Monday, April 30, 2012

Part I: The Crime Report examines guns and crime

Ted Gest of The Crime Report recently wrote about the ambitious plans of the new Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School.  The institute is assessing the state of knowledge on crime and justice in the U.S. from 1975, projecting to 2025.

Last week, the institute, with support from the Robina Foundation and National Institute of Justice, assembled eight leading scholars to discuss key issues in the field: guns-Philip Cook; policing-Lawrence Sherman; rehabilitation-Frances Cullen; sentencing-Michael Tonry; race and crime-Jeffrey Fagan; deterrence-Daniel Nagin; drug policy-Peter Reuter; youth violence-Franklin E. Zimering. 

Starting today, and over the next several weeks, we will take a look at the work of all eight experts as reported by Gest for The Crime Report. Gest is President of Criminal Justice Journalists and Washington-based contributing editor of The Crime Report.

Philip Cook, Duke University

Cook separated knowledge on guns into four subjects: weapon type, how big the gun violence problem is, access to firearms, and whether widespread gun ownership deters crime.

On the first issue, the wide availability of guns in the U.S. "intensifies criminal violence," he said.
In a variation on a well-known slogan, Cook said, "Guns don't kill people--they just make it real easy."

On the extent of the problem, Cook noted that the annual gun-death toll in the U.S. approximates the number of motor-vehicle deaths, when suicides are included. Guns are the leading cause of death for young black males.

The social cost "goes well beyond the immediate victims," he said, noting that in places with high rates of gun violence, it can terrorize communities, reduce property values, and be a drag on economic development. Wide availability of guns can contribute to a rise in murder rates but not robberies and assaults.

Firearms may not be so easily available to criminals as is widely believed, he said, citing research showing a 'very high transaction cost." Law enforcement and the courts, not new government regulations, offer the best hope for reducing gun violence, in Cook's view.

To read more:

Sunday, April 29, 2012

Milestone: marks 1,000 post

Yesterday's post, 'Texas executes man for 'execution' style killing' was my 1,000th post at  The first was an op-ed I wrote for the Cleveland Plain-Dealer on November 9, 2009.  Between the those two posts I have included 57 blogs, The Cautionary Instruction, for the Pittsburgh Post-Gazette legal page Ipso Facto.  I posted 28 articles I've written for the Pennsylvania Law Weekly and 27 columns written for the Youngstown Vindicator.

I have written on the death penalty, chronicling every execution in 2010, 2011 and 2012.  I've offered the occasional book review and have written extensively on crime, prison overcrowding, sex offender legislation, evidence-based practices, police procedures, the U.S. Supreme Court, the Castle Doctrine, the Constitution and much, much more. 

My posts have often utilized the news of the day to point out certain oddities, absurdities and inconsistencies in the criminal justice system.  I have also used this site to provide some insight into the workings or failings of the system.

Thanks for reading a former prosecutor's musings on crime and punishment in America!

Saturday, April 28, 2012

Texas executes man for 'execution' style killing

The 17th Execution of 2012

Beunka Adams was executed by the state of Texas on April 26, 2012.  Adams said he was a stupid kid in a man's body at the time of the murder, which started at a convenience store southeast of Dallas and ended in a remote area several miles away.

"Everything that happened that night was wrong," Adams said as he stared at the death chamber ceiling, never looking at the people who gathered to watch his final moments. "If I could take it back, I would. ... I messed up and can't take that back," reported The Associated Press.

His death was carried out less than three hours after the U.S. Supreme Court rejected a last-day appeal to postpone the execution, the fifth this year in Texas.

Adams expressed love to his family Thursday and asked those witnessing his execution to avoid letting any hate they had for him consume them.  "I really hate things turned out the way they did," he said according to the AP. "For everybody involved, I don't think any good came out of it."

He took about a dozen breaths, then started to wheeze and snore. Eventually, he became still. He was pronounced dead at 6:25 p.m. CDT, nine minutes after the lethal drugs began to flow into his body, reported the AP.

Adams and another man were sent to death row for the slaying of Kenneth Vandever, 37, who was in a convenience store on Sept. 2, 2002, in Rusk, about 115 miles southeast of Dallas, when two men wearing masks walked in. The men announced a holdup; one of them was carrying a shotgun.

After robbing the store, Adams and Richard Cobb, both from East Texas, drove off with the two female clerks and Vandever in a car belonging to one of the women.

Testimony at Adams' trial, reported the AP, showed he gave the orders during the holdup and initiated the abductions. They drove to a remote area about 10 miles away in Cherokee County, where Adams ordered Vandever and one woman to get inside the car trunk and then raped the other woman. Testimony also showed he forced all three to kneel as they were shot.

Vandever was fatally wounded. The women were kicked and shot again before Cobb and Adams, believing they were dead, fled. Both women were alive, however, and one was able to run to a house to summon help.

He asked for forgiveness and I forgive him, but he had to pay the consequences," said one of the women, Nikki Ansley, referring to Adams after witnessing his execution. She survived being raped and shot but continues to suffer painful injuries from the gun blast.

The AP usually does not identify victims of rape, but Ansley has publicly acknowledged it and agreed to be interviewed.

Donald Vandever, the father of the slain man, told the AP that Adams' execution "doesn't really change anything." "As far as I'm concerned, it was way too easy on him," he said.

To read more:

AZ man executed: "I regret nothing"

The 16th Execution of 2012

Thomas Arnold Kemp was executed by the state of Arizona at the state prison in Florence on April 25, 2012 for killing a Tucson college student after robbing him of $200 in1992.

As Kemp lay strapped to a table in the death chamber, he was asked if he had any final words. According to The Associated Press he responded that he did, then said simply: "I regret nothing."

He nodded and smiled at his attorney, then looked at the ceiling and calmly waited. As the execution began, Kemp's eyes closed and his body visibly shook for several seconds before he went quiet and appeared to fall asleep with a few deep breaths.

According to the AP, many death-row inmates in Arizona use their last words to apologize to their victims' family members, and some cry. Others have used their last words to cheer on their favorite sports teams, including Robert Charles Comer, who said at his May 2007 execution: "Go Raiders."

Kemp was sentenced to death for kidnapping Hector Soto Juarez from outside Juarez's Tucson home on July 11, 1992, and robbing him before taking him into the desert near Marana, forcing him to undress and shooting him twice in the head.

Juarez, 25, had just left his apartment and fiancée to get food when Kemp and Jeffery Logan spotted him. They held him at gunpoint and used his debit card to withdraw $200 before driving him to the Silverbell Mine area, where Kemp killed Juarez.

The two men then went to Flagstaff, where they kidnapped a married couple traveling from California to Kansas and made them drive to Durango, Colo., where Kemp raped the man in a hotel room. Later, Kemp and Logan forced the couple to drive to Denver, where the couple escaped. Logan soon after separated from Kemp and called police about Juarez's murder.

Logan led police to Juarez's body, and Kemp was arrested. Logan was later sentenced to life in prison.

Kemp had argued his conviction was unfair because then-prosecutor Kenneth Peasley repeatedly told jurors that Kemp's homosexuality was behind Juarez's kidnapping and murder, and that the jury hadn't been properly vetted for their feelings about gay men.

None of Juarez's family members were at the execution, and prison officials said Kemp didn't have any family members of his own there, either.

Kemp's lack of regret Wednesday mirrors remarks he gave at his sentencing in 1992 when he was given the chance to argue that he should be spared from the death penalty. Instead, Kemp said he had no regrets outside of not killing Logan when he had the chance.

"I don't show any mercy, and I am certainly not here to plead for mercy," he said at the sentencing according to the AP.

"The so-called victim was not an American citizen and, therefore, was beneath my contempt," Kemp said and then referred to Juarez using a racial slur. "If more of them ended up dead, the rest of them would soon learn to stay in Mexico where they belong."

In a rare move, Kemp also declined to seek mercy from Arizona's clemency board, often an inmate's last chance to argue why they don't deserve to be killed.

In a letter written March 29, Kemp said such a hearing "provides public humiliation of the prisoner without any chance that the board might actually recommend a commutation."

The letter was provided to the AP through Kemp's Tucson attorney, Tim Gabrielsen.

"In light of the board's history of consistently denying requests for commutations, my impression is that a hearing in my case would be nothing short of a dog and pony show," Kemp wrote according to the AP.

Kemp was the third Arizona inmate to be executed using one drug, pentobarbital. Before that, the state used a three-drug method. It made the change because its supply of one of the drugs had expired.

Kemp was allowed to choose a last meal the night before his execution. He ate a bacon cheeseburger, French fries, a slice of boysenberry pie, strawberry ice cream and a root beer.

To read more:

Friday, April 27, 2012

The Cautionary Instruction: Bias seeps into fingerprint analysis

The Pittsburgh Post-Gazette/Ipso Facto
April 27, 2012

Last fall, I wrote a series of blogs on the Report of the Advisory Committee on Wrongful Convictions issued by the Pennsylvania Joint State Government Commission. One portion of the report suggested that cognitive bias in a suspect line-up or photo array could be reduced by implementing some simple procedures.

There is an abundance of research that suggests eyewitness identification can be influenced by things that are said or done during the identification process. Most eyewitnesses are untrained civilians who may be for the first time encountering the criminal justice system.

However, we are learning that even highly trained professionals can be influenced by what they know about a case prior to their analysis of evidence.

Fingerprint analysis had been considered the gold standard of evidence. Until recently the FBI described fingerprint identification as 100 percent infallible, that is no longer the case. “There’s going to be, I think, variability anytime there’s a human involved in the process,” FBI expert Melissa Gische told PBS’s Frontline.

What do we know about fingerprints? Impressions of fingerprints are left behind on various surfaces by the natural secretions of sweat. The friction ridges, the raised portion of the epidermis on fingers consisting of one or more connected ridges, are often the point of comparison.

First, an intentional recording of the fingerprint is made with black ink on a white card or recorded digitally. These are often collected after arrest and kept in a database. At a crime scene a “latent print,” the chance recording of a fingerprint deposited on a surface, is captured through chemical methods and brought into a lab for expert analysis.

Fingerprint identification came under scrutiny in 2004. The FBI publicly acknowledged the fingerprint misidentification of an Oregon lawyer wrongfully implicated in a terrorist bombing in Madrid.

Since then, the Department of Justice has begun research to set standards for the analysis of fingerprints. As part of that process, the FBI has implemented “blind verification” of analysis by agents unfamiliar with initial examinations.

Through a study conducted in 2004, cognitive neuro-scientist Itiel Dror found that otherwise competent and well-meaning experts were swayed by what they knew about a case submitted for analysis. Dror’s study demonstrated that if an analyst new that the suspect confessed or was arrested, the analyst’s findings could be influenced. Cognitive bias seeped into the process even with the best trained experts. 

The solution may be similar to those suggested for eyewitness identification. Bias can be muted by “blind” line-ups or arrays, where the police officer administering the line-up does not know the suspect. For forensic evidence, a blind analysis where the analyst knows nothing about the case, a step further than the FBI’s blind verification, may equally reduce bias.

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Thursday, April 26, 2012

Maryland court says no to DNA collection

Maryland's highest court blocked police in most cases from collecting DNA samples when they arrest suspects in violent crimes and burglaries.  The collection of DNA in Maryland is similar to what is done in nearly every state with regard to fingerprints.

The Court of Appeals ruled 5-2 that the state violated Alonzo Jay King Jr.'s constitutional rights by using DNA evidence taken from him after a 2009 assault arrest, reported the Baltimore Sun. That sample led to his conviction in a six-year-old rape case, but the court said it violated King's Fourth Amendment right against unreasonable searches without a warrant. The judges ordered that King's rape case be sent back to Wicomico County Circuit Court for a new trial.

Governor Martin O'Malley, a Democrat, told the Sun he was saddened by the court's decision, noting that it came during Victims' Rights Month. The governor said the law was one of the state's most valuable crime-fighting tools and that he has not ruled out an appeal to the Supreme Court.

"The concept is simple: When we increase the library of DNA samples in our state, we solve more crimes," O'Malley said in a statement, reported by the Sun. "We take more criminals off the streets more quickly and put them in jail for a longer period of time so that they cannot murder, rape or harm other citizens among us."

The state has collected nearly 16,000 DNA samples since the law took effect in January 2009 and used that evidence to gain 58 convictions, including in 34 burglaries and eight rapes. The court did not address whether the state could retain the samples on file.

To read more:

Wednesday, April 25, 2012

California looks to reduce prison population

Yesterday, I wrote about California's effort to have voters decide the fate of the state's death penalty.  Today, the the focus is on cutting California's prison population, the nation's largest.

According to the Los Angeles Times, the California prison system unveiled an ambitious plan to cut spending by billions of dollars, close a prison and return inmates being housed out of state.  This will be done while meeting court-ordered benchmarks on medical care and overcrowding.

In three years, the California Department of Corrections and Rehabilitation is expected to be 7.5% of the state's total budget, down from an estimated 9.4% in the upcoming fiscal year. This is largely because of realignment, the process of sending low-level offenders to local jails instead of state prisons to comply with a court order to reduce chronic overcrowding.

"California is finally getting its prison costs under control and taking the necessary steps to meet federal court mandates," Gov. Jerry Brown said in a statement, reported the Times.

A portion of the plan will require consent from the Legislature, another will require court approval. The U.S. Supreme Court ordered California to reduce its inmate population to 137.5% of prison capacity, the state expects to fall slightly short, at 141% -- a difference of up to 6,000 inmates -- by the June 2013 deadline, reported the Times.

The death penalty effort and the prison reduction effort are both being driven by budgetary constrains not necessarily evidenced based practices.  This does not appear to be about what works but rather what 'might' save money.

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Tuesday, April 24, 2012

Californians to vote on death penalty

California voters will decide this fall whether capital punishment should be abolished and replaced with life in prison without possibility of parole.

If passed, the ballot question would make California the 18th state in the nation without a death penalty. During the last five years, four states, New Mexico, New York, New Jersey and Illinois, have replaced the death penalty and Connecticut is waiting on the governor to sign-off on legislation eliminating the death penalty.

According to the Los Angeles Times, growing numbers of conservatives in California have joined the effort to repeal the state's capital punishment law, expressing frustration with its price tag and the rarity of executions. California has executed 13 inmates in 23 years, and prisoners are far more likely to die of old age on death row than by lethal injection.

November's ballot question has the potential to commute the sentences of more than 700 people on death row, the largest death row in America, to life without possibility of parole, a term that would then become the state's most severe form of criminal punishment.

To read more:,0,4305928.story

Monday, April 23, 2012

Lawmakers look to undo 'stand your ground'

Georgia Representative Rashad Taylor raced to undo his state’s version of a self- defense law soon after Trayvon Martin was murdered in Florida.

According to Business Week, the odds are against his success, Taylor said -- even after nationwide public protests over the Martin case and laws adopted in about half the states that expand the justifiable use of lethal force for self defense. Taylor, 31, faces multiple obstacles: He’s a Democrat in a Republican-controlled Legislature that has favored gun rights.

“It’s definitely going to be an uphill battle,” Taylor, elected in 2008 to the state’s House of Representatives, told Business Week. “People feel their right to bear arms is being threatened.”

In the wake of criminal charges in the Martin case, Governor Rick Scott of Florida, a Republican, ordered a panel to review the state’s Stand Your Ground law.

Gun-control advocates have tried without success to persuade lawmakers to pass more restrictive laws after previous shootings, including a 2007 massacre at Virginia Tech that killed 32 and the attempted assassination of U.S. Representative Gabrielle Giffords of Arizona last year.

“It’s hard to get hopeful for reform, given the inability of gun-control advocates to get laws adopted,” Adam Winkler, a University of California, Los Angeles law professor who wrote a book on the subject, told Business Week. “Lawmakers are practically falling over each other to pass new, less restrictive gun laws.”

Florida lawmakers in 2005 passed a Stand Your Ground law that empowers residents to “meet force with force.” Other states followed.

South Carolina Representative Bakari Sellers, a Democrat who authored a measure that would repeal his state’s law, said he “wouldn’t put any real money” on his chances of its getting approved.

New York Mayor Michael Bloomberg, a long-time advocate of gun control, this month in Washington called for Stand Your Ground laws to be repealed, saying they’re a “license to murder.” The mayor is founder and majority owner of Bloomberg News parent Bloomberg LP.

In Wisconsin, Democratic Representative Tamara Grigsby said efforts to scuttle the state’s Stand Your Ground will hinge on whether Governor Scott Walker and his fellow Republicans hold power after June recall elections. "We’re holding out hope those numbers will change,” she told Business Week. “As long as Republicans run the show, they are going to get even more radical.”

Louisiana Representative Roy Burrell, a Democrat, proposed legislation to forbid the use of deadly force against someone who is running away. It would be impossible to repeal the state’s Stand Your Ground law because Republicans control the Legislature, he said.

“Politically, I don’t think I can get that passed,” he told Business Week. “Sometimes, you can’t eat the elephant all at once. You’ve got to eat it piece by piece.”

In Georgia, where the Legislature has adjourned until January, five Democrats joined with Taylor to back the measure seeking to strike that state’s law.

To read more:

Sunday, April 22, 2012

Connecticut on pace to close third prison

After closing two prisons in 2011, Connecticut's Governor Dannel P. Malloy is on pace to close a third in the coming fiscal year, running ahead of projections in his ongoing effort to downsize Connecticut's inmate population, according to the Connecticut Mirror.

The risk-reduction credits, a new home confinement program, a major policy change involving juveniles and a wide array of re-entry services helped the system reach another population benchmark this month.

The administration's Criminal Justice Policy Planning Division reported an average inmate population of 16,973 during the first week in April, under the 17,000-inmate barrier for the first time since 1999.
Connecticut's inmate population already had reached its lowest mark in 13 years in January. But administration projections didn't call for the prisoner population to fall below 17,000 until January 2013, reported the Mirror.

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Saturday, April 21, 2012

Fingerprint analysis under scrutiny

Fingerprint evidence is a staple of the American criminal justice system. The analysis of fingerprints evidence is being questioned. While fingerprint analysis is one of the most valuable and frequently applied investigative tools, its accuracy has not been scientifically defined, according to the Washington Post.

FBI examiners claimed until recently that they can match fingerprints to the exclusion of any other person in the world with 100 percent certainty using a method with an error rate essentially of zero. The academy report found that assertion was “not scientifically plausible” and had chilled research into error rates.

In 1999, a Justice Department official, Richard Rau, told a federal court that the department delayed such a study because of the legal ramifications. As recently as last year, Pennsylvania State University researcher Cedric Neumann was denied a department grant to determine potential fingerprint error rates using closed cases, repored the Post.

A person familiar with the episode blamed a polarized climate in the adversarial legal system, saying, “Few agencies in the forensic-science community want to be the first ones associated with an error rate.” The person spoke on the condition of anonymity to discuss sensitive federal research funding decisions.

Meanwhile, errors occur. In 2004, DNA for the first time exonerated a person convicted with a fingerprint match and, separately, the FBI made its first publicly acknowledged fingerprint misidentification. Brandon Mayfield, a Portland, Ore., lawyer, mistakenly was arrested in connection with the terrorist train bombings in Madrid that killed 191 people. The FBI apologized.

Since then, the Justice Department has begun research to try to quantify how complete a fingerprint must be to properly declare a match; how different conditions may affect the reliability of examinations; whether computers can do such work; and how to present forensic testimony about probabilities to judges and juries. The FBI has also required “blind verification” of results by agents unfamiliar with initial examinations, reported the Post.

The bureau said that skilled analysts are extraordinarily accurate, at least when they know they are being tested. An FBI study with Noblis Corp. last year found that when 169 examiners compared thousands of fingerprints and decided there was enough information to declare a match or not, they were correct 99.8 percent of the time.

Still, the Mayfield case highlighted the need for research into real-world conditions. A 2006 study by a London-based scientist, Itiel E. Dror, asked experts to analyze fingerprints that, unbeknownst to them, they had analyzed earlier in their careers. This time, however, examiners were given biasing statements, such as that a suspect had confessed or that a suspect was locked up at the time of the offense. In 16.6 percent of cases, examiners reversed earlier judgments, reported the Post.

To read more:

Friday, April 20, 2012

Delaware executes another 'volunteer'

The 15th Execution of 2012

Shannon M. Johnson volunteered to be executed. Delaware law mandates executions occur by lethal injection between 12:01 a.m. and 3 a.m. Johnson was pronounced dead at 2:55 a.m. , according to the USA Today.

Ever since Johnson was found guilty in 2008 of the murder of Cameron Hamlin, he has told any attorney, court or jury that would listen to hurry up and put him to death. Even though Johnson wanted to die his sister, Lakeisha Truitt, had led an effort to spare his life with the aid of the Federal Defenders office.

After gaining a stay for the second time in three days from a U.S. District Court judge late Thursday, it appeared Johnson might be spared.

But an appeals court judge's decision to allow the execution and the 2:15 a.m. decision by the full 3rd District U.S. Circuit Court of Appeals to not hear Johnson's case ended the legal challenges, reported the USA Today.

No one from Johnson's family was at the execution, according to Department of Correction officials, or spoke at the briefing at Vaughn Correctional Center near Smryna.

In the death chamber, Johnson did not appear to look at the witnesses after the curtains were opened. Johnson could be seen strapped to a table with his arms outstretched.He never raised his head to look around, though he could be seen blinking and licking his lips. He stared straight up at the ceiling, reported the USA Today.

When Warden Perry Phelps told him it was time for his last words, he spoke briefly in a low voice that none of the media witnesses was able to hear. "Loyalty is important. Without loyalty you have nothing. Death before dishonor," said Johnson, according to the Department of Correction.

A few moments after he stopped speaking his chest began to heave for a few seconds, then slowed and stopped. He did not appear to move again after that point.

According to the USA Today, Hamlin was an aspiring musician who had begun dating Johnson's ex-girlfriend, mother of a child by Johnson, in September 2006. On the evening of Sept. 24, 2006, Johnson shot and killed Hamlin as he sat in a car with the woman, who was able to escape. He then stalked the woman and on Nov. 10, 2006, he assaulted her and fired a gun at her. Prosecutors said the only reason he stopped the assault and fled is because his gun jammed.

To read more:

The Cautionary Instruction: DAs argue no expectation of privacy for criminal conduct

The Pittsburgh Post-Gazette/Ipso Facto
April 20, 2012

Pennsylvania’s Wiretapping and Electronic Surveillance Control Act  has not been updated since 1998. Since that time, there have been sweeping technological advances that have, at times, thwarted the efforts of law enforcement. The Pennsylvania District Attorneys Association wants to do something to level the playing field.

"To do nothing is not an option," said Risa Vetri Ferman, Montgomery County district attorney and member of the Pennsylvania District Attorneys Association. "Right now, we are woefully behind the times."

One technological issue that consistently comes up during drug and organized crime investigations is the use of prepaid or throw-away cell phones. Under the current version of the Wiretap Act, law enforcement is required to apply for separate court approval for each device to be intercepted. If a target has eight cell phones then the police need eight court orders.

Prosecutors want target-specific wiretaps to circumvent efforts to defeat surveillance by suspects discarding and obtaining throw-away cell phones. Prosecutors are also interested in using cell phone towers to locate suspects and the ability to intercept email, text and voicemail from devices legally obtained by the police.
The most interesting Wiretap Act amendment proposed has nothing to do with modern technology. Prosecutors are seeking the ability to use audio recordings made by civilians, including crime victims, during both investigations and at trial.

Audio recordings of crimes, as they are committed, represent powerful evidence of guilt or innocence, particularly in cases where victims of rape, as well as witnesses to murder and child abuse, have recorded evidence of such violent crimes.

Pennsylvania’s Wiretap Act provides strong privacy protections. A fundamental provision of the Act is called “two-party consent,” which requires all parties in a private conversation or setting to consent to being recorded. Recording a private conversation without consent of all parties is a crime.

During her recent testimony before the Senate Judiciary Committee, District Attorney Ferman cited a Montgomery County case in which a 16-year-old girl, repeatedly raped by her father since she was eight, recorded one of the assaults so that people would believe her.

A judge barred the use of the recording, explaining that it violated the Wiretap Act because the individual who was taped had not given his permission and because the recording was not obtained through a court order.

According to Ferman, not only was the recording inadmissible but the teen had actually broken the law.
“A rapist does not have a reasonable expectation of privacy in rape,” said Ferman. “The need for change is clear. The law should protect the victim, not the rapist.”

House Judiciary Committee Chairman Ron Marsico, a Republican, is working on a wiretap bill that he intends to introduce in the near future. "In the current law, the criminals and organized crime … have a decided advantage over law enforcement," he said.

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Thursday, April 19, 2012

Ohio back in the execution business

The 14th Execution of 2012

Mark Wiles died by lethal injection on April 18, 2012 ending an unofficial moratorium on the death penalty in Ohio.  The delay was the result of Ohio and a federal judge wrangled over the state's lethal injection procedures.

It was the 47th execution since Ohio resumed putting inmates to death in 1999, and the state has 11 more executions scheduled, including June, July, September and November, reported The Associated Press.

Wiles, looking haggard with a sparse, cropped gray beard and shaved head, stared at witnesses for a few moments when he entered the death chamber. A few minutes later, strapped to the gurney and IV lines inserted into his arms, he raised his head and looked at witnesses again.

"Since this needs to be happening, truly I pray that my dying brings some solace and closure to the Klima family and their loved ones," he said, reported the AP.

"Finally, the state of Ohio should not be in the business of killing its citizens," Wiles concluded, reading a statement that the warden held over his head. "May God bless us all that fall short."

As the lethal sedative began flowing, Wiles nodded, appeared to be speaking, swallowed, spoke again, then gasped a few moments later. Wiles' stomach rose and fell several times and his head moved slightly, then his mouth fell open and he lay still for several minutes before he was pronounced dead.

Wiles paced back and forth and was emotional and anxious in his last minutes in his cell a few steps from the death chamber, prisons spokeswoman JoEllen Smith said. The inmate spent the night on the phone, listening to the radio and writing letters, Smith said. He and two sisters and a brother-in-law cried during emotional visits Wednesday morning, and he also said the rosary with his spiritual adviser, a Roman Catholic priest who works at Ohio's death row in Chillicothe, reported the AP.

Wiles did not sleep since arriving at the death house Tuesday morning about 9:45 a.m., Smith said.

According to the AP, his special last meal included a large pizza with pepperoni and extra cheese, hot sauce, a garden salad with ranch dressing, a large bag of Cheetos, a whole cheesecake, fresh strawberries, vanilla wafers and Sprite, Smith said.

Records show that Wiles surprised 15-year-old Mark Klima during a burglary at his family's farmhouse and stabbed him repeatedly with a kitchen knife until he stopped moving.

Wiles could easily have escaped the farmhouse after Klima surprised him but instead chose to stab the teen repeatedly, reported the AP.  He recently dropped his appeals and volunteered to be executed.
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Wednesday, April 18, 2012

Feds: penalty coming for failure to comply with Walsh Act

Only 15 states are in "substantial" compliance with the Sex Offender Registration and Notification Act (SORNA) commonly known as the Adam Walsh law, reported The Crime Report.

The law required state to bring their sex offender registry into compliance with federal law or risk the loss of federal aid.  Many states believe that the federal requirements are too costly and burdensome, deciding that they will give up some U.S. anticrime aid rather than bring their sex offender registries in line with the federal law.

The Crime Report previously noted, for example, that Texas had estimated that it would have to spent nearly $39 million to comply with SORNA but would lose only $1.4 million in federal funds if it didn't act.

The only states in compliance with SORNA are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, and Wyoming.  Some other those states risk spending a great deal more money to comply with the law as opposed to incurring the federal penalty.

The U.S. Justice Department has begun to penalize many of the states that have failed to follow its provisions.  However, according to The Crime Report, if the Justice Department determines that a state is actively attempting to comply with SORNA, its federal aid may continue without interruption.

To read more:

Tuesday, April 17, 2012

Eyewitness ID study: Deliberation is dangerous

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. The overwhelming majority of eyewitness errors aren't conscious or intentional. They are the inevitable side effects of the remembering process, reported the Wall Street Journal.

A new paper by Neil Brewer, a psychologist at Flinders University in Australia,  focused on the police lineup, in which witnesses are asked to pick out a suspect from a collection of similar looking individuals.

Normally, witnesses are encouraged to take their time and carefully consider each possible suspect. But Dr. Brewer knew that strong memory traces are easier to access than weak and mistaken ones, which is why he only gave his witnesses two seconds to make up their minds. He also asked them to estimate how confident they were about the suspects they identified, rather than insisting on a simple yes-no answer, reported the Wall Street Journal.

To test this procedure, Dr. Brewer and his colleagues asked 905 volunteers to watch a series of short films showing such crimes as shoplifting and car theft. The subjects then looked at 12 portraits, only one of which was the actual suspect. According to Dr. Brewer's data, his version of the lineup led to a large boost in accuracy, with improvements in eyewitness performance ranging from 21% to 66%. Even when subjects were quizzed a week later, those who were forced to choose quickly remained far more trustworthy.

According to the Wall Street Journal, the larger lesson is that, when it comes to human memory, more deliberation is often dangerous. Instead of simply assessing our familiarity with a suspect's face, we begin searching for clues and guidance. Sometimes this involves picking the person who looks the most suspicious, even if we've never seen him before, or being swayed by the subtle hints of police officers and lawyers. As a result, we talk ourselves into having a memory that doesn't actually exist.

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Monday, April 16, 2012

Two-thirds of Americans support use of deadly force in public

Most Americans support the right to use deadly force to protect themselves - even in public places - and have a favorable view of the National Rifle Association, a Reuters/Ipsos poll showed, reported the Chicago Tribune.

The online survey showed that 68 percent, or two out of three respondents, had a favorable opinion of the NRA. Eighty-two percent of Republicans saw the gun lobbying group in a positive light as well as 55 percent of Democrats, findings that run counter to the perception of Democrats as anti-NRA, reported the Tribune.

Most of the 1,922 people surveyed nationwide this month said they supported laws that allow Americans to use deadly force to protect themselves from danger in their own home or in a public place.

The poll was conducted amid a nationwide debate over gun rights and race after the Florida shooting of an unarmed black teenager, Trayvon Martin by George Zimmerman, a neighborhood crime watch volunteer who is white and Hispanic, reported the Tribune.

Eighty-seven percent of respondents - with high numbers among both Republicans and Democrats - supported the use of deadly force to protect themselves from danger in their home.

According to the Tribune, two-thirds said they backed laws permitting the use of deadly force to protect themselves in public, what has commonly become known as "stand your ground."

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Sunday, April 15, 2012

PA county public defender sues for funding

Luzerne County Chief Public Defender Albert J. Flora Jr., along with three indigent adult criminal defendants, filed a class action suit against the county and County Manager Robert C. Lawton for "deliberate indifference to the funding needs" of the Adult Unit of the Luzerne County Public Defender's Office, reported The Legal Intelligencer.

The suit claims the office's ability to represent adult defendants has suffered while its juvenile representation has seen marked improvement because of grant funding following the county's "kids-for-cash" scandal.

The 50-page complaint in Flora v. Luzerne County , filed Tuesday in Luzerne County Common Pleas Court, alleges that the county's failure to respond to the office's call for increased funding "has led to a grossly underfunded and thus overwhelmed Office of the Public Defender, resulting in the provision of sub-constitutional representation to many indigent criminal defendants and the complete deprivation of representation to many others," reported The Intelligencer.

According to the complaint, the lack of funds drove the office to institute a policy in December 2011 of denying applications for representation in all cases except those involving homicide, felony sex offenses, extradition, mental health, state parole, county probation/parole revocations, juveniles and incarcerated adult defendants.

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Saturday, April 14, 2012

KY Supreme Court: 'A Kentuckian never runs'

80-year-old Kentucky Supreme Court decision supports modern premise of 'stand your ground'

“No retreat” or “stand your ground” laws — enacted during the past few years in 21 states, at the behest of the National Rifle Association — have come under fire recently in the wake of Trayvon Martin's death.

The case has set off a firestorm among those who argue that gun laws such as those in Florida, Kentucky and Indiana make it too easy for anyone to pull the trigger, then avoid criminal charges by arguing self-defense.

In an interview with the Louisville Courier-Journal, Jefferson County Commonwealth’s Attorney Dave Stengel called Kentucky’s law “horrible,” saying it gives homeowners and motorists a license to kill, even in defense of property.

Kentucky courts have long held there is no duty to retreat when threatened with serious harm or death.

Kentucky tradition

“It is the tradition that a Kentuckian never runs — he doesn’t have to,” the state’s high court said in 1931, reversing the manslaughter convictions of two men who killed a third in a drunken brawl, reported the Courier-Journal.

But Kentucky and Indiana followed Florida in enacting legislation expanding and codifying the “castle doctrine” — that a man’s home is his castle and he has the right to defend it.

The Kentucky legislation added that a person is “presumed” to have used reasonable force if the target had unlawfully or forcibly entered the person’s residence or vehicle. The shooter no longer had the burden of proving that his fear was reasonable.

The National District Attorneys Association said in a 2007 study it is almost impossible for prosecutors to rebut the presumption that a defendant acted reasonably, and that laws like Kentucky’s will create “a new protected set of behaviors that might otherwise be considered hate crimes or vigilantism,” reported the Courier-Journal.

The NRA has not commented on the Florida shooting and didn’t respond when asked about its support for “stand your ground” laws.

In Florida, the average number of such deaths annually climbed from 13 in the five years before that law was enacted to 36 in the five years after, according to the state Department of Law Enforcement.

Fayette Commonwealth’s Attorney Ray Larson said last week the right to self-defense is especially important given that felons are being released early from prison for budgetary reasons.

The statute also figured prominently in a high-profile Jefferson County case in which former University of Louisville baseball player Isaiah Howes shot and killed former football player Daniel Covington after the latter tried to get inside Howes’ sport utility vehicle on Sept. 16, 2010, reported the Courier-Journal.

Citing the law, Jefferson Circuit Judge Barry Willett said that by leaning into the passenger window, assaulting Howes and another passenger, Covington triggered Howes’ right to defend himself with deadly force. Even though somebody in Howes’ vehicle uttered racial slurs against Covington, who is black, Willett said that provocation did not rise to the level that it eliminated Howes’ right to defend himself.

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Friday, April 13, 2012

The Cautionary Instruction: Legislation seeks to make jury duty more manageable

The Pittsburgh Post-Gazette/Ipso Facto
April 13, 2012

Jury duty can be a burden, but then so can going to work, paying taxes and taking out the garbage. The burden of jury duty goes beyond the inconvenience. Sitting in judgment of a fellow citizen is not something that most people relish.

Maybe that is why, nationally, about 46 percent of people summoned for jury duty actually show up, according to a 2007 survey conducted by the National Center for State Courts.

The “no shows” are excused or disqualified for a variety of reasons, including medical or financial hardship, employment in a job exempt from jury service, dire family circumstances or inaccurate notice -- and, yes, some people just blow-off jury duty.

As a result of the declining numbers, Pennsylvania enacted legislation enabling counties to expand the lists from which they draw potential jurors. Current law permits counties to use state income tax and welfare lists in addition to the voter registration and driver license lists that traditionally have been used to summon jurors.

How can the commonwealth make jury duty more palatable? How about reconsidering pay for jurors. Under current law, jurors are paid $9 a day for the first three days of service and $25 a day for each day thereafter.

State Representative Robert F. Matzie (D-Allegheny/Beaver) said the current payment scheme creates a hardship for many residents who are summoned to jury duty.

In theory more people would do their civic duty if it did not mean money out of their pocket.

Matzie’s bill would require employers to pay a juror's ordinary wage or salary each day that the employee is required to report for service and also require the commonwealth to grant a tax credit to the employer for the amount expended.

"It is important that Pennsylvania law supports citizens in the performance of their civic duty to serve on a jury if summoned," Matzie said in a press release. The bill also addresses related expenses like parking and travel costs.

Matzie’s jury reform effort does not stop at compensation. He has also introduced legislation to exempt the following individuals from jury duty:

• Parents or guardians who have custody of a child younger than seven and who are the primary caregivers of the child.

• Parents or guardians who have custody of a school-age child who has been excused from compulsory attendance at school or special education program and provide instruction for the child.

• Primary caregivers of an elderly or disabled family member.

Some other states have addressed juror compensation. For instance, Texas increased its juror compensation from $6 per day to $6 for the first day and $40 per day thereafter. The Texas compensation is paid exclusively by the state. The Pennsylvania measure is asking private employers to flip the tab in exchange for a tax credit. That may be a more difficult sell.

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Thursday, April 12, 2012

Turley on charges in Trayvon Martin homicide

Here is what Professor Jonathan Turley thinks about the charges against George Zimmerman relating to the death of Trayvon Martin:

"I was surprised to see a second-degree murder charge which requires proof beyond a reasonable doubt that a person was killed, without any premeditated design, by an act imminently dangerous to another and evincing a depraved mind showing no regard for human life. This is a lower standard than the premeditated standard for first degree murder. However, the evidence in the case would seem to more closely resemble manslaughter. Section 782.07(1) provides that standard:
The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree ….
Special Prosecutor Corey went for the maximum charge allowed without using a grand jury. The decision not to go to a grand jury knocked out the availability of murder in the first degree — though such a charge would be highly questionable on these facts.
In Corey’s defense, she is merely giving the state a chance to make the case before a state judge who will first have to decide whether there is a viable affirmative defense under the Stand Your Ground law. It is at that stage that we will be able to see what new evidence Corey has to support the case. I remain doubtful on the chances solely due to the language of the state law and past rulings of state judges — absent more evidence of malice or depravity by Zimmerman. However, I have previously maintained that there was ample evidence to arrest Zimmerman at the scene."

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Florida Governor Rick Scott knows best

Florida Governor Rick Scott recently vetoed a carefully crafted prison treatment bill that had the support of almost every conservative Republican in the state legislature. The law could have reduced the cost of government, something that Scott has pounded away at since taking office, reported the Miami Herald.

The vetoed bill (HB 177) would have permitted a small group of drug-addicted inmates to move from prison to intensive treatment programs after serving half their time. They’d still be in custody, but not behind bars.

The corrections department said a total of 337 inmates could have participated in the first year, out of more than 100,000 prisoners statewide. Florida trails only California and Texas in the number of state prison inmates.  Those three states are the only states with more than 100,000 prisoners.

The bill passed the Senate, 40-0, and the House, 112-4, even in an election year when lawmakers are especially leery of voting for anything that an opponent could distort into a “soft on crime” attack, reported the Herald.  Only non-violent offenders would have been eligible after a full assessment and after being enrolled in adult education courses.

Governor Scott knows best.  He knows how to protect the public...even though 152 out of 156 elected legislators in his state saw it differently.

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Wednesday, April 11, 2012

Zimmerman arrested for murder of Trayvon Martin

George Zimmerman has been arrested and is in custody for the murder of Trayvon Martin. He is not entitled to bond due to the nature of the offense. He is charged with 2nd degree murder.

Florida 2nd Degree Murder

Murder with a Depraved Mind occurs when a person is killed, without any premeditated design, by an act imminently dangerous to another and evincing a depraved mind showing no regard for human life.

The crime of Second Degree Murder is classified as a First Degree Felony and is assigned a Level 10 offense severity ranking under Florida's Criminal Punishment Code.

If convicted of Second Degree Murder, a judge is required to impose a minimum prison sentence of 16¾ years in prison and can impose any additional combination of the following penalties:

• Up to Life in prison.

• Up to Life on probation.

• Up to $10,000 in fines.

New Hampshire considers privatizing prisons

New Hampshire is considering privatizing its prison system.The state's prison population climbed 31 percent between 2000 and 2010 despite a stable crime rate, according to state officials. Half of that increase was attributed to inmates who leave prison only to return for a parole violation or a new offense, reported the Concord Monitor.

"The governor thinks we need to look at different options, including various forms of public/private partnerships to ensure we can meet the future needs of our corrections system," New Hampshire Governor John Lynch's spokesman, Colin Manning, wrote in an email sent to the Monitor. "The responses to these (requests for bids) will provide important information about the feasibility of various alternatives and how they compare to our current model."

A private company, Diana Lacey, president of the state employees union told the Monitor, needs to keep inmate beds full and security, salary and program costs down to make money. Meanwhile, the state's goal is to rehabilitate inmates and keep them out of prison. "Those are totally conflicting viewpoints," she said.

"The trend is positive," corrections spokesman Jeff Lyons told the Monitor, citing the population drop the prison has seen each of the last 13 months. "But we won't have any hard numbers until 2013 or 2014. People want something right away, but you can't really (assess efforts to curb recidivism) right away."

Privatizing prisons is a conversation state leaders say is worth having.  One of the bidders is Correction Corporations of America which reportedly requires states to sign a contract guaranteeing 90 percent occupancy.  In a first of its kind contract, Ohio sold a prison to CCA with a reported occupancy clause.

To read more:

Tuesday, April 10, 2012

Did Zimmerman's attorneys violate ethics rules?

The press conference by Craig Sonner and Hal Uhrig attorneys for George Zimmerman may have violated the Florida Rules of Professional Responsibility.  Zimmerman shot and killed Trayvon Martin.
Florida: Rule 4-1.6 [2] [4]
The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client…
A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.
The lawyers divulged the following information:
1) Zimmerman telephoned the special prosecutor who's trying to put together a criminal case against him, and he called Shaun Hannity of Fox News.

2) The attorneys also expressed concern about Zimmerman's "emotional and physical safety" and said he may be suffering from post-traumatic stress disorder.

3) "We have a pretty good idea where he (Zimmerman) is," Uhrig said, but added that Zimmerman is not answering the phone. The attorneys said they thought Zimmerman was still in the United States, but not likely in Florida.
The disclosure that Zimmerman sought out the special prosecutor or media outlets may be fair game for news reporters, and the content of his conversations not protected by any privilege, but not fair game for his lawyers. It gives the impression of instability or a willingness to make some statement of admission or denial. Such statements may prejudice the jury pool.
Talking about Zimmerman’s mental or emotional state certainly appears to be a disclosure of critical observations and assessments of Zimmerman’s defense. Disclosing that Zimmerman has left the state creates a legitimate impression that Zimmerman is a flight risk and flight may indicate consciousness of guilt.

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Supreme Court Opens Door to Ineffective Plea-Bargaining Claim

The Pennsylvania Law Weekly
April 9, 2012

The U.S. Supreme Court extended the protections of the Sixth Amendment — the right to assistance of counsel — to plea bargaining. The court's decision in two cases last month has far-reaching implications for the criminal justice system.

In Lafler v. Cooper, No. 10-209, the court was asked to review whether an attorney's advice to his client to reject a favorable plea bargain based on the lawyer's incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Frye, No. 10-444, the court reviewed whether counsel's failure to disclose the terms of a favorable plea offer was a violation of the Sixth Amendment right to a fair trial.

Galin Frye was charged with a felony for driving with a revoked license. According to the opinion, he qualified for a public defender. The district attorney sent Frye's lawyer a letter offering a reduced charge and 90 days in jail. The lawyer never communicated the plea offer to Frye.

Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the state of Missouri appealed.

In Anthony Cooper's case, a Michigan prosecutor communicated a verbal plea offer to Cooper's attorney. According to the opinion, Cooper would plead guilty and receive a recommended sentence of 51 to 85 months in prison. Cooper made it clear he would have accepted the plea.

However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. He incorrectly thought because the victim was shot below the waist, the state could not establish the element of intent. Cooper's lawyer thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty. He was sentenced to 185 to 360 months in prison.

In Frye, the court held that "the Sixth Amendment right of effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected."

Justice Anthony Kennedy wrote for a 5-4 majority, "The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires."

In Cooper, the court held, "Where counsel's ineffective advice led to an offer rejection," and the prejudice was that the defendant had to go to trial, the onus will be on the defendant to show that the bad advice made him reject an offer he otherwise would have accepted.

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

Defense lawyers will now be subject to scrutiny in terms of their plea-bargaining negotiation on behalf of their respective clients. Most lawyers already do what these opinions suggest will be subject to review by the court. By and large, lawyers convey plea offers to their clients and provide those clients with competent advice about accepting or rejecting the offer. But, will that be enough in the future?

Just as every defendant entering a guilty plea submits to a colloquy on the record in open court contemporaneous with entering a plea, defense counsel may seek to colloquy his client on the rejection of a plea bargain. How does defense counsel conduct such a colloquy without divulging the strategy to be employed during trial?

Will prosecutors need to employ yet another layer to the pretrial process?

In Pennsylvania, a defendant is afforded a preliminary arraignment, a preliminary hearing, a formal arraignment, in some counties, a pretrial conference and then a trial call or guilty plea hearing. Prosecutors may find the need for a plea-offer conference, wherein the plea offer is made in open court, the defendant acknowledges the offer and is given a specific period of time to respond.

The court suggested a written plea offer may suffice. That did not work for Frye; he was never informed of the written offer. A written offer signed by the defendant, either accepting or rejecting the offer in writing, may solve part of the problem but it still leaves open the issue of ineffective assistance as an inducement to reject a plea bargain. What if the defendant signs off rejecting the plea on the advice of counsel? The claim of ineffective assistance continues.

A North Carolina district attorney, Jim O'Neill, told the Winston-Salem Journal he strives to make sure every defendant facing criminal charges knows about plea offers. Plea offers are written down and placed in the public court file, he said.

"My office always takes great care to see to it that a person charged with a serious felony is informed on the record in open court as to what exactly the plea offer available is," O'Neill said. "That way, a defendant can make an informed, rational decision as to what inherent risks he or she will be exposed to during the course of a jury trial."

How about those cases that have long ago been adjudicated? The defendant rejected a plea offer, or no record exists that a plea offer was communicated and the defendant was convicted at trial. Now that plea bargaining has been afforded constitutional protection, it would not be surprising to see a glut of ineffectiveness claims.

Many of those claims may, at a minimum, allege a colorable claim for relief. With the aid of hindsight, and the burden of a hefty post-trial sentence, many defendants' recollections of what they would have accepted in terms of a plea bargain will be blurred by the decisions in Frye and Cooper.

Those who stand to benefit the most from the decisions are those who received lengthy sentences. The so-called trial penalty, which often saddled those who went to trial with much longer sentences than those who pled guilty, will spur a bevy of ineffective assistance claims.

A renewed challenge to a sentence long after investigating police officers have retired and witnesses have moved away or died, may invite renegotiated pleas — lower sentences and a whole lot less work for already overworked prosecutors. Some cases will succeed simply because new prosecutors and judges will have different positions on punishment or philosophical differences on issues like the death penalty or life in prison without the possibility of parole.

The cost of such claims may also balloon. If ineffectiveness claims are made against county public defenders, then counties will need to pick up the cost for court-appointed counsel to handle the conflicts.

As Justice Antonin Scalia wrote in his dissent in Cooper, "Today's decision ... opens a whole new boutique of constitutional jurisprudence ('plea-bargaining law')."

There may be some handwringing as the details of plea-bargaining law are worked out through state and federal appellate courts, but the Supreme Court made the right decision. As Justice Kennedy wrote in Frye, 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." •

Monday, April 9, 2012

Arizona privatizes prison health care: Pays more for it!

Arizona's Department of Corrections awarded a three-year contract to privatize health care for prison inmates that will cost the state $5 million a year more than it spent in 2011.

The contract was awarded to Wexford Health Sources Inc. of Pittsburgh, Pennsylvania. Wexford, which has previously lost contracts for poor service and was implicated in a 2008 payoff scandal in Illinois, bid $116.3million a year, $1.1million less than the second-place bid by Corizon Inc. of Brentwood, Tennesseee, reported the Arizona Republic.

The contract, which is renewable for two additional years, was approved by Corrections Director Charles Ryan and reviewed by the Governor's Office before it was issued. Arizona spent $111.3 million last fiscal year on correctional health-care services for nearly 34,000 inmates in 10 state prisons.

Over the past three years, health-care spending by the Corrections Department has dropped nearly $30 million, in part because of a declining prison population and reduced staff levels. Caroline Isaacs, director of the American Friends Service Committee's Tucson office, a prison-watchdog group, told the Republic, "This has never been about saving money; the real reason is that legislators are ideologically wedded to privatization and damn the evidence."

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Sunday, April 8, 2012

Scholars to study the “high rates of incarceration”

Former Pennsylvania Secretary of Corrections Jeffrey Beard will join seventeen of the country’s leading scholars and experts on corrections and related fields to launch a major project to study the “causes and consequences of high rates of incarceration” in the United States, according to The Crime Report.

The panel of scholars, chaired by Jeremy Travis, president of John Jay College of Criminal Justice in New York, will examine the reasons for the dramatic increases in U.S. incarceration rates since the 1970s, which have produced one of the world’s highest incarceration levels—with more than 2.3 million people behind bars in U.S. prisons and jails at any time.

Project funding is split between the National Institute of Justice—the Department of Justice research arm that Travis formerly headed—and the Chicago-based John D. and Catherine T. MacArthur Foundation.

According to The Crime Report, the group will examine a wide range of issues related to U.S. corrections, including the costs and benefits of current sentencing and incarceration policies, and it will explore any evidence that “alternative punishments might achieve similar public safety benefits and lower financial and social costs,” according to the official announcement of the project.

The panel will also assess existing research on incarceration, identify research gaps and offer policy recommendations.

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Saturday, April 7, 2012

Florida warrant reveals arbitrary nature of death penalty

Serial killer jumps ahead of 40 men on death row

Serial killer David Alan Gore is set to be executed sooner than he expected, in part because he could not stop bragging about raping and murdering four teenagers and two women in the Vero Beach area about 30 years ago, reported The Associated Press.

Several people have made sure the boasting did not go unnoticed. There was the Las Vegas man who wrote to Gore, an author who published the inmate's grotesque letters, and a newspaper columnist and editorial board who brought the case to the attention of Florida Gov. Rick Scott. The Republican promptly signed the death warrant even though more than 40 other men have been on death row longer.

Gore is set to die April 12.

Gore’s sudden rise to the top of Florida’s execution list points to a serious problem with the death penalty in America.  The manner in which it is carried out is arbitrary.

In Furman v. Georgia,  the 1972 decision that struck down the death penalty, Justice Potter Stewart wrote, "These death sentences are cruel and unusual punishment in the same way that being struck by lightning is cruel and unusual.” Justice Potter further noted, “I simply conclude that the Eighth and Fourteenth Amendment cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972. If you are one of 697 inmates on California’s death row, a state that has not carried out an execution in five years, and suddenly you are scheduled for execution—that is a lot like being struck by lightning.

The modern trend with regard to carrying out the death penalty is even more dismal—only eight percent of condemned inmates were executed within the last ten years, a little more than one in ten.
Pennsylvania has had the death penalty since 1977. There are 222 killers on the state’s death row. Yet, Pennsylvania has executed just three men. All three waived their appeal rights and asked to be executed. Year after year, men and women in Pennsylvania are tried, convicted and sentenced to death with literally no chance of being executed.

Each execution revealed often less than sympathetic figures, men and women, whose conduct was downright frightening. Many display a callousness toward other human beings that makes one relieved that the death penalty exists.

There is no doubt that some members of society are so anti-social that they present a clear and present danger to law abiding citizens. We are, however, fooling ourselves if we believe that the each offender executed represents America’s “most dangerous” citizens and that the rest of the “most dangerous” are all confined to death row awaiting an unlikely execution.

Friday, April 6, 2012

The Cautionary Instruction: High court authorizes strip searches for all detainees

The Pittsburgh Post-Gazette/Ipso Facto
April 6, 2012

This week, the U.S. Supreme Court ruled that a general corrections department policy to strip search all incoming detainees, regardless of the nature of the charges, does not violate the Fourth Amendment ban on unreasonable search and seizure.

Justice Anthony M. Kennedy penned the 5-4 decision in Florence v. County of Burlington. He joined the conservative wing of the court including Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Just last week, the court issued a 5-4 ruling extending constitutional protections to plea bargaining. Justice Kennedy wrote that opinion as well, aligning himself with the liberal wing of the court, including Justices Sonia Sotomayor, Stephen Breyer, Elena Kagan and Ruth Bader Ginsberg.

The Court’s rationale in Florence is based on the premise that a jail’s interest in safety and security outweighs the interests of a detainee.

The court noted that strip searches are necessary to detect concealed weapons and drug smuggling. The search is also important to detect lice or other contagious conditions, untreated wounds, and gang-related tattoos.

Something as simple as overlooking a pen can pose a significant danger,” Kennedy wrote. “Inmates commit more than 10,000 assaults on correctional staff every year and many more among themselves.”

Justice Kennedy provided a series of examples of contraband smuggled into jail. A person arrested for disorderly conduct in Washington State “managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity.” In San Francisco, officials “have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance and shoplifting.”

What does this opinion mean for the average citizen? To start with, thirteen million people are admitted to jail each year.

Justice Breyer writing on behalf of the dissenting justices said the decision would legitimize searches conducted to harass or humiliate people for their political views, such as an arrested government protester. He mentioned instances in which individuals were searched for “such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.

According to the New York Times, people have been strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. A nun was strip-searched after an arrest for trespassing during an antiwar demonstration.

Justice Kennedy’s opinion makes it clear that correction officials “must have substantial discretion to devise reasonable solutions to the problems they face.”

The alleged murderer, as well as the bicyclist without a bell, and everyone in between, will be required to remove their clothing while an officer examines their ears, nose, mouth, hair, scalp, fingers, hands, arm pits, and other body openings including lifting their genitals and being directed to turn around, and cough while squatting.

If you want to avoid such humiliation -- renew your license, keep your dog on a leash, support your children and for goodness sake fix your muffler.

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Thursday, April 5, 2012

Ohio back in the execution business

U.S. District Court Judge Gregory L. Frost cleared the way for the resumption of executions in Ohio after a four-month delay.

Frost denied a request by Mark Wayne Wiles of Portage County to halt his execution, which is scheduled for 10 a.m. on April 18 at the Southern Ohio Correctional Facility near Lucasville. Wiles was sentenced to death for killing 15-year-old Mark Klima of Rootstown, in northeastern Ohio, on August 7, 1985, reported the Columbus Dispatch.

The state has about one inmate a month scheduled for execution by lethal injection until early 2014. Unless there is further judicial intervention, Ohio presumably is back in the capital-punishment business.

Frost wrote, “Ohio’s new procedures look good on paper ... Ohio has time and again failed to follow through on its own execution protocol. The protocol is constitutional as written, and executions are lawful, but the problem has been Ohio’s repeated inability to do what it says it will do,” reported the Dispatch.

Before the delay Ohio was second only to Texas in executions carried-out over the last couple of years

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Connecticut one step closer to banning capital punishment

A push to abolish Connecticut's death penalty is one step closer to becoming a reality after clearing a key legislative hurdle in the state Senate, reported the Cristian Science Monitor.

State senators voted 20-16 in favor of a death penalty repeal bill after about 11 hours of impassioned floor debate.

The bill now goes to the House of Representatives, where it is considered to have a high level of support, and then to Gov. Dannel P. Malloy, a Democrat who has said he would sign it into law.

Connecticut has carried out only one execution in 51 years, when serial killer Michael Ross was administered lethal injection in 2005, according to the Christian Science Monitor.

In the last five years, four states have repealed the death penalty — New Mexico, Illinois, New Jersey and New York. Currently, 16 states and the District of Columbia do not have a death penalty.

Executions nationwide have decreased steadily since they hit an all-time high of 98 executions in 1999 and have averaged at 44 a year since 2007, according to the Death Penalty Information Center.

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Wednesday, April 4, 2012

Killer asks to overturn governor's act of clemency

Last November, Oregon Governor John Kitzhaber's indefinitely postponed all death sentences.  He imposed a de facto moratorium on the death sentence. Kitzhaber, who is personally opposed to capital punishment, announced he would allow no executions while he's governor, saying Oregon's death penalty system is costly and flawed, reported the Oregonian.

In a strange twist a condemned killer is trying to overturn the governor's act of clemency.  Gary Haugen, a condemned murder has asked a county court to issue a new death warrant.  He said he does not accept the governor's reprieve.  He  may have found a courtroom ally in his unprecedented quest to override Governor ex parte act of  reprieve.
In still a stranger twist the DA who put Haugen on death row is siding with the convicted killer. Marion County District Attorney Walt Beglau said Monday that the two-time killer has a viable argument. "That's the legal issue that needs to be explored in a court of law," Beglau told the Oregonian. "That really is the central issue."

The Oregon Justice Department has requested that a Marion County circuit judge recognize Kitzhaber as a legal party to Haugen's criminal case so it can defend the reprieve, noting that "it appears that the district attorney intends to appear but not defend the Governor's actions."

The circumstances are unique: The governor would almost never have a role in a criminal case -- except in cases where he exercised his constitutional authority. Also, never before has an Oregon governor halted an execution against the wishes of the inmate to be executed, reported the Oregonian.

Similar circumstances across the country are tough to find. In Illinois, Gov. Jim Edgar in 1996 commuted the death sentence of Guinevere Garcia who had opposed clemency requests by anti-death penalty groups. But she didn't oppose the commutation to life in prison once the governor granted it, according to the Death Penalty Information Center. The center collects information about the death penalty and has a board of directors with members opposed to capital punishment.

When Haugen first challenged the reprieve, legal experts, including at least one death penalty supporter, said they doubt a court would overturn the governor's reprieve, instead reaffirming his constitutional authority, reported the Oregonian.
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Tuesday, April 3, 2012

WFMJ-TV: Mangino interview on Jordan Brown

NEW CASTLE, Pennsylvania - A hearing will be held in Lawrence County Common Pleas Court on Tuesday at 9:00 a.m. to determine if teenage murder suspect Jordan Brown should be released from custody until his trial in juvenile court.

The Superior Court of Pennsylvania issued a decision on Friday that the lower court erred in not holding a detention hearing sooner for Brown.

Brown was just 11-years-old when he was arrested and charged with shooting and killing his father's fiancé, Kenzie Marie Houk, and her unborn child. Houk was shot in the back of the head as she slept in her Wampum home.

Now, three years after the crime, at age 14, Brown could be released in to the custody of his father as he awaits his trial in juvenile court.

But, Jack Houk, the father of the murder victim had tears in his eyes as he said it feels like Brown as a suspect has far more rights than the victims. "How much can you take? It takes a lot from you when you lose your loved ones. I miss Kenzie everyday," Houck said.

Jordan Brown's attorney, Dennis Elisco, argues that the Wampum boy's right to a speedy trial has been violated. That's why the Superior Court has now ordered that the Common Pleas Court Judge hold the detention hearing before Thursday, April 5th.

"The Common Pleas Court has to make this decision. What happened here was originally this was an adult prosecution. They were charging and prosecuting this young man as an adult. He was charged with first degree murder. In that case, there's no entitlement to bond. You can hold somebody indefinitely if they're charged with first degree murder. It doesn't work that way in the juvenile court," said Former Lawrence County District Attorney Matt Mangino.

"When this case was sent back to juvenile court from adult court, then immediately there should have been a preliminary detention hearing within 72 hours and then a full detention hearing or adjudication within 10 days. That never happened here," Mangino said.

Attorney Mangino says if you read the law, even though some portions of the statute leave it open ended, it appears that there's no reason to hold Brown in custody.

And if he's released to his father, and if Brown is found delinquent or guilty of the crime in juvenile court, Mangino says, "What you might find is that you have a detention hearing here, he's sent to his father to live, which would not be an unusual situation, he may never go back in to custody again."
Coincidentally, the Supreme Court last week heard arguments on whether it is constitutional for a juvenile or child, who is put on trial as an adult, to be sentenced to life in prison without the possibility of parole.

It's believed the state of Pennsylvania has the highest number of cases nationwide of teen killers sentenced to mandatory life prison terms.

Texas prison boom coming to painful end

A prison in Anson, a west Texas town of about 2,300 people built in 2009, sits empty according to the Austin American-Statesman.  The facility was to house 1,100 state convicts who never arrived, the $35 million lockup sits empty at the edge of the town. Its promise of creating 195 jobs and a $5 million annual boost to the local economy never materailized.
Research by the American-Statesman shows, the situation is increasingly common in Texas and across the country because of declining crime rates, government budget cuts and increased use of treatment programs that have deflated a 20-year boom in building jails and prisons.
Although having fewer people locked up should be good news for Texas taxpayers, as the associated costs of Lone Star justice go down, the trend is drawing few cheers in Jones County and other places where taxes are going up to pay for the empty lockups.
While counties mostly operate jails, which house pre-trial prisoners and those serving time for minor offenses, more than a dozen counties in Texas have for years housed state prison convicts — either in their county jails or in prison-like lockups built with the help of private firms.
The American-Statesman also found, more than 30,000 of the state's 93,000 county beds currently sit empty — both at county jails and at the ones built with county-private partnerships, like Anson, according to the Texas Commission on Jail Standards.
In Littlefield, northwest of Lubbock, a $10 million, 373-bed prison has sat empty for two years — costing local taxpayers $65,000 a month to pay the outstanding loan.
More than 1,400 jail beds in Angelina, Newton and Dickens counties in East Texas stand vacant as well, and one in Jefferson County reopened only recently — at just a fraction of its former population.
In Falls County, about an hour's drive northeast of Austin, officials are scrambling to fill beds in a county-built private prison after the private company announced it was pulling out.
Outside Waco, an 833-bed, $49 million prison sits less than half full — the same problem according to the American-Statesman.

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