The Cautionary Instruction: De facto life sentences for juvenile offenders

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
May 31, 2013

Nearly three years have passed since the U.S. Supreme Court struck down, as cruel and unusual punishment, life without parole for juveniles convicted of a crime less than murder. The decision seemed to imply that youthful offenders should not die in prison.

In Graham v. Florida, the Court noted that the Eighth Amendment requires that young offenders be left with a “glimmer of hope” that they may someday be released.

That is not how Justice Samuel A. Alito Jr., in a dissent, saw it. He admonished lower-court judges, “Nothing in the court’s opinion affects the imposition of a sentence to a term of years without the possibility of parole.”

The Graham decision left open just what that “glimmer of hope” means. Last year, the California Supreme Court ruled that a prison sentence of 110 years to life for a defendant who was a juvenile at the time of the crime violated the Eighth Amendment.

The court held, “Graham’s analysis does not focus on the precise sentence meted out. Instead, as noted above, it holds that a state must provide a juvenile offender ‘with some realistic opportunity to obtain release’ from prison during his or her expected lifetime.”

This month the Louisiana Supreme Court did the opposite. Giovanni Brown was 16 years old when he was convicted of aggravated kidnapping and four armed robberies. He was sentenced to life in prison for the kidnapping and 40 years on the robberies.

State Judge Robert Murphy ruled last year that pursuant to Graham, Brown was eligible for parole on the aggravated kidnapping conviction.

But Murphy took Graham a step further and applied it to Brown's 40-year sentence for the robberies, making him eligible for parole at age 46. Otherwise, Brown would not have been eligible for parole for another 40 years.

"To impose 40 years of additional time without benefits after a parole review of a life sentence would effectively negate Graham's ultimate directive to provide an opportunity for rehabilitation for the juvenile," Murphy wrote.

The Louisiana Supreme Court ruled that Murphy correctly applied Graham to Brown's life sentence, but was incorrect in applying it to the other sentences. "[N]othing in Graham addresses a defendant convicted of multiple offenses and given a term of year sentence that, if tacked on to the life sentence parole eligibility date, equate to a possible release date when the defendant reaches the age of 86."

Although there is obvious confusion, the U.S. Supreme Court recently turned away an appeal from Ohio, where an offender, 16-years-old at the time of the offense, was convicted of kidnapping and raping a woman in a carjacking. He was sentenced to 89 years in prison. Even assuming he becomes eligible for early release, he will be 95 years old before he can walk out of prison.

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Sequester causes more furlough time for federal defenders

According to a May 10 memorandum sent by Chief Judge William Traxler Jr., chairman of the Executive Committee of the Judicial Conference of the United States, a committee of judges tasked with deciding how the federal judiciary spends its money alerted federal defender offices it had raised the maximum furlough time to 20 days, reported The Legal Times.

In mid-April the committee reported that federal defenders wouldn't face more than 15 furlough days under federal sequester budget cuts. Less than a month later, howeverthe committee reconsidered its April decision.

According to Traxler's memo, the judiciary set aside $6.4 million in April to lower the maximum furlough time in defender offices to 15 days. During a May 10 meeting of the executive committee, however, the defender services committee presented new information on steps certain offices were taking to deal with the cuts besides furloughs. A spokesman for the Administrative Office of the U.S. Courts, David Sellers, told The Legal Times that those steps included cutting training, reducing libraries and office space and offering employee buyouts.

Following "extensive discussion on the difficult choices presented," Traxler wrote, the executive committee decided to redistribute the $6.4 million in a way that would give relief to defender offices coping with the cuts in ways besides furloughs.

Sellers said $3.3 million will be used to keep furlough time down to 20 days in offices that originally faced more than 20 days. There were approximately 30 defender offices nationwide in that group, including the District.

Federal court officials have appealed to Congress for emergency funding, including $14 million for the federal defender system. Under sequestration, the judiciary faced $350 million in budget cuts before the end of the fiscal year. Officials have expressed concern about how temporary measures, such as deferring payments to private criminal defense lawyers, will affect the fiscal year 2014 budget.

To read more: http://legaltimes.typepad.com/blt/2013/05/federal-public-defenders-facing-more-furlough-days.html?kw=Federal%20Public%20Defenders%20Facing%20More%20Furlough%20Days&et=editorial&bu=National%20Law%20Journal&cn=20130529&src=EMC-Email&pt=Legal%20Times%20Afternoon%20Update

Lawyers not required to predict changes in the law

The U.S. Supreme Court invalidated the mandatory minimum sentence of life without parole for juveniles in Miller v. Alabama. A year earlier Angel Rivera pleaded guilty to third-degree murder. He then suggested his attorney was ineffective for not predicting that mandatory life for juveniles would be struck down, reported The Legal Intelligencer.

Lehigh County Court of Common Pleas Judge Robert L. Steinberg addressed the merits of the Rivera's claim concluding that his trial counsel could not be faulted for failing to anticipate the high court's seminal ruling in Miller.

Steinberg's nine-page opinion in Commonwealth v. Rivera provides an early look into some issues that may arise at the trial level now that Miller has been decided. Hundreds of Pennsylvania murderers who were sentenced as juveniles may look to attack their sentences based on the decision and Pennsylvania appellate jurisprudence stemming from it.

"The simple answer is that the effectiveness of counsel is evaluated under the standards in effect at the time of performance, and counsel cannot be deemed ineffective for failing to predict developments or changes in the law," Steinberg said.

Christie F. Bonesch of the Lehigh County District Attorney's office represented the state."I think the judge did the right thing," Bonesch said. "Lawyers can't be ineffective for failing to predict the way the courts will rule."

To read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202601575013&thepage=1

Prison-based treatment can be effective in reducing recidivism

Prison-based treatment can be effective in reducing recidivism.  Research by Guy Bourgon and Barbara Arsmstrong found that effective prison treatment can reduce reoffending.

The principles of risk, need, and responsivity have been empirically linked to the effectiveness of treatment to reduce reoffending, but the transference of these principles to the inside of prison walls is difficult, according to the research.

Results from a sample of 620 incarcerated male offenders—482 who received either a 5-week, 10-week, or 15-week prison-based treatment program and 138 untreated comparison offenders—found that treatment significantly reduced recidivism and that the amount of treatment or dosage played a significant role.

These results indicate that prison-based treatment can be effective in reducing recidivism, that dosage plays a mediating role, and that there may be minimum levels of treatment required to reduce recidivism that is dependent on the level of an offender’s risk and need.

Treatment costs money.  An investment up front in treatment can save dollars down the road in terms of prosecution and reincarceration, not to mention the victims who are harmed physically, emotionally and financially.

To read the full report:  http://cjb.sagepub.com/content/32/1/3.short

Washington state protects rights of incarcerated parents

On May 8, 2013, Washington State governor Jay Inslee signed SHB1284, or the Children of Incarcerated Parents bill, into law. The law guides the courts' discretion to delay the termination of parental rights if the parent's incarceration or prior incarceration is a significant factor for the child's continued stay in the foster care system, reported Truth-out.org.

The Federal Adoption and Safe Families Act and Its Impact

In 1997, Congress passed the federal Adoption and Safe Families Act, stating that its intention was to address the number of children who seemed to linger in foster care and help these children find safe and permanent homes. However, the Act did not take into consideration the dramatic increase in incarceration, particularly for drug law violations. When ASFA was passed, only Nebraska and New Mexico excluded incarcerated parents from ASFA's time frame if the only reason to file for termination is because of parental incarceration.

ASFA's impact has been profound. Nationally, the number of children in foster care with living parents who have had their rights terminated increased from 60,000 in 1998 to 73,000 in 2000. A 2003 study found that termination proceedings involving incarcerated parents increased nationwide from 260 in 1997 to 909 in 2002. In contrast, in the five years preceding ASFA, the number of termination proceedings increased from 113 in 1992 to 142 in 1996.

In Washington State in 2013, according to the Children Defense Fund's statistics, the number of children in foster care in the state is 9,533. The number of children adopted from foster care is 1,583. The report does not state how many children are in foster care because of parental incarceration, how many are eligible for adoption or how many youth age out of foster care.

In 2009, the state's Children of Incarcerated Parents Advisory Committee recommended that the legislature consider a law to address ASFA's timeline. No such law was considered. Once the committee lost its funding, no further meetings were held to discuss the issue.

SHB1284, or the Children of Incarcerated Parents bill, guides the courts' discretion to delay the termination of parental rights if the parent's incarceration or prior incarceration is a significant factor for the child's continued stay in the foster care system. It does not absolve incarcerated parents from doing their utmost to participate in their children's lives.

Terminating parental rights does not ensure that foster children will be adopted into permanent homes. The U.S. Department of Health and Human Services found that, at the end of 2011, more than 104,000 children in foster care were waiting for an adoptive family. The average age of a child awaiting adoption was eight years old and the average length of time was two years. Approximately 35% had been in foster care for over three years. The same report found that in 2011, only 50,516 foster children had been adopted - less than half the 109,456 who had been awaiting adoption the year before. And, in 2011, more than 26,000 youth aged out of foster care without a permanent family. The report did not distinguish between youth in foster care because of parental incarceration and those in care for other reasons.

To read more: http://truth-out.org/news/item/16312-new-law-gives-parents-behind-bars-in-washington-state-a-way-to-hold-onto-their-children

'Civil Gideon': A public defender for all legal woes

Should the indigent be entitled to free legal counsel for things like child custody, eviction or child support, a sort of "civil Gideon." In a perfect world--of course.  In a world where the expenditures for indigent defense in criminal cases are being slashed--unlikely.

 “What does ‘civil Gideon’ mean?” In the landmark United States Supreme Court case of Gideon v. Wainwright, 372 U.S. 335 (1963), the Court decided that indigent defendants have a constitutional right to be represented by an attorney, at no charge, in state criminal cases.

The term “civil Gideon” refers to a growing national movement that has developed to explore strategies to provide legal counsel, as a matter of right and at public expense, to low-income persons in civil legal proceedings where basic human needs are at stake, such as those involving shelter and child custody.

State and national studies estimate that a staggering 80 percent of critical legal needs of low-income people go unmet due to grossly insufficient funding and support.

Pennsylvania Supreme Court Chief Justice Ron Castille argued that it's a "civil Gideon" is a no-brainer: Pay for the services by carving out a dedicated line item in the state budget.

"We should be treating civil legal services for indigent individuals and families as an important government service," he said. "Like roads, like police services, like the courts."

The question is who is going to pay for it?  Indigent defense in criminal cases is inadequate in many places and has been ignored or cut on a federal, state and local level around the country.  'Civil Gideon' is a feel good idea, that will have little legislative support.

To read more:http://www.philadelphiabar.org/page/CivilGideon?appNum=1

GateHouse: Unprecedented pursuit of the death penalty

Matthew T. Mangino
GateHouse News Service
May 24, 2013

The shocking news out of Cleveland — kidnapping, sexual assault, physical abuse, torture, false imprisonment, death of unborn children — has resulted in the call for Ariel Castro’s death. Not a lynch mob, but an unprecedented interpretation of Ohio law to pursue the death penalty.

Never mind that Castro has not been convicted; the death penalty “only” applies to capital murder; and support for the death penalty is on a downward trajectory. Prosecutors in Ohio think they have a way to make it work.

Cuyahoga County prosecutor Timothy McGinty has vowed to seek charges against Castro for “each act of aggravated murder he committed by terminating pregnancies that the offender perpetuated against the hostages during this decade-long ordeal.”

Ohio’s aggravated murder statute reads, “No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.” In Ohio, aggravated murder is punishable by death.

McGinty specifically cited Ohio’s statute when he told NBC News that aggravated murder includes the unlawful termination of another person’s pregnancy “with prior calculation and design.”

According to the National Conference of State Legislatures, at least 38 states have fetal homicide laws that impose criminal penalties for crimes against pregnant women, and 23 states expand the law to cover the earliest stage of pregnancy, such as conception or fertilization.

“Nobody has ever been prosecuted [in] a full-fledged death penalty case based on pregnancy termination all the way through,” Douglas Berman, a law professor law at Ohio State University told The Christian Science Monitor.

The death of an unborn child should not be confused with the charges and recent conviction of Philadelphia abortion doctor Kermit Gosnell.  He was convicted of first-degree murder in the deaths of three babies born alive before having their necks cut with scissors. He was sentenced to life in prison.

The rush to pursue the death penalty for Castro seems to run contrary to what we are led to believe about America’s general feeling toward the death penalty. 

The decline of capital punishment marked a milestone just this month when Maryland became the first state south of the Mason-Dixon Line to abolish the death penalty in nearly 50 years.  Nationwide, Maryland is the sixth state in six years to abolish capital punishment.

A Washington Post Maryland poll early this spring found that 63 percent of whites and only 37 percent of African-Americans said they favor the death penalty for people convicted of murder.

However, an interesting about-face occurred in the wake of the Boston Marathon bombings. A large majority of white Americans, 75 percent, say they support the death penalty for 19-year-old Dzhokhar Tsarnaev if convicted in federal court, according to a new Washington Post-ABC News poll.

One in three people, who said they opposed the death penalty in the first poll, now support the death penalty for Tsarnaev. 

After Timothy McVeigh was convicted of the Oklahoma City bombing 81 percent of Americans supported his execution.  That was more people than admitted to supporting the death penalty at the time. In 2006, when 65 percent of people said they supported the death penalty, 82 percent supported the execution of Saddam Hussein.

Apparently, for some who oppose the death penalty there are exceptions — like being aware of the crime or personally touched by it even if being touched was through a television screen while sitting unscathed in the safety and security of one’s home.

Professor Berman concedes that getting the death penalty on a pregnancy termination will be very hard “to prove and establish.” More importantly, Amanda Berry, Gina DeJesus and Michelle Knight should be the primary focus of this investigation and prosecution. The diabolical way they were tortured and dehumanized demands nothing less.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: NTSB pushing for lower drunk driving threshold

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 24, 2013

One drink may soon be the limit if you’re driving. One standard drink, on average 14 grams of alcohol, will increase the average person’s blood-alcohol content (BAC) to roughly 0.02 percent to 0.05 percent. The National Transportation Safety Board (NTSB) wants .05 percent to be the legal limit.

Alcohol related crashes account for nearly a third of all U.S. traffic deaths and 146,000 injuries each year. Impaired driving fatalities have dropped sharply since the early 1980s; however, the death rate has remained flat between 30 and 32 percent since 1995.

A study recently cited by the NTSB found crash risk jumps with a BAC as low as 0.04 percent and the risk doubles at 0.08 percent. “More recent studies have shown that risk is significantly higher when a driver’s BAC is 0.05, and that crash risk climbs rapidly at BAC levels that exceed 0.08,” the report said.

As a result, the NTSB has recommended that states reduce the BAC that qualifies as drunken driving to 0.05 percent. "This is critical because impaired driving remains one of the biggest killers in the United States," said Deborah Hersman, the NTSB chairman. "To make a bold difference will require bold action. But it can be done."

In 1982, the NTSB recommended that states reduce the drunken-driving limit from 0.10% to 0.08%. Utah became the first state to lower its limit in 1983, but it was 21 years before all 50 states fell in line.
At the time, about half of all highway deaths involved alcohol-impaired driving and killed 21,113 people. The number of deaths has been cut in half since then. "We have made progress…but not nearly enough," Hersman said.

Not everyone is on board with the NTSB. Republicans in Congress have a message for those who want to dramatically lower the legal alcohol limit for drivers: Washington needs to butt out.
GOP leaders on Capitol Hill said the legal limit on BAC should be left to state legislatures. And while the NTSB’s recommendations are nonbinding, Republicans are warning the government against withholding federal funding to push states to lower the BAC threshold.

Tying federal highway dollars to states’ drunken driving laws is a bipartisan practice that goes back decades. The Reagan administration used the threat of lost money to get states to raise their drinking age to 21 in the 1980s, and Congress used similar leverage to prod states to reduce the BAC threshold to 0.08 percent.

Michigan is considering raising the BAC threshold. The state was one of the last to reduce the BAC threshold to .08, passing the law in 2003. The reduction had a sunset clause. The legal blood alcohol level will return to .10 on October 1 unless a new law is passed.

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Prison Officials Rethink Solitary Confinement

A growing number of prison professionals around the country are having a dimming view of the effectiveness and expense of solitary confinement, as well as the realization of its mental and physical toll on inmates, reported CBS News.

"Ninety-five percent of them are going to be released and live in your and my neighborhood," Mississippi Prison Commissioner Christopher Epps said. "We're in the business of corrections. We're in the business or rehabilitation."

Evidence that solitary confinement controls violence or curbs misbehavior has been scarce, while solitary confinement makes matters even worse for the increased number of people with mental illnesses who are incarcerated.

Mentally ill crowd America's jails.

In the old days, anytime an inmate misbehaved, Epps said, prison officials didn't take any chances and placed him in a single cell away from the general population. An inmate would then have to prove his good behavior for a very long time to be transferred back.

The reasons for being sent to solitary were varied and subjective -- from refusing work assignments on Parchman's sprawling 1,800 acres of farm land, to fighting with other inmates. Six-month or year-long stints in solitary were not unusual. Epps knew one inmate who was held in solitary for five years.

"They change physically," Epps said. He saw one inmate's hair go completely gray in six months. "It is my belief it affected them mentally."

To read more: http://www.cbsnews.com/8301-18563_162-57585177/mississippi-rethinks-solitary-confinement/

Arias changes mind, asks jury for life

Convicted killer Jodi Arias asked an Arizona jury to spare her life during the penalty phase of her trial.  The jury is now deliberating.

After her conviction, Arias told a local Fox television news affiliate she preferred a death sentence to life in prison: "I believe death is the ultimate freedom, so I'd rather just have my freedom as soon as I can get it," she said.  She has obviously changed her mind.

Arias was found guilty earlier this month of the murder of Travis Alexander, whose body was found slumped in the shower of his Phoenix-area home in 2008. He had been stabbed 27 times, shot in the face and had his throat slashed.

Asking for her life to be spared, Arias told the jury this week that she planned to use her time in prison to bring about positive changes, including donating her hair to be made into wigs for cancer victims, helping establish prison recycling programs and designing T-shirts that would raise money for victims of domestic abuse.

The chances of Arias being executed are slim even if she asked for the death penalty.

While women account for about one in eight of the arrests for murder in the United States, less than 2 percent of death row inmates are women, according to the Death Penalty Information Center.

Only one woman has ever been executed in Arizona, one-time Alaska cabaret singer Eva Dugan. Convicted of killing a wealthy Tucson chicken farmer, she was hanged and accidentally decapitated in 1930.

There are two women and 122 men currently on death row in the Arizona. Of the more than 1,300 murderers executed nationwide since 1976, only 12, or fewer than one percent, were women.

Arizona, which is among 32 U.S. states that have the death penalty, has executed 11 people since 2010, most recently in December when Richard Stokley was put to death for killing two girls in 1991.

To read more:

http://www.reuters.com/article/2013/05/21/us-usa-crime-jodiarias-deathpenalty-idUSBRE94K0FU20130521

Man released from prison after 27 years is sent back

Barry Beach had spent 27 years in prison for the 1979 murder of a teenage classmate.  He became a cause celebre among some influential state and national advocates who say his murder confession was coerced.

Years of calls for his release culminated in a 2011 judge's order freeing him and laying the groundwork for a new trial, with testimony expected from witnesses who allege Nees was killed in an out-of-control fight among girls.

Last week, the Montana Supreme Court ordered him back to prison and took away his brief taste of normal life. Beach had been settling into a new life in Billings, with a house and a job.

The state Supreme Court's reversal of the 2011 order puts Beach back in prison for what will likely be the rest of his life barring some kind of intervention. Almost nothing about the Barry Beach case has been routine — and advocates promised they will find other ways to prove his innocence.

To read more: http://news.yahoo.com/mont-man-custody-release-1979-slaying-174259874.html

Pennsylvania Court Rules Miller v. Alabama Not Retroactive

Erie County Judge Shad Connelly -- in the first decision of its kind in Erie County -- ruled last week that, based on current law, the U.S. Supreme Court decision in Miller v. Alabama is not retroactive, reported the Erie Times-News.

The U.S. Supreme Court said mandatory life sentences without parole are unconstitutional for defendants convicted of murder as juveniles. The court did not prohibit all life sentences with no parole for juvenile offenders but said such sentences cannot be automatic.

If it were retroactive, it would apply to cases, such as those of all the juvenile lifers in Erie and Crawford counties, that were filed before Miller.

The Pennsylvania Supreme Court has not issued an opinion with regard to Miller's retroactivity, although Commonwealth v. Ian Cunningham, a case dealing with the issue of retroactivity was argued before the court last fall

"There is nothing in Miller which either explicitly or impliedly sets forth that it is to be applied retroactively," Connelly wrote in a four-page opinion. In addition, he wrote, "neither the Pennsylvania Supreme Court nor Pennsylvania Legislature has recognized the Miller decision as retroactive."

The ruling could affect eight other juvenile "lifer" inmates from Erie County who were convicted of committing murder as juveniles and sentenced to automatic life terms with no parole. Crawford County has four such inmates, and Pennsylvania 373 overall.

To read more: http://www.goerie.com/apps/pbcs.dll/article?AID=/20130516/NEWS02/305169922/-1/NEWSSITEMAP

It’s time to padlock Ohio debtor prison

Matthew T. Mangino
The Vindicator
May 19, 2013

Some Ohio counties, in defiance of state and federal law, are locking away indigent defendants who are too poor to pay off their fines and costs.

Some states apply “poverty penalties,” such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News’ “Moneywatch.” Alabama charges a 30 percent collection fee. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel. Florida allows private debt collectors to add a 40 percent surcharge to the original debt.

CASH-REGISTER JUSTICE

In 2010, the Brennan Center for Justice issued a report on Florida’s reliance on fees to fund its courts. Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash- register justice.”

The report concluded that the “current fee system creates a self-perpetuating cycle of debt for persons re-entering society after incarceration.” Not to mention the court-related debt that lands some people in prison for the first time.

In a number of Ohio counties, things are even worse.

According to a recent report prepared by the ACLU, “The Outskirts of Hope,” the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”

In some Ohio counties offenders are being jailed because they are too poor to pay fines. That is a violation of federal and state law and the perpetuation of an antiquated and draconian process known as “debtors’ prison.”

In the second half of 2012, more than 20 percent of all bookings in Ohio’s Huron County Jail were related to failure to pay fines, according to the ACLU.

During the same time period, Erie County jailed 75 people for failure to pay, and Parma Municipal Court in Cuyahoga County jailed 45 people.

Nearly 30 years ago, the United States Supreme Court ruled that courts cannot properly revoke a defendant’s probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay.

If a court initially determined a fine was the appropriate penalty for a crime, the court could not later imprison a person solely because he lacked the resources to pay the fine.

While jail is an option for an individual willfully refusing to pay a fine, jail is never an option in Ohio for failure to pay court costs and restitution. The Ohio Supreme Court has ruled that fines are criminal sanctions, and costs and restitution are civil. Yet, according to the ACLU, some Ohio counties regularly incarcerate people for failure to pay court costs.

A CRITICAL DISTINCTION

It appears that some courts fail to make the crucial distinction between defendants who have the means to pay their debts but refuse to pay, and those who are too poor to pay. Some suggest that the failure derives from the lack of consistent legal standards for determining willful nonpayment of court imposed-fines.

That is not the case in Ohio. The Ohio Constitution explicitly prohibits debtors’ prison, and the concept is further prohibited by statute and case law. The procedure is clearly defined in Ohio. Before jailing an individual for failure to pay fines, a judge must conduct a hearing where the individual is represented by counsel and has the opportunity to present evidence regarding her ability to pay the fine.

In spite of those clear directives, Ohioans are regularly jailed because they are simply too poor to pay.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, PA. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino)

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GateHouse: Debtors’ prison thriving in America

Matthew T. Mangino
GateHouse News Service
May 17, 2013

As policymakers look for ways to generate revenue to fund the growing costs of the criminal justice system, an insidious practice has taken root in courtrooms across the country.

Indigent offenders are being strapped with enormous debt and then being jailed if they don’t pay. In 2010, the Brennan Center for Justice issued a report on Florida’s reliance on fees to fund its courts.

Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash register justice.”

The report concluded that the "current fee system creates a self-perpetuating cycle of debt for persons re-entering society after incarceration." Not to mention the court-related debt that lands some people in prison for the first time.

Some states apply "poverty penalties," such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News Moneywatch. Alabama charges a 30 percent collection fee, for instance, while Florida allows private debt collectors to add a 40 percent surcharge on the original debt. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel.

Things are even worse in some Ohio counties.

 

According to a recent report prepared by the ACLU, The Outskirts of Hope, the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”

 

In some Ohio counties offenders are being jailed because they are too poor to pay fines.  That is a violation of federal and state law and the perpetuation of an antiquated and draconian process known as “debtors’ prison.”

 

In the second half of 2012, over 20 percent of all bookings in Ohio’s Huron County Jail were related to failure to pay fines, according to the ACLU.  During the same time period Erie County jailed 75 people for failure to pay and Parma Municipal Court in Cuyahoga County jailed 45 people.

 

Nearly 30 years ago, the United States Supreme Court ruled that courts cannot properly revoke a defendant's probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay. If a court initially determined a fine was the appropriate penalty for the crime, the court could not later imprison a person solely because he lacked the resources to pay the fine.

 

It appears that some courts fail to make the crucial distinction between defendants who have the means to pay their debts but don’t, and those who are too poor to pay. Some suggest that the failure derives from the lack of consistent legal standards for determining willful nonpayment of court-imposed fines.

 

That is not the case in Ohio. The Ohio Constitution explicitly prohibits debtors’ prison, and the concept is further prohibited by statute and case law.  The procedure is clearly defined in Ohio and many other states. Before jailing an individual for failure to pay fines a judge must conduct a hearing where the individual is represented by counsel and has the opportunity to present evidence regarding her ability to pay the fine.

 

These practices are not just now being revealed. A 2010 report, In For a Penny: The Rise of America's New Debtors' Prisons lamented,  "[D]ay after day, indigent defendants are imprisoned for failing to pay legal debts they can never hope to manage." Three years later in Ohio, and across the country, people continue to be jailed because they’re simply too poor to pay.

 

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: Pursuing the monster — Fury or bluster

The Pittsburgh Post-Gazette/Ipso Facto
May 17, 2013

This week, Philadelphia abortion doctor Kermit Gosnell was convicted of first-degree murder in the deaths of three babies authorities said were born alive before having their spinal cord snipped with scissors.
Philadelphia District Attorney Seth Williams called the case "arguably the most gruesome" he's seen. "I will not mince words, Kermit Gosnell is a monster.”

Last week, three young women were rescued from a Cleveland home after being held captive for nearly ten years by Ariel Castro. The women were allegedly sexually assaulted, physically abused, tortured and at least one woman was beaten and starved in order to terminate multiple pregnancies.

"The first thing I said was, 'I knew it, I knew it,' " Fernando Colon, Castro’s neighbor, told the Los Angeles Times, "He's a monster. He's the opposite of what people thought he was."

These guys aren’t just criminals, they’re monsters -- no punishment is adequate -- extermination is the only recourse…right?

Cuyahoga County prosecutor Timothy McGinty said his office will decide whether to bring aggravated murder charges against Castro, punishable by death in connection with the pregnancies that were terminated by force.

"Capital punishment must be reserved for those crimes that are truly the worst examples of human conduct," he said. "The reality is we still have brutal criminals in our midst who have no respect for the rule of law or human life."

Are these public declarations seeking the ultimate punishment just bluster?

This week, only days after Gosnell’s conviction, he was sentenced to three consecutive life prison terms without parole for each murder in exchange for waiving his appeal rights.

Can we expect the same thing down the road for Castro?

“Nobody has ever been prosecuted [in] a full-fledged death penalty case based on pregnancy termination all the way through,” said Douglas Berman, a law professor law at Ohio State University.

Cuyahoga County has a history of using the death penalty as a bargaining chip in plea negotiations.

McGinty’s predecessor Bill Mason pursued dozens of offenders on capital charges each year. From 2009 to 2011, Cuyahoga County indicted 135 defendants on charges that could result in a death sentence. Only two of those offenders were sent to death row.

Hamilton County, home to Cincinnati, has sent the most inmates to Ohio's death row -- 61 over 30 years -- though the county has indicted fewer than 200 people on aggravated murder in three decades. Hamilton County Prosecutor Joe Deters said in an interview last year, "To use the death penalty to force a plea bargain, I think it's unethical to do that."

When Illinois Gov. Pat Quinn signed legislation last year to abolish the death penalty, prosecutors lamented the loss of an effective crime fighting tool. Although conceding that the death penalty should not be used as a bargaining chip, Illinois prosecutor Eric Weis said, “Most people fear death more than life; and most, when facing that, will take a second look.”

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Texas executes cop killer

The 12th Execution of 2013

Jeffrey Demond Williams' was executed May 15, 2013 for killing a police officer 14 years ago, reported The Associated Press.

The execution came just over an hour after the U.S. Supreme Court rejected a last-day appeal from his attorneys. Lawyers contended Williams had been failed by previous attorneys at his trial and in early stages of his appeals.

Asked to make a final statement, Williams spoke quickly and angrily, beginning with "You clown police," and accused them of "killing innocent kids, murdering young kids."

"Y'all are getting away with murder all the time," he continued. "When I kill one or pop one, y'all want to kill me."

He ended his brief tirade by saying: "God has a plan for everything. ... I love everyone that loves me, I ain't got no love for anyone that don't love me."

He briefly picked up his head as the lethal drug took effect, then took several deep breaths and began gently snoring.

Williams was convicted of fatally shooting 39-year-old Houston officer Troy Blando while Blando was handcuffing him.

Blando was watching a motel where car thefts were suspected when he saw Williams drive up in a Lexus that was reported stolen.

Williams was captured about a block away. Blando's cuffs were hanging from one of his wrists.

He's the sixth Texas inmate executed this year.

To read more: http://news.yahoo.com/texas-executes-man-fatal-shooting-officer-235518665.html



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California's Three Strikes Revisions Moving Slowly

Last fall, California voters overwhelmingly supported a ballot initiative, Proposition 36, calling for revisions to the state's draconian Three Strikes law. California's Three Strikes law was resulting is ridiculous situations were  two-time felons were getting life prison for  retail theft or other low level crimes graded as a felonies.

In fact, majorities in every California county voted to scale back the Three Strikes law so thousands of inmates serving life sentences for relatively minor third offenses would have the chance to be set free.

Five months later, there is no such unanimity among counties when it comes to carrying out the voters' wishes, reported the San Francisco Chronicle.

Whether a third-strike felon eventually will gain freedom varies greatly depending on the county that sent him away, according to an Associated Press analysis of California Department of Corrections and Rehabilitation data.

In San Bernardino County, which has the second highest number of eligible inmates, 33 percent of the 291 Three Strikes inmates have been granted release under Proposition 36. But in Los Angeles and San Diego counties, just 6 percent of the nearly 1,300 eligible inmates have had their sentences reduced so far.

Statewide, 16 percent of 2,847 eligible inmates have been resentenced.

To read more: http://www.sfgate.com/news/crime/article/AP-Exclusive-New-3-Strikes-law-varies-by-county-4487426.php#ixzz2Sc3v9nxd

The system fails when the innocent are sent to jail: As I See It

Matthew T. Mangino
The Harrisburg Patriot-News
May 15, 2013

Why should you be concerned about men and women pleading guilty to crimes they claim they did not commit?

The National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at the Northwestern University School of Law, released its first report analyzing 873 exonerations between January 1989 and February 2012.

In the 873 cases that were studied, the registry found the most common reasons for wrongful conviction were perjury or false accusation (51 percent), mistaken witness identification (43 percent) and official misconduct (42 percent).

Since January 1, there have been a number of high-profile examples of exonerations after long prison stays for convictions that, in part, were based on faulty eyewitness identification.

David Ranta was freed from prison in March after serving 23 years of a 37.5 year sentence for the murder of a Brooklyn rabbi in 1990. Ranta’s lawyers had successfully argued that the police had coached an eyewitness to pick Ranta out of a line-up.

John Edward Smith spent 19 years behind bars. A former gang member, Smith adamantly maintained his innocence of murder. A wrongful convictions group, Innocence Matters, took his case and identified problems with the testimony of the lone witness that identified him as the killer. The witness recanted and a Los Angeles County Court vacated his conviction.

Randolph Arledge was sentenced to 99 years in prison in 1984 for a killing in Texas. He spent 28 years in prison until prosecutors recently agreed that he was not guilty after new DNA tests tied someone else to the crime.

More than 75,000 prosecutions every year are based entirely on the recollections of others. The overwhelming majority of eyewitness errors are not conscious or intentional. The misidentifications are the inevitable side effects of the process of remembering.

In recent years, neuroscientists have documented how these mistakes happen. According Johan Lehrer of the Wall Street Journal, “[O]ur recollections are always being altered, the details of the past warped by our present feelings and knowledge. The more you remember an event, the less reliable that memory becomes.”
Innocent people get convicted. That is an inevitable shortcoming in the system. Innocent people plead guilty—because they perceive a plea as the lesser of two evils—that is unconscionable.

State sanctioned imprisonment of the potentially innocent began in 1963 with Henry C. Alford. Alford, while pleading guilty to killing a man, said in court, “I’m not guilty but I plead guilty.” The U.S. Supreme Court affirmed his conviction in North Carolina v. Alford.

Alford pleas, as they became known, permit a defendant to concede that the prosecution can prove its case beyond a reasonable doubt while maintaining innocence. The prosecution then provides the factual basis for the guilty plea by providing the court with detailed documentation that the accused is guilty. The judge must decide whether there is sufficient evidence to support a conviction.

How prevalent are Alford pleas? In 2009, Allison D. Redlich and Asil Ali Ozdogru wrote in Alford Pleas in the Age of Innocence, six percent of state prisoners and three percent of federal prisoners entered Alford pleas. Forty-seven states and the District of Columbia allow for the Alford pleas, only New Jersey, Indiana and Michigan forbid the procedure.

There is no justification for permitting an individual to plead guilty, while claiming innocence, simply to allow that person to negotiate a less severe criminal sentence than may be imposed if the accused maintained her innocence, went to trial and was convicted.

A conviction at trial of an innocent person is a mistake. An Alford plea is tacit governmental approval of locking away a potentially innocent person.

There is no place in the criminal justice system for permitting individuals who claim innocence to plead guilty and go to prison.

Matthew T. Mangino is an attorney with Luxenberg, Garbett, Kelly & George in New Castle, Pa. He is the former district attorney for Lawrence County and a former member of the state Board of Probation and Parole.  

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Judges argue the PA Supreme Court Court should strike down mandatory retirement

Even though the Pennsylvania Constitution requires judges to retire in the year that they turn 70, the provision violates  fundamental rights, an attorney for judges argued before the state Supreme Court last week, reported The Legal Intelligencer.

Robert C. Heim, one of the attorneys representing judges seeking to strike down the mandatory retirement provision, told the high court that mandatory judicial retirement is an example of the will of the majority unconstitutionally infringing the rights of a minority.

Heim is arguing to abolish the age limit for judges in front of a panal that has four judges facing mandatory retirement in the next 6 years: Pennsylvania Chief Justice Ronald D. Castille and Justices Max Baer, J. Michael Eakin and Thomas G. Saylor.

Heim also argued that even if a majority of Pennsylvania voters adopts a constitutional provision, it could still be invalid if it violates another part of the constitution.

"Even though it's a majoritarian government, it also protects the few against the many," said Heim.

No court, including those in Pennsylvania, has ever held that one provision of a constitution could violate another provision of the constitution, argued J. Bart DeLone, a senior deputy attorney general.

"Such a holding would upend the most basic principles of democracy," DeLone said.

The plaintiffs are seeking to overturn precedent including Gondelman v. Commonwealth, in which challenges to mandatory retirement for judges were rejected.

Hangley said that the basis for the 1968 constitutional provision mandating that the judiciary retire in their 70th year implicates the "sensitive classification" of age for which even more scrutiny by the six sitting justices is necessary. Public policies regarding age is a sensitive area that must be looked at by the judiciary to see if there is a "closer relationship between the classification you make and the policy that you're trying to accomplish," Hangley said. Hangley argued that there was not such a "closer relationship" between classifying judges on the basis of age and the public policy rationales behind the constitutional amendment.

Justice Seamus McCaffery argued there is a growing incidence of dementia, that it is unfair to president judges, especially in smaller counties, to have to say to judges with deteriorating mental conditions that it is time for them to step down, and that it is unfair to litigants whose cases are heard by impaired judges.

The Supreme Court heard the claims of Montgomery County Court of Common Pleas Judge Arthur Tilson in one lawsuit, and Philadelphia Court of Common Pleas Senior Judge Sandra Mazer Moss, who is team leader of the judicial team handling 2011 cases, 2009 cases and cases older than 2009; Philadelphia Court of Common Pleas Judge Joseph D. O'Keefe, administrative judge of the Orphans' Court; and Westmoreland County Court of Common Pleas Judge John J. Driscoll, administrative judge of the juvenile court, in the other case.

There also are lawsuits in federal court as well as one in Commonwealth Court challenging the mandatory retirement provision.

There also is legislation pending in the Senate that would put forth a constitutional amendment to eliminate mandatory retirement entirely, and there is legislation pending in the House of Representatives that would lift the mandatory retirement age up to 75.

To read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202599217212&kw=Pa.%20Justices%20Hear%20Challenges%20to%20Mandatory%20Judicial%20Retirement&et=editorial&bu=The%20Legal%20Intelligencer&cn=20130509&src=EMC-Email&pt=AM%20Legal%20Alert&slreturn=20130409094434

Suit seeks better treatment of mentally ill in Pennsylvania prisons

John McClellan took his own life in May 2011 at SCI-Cresson, a Pennsylvania state correctional facility. McClellan’s death and alleged treatment by staff leading up to his suicide is the centerpiece of allegations lodged in a federal lawsuit filed by the Disability Rights Network and the ACLU.

The lawsuit describes the use of solitary confinement on mentally ill prisoners as a “Dickensian nightmare.” Robert Meek, an attorney for the Disability Rights Network, said that discussions with the state about a possible settlement in the case filed last month are due to begin soon.

It is the latest in a series of similar lawsuits filed by advocacy groups across the country alleging that state prison systems have not been providing adequate treatment to mentally ill inmates, reported the Johnstown Tribune Democrat.

In all cases, the lawsuits were not seeking money, just changes in the way prisons respond to the mentally ill.

“In general, I can say, we just want them to provide the adequate care,” Meek said.

In all cases, advocates spent years trying to get state prisons to make changes before finally resorting to lawsuits as a last resort, he said. Meek said his organization began trying to get the Department of Corrections to change its policies in 2006.

The lawsuit alleges that the mental health counseling that inmates in solitary confinement receive essentially consists of someone speaking to them through slots in a cell door.

The seriousness of the struggle to provide adequate treatment for the mentally ill has attracted the notice of lawmakers. The state House Judiciary Committee has forwarded a resolution to the full House that would ask a Joint State Government Commission to conduct a thorough review of the existing mental health system in the state.

The author of that legislation, Rep. Thomas Caltagirone said that Department of Corrections data suggest that as many as 20 percent of male prison inmates may have serious mental health problems. For female inmates, the numbers are worse: 40 percent may have serious mental illness.

Meek told the Tribune Democrat that the lawsuit focused on the use of solitary confinement because that provided the best opportunity to demonstrate a violation of constitutional rights. There is also ample documentation of the detrimental effect of using solitary confinement for mentally ill inmates, Meek said. The issue has been repeatedly examined in lawsuits in other states, he said.

To read more: http://tribune-democrat.com/local/x508488134/Critics-Pa-prison-system-fails-to-treat-mentally-ill

Nevada to study cost of the death penalty

Nevada lawmakers want to take a closer look at the cost of keeping the death penalty in the state’s criminal punishment arsenal. However, Assembly Bill 444 seeks an interim study on the costs of the death penalty, the Las Vegas Review Journal.

There are 83 people on death row in Nevada. The last execution was in 2006 and there are no other executions imminent.

Currently 32 states have the death penalty and 10 people have been executed so far this year— 47 people were executed in 2012, according to the Death Penalty Information Center.  Maryland recently abolished the death penalty, the sixth state in six years to abolish the death penalty.

“It’s meant to be dispassionate, rational, logical,” said Assemblyman James Ohrenschall, D-Las Vegas. “It’s not meant to cater to the anti-death penalty abolitionists, or the folks who think the death penalty is the best thing around.”

A report of the findings would be submitted to the 2015 Legislature, which could lead to more bills, Ohrenschall said.

He said he expects the results will show that the costs of death penalty cases are much higher than most people expect.

“It’s not fair to our legislators and our constituents not to know the cost,” he said. “Legislators, if you get that it’s so expensive, might not want to have it; not from a moral or religious ground, but from government efficiency and our limited resources.”

To read more: http://www.reviewjournal.com/news/nevada-legislature/nevada-bill-would-create-death-penalty-cost-study

GateHouse: The dissonant plea, guilty but innocent

Matthew T. Mangino
GateHouse News Service
May 10, 2013

As exonerations become more commonplace and innocence organizations, whose sole purpose is to collaterally attack wrongful convictions, proliferate there continues to be a mechanism in the law of most states that permits an individual who claims innocence to nevertheless plead guilty and go to prison.

The criminal justice system’s long standing staples — eyewitness identification, fingerprints, fiber samples, tool markings — are fallible. With wrongful convictions splashed across the front page of newspapers across the country, why — in the interest of efficiency — does the system permit potentially innocent men and women to be locked away?

The road to state-sanctioned imprisonment of potentially innocent individuals began in 1963 with Henry C. Alford. Alford was indicted for first-degree murder, a capital offense in North Carolina. Although he proclaimed his innocence, he pleaded guilty to killing a man with a shotgun. He said in court, “I’m not guilty, but I plead guilty.”

The U.S. Supreme Court confirmed his conviction in 1970 and forever more Henry C. Alford’s name was attached to the controversial practice of pleading guilty — an Alford plea — while claiming innocence.

The Supreme Court ruled in Alford’s case, “An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

Forty-seven states and the District of Columbia allow for Alford pleas, only New Jersey, Indiana and Michigan forbid the practice.

Alford pleas permit a defendant to concede that the prosecution can prove its case beyond a reasonable doubt while maintaining innocence. The prosecution then provides the factual basis for the guilty plea by providing the court with detailed documentation that the accused is guilty. The judge must decide whether there is sufficient evidence to support a conviction.

An accused proclaiming innocence should have his day in court. What does the system gain by permitting an innocent person to go to prison through the means of a lenient negotiated plea as opposed to going to trial?

Whether by Alford plea or conviction at trial the accused is wrongly imprisoned. A conviction at trial of an innocent person is a mistake. An Alford plea is tacit governmental approval of locking away a potentially innocent person.

Professor Stephanos Bibas of the University of Pennsylvania Law School wrote more than 10 years ago, “Alford and nolo contender pleas, I contend, are unwise and should be abolished. These procedures may be constitutional and efficient, but they undermine key values served by admissions of guilt in open court.”

Bibas used Indiana as a compelling example of the argument against Alford pleas. The Indiana Supreme Court ruled “[T]hat judges may not accept guilty pleas accompanied by protestations of innocence. The court suggested that Alford pleas risk being unintelligent, involuntary, and inaccurate.”

Since Jan. 1, there have been a number of high profile exonerations after long prison stays. Though not Alford pleas, the exonerations point to the exhaustive efforts to free the innocent.

David Ranta was freed from prison in March after serving 23 years of a 37.5-year sentence for the murder of a Brooklyn rabbi. John Edward Smith spent 19 years behind bars in California for a murder he did not commit. Randolph Arledge spent 28 years in a Texas prison for a crime tied to another suspect through DNA.

The Eighteen Century English jurist Sir William Blackstone famously wrote, “It is better that 10 guilty persons escape than that one innocent suffer.”

It is unconscionable for an innocent person to go to prison even if that person knowingly agrees to imprisonment. There is no place in a system that has taken extraordinary measures to undo wrongful convictions to permit individuals to plead guilty to offenses for which they claim innocence.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Cautionary Instruction: It’s good to be the … ah … judge

The Pittsburgh Post-Gazette/Ipso Facto
May 10, 2013

This week, Allegheny County Court of Common Pleas Judge Lester G. Nauhaus sentenced former Pennsylvania Supreme Court Justice Joan Orie Melvin in connection with her conviction on political corruption charges related to the misuse of staff for campaign purposes.

There have been a number of public officials in Pennsylvania convicted and sentenced in recent years for campaign corruption. Orie Melvin was the only judge -- the rest were lawmakers. Let’s take a look at the scorecard:

Lawmakers:

Former Pennsylvania House Speaker John Perzel was sentenced to 30 to 60 months in prison and to pay $1 million in restitution for his role in a scheme to use public resources for campaign purposes.

The once powerful lawmaker was sentenced by Dauphin County Judge Richard Lewis.

Former Pennsylvania Rep. Mike Veon was sentenced to six to 14 years in prison for his role in a public corruption case that involved using public money and employees for campaign work. Veon was also ordered to pay a $37,000 fine and $100,000 in restitution. He was also sentenced by Lewis.

Former State Rep. Bill DeWeese, a longtime power broker in the state House, was sentenced to 30 to 60 months in prison on his convictions for using state-paid employees on his election campaigns.

Dauphin County President Judge Todd A. Hoover imposed the sentence, plus $25,000 in fines and $116,000 in restitution.

Former state Rep. Stephen Stetler was sentenced to 18 months to five years in prison for his conviction on charges involving the illegal use of state employees to perform campaign work.

In addition to the prison term, Judge Hoover ordered Stetler to pay more than $466,000 in restitution and fines totaling $35,000.

Former Senator Vincent Fumo was convicted of defrauding the state Senate, a neighborhood nonprofit and a Philadelphia museum. At his 2009 sentencing he faced about 20 years.

A federal judge initially sentenced him to 55 months in prison. A federal appeals court threw out the sentence and Fumo was re-sentenced to 61 months in prison.

Former state Senate Democratic Leader Robert J. Mellow was sentenced in federal court to 16 months in prison, followed by three years supervised release.

Mellow pleaded guilty to conspiracy to commit mail fraud for using taxpayer-paid Senate staffers to do political campaign work and for filing a bogus tax return.

Former state Sen. Jane Orie, sister of Orie Melvin, was sentenced to spend two and one-half to 10 years in prison for public corruption related to campaigning with state funds and employees, as well as forgery.

Judge:

Orie Melvin was sentenced to three years house arrest and ordered to send a picture of herself with an apology written on it to every member of the Pennsylvania judiciary.

The scorecard reveals that being a judge in Pennsylvania is a pretty good deal no matter what side of the bench the judge is on.

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PA Superior Court Vacates Juvenile Ruling in Case of 11-year-old Killer

The Pennsylvania Superior Court has overturned the Lawrence County adjudication of delinquency against Jordan Brown.

Brown was originally charged, at age 11, in an adult court with the first degree murder of his father's girlfriend, Kenzie Houk.  She was shot in the back of the head with a shotgun as she slept. If he had been convicted of first degree murder in an adult court he would have been the youngest offender ever sentenced to life in prison without the possibility of parole.

As a result of this decision, a new juvenile proceeding will be needed for the now-15-year-old.  This is not the first time the Superior Court has sent this case back to the Lawrence County Courts.  Initially, a trial court decision to try Brown as an adult was overturned and a second hearing resulted in the case being sent to juvenile court.

In reviewing the trial court record, the Superior Court took exception to the trial court's determination of the evidence, declaring in repeated instances that his findings were broader than justified by the evidence, according to the New Castle News.

Most importantly, the Superior Court found that the trial judge put too much emphasis on the testimony of a single witness who arrived to do some work 45 minutes after Brown left for school.  The worker noticed only his tire marks and the footprints of child in a fresh snow on the driveway.  The judge used that testimony to conclude that no one else could have entered the house before or after Brown left for school.

The Superior Court concluded that Judge John Hodge had “committed a palpable abuse of discretion in rendering a ruling that is plainly contrary to the evidence.”

To read more: http://www.ncnewsonline.com/local/x319981368/Appeals-court-overturns-Jordan-Brown-ruling

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Judge throws out confession, rape prosecution in jeopardy

A Chester County, Pennsylvania Common Pleas Court judge, David Bortner, has ruled that a statement taken from a suspect in two West Chester rapes cannot be used at his trial because police questioning him had improperly circumvented his Miranda rights, reported the Daily Local.

The decision regarding the suspects Fifth Amendment rights may put the prosecution of an admitted rapist in jeopardy.

Judge Bortner ruled in favor of Orobosa Izineg “Robbie” Enagbare’s motion to suppress the statement he gave to borough investigators in which he allegedly admitted sexually assaulting a borough woman, whose boyfriend he knew, after a night of drinking.

Bortner said Detective Stan Billie, in not informing Enagbare that a warrant for his arrest had been issued a day before the interview, had purposefully acted to get around the constraints of reading him his rights to remain silent and to have an attorney present during questioning.

Bortner wrote that he believed Billie did not give Enagbare the standard Miranda notification because if he did the suspect might not have spoken with him.

“This conduct is improper and impermissible,” Bortner wrote in his six-page opinion and order, according to the Daily Local. He rejected the prosecution’s contention that Billie’s strategy was acceptable because he had told Enagbare that he was not in custody and was free to leave or end the questioning.

To read more:
http://www.dailylocal.com/article/20130508/NEWS01/130509662/defendant-should-have-been-read-rights-judge-rules

Michigan looks to improve indigent defense and save money

Almost five years have passed since a study showed poor criminal defendants are routinely processed through Michigan's justice system without ever speaking to an attorney in violation of the Constitution, reported the Detroit News.

It has been nearly a year since a group appointed by Michigan Gov. Rick Snyder recommended fixes, including creation of state standards so counties are forced to bring legal aid up to par.

"The biggest exposure for the state of Michigan is they offloaded this to the counties without any sort of system to make sure that counties are doing it right," David Carroll, executive director of the Sixth Amendment Center, a Boston-based group working to improve indigent defense told the News. "If they can't guarantee that the counties are doing it, the states are liable."

Legislation being considered in House and Senate committees last week and this week would create an independent, permanent state commission to establish standards ensuring effective counsel is given to low-income defendants. Lawyers' ability, training and experience would have to match the nature and complexity of the case assigned, for example.

Instead of having full-time public defender offices, many counties now control costs with low-bid, flat-fee contracts in which appointed attorneys accept cases for a predetermined fee. That causes a conflict of interest between their duty to competently defend their clients and a financial self-interest to invest less time on cases to maximize profits, according to a 2008 report commissioned by the Legislature.

Under the bills, lawyers' workloads would be better controlled, and financial incentives or disincentives leading attorneys to short-change defendants "shall be avoided."

Local governments would have to fund indigent defense at the average level spent in the three years before the creation of the commission. The state would cover new costs for counties to improve their public defense systems. Michigan is among just seven states to provide no state funding for trial-level public defense services, according to the Michigan Campaign for Justice, a group supporting the legislation.

The lead sponsors are Republicans, including one of the most conservative in the Capitol. Those GOPs look at the indigent defense issue, not as a constitution issue, but a a dollar and cents issue.

"We have people who are sent to jail who are innocent or sentenced to longer terms because they were not represented properly. Keep in mind that we also pay $30,000-plus every year for each innocent person to be in prison," GOP Rep. Tom McMillin told the News.

To read more: http://www.detroitnews.com/article/20130505/POLITICS02/305050306#ixzz2Sc4CQzEW

Texas executes man for robbing drug dealer

The 11th Execution of 2013

In the seconds before being injected with a lethal dose of pentobarbital, Carroll Joe Parr told his victim's wife she should talk to her brother to learn "the truth about what happened to your husband." He convicted of killing a fellow drug dealer while robbing him outside of a Waco convenience store 10 years ago, reported The Associated Press.

Then, in what he called a "statement to the world," Parr said he was "in the midst of the truth."

"I am good. I am straight," he said.

He added that he wanted his "partners" or friends to know that he would "be back" like the Arnold Schwarzenegger "Terminator" film character.

"I'm on my way back. ... These eyes will close, but they will be opened again," Parr said before telling his family he loved them and thanking his spiritual adviser.

As the lethal drug began flowing into his arms, he took a breath, yawned, then began snoring. He was pronounced dead 19 minutes later, at 6:32 p.m. CDT.

Parr's attorneys didn't file any last-minute court appeals but Parr himself filed a petition with the U.S. Supreme Court to stop his punishment, arguing his legal help at his trial was deficient. Earlier Tuesday, the same appeal was denied by a judge in his trial court in Waco.

State and federal courts had rejected all of Parr's earlier appeals, most recently last week.

To read more: http://www.huffingtonpost.com/2013/05/08/carroll-joe-parr-executed_n_3236427.html

System Shouldn't Tolerate Guilty Pleas From Those Claiming Innocence

The Pennsylvania Law Weekly
May 6, 2013

As exonerations become more commonplace and organizations whose sole purpose is to collaterally attack wrongful convictions proliferate, there continues to be a mechanism in the law in most states that permits an individual who claims innocence to nevertheless plead guilty and go to prison.

The criminal justice system's longstanding staples — eyewitness identification, fingerprints, fiber samples, tool markings — are fallible. With wrongful convictions splashed across the front page of newspapers across the country, why — in the interest of efficiency — does the system add to the potential number of innocent men and women locked away?

The road to state-sanctioned imprisonment of potentially innocent individuals began in 1963 with Henry C. Alford. Alford was indicted for first-degree murder, a capital offense in North Carolina. Although he proclaimed his innocence, he pled guilty to killing a man with a shotgun. He said, on the record, "I'm not guilty but I plead guilty."

The U.S. Supreme Court confirmed his conviction in 1970 in a decision known as North Carolina v. Alford. The Alford plea was born and forever attached Alford's name to the controversial practice of pleading guilty while claiming innocence.

The Supreme Court found, "An individual accused of crime may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."

Forty-seven states and the District of Columbia allow for the Alford pleas; only New Jersey, Indiana and Michigan forbid the procedure.

Alford pleas permit a defendant to concede that the prosecution can prove its case beyond a reasonable doubt while maintaining innocence. The prosecution then provides the factual basis for the guilty plea by providing the court with detailed documentation that the accused is guilty. The judge must decide whether there is sufficient evidence to support a conviction.

An accused proclaiming innocence should have his or her day in court. What does the system gain by permitting an innocent person to go to prison through the means of a lenient negotiated plea as opposed to going to trial?

Whether by Alford plea or conviction at trial, the accused is wrongly imprisoned. A conviction at trial of an innocent person is a mistake.

An Alford plea is tacit governmental approval of locking away a potentially innocent person.

Professor Stephanos Bibas of the University of Pennsylvania Law School wrote more than 10 years ago, "Alford and nolo contendere pleas, I contend, are unwise and should be abolished. These procedures may be constitutional and efficient, but they undermine key values served by admissions of guilt in open court."

Bibas used Indiana as a compelling example of the argument against Alford pleas. He said the state's Supreme Court "has held that judges may not accept guilty pleas accompanied by protestations of innocence. The court suggested that Alford pleas risk being unintelligent, involuntary and inaccurate."

Since January 1, there have been a number of high-profile exonerations after long prison stays. David Ranta was freed from prison in March after serving 23 years of a 37-and-a-half-year sentence for the murder of a Brooklyn rabbi in 1990. John Edward Smith spent 19 years behind bars in California for a murder he did not commit. Randolph Arledge spent 28 years in a Texas prison for a crime tied to another suspect through DNA.

Why would we add to that number? It is unconscionable for an innocent person to go to prison even if that person knowingly agrees to imprisonment. There is no place in a system that has taken extraordinary measures to undo wrongful convictions to permit individuals to plead guilty to offenses for which they claim innocence. •

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California looks to reduce prison population by paroling lifers

About 30 thousand inmates are serving life sentences in California prisons. Of those inmates, more than 9,000 are currently eligible for parole. UCLA Law Professor Sharon Dolovich says if the state is looking to reduce its prison population that might be a good place to start, reported Capital Public Radio.

"All the studies show that people who have served multiple decades in prison, when they are released have an incredibly low recidivism rate compared to the population of former prisoners over all," she says.

But Dolovich says the parole granting process has become politicized, which means a lot of inmates who should be paroled are not.

In a statement, the Department of Corrections responds: "There are many offenders in California prisons who have served the minimum term of a life sentence and so are considered for parole periodically by the Board of Parole Hearings. However, many of those inmates committed heinous crimes and the decision to release any one of them on parole - let alone thousands of them - deserves very serious consideration."

Federal courts have ordered California to reduce overcrowding by either releasing inmates or increasing prison capacity by the end of the year, reported Capital Public Radio.

To read more: http://www.capradio.org/articles/2013/05/01/is-parole-the-answer-for-overcrowding-in-california-prisons

Surge in support of death penalty for Tsarnaev

The decline of capital punishment marked a milestone this week,  Maryland became the first state south of the Mason-Dixon line to abolish the death penalty in nearly 50 years, joining only West Virginia, reported The Associated Press.

The passage was a significant victory for Maryland Gov. Martin O'Malley, who opposes capital punishment and is considering seeking the 2016 presidential nomination. Death penalty opponents said the governor helped maintain the national momentum of repeal efforts by making Maryland the sixth state in as many years to abolish capital punishment.

In a recent Washington Post Maryland poll, 63 percent of whites and only 37 percent of African Americans said they favor the death penalty for people convicted of murder.

However, an interesting about-face occurred in the wake of the Boston Marathon bombing. A large majority of white Americans, 75 percent, support the death penalty for 19-year-old Dzhokhar Tsarnaev if convicted in federal court, according to a new Washington Post-ABC News poll.

One in three people who said they opposed the death penalty in the first poll, now support the death penalty for Tsarnaev.  Apparently, although they initially said they opposed capital punishment there were some exceptions-like being aware of the crime or personally touched by it even if the touch was through a television while sitting unscathed on the living room couch.

I had previously written about this phenomenon--a surge in support for the death penalty in high profile cases.

To read more: http://abcnews.go.com/US/wireStory/omalley-signs-md-death-penalty-repeal-19092996

GateHouse: Restorative justice: What’s old is new again

Matthew T. Mangino
GateHouse News Service
May 3, 2013

There is an enormous amount of money spent on keeping our communities and neighborhoods safe.

Notwithstanding what individuals invest to keep themselves safe, public funds are expended to investigate and arrest suspects. Tax dollars are used to prosecute and, a significant majority of the time, defend those suspects.

Once convicted, the government shells out tax dollars to house, guard and care for literally millions of offenders. With budgets tight — more than half of police departments surveyed by the Police Executive Research Forum reported funding cuts in 2012—lawmakers are looking for alternatives to the traditional criminal justice model “arrest’em, try’em and lock’em up.”

One alternative gaining traction is Restorative Justice (RJ). RJ is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It is best accomplished when the parties meet face-to-face to establish a plan of accountability and reconciliation. A meaningful RJ effort can transform people, relationships and communities.

RJ views criminal acts more comprehensively—rather than defining crime simply as law breaking; it recognizes that offenders harm victims, communities and even themselves.

In the U.K. there are a couple of ways to use RJ and each gives victims the chance to tell offenders the real impact of their crime, to get answers to questions and to receive an apology.

Through “conversations” the police resolve low-level crime without formal proceedings by holding, usually face-to-face, a conversation between offender and victim.

Through “conferences” everyone affected by an incident is invited to a structured meeting to decide what should be done to repair the harm. The offender meets the victim to apologize and help the victim recover from the crime.

A conference or conversation between offender and victims is not as novel as it seems. It wasn’t long ago when police officers walked the beat and became familiar faces in neighborhoods across the country. It wasn’t unusual for the beat officer to bring neighborhood families together, who were involved in a dispute, to collectively find a solution.

For instance, a couple of teenagers get into a scuffle. Arrest was not routine, instead the teens and their parents were summoned to the police station to work out their differences. Back in the day, it might have been considered common sense — today its restorative justice. Either way it’s the right thing to do.

Ted Wachtel, president of the International Institute for Restorative Practices, recently wrote in the Huffington Post, “Offenders, victims and their supporters all benefit from the free exchange of emotion that happens in a restorative justice conference. The conference process provides a way for all participants to discover their common humanity and move forward.”

Does RJ work? Dr. Lawrence W. Sherman and Dr. Heather Strang wrote in “Restorative Justice: the Evidence” that RJ reduces crime. In fact, RJ seems to reduce serious crime with specific discernible victims, more effectively than less serious crime. They also suggest that RJ works with violent crimes more effectively than property crimes — a significant finding.

Sixteen states have included RJ in their respective criminal or juvenile codes. The juvenile justice system in Pennsylvania is one of those states. Pennsylvania’s juvenile system is guided by a balanced and restorative justice philosophy. The measurable goals of Pennsylvania’s RJ include writing a letter of apology, completing meaningful community service, attending victim awareness panels, and providing restitution.

The most important measure of success is recidivism — did the juvenile offend again?

According to a 2009 report by The Center for Rural Pennsylvania, only about 19 percent of Pennsylvania’s juvenile offenders recidivated compared to 46 percent of adult offenders who committed a new crime or are returned to prison.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

Visit Column

Mangino on WKBN-TV

I commented on the potential criminal penalties facing the suspect in the sad and senseless death of Shenango Township Police Officer Jerry McCarthy IV.

Click below for the interview on WKBN-TV:

http://wkbn.com/2013/05/03/woman-in-fatal-police-crash-had-driving-record/

It's Official: Maryland Repeals the Death Penalty

Opponents of capital punishment marked a milestone Thursday as Maryland became the first state south of the Mason-Dixon line to abolish the death penalty in nearly 50 years, joining only West Virginia.

The passage was a significant victory for Democratic Gov. Martin O'Malley, a Roman Catholic who opposes capital punishment and is considering seeking the 2016 presidential nomination. Death penalty opponents said the governor helped maintain the national momentum of repeal efforts by making Maryland the sixth state in as many years to abolish capital punishment.

"I don't know exactly what the timing is, but over the longer arc of history I think you'll see more and more states repeal the death penalty," O'Malley said in a brief interview after the bill signing. "It's wasteful. It's ineffective. It doesn't work to reduce violent crime."

NAACP President and CEO Ben Jealous, who worked to get the repeal bill passed, noted the significance of a Democratic governor south of the Mason-Dixon line with presidential aspirations leading an effort to ban capital punishment. Jealous noted that in 1992, then-Arkansas Gov. Bill Clinton left the presidential campaign trail to oversee the execution of a man who had killed a police officer, a move widely viewed as an effort to shed the Democratic Party's image as soft on crime.

"Our governor has also just redefined what it means to have a political future in this country," Jealous said. "You know, it was just 20 years ago that a young governor with possibilities below the Mason-Dixon stopped during his presidential campaign" to oversee an execution.

West Virginia, which is also south of the Mason-Dixon line, abolished the death penalty in 1965.
Maryland is the 18th state to abolish the death penalty. Neighboring Delaware also made a push to repeal it this year, but the bill has stalled.

Diane Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, said Maryland is keeping the momentum going for other states to follow.

"It doesn't always happen overnight," Rust-Tierney said. "The more people study it, the more people understand it. This was a seven-year effort here in Maryland."

Supporters of capital punishment said the governor was taking away an important tool to protect the public. Del. Neil Parrott, a Washington County Republican, criticized the governor for moving ahead with banning the death penalty during the same session as he pushed for a gun-control bill to restrict firearms access to law-abiding citizens.

Parrott, who is chairman of a group called MDPetitions.com, scheduled a news conference on Friday to announce the group's decision on whether to launch a petition drive to try to put the death penalty ban on the ballot for voters to decide in 2014. He declined to say Thursday what the decision will be.

They would need to get one-third of the 55,736 signatures needed to petition a bill to referendum by midnight May 31 to qualify to move forward.

State Sen. Jamie Raskin, a Democrat and constitutional law professor who opposes the death penalty, said he believes pressure is building around the country to focus law enforcement resources on things that are proven to lower the homicide rate.

"The trend lines are clear," Raskin said. "There's nobody who's adding the death penalty to their state laws. Everybody is taking it away."

To read more:http://abcnews.go.com/US/wireStory/omalley-signs-md-death-penalty-repeal-19092996