Friday, November 30, 2012

Column featured on Sentencing Law & Policy

My column on federal prison overcrowding, It’s Time to Address Federal Prison Overcrowding,  posted at The Crime Report was recently featured on Ohio State University Professor Douglas A. Berman's award winning website Sentencing Law & Policy.

To read post:

The Cautionary Instruction: States scramble to deal with Supreme Court ruling on sentencing of juvenile killers

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

The Pennsylvania Supreme Court is the first state high court to test whether the U.S. Supreme Court ruling in Miller v. Alabama, banning the mandatory imposition of life without parole for juvenile killers (JLWOP), is retroactive.

In September, the Pennsylvania Supreme Court heard arguments in two cases: Qu`eed Batts, who, at age 14, committed first-degree murder in a gang-related slaying of a 16-year-old in Easton; and Ian Cunningham, who is serving life for second-degree murder as the result of a conviction out of Philadelphia.

Pennsylvania has also passed S.B. 850 granting future convicted juvenile killers the chance for release after serving between 25 and 35 years, depending on the age of the killer at the time of the crime.

Pennsylvania leads the nation with about 450 offenders serving mandatory life sentences for offenses committed as juveniles. Yet Pennsylvania is not the only state trying to adapt to the Miller decision. There are 39 states with mandatory JLWOP and, apparently, 39 different ways to address Miller.

In Iowa, for instance, the governor commuted the life sentences of 38 people convicted of committing murder when they were juveniles. In July, Governor Terry E. Branstad commuted the sentences but required inmates to serve a minimum of 60 years before being eligible for parole.

An Iowa judge later rebuked Branstad for ignoring the Supreme Court by not providing offenders any meaningful opportunity to obtain release.

“A blanket sentence for 38 juvenile offenders that provides no eligibility for parole for 60 years is not the sort of individualized sentencing envisioned under Miller v. Alabama,” Iowa District Court Judge Timothy O’Grady wrote.

Conduct similar to Governor Branstad was recently struck down by the California Supreme Court. In People v. Caballero, the court held that a sentence, in this case 110 years, that is effectively a de facto life without parole sentence for a juvenile in a non-homicide case violates the U.S. Supreme Court's decision in Graham v. Florida. In Graham, the Supreme Court ruled that the Eighth Amendment banned life without parole for juveniles convicted of non-homicide offenses.

In North Carolina, the legislature passed S.B. 635 replacing mandatory life for juveniles with “a minimum of 25 years imprisonment prior to becoming eligible for parole.”

A New Hampshire judge has given a convicted teen killer until January to file an expert witness report in his request for resentencing. Another offender, who helped kill two Dartmouth College professors as a teenager, has also requested resentencing.

In Florida, at least two state appellate courts have ruled that Miller is not retroactive. Michigan’s attorney general has asked the state Supreme Court to declare that Miller is not retroactive, a decision that could affect over 300 inmates.  Nebraska’s Board of Pardons will consider requests for commutation filed by juvenile lifers.  Proposed legislation in Wyoming provides that juvenile lifers could become eligible for parole after 25 years behind bars.

In California, Governor Jerry Brown signed S.B. 9 permitting 309 juvenile lifers to seek reconsideration of their sentences after they served at least 15 years in prison. A judge could then reduce the sentences to 25 years-to-life if the inmate shows remorse and is taking steps toward rehabilitation.

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Thursday, November 29, 2012

Pennsylvania Task Force Promotes Advocacy Centers

A task force formed in response to the Penn State child sex abuse scandal recommend that all children in Pennsylvania have better access to centers that specialize in investigating child abuse, reported the Pittsburgh Post-Gazette.

The Task Force on Child Protection recommended that a children's advocacy center be located within a two-hour drive of every child in the state, David Heckler, the Bucks County district attorney and chairman of the task force, told the Post-Gazette.

"If there had been a children's advocacy center in Centre County in 1998 to 2000," Mr. Heckler said, "I'm telling you they would have heard about Jerry Sandusky then, and a decade of suffering by his victims would have been prevented."

There are currently 21 Children's Advocacy Centers in the state. However, they receive no state money. The nearest advocacy center to State College is in Harrisburg, a little more than an hour's drive.

The task force recommended sweeping changes, including new crimes, revised criminal codes and new policies, reported the Post-Gazette.

Pennsylvania law requires multidisciplinary teams, but teams in some counties do not meet regularly or have not developed protocols. Mr. Heckler said the task force recommends "putting teeth into the law."

While multidisciplinary teams are the foundation of effective child-abuse investigations, children's advocacy centers are an extra layer of protection.

They are places, often hospitals, designed to help children feel safe. They employ doctors, nurses and mental health practitioners who examine and treat children. The child is interviewed once, by a forensic examiner skilled at eliciting crucial information.

"Children's advocacy centers ensure justice," Mr. Heckler told the Post-Gazette.

About half of the state's 67 counties either do not have an advocacy center or have no arrangements with one in a nearby county. More are needed, said Abbie Newman, president of the state association of Children's Advocacy Centers and Multidisciplinary Teams.

"Children need to be brought to a place where they can be comfortable, as opposed to a police station," she said.

To read more:

Wednesday, November 28, 2012

Condemned Texas inmate goes to death claiming innocence

The 40th Execution of 2012

Preston Hughes was executed on November 15, 2012 for fatally stabbing a teenage girl and her toddler cousin on a dirt road in southwest Texas more than two decades ago, reported the Houston Chronicle.

Hughes was convicted of the 1988 murders of La Shandra Charles, 15, and her 3-year-old cousin, Marcell Taylor. None of the victims' friends or relatives attended the execution.

Hughes was put to death about 31/2 hours after the U.S. Supreme Court rejected appeals filed by his attorney to postpone the punishment. The execution also was slowed by an appeal filed by Hughes to the Criminal Courts of Appeals asking that the court reconsider its earlier denial to retest DNA in the case.

Just before he received the lethal injection, Hughes turned toward his mother and sister who stood behind their mother.

"You know I'm innocent, and I love you both," Hughes, 46, said in his final statement, reported the Chronicle. "Please continue to fight for my innocence even though I'm gone." Hughes was the 15th person executed in 2012.

To read more:

Texas carries out 14th execution of the year

The 39th Execution of 2012

Ramon Torres Hernandez was one of three people convicted in Texas for the killing of Rosa Maria Rosado who was pulled into a car Hernandez was driving after she refused to let go of her purse during a drive-by robbery.

A registered sex offender, Hernadez was put to death by lethal injection on November 14, 2012.

Hernandez, 41, told a family member he was "sorry for putting you through all this" after a warden asked if he wanted to make a final statement.

"Tell everybody I love them," the condemned inmate said, directing his words at his brother who was standing nearby in the death chamber and watching through a window that separated him from Hernandez.

Glancing briefly at relatives of his victim, Hernandez said: "I'm very sorry for all the pain." Then he urged other prisoners on death row to "keep fighting; don't give up."

He took several breaths as the lethal dose of pentobarbital took effect, then began snoring quietly. Within a minute, all movement stopped.

His time of death was announced as 6:38 p.m. CST, 26 minutes after the drug began flowing into his arms.

Hernandez became the 14th inmate executed this year in Texas.

To read more:

Tuesday, November 27, 2012

Miller v. Alabama Changes the Dynamics of Sentencing

The Pennsylvania Law Weekly
November 27, 2012

The failure to vigorously investigate and present mitigation evidence in cases where juveniles are charged with first-degree murder may give rise to claims of ineffective assistance of counsel.

Under Strickland v. Washington, 104 S. Ct. 2052 (1984), an attorney is deemed ineffective when his or her performance falls below a reasonable standard, as defined by professional norms, and when the attorney's failure results in prejudice. The presentation of mitigation evidence in non-death penalty sentencing hearings is not universally required of defense counsel, wrote Beth Caldwell in "Appealing to Empathy: Counsel's Obligation to Present Mitigating Evidence for Juveniles in Adult Court."

However, that may no longer be the case in Pennsylvania and across the country. There are a series of U.S. Supreme Court decisions and new legislation in Pennsylvania that seems to imply in juvenile homicide cases that the presentation of a sentencing advocacy package is now necessary and the failure to do so may be ineffective assistance of counsel.

Senate Bill 850, now known as Act 204 of 2012, recently signed by Governor Tom Corbett, was enacted to address the U.S. Supreme Court decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), striking down mandatory life in prison for juveniles convicted of homicide. The new statute requires that the sentencing judge consider the age, mental capacity, maturity, degree of sophistication, prior delinquent conduct, criminal history and institutional conduct of the offender.

The U.S. Supreme Court's decisions in Roper v. Simmons, 125 S. Ct. 1183 (2005), and Graham v. Florida, 130 S. Ct. 2011 (2010), demonstrated that mitigating information about a juvenile accused of a crime is important to the court. In both cases, the court considered the tumultuous life histories of teenage defendants in conjunction with adolescent brain development research.

The high court in Roper established that because juveniles have lessened culpability, they are less deserving of the most severe punishments. As compared to adults, juveniles have a "lack of maturity and an underdeveloped sense of responsibility."

The court continued, juveniles "are more vulnerable or susceptible to negative influences and outside pressures." As a result, the court held that sentencing juvenile offenders to death violated the Eighth Amendment's prohibition against cruel and unusual punishment.

The court in Miller reasoned that the Graham and Roper decisions stood for the idea that "in imposing a state's harshest penalties, a sentencer misses too much if he treats every child as an adult."

The linchpin of the Miller decision was that "mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him."

The mitigation evidence that defense counsel is required to present during the penalty phase of a capital case is essentially the same evidence courts consider in sentencing juvenile offenders facing life in prison or some lesser sentence, establishing similarities between capital sentencing and sentencing juvenile offenders.

In the capital context, attorneys are responsible for gathering evidence about a defendant's childhood, mental capacity, health, history of substance abuse, experiences of abuse and neglect, and developmental disabilities.

"It is incompetent for counsel to fail to present this information to a judge charged with determining a young person's fate," Caldwell wrote.

In Pennsylvania, the legislature went to work quickly after the Miller decision, and the result is Act 204. The act provides an alternative to mandatory life in prison. The new law provides for juveniles convicted of first-degree murder, ages 15 and older, to be sentenced to 35 years or life in prison. For those convicted of murder under age 15, the sentence can range from 25 years to life.

More importantly, the act provides that a judge must consider age-related characteristics of the defendant. Those characteristics include, specifically: age, mental capacity, maturity, criminal sophistication, criminal history, institutional conduct and other relevant factors.

Defense counsel who fail to explore mitigation will not only fail to comply with the act, but will most assuredly fail their clients.

Interestingly, the act also provides, as in capital cases, that the district attorney must provide notice to the defendant if the commonwealth intends to seek life in prison for a juvenile offender. The notice provision further reinforces the similarities between capital sentencing and sentencing juvenile homicide offenders.

Whether the notice requirement is indicia of heightened responsibility, the reality is that 94 percent of state cases end in plea bargains. That statistic presents yet another potential pitfall for counsel representing a juvenile accused of first-degree murder.

The U.S. Supreme Court decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), extended the protections of the Sixth Amendment — the right to assistance of counsel — to plea bargaining. Defense lawyers will now be subject to scrutiny in terms of their plea-bargaining negotiation on behalf of their respective clients.

In Cooper, the court considered whether an attorney's advice to his client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Frye, the court considered whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.

Mitigation is not just for sentencing. The onus is on defense counsel to begin investigating mitigation at the earliest stages, so that information is available during plea negotiations. The failure to do so may open the door to ineffectiveness claims.

Some states have anticipated the collateral responsibilities that have grown out of the Miller decision. In Massachusetts, the Youth Advocacy Department recently announced the creation of a "Juvenile Life Without Parole Sentencing Advocate." The advocate will assist in the preparation of a capital "penalty phase" like a sentencing hearing. The sentencing advocate is analogous to a mitigation specialist retained to prepare for sentencing in a capital case.

With the issue of retroactivity still pending in Pennsylvania and the commonwealth having more juvenile lifers than any other state, defense attorneys would do well to start thinking about sentencing advocacy as an essential component of any competent juvenile homicide defense strategy.

Visit the Pennsylvania Law Weekly

Monday, November 26, 2012

Homicide on the rise in cities across the country

Homicide is on the rise. Oklahoma City police have reported 85 homicides so far in 2012, according to the Daily Oklahoman. Excluding 1995, the year of the Oklahoma City bombing, that number is the highest since 1993, when 92 homicides were reported.

Oklahoma City is not alone.  The homicide rate is rising in cities large and small from coast to coast. The homicide rate is up in San Diego and Atlantic City.  In Portland, OR and Detroit, MI.  In fact, homicides are up 38 percent in Chicago and 24 percent in Philadelphia.

"This is not just a law enforcement issue," Detroit Police Chief Ralph Godbee said in a statement. "The increased prevalence of individuals choosing to use acts of violence to settle disputes between friends, acquaintances and more disturbingly family members must be addressed, if we are to stop the violence in our communities."

The Oklahoma City police force is fighting crime with about 1,000 sworn officers, including new police recruits still attending the police academy. That's about 10 fewer officers than in 1989, although the city's population has grown by almost one-third since then, from 444,719 to 579,999.

Philadelphia Police Commissioner Charles Ramsey says the department just doesn't know why homicides have spiked in 2012.

"This isn't, ‘What's the new strategy that's going to somehow turn it around?' " Ramsey said. "Hell, if we knew that, we'd have done it already. We have no interest in allowing a body count to grow."

To read more:

Sunday, November 25, 2012

Texas prisons dangeroulsy understaffed

Leaders of Texas' prison employee union say that officials are leaving prisons dangerously understaffed. The union renewed calls for better pay, noting that the holiday season is a particularly dangerous time in Texas prisons, reported the Texas Tribune.

Prison officials agreed that staffing problems exist in particular units, but said that the facilities are secure.

“What has happened over the past several years is the Legislature hasn't kept up with cost of living for correctional officers,” Lance Lowry, president of the Texas chapter of the American Federation of State County Municipal Employees, told the Tribune.

The Texas Department of Criminal Justice has faced staffing shortages during the last year. In June, the department closed parts of the Connally unit in Kenedy, southeast of San Antonio, and moved the inmates to other facilities, because of a 40-percent vacancy rate. In October, Lowry sent a letter to Gov. Rick Perry, noting that his organization had found the department is currently short more than 2,700 officers.

According to the Tribune, both union leaders and prison officials agree that the shortage in certain parts of the state is partially due to the growth of the oil and gas industry in South Texas, which has created private sector jobs that compete with prisons for workers. "When they can go out and drive a truck for twice as much as they'd make in the prison,” Lowry said, “it creates a large vacuum.”

To read more:

Saturday, November 24, 2012

Marijuana possession does not lead to violence

People arrested for marijuana possession rarely become violent criminals. A report by Human Rights Watch, A Red Herring: Marijuana Arrestees Do Not Become Violent Felons, offers new data indicating that people who enter the criminal justice system with an arrest for public possession of marijuana rarely commit violent crimes in the future.

Over the last 15 years, New York City police have arrested more than 500,000 people on misdemeanor charges of possessing small amounts of marijuana in public view. Mayor Michael Bloomberg and the police have said the arrests have helped reduce violent crime.

According to the Human Rights Watch website, Jamie Fellner, senior adviser to the US Program at Human Rights Watch and co-author of the report said, “Our findings support those of other researchers who question the public safety gains from massive marijuana arrests."

Using data provided by the New York Department of Criminal Justice Services, Human Rights Watch tracked until mid-2011 the subsequent criminal records of nearly 30,000 people who had no prior convictions when they were arrested for marijuana possession in public view in 2003 and 2004. Ninety percent of the group had no subsequent felony convictions. Only 3.1 percent were subsequently convicted of one violent felony offense. An additional 0.4 percent had two or more violent felony convictions.

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Friday, November 23, 2012

The Cautionary Instruction: Young offenders court, a step too far?

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

When it comes to holding violent young people accountable the slippery slope just got a little more slippery. A new study suggests that 18 to 24 year-olds should be prosecuted in specialty courts, not the adult criminal justice system.

In the late 1990s, Professor James Alan Fox predicted a “coming teenage crime storm.” Young “super-predators” were described by a Florida Congressman in 1997 as, “the most dangerous criminals on the face of the earth.”

The 1994 Department of Justice report, Violent Crime: National Crime Victimization Survey found that young people age 16-24 consistently have the highest violent crime rates.

A lot has changed since the mid-1990s. Violent crime has fallen to its lowest level in decades. More importantly for young people, there is a growing body of research showing that brain development continues into at least the early twenties. The arguments are now familiar -- young people are more impulsive than adults, more readily swayed by their peers and less likely to consider the consequences of their actions.

In 2005, relying in part on this research, the U.S. Supreme Court banned the execution of juveniles in Roper v. Simmons. Justice Anthony M. Kennedy wrote that juveniles are cognitively immature and therefore less culpable.

When the Roper case was argued death penalty opponents floated the idea that life without parole was an appropriate alternative to the death penalty.

As the brain development argument gained acceptance in courtrooms across the country, and the death penalty was banned, life in prison no longer seemed like an appropriate alternative.

In 2010, the Supreme Court struck down juvenile life in prison for non-homicide offenses. In Graham v. Florida, the court used the Roper analysis, “When  compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis.”

This spring, Miller v. Alabama, took it a step further, outlawing mandatory life in prison for juvenile killers. The high court found that mandatory sentencing schemes “prevent the sentencer from considering youth and from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.”

A new study of young offenders in Criminology & Public Policy takes the next logical step in the brain development argument, but is it a step too far? The study’s authors suggested that the cognitive functioning of offenders changes gradually, and young adults aged 18-24 are similar, in many respects, to juveniles aged 15-17. Therefore, young people continue to mature into the mid-20s.

The authors concluded that young offenders prosecuted in adult courts and sent to prison with adults are much more likely to continue offending than those who were not dealt with by the adult system. They argued, among other things, to establish special courts for young adult offenders aged 18-24. The special courts could focus on rehabilitation, reentry and redemption.

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Thursday, November 22, 2012

Lincoln's Thanksgiving Day Proclamation

Below is President Abraham Lincoln's 1863 Proclamation declaring the last Thursday in November as a day of thanksgiving.  This proclamation came in the midst of the civil war and only weeks before Lincoln's Gettysburg Address. 

So let us be thankful today in these less turbulent times.  Happy Thanksgiving.

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consiousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

Abraham Lincoln
October 3, 1863

Wednesday, November 21, 2012

Florida fires 1,890 prison health care workers

The Florida Department of Corrections signed a $230 million contract with Corizon Healthcare of Nashville to provide all health care in central and north Florida prisons and is negotiating contract terms with Wexford Health Sources of Pittsburgh to take over health care in nine South Florida prisons for $48 million a year.

As a result, the state has fired 1,890 state employees. Florida Gov. Rick Scott’s decision is the nation’s biggest outsourcing of prison health care, reported the Miami Herald.

“Due to the outsourcing of this function, your position will be deleted,” reads a dryly worded dismissal notice from the Department of Correction. In the dismissal letters, prison officials emphasize that dismissed workers will get first consideration for new jobs at one of the two for-profit vendors, though with fewer benefits. The workers also expect to pay more out of their pockets for their own health insurance.

Many make less than $35,000 a year, have not had a raise in six years and live in economically distressed areas, reported the Herald.

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Tuesday, November 20, 2012

California prosecutors want executions

California prosecutors want to proceed with 14 executions citing Proposition 34's resounding defeat.  Proposition 34 sought to ban the death penalty. Fifty-three percent of the California electorate voted to continue with the death penalty on Nov. 6.

Although 14 death row inmates have exhausted their appeal rights there is still legal haggling over lethal injection.

Prosecutors are calling for an end-run around the legal hang ups, calling for the scrapping of the three-drug lethal injection at the center of the litigation and replacing it with a single-drug execution, according to the Sacramento Bee.

Six other states have already abandoned the three-drug process and adopted the single-drug execution.

In recent months, Los Angeles County District Attorney Steve Cooley and San Mateo County District Attorney Steve Wagstaffe have formally asked local judges for death warrants for three death row inmates and an order to execute them with a single, lethal dose of pentobarbital, a drug previously used to euthanize animals, reported the Bee.
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Monday, November 19, 2012

Killing of police officers increased in 2011

Seventy-two law enforcement officers were feloniously killed in the line of duty in 2011, about a 29 percent increase over 2010. Another 53 officers died in accidents while performing their duties according to an FBI report, Law Enforcement Officers Killed and Assaulted.

The number of officers feloniously killed in 2011 increased by 16.  There were 56 officers killed in 2010. The numbers is also up substantially from the 58 officers killed in 2007 and 56 killed in 2002. The 72 felonious deaths occurred in 30 states and Puerto Rico.

The 72 officers killed in 2011 were killed in the following situations, 23 were killed during arrests, 15 were ambushed, 11 were involved in performing traffic pursuits/stops, nine were involved in tactical situations, and seven were answering disturbance calls. Five of the slain officers were investigating suspicious persons/circumstances; one was conducting an investigative activity, such as surveillance, searches, or interviews; and one officer was killed while transporting or maintaining the custody of prisoners.

Offenders used firearms to kill 63 of the 72 victim officers. Of these 63 officers, 50 were slain with handguns, seven with rifles, and six with shotguns. Six officers were killed with vehicles used as weapons. Two victim officers were killed with personal weapons (hands, fists, feet, etc.). One officer was killed with a knife or other cutting instrument.

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Sunday, November 18, 2012

Using county jail as revenue producer risky

Relying on a county jail as a revenue producer is never a good idea.  The Scranton Times explains counties who live by the "cell" can also die by the "cell."

Lackawanna County, Pennsylvania learned late last month that the state Department of Corrections plans to pull its 50 inmates from the county prison.  The move threatens to blow a $1.75 million hole in the county's budget for next year.

The loss of state inmates is not the first hit for the county prison in terms of inmates whose incarceration produces revenue. Last year, the U.S. Immigration and Customs Enforcement pulled its inmates, costing the county more than $3 million in revenue.

Lackawanna is one of 14 counties whose prisons housed 554 state inmates as of the last week of October.  All 14 counties received similar bad news from the Department of Corrections, reported the Times.

The state plans to ask the counties if they are willing to consider taking state inmates who commit parole violations as part of its efforts to reduce the number of inmates in state prisons.  This in the midst a Justice Reinvestment Initiative that is to save money on the state corrections level and funnel it back to local government to initiate crime fighting efforts.

In September, state officials projected doubling the number of inmates housed in Lackawanna to 100, Warden Robert McMillan said. That caused the county to raise its budget estimate for revenues from housing state inmates to $1,752,000 next year, he said.

The commissioners are already proposing raising the real estate tax by 2.42 mills to 57.42 mills next year. A mill is $1 of tax for every $1,000 of assessed property value. On a property assessed at the average of $13,000 for residential properties, the hike would raise taxes to $746.20 from $715, or 4.4 percent.

A mill of taxation raises about $1.2 million so $1.752 million is equivalent to about 1.5 mills in taxes, though that does not necessarily mean taxes will go up by that much.

Ironically, the commissioners had attributed part of the need for the increase to escalating costs of running the prison, which was looking to hire up to 30 new employees at an estimated cost of $1.19 million to comply with state and federal staffing mandates. The prison accounts for a quarter of spending in the county's 2013 budget, reorted the Times.

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Saturday, November 17, 2012

Juvenile Justice Report: Overhaul System

 A report issued this month by the National Research Council’s Committee on Assessing Juvenile Justice Reform, Reforming Juvenile Justice: A Developmental Approach, suggests the nation’s juvenile justice system must be overhauled to reflect developing knowledge about adolescent development.

This adolescent brain development has played a prominent role in the U.S. Supreme Court decisions in Roper v. Simmons, 125 S, Ct, 1183 (2005) (outlawing the death penalty for juveniles); Graham v. Florida, 130 S. Ct. 2011 (2010) (outlawing juvenile life in prison for non-homicide offenses); and most recently in Miller v. Alabama, 132 S. Ct. 2455 (2012) (banning mandatory life in prison for juveniles).

According to The Crime Report, the report argues that the juvenile justice system would better prevent recidivism and ensure fair treatment for adolescent offenders if it was built to promote healthy psychological development and the involvement of parental figures.

Juvenile justice programs should take differences between adolescents and adults into account, the report argues, noting that adolescents lack emotional maturity, are sensitive to peer pressure and often display a poor grasp of potential consequences.

Recommendations in the nearly 400-page report include using restitution and community service to hold offenders accountable, limiting instances of juvenile confinement, engaging offenders’ families and avoiding justice measures that might hamper successful transitions to adult life.

For full report

Friday, November 16, 2012

The Cautionary Instruction: In Chicago, murder ‘just a few handshakes away’

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

A series of deadly shootings in Chicago over the last weekend in October pushed the city’s homicide total to 435, two more than all of last year. This year’s totals will outpace not only 2011, but 2009 and 2010 as well.

Although 2012 promises to be significantly more deadly than recent years, it pales in comparison to 1991, when there were 928 homicides.

The news goes from bad to worse for Chicago. The police are doing a very poor job of solving murders. The clearance rate for last year's 433 homicides in Chicago was just 30 percent. In other words, 7 out of 10 murderers in Chicago get away with the crime.

Twenty years ago, the clearance rate in Chicago was near 70 percent. Even though there were more than twice as many murders, fewer overall cases went unsolved. The union representing Chicago police officers says one factor in the low clearance rate is that, today, there are fewer detectives.

Chicago Police Superintendent Garry McCarthy has turned to an unusual ally to find a solution to the city’s growing homicide problem.

Andrew Papachristos teaches sociology at Yale University but returned to his hometown of Chicago, to research what McCarthy hopes can help pinpoint those most likely to become shooters. The plan calls for aggressive surveillance and arrest, if warranted, of “hot people.”

Papachristos looked at murders that occurred between 2005 and 2010 in West Garfield Park and North Lawndale, two low-income West Side Chicago neighborhoods. Over that period, Papachristos found that 191 people in those neighborhoods were killed.

Citywide, Chicago’s murder rate is 14.5 per 100,000. But it jumps to 44.5 per 100,000 in those West Side neighborhoods. For the “hot people” on the West Side, the murder rate jumps to 1,865 per 100,000.

Murder occasionally is random, but, more often, Papachristos found, the victims have links either directly to their killers or to others who are linked to the killers. Seventy percent of the killings he studied occurred within what Papachristos determined was a social network of only about 1,600 people -- out of a population in those neighborhoods of about 80,000.

Each “hot person” in that network of 1,600 people had been arrested at some point with at least one other person in the same network.

“They were stopped with a murder victim, or arrested with a murder victim -- or victims --in the past two years,” said Joseph Salemme, commander of Chicago’s fugitive unit. “Or they were two degrees of separation away from the victim or victims.”

Papachristos wrote in a paper last year, “It thus appears that murder in these communities occurs in a very small world where the victims are just a few handshakes away from each other.”

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Thursday, November 15, 2012

Florida court says Miller not retroactive

Last June, the U.S. Supreme Court, in Miller v. Alabama, banned mandatory sentences of life in prison without the possibility of parole for juveniles convicted of murder.

Since the Miller, Florida courts have struggled to apply the ruling — and a Miami-Dade cases may shed some light on some key lingering legal questions, reported the Miami Herald.

Does the Miller ruling apply to past cases? A Miami appeals court, ruling on a South Miami-Dade killer convicted in 2000, doesn’t think so. That decision, which affects at least 180 cases statewide, is likely bound for higher courts.

The nation’s high court in Miller, and a companion case, struck down laws in 28 states that handed out mandatory life sentences without the possibility of parole for minors convicted of murders. The ruling, while hailed by civil rights activists, doesn’t mean Florida judges can’t still impose a life sentence for murder. But they now must at least consider a defendant’s age.

The Supreme Court never explicitly said Miller should apply to past convictions for juveniles, according to the Herald.

Florida has at least 180 defendants who could be eligible for new sentences under the Miller case, according to Barry University’s Juvenile Life Without Parole Defense Resource Center. At least 50 in Miami-Dade may be eligible, according to the Miami-Dade Public Defender’s Office. So far, none have been resentenced.

In the case of Drewery Geter, he was 16 when he raped and slit the throat of nurse Helen Barker in front of her young son in 2000.

After the Miller decision, convicted killer Drewery Geter asked Miami-Dade’s Third District Court of Appeals to toss his murder sentence for raping and slitting the throat of nurse Helen Barker in front of her young son when Geter was 16 years old.

But the court in September ruled Geter couldn’t get a new sentence because judges considering youth during sentencing was merely “evolutionary” and a “procedural change.”

The court also ruled that applying Miller retroactively “would undoubtedly open the floodgates” of long-ago convicted killers seeking new sentences, reported the Herald.

The effect: new judges and prosecutors would be unfamiliar with old cases, trial transcripts might have vanished and relatives of the dead would be forced to live through a new set of court hearings, the panel ruled.

To read more here:

Wednesday, November 14, 2012

It’s Time to Address Federal Prison Overcrowding

Matthew T. Mangino
The Crime Report
November 14, 2012

The most expensive presidential election in history is over. In a campaign dominated by the economy, criminal justice issues played literally no role in either candidate’s campaign.

From a political point of view, ignoring criminal justice issues was the right way to go. According to a Gallup Poll conducted this fall, less than one percent of Americans believed crime was the nation's most pressing problem.

There is no question that violent crime has fallen over the last decade and a half. However, we live in a country where about 14,500 people were murdered in 2011, a significant majority by gun fire.

Every year, thousands of innocent people are victims of burglary, robbery and aggravated assault.

More than 6.6 million people are in prison, jails or under community supervision. Incarceration alone costs taxpayers $65 billion a year. The sputtering economy, which was the focus of both national campaigns, has forced state legislators across the country to choose between being “tough on crime” or raising taxes.

According to CBS News, in 2011, fifteen states passed significant sentencing reform legislation with an eye on cutting costs.

Now, President Barack Obama and a politically divided congress must tackle dangerously overcrowded federal prisons.

A recent report released by the Government Accountability Office, Growing Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure, found that the Federal Bureau of Prisons operated at 39 percent over recommended capacity nationwide.

From 2006 to 2011, prison population grew at 9.5 percent, outpacing the 7 percent growth in infrastructure and new beds. Prisons are staffed at 90 percent, the minimum safe standard, reported the Madison Times.

“This severe crowding has resulted in double and triple bunking inmates,” Harley G. Lappin, Director of the Federal Bureau of Prisons told the U.S. Sentencing Commission in 2011.

“As of January 2011, 94 percent of high security inmates were double bunked, and 16 percent of medium security inmates and almost 82 percent of low security inmates were triple bunked or housed in space not originally designed for inmate housing.”

Overcrowding can create dangerous conditions for inmates and prison staff.

The inability to get into programming can adversely affect an inmate in several important ways. First, mental health issues, drug and alcohol or anger issues are not being addressed.

Second, inmates who want and need the programming begin to get frustrated, and that can lead to acting out. Third, some inmates without programming head to the streets without addressing their criminogenic needs.

Cramped quarters and a lack of privacy can lead to a heightened level of tension in correction facilities. In turn, as tension grows the incidence of violence against staff and fellow inmates increase. With minimum staffing and growing supervision responsibilities, corrections officers and inmates are more vulnerable.

Overcrowding and understaffing is a recipe for disaster.

"If you start cramming more and more people into a confined space, you're going to create more tensions and problems," David Maurer the GAO's Director of Homeland Security and Justice told The Huffington Post.

"It creates the possibility that someone's going to snap and have a violent incident."

Overcrowding itself can exacerbate the crowding problem.

For instance, an inmate with mental health problems living in an overcrowded and unsettled facility will tend to act out. The conduct may be nothing more than defiant or annoying, but misconducts will begin to mount.

An inmate who may have thrived in another environment is now removed from consideration for early release and further contributes to the overcrowding crisis.

The federal prison budget increased from $6.4 billion in 2011 to $6.6 billion this year. Next year the budget is set at more than $6.8 billion. Even with the increase, the Obama Administration is not just blindly throwing money at the overcrowding problem.

This year’s budget provides $153 million in prisoner reentry and jail diversion programs, including $80 million for the Second Chance Act and $52 million for problem-solving grants supporting drug courts, mentally ill offender assistance, and other problem-solving initiatives.

The Obama Administration has acknowledged that, with 2.3 million people in prisons nationwide and 1 in 32 American adults under some form of correctional supervision, a new direction is needed.

One potential direction might include reining in federal over-criminalization. A little more than a century ago there were a handful of federal criminal statutes. As of 2008, there were more than 4,000 federal crimes.

According to the Wall Street Journal, the growing number of federal crimes is responsible for the rising number of people sentenced to federal prison. The U.S. population grew by 36 percent over the last 30 years.

The total federal prison population grew more than eightfold—twice the growth rate of the state prison population.

Investing in reentry services on the back-end might influence the cycle of reincarceration.

However, only bold—forward thinking—initiatives on the front-end will lead to real and meaningful reductions in prison populations.

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Ohio man executed for 1997 murder and mutilation

The 38th Execution of 2012

Brett Hartman was declared dead at 10:34 a.m. November 13, 2012, about 17 minutes after the single powerful dose of pentobarbital began flowing into his veins.  His execution was Ohio's 49th of the modern era, reported The Associated Press.

"I'm good, let's roll," Hartman said after declining a final statement.

He then smiled in the direction of his sister and repeatedly gave her, a friend and his attorney a "thumbs up" with his left hand.

"This is not going to defeat me," Hartman then said to warden Donald Morgan, who didn't respond.

Hartman was sentenced to die for stabbing Winda Snipes of Akron 138 times, slitting her throat and cutting off her hands, reported AP.

The effect of the pentobarbital did not seem as immediate as in other executions at the state prison in Lucasville, in southern Ohio. Four minutes after Hartman first appeared to be reacting to it as his abdomen began to rise and fall, his abdomen rose and fell again, he coughed and his head shifted rhythmically for a few moments.

Hartman, 38, acknowledged that he had sex with Snipes early on the morning of Sept. 9, 1997 at her Akron apartment. He also says he went back to Snipes' apartment later that day, found her mutilated body and panicked, trying to clean up the mess before calling 911.

But Hartman said he didn't kill her, a claim rejected by numerous courts over the years.

Hartman's last meal included steak with sauteed mushrooms, fried shrimp, macaroni and cheese, a baked potato, vanilla ice cream, Pepsi and Dr. Pepper, and cereal with milk, reported UPI.

A former co-worker and friend of Snipes who witnessed the execution said afterward that the family was relieved the case was over and that the continuous rounds of appeals and media reports about the case were at an end. Jacqueline Brown of Doylestown in northeast Ohio also flatly dismissed Hartman's innocence claim, reported AP.

"He's very, very, very guilty," she said afterward. "Now Winda can be at peace, and that's what it's all about."

Stebbins read a statement from Hartman's family in which they professed his innocence and asked for additional testing of scene evidence.

"We hope that the taking of Brett's innocent life might serve as a wake-up call to the flaws in our legal system," the statement said.

To read more:

Tuesday, November 13, 2012

California to drop arrest warrants for parole violators

California corrections officials are poised to drop the arrest warrants of thousands of parole violators, reported the Los Angeles Times. The Department of Corrections and Rehabilitation intends to begin a massive review next week of more than 9,200 outstanding warrants, starting with individuals who were convicted of nonviolent crimes and absconded from supervision.

The mass purge is an attempt to ease the burden on counties in July, when the state hands off responsibility for parole revocations to local courts, said agency spokesman Jeffrey Callison. Weeding out cases that are years old, or of parolees nobody is looking for, will make it easier to focus on those who pose a threat, he said.

It will not, Callison said, "allow some paroles to 'get off the hook.' "

"I have been told that discharging people is not the point of the exercise," he told the Times.

Which is exactly the claim of some victims' advocates who are infuriated by the state's so-called warrant review project.

When inmates are released from state prison, they are required to report to a parole officer. When a felon does not appear, or disappears later, an arrest warrant is issued. With low-level offenders now serving time in county jails, the state's parole population is shrinking dramatically because those released from jail go to county probation, not state parole.

But the same law that shifted responsibility for low-level offenders also requires county courts to take over most revocation hearings for parole violators. The warrant review will remove many of those potential cases.

According to the Times, the plan calls for parole agents to review about 7,000 warrants against low-level offenders to determine if those parolees have violent offenses or multiple felonies, belong to gangs or committed new crimes. Agents will then decide whether to drop the warrant and release the felon from parole.

Once that review is completed, the agency may undertake a similar study of outstanding warrants against missing parolees who committed serious or violent offenses, indicating that they too might be released from state supervision.

To read more:,0,5572697.story

Monday, November 12, 2012

Will Feds block legalized marijuana?

The Justice Department will likely prevent laws in Washington and Colorado, legalizing marijuana, from going into effect by announcing that federal law preempts the state initiatives. Although, the White House and the Justice Department have not yet made a final decision, according to the Washington Post.

Washington state and Colorado approved initiatives on Election Day to decriminalize the possession of less than an ounce of marijuana. Oregon defeated a similar measure. Up to this point, the Justice Department and the White House Office of National Drug Control Policy have been silent about the ballot initiatives.

In 2010, Attorney General Eric H. Holder Jr. said that the administration opposed a pending California measure to legalize marijuana. That same year, the Justice Department sued Arizona to block its law cracking down on illegal immigrants because the administration said it violated federal statutes and was unconstitutional.

Marijuana distribution is the largest source of revenue for the Mexican cartels, according to law enforcement officials, according to the Post.

Lawrence Payne, DEA spokesman, told the Post that more marijuana is seized at the southwest border than any other illegal drug from Mexico. Last year, 1,962,285 kilos of marijuana were seized compared with 23 ,797 kilos of cocaine and 1,308 kilos of heroin.

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Sunday, November 11, 2012

Matter of life and death

The Youngstown Vindicator
November 11, 2012

The most important decision a government can make is to take a human life. Yet the decision, in most jurisdictions, is left to a single person — an elected or appointed prosecutor. Thirty-three states and the federal government provide for the death penalty.

No other legislative mandate delegates so much power, unguided by standards or policy, than the authority vested in county prosecutors. As James E. Lobsenz wrote in the Puget Sound Law Review, “The legislature has given prosecutors unfettered power to request execution, or not request executions, as they alone see fit.” Prosecutors have been imbued with the moral conscience of their communities.

That may not necessarily be a bad thing if, for instance, as in Ohio and Pennsylvania, prosecutors are elected and the electorate is fully informed of the prosecutors position on the issue of capital punishment.

About 15 years ago, then New York Gov. George Pataki intervened in a murder case in the Bronx, because the district attorney refused to seek the death penalty in the high profile case. Pursuant to state law the case was removed from the DA. He complained that the Bronx voters had been disenfranchised because his opposition to the death penalty was well known when he won election and re-election.

Supporting evidence

The removal of a DA from a specific case could not occur in Ohio or Pennsylvania. Although in Pennsylvania the court could intervene to force a prosecutor to provide evidence in support of imposing the death penalty. If the court finds that there is not sufficient evidence the notice to pursue the death penalty can be stricken.

This year Connecticut abolished the imposition of the death penalty in all future cases. Some of the 11 men who remain on the state’s death row sued. In September, Chief State’s Attorney Kevin T. Kane testified at the inmates’ trial. According to The Hartford Courant, Kane testified that he was aware of informal discussions through the years among prosecutors about whether there should be formal guidelines for seeking the death penalty, ultimately “there were no specific policies directed to capital felony cases.”

Ohio’s law provides prosecuting attorneys with the option of seeking the death penalty for murders that involve any of 10 specific aggravating factors.

Prosecutors also consider mitigating factors when making death penalty decisions. According to the Ohio Prosecuting Attorneys Association website those factors include the youth of the accused, duress, criminal record or “[I]f the defendant has a mental disease or didn’t understand that what he was doing was a crime.”

In Pennsylvania, no county prosecutor’s office employs public guidelines defining standards and procedures for seeking the death penalty.

The death penalty is to be reserved for the “worst of the worst.” A prosecutor must assess the deservedness of the death penalty in light of all of the evidence, including the background of the defendant.

A study in Missouri found that about 76 percent of all homicides reviewed were death-eligible, yet prosecutors pursued capital trials in only about five percent of the cases. This appears to be a national trend. Prosecutors are less and less likely to seek the ultimate punishment.

Death sentences plunged last year. Only 78 people were sentenced to death nationwide in 2011, the first time that number dropped below 100 since the death penalty was reinstated, according to the Death Penalty Information Center.

In Texas, where about one-third of all executions nationwide are carried out, death sentences are dramatically down. Thirty-six killers were sentenced to death in Texas in 2002. Nine years later, that number was eight. So far in 2012 there have been six murderers sentenced to death, according to the Waco Tribune.

Ohio’s experience

In Ohio, prosecutors sought the death penalty 94 times in 2004. Last year, that number fell to 56. According to the Cleveland Plain-Dealer, there were seven death sentences in Ohio in 2010, two in 2011 and three so far this year.

The reluctance of prosecutors to seek the death penalty is not necessarily a philosophical shift on punishment, but rather a pragmatic look at a costly and time consuming process that is being trumped by life in prison without the possibility of parole.

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Saturday, November 10, 2012

Too few police contributes to violent crime

Policing levels can have an effect on violent crime and, unfortunately, cities don't have enough police officers. Research by Aaron Chalfin and Justin McCrary of the University of California at Berkeley found that each dollar spent on police is associated with about $1.60 in reduced victimization costs.

According to Chalfin and McCrary,  "the precision of our estimates allows us to confirm the common and somewhat surprising finding [in earlier research] that police have more of an influence on violent crime than on property crime."

The researchers compare costs and benefits of policing in various cities, finding, for example, that every dollar spent on policing in Sunnyvale, Ca., yields only 20 cents in benefits in terms of crime reduction. By contrast, every dollar spent on policing in Gary, In., yields $14 in benefits in terms of crime reduction.

The Full Report:

Friday, November 9, 2012

The Cautionary Instruction: Law and order issues absent in race for President

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

The election is over and President Barack Obama will remain our president for four more years. Whether that makes you happy or sad one thing is clear -- crime, the fear of crime, the punishment of criminals, the efficiency and fairness of our courts -- had nothing to do with the outcome.

Why? A Gallup Poll this fall found that less than one percent of Americans believed crime was the nation's most pressing problem. As a result, we didn’t hear so much as a “peep” out of either candidate on law and order issues.

However, crime was on the mind of some voters. On Tuesday, 17 states considered ballot measures and referendums that had implications for the criminal justice system. Here’s how some of those initiatives turned out.

California voters had several law and order issues on the ballot. Proposition 34 would have replaced the death penalty with life in prison without parole and would have overturned the death sentences of 727 death row inmates. California had executed just 13 inmates since restoring the death penalty in 1978. The death penalty survived by about 6 percentage points.

On the other hand, Proposition 36, a ballot measure to reform California's Three Strikes Law passed with 68 percent of the vote. The revised law requires that a third offense, resulting in life in prison, be of a serious or violent nature.

Recreational marijuana use is now legal in two states. Under measures in Colorado and Washington, those 21 years of age and older will be allowed to purchase up to one ounce of marijuana. Colorado’s Amendment 64 passed with 54 percent of the vote, and Washington’s Initiative 502 garnered 55 percent.

In North Dakota, Measure 5 would have made it a felony for anyone to maliciously harm a dog, cat or horse. The measure was soundly defeated by North Dakota farmers and ranchers who convinced 67 percent of their fellow citizens to vote against it.

Crime did play an unexpected role in a couple of races. Two Republicans, Rep. Todd Akin of Missouri and Richard Mourdock of Indiana, made harshly criticized remarks about rape and abortion and lost Senate bids that they were widely expected to win.

Some issue advocates who’s causes where all but ignored during the campaign found a silver lining, not necessarily in what a candidate said, but by merely what he did.

On the weekend before Election Day, President Obama held a rally in Aurora, CO, where 12 people were gunned down in a movie theater last summer. Although the president didn’t make a stirring call for gun control, Dan Gross, president of the Brady Campaign to Prevent Gun Violence felt the symbolism of the visit was unmistakable.

In an election devoid of law and order issues even the most subtle acknowledgement was a victory.

Visit Ipso Facto

Thursday, November 8, 2012

Pennsylvania execution stayed

The Third Circuit Court of Appeals ordered an 11th-hour stay to Pennsylvania's first execution in 13 years, reported Reuters.

Hubert Michael Jr., 56, was sentenced to death after pleading guilty to the 1993 murder of Trista Eng, 16. He was scheduled to be executed at 7 pm this evening. The state pardons board rejected a bid for clemency on Wednesday.

The Third Circuit Court of Appeals ordered a 14-day stay in the execution. The Pennsylvania attorney general's office then filed an emergency motion with the U.S. Supreme Court to vacate the order.

The warrant for Michael's execution runs out at midnight, meaning it will not go ahead unless the high court rules by then, reported Reuters.

Attorneys for Michael say he has Asperger's syndrome, a disorder that can cause sufferers to have trouble with social situations, be uncomfortable with changes in routine or have heightened sensitivities to certain situations.
  To read more:,0,2616587.story

Texas carries out its13th execution of the year

The 37th Execution of 2012

Mario Swain described by prosecutors as a fledgling serial killer was executed in Texas on Thursday, November 8, 2012, according to The Associated Press.

The 38-year-old Swain received a lethal injection for an East Texas woman's slaying during a break-in at her home a decade ago.

Lola Nixon of Longview was attacked with a tire iron, stabbed and strangled two days after Christmas in 2002. The 46-year-old woman's body was found in an abandoned car in a remote area outside the city 120 miles east of Dallas, reported the AP.

The U.S. Supreme Court last month refused to review Swain's case and no last-day appeals were filed to try to stop the punishment.

Evidence and testimony at his 2003 trial showed Swain had a history of attacking women.

His execution is the 13th this year in Texas.

To read more:

Execution scheduled for tonight in Pennsylvania

Would be first execution in 13 years

Hubert Michael Jr. is to be executed tonight in Pennsylvania for murdering a teenage girl he randomly targeted 20 years ago. The last person executed in Pennsylvania was Gary Heidnik on July 6, 1999.  There have been only three executions in Pennsylvania since 1976.  All three were volunteers.

Michael was charged in 1991 with a violent rape in York County. He later would proclaim that he killed 16-year-old Trista Eng — while out on bail for a charge in Lancaster County — because he was "unjustly accused," reported the Lancaster New Era.

"He was angry about the Lancaster County case and wanted to take his anger out on a woman," York County District Attorney Tom Kearney said Wednesday, reciting Michael's court testimony.

Yesterday, a federal judge and the state Board of Pardons both denied Michael's motions for a stay of execution. He is to be executed tonight in death chamber at SCI Rockview at 7 pm.

A federal judge also ruled that witnesses to the execution be allowed "full visual and auditory observation." The full execution from start to finish will be viewed by witnesses, according to the New Era.

To read more:

Wednesday, November 7, 2012

Death Penalty Survives in California

California voters on Tuesday rejected a ballot measure that would have repealed the state's death penalty, reported the San Jose Mercury News.

Proposition 34 lost by about 6 percentage points, dimming the hopes of death penalty opponents who were trying to abolish the death penalty in California and clear the largest death row in the nation.

The measure would have replaced the death penalty with life in prison without the possibility of parole and converted the death sentences of California's 727 death row inmates to life. It would have reverberated through the national debate over the death penalty, while immediately removing nearly a quarter of the more than 3,100 death row inmates now awaiting execution across the country.

California has executed just 13 inmates since restoring the death penalty in 1978, the result of an appeals process that takes decades and often results in death sentences being overturned long after a murderer is sent to San Quentin, reported the Mercury News.
Executions have been on hold for nearly seven years in California, the result of ongoing legal challenges to the state's lethal injection method. Those court battles will continue to unfold, likely ensuring another year or more of delays before the state can realistically resume executions.

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Tuesday, November 6, 2012

Colorado closes prison opened in 2010

Taxpayers on the hook for $208 million

Just recently, Colorado shut down a brand-new prison it didn't need, reported the Denver Post. Problem is the state just opened the prison in 2010.

Unless the state government finds someone else who can use it, Colorado taxpayers can expect to spend $208 million for an empty building.

Finding someone else may not be easy. Colorado State Penitentiary II, also known as Centennial South, consists of 948 solitary-confinement cells. It has no dining room, no gym, no rooms where a group of prisoners could take classes or go to therapy or get vocational training. It's row after identical row of empty cells, reported the Post.

From the beginning, critics of this project objected, correctly, that Colorado was putting people in solitary confinement at a rate that dwarfed the national average.

It was built even though most legislators opposed the prison in 2003, according to a key player. Another bit of legislative ingenuity overcame that problem. The sponsors lumped the prison with a new University of Colorado medical campus and gained bipartisan support for two projects financed without a vote of the people.

Separately, neither project would have passed, according to Republican Norma Anderson, the Senate majority leader and bill sponsor in 2003, reported the Post.

The statisticians who predicted prison populations played a part. The Division of Criminal Justice, for one, foresaw numbers of Colorado prisoners going up and up. Instead the prison population declined along with the crime rate, while judges sentenced fewer people to prison. Today, Colorado holds about 7,500 fewer prisoners than forecast six years ago.

It finally opened in 2010, over renewed objections that Colorado didn't need it. The corrections department, in turn, won the fight to open it with a misleading claim that most states actually held more prisoners in what the department calls "administrative segregation."

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Monday, November 5, 2012

PA appellate court defines "involved" in an accident

Last week, the Pennsylvania Superior Court found that a driver who causes an accident without actually striking anything with his or her vehicle can still be convicted of leaving the scene following an accident involving death or personal injury.

Gina Passarello writes, in The Legal Intelligencer, about Christopher Anthony Lowry who argued that while he recklessly turned his car in front of other vehicles, causing them to crash and someone to die, there was not enough evidence to convict him of being "involved" in an accident because his vehicle didn't strike anything.

The three-judge Superior Court panel noted in Commonwealth v. Lowry the Motor Vehicle Code does not define what it means to be "involved" in an accident. The judges said Lowry's argument is one of first impression for the court that required it to determine whether Section 3742 of the code requires a defendant to physically impact a vehicle, object or other person for the defendant to be deemed "involved" in an accident.

Section 3742 requires a driver involved in an accident that results in injury or death to another person to stop and remain on the scene, wrote Passarello.

"To interpret Section 3742 to require some form of physical contact would permit defendants to circumvent that intent," Judge Judith F. Olson said. "For example, under [Lowry's] interpretation of Section 3742, a driver who intentionally runs someone off the road, yet does not contact the other vehicle, and then flees the scene, would not be guilty of a Section 3742 violation (although he may be guilty of other offenses). Certainly, such an absurd result was not the General Assembly's intent when it passed Section 3742."

In October 2009, Lowry pulled out of a gas station toward Route 51 in Jefferson Hills Borough in Allegheny County. A witness testified that Lowry made a left turn across two lanes of traffic onto the highway. Lowry, according to the witness, crossed into the path of oncoming traffic. The witness said Lowry's tires spun and smoke came out of the front tires as he sped out of the gas station, according to the opinion.

The driver of an SUV hit his brakes, which the witness said appeared to lock up, causing the driver to fishtail and hit a car coming in the opposite direction. The driver of the car coming in the opposite direction was killed, Olson said.

Passarello wrote, Lowry acknowledged that he pulled into traffic and was nearly involved in an accident. But he argued that he was able to avoid an accident and had no way of knowing that cars behind him were then in an accident, as he had driven around a bend and merged into traffic.

The Superior Court said the jury rejected that argument and instead accepted the facts presented by the state, which included the fact that the accident caused a very loud noise and scattered debris.

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Sunday, November 4, 2012

California considers pretrial diversion as cost saver

Pretrial programs in San Francisco, Santa Clara and Santa Cruz allow nonviolent defendants who cannot afford bail to continue living at home, to work and to care for their children while they await trial, reported the San Fransisco Chronicle.

As county jails around California swell with inmates, some are pushing counties and the state to adopt similar programs that would let qualified detainees out of jail without having to post bail.

Advocates, including the American Civil Liberties Union and some Democratic lawmakers, say the programs promote both public safety and justice by using scientific evaluations to help judges decide whether it is safe to release a defendant before they go to trial. The current bail system, they say, favors wealth and strands low-income people behind bars because they cannot afford bail amounts. They also argue that a defendant who gets out of jail is less likely to accept a plea deal and has a better chance of an acquittal or a shorter sentence if they go to trial.

According to the Chronicle, Opponents, including the bail bond industry and some law enforcement and victims rights groups, say defendants pose a lesser flight risk when they have to put up money for a bail bond and that pretrial programs pose a risk to public safety, because they do not focus on the crime a person is charged with.

Under the programs, nonviolent defendants who qualify for pretrial release are either freed on their own recognizance - that is, only a promise to appear, though often there are restrictions on their behavior - or placed on supervised release, which can range from mandated group therapy to probation-like check-ins or electronic monitoring.

In San Francisco, for example, someone placed on supervised release may have to go to an anger management group once a week until the case is adjudicated and will have a case manager checking in to make sure that person appears in court.

Supporters say these programs are crucial, especially since 62 percent of county jail beds in California are filled with pretrial detainees, according to state records available online. In 32 counties, jails are filled to capacity, and some sheriffs are releasing convicted criminals early to keep crowding down.

Allen Hopper, criminal justice policy director at the ACLU of Northern California, told the Chronicle pretrial programs save taxpayer dollars and ensure that jail beds are filled with people already convicted of crimes, not those "who are presumed, under our constitutional form of government, innocent until proven guilty."

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Saturday, November 3, 2012

Supreme Court takes up drug sniffing dogs

Adam Liptak of the New York Times wrote about the U.S. Supreme Court hearing arguments this week in the case of drug-sniffing dogs.  According to Liptak, the Supreme Court seemed open to limiting their use outside homes but not near cars.

The first argument concerned Franky, a chocolate Labrador retriever who detected the smell of marijuana outside a Florida house. The police obtained a warrant to search the house based on Franky’s signal, and they found a marijuana-growing operation inside.

According to Liptak, the court’s four liberal justices all asked questions that were skeptical of allowing dogs to sniff around near homes without probable cause. They were joined by one of the court’s conservatives, Justice Antonin Scalia, who sometimes staked out positions more protective of homeowners’ privacy than the lawyer for the defendant in the case.

Liptak continued:

The Supreme Court has said the privacy of the home is at the core of what is protected by the Fourth Amendment’s ban on unreasonable searches. Justice Scalia is the author of the majority opinions in both a 5-to-4 decision in 2001 limiting the use of thermal-imaging technology to peer into homes and a unanimous ruling in January, on varying rationales, limiting the use of GPS tracking devices on cars.

Justice Scalia’s opinion in the second case was based on the physical trespass of attaching the GPS device, and trespass issues were at the heart of his questioning this week.

Justice Ruth Bader Ginsburg asked if there was anything to prevent the police from routinely using dogs to “sniff in front of every door, or go into an apartment building.”

Gregory G. Garre, a lawyer representing the prosecutors, said “they could do that” but might be deterred by “the restraint on resources and the check of community hostility.”

The second argument, in Florida v. Harris, No. 11-817, concerned Aldo, a German shepherd who helped his human partner find chemicals used to make methamphetamines in a pickup truck that had been pulled over near Bristol, Fla., according to Liptak. The questioning was sedate, and the defendant’s lawyer, Glen P. Gifford, seemed to gain little traction for his argument that Aldo’s reliability had not been adequately established.

Chief Justice Roberts asked whether dogs that were good at one task were necessarily good at another. “Can they be good at bombs,” he asked, “but not good at meth?”

Counsel said he did not know because dogs tended to specialize. “I think once a dog kind of chooses a major,” he said, “that’s what they stick with.”

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Friday, November 2, 2012

The Cautionary Instruction: Tracking sex offenders for life

The Pittsburgh Post-Gazette/Ipso Facto
November 2, 2012

Florida law provides that all sex offenders convicted of an offense against a child under age 12 shall be monitored by GPS tracking technology for life. The law was named for Jessica Lunsford who was raped and murdered by a convicted sex offender in 2005.

Forty-one states and the District of Columbia have some form of electronic monitoring of offenders.  In Pennsylvania, the statute provides “The Pennsylvania Board of Probation and Parole and county probation authorities may impose supervision conditions that include offender tracking through global positioning system technology.”

At least seventeen states have laws that provide for some form of electronic tracking for sex offenders on supervised release and some states including Florida, Missouri, Ohio, Illinois Oklahoma, South Carolina and California have laws which require certain high-risk child and violent sex offenders to be monitored by GPS for life.

A study of California’s sex offender GPS tracking found significantly better outcomes for both compliance and recidivism. Re-arrest is twice as high for those offenders under traditional parole supervision. In terms of violating parole, those under GPS monitoring were 38 percent less likely to violate than those under traditional parole supervision. However, GPS monitoring costs about 30 percent more a day than traditional parole supervision.

GPS devices are capable of tracking all of an offender’s movements, both in and outside the home or place of work. In fact, commercial GPS technology is so accurate that systems can locate an offender anywhere on land or sea within a margin of error of about six feet.

There are two forms GPS monitoring -- passive and active. A passive system transmits data to the supervising agency, once or twice a day, on an offender’s movements. An active system monitors an offender in real time. If an offender enters or leaves a restricted zone the agency would be immediately notified of the offender’s location.

In May, the South Carolina Supreme Court struck down a statute that provided for life-time GPS monitoring of sex offenders. However, the court took an unusual turn and granted reconsideration of the case. Additional arguments were conducted in September and the decision is pending.

The U.S. Supreme Court has not addressed the use of lifetime electronic monitoring although they have upheld sex offender registration requirements.  Last year, the Supreme Court struck down GPS tracking by police of an individual without a search warrant.

The Supreme Court may eventually find that lifetime GPS monitoring of sex offenders is justified after balancing the offender’s individual rights against the government’s interest in protecting society against sex-offenders.

Some complain that wearing a GPS bracelet for life is overly burdensome and intrusive. However, sub-dermal (under the skin) devices may be right around the corner. Inserting an electronic tracking chip for life -- is that less intrusive or more intrusive?

Thursday, November 1, 2012

S.Dakota executes 2nd killer in a month, 4th since 1913

The 34th Execution of 2012

Donald Moeller convicted of the 1990 rape and murder of a 9-year-old girl was put to death in South Dakota on Halloween night.  He had professed his innocence for more than two decades before finally admitting in early October that he had raped and fatally stabbed Becky O'Connell after abducting her from a Sioux Falls convenience store where she had gone to buy candy.

Moeller was pronounced dead by lethal injection at 10:24 p.m. local time at the state prison in Sioux Falls, according to the state corrections department. He was the second convicted killer put to death in South Dakota this month, but only the fourth since 1913.

O'Connell's mother, Tina Curl, and her stepfather, Dave Curl, drove from their home in Lake Luzerne, New York, 1,400 miles, to witness Moeller's execution.

He will no longer take another breath or hurt another child," Dave Curl said of Moeller, adding that the execution would never give them closure, though there was some feeling of relief.

"Everyone keeps telling us to make this about Becky. There is no Becky because of Donald Moeller," Curl said. "Whether right or wrong, we will hate that son-of-a-bitch until the day we die. May he rot in hell."

According to court records, he had repeatedly raped and stabbed the girl. Her body was found in a wooded area with extensive knife wounds the morning after she vanished.

Moeller was convicted of rape and murder and sentenced to death in 1992, but was granted a new trial after the state Supreme Court ruled that testimony of previous attempted sexual assaults on three other people was inadmissible.

He was convicted and sentenced again in 1997 but continued appeals until recent weeks, when he halted further efforts to seek a reprieve and admitted to the crimes in a hearing in early October.

"If the rape and murder of Rebecca O'Connell does not deserve the death penalty, then I guess nothing does," he told the judge.

Moeller ate a last meal of scrambled eggs, sausage links, tater tots and drip coffee, the corrections department said.

When asked whether he had any last words before his execution, Moeller replied, "No, sir," then asked, "They're my fan club?" in apparent reference to the witnesses for the execution.

Executions have been rare in South Dakota. Before this year, the state had put to death only two inmates since 1913. On October 15, it executed Eric Robert for the killing of prison guard Ron Johnson during a failed escape attempt.

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Listen to Mangino's Commentary on WYSU-FM

Listen to my October 26, 2012 commentary, "The Cost of Pretrial Detention" broadcast during NPR's Morning Edition on WYSU-FM.

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Former Penn State president to be charged today

Graham B. Spanier, the Pennsylvania State University president ousted last year for his handling of the Jerry Sandusky child sex abuse scandal, is expected to face criminal charges today in connection with the case, sources close to the investigation told the Philadelphia Inquirer.

Attorney General Linda Kelly is expected to announce perjury and obstruction of justice charges against the ex-administrator at a noon news conference in Harrisburg, the sources said. They spoke on the condition of anonymity because they were not authorized to publicly discuss the case.

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