession of drugs, paraphernalia or underage drinking when someone calls for help to save the life of an overdose victim, according to Time Magazine.
Overdose—now the leading cause of accidental death in New York and the number one injury-related killer of adults 35-54—is responsible for some 28,000 annual deaths nationally.
Washington state, Connecticut and New Mexico have all passed Good Samaritan laws to protect helpers in these circumstances and they are under consideration in California, Illinois and Nebraska. In New York, the bill had bipartisan sponsorship and passed nearly unanimously, reported Time.
The Texas law blog Grits for Breakfast recently analyzed a report from the Federal Bureau of Justice Statistics indicating that public defenders fair better than court appointed counsel and at time privately retained attorneys in criminal courtrooms.
According to Grits for Breakfast, public defenders appear to be getting better outcomes, even, than privately hired lawyers in certain specific areas of represetnation, "Among convicted defendants sentenced to serve time either in prison or jail, those using public defenders received shorter average sentences than those with private attorneys or assigned counsel. Defendants with public defenders were sentenced to an average of 23 months of confinement, while those with hired attorneys or assigned counsel were sentenced to incarceration terms averaging 31 and 35 months, respectively."
The difference in sentence length is mainly due to drug crimes. For reasons I cannot fathom, private attorneys' clients received substantially longer sentences for drug crimes than those represented by PDs: "convicted defendants with private counsel were sentenced to periods of confinement 37% longer than their counterparts with public defenders," reported Grits for Breakfast.
Appointed counsel received even worse sentencing outcomes: Comparing public defenders and appointed counsel, the latter received sentences 33% longer for violent crimes, 22% higher in property crimes, and 40% higher in "public order" offenses, reported Grits for Breakfast.
An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.