Saturday, March 31, 2012

NY Court of Appeals allows expert in false confession claim

The New York Court of Appeals has authorised the use of expert witnesses to bolster a claim of false confession in criminal cases.

 According to the New York Times, defense lawyers have argued that police interrogation tactics can lead people to admit to crimes they did not commit. About a quarter of the convicts exonerated by DNA nationwide gave false confessions, made self-incriminating statements or pleaded guilty, according to the Innocence Project.

“That the phenomenon of false confessions is genuine has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom,” Judge Susan P. Read wrote in the majority opinion.

Vincent M. Bonventre, an Albany Law School professor, called the ruling “a big step.”
“The kind of evidence, which in the past people relied on more heavily than anything else, now the Court of Appeals is saying, ‘Yeah, we understand a lot of these confessions might be false,’ ” he said, reported the Times.

Friday, March 30, 2012

The Cautionary Instruction: Plea bargaining afforded Constitutional protections

The Pittsburgh Post-Gazette/Ipso Facto
March 30, 2012

Plea bargaining is an integral part of the criminal justice system. Last week, Justice Antonin Scalia said, with apparent surprise, that plea bargaining “is no longer a somewhat embarrassing adjunct to our criminal justice system.”

Justice Scalia should not be surprised, 97 percent of federal cases and 94 percent of state cases end in plea bargains. The reality is that criminal justice today is "a system of pleas," wrote Justice Anthony M. Kennedy. In two U.S. Supreme Court decisions last week, the court ruled that the Constitutional guarantee of adequate assistance of counsel cannot exclude the "central role plea bargaining plays." For the most part, plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

The plea bargain, however unpopular or unseemly, plays a central role in the administration of justice .

Setting aside the fact that trying every criminal case is impossible, there are other compelling reasons to plea bargain. Prosecutors are intimately familiar with the strengths and weaknesses of every case. There are situations where a plea to a lesser offense is better than a not guilty verdict. A reluctant witness or a poor witness will influence plea negotiations.

Witnesses often have to deal with their own demons, such as criminal records and substance abuse—such witnesses do not impress juries. In those cases, a plea bargain may not be palatable, but is better than the alternative.

Last week, in Lafler v.Cooper, the court ruled that an attorney's advice to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Frye, the court found that counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.

Justice Kennedy wrote in Frye, “In today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

What will a defendant claiming ineffective assistance of counsel during plea negotiations have to prove? The court has established a three prong analysis. First, a defendant must prove he would have accepted the plea bargain if not for bad legal advice; that there was a reasonable probability that prosecutors would not have withdrawn the offer before trial; and a judge would have accepted the plea.

Justice Scalia calls it “crystal-ball gazing posing as legal analysis.”

Stephanos Bibas, a law professor at the University of Pennsylvania, told the New York Times the decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship. “It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”

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Thursday, March 29, 2012

Chalk one up for 'stand your ground'

Judge dismisses homicide charges against a man who ran down burglar and stabbed him to death

A bag of stolen car radios — swung during a confrontation — amounted to a lethal threat to a man who chased down a thief and stabbed him to death, Miami-Dade Circuit Judge Beth Bloom said in a written ruling this week dismissing the murder charges, according to the Miami Herald.

Last week’s ruling drew widespread attention at a time when critics are assailing Florida’s self-defense law in the wake of the fatal shooting of 17-year-old Trayvon Martin by a neighborhood captain.

Police painted the defendant Greyston Garcia as a vigilante who chased Pedro Roteta for more than a block before stabbing him during a confrontation on January 25.

But Bloom, in her order, said that under the law, Garcia “was well within his rights to pursue the victim and demand the return of his property . . . the defendant had no duty to retreat and could lawfully pursue a fleeing felon who has stolen his property.”

According to the Herald, Bloom acknowledged in her order that Garcia did not call police or 911, but went home and fell asleep. He later sold two of the car radios and hid the knife. Those actions, however, did not sway the judge in ruling in favor of his self-defense claim.

Miami-Dade Chief Assistant State Attorney Kathleen Hoague, who trains her office’s lawyers in self-defense cases, told the Herald her office would appeal the decision because “we feel the judge abused her discretion.”

“The law does not allow for you to use deadly force to retrieve your property. She, in effect, is saying that it’s appropriate to chase someone down with a knife to get property back,” Hoague told the Herald, who stressed that a jury should weigh the merits of the case.

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Wednesday, March 28, 2012

Budget cuts mean prison overcrowding in Washington

The state of Washington is facing a quite a dilemma. The Department of Corrections must figure out how to handle the projected need for 900 new prison beds by 2016 — the date that DOC had planned to open a new prison in Western Washington. With the state facing a $1 billion budget shortfall, the opening has been put off until at least 2018, according to the Seattle Times.

Washington state currently has 16,000 inmates, so the expected influx of 900 more represents a 5.6 percent increase.

Major overcrowding hasn't been an issue for the Department of Corrections in past years because the agency was able to keep up with the projected demand. In 2009, a minimum-security work camp in Franklin County was expanded into the state's largest prison, housing 2,500 inmates. But facing deep budget cuts, DOC reversed its path and started closing facilities — including the 135-year-old McNeil Island Corrections Center, which cost the system 1,200 inmate bed

Each week, about 150 inmates arrive at the Washington Corrections Center for processing before they're assigned a permanent home in the state prison system.

According to the Times, most are destined to spend their first days in prison as "rugs," the term used by inmates and corrections officers to describe offenders who have to sleep on the concrete floor of cells because of overcrowding. The newcomers bed down on thin rubber mats spread out between the cell's toilet and sink, next to two inmates in bunks.

The problem with overcrowding is best exemplified at the Washington Corrections Center, with an average daily population routinely nearing 1,700 inmates. When the prison opened in 1964, it was designed to hold 720 inmates, reported the Times.

General population, where inmates are locked up 22 hours a day, often houses everyone from high-profile killers to sex offenders to members of other gangs. The prison's intensive management unit, or solitary confinement for the most dangerous, is always full.

"It's tense in here every day," Associate Superintendent Dan White told the Times. "The staff need to have good communication skills to put a lid on things, especially when you're talking about a cell with three guys."

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Tuesday, March 27, 2012

'Stand your ground' expanding rapidly

The law known as 'stand your ground' is growing at a rapid pace.  Thirty-two states have some form of legislation that eliminates the requirement to retreat. At least nine more states are considering some variation of the statute right now.

Under Florida law, a person who is attacked in any place where he or she has a right to be “has the right to stand his or her ground and meet force with force, including deadly force” if he or she reasonably believes force is necessary to prevent death or great bodily harm.

According to Legal Community Against Violence, 25 states — including every Southern state except Arkansas — have laws that generally allow the use of deadly force outside the home with no duty to retreat. Seven other states, including Pennsylvania, have laws allowing deadly force in specific locations away from home.

According to the Arkansas News, Arkansas law allows a person to use deadly force in self-defense without the duty to retreat only in the person’s home or on the curtilage, defined as the land immediately surrounding the home.
Away from the home and curtilage, a person in Arkansas “may not use deadly physical force in self defense if he or she knows that he or she can avoid the necessity of using deadly physical force with complete safety.”

In 2012, legislation is or was pending in six states (Alaska, Iowa, Massachusetts, Minnesota, Nebraska and New York) that would eliminate the duty to retreat outside of the home. The Iowa bill has already been passed by the House of Representatives; the Minnesota bill was vetoed.

Three additional states (Indiana, New Jersey, and Oklahoma) considered related legislation this year. The Indiana legislation, which has been signed into law, allows the use of force to resist law enforcement’s entry into one’s home.

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Monday, March 26, 2012

Mississippi executes two men in three days

The 11th Execution of 2012

William Mitchell was executed by lethal injection in Mississippi on  March 22, 2012 for killing 38-year-old Patty Milliken, who disappeared after walking out of the Majik Mart convenience store where she worked to have a cigarette with Mitchell.  It was the second execution in three days in Mississippi.

Asked whether he wanted to say anything before the chemicals were pumped into his veins, Mitchell emphatically said, "No."

Dressed in a red jumpsuit, wearing black-and-white sneakers, Mitchell appeared to lick his lips, took a deep breath and exhaled and then yawned. Moments later he closed his eyes and officials pronounced him dead, reported The Associated Press.

Two members of Milliken's family — son, Williams Burns; and a sister, Rosemary Riley — witnessed the execution.

"We are so glad this day has come and justice is being served on Patty's behalf. Mitchell cannot cause harm to anyone else ever again," Riley said, reported the AP.

Burns, his voice breaking several times, said he grew up without a father and his mother played dual roles.

There was no statement from Mitchell's family. Mitchell wanted none of them present for the execution. His body was collected by his sister and driven from the penitentiary.

Biloxi Police Chief John Miller, who was a narcotics investigator when Milliken was killed, said he had hoped Mitchell would have said something more."Something to cleanse his soul," Miller said, reported the AP.

Corrections Commissioner Chris Epps said Mitchell, who was visited by a brother and two sisters, was talkative earlier in the day. "Just small talk ... nothing about what he was on death row for," Epps said, reported the AP.

The U.S. Supreme Court earlier Thursday declined to stop Mitchell's execution.

Gov. Phil Bryant issued a statement that he would not halt the execution. "After reviewing the case of William Mitchell and the crime he committed, I will not stand in the way of the scheduled execution. My thoughts and prayers are with the family and friends of Patty Milliken, who fell victim to this horrible act of violence," Bryant said in the statement, reported by the AP.

Court records show Mitchell, had been out of prison on parole for less than a year for a 1974 murder when he was charged with raping and killing Milliken.  He was convicted in this case in 1998.

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Mississippi executed man for killing young mother

The 10th Execution of 2012

Larry Matthew Puckett was executed Mississippi on March 20, 20112.  He killed his former boss's wife, Rhonda Griffis, in 1995.  At the time of the killing Puckett was 18 years old.

After several deep breaths, a long blink and a subtle widening of the eyes, Puckett lay motionless for more than 10 minutes as Cecil and Nancy Hatten watched through a plate glass window.
He was pronounced dead at 6:18 p.m., reported the Hattiesburg American.

"Today we witnessed the result of a choice made by Matt Puckett," said Nancy Hatten following the execution. "If he had chosen to live as a law-abiding citizen rather than choosing to murder our daughter - our only child - who was a wife and mother, we would not be here today," reported the American.

Puckett was not so talkative Tuesday.

"No," was the final word to leave his mouth, spoken into a microphone suspended from the ceiling above the gurney he was secured to when asked if he had any last words.

He was convicted of capital murder and sentenced to death in 1996 killing Griffis', a young mother of two. Capital murder is statutorily defined in Mississippi as murder committed during the course of another felony.

"Nothing will ever fill that void," Nancy Hatten said of the death of her 28-year-old daughter. "It will always be in our lives, the void that Matt caused. There will be closure to this on the side of justice, but there will never be closure for us for our daughter as part of our lives," reported the American.

Before his execution, Puckett lay on the gurney blinking erratically behind bespectacled eyes as Lamar County Sheriff Danny Rigel, Forrest County Sheriff Billy McGee, Sunflower County Sheriff James Haywood, the Hattens and media representatives sat behind a plate glass window overlooking him in a white, brick-walled room.

According to the American, Puckett had been at MSP's "Unit 17," where prisoners are executed, for 48 hours before his execution. His final holding cell is part of a short, red brick building with tiny windows surrounded by two rows of razor-wire fence with electrified wires in between that contained only him and prison staff.

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Sunday, March 25, 2012

SCOTUS: Sixth Amendment applies to plea bargains

Last week, the U.S. Supreme Court ruled in two cases out of Missouri and Michigan that the right to effective counsel guaranteed by the Sixth Amendment applies to plea bargains as well trials.

Justice Anthony Kennedy, writing for the majority, also wrote that plea bargain counsel has a duty to communicate all formal and favorable prosecution offers to the accused. If he or she does not, the defendant may be able to appeal any subsequent punishment, reported Reuters.

The two cases — Missouri v. Frye and Lafler v. Cooper — deal with slightly different yet connected issues. In Frye, counsel failed to communicate a highly beneficial offer to the defendant. He was then convicted and sentenced to three years behind bars. The defendant appealed his conviction, arguing that he had ineffective plea bargain counsel.

Five of the nine justices agreed that such a claim is possible. But in order to be successful, the defendant must show that there is a reasonable probability that he would have accepted the deal had he known about it, and that the plea would have been presented to and accepted by the court.

Cooper differs in that the defendant rejected a plea offer on the advice of counsel. This, too, can lead to a successful ineffective assistance of counsel claim. However, successful claims require a showing that prosecutors would have presented the deal to the court; that the court would have accepted the terms of the deal; and that the offer’s terms would have been less severe than the sentence imposed.

According to Reuters, these rulings have the potential to turn the criminal justice system on its head. Approximately 95% of all criminal cases end in plea bargains. The number of potential ineffective assistance of plea bargain counsel claims is enormous and it will be difficult to sort real claims from those filed by disgruntled claiments who were convicted after knowingly rejecting a plea offer.

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Saturday, March 24, 2012

Neighborhood Watch under scrutiny in wake Martin killing

The first rule of every watch program: Do not intervene
The killing of Trayvon Martin by an armed neighborhood watch captain has called into question the role of neighborhood watch participants.  There is no question that a neighborhood watch program can have a positive impact on the community.  However, experts make it clear that there are some essential rules to an effective program as reported by The Associated Press.
"First thing: You do not engage. Once you see anything, a suspicious activity, you call the number that the police department has given you," said Chris Tutko, director of the Neighborhood Watch program at the National Sheriffs' Association, which launched the neighborhood watch concept 40 years ago as a response to rising crime.
Tutko said it's highly unusual, and highly discouraged, for a neighborhood watch to be armed.

"You do not carry a weapon during neighborhood watch," he told the AP. "If you carry a weapon, you're going to pull it."

Tens of thousands of watches have been formed across the United States over the decades. Some patrol gritty urban neighborhoods where volunteers walk a beat; others monitor sparsely populated areas with houses that are miles apart.

Regardless of location, the message from law enforcement is always the same: Do not intervene. Do not try to be a hero. Leave the crime-fighting to the police.

"We don't want to see somebody taking the law into their own hands," Philadelphia police Sgt. Dennis Rosenbaum told the AP.

Violent incidents involving neighborhood watch volunteers are rare but not unheard of. In 2009, two armed neighborhood watch volunteers in Bluffdale, Utah, got into a dispute; one took out his gun and shot the other, paralyzing him.

Background checks can weed out convicted felons and other people who obviously don't belong in neighborhood watches. After that, police departments that work with watch groups, as well as the organizations themselves, have to remain vigilant to make sure that volunteers are doing what they're supposed to.

"It was designed to be an extra set of eyes for the police because they cannot be everywhere all the time. But actually acting on it with vigilantism is completely askew to what the idea of neighborhood watch is," Kenneth J. Novak, a criminal justice professor at the University of Missouri-Kansas City who has studied community policing and neighborhood watches, told the AP.

Volunteers should resist the urge to intervene, Tutko said, even if they happen to see a crime in progress, because they lack training and may become victims themselves. He tells trainees that "you do what you can, when you can, as much as you can, but if you cross the line, everybody loses."

Scholars say that while watch groups primarily act as deterrents and feed information to the police, they may provide more intangible benefits, too, like improving neighborhood cohesion and giving residents a sense of security.

The authors of a 2008 Justice Department review concluded there was "some evidence that Neighborhood Watch can be effective in reducing crime," but said that while some programs work as intended, others work less well or not at all, reported the AP.

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Friday, March 23, 2012

The Cautionary Instruction: ‘Stand your ground’ an invitation to kill?

The Pittsburgh Post-Gazette/Ipso Facto
March 23, 2012

Race has emerged as the primary focus in the Trayvon Martin homicide. Martin’s death is also a tragic example of law making gone awry. Martin, 17, was shot and killed last month in Sanford, Florida by George Zimmerman, a neighborhood watch captain, who thought Martin “looked suspicious.”

Zimmerman contends that he was authorized to use lethal force pursuant to Florida’s ‘stand your ground’ law. No charges have been filed and the U.S. Department of Justice is now investigating the case.

To add some perspective, a look at two very different legislative enactments authorizing lethality would be instructive ...

First, the death penalty. Florida authorizes the use of lethal intravenous drugs to cause the death of a person as punishment for the crime of first degree murder. The punishment is imposed, after conviction and sentencing by a vetted and impartial jury and countless reviews by various state and federal appellate courts.

Second, the ‘stand your ground’ law. An individual can use lethal force in the form of a gun, knife or other weapon to cause the death of a person in Florida based on that single individual’s feeling of fear, developed in a matter of seconds, often without any other witnesses.

Last year, Marshall Frank, a retired Miami-Dade Police homicide detective, called for the repeal of Florida’s death penalty in a column published in the Daytona Beach News-Journal. He wrote, “It's time for legislators to delve into this hideous problem whereby a snail’s-pace appeals system stands in the way of carrying out true justice … there should be a maximum time factor requiring appeals to be filed and heard within two years, or else a sentence is automatically commuted to life.”

That is precisely the hypocrisy of these parallel laws that authorize lethality. The U.S. Supreme Court has mandated a system of super due process for the death penalty. For all its naysayers the death penalty is the most accurately applied punishment in the world. The years that pass between crime, conviction and execution are indicative of a deliberative and thoughtful process that insures accuracy. Florida has 397 men and women on death row. Some have been there for more than 40 years. The state has executed only eight inmates since 2007.

While the death penalty is under attack -- New Mexico, New York, New Jersey -- have recently abolished the punishment, the castle doctrine and ‘stand your ground’ legislation is being enacted, or expanded, in state after state. Pennsylvania expanded the castle doctrine last year.

Yet, the ‘stand your ground’ law is anything but deliberative and thoughtful. We lament the killer who is executed after trial and years of review, yet we empower a single individual to make a split second decision -- suspicion, a threat, fear -- ‘bang!’ There is no investigation, no trial, and no appeal. In that split second, the individual is judge, jury and executioner.

A review by the St. Petersburg Times in October, 2010, five years after the enactment of ‘stand your ground,’ found that the self-defense law had been invoked in 93 cases resulting in 65 deaths.

This week Tony Norman of the Post-Gazette wrote, “Mr. Zimmerman is not a cop. He had no legal right to question a law-abiding citizen based on his suspicions.

Unfortunately, Florida and some 16 other states have given guys like Zimmerman more than the right to question law-abiding citizens. Lawmakers have empowered them to kill with impunity.

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Thursday, March 22, 2012

NYT uses anecdotal information to slam death penalty

The New York Times is opposed to the death penalty.  That is not a new revelation.  What is revealing is that the Times editorial board would resort to a summary review of a trial to make a point and only provide its readers with a snippet of information about a very serious case.

On March 19, the Times wrote, "On Feb. 29, a Philadelphia jury sentenced Derrick White to death for murder — in part because his lawyers provided the kind of ineffective counsel that has drawn harsh criticism for decades in the city.

Barely 20 when arrested in 2010, White received a death sentence after his lawyers failed to take the most rudimentary steps for capital cases. They did not enter as evidence records about his background or hire a death penalty expert to help prepare the case. The closing argument about whether he deserved death or life without parole was rambling and all but pointless, lasting 15 minutes."

Here is how described the case.  White "killed 33-year-old Abdul Taylor, a father of eight and mentor to countless neighborhood young people, outside his mother’s house on Ellsworth Street in 2010.
The jury, which heard evidence including prison tape recordings of the defendant talking to one of the alleged killers in the earlier murder, deliberated just a short time before first convicting White — and then imposing the ultimate penalty."

“People are fed up,” Prosecutor Richard Sax told “I mean we had the young woman who was just murdered because she was a witness to a murder. The murders continue unabated, and this was a fine middle-aged man who had the courage to step forward and was executed for his trouble, for his courage.”

There is no question that capital punishment in Pennsylvania needs to be reviewed.  The state has carried-out only three executions since 1976 and all three volunteered to be executed.  However, it is not helpful to use anecdotal information about a single recent trial that has not yet been reviewed to make a case for throwing out the death penalty.  The Times can, and should, do better.

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Wednesday, March 21, 2012

Juvenile life without parole argued before Supreme Court

The U.S. Supreme Court heard oral arguments on the issue of juvenile life without parole.  According to the New York Times, a majority of Court appeared prepared to take an additional step in limiting such punishments, but it was not clear whether it would be modest or large.

In the last decade, the Court created a excptions, based on age, the nature of the offense and whether judges and juries have discretion to show leniency, when it comes to punishment of juveniles.
In 2005, in Roper v. Simmons, the court abolished the juvenile death penalty; in 2010, in Graham v. Florida, the court ruled that sentencing juvenile offenders to life without the possibility of parole also violated the Eighth Amendment’s ban on cruel and unusual punishment — but only for crimes that did not involve killings.
The majority opinions in both cases were written by Justice Anthony M. Kennedy, who said teenagers deserved more lenient treatment than adults because they are immature, impulsive, susceptible to peer pressure and able to change for the better over time, reported the Times.
The two cases the justices considered concerned defendants who were 14 when they were involved in killings.
One case, Miller v. Alabama, No. 10-9646, involved Evan Miller, an Alabama man who was 14 in 2003 when he and an older youth beat a 52-year-old neighbor and set fire to his home after the three had spent the evening smoking marijuana  and playing drinking games. The neighbor died of smoke inhalation.

The other, Jackson v. Hobbs, No. 10-9647, concerned Kuntrell Jackson, an Arkansas man who was 14 when he and two older youths tried to rob a video store in 1999. One of the other youths shot and killed a store clerk.
Justice Ruth Bader Ginsburg responded that there were important values on Mr. Jackson’s side, too.
“You say the sanctity of human life,” she said reported the Times, “but you’re dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope. I mean, essentially, you’re making a 14-year-old throwaway person.”       

John C. Neiman Jr., Alabama’s solicitor general, said the sorts of parole hearings that Mr. Stevenson sought imposed burdens.
“There’s really no cost to society at least in allowing that process to occur,” Mr. Neiman said reported the Times, “but the cost is to the victims and their families, who have to endure what are often very painful hearings.”
According to the Times, much of the argument concerned the lines the court might draw. It could prohibit sentences of life without parole for offenders younger than 15. Or it could bar the punishment for all juvenile offenders, which would affect more than 2,000 prisoners.

Tuesday, March 20, 2012

Oklahoma executes man who murdered his wife

The 9th Execution of 2012

An Oklahoma man convicted of killing his wife with help from a relative of his mistress to collect insurance money was put to death by injection on March 15, 2012, reported The Asssociated Press.

Timothy Shaun Stemple shook his head no when asked if he had any last words, as members of his family and his wife's sat separately from each other watching the condemned man through glass.
The 46-year-old Stemple gasped for about 20 seconds, his eyes opened and he groaned. He then laid still with closed eyes and his face turned pale. He was pronounced dead at 6:11 p.m.

His family had asked the governor to stay the execution so that medical testimony disputing his accomplice's account of the 1996 attack on Trisha Stemple could be heard in court. Stemple's mother, his 21-year-old daughter and his sisters held each other by their hands and arms as he was being put to death. One of his sisters held his crying daughter's face close to hers.

Afterward, Trisha Stemple's sister, Deborah Ruddick-Bird, said the day was not about Timothy Stemple. She said it was "about justice, finality and closure for my gorgeous sister, Trisha, and my family."

"Today we put a period at the end of the chapter that held us captive for far too long," Ruddick-Bird told reporters. "Today we breathe again. Today we move forward and move on."
Trisha Stemple, 30, was beaten with a plastic-covered baseball bat and run over by a pickup truck Oct. 24, 1996, along a Tulsa highway. Her husband maintained his innocence throughout the trial and appeals process. And at a clemency hearing last month, he declined to address Pardon and Parole Board members.

The board denied his plea for clemency.

"The state of Oklahoma murdered an innocent man today," his mother, Lia Stemple, told The Associated Press by phone after the execution. "I don't want vengeance but I want the truth to be known so this doesn't happen to another family. My son was a noble man."

Stemple's execution at the state prison in McAlester is the first of three scheduled over the next two months in Oklahoma. Last month, Department of Corrections officials said the state has four doses left of the lethal injection drug pentobarbital, an anesthetic that manufacturers have objected to selling for use in executions.

Arizona executes 2nd man in 10 days

The 8th Execution of 2012
A man was put to death on March 9, 2012 in Arizona for murdering a philanthropist by injecting him with battery acid and then strangling him, according to The Associated Press.

Robert Towery, who had spent nearly two decades on death row, was executed by lethal injection at the prison complex in Florence, outside Phoenix, authorities said.

Towery was convicted and sentenced to death for the 1991 killing of the 69-year-old area philanthropist, whom he had met previously, during a robbery that turned to murder.

Towery and an accomplice threatened the victim with a weapon and then tied him up while they robbed the house. Towery then injected the victim with battery acid and strangled him, according to prison documents.

The victim's body was found the next day and the two suspects arrested. Towery's accomplice made a plea deal -- in exchange for testifying against Towery, the accomplice served a 10-year sentence and has been released.
The execution the second in 10 days in Arizona.

On the Docket: Juvenile Life Without Parole

The Crime Report
March 20, 20012

Today (March 20), the U.S. Supreme Court will hear oral argument in two cases challenging sentences of life without parole for murders committed at the age of 14. If recent trends are any indication, the court will restrict the use of life without parole for juveniles, but will not eliminate the practice.

As violent crime rates soared in the late 1980s and early 1990s, juveniles became the target of ever increasing penalties. In 1995, Pennsylvania’s newly-elected Governor Tom Ridge called for a special legislative session on crime.

Ridge cajoled the legislature into overhauling the juvenile justice system with the mantra “adult time for adult crime.”

A fundamental change in the law made it easier to charge juveniles as adults. In fact, certain violent offenses require prosecutors to charge juveniles as adults.

Pennsylvania’s mandatory sentence of life in prison without parole for first degree murder has landed more than 450 people in prison for life for killings committed as juveniles—the most in the nation.
How did we get to the point in this country where about 2,600 inmates are serving life sentences for crimes committed as juveniles?

The answer is the "super-predator.”

The term was coined by John Dilulio, who in 1995 as a professor at Princeton University wrote an article entitled, "The Coming of the Super-predators.”

The article incited fear among policymakers across the country who believed that remorseless, gun-toting juveniles were being treated leniently and were therefore embolden to commit violent crimes without real consequences.

At the time, an ominous Seattle Times article included Dilulio’s warning of a growing teen population that would cause even more mayhem.

Dilulio argued that super-predators presented a serious problem for communities across the country.
"Each generation of crime-prone boys has been about three times as dangerous as the one before it," Dilulio wrote. Thus "the demographic bulge of the next 10 years will unleash an army of young male predatory street criminals who will make even the (gang) leaders of the Bloods and the Crips . . . look tame by comparison."

Juveniles were in the cross-hairs of policymakers nationwide as state after state enacted legislation to treat juveniles as adults in the criminal justice system. However, the next 10 years were nothing like Professor Dilulio predicted.

The Department of Justice’s 2006 National Report on Juvenile Offenders and Victims demonstrated that the rate of juvenile violent crime arrests consistently decreased since 1994, falling to a level not seen since at least the 1970s.

Just as concern about juvenile crime was beginning to grow, the U.S. Supreme Court restricted the application of the death penalty for some juvenile offenders.

In 1988, the Court outlawed the execution of juveniles under the age of 16. A year later the court affirmed the constitutionality of executing juveniles age 16 and 17. On the same day the Supreme Court also upheld the death penalty for the mentally retarded.

The law would not change for another 13 years.

In 2002, the court ruled in Atkins v. Virginia that executing the mentally retarded was cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Atkins launched a series of decisions that relied on evolving standards of decency as evidenced by a national consensus against excessive sentencing, particularly as related to juveniles.

In 2005, the Supreme Court struck down the execution of juveniles. In Roper v. Simmons, the Court held that it was cruel and unusual punishment to execute any person who was convicted of first-degree murder while under the age of 18.

In support of a "national consensus" against juvenile executions, the Court noted the decreasing frequency with which states were sentencing juveniles to death. At the time of the decision, 20 states had laws permitting the death penalty for juveniles, but only a handful of states had executed prisoners for crimes committed as juveniles.

Furthermore, in the 15 years prior to the Roper decision five states had abolished the death penalty for juveniles.

The Court explained that the primary criterion for determining whether a particular punishment violates society’s evolving standards of decency is objective evidence of a national consensus as expressed by legislative enactments and jury practices.

Gauging the acceptance or rejection of a particular criminal punishment requires an examination of both the work of the various legislatures and actual sentencing practices in courtrooms across the country.

The two cases scheduled for argument before the Supreme Court this week are Jackson v. Hobbs, No. 10-9647 and Miller v. Alabama, No. 10-9646.

Kuntrell Jackson is an Arkansas man who was 14 when he and two older co-defendants tried to rob a video store in 1999. One of Jackson’s co-defendants shot and killed the store clerk. Evan Miller is an Alabama prisoner who was 14 in 2003 when he and an older youth beat a 52-year-old neighbor and set fire to his home after an evening of drinking and smoking marijuana. The neighbor died as a result of the attack.

As Jackson and Miller’s cases are about to be argued before the Supreme Court, it is instructive to look back at successful consensus arguments made before the court in the last 10 years.

In Atkins, 30 states had banned the execution of the mentally retarded. In addition, during the modern era of the death penalty, only five states had executed an inmate with an IQ under 70, the unofficial threshold for mental retardation.

In Roper, again 30 states had outlawed execution for juveniles. More importantly, only three states—Oklahoma, Texas and Virginia—executed an inmate convicted as a juvenile of murder in the 10 years prior to the Roper decision.

In Graham v. Florida, the 2009 Supreme Court decision that banned life in prison without parole for juveniles who committed non-homicide offenses, there were 37 states that authorized life sentences for non-homicide offenses.

Nationwide, however, only 123 inmates serving life without parole were convicted of non-homicide offenses as juveniles. Nearly two-thirds were in Florida alone; the rest were scattered among 10 other states.
Unlike Atkins and Roper, today a significant majority of jurisdictions provide, at least theoretically, for life in prison without parole for offenders as young as 14-years-of-age.

The number of states is even more than the 37 states with laws on the books providing for life for non-homicide offenses prior to Graham. However, similar to Graham, few offenders in the U.S. are serving life without parole for offenses committed at age 13 or 14.

There are only 79 inmates serving life without the possibility of parole for killings committed at the age of 14 or under.

Prosecutors argue that the low number of persons serving life for offenses committed at such a young age is more reflective of how rare such killings are and not a national consensus against sentencing young offenders to life.

In fact, the amicus brief filed by the National District Attorney Association argues that it is illogical to suggest that there is a national consensus against such sentences. On the contrary, a majority of states have made it easier to sentence juvenile killers to life in prison, and at least three states—Florida, Nebraska and Louisiana—have recently considered, and rejected, efforts to allow parole for juvenile lifers.

The Supreme Court will likely move in the same direction it did in 1988 with juveniles and the death penalty. It will outlaw life without parole for juveniles 14 and under—and leave, for another day, the review of life without parole for all juvenile offenders.

To read more: The Crime Report

Monday, March 19, 2012

CT senator flip-flop-flips on the death penalty

Connecticut's legislature is considering the repeal of capital punishment.  This is the fourth time in seven years the legislature has considered such a measure.  During those seven years there was a highly publicized multiple murder that landed two men on death row.

Senator Edith Prague has been anything but a leader in this process.  She made a different decision each time the topic has come up.

According to the CT Mirror, if you'd asked for her position on the death penalty over the past five years, you may well have gotten a different opinion each year. When her neighbor's granddaughter was murdered she was all for it -- and the girl's killer, Michael Ross, was the last person to be executed in Connecticut in 2005. But in 2009, Prague voted for repeal.

Her explanation? "Well, then James Tillman came along." Tillman, although not on death row, had been exonerated after spending 16 years in prison, reported Mirror.  She has voiced her concern about executing an innocent person.  Death penalty opponents often talk about the execution of an innocent person, they cannot point to a single innocent person execution in the modern era of the death penalty.

Two years later Senator Prague very nearly cast the deciding vote in the Senate before refusing to vote at the last minute. Her explanation that time: A personal plea from Dr. William Petit, the Cheshire murders' lone survivor, told her that repealing the death penalty would make it more difficult for his family's murderers to get the justice he thought they deserved.

"If I thought for a minute that those two horrible monsters would be able to escape the death penalty by voting for repeal at this point, that would be a factor in my decision," Prague told the Mirror, referring to Joshua Komisarjevsky and Stephen Hayes, who were sentenced to death for the Cheshire murders.

We may yet see another flip-flop by Senator Prague. She has indicated that she could not support a repeal if it meant the 11 people on Connecticut's death would not be executed.  Prague has been asked to cast a vote on the death penalty three times, with one pending.  She has cast one vote to repeal, one vote to maintain and refused to cast a deciding vote.  A real profile in courage.

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Sunday, March 18, 2012

'Stand Your Ground' under scrutiny: Murder or self-defense?

An off-shoot of the Castle Doctrine, "Stand Your Ground," is getting a lot of attention in Florida.  Last month, a neighborhood watch organizer in Orlando shot an killed an unarmed 17-year-old boy, saying he felt threatened by the young man.

The young man's uncle sums up the fundamental question regarding the 'stand your ground' law--"What gave him the right to think he was judge, jury and executioner?"

The answer to his question may be simple: the state of Florida, which in 2005 enacted one of the nation's strongest so-called "stand your ground" self-defense laws. According to the statute, a person in Florida is justified in using deadly force against another if he or she "reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony."

Was Trayvon Martin, who was unarmed, posing a threat to the shooter, George Zimmerman's life? We may never know for sure, but in Florida - and a growing number of states - what matters isn't whether or not Martin was actually a threat, only that Zimmerman "reasonably" believed he was.

But what is reasonable? Ekow Yankah, an associate professor of criminal law at Cardozo School of Law in New York, says that to some people, it is reasonable to be suspicious of a young black man walking alone in the dark, reported CBS News.

"We have to decide what counts as 'reasonable' to be afraid of, and nobody should pretend that that isn't socially and culturally loaded," Yankah told CBS.

Gregory O'Meara, an associate professor of law at Marquette University School of Law, agrees.

"These 'stand your ground' laws license pistol-packing urban cowboys and paranoid people," O'Meara told CBS. "We've all been trained to be afraid of black men, and if you're afraid enough that justifies everything."

But Allen County, Indiana prosecutor Karen Richards, who has prosecuted cases involving claims of self-defense, told CBS that the new laws simply "solidify what juries were feeling anyway. If you're in a place where you have a right to be and you have a reasonable belief you need to use deadly force, juries don't think you need to retreat."

According to CBS, legislatures in Iowa, Nebraska and Alaska are considering bills that would similarly expand where, when and how a citizen can kill someone they perceive as trying to harm them. Bucking the trend, on March 5 Minnesota's governor vetoed a bill that would have expanded the places in which a citizen could use deadly force.

In Oklahoma, which passed a "stand your ground" law in 2006, the new language made it easy for law enforcement to clear 19-year-old Sarah McKinley, who shot and killed a man trying to break into her Oklahoma home on New Year's Eve. McKinley was immediately hailed as a hero. The situation was less clear cut when pharmacist Jerome Erlsand shot one of the young men who tried to rob the Oklahoma City drugstore where he worked in 2009. Ersland shot 16-year-old Antwun Parker in the head, chased his accomplice out, then returned and shot Parker five more times as the teen lay on the floor. Ersland pleaded self-defense, but was convicted of first-degree murder and sentenced to life in prison, reported CBS.

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Saturday, March 17, 2012

Michigan has 359 lifers who killed as juveniles

At present, 359 inmates in Michigan are serving life for crimes committed as minors, one out of seven nationally, according to MLive’s updated analysis. Only Pennsylvania has more juveniles serving life. The number was one higher until last month, when a prisoner was resentenced to a parolable term – 33 years after he fled a grocery store robbery. His partner stayed behind and killed the owner.

Six of Michigan’s 359 were 14 at the time of their crime – the same as two inmates whose cases are being considered by the Supreme Court.

The Supreme Court by 5-4 margins has been chipping away at the nation's severest punishments as applied to minors.

In 2005 the Court ruled the death penalty unconsitutional for those who committed their crimes at 17 and younger. In 2010, the Court expanded the ruling to juveniles serving life in non-homicide cases. Citing in part a consensus agianst the death penalty in those situations.

Now the court is reviewing whether juvenile life without parole is unlawful even in homicide cases. But the justices can do more than a simple thumbs-up or thumbs-down, reported MLive.
• The court could limit its ruling to 14-years-olds or younger, though many experts consider that unlikely.

• It could limit its scope to cases where a minor was an accessory, but did not commit the actual killing. About one-third of Michigan’s juvenile lifers fall in that category.

• Or it could direct its focus on those states – including Michigan – with mandatory systems that do not allow age to be considered when juveniles are ordered to life without parole.

That’s what Deborah LaBelle believes the court will do.

“Only 11 states have mandatory life without parole, without any consideration of the effects of youth,” LaBelle, who represents many of the state’s juvenile lifers on behalf of the American Civil Liberties Union of Michigan, told Mlive
“The majority of states have mechanisms to take that into consideration,” said LaBelle, who also is executive director of Second Chances 4 Youth. “Getting rid of everything, I don’t think that is a likely outcome.”

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Friday, March 16, 2012

The Cautionary Instruction: Remembering James Q. Wilson author of ‘Broken Window’ Theory

The Pittsburgh Post-Gazette/Ipso Facto
March 16, 2012

Earlier this month James Q. Wilson died at the age of 80. He was one of the nation’s best known social scientists -- particularly his research and thinking on law and order. His best known work was referred to as the “broken windows” theory.

The “broken windows” theory was written in 1982 with a colleague, George L. Kelling, and published in The Atlantic Monthly. The paper made a name for Wilson when the theory was adopted by New York City Mayor Rudy Giuliani and his Police Commissioner William Bratton.

The broken windows theory is simple. If one window is broken in a building and left unrepaired, soon all the other windows would be broken and crime would take over and violence would become pervasive. The solution? Crime can be controlled if neighborhoods are maintained.

In 1994, when Giuliani took office, violent crime was out of control in New York City. He hired Bratton who had used some of Wilson’s ideas as the chief of the New York City Transit Police. The results were remarkable. Crime rates, particularly homicide, dipped to unprecedented lows. Between 1990 and 2009 homicides were down 82 percent.

Peter H. Schuck, a professor at Yale University and a colleague of Wilson’s, wrote in the New York Times that the broken windows theory was a small part of Wilson’s “extraordinary contribution to sound thinking about government, politics and public policy.

Schuck continued, “In the field of social science, where good theories generating important testable predictions are exceptionally rare, no one else has come close to matching his achievement.” Wilson succeeded in using rigorous academic approaches to educate mass audiences. His ability to deftly translate difficult concepts for application by frontline practitioners like police officers and policymakers put him “in a small pantheon of public intellectuals.”

In the 1990s, policymakers began to aggressively expand the reach of the crimes code, prisons swelled, and more and more juveniles were prosecuted as adults. Wilson began to feel the wrath of some who suggested his support of the now debunked juvenile “super-predator” theory was behind a nationwide push to increase punishment for juvenile offenders.

Then-Princeton Professor John Delulio coined the term “super-predator” for those gun-toting, remorseless young offenders who had a propensity for violence and were putting the nation “at risk of a bloodbath once they became adults unless they were kept behind bars.” In some instances that punishment became extremely severe. Case in point, the roughly 2,600 offenders serving life in prison without the possibility of parole (JLWOP) for killings committed as juveniles.

The JLWOP issue is scheduled for argument before the U.S. Supreme Court on Tuesday. Wilson had sign-off on an amicus brief in favor of outlawing JLWOP. He was not above admitting a mistake and more importantly he had the courage to doing something to correct it. That is admirable, and somewhat rare, conduct by a public person in today’s society.

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Thursday, March 15, 2012

Ohio's private prison plan based on faulty projections

Last fall, Ohio became the first state to sell an existing state prison to a private prison company.  Ohio Governor John Kasich originally proposed the sale of five Ohio prisons – a dramatic expansion of the state’s 10-year-old prison-privatization experiment – as a way to save millions of dollars in the face a deep budget crisis.  The state only sold the one prison.

A study by Policy Matters Ohio has found that Ohio was not accurate with regard to their prison privatization savings projections.

A close look at the sale of the Lake Erie facility to Corrections Corporation of America (CCA) suggests that that deal, rather than saving up to $3 million a year as the state projects, could easily wind up costing taxpayers millions of dollars instead. In addition, the state’s claim that private operation of the combined Marion facility will save another $3 million a year is based on what appear to be highly dubious accounting assumptions that one expert calls “bogus” and that seem to bear little relation to reality.

It has been recently revealed that Ohio's deal with CCA required the state to maintain a 90 percent occupancy rate in the know privately owned prison.

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ABA: Juvenile life without parole unconstitutional

In the combined cases of Miller v. Alabama and Jackson v. Hobbs, before the U.S. Supreme Court, the American Bar Association is urging the court in an amicus brief to rule that it is unconstitutional to give a life sentence without the possibility of parole to juveniles convicted of homicide.

Drawing on its work with the Institute of Judicial Administration in developing juvenile justice standards, the ABA urged the Supreme Court in two previous cases—Graham v. Florida (2010) and Roper v. Simmons (2005)—that life in prison without the possibility of parole is unconstitutional in non-homicide juvenile cases.

The ABA maintains that those arguments also apply in the homicide cases of Miller and Jackson.

"[W]hile this Court limited its holding in Graham to juveniles convicted of non-homicide offenses, every characteristic and difference between children and adults identified in Roper and Graham that supports this Court's conclusion that juveniles are less morally culpable and have a greater capacity for rehabilitation than adults also supports an extension of Graham's holding to all juveniles regardless of whether they were convicted of homicide," the ABA brief states.

The ABA also argues that "neither public safety nor penal objectives would be compromised by allowing the chance for parole" for juveniles. The brief also asks the court to consider the "overwhelming opposition" by international authorities to sentencing juveniles to life without the possibility of parole.

"The ABA is not asserting that all juveniles should be entitled to parole," the brief states, "but only that they should not be denied the opportunity to be considered for parole before they die in prison. The need for such protection for juvenile offenders is made more compelling by the fact that many juveniles sentenced to [life without the possibility of parole] … are tried as adults before trial judges with no discretion to sentence them to anything but life without the possibility of parole. Thus, many trial judges are stripped of any opportunity to consider the backgrounds, developmental differences or other mitigating factors of youth that this Court, the scientific community, and the ABA have recognized."

The brief is available online here. Oral arguments are scheduled for Tuesday.

Wednesday, March 14, 2012

Death Row Inmates Demand to be Executed

Three stories in the news today, from three different parts of the country tell the same story:  Death row inmates want to be executed.  In South Dakota, Delaware and Oregon inmates known as "volunteers" are waiving their right to appeal or are seeking the court's intervention to carry-out their own executions.

A man sentenced to death for killing a South Dakota prison guard does not want the state Supreme Court to delay his execution, the man's attorney said in a brief obtained recently by The Associated Press.

Eric Robert pleaded guilty to killing prison guard Ronald Johnson during a failed escape attempt last April and asked to executed. A judge sentenced him to death last fall and scheduled his lethal injection for May.

But the South Dakota Supreme Court vacated the execution last month to allow more time for a mandatory review to determine if the sentence is proper, a process that could delay the execution for possibly two years.

A Delaware death row inmate who has waived his right to all further appeals of his conviction and death sentence has been sentenced to die by lethal injection, reported WPVI-TV in Philadelphia.

A Superior Court judge set an April 20 execution date for Shannon Johnson during a brief hearing Wednesday. Johnson waived his right to a requirement that the execution be held no sooner than 90 days from the sentencing date.

Johnson was sentenced to death for the 2006 murder of a man whom he found sitting in a car with Johnson's former girlfriend. He later shot the former girlfriend, but she survived.

After the state Supreme Court upheld his conviction and death sentence, Johnson said he did not want to pursue any further appeals.

Oregon death row inmate Gary Haugen thwarted in his bid to be put to death, is challenging the execution reprieve that Gov. John Kitzhaber issued in November, reported the Statesman Journal.

The 49-year-old, twice-convicted killer is pursuing a new execution date. Haugen’s attorney has mailed a motion to the Marion County Circuit Court asking for a new death warrant.

In a letter to Kitzhaber released this week, Portland attorney Harrison Latto asserts that the governor exceeded his constitutional authority in issuing Haugen a temporary reprieve. He said Haugen feels trapped in “legal limbo” and subjected to “cruel and unusual punishment.”

Tuesday, March 13, 2012

James Q. Wilson author of Broken Windows Theory dies

James Q. Wilson died last week at the age of 80.  According to the New York Times he was unquestionably the pre-eminent political scientist of the last 50 years. He was best known the now famous crime eradication theory “broken windows."

The broken windows theory was first introduced by social scientists Wilson and George L. Kelling in an article titled "Broken Windows" and which appeared in the March 1982 edition of The Atlantic Monthly. According to Wikipedia, the article title comes from the following example:
Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it's unoccupied, perhaps become squatters or light fires inside. Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of trash from take-out restaurants there or breaking into cars.
The broken window theory makes a simple straight forward claim: prevent petty crime and low-level anti-social behavior, and the result will be that major crime will be prevented.

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Monday, March 12, 2012

Next Week SCOTUS hears Juvenile Life Without Parole

Next week the U.S. Supreme Court will hear arguments in two cases involving men sentenced to life in prison without the possibility of parole for separate killings committed when they were 14-years-old.

The cases are Jackson v. Hobbs, No. 10-9647 and Miller v. Alabama, No. 10-9646.  Kuntrell Jackson is an Arkansas man who was 14 when he an two older co-defendants tried to rob a video store in 1999.  Jackson's co-defendant shot and killed the store clerk.  Evan Miller is an Alabama prisoner who was 14 in 2003 when he and an older youth beat and killed a 53-year-old neighbor after an evening of drinking and smoking marijuana. 

The argument is scheduled for March 20.

To read more:

Sunday, March 11, 2012

Minnesota Governor Rejects Expansion of Castle Doctrine

Minnesota Gov. Mark Dayton vetoed a revised version of the Castle Doctrine that would have expanded the cases in which people could use deadly force, reported The Associated Press.

In his veto letter, Dayton cited opposition to the bill from police groups who said it could legalize murder in some cases. "When they strongly oppose a measure, because they believe it will increase the dangers to them in the performance of their duties, I cannot support it," Dayton wrote.

Minnesota's Castle Doctrine allowed the use deadly force in defending a home or dwelling. The new bill would have expanded the definition of dwelling to include a hotel room, tent, car or boat.

The legislation also would have created a presumption that a person who uses deadly force did so believing they were in danger of harm or death. Current law says deadly force may be used if it is what a reasonable person would do, and if there is no way to safely retreat. The bill would have removed the obligation to retreat, reported The Associated Press.

Dayton said state law already allows law-abiding citizens to use deadly force to defend themselves or others — either inside or outside of their homes — as long as the use of deadly force constitutes "reasonable force."

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Saturday, March 10, 2012

Ohio's deal with private prison promises 90% occupancy

As states struggle to reduce prison overcrowding and tight budgets, a private prison management company, Corrections Corporation of America, is offering to buy prisons in exchange for a controversial guarantee that the governments maintain a 90% occupancy rate for at least 20 years, reported the USA Today.

Last fall CCA purchased the 1,798-bed Lake Erie Correctional Institution from the state of Ohio for $72.7 million. Ohio officials lauded the September transaction, saying that private management of the facility would save a projected $3 million annually.  Ohio is the first state to sell an existing prison to a private corporation.

Linda Janes, chief of staff for the Ohio Department of Rehabilitation and Correction, said the purchase came at time when the state was facing a $8 billion shortfall. The $72.7 million prison purchase was aimed at helping to fill a $188 million deficit within the corrections agency, reported the USA Today.

Ohio's deal requires the state to maintain a 90% occupancy rate, but Janes said that provision remains in effect for 18 months — not 20 years — before it can be renegotiated. As part of the deal, Ohio pays the company a monthly fee, totaling $3.8 million per year.

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Friday, March 9, 2012

The Cautionary Instruction: Texting is out--phone calls, GPS, cheeseburgers and makeup still okay

The Pittsburgh Post-Gazette/Ipso Facto
March 9, 2012

The law forbidding texting while driving went into effect yesterday. The texting-ban is now a primary offense—meaning police can pull people over for texting alone, absent any other driving offense.

It includes a $50 fine for a text-based communication, including sending or reading emails. It also forbids surfing the Web. A vehicle must be in motion for the driver to be fined, and talking on the phone while driving is still legal in Pennsylvania.

In Pennsylvania in 2010, there were 1,324 traffic fatalities. According to the 2010 Pennsylvania Crash Facts & Statistics compiled by the Department of Transportation, 52 deaths were attributed to distracted driving and only a portion of those related to cell phone use. For instance, in 2008 there were 53 deaths attributed to distracted driving, only six of those deaths, about 11 percent, were the result of cell phone use.

The State Police have said troopers will pull over motorists who might be driving slower than surrounding traffic or bobbing and weaving. The challenge for troopers enforcing a text-messaging ban will be discerning from a distance what drivers are actually doing with their phones. “Are we going to be able to prove beyond a reasonable doubt that somebody was texting? Probably not,” Allentown police Capt. Daryl Hendricks said. That is problematic. Beyond a reasonable doubt is precisely the burden of proof required to get a conviction for texting while driving.

Rob Dietz of, a nonprofit group in Maine, noted that if texting is off-limits but handheld devices are not, a driver may not be texting, but may doing any number of things with a handheld device which are perfectly legal.

Beside the legal use of handheld devices for things other than texting, there are many other causes of distracted driving. The U.S. Department of Transportation has a web site The site lists causes of distracted driving, in addition to cell phone use and texting. Included on the list are eating and drinking, putting on makeup, talking to passengers, reading, using navigation systems, changing the radio stations, CDs, mp3s and iPods. Where is the call for a Big Mac ban or a Maybelline ban?

Texting is only the most recent and trendy cause of distracted driving. This is not to suggest that texting is not a serious problem. A University of Utah study found that cell phone use slows reaction time to about the same as someone driving with a .08 blood-alcohol limit or legally drunk.

So why all the attention to texting while driving? Ninety percent of Americans think texting while driving should be outlawed, compared with just eight percent who think it’s alright. Polling numbers like that always get the attention of legislators. Maybe that explains why 36 states have enacted some sort of texting ban.

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Thursday, March 8, 2012

Texas man denies killings before his execution

The 7th Execution of 2012

A Texas man, Keith Thurmond, who killed his estranged wife and her new boyfriend denied killing them, moments before he was put to death by lethal injection.

Strapped to the gurney inside the death chamber, Thurmond declared, "I didn't kill my wife. ... I swear to God I didn't kill her," reported The Associated Press.

His execution for the 2001 slayings near Houston came about an hour after the U.S. Supreme Court rejected arguments to halt the capital punishment, the third this year in Texas. The 52-year-old Thurmond was pronounced dead at 6:22 p.m. -- 11 minutes after lethal drugs began flowing into his arms.

Thurmond's attorneys argued that lawyers representing him in earlier appeals were "grossly deficient" and that his execution should have been postponed until justices decide on a similar case in Arizona.

With his death nearing Wednesday, Thurmond blamed the shooting deaths on another man before telling prison officials, "Go ahead and finish it off," reported AP.
As the drugs began flowing, he said, "You can taste it." He wheezed and snored before losing consciousness.

According to AP, the killings occurred after sheriff's deputies showed up at Thurmond's mobile home on Sept. 25, 2001, with a court order removing his 8-year-old son and putting the boy in the care of his mother.

Thurmond became irate and stormed down the road to the mobile home where his 32-year-old wife, Sharon, was living with her new boyfriend, Guy Fernandes, 35, near Magnolia in Montgomery County, about 35 miles north of Houston.

He is the third person executed in Texas in 2012.

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Wednesday, March 7, 2012

Jeffrey Dahmer Remembered with a tour in Milwaukee

Sometime truth is stranger than fiction. This story falls into that category. Jeffrey Dahmer,  one of America's most notorious serial killers, is the focus of a tour in his hometown.
Dahmer was arrested in 1991, he was convicted of 17 murders the following year. He killed men and boys in Milwaukee between 1978 and 1991.  His murders involved rape, dismemberment, necrophilia and cannibalism.  Dahmer was murdered in prison in 1994. 

A company has organized a tour of Dahmer's old haunts in Milwaukee the scene of his brutality, according to the Milwaukee Journal-Sentinel.  Billed as a 90-minute tour, many of the stops were empty lots along S. 2nd St. Dahmer's old neighborhood.

Much of the "history" centered on Dahmer's life and the lives he took, from the tortured animals to the dismembered human bodies. Only six people paid the fee for the inaugural tour. 

The tour guide, Nicholas Vollman told the group, "We're here today to learn from history," reported the Journal-Sentinel.  "Unfortunately we can't bury our head in the sand." Early on Vollman explained where the tour would draw the line as far as taste:  "we're not going to discuss the cannibalism aspect of Jeffrey Dahmer's crimes."

One of the customers told the Journal-Sentinel, " It's history, people go to Aushwitz, right?"

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Tuesday, March 6, 2012

Supreme Court Victory Doesn't Stop Re-Trial

In January, the U.S. Supreme Court decide United States v. Jones.  The court ruled that law enforcement's warrantless installation and use of a GPS device to track a suspect's vehicle violated privacy rights protected by the Fourth Amendment. Although, Antoine Jones won before the high court is case is not over.

"It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information," wrote Justice Antonin Scalia, reported "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

The landmark decision was a significant defeat for the government in the divided 5-4 decision.
The Jones case began in 2004. At that time, a federal and local law enforcement task force began investigating the defendant, a nightclub owner and operator, for alleged cocaine trafficking.

According to Law.Com, the task force also covertly installed a GPS tracking device on Mr. Jones' Jeep Grand Cherokee. Originally, the task force obtained a warrant to install the device, but installed the device one day after the expiration of the warrant. Using information obtained from the device, the task force was able to locate the defendant and obtain surveillance photos and videos at a suspected stash house in Maryland.

Just when Jones thought he won, the DOJ said not so fast. An assistant U.S. attorney, John Geise, told a federal judge that the government is preparing to retry Jones for his alleged role in a cocaine trafficking conspiracy. An appeals court in 2010 erased Jones’ conviction and tossed his life sentence, reported the Legal Times.

The government, Geise said, is trying to track down witnesses for the trial, which he expected to be scheduled sometime later this year, perhaps as early as this summer. Geise said prosecutors could decide to rely on earlier testimony from those witnesses.

Geise said prosecutors are examining evidence not related to the GPS data investigators obtained from the illegal device.

A new trial for Jones will be his third. The first jury acquitted him on most charges. Prosecutors later retried him only on the conspiracy count. A jury in 2008 convicted him on that charge, which carried a mandatory life sentence, reported the Legal Times.

Monday, March 5, 2012

Weakening of Federal Sentence Guidelines has Impact

The federal judicial system was plagued by a wild disparity in sentencing across federal circuits during the early 1980s.  In response, Congress tried to create more uniform outcomes with the Sentencing Reform Act of 1984. The law set up a commission that wrote guidelines for judges to follow as they punished convicts, with similar sentences for offenders with comparable criminal histories convicted of the same crimes, reported the Memphis Commercial-Appeal.

In 2005, the U.S. Supreme Court struck down the sentencing guidelines. Judges still must calculate the guidelines, with numerical values given for factors such as the seriousness of the offense and the defendant’s criminal record. But the judges are not bound by the result. They have complete discretion on how much time each defendant convicted at trial in their courtroom should receive — or if they should be imprisoned at all — subject to appellate review, according to the Commercial-Appeal.

Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial, despite any impressions that Republicans or Democrats may be tougher or softer on crime.

According to the Commercial-Appeal, the analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them.

For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones, reported the Commercial-Appeal.

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