Thursday, February 28, 2013

Sec. Tennis: PA has prescription drug abuse epidemic

Pennsylvania Department of Drug and Alcohol Programs Secreatry Gary Tennis said prescription drug abuse is so bad "it's a commonwealth epidemic."

Tennis told ABC 27 in Harrisburg 4.2 percent of Pennsylvanians are abusing prescription drugs. Some federal reports also indicate that Pennsylvania is among a group of states with some of the highest rates of drug overdose deaths in the county.

According to federal health reports, prescription drugs play a large role.

Tennis took his post at Drug and Alcohol Programs, a new department, last year after he was appointed by Governor Tom Corbett. The department's goal is to help Pennsylvanians struggling with addiction.

Reducing prescription drug abuse is near the top of the agency's to-do list.

Doing that, Tennis said, will require some help from the legislature. He hopes they will pass a new pill bill that would monitor those who "doc shop" to get prescription medication. Under the bill, health care professionals would be able to look up what drugs patients have received.

A statute like this is already in place, but Tennis hopes to increase doctor communication and monitoring.

Tennis admits that reducing the problem will take a multi-faceted approach. He says working with health care professionals is a big part of the solution, too.

"[We need] better physician training both in terms of prescribing practices and in terms of spotting addiction," Tennis told ABC 27.

While the problem is an epidemic in Pennsylvania, Tennis is optimistic that the he can help break the state's prescription pill addiction.

"This problem is unnecessary. With the right kind of response, we can really get this problem under control. We really can reduce prescription drug abuse. We know we can drive this problem down," Tennis told ABC 27.

To read more:

New Hampshire legislator: 'People like being in abusive relationships'

As the Congress rangles over the reauthorization of the Violence Against Women Act, we get a glimpse from New Hamspshire of what some lawmakers think of domestic violence.

“A lot of people like being in abusive relationships. It’s a love-hate relationship. It’s very, very common for people to stick around with somebody they love who also abuses him or her,” said Rep. Mark Warden, a Republican during a meeting of the House Criminal Justice and Public Safety Committee, according to Concord Monitor.

According to a video of the committee meeting, Warden added, “Is the solution to those kind of dysfunctional relationships going to be more government, another law? I’d say no. People are always free to leave.”

According to the Monitor, there appeared to be little immediate reaction from committee members to Warden’s comments, based on the Granite State Progress video. Rep. Laura Pantelakos, the committee’s chairwoman, did tell Warden he was wrong that people are able to leave abusive relationships at any time.

“It didn’t dawn on them in the beginning,” Pantelakos said later in the day. “It wasn’t something they were expecting.”

Amanda Grady Sexton, director of public policy at the New Hampshire Coalition Against Domestic and Sexual Violence, attended yesterday’s hearing.

“Rep. Warden’s comments point to an overall lack of education around the dynamics involved in a domestic violence relationship. It can be incredibly difficult for a victim of domestic violence to leave because of how much power and control their abuser has over their lives,” she wrote in an email to the Monitor. “The simple truth is no one enjoys being assaulted by an abuser – and for anyone to say otherwise speaks from a place of ignorance.”

To read more:

Wednesday, February 27, 2013

NYPD implements futuristic crime fighting tool

New York City Police Department and Microsoft are partnering in the creation and implementation of a futuristic crime fighting tool that could revolutionize policing.

The Domain Awareness System, known as the dashboard, gives easy access to the police department's voluminous arrest records, 911 calls, more than 3,000 security cameras citywide, license plate readers and portable radiation detectors. This is all public data - not additional surveillance, reported the Seattle Times.

Right now, it is used only in NYPD offices, mostly in the counterterrorism unit. Eventually, the system could supply crime-fighting information in real time to officers on laptops in their squad cars and on mobile devices while they walk the beat.

"It works incredibly well," Jessica Tisch, director of planning and policy for the counterterrorism unit, told the Times.

For example, officers used the system during a deadly shooting outside the Empire State Building in August. Dozens of 911 calls were coming in, and it initially looked like an attack staged by several gunmen. But officers mapped the information and pulled up cameras within 500 feet of the reported shots to determine there was only one shooter.

"This is the kind of stuff you used to only see in movies," Rob Enderle of Enderle Group, a technology analysis firm, told the Times. "Getting it to work in a way that police departments can use in real time is huge."

The venture began in 2009 when the NYPD approached Microsoft about building software to help mine data for the Lower Manhattan Security Initiative, a network of private and public cameras and other tools monitored by the department's counterterrorism bureau. Development cost the department between $30 million and $40 million, officials said.

According to the Times, the system uses hundreds of thousands of pieces of information. Security camera footage can be rewound five minutes so that officers can see suspects who may have fled. Sensors pick up whether a bag has been left sitting for a while. When an emergency call comes in, officers can check prior 911 calls from that address to see what they might be up against.

To read more:

Tuesday, February 26, 2013

Denver limits the role of police officers in schools

 Leaders from the Denver Police Department and Public School System are to sign an eight-page contract that will limit the role of law enforcement in the city’s schools — a move that could mean fewer students will face arrest or citation for disciplinary infractions, reported the Washington Post.

I wrote about the school-to-prison pipeline that exists in many school districts across the country as educators have deferred ordinary discipline problems to the police for prosecution.  The pipeline has been exacerbated by the increase in police officers in the schools.

This agreement will bring detail to often-murky questions about the role of police in schools. The agreement emphasizes differences between student offenses that should be handled by educators and those that need police action, urges de-escalation of campus conflict when possible, and supports “restorative justice” practices that focus on making amends for misconduct rather than punishing for it.  

Denver Superintendent Tom Boasberg The Post the move marks a “step forward” for the system of 84,000 students. “We believe that an effective restorative justice approach makes schools safer, helps keep our kids in school and on track to graduation, and makes kids learn from their mistakes and make them right,” he said.  

Denver police officials spoke positively about the agreement but said it reflects a continuing effort. The city has 15 police, called school resource officers, in its 170 schools. That number has remained steady even as the citywide force has not been able to hire because of economic strain, police said.   “I like to think we were already doing it right, but we’ve memorialized what we were doing in writing,” David Quinones, the Denver Police Department’s deputy chief of operations told The Post. The goal of police has not been to arrest students, he said, but to create a safe campus and be good role models. “Now it’s more defined,” he added.  

The security concerns that follow tragedies nationally are shared in Denver. Changes in police practices followed Columbine, Quinones said, and after Sandy Hook, patrol officers are required to build relationships with all schools in their precincts. As happened elsewhere, he said, “Connecticut really opened our eyes.”   To read more:

Monday, February 25, 2013

Nebraska considers alternative to life without parole for juveniles

The Nebraska legislature will consider a bill this session that will eliminate life without parole for juveniles and replace it with 30 years to life for people who are convicted of first degree murder while under the age of 18.

The committee originally had considered a sentence of 20 years to life, but committee members who were present appeared more comfortable with a minimum sentence of 30 years. An inmate would be eligible for parole in 15 years, so an 18-year-old would be eligible for parole at 33, reported the Lincoln Journal Star.

The bill is in response to last year's U.S. Supreme Court decision ins Miller v. Alabama where the court struck down mandatory life in prison without the possibility of parole for offenders who commit murder as juveniles.

Nebraska's bill does not address whether those serving life terms now for murders they committed as youths could have those sentences changed.

"We're just not going to make it retroactive," Senator Brad Ashford told the Lincoln Journal Star. "In talking to most of the experts that are trying these cases, it's very likely that the courts are going to make it retroactive. And so, we don't want to put something in statute ... that would somehow influence that or make it harder or more difficult."

"It recognizes without question ... what the Supreme Court has clearly stated to be the case in Miller (v. Alabama) about brain development," he said. "I think this is a very fair compromise."

At the hearing on the bill, Dr. Kayla Pope, a child and adolescent psychiatrist at Boys Town National Research Hospital, who is also an attorney and neuroscience researcher, testified that research shows adolescents use the more primitive part of their brains, responsible for gut reactions including fear and aggressive behavior, when reasoning or solving problems.

In addition to finding that mandatory life without parole for those younger than 18 violates the Eighth Amendment’s prohibition on cruel and unusual punishment, the Miller court also ruled that judges must consider all circumstances of a case including a defendant's age, immaturity, impetuosity and failure to appreciate risks and consequences. They must take into account the family and home environment that surrounds the youth, reported the Lincoln Journal Star.

To read more:

Sunday, February 24, 2013

California budget woes may shrink juries

California judges say the state's financial woes and a $1.2 billion dollar cut in court funding over the last four years are forcing the courts to push for smaller juries. California is considering reducing the number of juries in some cases from 12 to eight.

The change would not be as radical as it sounds. The U.S. Supreme Court, in a series of rulings since 1970, has upheld convictions by juries with as few as six members. The Justice Department says 39 states authorize juries with fewer than 12 members, mostly for misdemeanor cases, reported the San Francisco Chronicle.

California requires 12-member juries for felonies but allows smaller juries in misdemeanors and civil suits if both sides agree.

The change would require a state constitutional amendment to shrink juries from 12 to eight members for misdemeanors, crimes punishable by up to a year in jail.

The judge's association is also proposing legislation that would cut the number of prosecutors' and defense attorneys' challenges to prospective jurors, likewise in the interest of saving time and thus money.

According to the Chronicle, passage of a constitutional amendment, which requires a two-thirds majority in both houses and approval by a majority of state voters, would be difficult, but some suggest "it's an important subject at a time that the judicial system is in crisis."

A committee of presiding Superior Court judges wants to go further and eliminate jury trials altogether for misdemeanors punishable by less than six months in jail. Those cases would be heard by a judge. Juries would be reduced to eight members for other misdemeanors and civil suits.

"What you're giving up is the constitutional guarantee that you're going to be tried by a jury of your peers," San Francisco Public Defender Jeff Adachi told the Chronicle. "There are not as many individuals scrutinizing the evidence, and there are fewer minorities."

Studies in other states, where smaller juries are common, have found that they increase the chance of an erroneous conviction, Adachi said. A 2004 study by the National Center for State Courts concluded that smaller juries would save money but "likely be less representative of the community."

To read more:

Saturday, February 23, 2013

New Mexico Legislature Pursues Expungement, Again

The New Mexico Senate is considering a bill that would allow certain criminal records to be expunged in cases involving identity theft or wrongful arrest. Senate Bill 294 has made it through Senate committees without opposition and is on the Senate floor agenda this week, reported the Santa Fe New Mexican.

There is one problem, Gov. Susana Martinez, a former prosecutor vetoed an identical bill last year and when asked if there was anything the legislature could do to the bill that could get her to sign it this year, she answered: “No.”

The bill would allow a person’s public criminal records to be expunged after a hearing before a district judge. The person would have to convince the judge that he or she was a victim of identity theft or wrongful arrest, or that one year has passed after a dismissal or release without conviction on any alleged misdemeanor or felony charge.

According to the New Mexican, Martinez said in her veto message last year that the bill would “fundamentally and negatively alter the New Mexico criminal justice system and place a significant impediment on the public’s and media’s right to know about information relating to convictions, arrests and other criminal proceedings.”

In the message, Martinez wrote that innocence isn’t the only reason someone would be charged but not convicted of a crime. “For example,” she wrote, “people who pressure or intimidate victims or witnesses into not testifying at trial are not always convicted. … Even more concerning is that it also provides for the expungement of convictions for certain crimes, including domestic violence, allowing a court to decide that the public and media no longer deserve to know about an individual’s convictions.

“Employers should not have their access to this information denied, and it would be tragic for a parent to lose their ability to inquire into the background of a potential childcare provider who, hypothetically, had been arrested three times for child abuse or been convicted previously of domestic violence.”

To read more:

Friday, February 22, 2013

The Cautionary Instruction: Duquesne Law to examine plea bargaining

The Pittsburgh Post-Gazette/Ipso Facto
February 22, 2013

The plea bargain, however unpopular or unseemly, plays a central role in the administration of justice. Next week, Duquesne University School of Law will host a national symposium on plea bargaining in the wake of the U.S. Supreme Court decisions in Lafler v. Cooper and Missouri v. Frye.

The two 5-4 decisions authored by Justice Anthony M. Kennedy recognize that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when they miss out on, or reject, plea bargains because of bad legal advice.

“Last term, the Supreme Court recognized that a defendant has not only a right to a lawyer during plea bargaining but a competent lawyer. This recognition was vitally important in a world in which 95% of all convictions are the result of guilty pleas,” said Wesley M. Oliver, symposium organizer and Associate Professor and Criminal Justice Program Director at Duquesne.

The symposium, Plea Bargaining after Lafler and Frye, will pull together scholars and practitioners to explore what advocacy means in a system where effective plea bargaining has been elevated to a constitutionally protected right.

As courts wrestle with the implications of Lafler and Frye -- jurists have to determine what it means to be an effective negotiator and how to create a remedy for defendants who are denied that right.

The symposium will kick-off on next Thursday evening with a keynote address by The Honorable W. Louis Sands of the United States District Court for the Middle District of Georgia.

Sands, a former state and federal prosecutor, was raised in poverty in rural Middle Georgia. In 1991, he became the first African-American appointed to the Superior Court of the Macon Judicial Circuit, where he served until his appointment to the United States District Court.

Friday’s session will begin with an address by the Honorable Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit. He has been a judge on the court since 1985 and has been Chief Judge since 2006.

Easterbrook is one of the most cited appellate judges in America. In 1974, he joined the solicitor general's office, where he served first as assistant to the solicitor general and later as deputy solicitor general of the United States. He returned to University of Chicago Law School in 1979, until his appointment to the federal bench.

Friday’s session will also consist of a series of panel discussions, each hosted by a prominent Pittsburgh lawyer or judge, focusing on the application and implementation of Lafler and Frye in state and federal courts.

The morning panels begin with Changes in the Plea Process; followed by Evaluating the Effectiveness of a Criminal Negotiator, featuring Stephanos Bibas of the University of Pennsylvania Law School.

The afternoon panels include, The Role of Plea Bargaining in the Criminal Justice System; followed by Is Plea Bargaining Legitimate? featuring Gabriel Chin of the University of California-Davis School of Law; and closing with Remedies for Petitioners, featuring Professor Oliver.

To register for Plea Bargaining after Lafler and Frye click here.

To visit Ipso Facto

Thursday, February 21, 2013

Police may not detain suspect away from search

The U.S. Supreme Court has long held that when police execute a search warrant, they may detain anyone found on the premises while the search is conducted. The Fourth Amendment generally requires police to strongly suspect an individual has committed a crime before the person can be detained.

However, in Michigan v. Summers, 452 U.S. 692 (1981)the court ruled police could detain people without suspicion during a search to keep them from doing harm to officers, keep them from fleeing and allowing them  to permit entry without damage to property.

This week the high court ruled in  Bailey v. U.S., 11-770 that police may not detain someone who is away from their home while a search of their home is being conducted.

According to NPR, the case stemmed from an informant's tip telling police about a handgun and drugs in a basement apartment on Long Island. As one group of policemen was preparing to execute a search warrant, other officers conducting surveillance outside the residence saw two men leave.

They followed the men for about a mile and then pulled them over, searched them, found no drugs or weapons, but did find keys to the apartment. The officers then handcuffed the men and brought them back to the apartment. One of the men, Chunon Bailey, was then convicted, using, among other things, statements he made at the time he was stopped by police, and the keys, as evidence showing that he lived at the apartment.

A federal appeals court upheld the detention, but the Supreme Court ruled it was illegal, and sent the case back to the lower courts, casting doubt on whether the conviction will survive.

Writing for the six-justice majority, Justice Anthony Kennedy said none of the concerns present in the Summers case justified Bailey's detention. "The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched," he said. To do otherwise gives the police too much discretion, Kennedy said, according to the Associated Press.

The court said that once an occupant has left the "immediate vicinity" of the premises, he cannot be detained unless police have probable cause for an arrest, or possibly, reasonable suspicion that would justify a quick stop and questioning of the individual, reported NPR.

To read more:

Wednesday, February 20, 2013

Mangino Interviewed on Inside Story Americas

Click below to watch the inteview on Inside Story Americas on Al Jazeera English television:

Inside Story Americas

US: A nation of inmates?

We examine the impact of America's high incarceration rate on its penal system and on poor and minority communities.

There are more prisoners in the US than any other nation in the world.
The country makes up five percent of the world's population, but accounts for 25 percent of its prison population. And over the last three decades the number held in US federal prisons has jumped by nearly 80 percent.
"There has been in this country over the last 30 years a relentless upward climb in the incarcerated population and disturbing as the situation is with the federal prison system, that is really only the tip of the iceberg because the federal prison system is only about 10 percent of the total number of people incarcerated in this country. On any given day, we have about 2.3 million people behind bars in federal, state and local facilities."
- David Fathi, ACLU National Prison Project
The number of inmates in US federal prisons has increased from about 25,000 in 1980 to 219,000 in 2012, according to a report by the US Congressional Research Service.
The report says the federal prison system was 39 percent over its capacity in 2011. And the situation is worse for high and medium security male facilities.
High-security prisons were overcrowded by 51 percent, while medium security prisons were overcrowded by 55 percent in 2011.
According to a report by the Government Accountability Office, overcrowding has contributed to worse safety and security conditions for both inmates and staff.
The overcrowded facilities have contributed to a multibillion dollar demand for private prisons. The industry argues it is helping the government save money. But others argue that for-profit prisons only increase the incentive to incarcerate more people.
Almost half of those incarcerated in federal prisons are drug offenders. Another 16 percent of inmates are in prison for offences related to weapons, explosives and arson. Those convicted of immigration violations make up 12 percent of the federal prison population.
"Policy makers have come to the realisation, on a state and federal level, that you can't necessarily build yourself out of a crime situation, that we just can't continue at these numbers to incarcerate people, and the impact on state budgets and the money spent on a federal level to deal with mass incarceration has just left us in a lot of ways unprotected in other areas."
- Matthew Mangino, a former DA in Pennsylvania
And the impact of mass imprisonment spreads far beyond the prison walls.
Sociologists have found that the rise in incarceration rates reduce social mobility and ensure both prisoners and their families remain trapped in a cycle of poverty.
In the US, minorities make up over 70 percent of the federal prison population.
Demographically, African-Americans - who represent 12 percent of the US population - make up 37 percent of federal prisoners.
And Latinos - who are 16 percent of the population - make up 35 percent of prisoners.
So, what is the impact of the high incarceration rate on the US penal system and on poor communities?
To discuss this, Inside Story Americas with presenter Shihab Rattansi is joined by guests: David Fathi, the director of the American Civil Liberties Union National Prison Project; Matthew Mangino, a former district attorney in Pennsylvania; and Marc Mauer, the executive director of The Sentencing Project, and author of the book Race to Incarcerate.

Baer: State loses millions to inmate unemployment

Philadelphia prison inmates collected unemployment benefits while sitting in their cells, writes John Baer of the Philadelphia Inquirer. 

Recently I wrote that the law in Pennsylvania provides that a jail or prison inmate may not collect unemployment benefits. But until recently the state had no sure way to stop payments from getting to inmates in county prisons, costing millions in fraudulent payments every year, as reported by the PA Independent.

According to Baer, 1,162 of them got an average of $344 a week for, on average, 18 weeks. That's more than $7 million.

And many of the 25,500 inmates in other county jails in Pennsylvania did the same.

Well, state corrections officials, since 1997, have linked with the Department of Labor and Industry to match incoming state prisoners' Social Security numbers with unemployment-compensation records to stop any benefits.

Baer wrote, the Philly amount ($7 million) is based on statewide averages, according to the Labor and Industry manager of unemployment-compensation research, Kirk Basehore. The number of Philly inmates who collected (1,162) came from a pilot review done last May by the Corbett administration.

Those caught collecting represent 13 percent of Philly's 9,000 prisoners. If 13 percent of the 34,500 county prisoners statewide collected, the total take would be $27.7 million.

That's per year - for who knows how long.

To read more:

Tuesday, February 19, 2013

Predictive Policing Makes an Impact

Predictive policing was lauded as one of the "top inventions of the year" two years ago by Time Magazine. The evidence-based predictive tool is catching on across the country.

Police department use predictive analytics, similar to those used by Walmart and Amazon to predict consumer behavior, to predict crime behavior. Burlington, MA Police use similar mathematical techniques coupled with crime statistics in order to predict where certain incidents may occur, according to My Fox Boston.

The technique, which relies heavily on accurate data and current trends, recently helped the Burlington Police Department catch a very persistent burglar, who had hit more than a dozen homes in a certain area.

"We're not just spending random money and putting people on the streets and having them drive around town. We're putting them in an area that's been hit, that will most likely be hit, and we are making arrests and we are reducing crime," said Bill Bratton, former Boston Police Commissioner and one of the people who taught the techniques to the Burlington Police Department, reported Fox.

Officers said criminals are people and people are creatures of habit. If a method works, they tend to stick to that particular method. Police also said criminals tend to commit crimes just outside the radius of their home or officer.

Knowing that information and using longitude and latitude, police used averages, ranges and standard deviations to find the physical heart of where the break-ins were happening.

Once the officers determined the suspect's next potential move, they patrolled the area in plainclothes during certain days and around certain times and caught him. The suspect was on his 16th break-in and even had some of the stolen items on him, according to Fox.

To read more:

Monday, February 18, 2013

Guest Column: Certain cases provide good reason for death penalty

Delaware County Daily Times Guest Columnist
Sunday, February 17, 2013

Some would say that capital punishment is itself in the throes of death. As a former prosecutor and member of Pennsylvania’s Joint State Government Commission Advisory Committee on Capital Punishment, I would argue that the only execution carried out in the United States so far this year should give pause to anyone considering the abolition of the death penalty.

Five states have abolished the death penalty in just the last five years. Only nine states carried out executions in 2012, two fewer than the year before. There is strong support for outlawing the death penalty in Maryland, Montana and New Hampshire. Oregon’s governor has stopped all executions in his state.

Although the 43 executions carried out in 2012 were identical to the number carried out in 2011, the number of new death sentences, 77, was the second lowest since the death penalty was reinstated in 1976. Three states traditionally known for strong law and order traditions — North Carolina, South Carolina and Virginia — did not have a single death penalty verdict in 2012.

A December 2012 Gallup Poll found that 63 percent of Americans support the death penalty, the second lowest percentage since 1978, significantly down from a high of 80 percent in 1994. With that as a backdrop, Virginia executed Robert Charles Gleason Jr. on Jan. 16, 2013. Gleason is why America needs the death penalty.

Gleason was serving life in prison for the 2007 fatal shooting of a man in order to cover up his involvement in an illegal drug enterprise. In 2009 he became frustrated with prison officials who refused to move Gleason’s 63-year-old cell mate, who suffered from mental illness. Gleason admitted to binding the cell mate, Harvey Watson, with torn bed sheets, beating him, taunting him about his impending death, shoving a urine soaked sponge in his face and a sock in his mouth, and finally strangling him with the torn bed sheets.

Gleason told authorities he concealed Watson’s body in his cell for 15 hours, making excuses for Watson’s failure to emerge. Gleason planned to dispose of the body in the garbage that was circulated to pick up food trays. Gleason was unsuccessful; prison personnel soon discovered Watson’s body. Gleason pleaded guilty, making a full confession under oath. He revealed that the murder was planned to occur on the second anniversary of his prior killing.

Throughout the court proceedings, Gleason consistently made it clear that he had no remorse. He flaunted the fact that premeditated murder of an inmate and more than one murder within a three-year period were punishable by the death penalty in Virginia. He warned the court that he “already had a few (other) inmates lined up, just in case I didn’t get the death penalty, that I was gonna take out.”

Following Watson’s death, Gleason was moved to solitary confinement in Virginia’s “supermax” Red Onion Prison. On July 28, 2010, Gleason was in a segregated recreation pen that shared a common wire fence with another inmate, Aaron Cooper. Gleason asked Cooper to try on a “religious necklace” that Gleason was making. Gleason proceeded to strangle Cooper through the wire fence, repeatedly choking Cooper “til he turned purple,” waiting “until his color came back, then (going) back again” until Cooper finally succumbed. Gleason laughed at the reaction of the other inmates. He then watched and mocked the prison staff attempting to revive Cooper.

Gleason was charged with capital murder. In 2011, he pleaded guilty to the murder of Cooper. He informed the court that he had deliberately targeted Cooper to make a point to the prosecutor that if he was not executed he would continue to kill. The diabolical Gleason was defiant to the end. He requested to be executed by electrocution, his right in Virginia. His final words, in Irish Gaelic, “Pog mo thoin” – “kiss my ass.”

Gleason’s conduct seems to cry out for the death penalty. The end of the death penalty seems inevitable in Maryland and New Hampshire, but lawmakers should proceed with caution. Does life without parole as the ultimate punishment give the truly evil carte blanche to kill?

Matthew T. Mangino is the former district attorney for Lawrence County and recently completed a six year term on the Pennsylvania Board of Probation and Parole. He is a featured blogger on our blog list. You can follow him on twitter @MatthewTMangino.

Georgia looks to pull back on some mandatories

Lawmakers in Georgia have proposed some limited changes to the state’s mandatory minimum sentencing laws, widely considered to be among the toughest in the nation, reported the Atlanta Journal Constitution.

House Bill 349 would allow for reduced sentences for some defendants charged with drug trafficking and other serious felonies. It would provide “safety valves” for cases in which prosecutors and defense attorneys agree that a harsh mandatory minimum term is unwarranted.

The bill, which has bipartisan support, is sponsored by the chairman of a key judiciary committee, the governor’s three floor leaders and a former federal prosecutor.

The governor’s legislation restores judicial discretion to a limited degree in very narrow circumstances where that discretion is appropriate,” Rep. Rich Golick, the bill’s lead sponsor and chair of the House Judiciary Non-Civil Committee, told the Journal Constitution. “We have something very similar in the federal system, so we’re not plowing new ground.”

The Special Council on Criminal Justice Reform, a group of judges, prosecutors and other state officials appointed by Gov. Nathan Deal, recommended the safety valve for mandatory minimums in a report released in December.

Deal has pledged his support for HB 349, which also includes an evidentiary change that helps prosecutors in child molestation cases and gives drug court participants the chance to get limited driving permits.

This governor’s special council said this year’s legislation should promote “truth in pleading,” because some offenders are being allowed to plead guilty to reduced charges to avoid mandatory minimums. Under HB 349, offenders would plead guilty to the actual crimes they are accused of committing, reported the Journal Constitution.

To read more:

Sunday, February 17, 2013

West Virginia's 'Savings' from Pretrial Diversion Dubious

The problem with pretrial diversion programs is that projecting savings based on jail cost per inmate per day are flawed

Last month, backed by a study from the Justice Center of the Council of State Governments that found that about 43 percent of inmates in West Virginia's regional jail system are awaiting trial, Gov. Earl Ray Tomblin announced a reinvestment initiative that called for lawmakers to shift $25 million into probation and day report systems in hopes of saving nearly five times that amount in prison and jail spending, reported The Charleston Gazette.

Part of recommendations included broader use of pretrial risk assessment programs, according to the Justice Center report. The study, however, made no mention of the pilot programs already in existence.

The problem with pretrial diversion programs is that projecting savings based on jail cost per inmate per day are flawed.  A correction facility that pays on average $50 per day per inmate will not realize any saving when one, two or even ten less inmates are incarcerated on a given day. 

There are fixed costs at correctional facilities.  The only way to realize savings would be to reduce personnel or 'moth ball' a portion of the facility.  This can happen only over time with a broad change in pretrial philosophy. An occasional reduction of a handful of inmates will not result in any meaningful reduction is costs.

The Gazette in conjunction with the John Jay College of Criminal Justice in New York looked into exist pretrial diversion programs in West Virginia.

The state Division of Justice and Community Services funded a pilot pretrial program with a $300,000 grant, dispersing it evenly between Mercer, Wayne, Brooke, Greenbrier and Wood counties.

But while officials close to the pilots have lauded them as a success, little data exists to suggest that there has been a measurable impact on regional jail spending. In fact, since 2011, regional jail bills have risen in every pilot county except for one.

Pretrial officers have also shunned other statistics--like instances when released inmates fail to show up for court--that experts say generally serve as a standard in measuring the success of pretrial release programs.

On average, about 10 defendants a week are released through Cabell County's program--saving about $8,500 a day. That works out to more than $400,000 a year.

The problem is that the jail costs are still on the rise, reported the Gazette.

Near the end of 2012, Cabell County's monthly jail bill stood at about $330,000, up about $100,000 from when the program started in December 2009.

Even the Council of State Governments Justice Center who are helping implement West Virginia's Justice Reinvestment Initiative find the cost savings of pretrial diversion dubious.

Justice Center analyst Mark Pelka said that most of his group's recommendations to the governor focused on expanding risk assessment programs for post conviction felons so judges can make better decisions at sentencing.

"We don't have very much on pretrial in the justice reinvestment policy framework," Justice Center policy analyst Mark Pelka told the Gazette.

Pelka said the Justice Center will be advising lawmakers about pretrial release in the upcoming legislative session. Most of the focus, however, will be on lightening the burden in the state prison system, he said.

To read more:

Saturday, February 16, 2013

Justice Baer rolls out access to child abuse data

The Pennsylvania Supreme Court has launched a new link on the Unified Judicial System's website designed to give the public a better picture of the neglected and abused children who are under court supervision in Pennsylvania, reported the Harrisburg Patriot-News.

Supreme Court Justice Max Baer said the data "will help us identify counties and courts which are excelling in certain areas, so those practices can be applied elsewhere to further improve care for abused and neglected children."

Justice Baer's approach to dealing with abuse and neglect is admirable and well conceived.  Instead of chastising the counties that are underperforming he is focusing on replicating county initiatives that have been  successful.

The page includes data such as the ages, sex, race, length of and result of court supervision and placement information for those at-risk children. For privacy and safety reasons, it does not list names or other specific information about the youngsters, according to the Patriot-News.

It also will enhance statewide efforts to reduce the amount of time children spend in foster care before they are either returned home or receive alternative placements, said Baer, a former family court judge in Allegheny County.

Over six years, court-led efforts have resulted in a 34 percent reduction in the number of children in foster care and other temporary living arrangements, according to the state Welfare Department. The number of children in placement dropped from more than 21,000 in 2006 to around 14,000 last year.

The placement reduction saved taxpayers an estimated $200 million in the past two years, Baer said.

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Friday, February 15, 2013

The Cautionary Instruction: The school-to-prison pipeline

The Pittsburgh Post-Gazette/Ipso Facto
February 15, 2013

There was a time when disruptive students were sent to see the principal. Today, in some school districts the disruptive student is handcuffed and ushered off to court. The school-to-prison pipeline is overflowing with students.

Melodee Hanes, acting administrator of the U.S. Justice Department’s Office of Juvenile Justice and Delinquency Prevention, describes the school-to-prison pipeline as “the pervasive use of court referrals as a means of disciplining kids in school.

Students is schools across the country are being turned over to law enforcement agencies, or the courts, to deal with discipline problems that have been in the past, and should continue to be, handled by teachers or school administrators.

“Police are arresting students for behaviors like talking back -- that’s disorderly conduct. Or writing on desks -- that’s vandalism,” said Judith Browne Dianis, co-director of the Advancement Project, a civil rights organization.

In the wake of Columbine, school districts implemented “zero-tolerance” policies that accelerated the involvement of the criminal justice system in routine school-based disciplinary practices. The matter is being exacerbated by the Newtown massacre as school districts are expanding the use of armed police officers in schools.

This past October, federal civil rights lawyers filed suit against Meridian County School District in Mississippi, for operating what the government described as a school-to-prison pipeline in which students were denied basic constitutional rights, sent to court and incarcerated for minor school infractions.

Children were handcuffed and arrested in school; often detained without a hearing for 48 hours; made admissions without being advised of their rights; and were not provided with legal counsel for hearings.
The problem in Mississippi goes beyond Meridian County. A recent report by a group of civil rights leaders found that in one Mississippi school district, 33 of every 1,000 children were arrested or referred to juvenile detention centers; that in another, such referrals included second and third graders; and that in yet another, only 4 percent of the law enforcement referrals were for felony-level behavior, the most often cited offense being “disorderly conduct.”

The problem goes beyond Mississippi. Wansley Walters, secretary of the Florida Department of Juvenile Justice said recently, "The vast majority of children being arrested in schools are not committing criminal acts."

Sixty-seven percent of the arrests last year were for misdemeanors such as disorderly conduct -- a catchall, attorneys say, that has been used when children refused to take a cell phone out of a pocket or yelled in class. Fewer than 5 percent faced weapons charges.

Most arrests, Walters suggests, stem from "bad behavior, not criminal behavior."

Pennsylvania experienced one of the most egregious school-to-prison pipelines when two Luzerne County judges were convicted of sending school-aged juveniles into residential placement, often without legal counsel, in exchange for bribes. The scandal became known as “kids for cash.”

Policymakers have taken notice. Last December, the U.S. Senate Judiciary Committee, Subcommittee on Constitution, Civil Rights and Human Rights conducted, for the first time, a hearing on the school-to-prison pipeline.

Visit Ipso Facto

Thursday, February 14, 2013

Detroit police make fewer arrests, crime soars

Violent crime is up but arrests are down in Detroit, and some inside the police department blame low officer morale, reported The Detroit News.

The fourth quarter of 2012 saw significantly fewer arrests in most precincts and districts compared with previous years — and the largest declines were in some of the city's most crime-ridden areas.

In the Eastern District, which Cmdr. Steve Dolunt called "the most violent district in the country," arrests plummeted from 1,899 in the fourth quarter of 2011 to 1,700 during the same period last year.

Two years ago, the district had 2,342 arrests in the fourth quarter.

"We're down; I'm not happy about that," Dolunt said during a recent Detroit Police Command Accountability meeting, reported the News. "I think it's morale — (officers) don't want to make arrests; they don't want to go to court."

Detroit has been, and continues to be, one of the most dangerous cities in America. According to the News, there were a total of 411 murders in the city last year when 25 justifiable homicides are added, including three police shootings. Last year's 386 homicides was also up over 2010's total of 308.

With a homicide rate among the highest in the nation, Detroit residents are more likely to be killed now than nearly 40 years ago when the city was known as the Murder Capital, according to earlier unofficial data.
To read more:

Wednesday, February 13, 2013

Florida: School-to-prison pipeline, students arrested for bad behavior

Thousands of Florida students are arrested in school each year and taken to jail for behavior that once warranted a trip to the principal's office — a trend that troubles juvenile-justice and civil-rights leaders who say children are being traumatized for noncriminal acts, reported the Orlando Sentinel.

Though the number of school arrests has dropped significantly since the state eased its "zero tolerance" policies a few years ago, there are still far too many kids handcuffed and hauled away in front of their classmates, said Wansley Walters, secretary of the Florida Department of Juvenile Justice.

"The vast majority of children being arrested in schools are not committing criminal acts," Walters told the Orlando Sentinel.

Most arrests, Walters says, stem from "bad behavior, not criminal behavior."

The Advancement Project and others worry that the school shootings in Newtown, Conn. — which have prompted school districts, including Orange County's, to put more police in schools — will simply lead to more students arrested for minor offenses.

Denver's public schools responded that way to the 1999 shootings at Columbine High, leading to a 71 percent increase in law-enforcement referrals in the next five years, the group reported. Most were for infractions "so minor it is difficult to characterize them," including use of slurs.

More than 12,000 Florida students were arrested nearly 14,000 times last year, records from the Department of Juvenile Justice showed.

A review of arrest records and interviews conducted by the Orlando Sentinel also shows:

Disabled students and black children, such as Nalani, are arrested disproportionately. Black students also are more likely than white children to see their cases dismissed.

Central Florida school districts and police departments have not made curbing arrests a priority, as some communities have done. Orange County schools, for, example, last year had 1,048 arrests, nearly double the number in Miami-Dade County schools — though the South Florida district enrolls nearly twice as many students.

To read more:,0,3815683,full.story

Tuesday, February 12, 2013

A Fundamental Liberty Right Denied

The Pennsylvania Law Weekly
February 12, 2013

This year marks the 50th anniversary of the landmark U.S. Supreme Court decision Gideon v. Wainwright, 372 U.S. 335 (1962). In Gideon, the high court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.

The decision was premised on the Sixth Amendment, wherein the framers of the U.S. Constitution provided, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."

Thirty years earlier, the U.S. Supreme Court decided, in Powell v. Alabama, 287 U.S. 45 (1932), that the Constitution required defendants facing the death penalty be provided access to counsel upon request.

Justice George Sutherland wrote in Powell, "Even the intelligent and educated layman has small and sometimes no skill in the science of law."

When the Gideon decision came down, it was not entirely a surprise. At the time Gideon was argued, the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges.

In addition, 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases.

Only five states — Florida, Alabama, Mississippi, North Carolina and South Carolina — did not provide counsel for indigent defendants.

Fifty years after Gideon, the focus has evolved from merely the right to counsel to the right to effective representation. That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.

Missing from today's debate is extending the right to counsel to an accused during his or her first encounter with the courts.

Contrary to the belief that all indigent defendants are constitutionally entitled to a lawyer when their liberty is at stake, only 10 states guarantee representation at an initial court appearance to assess bail — a proceeding with fundamental liberty implications. In comparison, an equal number of states refuse to provide counsel at initial bail proceedings uniformly throughout the state, while the remaining 30 states, including Pennsylvania, assign appointed counsel in only some counties.

Most of Pennsylvania's indigent defendants are unrepresented by counsel at preliminary arraignments, the initial appearance before a judicial officer; only Philadelphia public defenders guarantee representation at the preliminary arraignment, according to Douglas L. Colbert in Prosecution Without Representation.

When counsel appears on behalf of an accused at the initial court proceeding to determine bail and offers an effective argument, the chance of a judicial officer ordering pretrial release or an affordable bail increases significantly, according to Colbert.

Colbert wrote, "A lawyer's informed and compelling advocacy often makes the difference, particularly when the charge against the accused involves no violence or injury to another."

Not only are liberty interests at stake, but in lean economic times, state and local governments can open the door to big savings by paying closer attention to bail issues.

A significant amount of local revenue goes toward corrections — the local county jail — and half of those costs can be attributed to inmates in pretrial detention. Policymakers must be ever mindful that those individuals have been arrested and accused of a crime — not convicted — and remain in jail awaiting trial.

Pretrial detention increased at the same time "get tough" policies drove prison populations through the roof. In the 10 years between 1996 and 2006, the number of people held in pretrial detention in local jails increased by more than 20 percent. According to a study by Northwestern University, fewer people were released pretrial without bail and fewer made bond.

In most states, including Pennsylvania, everyone charged with a crime other than first-degree murder is entitled to bond. The criteria considered by the court includes the nature of the offense and the likelihood of conviction; employment status; family ties; length of residence in the community; prior bail history; criminal record; and, among other criteria, the defendant's risk of flight.

The primary purpose of bail is to ensure that the defendant appears for all future court proceedings. Bail is not punitive, its purpose is administrative. Although pretrial detention is not considered punishment, defendants are given credit for the time served in detention.

Some counties will argue that providing a defendant counsel at the preliminary arraignment is too costly. Every state in the country provides at least some funding for indigent defense — every state except Pennsylvania.

Pennsylvania's Public Defender Act of 1968 provides for the establishment of a public defender in each county in Pennsylvania. It has remained an unfunded mandate for 45 years.

The public defender is appointed by the Board of County Commissioners and is funded exclusively with local funds. In fiscal year 2008, the total indigent defense expenditure statewide was approximately $95.5 million.

County commissioners could easily point the finger at the state's failure to fund any part of indigent defense and simply refuse to provide funding for initial bail hearings. Not only is finger-pointing unproductive, it blinds local policymakers to an emerging opportunity.

According to a 2011 study by the Justice Policy Institute, a close examination of initial bail hearings demonstrates that providing representation at the earliest stage of a case can actually save money.

For instance, a low-risk defendant charged with a nonviolent offense appears without counsel at his preliminary arraignment. The court sets a $2,500 bond. The defendant is indigent and cannot post the bond. His preliminary hearing is scheduled 10 days out and is continued once for a week. At the preliminary hearing, the defendant's county-funded public defender immediately requests an ROR bond, which is granted.

The defendant sat in jail for 17 days at a conservative $65 a day. The lack of early counsel costs taxpayers about $1,105. With nearly four out of five defendants eligible for court-appointed counsel, preventing that scenario from repeating itself 100 or 200 times during the course of a year could save a county close to $250,000.

It would be disingenuous not to acknowledge that there are fixed costs in operating a jail or prison and that the initial savings may not be as simple as suggested. However, this issue is about more than finances.

Early representation is about liberty and, as Colbert put it, "Timely legal representation reinforces the long cherished principle of equal justice and presumption of innocence."

Visit PLW

Monday, February 11, 2013

Drug use may not stop at the jail gate

Jail is where people who use or sell illegal drugs end up.  However, using or distributing illegal drugs may not end while behind the walls.

In Snyder County (PA), a jail inmate is charged with smuggling drugs into county jail and another had to have surgery to remove a container of pills from her body, reported The Daily Item.

It’s the third drug bust inside the prison in less than a year, prompting county officials to consider new ways to detect contraband, including scanning devices, since prison staff in Pennsylvania may not perform cavity searches on inmates without probable cause, Snyder County District Attorney Michael Piecuch told The Daily Item.

Piecuch said contraband inside prisons will continue to be a problem as long as inmates are willing to take the risk of using their bodies to smuggle illegal items in.

The risk is real and “people can die” if drugs seep out of containers accidently and into the inmate’s bloodstream.

The latest bust at the county jail took place when heroin, Methadone and tobacco began turning up on Jan. 10 after Ashlee E. White, 27, of Shamokin, was brought in on a bench warrant, court records said.

Two days later, Warden Ruth Rush called Snyder County detective William Neitz Jr. to investigate after seven inmates, including White, tested positive for Methadone, a painkiller that is used to treat addiction, repored The Daily Item.

On Jan. 16, Union County Warden Douglas Shaffer informed Neitz that Amy Zigarski, a former Snyder inmate,was taken to a hospital in Centre County for a cavity search because staff believed she may have brought something with her from the Snyder County jail, court records said.

An X-ray confirmed Zigarski had concealed something in her body, and she was sent to Geisinger Medical Center in Danville for further evaluation. Medical staff removed a container of pills from her body the next day, court records said.

To read more:

Sunday, February 10, 2013

Crime map is just a click away

The Youngstown Vindicator
February 10, 2013

Recently the Youngstown Police Department announced a partnership with Behavioral Analysis & Intelligence Resources (BAIR) Analytics to provide online crime mapping technology to the general public.

Crime mapping is not a new concept. According to Borden Dent’s “Brief History of Crime Mapping,” the origin of crime mapping dates back over 180 years to French authorities who created maps to show the relationship between educational levels and crime.

Interactive databases

Police departments have utilized crime mapping for decades. The rather unsophisticated process of sticking colored pins into wall maps was a staple in police precincts nationwide. The advent of computers changed the way law enforcement analyzes crime data. Crime maps moved from inanimate objects that recorded criminal activity to interactive databases used to prevent crime.

Researchers who study the routine, situation and place of crime, advocate for a method of policing based on the collection and analysis of data. The data is mapped out and the police focus on specific areas known as hot-spots. Police then marshal resources to flood “hot” streets, blocks or neighborhoods with additional officers.

Cyber-based crime mapping, which less than 20 years ago seemed like science fiction, is today a keyboard click away from every Youngstown resident. According to The Vindicator citizens can view a map and grid with all the crimes in the area, sign up for neighborhood block-watch reports that automatically email a breakdown of recent crime activity, and submit an anonymous tip about a crime directly to the police department. BAIR even has a free smartphone application.

In addition to viewing the map, visitors to the website will be able to learn the details of each crime. Users can also sort through crimes based on the day of the week and the time of the day the offenses were committed.

The most noteworthy and successful use of crime mapping was demonstrated in New York City. Rudy Giuliani was elected mayor in 1992 and appointed William Bratton police commissioner. Bratton had been chief of NYC’s transit police and had used crime mapping to reduce crime in the city’s notorious subway system. The transit police’s mapping strategy evolved into a program known as Computerized Statistics or CompStat.

On a weekly basis, personnel from each of the NYC’s 76 police precincts compiled a statistical summary of the week’s crime complaints, arrests and citations, as well as a written report of significant cases, crime patterns and police activities. The data was presented in a crime mapping report.

CompStat is based on four guiding principles: Accurate and timely intelligence; effective tactics; rapid deployment; and relentless follow-up and assessment.

Statistical analysis

At weekly crime control strategy meetings information flowed between the department executives and the precinct commanders. The discussions were based on the statistical analysis and maps contained within the weekly reports. The results were staggering — NYC’s violent crime rate plummeted to a 40 year low.

Crime mapping has also been successfully implemented by the Pittsburgh Police Department. Today, all Pittsburgh streets are mapped enabling command staff and community officers to use maps and crime data to establish day-to-day operations. Police officials hold monthly meetings where all command staff review crime statistics and develop strategies for attacking specific problems.

Within five years of implementing crime mapping strategies the serious crime rate in Pittsburgh fell 41 percent.

Multiple uses

Crime mapping in the public’s hands may be interesting to curious citizens or even useful to crime fighting neighborhood groups making decisions about the use of limited resources. In the hands of law enforcement, and used to its fullest potential, the benefits of crime mapping are almost limitless.

However, according to Sharon Chamard in The History of Crime Mapping and Its Use by American Police Departments, law enforcement agencies that underutilize crime mapping technology, especially smaller and midsize departments, tend to experience frustration and disenchantment with the system.

According to research, nearly half of all small to midsize police agencies that adopted crime mapping technology eventually stop using the crime fighting tool.

Visit The Vindicator

Saturday, February 9, 2013

Texas considers review of discredited evidence

In Texas lawmakers are backing a renewed push to streamline the appeals process for those who were convicted based on science that has since been discredited.

Senate Bill 344 would establish a statute expressly allowing Texas courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. There a companion bill filed in the Texas House.

Though the proposal has failed twice before, several recent Court of Criminal Appeals decisions may make it more likely to pass, and that prosecutors who have opposed it in the past should come around.

Currently, people convicted of a crime in Texas can submit a writ of habeas corpus to the Court of Criminal Appeals, in which they ask for a new trial based on evidence that was not available when they were originally convicted. If the science used to convict them has changed, there is no special guideline allowing the court to grant them a new trial, and the judges often disagree about whether to do so.

The advent of more reliable scientific evidence like DNA has exposed or helped discredit long accepted forms of evidence.  Some of the newly discredited evidence includes arson analysis, bite marks, handwriting, toolmarks, hair & fiber even fingerprint analysis.

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Friday, February 8, 2013

The Cautionary Instruction: Prosecutions in jeopardy over breathalyzer decision

The Pittsburgh Post-Gazette/Ipso Facto
February 8, 2013

Dauphin County Judge Lawrence F. Clark Jr. ruled recently that breathalyzer machines used by police to gauge the intoxication level of drivers cannot be considered accurate beyond a blood-alcohol reading of 0.15 percent.

The 30-page opinion makes it impossible to prove the most serious level of DUI—those drivers who register blood-alcohol readings of 0.16 percent or higher.

During the Dauphin County case the Commonwealth’s expert witness testified that the manufacturer was performing the initial calibration of the testing device contrary to the regulatory requirement that the analysis be done by an independent laboratory.

Clark further ruled that DUI prosecutions based on any blood alcohol-level readings secured by using the Intoxilyzer 5000EN should be regarded as “extremely questionable.”

As a result, the Pennsylvania State Police have temporarily suspended the use of the breathalyzer in drunken driving cases.

State police spokesman Adam Reed said, "The case is being appealed. It is certainly far from over. But for cautionary reasons, we have made the temporary decision that anyone we arrest for suspicion of DUI will not be given the Breathalyzer test."

The problem exists beyond Pennsylvania’s borders. In Ohio, a 1984 Ohio Supreme Court decision limits the right of suspects to object to the science of a breathalyzer once it has been approved by the Ohio Department of Health.

In 2008, Ohio used $6.4 million in federal grant money to buy 700 Intoxilyzer 8000 machines. The machines are designed and manufactured by CMI, Inc. of Owensboro, KY, the same manufacturer of the beleaguered Pennsylvania equipment.

In Florida, the Supreme Court is hearing oral argument in a drunken driving appeal where lawyers for three defendants are asking the court to give them access to software for breathlyzer machines to help challenge their accuracy.

CMI, Inc. is again at the heart of the controversy. The Intoxilyzer 8000 is the only breathlyzer certified by the state of Florida.

Last summer, the Minnesota Supreme Court set aside challenges to the Intoxilyzer 5000EN, upholding a finding based on the state's expert witness that the instrument "produced valid breath alcohol measurements and functioned as designed."

The impact of the ruling on counties in western Pennsylvania is mixed. For instance, in Beaver, Butler and Crawford Counties some departments will be impacted by the Dauphin County decision as state and local municipal police departments in those counties use both breath and blood testing. In Lawrence County, the decision will have no impact -- all departments use only blood testing.

The most significant impact will be in Allegheny County. The city of Pittsburgh uses breath analysis almost exclusively and, as the Post-Gazette reported, Allegheny County registers the highest number of arrests for driving under the influence of any of Pennsylvania’s 67 counties.

As a result, Allegheny County District Attorney Stephen A. Zappala Jr. has notified local police chiefs to temporarily use only blood tests for suspected driving under the influence.

Visit Ispo Facto

Thursday, February 7, 2013

PA lawmakers seek to undo mandatory retirement for judges

Two Pennsylvania lawmakers have introduced separate bills in the state Legislature that would either eliminate the mandatory retirement for judges in the year in which they turn 70, or raise the mandatory retirement age to 75, reported the Legal Intelligencer.

Each bill would amend the state constitution and have to be approved by the Legislature in two separate sessions. Before either measure could become a part of the state constitution, it would have to be adopted by Pennsylvania voters.

State Sen. Stewart Greenleaf, R-Montgomery, is the prime sponsor of the Senate legislation. His bill would eliminate mandatory retirement altogether.

State Rep. Kate Harper, R-Montgomery, is the prime sponsor of legislation in the House of Representatives. Her bill would raise the retirement age to 75.

According to Pennsylvanians for Modern Courts, four Supreme Court justices will reach the mandatory retirement age within the next five years, reported the Intelligencer.

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Wednesday, February 6, 2013

PA years late in stopping inmate unemployment fraud

The law in Pennsylvania provides that a jail or prison inmate may not collect unemployment benefits. But until recently the state had no sure way to stop payments from getting to inmates in county prisons, costing millions in fraudulent payments every year, reported the PA Independent.

Recently state officials announced a potential solution. Using an existing data system called the Pennsylvania Justice Network (JNET), the state can cross-match inmate data with unemployment records to identify unemployment beneficiaries in county prisons and stop payments.

Now, individual inmate information will be automatically checked against unemployment compensation rolls. In the state’s words, this is “saving the UC trust fund and the commonwealth’s businesses and employees millions of dollars,” a news release says, reported the Independent.

That sounds great, but the problem is that JNET has been around for about two decades.  The majority of Pennsylvania’s county prisons – 51 out of 63 – already use JNET to access and cross-reference data such as criminal history, driving records, prison records and other inmate information.

Yet, inmates have been able to get millions and million of dollars of illegal benefits while the solution existed at nearly every institution in the state. The DOC attaches an annual savings of about $6 million for every 1,000 unemployment compensation claimants identified, according to the Independent.

To read more:

Tuesday, February 5, 2013

PA DAs Assoc. Celebrates 100th Anniversary

Duquesne Law School Symposium Marks Occasion

On Monday afternoon, Duquesne University Law School hosted Prosecution and Public Policy in the 21st Century, a symposium marking the 100th anniversary of the Pennsylvania District Attorneys Association.
The symposium was moderated by Supreme Court Justice, and former district attorney, J. Michael Eakin.  The panel consisted of seven prosecutors from across the commonwealth.
The most compelling aspect of the symposium was the tone of the event.  I commented to one of my former colleagues that it was the “softer side” of the district attorneys association.  The panel was asked to look into the future for prosecutors in Pennsylvania and across the county. 
The answers were much different than they might have been even 20 years ago during the “get tough” movement in the criminal justice system.  Montgomery County District Attorney Risa Ferman spoke of using best practices across the board.  With a reduction in resources DAs have to get it right.
Ferman spoke of initiatives in her county like videotaping homicide interrogations and changes in procuring eyewitness identification.
Butler County District Attorney Richard A. Goldinger said at first he had a problem with “helping people that I think are bad people.” But, now he has warmed, in difficult economic times, to reentry services for offenders leaving jail or prison, specialty courts and diversionary sentences.
A question from the audience further probed specialty courts, “Why doesn’t everyone have them?”  Crawford County District Attorney Francis J. Schultz got a laugh when he said, tongue-in-cheek, “We have go to jail court.”  Schultz pointed out that specialty courts are not for every county.  The cost, the work load of small judiciaries makes it very difficult.
The panel stayed clear of controversy, but Dauphin County District Attorney Edward M. Marsico, Jr made an interesting suggestion when asked about limited criminal justice resources.  Marsico suggested that countywide police forces, as opposed to the hundreds of municipal departments, may be an efficient and cost effective approach to policing.

The faculty and staff of Duquesne honored Allegheny County District Attorney Stephen A. Zappala, Jr for his continued support of internships and employment opportunities for law school students and graduates.
The panel also consisted of Washington County’s Eugene A. Vittone and Adams County’s Shawn C. Wagner.

Kane appoints investigator to review Sandusky case

Pennsylvania Attorney General Kathleen Kane has appointed H. Geoffrey Moulton Jr., a former Philadelphia federal prosecutor to review the handling of the Jerry Sandusky child sex-abuse case. reported the Philadelphia Inquirer.

Kane ran on a pledge to look into why the Attorney General's Office took nearly three years to criminally charge Sandusky, a former assistant Pennsylvania State University football coach.

Moulton led the inquiry into the botched 1993 raid on the Branch Davidian compound in Texas.  Moulton has an impressive resume. He is currently an associate law professor at Widener University. He served for eight years as first assistant U.S. attorney for the Eastern District of Pennsylvania.

From 2009 to 2011, Moulton served as chief counsel to then-U.S. Sen. Ted Kaufman (D. Del.) and as a deputy to the special inspector general for the Troubled Asset Relief Program. In that role he supervised investigations into fraud and other criminal activity related to the federal bailout program, reported the Inquirer.

In 1993, as a project director for the Treasury Department, Moulton wrote a widely praised report on the raid on the Branch Davidian compound in Waco that left 75 people, including 25 children, dead. Moulton earned his law degree from Columbia University and clerked for U.S. Supreme Court Justice William H. Rehnquist.

"Mr. Moulton is a highly respected former federal prosecutor who will assist us in providing a comprehensive and independent examination of the facts surrounding the handling of the Sandusky investigation," Kane said in a statement.

Kane said there was no timetable. "Once the facts have been uncovered, my office will make these findings available to the public," Kane told the Inquirer. Moulton will be paid $72 an hour, her office said.

To read more:

Monday, February 4, 2013

Ohio sells-off prison, violations soar

Last year, Corrections Corporation of America paid Ohio $72.7 million in 2011 to purchase the 1,700-bed Lake Erie Correctional Institution.  According to the Huffington Post the company touted the deal as a "groundbreaking" move that would serve as a model for other states looking to cut costs.  Ohio was the first state in the nation to sell an existing prison to a private company.

In CCA's first year of operation state audits have found patterns of inadequate staffing, delays in medical treatment and "unacceptable living conditions" inside the prison -- including inmates lacking access to running water and toilets. The state docked the company nearly $500,000 in payments because of the violations, reported the Post.

In addition, a major uptick in crime near the private prison has burdened the small town of Conneaut, Ohio, with police there making a series of recent arrests related to attempts to smuggle drugs and alcohol into the facility. Officers responded to 229 calls related to the prison last year, nearly four times as many as the previous five years combined, according to the city's crime data.

"This is not a bargain for the states," Michele Deitch, a senior lecturer and criminal justice expert at the University of Texas School of Public Affairs told the Post. "The longer the contracts are, the more likely you are to give rise to poor conditions and problems. It gives the states very little leverage to demand improvements."

 In an attempt to trim the state's corrections budget, Governor John Kasich, a Republican, in 2011 proposed selling off and privatizing up to five state prisons. After studying the costs, the state decided to sell only one: the Lake Erie Correctional Institution. The state previously owned the prison but it had been managed by another contractor, Management & Training Corp.

For its purchase price, CCA obtained not only the prison but a 20-year management contract to house inmates for the state and an initial guaranteed 90 percent occupancy rate. The state has the option of renegotiating the occupancy rate down the line.

Other breaches highlighted in the September audit, according to the Post, included problems with medical care and concerns about security:

•Inmates requesting to be seen by a nurse were not seen within 48 hours

•Doctors' appointments were usually delayed, and often there were no follow-ups

•Staff wasn't following the proper procedures for chronically ill inmates, including those with diabetes and AIDS

•Inmates were triple-bunked, with some sleeping on mattresses on cell floors

•"Some staff expressed safety concerns due to low staffing numbers and not having enough coverage."

To read more:

Sunday, February 3, 2013

PA State Police Suspend Use of Breath 'Intoxilyzer'

Pennsylvania state police have temporarily suspended the use of breath test machines in drunken driving cases because of a judge's concern about accuracy, reported the Philadelphia Inquirer.

A judge in Dauphin County recently tossed out several DUI cases after learning that the manufacturer of a widely used breath analyzer - the Intoxilyzer 5000EN - had omitted a state requirement to have a liquid solution tested by independent labs.

"The judge ruled that could potentially make the samples no good," state police spokesman Adam Reed said. "The case is being appealed. It is certainly far from over. But for cautionary reasons, we have made the temporary decision that anyone we arrest for suspicion of DUI will not be given the Breathalyzer test."

The State Police decision will have no impact in Lawrence County. The reason is the machines aren’t used by police departments here, according to Lawrence County District Attorney Joshua Lamancusa, reported the New Castle News.

Instead, police always have a person’s blood tested, he said.

“Any type of criminal prosecution relies on a blood test where blood is drawn at the hospital,” Lamancusa told the News.

To read more:

Saturday, February 2, 2013

U.S. District Court: Miller v. Alabama Retroactive

U.S. District Judge John Corbett O'Meara of Michigan ruled this week that Miller v. Alabama, the U.S. Supreme Court decision striking down mandatory juvenile life without parole, is retroactive.

The order is contrary to a state appeals court ruling last fall that said retroactivity would not apply for most people already behind bars, reported the Detroit News.

The order offers an opportunity at freedom for inmates who challenged the constitutionality of a state law prohibiting the Michigan Parole Board from considering parole for juvenile lifers. The state has more than 350 such prisoners.

O'Meara said the state law is unconstitutional for inmates who received mandatory life sentences for first-degree murder when they were under the age of 18.

"As a result, plaintiffs will be eligible and considered for parole," O'Meara wrote.

"It remains to be determined how that process will work and what procedures should be in place to ensure that plaintiffs are fairly considered for parole."

Judge O'Meara ruled that inmates serving no-parole sentences must receive a "fair and meaningful" chance at leaving prison, according to the News.

Pennsylvania has more people serving life without parole for offenses committed as juveniles than any other state.  The issue is currently pending before the Pennsylvania Supreme Court.  The decisions in Commonwealth v. Batts and Commonwealth v. Cunningham could impact as many as 500 sentences.

To read more:

Friday, February 1, 2013

The Cautionary Instruction: Justices on the wrong side of the law

The Pittsburgh Post-Gazette/Ipso Facto
February 1, 2013

Pennsylvania Supreme Court Justice Joan Orie Melvin, who is charged with theft of services, conspiracy and tampering with evidence stemming from campaigns she ran for the high court in 2003 and 2009, is on trial here in Allegheny County.

A Supreme Court justice on trial in Pittsburgh is not a novel event. Less than twenty years ago, Justice Rolf Larsen was convicted in Pittsburgh of conspiring to obtain anti-anxiety drugs through prescriptions written in the names of court employees, and he was removed from office at his sentencing.

That wasn’t the end of the story for Larsen. A couple of months later the state senate convicted Larsen on one impeachment charge. He was permanently removed from the state Supreme Court, and barred from ever holding public office in Pennsylvania.

Criminal trials for state Supreme Court justices are not unique to Pennsylvania. In 2005, Ohio Supreme Court Justice Alice Robie Resnick was arrested for driving under the influence. Justice Resnick registered a blood alcohol concentration of 0.22, nearly three times the legal limit in Ohio. A police cruiser dashboard camera recorded the incident, and much of the audio, showing Justice Resnick trying to use her office to get out of the charge. She was convicted of DUI, required to take a three-day alcohol education program, and her license was suspended for six months.

In 2009, New York State Supreme Court Justice Thomas J. Spargo was convicted by a federal jury in Albany, N.Y., of attempted extortion and soliciting a bribe.

Spargo was convicted following a three-day jury trial. Evidenced introduced at trial showed that in 2003, Spargo solicited a $10,000 payment from an attorney with cases pending before him while serving as a state Supreme Court justice.

A Supreme Court justice running amok of the law is not just a modern phenomenon. More than 120 years ago a former Chief Justice of the California Supreme Court, David S. Terry, tracked down a former foe on the court who had been elevated to the U.S. Supreme Court, Stephen Johnson Field. Terry attempted to kill Field in 1889 on a train traveling through California but was instead killed by Field's bodyguard, a U.S. Marshal.

It is also worth noting that being a disgraced former state Supreme Court justice is not necessarily the end of the road.

In 2003, a panel of Alabama Supreme Court justices removed Chief Justice Roy Moore from office due to his repeated refusal to comply with a federal court order requiring him to remove a giant Ten Commandments monument that he installed in the state’s judicial building.

Last fall, Moore was re-elected chief justice in a triumphant political resurrection. Moore, a Republican, defeated a County Circuit Judge to win back his former office.

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