Friday, February 28, 2014

The Cautionary Instruction: Supreme Court weakens Fourth Amendment

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
February 28, 2014
The U.S. Supreme Court ruled this week that police may search a home without a warrant when two occupants disagree about allowing officers to enter, and the resident who refuses access is then arrested and removed from the house.
The justices declined to extend an earlier ruling denying entry to police when the occupants disagree and both are present.
Justice Samuel Alito wrote the court's 6-3 decision holding that an occupant may not object to a search when he is not at home. "We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason," Alito said.
The case was argued before the Supreme Court last November. Sanford law professor Jeffrey Fisher argued at the time, "In Los Angeles County, it takes 15 minutes on average to get a warrant." He told the court that his client had strongly objected to the police entering his apartment before he was handcuffed and taken away.
In the past, the court has frowned upon most searches of residences except in the case of an emergency or if the police had a warrant from a judge.
But Alito said police were free to search when they get the consent of the only occupant on site.
"A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant," he said in the case before the court, Fernandez vs. California. "Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search [and] the magistrate who must review the warrant application."
The Fourth Amendment generally requires the police to obtain a warrant before searching a home, though that requirement may be avoided if the homeowner consents to the search.
In 2006, the Supreme Court decided Georgia v. Randolph a case with similar facts to Fernandez. At issue was a domestic violence investigation where the male suspect refused to let the police search his home while his wife authorized the search.
The police went in and searched the home. The Supreme Court ruled, “A physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.”
In Fernandez, Justice Ruth Bader Ginsburg was joined by Justices Sonia Sotomayor and Elena Kagan in a dissent. The three accused the majority of weakening the Fourth Amendment and granting the police too much latitude.
“Instead of adhering to the warrant requirement,” Ginsburg wrote, “today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.
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PA DOC Cited for Excessive Use of Solitary Confinement for Mentally Ill

A new report by the U.S. Justice Department concluded the Pennsylvania prison system has employed solitary confinement too often for inmates who exhibit mental illness or have intellectual disabilities, reported the Philadelphia Inquirer.            

"Now is the time to put a stop to these harmful solitary confinement practices and to meaningfully improve the mental health services PDOC provides," concluded the letter from the head of the Justice Department's Civil Rights Division and the U.S. attorney in Pittsburgh.
The Justice Department found that over a recent one-year period more than 1,000 prisoners deemed to have mental health problems had been in solitary confinement for at least three months, and nearly 250 for a year or more. Pennsylvania state prisons house just over 50,000 inmates.

Corrections Secretary John Wetzel the report does not fully reflect changes the prison system has already made, but he acknowledged the challenge of dealing with some 10,000 men and women with a range of mental illness.
"How long it takes to make major changes in a system of this size, it is what it is, when you do it the right way and when you train staff," Wetzel said.
The federal study found that the state's use of solitary often causes or exacerbates mental illness, noting that more than 70 percent of its suicide attempts occur in solitary confinement units. Prisoners with severe mental illness were more than twice as likely as others to end up in solitary.
Pennsylvania's use of solitary confinement violates the U.S. Constitution's prohibition against cruel and unusual punishment, and its treatment of mentally ill or intellectually disabled prisoners runs afoul of the Americans with Disabilities Act, the federal government said.
The report said the total number of inmates in solitary deemed to have severe mental illness or intellectual disability was about 115, but the real number is higher because the state undercounts those subpopulations, the Justice Department said.
The federal government described conditions as "dehumanizing and cruel," listing examples such as uncleaned feces on walls, denial of bedding material or clothes and verbal abuse from guards.
The state prisons' mental health staff is too small and does not coordinate well with each other, their record-keeping has been poor and the views of mental health professionals are often ignored, the report said.

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Thursday, February 27, 2014

Competing Legislation in Mississippi Dims Hope for Reform

Legislators in Mississippi demonstrate why criminal just legislation is often manipulated for political gain and not necessarily crafted with the best interest of constituents in mind.
In Mississippi, two days after the state House passed House Bill 585, which aims to cut the number of state prisoners to save money, representatives voted 79-41 to pass House Bill 63. It would limit the ability of violent offenders to get time off prison sentences after a second conviction, reported the Hattiesburg American.
Rep. Mark Formby, R-Picayune, said the bill could’ve prevented his aunt from being shot to death by a repeat offender. He and other supporters of the bill said people who commit a second violent crime after getting out of prison the first time haven’t learned their lessons and shouldn’t be able to earn time off.
“I don’t see how anyone in this chamber could be against this,” said Formby, the bill’s sponsor.
But the measure, which moves on to the Senate for more debate, is opposed by Corrections Commissioner Chris Epps. He said he wants legislators to make changes using the comprehensive bill.
“The commissioner wants changes to come through that package,” spokeswoman Grace Fisher said. “The package says violent offenders must serve a minimum of 50 percent of their sentence.”
The package was passed after months of research and debate by a task force of lawmakers, judges, prosecutors and others. Among the members was House Corrections Committee Chairman Tommy Taylor, R-Boyle, who helped advocate for HB 585.
The task force agreed that in addition to having violent offenders serve at least 50 percent of a sentence, people convicted of nonviolent offenses would have to serve at least 25 percent. The bills would give judges more flexibility to give alternative sentences, such as ordering treatment for drug users. They would also, for the first time in Mississippi law, specify which crimes are classified as violent, for sentencing purposes. And, they would strengthen requirements that victims be notified before an inmate is released from prison.
The plan is supposed to stop the growth in Mississippi’s prison population and save money, aiming to cut $266 million from prison budgets over the next 10 years.
Critics say that HB 63 would undo some of the task force’s work.
“You all are eroding that bill by bringing forth this bill,” said Rep. Adrienne Wooten, D-Jackson.

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Wednesday, February 26, 2014

SCOTUS expands the scope of warrantless searches

Police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected, the Supreme Court ruled according to the Los Angeles Times.
The 6-3 ruling, triggered by a LAPD arrest in 2009, gives authorities more leeway to search homes without obtaining a warrant, even when there is no emergency.
The majority, led by Justice Samuel A. Alito Jr., said police need not take the time to get a magistrate's approval before entering a home in such cases. But dissenters, led by Justice Ruth Bader Ginsburg, warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the "very core" of the 4th Amendment and its ban on unreasonable searches and seizures.
In the past, the court has frowned upon most searches of residences except in the case of an emergency or if the police had a warrant from a judge.
But Alito said police were free to search when they get the consent of the only occupant on site.
"A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant," he said in Fernandez vs. California. "Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search [and] the magistrate who must review the warrant application."
To read more Click Here

Tuesday, February 25, 2014

FBI reports violent crime down first half of 2013

The FBI has reported a decrease in violent crime for the first half of 2013.
Preliminary figures indicate that, as a whole, law enforcement agencies throughout the nation reported a decrease of 5.4 percent in the number of violent crimes brought to their attention for the first 6 months of 2013 when compared with figures reported for the same time in 2012. The violent crime category includes murder, forcible rape, robbery, and aggravated assault.
The number of property crimes in the United States from January to June of 2013 decreased 5.4 percent when compared with data for the same time period in 2012. Property crimes include burglary, larceny-theft, and motor vehicle theft. Arson is also a property crime, but data for arson are not included in property crime totals. Figures for 2013 indicate that arson decreased 15.6 percent when compared to 2012 figures from the same time period.
All data in this Report are preliminary.
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Monday, February 24, 2014

Guns will overtake car accidents as leading killer of young people

Guns kill a lot of young people in the United States. Not just in school shootings or horrific “accidents” between toddlers that tend to garner the most media attention, but in every day shootings in communities around the country that result in the deaths of thousands of children and teenagers.
In 2010, 6,201 young people between the ages of 15 and 24 died by gunfire, wrote Chelsea Parsons in Think Progress.
Guns were a close second to the leading cause of death among this age group, car accidents, which took the lives of 7,024 young people that year. But, while car accident deaths among young people have been steadily declining over the past decade, gun deaths have remained relatively unchanged. According to a new Center for American Progress report if current trends continue, gun deaths will surpass car accident deaths among young people sometime in 2015.
Unfortunately, since the early 1990s, very few public health researchers have been trying to find out. Restrictions on such research imposed by Congress have had a substantial chilling effect, which has resulted in the almost total abandonment of this issue by our nation’s public health research institutions. Without this research, policymakers, legislators, community leaders, and parents are left without much direction regarding how to best protect children and teenagers from gun violence.
As we approach that morbid milestone next year when gun violence kills more American children and teenagers than car accidents, it’s time to start approaching this problem in the same manner as we addressed car accident deaths. We know how to do this –-through a combination of public health research, technological innovation, legislative change, enhanced enforcement, and transforming cultural norms we were able to make motor vehicle transportation safer while at the same time preserving American’s unique car culture.
We can do the same thing with gun violence by adopting laws and policies designed to prevent gun deaths while protecting the rights of law-abiding gun owners.
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Sunday, February 23, 2014

GateHouse: Governor joins chorus of death penalty opponents

Matthew T. Mangino
GateHouse News Service
February 21, 2014

In 2010, Cal Coburn Brown was executed by the state of Washington. Brown had brutally tortured, sexually assaulted and murdered a young woman. He left her body in the trunk of a car at the Sea-Tac Airport.

Brown then jumped on an airplane and went to meet a woman in Palm Springs, Calif. He was torturing her when she escaped and notified police.

Brown spent more than 16 years on Washington’s death row. As he lay strapped to a gurney awaiting lethal injection, he protested what he perceived to be the unfairness of his sentence. He complained that criminals who had killed many more people, such as “Green River killer” Gary Ridgway, were serving life sentences while he received a death sentence.

Ridgway murdered at least 48 women in Washington during the 1980s and 1990s, earning the nickname when his first five victims were found in the Green River. “I only killed one victim,” said Brown. “I cannot really see that there is true justice. Hopefully, sometime in the future that gets straightened out.”

Brown’s execution was the last carried out in Washington. He may end up being the last person ever executed in the state.

Last week, Washington Gov. Jay Inslee suspended the use of the death penalty in Washington for as long as he’s in office. There are nine men on death row. Recently, a federal court lifted a stay on the execution of Jonathan Lee Gentry, who has been on death row since 1988.

Inslee said in a prepared statement, “Death sentences are neither swift nor certain. Seven of the nine men on death row committed their crimes more than 15 years ago, including one from 26 years ago.”

Last year, Maryland lawmakers did away with the death penalty, joining New Mexico, New York, New Jersey, Illinois and Connecticut to abolish capital punishment in just the last six years.

Inslee is not alone among governors suspending capital punishment. Last year, Colorado Gov. John Hickenlooper vowed not to carry out any executions as governor. Colorado has had the death penalty since 1977, although only one person has been put to death since then and there are just three killers on death row.

Gov. John Kitzhaber of Oregon also said he would not allow executions in his state during his time in office. Oregon has executed just two people since voters approved the death penalty in 1984, and both of those inmates waived their right to appeal, making them so-called volunteers. There are 37 inmates on Oregon’s death row. The state’s last execution was in 1997.

In spite of the action of a half-dozen states and a handful of governors, a majority of Americans, 55 percent, support the death penalty, according to a 2013 Pew Research Survey. That number has declined significantly over the last two decades — in 1996, 78 percent of Americans favored capital punishment.

Not everyone agrees that the death penalty is on life support. California voters in 2012 defeated a ballot measure that would have abolished the death penalty and replaced it with life in prison without parole. California has not executed any of its more than 740 condemned inmates since 2006.

Just this past week, three former California governors, George Deukmejian, Pete Wilson and Gray Davis, threw their political weight behind still another opportunity for California voters to decide the fate of the death penalty.

The proposed referendum would streamline the state court appeals process. The measure would also overhaul the way death row inmates’ lawyers are appointed, change the method by which lethal injection procedures are approved and attach some limitation on federal appeals.
There are 32 states with the death penalty on the books, and states like Texas, Ohio and Oklahoma have not backed away from carrying it out.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 is due out this summer. You can reach him at and follow him on Twitter @MatthewTMangino.

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Saturday, February 22, 2014

The Cautionary Instruction: Son of Sam Law Prevents criminals from profiting on crime

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
February 21, 2014
Is Jerry Sandusky writing a book? The disgraced former Penn State coach and convicted sex offender stands to make a profit from the titillating explanations of his despicable conduct. Not so fast, thanks to a Pennsylvania statute referred to as the Son of Sam law there is little chance that Sandusky or his family will benefit by the publication of a book.
The law, which exists federally and in 41 other states, is named for David Berkowitz, the “Son of Sam” serial killer who was convicted for a string of murders in New York City in the mid-1970s. Generally, Son of Sam laws prevent criminals and their relatives from profiting off their crimes in any way. If there is any profit, the law directs that money to the victim’s family.
Pennsylvania’s Son of Sam law provides, “If a person has been convicted of a crime, every person who knowingly contracts for, pays or agrees to pay any profit from a crime to that person shall give written notice to the [Crime Victims Compensation] board of the payment or obligation to pay as soon as practicable after discovering that the payment or intended payment is a profit from a crime. The board, upon receipt of notice of a contract, an agreement to pay or payment of profits from a crime, shall notify all known eligible persons at their last known address of the existence of the profits.”

New York was the first state to enact a Son of Sam law in 1977. However, the law faced a challenge in 1987 in a case involving the Nicholas Pileggi book Wiseguy: A Life in a Mafia Family, on which the film Goodfellas was based. Pileggi wrote the book with the paid help of former mobster Henry Hill.
Publisher Simon and Shuster challenged the law. In Simon & Shuster v. Crime Victims Bd., 502 U.S. 105 (1991), the U.S. Supreme Court struck down the law for violating the First Amendment’s guarantee of free expression, ruling it would have encompassed works including Henry David Thoreau’s Civil Disobedience and The Autobiography of Malcolm X.
New York revised its law in 1992, and the state Senate has passed legislation seven times since 2006 to try to expand the law, most recently, to reach people held not responsible because of mental disease.
A Long Island, NY mother who drowned her three children in a bathtub is now seeking some of the children’s estate. Since the woman was never convicted — instead found not guilty by reason of mental disease — some legal experts say she could make a plausible case to receive some of the $350,000 estate.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.

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Friday, February 21, 2014

Mangino's book on the death penalty to be released this summer

The Executioner’s Toll, 2010 The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States

Matthew T. Mangino

McFarland Publishing

Print ISBN: 978-0-7864-7979-5
Ebook ISBN: 978-1-4766-1604-9
notes, bibliography, index
softcover (7 x 10) 2014
Available Spring/Summer 2014
About the Book
Legal Executions of 2010 is a minute examination of every execution (and the details surrounding the execution) carried out in a single year--and a thought-provoking exploration into the minds of 46 killers as each plays the role of predator, quarry and condemned. The unsettling narratives begin with a murder on May 26, 1993, and end with an execution on December 16, 2010. The book chronicles 62 murders, 44 trials, countless appeals, two suicide attempts, 41 last meals, 33 final statements and 46 executions.

Executions are rare in the United States. This book presents the compelling stories behind each of them, accounts often neglected in the mainstream media. Every person facing the executioner has a story, every killing is as unique as it is devastating. The death penalty remains in 32 states. Thinking about capital punishment is more than a philosophical debate about good and bad, right and wrong, or "just desserts." The death penalty is about human beings and the impact of their conduct against and with one another.

About the Author
Matthew T. Mangino is the former district attorney of Lawrence County, Pennsylvania and currently serves on the Pennsylvania Joint State Government Commission’s Advisory Committee on Capital Punishment. He lives in New Castle, Pennsylvania.
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Thursday, February 20, 2014

Corbett cuts AG's drug interdiction budget 8%

Editorial Shamokin News Item, February 18, 2014:
Attorneys general in Pennsylvania always have made drug interdiction a top priority, and Gov. Tom Corbett was no exception during his eight years in that office.
That makes it all the more remarkable that he has proposed a nearly 8-percent budget reduction for the attorney general's office.
According to Attorney General Kathleen Kane, who testified last week at House and Senate budget hearings, Corbett's proposed budget would necessitate furloughs in the drug law enforcement division. In 2005, she said, Corbett's attorney general's office had 205 employees in that division, whereas his new budget proposal would bring that staffing to 146.
The governor proposed the reduction in early February, even as the attorney general's office was investigating 22 heroin overdose deaths that had just occurred in western Pennsylvania during a single week.
Moreover, the state also is afflicted with an epidemic of prescription drug addiction. Overdose deaths involving prescription drugs have increased by 89 percent statewide since 1999, Kane testified, and hospital admissions for opioid and synthetic drug overdoses increased by 100 percent between 2004 and 2011.
Many researchers believe those trends are related. People addicted to powerful prescription painkillers often switch to heroin because it is cheaper.
As Kane noted, improvement does not depend on enforcement alone but on a combination of enforcement and increased treatment.
But given the trends in Pennsylvania, enforcement is not simply a matter of interdicting supplies and making arrests, but of saving lives.
Lawmakers should ensure that the attorney general's office has adequate funding to help diminish the scourge of heroin addiction.
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Wednesday, February 19, 2014

Putting school shootings into context: Risk of being killed about 1 in 2 million

A new report by  Moms Demand Action for Gun Sense in America and Mayors Against Illegal Guns suggest that school districts and policymakers are not doing enough to protect students. “The numbers are clear: we are not doing enough to keep our children safe at school,” said Congresswoman Carolyn McCarthy (D-NY).
However, not everyone agrees.  James Alan Fox a professor at Northeastern University wrote in the USA Today that the suggestion that school shootings are a problem on the rise and in need of immediate resolution tends to promote quick and easy responses that don't work and may make matters worse, instead of more difficult approaches that will indeed improve the climate at schools of all levels.
Posting armed guards at school doors, running children though lockdown drills, and surrounding classrooms with cameras and metal detectors not only fail to prevent some teenager or adult determined to wreak havoc upon innocent children and their dedicated teachers, but they send the wrong and excessively scary message concerning the risk. Overinvestment in visible security can serve as constant reminder to impressionable youngsters that they indeed have a target on their backs.
In the process of trying to protect children's lives, we can easily destroy their sense of safety and ultimately disrupt the learning environment even more than the occasional incident in one of the thousands of schools nationwide. We should instead look toward programs and policies that promote healthy kids and respectful relationships in schools.
According to Moms Demand Action for Gun Sense in America and Mayors Against Illegal Guns, there have been as many as 44 shootings, including 28 deaths, in schools and colleges nationwide since the devastating massacre at the Sandy Hook Elementary School in Newtown, Conn., that had millions of Americans demanding change in gun regulations.
As it happens, the numbers assembled by the moms and mayors are not out-of-line with historical patterns, and, in fact, are lower than two decades ago when gang violence was especially problematic at school settings. And, as added perspective, consider that there are more than 50 million school children in America, making the risk of fatality well below one in two million. By comparison, many times more youngsters are killed annually in bicycle accidents. I would trust the moms, if not the mayors, would support a national helmet law as quickly as a gun restriction.
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Tuesday, February 18, 2014

NYC cracks down on jaywalkers

Reminiscent of the Broken Window Theory New York City police are going after jaywalkers. Under Vision Zero, New York Mayor Bill de Blasio vowed to cut last year's 176 pedestrian traffic deaths "literally" to zero. In his administration’s first 40 days, says the New York Times, that pledge translated into a series of ticket blitzes against drivers — and, in unusually large numbers, jaywalkers. Jaywalking tickets are up nearly eightfold this year, despite the mayor’s insistence that his plan for safer streets did not include singling out pedestrians. Through Feb. 9, were 215 jaywalking summonses issued, compared with 27 over the same period last year.

The police department may be able to motivate officers to engage in traffic enforcement by connecting those efforts with traditional crime-fighting, said criminologist George Kelling, an adviser to Police Commissioner William Bratton who helped develop "broken windows" policing, the theory that as officers address minor quality-of-life crimes, more serious offenses are reduced. “That’s a side benefit: When you enforce the rules against disorderly behavior, it turns out that you had contacts with a lot of people who had done serious crimes or had warrants out,” Kelling said. “I think that the concern about traffic is the new threshold in terms of order maintenance."
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Monday, February 17, 2014

Court strikes down ethics rule aimed at prosecutors

Federal prosecutors who subpoena lawyers to testify before grand juries no longer will face the threat of ­disciplinary action in New Mexico, reported The National Law Journal.

U.S. District Judge William Johnson ruled recently that an attorney ethics rule adopted by the New Mexico Supreme Court ran afoul of the federal law that governs grand jury proceedings, which are held in secret.

The ethics rule "threaten[s] to compromise the indispensable secrecy of grand jury proceedings," Johnson wrote.
He explained that if a subpoenaed lawyer filed an ethics complaint against a prosecutor — the only recourse for an alleged violation of the rule — the prosecutor would be forced to disclose information about the sealed proceedings.
More than half of the states have some variation of the provision in place as of 2010, according to the most recent American Bar Association survey. It's a rare attorney ethics rule aimed specifically at prosecutors, said Michael Frisch, ethics counsel to Georgetown University Law Center and a former senior assistant bar counsel in Washington.
"A lot of places are just of the view that it's not an appropriate exercise of ethical rulemaking authority," he said. Frisch pointed to previous decisions by federal appellate courts that struck down similar rules.
In New Mexico, federal prosecutors will still have to follow the rule in nongrand jury criminal proceedings, however, based on an earlier decision by the U.S. Court of Appeals for the Tenth Circuit.
The rule bars prosecutors from subpoenaing lawyers to provide information about past or present clients in criminal proceedings, including grand juries, with three exceptions: if the prosecutor "reasonably" believes the information isn't protected by privilege; the information was "essential" to a successful investigation or prosecution; or the information couldn't be obtained any other way. A subpoenaed attorney can file an ethics complaint with the state disciplinary board if the lawyer believes a prosecutor violated the rule.
To read more Click Here


Sunday, February 16, 2014

'Republicans and Democrats have both taken turns screwing up the system'

Despite Justice Reinvestment Initiative Prison Population on the Rise
In his official remarks to the House Appropriations Committee, Pennsylvania Secretary of Corrections John Wetzel wrote: "It's a fact if, as an administration, we had embraced business as usual, the DOC population would have continued following its previous trajectory, experiencing the originally anticipated growth of 3,562 inmates - rather than the 328 we saw over the last three years."
In other words: the budget could be more than $113 million higher than what it already is. It costs approximately $35,000 per year to incarcerate each state prison inmate," reported the Harrisburg Patriot-News.
The corrections budget is projected at more than $2 billion next year, despite recent "justice reinvestment" legislation to save money by reducing prison populations, especially for low-level non-violent offenders.
Corrections policy, Wetzel said, should have two goals: the response should be equal to the crime and the response should yield results; in other words, the offender should be less likely to commit another crime when he exits the criminal justice system.
"You can't say that about some of our current laws and corrections policies,"said Wetzel.
He said, "No less than 23 bills have passed the House, every one of which has the potential to increase prison populations," but legislators have done little to counteract the effect of those legislative efforts through legislation aimed at reducing crime and prolonged incarceration.
"You pass these bills," Wetzel said; "don't be surprised when the budget goes up."
Afterward Wetzel told reporters if that was the first time legislators got the message they haven't been paying attention.
Every year, Wetzel said, he comes to the Capitol and explains corrections policy during the budget hearings, "and then they forget about it until the next year when they want to scold me about the budget."
It's not a right wing or left wing thing, he said, "Republicans and Democrats have both taken turns screwing up the system."

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Saturday, February 15, 2014

GateHouse: The lead factor: Automobile emissions and crime

Matthew T. Mangino
GateHouse News Service
February 14, 2014
A trip to the gasoline pump in the 1970s and 1980s was a choice between leaded or unleaded. Nearly 40 years later, we’ve learned that choosing unleaded not only made the environment cleaner but also the streets safer.
Researchers have made a link between the growing violent crime rates of the 1960s, ‘70s and ‘80s and exposure to the gasoline additive tetraethyl lead. Tetraethyl was introduced by General Motors in the 1920s to prevent pinging in automobile engines.
There are a host of theories attempting to explain the last half century’s surge and decline in crime. Some researchers suggest the decline in the demand for crack cocaine had an impact on crime. As young men saw how their families and communities were ravaged by crack, the drug fell out of vogue and the accompanying violence subsided.
Some attributed the decline to improved police strategies that rely heavily on innovative technology and evidence-based crime analysis. Others say soaring incarceration rates, along with longer sentences, have kept more criminals from plying their trade. America locks up more people for longer periods of time than any other industrialized nation.
Still others argue the graying of America means offenders are aging out of crime; legalized abortion has wiped out an entire generation of criminals; or the “Obama effect”— young African-American men see hope and opportunity now that America has elected, and re-elected, a black president.
Recently researchers have latched on to another possibility — cars. According to Karen K. Wolf in Chemical & Engineering News, automobiles exclusively burned leaded gasoline until 1973, when the Clean Air Act mandated that tetraethyl be removed from fuel. The phase out resulted in the introduction of unleaded gasoline and the catalytic converter.
Five years later lead based paint was banned. As a result, children born in the late 1970s and early 1980s grew up with less lead in their bodies than children born earlier. Children who reached adulthood in the 1990s have healthier brains and less of a penchant for violence than their predecessors.
According to Kevin Drum in Mother Jones Magazine, researcher Rick Nevin reviewed detailed data on lead emissions and violent crime rates in an effort to unearth a correlation. In research published in 2000, Nevin concluded that if you add a lag time of 23 years, lead emissions from automobiles explain 90 percent of the variation in violent crime in America. Toddlers who ingested high levels of lead in the 1940s and ‘50s were more likely to become violent criminals in the 1960s, ‘70s and ‘80s.
Researchers were worried that the very broad connection between lead and violent crime could not be proven. There was no question that increasingly stringent Environmental Protection Agency rules, steadily reduced the amount of leaded gasoline used in America, but the reduction was not uniform. According to Drum, researcher Jessica Wolpaw Reyes of Amherst College dug into an analysis of the variation in the use of leaded gasoline among states.
Using state-specific reductions in lead exposure, states that removed lead quickly saw quicker reductions in crime and states that removed lead more slowly saw slower reductions in crime. In 2007, she concluded that the reduction in childhood lead exposure in the late 1970s and early 1980s is responsible for significant declines in violent crime in the 1990s, and continues to have an impact on crime rates.
If the lead theory is accurate — considering lead rates are down significantly — crime rates should have stabilized. A look at national crime rates over the last few years seems to support that hypothesis. According to the FBI, crime rates have moved an average of little more than three percentage points, up or down, in the last half dozen years.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” is due out this summer. You can reach him at and follow him on Twitter at @MatthewTMangino.
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Friday, February 14, 2014

The Cautionary Instruction: Conservatives call for forgiveness, is it for the “right” reason?

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
February 14, 2014
“As Christians, we believe in forgiveness,” said Senator Rand Paul (R-KY). “I think the criminal justice system should have some element of forgiveness.” What a difference losing four of the last six national elections can have on the GOP.
In 1964, Barry Goldwater, the GOP nominee for president, introduced campaign operatives to the concept of crime as a divisive, hot-button issue and America has never been the same.
For half a century before 1964, prison population had remained stable at about 110 inmates per 100,000 people. In the nearly 50 years that followed, that number rose to 480 inmates per 100,000 people.
When Richard Nixon was making his second bid for president in 1968 the Civil Rights Act had passed, riots had erupted in cities across the country after the murder of Martin Luther King, Jr., and murder rates had increased 50 percent since 1950.
Race relations were tenuous, at best, and Nixon knew it. Crime control became a surrogate for race control. And every man and woman in America is paying for it, in more ways than one.
The conservative mantra of “tough on crime” worked for Ronald Reagan and won a couple more notable elections. George H.W. Bush beat Michael Dukakis with Willie Horton in 1988. In Pennsylvania, Tom Ridge beat Mark Singel with Reginald McFadden in 1994.
In the wake of “tough on crime,” America has five percent of the world’s population but one-fourth of its prisoners. Nearly one-third of Americans are under correctional control at a yearly cost of $60 billion. Imprisonment has grown 400 percent over the past twenty years, the great majority for non-violent crimes. And two-thirds of criminals are back in jail for similar crimes three years after they are released.
Today, African Americans make up 12.6 percent of the general population and 43 percent of the prison population. Death row is comprised of almost an equal number of blacks and whites.
While the growth of incarceration took many dangerous offenders off the streets, research suggested that it reached a point of diminishing returns, as recidivism rates increased and more than one million nonviolent offenders filled the nation’s prisons. In most states, prisons came to absorb more and more of the criminal justice budget. The result was fewer dollars for policing, community supervision and treatment for mental health and substance abuse.
Meaningful reform will undoubtedly have a positive impact. However, posturing to gain political advantage on important criminal justice issues will have dire consequences -- America needs only look back on the get tough polices of the recent past.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.
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Thursday, February 13, 2014

Florida executes man who raped and murdered 9-year-old boy

The 8th Execution of 2014
Juan Carlos Chavez was executed February 12, 2014 in Florida for raping and killing a 9-year-old boy 18 years ago, a death that spurred the victim's parents to press nationwide for stronger sexual predator confinement laws and better handling of child abduction cases, reported  the Associated Press.
He was pronounced dead at 8:17 p.m. after a lethal injection at Florida State Prison, according to Gov. Rick Scott's office.
Chavez made no final statement in the death chamber, though prison officials said he had submitted something in writing. He moved his feet frequently after the injection began at 8:02 p.m. but two minutes later stopped moving.
Chavez abducted Jimmy Ryce at gunpoint after the boy got off a school bus on Sept. 11, 1995, in rural Miami-Dade County. Testimony showed Chavez raped the boy, shot him when he tried to escape, then dismembered his body and hid the parts in concrete-covered planters.
Despite an intensive search in 1995 by police and volunteers, regular appeals for help through the media and distribution of flyers about Jimmy, it wasn't until three months later that Chavez's landlady discovered the boy's book bag and the murder weapon — a revolver Chavez had stolen from her house — in the trailer where Chavez lived. Chavez later confessed to police and led them to Jimmy's remains.
He was tried and found guilty of murder, sexual battery and kidnapping.
The Ryces created the Jimmy Ryce Center for Victims of Predatory Abduction, a nonprofit organization based in Vero Beach that works to increase public awareness and education about sexual predators. It also provides counseling for parents of victims and helps train law enforcement agencies in ways to respond to missing children cases.
The organization has also provided, free of charge, more than 400 bloodhounds to police departments around the country and abroad. Ryce said if police searching for Jimmy had bloodhounds they might have found him in time.
The Ryces also helped persuade then-President Bill Clinton to sign an executive order allowing missing-child flyers to be posted in federal buildings, which they had been prevented from doing for their own son.
Another accomplishment was 1998 passage in Florida of the Jimmy Ryce Act, versions of which have also been adopted in other states. Under the law, sexual predators found to be still highly dangerous can be detained through civil commitment even after they have served their prison sentences. Such people must prove they have been rehabilitated before they can be released. Chavez had no criminal record, so the law would not have affected him.
Chavez's only visitor Wednesday was his spiritual adviser, prison officials said.
To read more Click Here

Wednesday, February 12, 2014

Matt Mangino to appear as expert on Investigation Discovery’s ‘My Dirty Little Secret’

The Pittsburgh Post-Gazette
Wednesday, 12 February 2014 06:02 PM Written by  
The second season of “My Dirty Little Secret” on Investigation Discovery will feature attorney Matthew T. Mangino, who authors The Cautionary Instruction here, in tonight's episode of the crime drama which airs at 9 p.m.
The hour long episode, titled “Murder in Mormon Country” tells the story of Mark and Lori Hacking a young Mormon couple with a bright future ahead of them. But when Lori disappears during a job, the search for her will reveal a secret double life that will scandalize the community.  Mangino was interviewed along with investigators, friends and acquaintances of the victim.
Mangino is an attorney with Luxenberg, Garbett, Kelly and George, P.C. He is the former district attorney of Lawrence County and a former member of the Pennsylvania Board of Probation and Parole.
This is the third episode in which Mangino has appeared and he is scheduled to appear in two more episodes this season.

Washington governor puts a halt to executions

Washington state Governor Jay Inslee declared a moratorium on carrying out the death penalty in his state, citing concerns about unequal application of justice in determining who is executed, reported Reuters.
The action marked a victory for opponents of capital punishment who have seen a growing number of U.S. states take steps in recent years to end executions, either by legislation or through suspensions issued by governors or the courts.
"Equal justice under the law is the state's primary responsibility," Inslee, a first-term Democrat, told a news conference announcing the suspension of capital punishment. "And in death penalty cases, I'm not convinced equal justice is being served."
But Inslee stopped short of commuting to life in prison the sentences of the nine inmates currently on death row in Washington state, leaving open the possibility they could still be executed should a future governor lift the moratorium. The next election for governor will be held in 2016.
Eighteen U.S. states have already legally ended executions, with Maryland last year becoming the sixth state in six years to abolish capital punishment.
While a clear majority of Americans - or about 60 percent - support the death penalty for convicted murderers, support for capital punishment nationally has been on the decline, according to a Gallup poll released in October.
The 60 percent figure marks the lowest level of support for the death penalty Gallup has measured since November 1972, when 57 percent were in favor. Death penalty support peaked at 80 percent in 1994.
The United States saw 39 inmates sent to the death chamber last year, down from 43 in each of the past two years, with a small number of states such as Texas, Florida and Oklahoma accounting for most executions.
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Tuesday, February 11, 2014

Florida Supreme Court to review lethal injection

The Florida Supreme Court has ordered a review of the new drug used in the state's lethal-injection protocol in the case of Paul Augustus Howell, a death-row inmate set for execution this month reported the Orlando Sentinel.
Justices ordered a circuit court to hold a hearing on whether substitution of the drug midazolam violates the constitutional protections against cruel and unusual punishment by the government.
Howell's lawyers argued that midazolam, the first of the three-drug cocktail that induces unconsciousness, paralysis and cardiac arrest, is problematic because it will not anesthetize him and would leave him "unable to communicate his agony" when the other drugs are administered.
The justices rejected an appeal about the new drug in a previous case, but in a four-page order issued last week said that an expert's report submitted by Howell "has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam, in conjunction with his medical history and mental conditions, will subject him to a 'substantial risk of serious harm.'"
The second drug, vecuronium bromide, renders muscle, including the diaphragm, unable to contract, making it impossible to breathe. If not completely anesthetized when that drug is administered, the condemned would "experience the physical and psychological agony of suffocation," Howell's lawyers argued in briefs.
The new drug protocol has been used four times since its adoption in September, but Howell's lawyers argued that three of those executed were not fully anesthetized before the other drugs were administered.
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Monday, February 10, 2014

Prosecutors seek justice, exonerations on the rise

The National Law Journal reported that there were 87 exonerations in 2013, according to the National Registry of Exonerations. There appears to be a trend toward increased scrutiny by police and prosecutors of old case files for wrongful convictions.
"They have learned, like all the rest of us, that mistakes are made," said registry editor Samuel Gross. He is a professor at the University of Michigan Law School, which runs the project with the Center for Wrongful Convictions at Northwestern University School of Law. "They're less likely to resist and in many cases more likely to help and cooperate."
Prosecutors insist they are merely doing their job — to see justice done. They acknowledge, however, that public awareness of false convictions has forced district attorneys to scrutinize their work. "A lot of it has been media pressure and people asking in high-profile cases, 'Do you review these cases?' " said Scott Burns, executive director of the National District Attorneys Association in Alexandria, Va. "It's just received a higher priority in larger cases and in high-profile cases."  
The 2013 numbers were for exonerations identified as of Feb. 4. Thirty-three of those cases involved cooperation by police or prosecutors. Although fewer than in 2012, the number still demonstrated an increase from a decade ago. Since 1989, the registry found, 29 percent of known exonerations have featured cooperation by law enforcement. "That may be the beginning of the biggest change, because police and prosecutors are the most important actors in the criminal justice system," Gross said.
Others also attributed much of the change to DNA evidence. "DNA has taught us a lot — that there were mistakes made in the system," said Steven Jansen, vice president and chief operating officer of the Association of Prosecuting Attorneys, a Washington nonprofit that focuses on training for federal, state and local prosecutors. "Now we've realized there were some faults in our system."
Today, more than half a dozen prosecutorial offices nationwide feature special integrity units that investigate potential wrongful convictions, according to the report. Some of these units involve teams of dedicated staff, others a single individual. Some work with nonprofit groups or defense attorneys and others investigate on their own.
Craig Watkins, the Dallas County, Texas, district attorney, set up the first such unit. His conviction-integrity unit — established in 2007 with two lawyers and a paralegal — has overseen a dozen exonerations. "I was the first African-American D.A. in Texas," Watkins said. "My life experience lent itself to question law enforcement. I wanted our justice department to work for everyone. That's why we created the unit." He acknowledged that his views were not the norm among prosecutors.
And Burns, for instance, disputed that the integrity units demonstrate a change in the way prosecutors look at past convictions. "To support the notion that somehow for the first time we've started reviewing old cases or reviewing old convictions is simply not true," he said.
He also identified a "serious problem" with the registry's report: Many of the exonerations it counted involved convicted individuals who weren't actually found to be innocent, he said — as when a conviction is overturned on appeal years later and prosecutors don't pursue retrial because lead detectives are dead or the evidence is either missing or too old. "We don't call that an exoneration," he said.
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Sunday, February 9, 2014

'Stand your ground' under the spotlight in Florida, again

Stand your ground is once again in the spotlight in Florida, reported the New York Times. Michael D. Dunn, 47, a white software developer who said he killed Jordan Davis, a black teenager, in a November 2012 confrontation about loud music, the trial appears likely to focus less on race and more on the mechanics of Florida’s self-defense laws and how juries apply them.
In their opening statements on Thursday at the Duval County Courthouse, a prosecutor and a defense lawyer presented divergent theories about the motive for what took place at a convenience store on Southside Boulevard after Mr. Dunn stopped with his fiancée, Rhonda Rouer, for wine and potato chips.Assistant State Attorney John Guy, who was part of the team that prosecuted Mr. Zimmerman last year, portrayed Mr. Dunn as “fueled by anger and intent” after hearing what he described to his fiancée as “thug music.”
“When that defendant opened fire, Jordan Davis was sitting in his car seat with the door closed with nothing in his hands,” said Mr. Guy, who told the court that Mr. Dunn had fired 10 shots, three of which struck Mr. Davis, after an exchange laden with “words of intent, words of hate, words that he cannot take back.”
Not long after Mr. Dunn fired his weapon, Mr. Guy said, the teenagers in the red Dodge Durango in which Mr. Davis was a passenger, who had been out for an evening of “mall hopping and girl shopping,” began what the prosecutor called “an ominous roll call” to check that everyone was O.K.
“Everyone responded to the sound of their name except Jordan Davis,” Mr. Guy said, as the youth’s parents sat in the courtroom. The trial will include testimony from the three people who were with Mr. Davis.
Mr. Dunn, who had been in Jacksonville to celebrate his son’s wedding, left and went to a nearby hotel before driving the next day to his home about 170 miles southeast of Jacksonville.
“He didn’t call the police,” Mr. Guy said. “He went to his hotel with his girlfriend, and he called the pizza deliveryman and ordered pizza.”
Cory C. Strolla, Mr. Dunn’s lawyer, said that Mr. Dunn had been compelled to act and pulled a handgun from the glove compartment of his car only after he felt endangered.
“Jordan Davis threatened Michael Dunn,” Mr. Strolla told the sequestered group of 16 jurors, four of whom are alternates.
Mr. Strolla added: “He was getting out of the car with a weapon after telling Michael Dunn, ‘You’re dead.’ ” According to Mr. Strolla, Mr. Davis, 17, also used an expletive during that exchange.
Mr. Dunn’s contention that he was targeted with a weapon — he identified it as a shotgun in an interview with the authorities — will be a focal point of the trial, which is expected to stretch well into next week.
Investigators never found the weapon that Mr. Dunn said he saw. Officials eventually retrieved what a prosecutor described as a pocketknife from Mr. Davis’s clothing.
But Mr. Strolla told jurors that the investigation had been shoddy and incomplete, and he questioned the procedures that the authorities used when they questioned witnesses. “For Michael Dunn, you’re all he has, because nobody in law enforcement cared what he had to say,” Mr. Strolla said.
The only certain outcome of the trial is that it will call new attention to Florida’s laws protecting those involved in shootings who claim self-defense, a matter that was the subject of nationwide protests and new scrutiny after Mr. Zimmerman’s acquittal last year in Trayvon Martin’s death.
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Saturday, February 8, 2014

GateHouse: What’s in a name? Laws that immortalize victims

          Matthew T. Mangino
          GateHouse News Service
           February 7, 2014
If Iowa lawmakers get their way, Kathlynn’s Law may soon be in place to protect Iowans from sexual predators. Fifteen-year-old Kathlynn Shepard was murdered last summer by a registered sex offender. 
The killer, Michael Klunder, was sentenced in 1992 to up to 41 years in prison for kidnapping. According to the Des Moines Register, his time served behind bars was reduced to about 19 years under Iowa’s earned-time law. He was released without parole, which meant he wasn’t under any supervision in the community.
Kathlynn’s family is pushing for new legislation to deal with offenders like Klunder. Under the proposed legislation, the punishment for kidnapping would be increased to 25 years from 10 years if the victim is 15 or younger.
Supporting Kathlynn’s family at a recent legislative committee meeting was Brent King, whose daughter, Chelsea, was murdered four years ago after she was abducted while jogging in a San Diego park.
In 2010, California lawmakers approved Chelsea’s Law, which increases penalties, parole provisions and oversight for the worst of the worst sex offenders.
The list of laws named for victims goes on and on. One of first was the Jacob Wetterling Act. The law was named for 11-year-old Jacob Wetterling, who was abducted at gunpoint in Minnesota and never seen again. In 1994, the Jacob Wetterling Act established the first sex offender registry.
In 1996, Megan’s Law was enacted. The law was named for 7-year-old Megan Kanka, who was raped and murdered in New Jersey by a neighbor who was a convicted sex offender. Megan’s law expanded the Wetterling Act by requiring community notification in addition to a sex offender registry. All 50 states have enacted some form of Megan’s Law.
Then there is Brett’s Law, a Delaware law prohibiting the use of the herb Salvia Divinorum. The law was named after Brett Chidester, a teenager who committed suicide after using the herb.
In Florida there is Jessica’s Law. The law is named for 9-year-old Jessica Lunsford, who was abducted from her home. The law is designed to protect potential victims and reduce a sexual offender’s ability to re-offend.
Caylee’s Law is a law that makes it a felony for a parent who fails to report a missing child. The bill was introduced shortly after the high profile Casey Anthony trial, due to Anthony not reporting her 2-year-old daughter Caylee Marie Anthony missing for over a month.
There is even a Pamela’s Law, which was enacted based on a mistaken premise. New Jersey passed legislation in 2011 named for Pamela Schmidt, who was murdered by William Parisio Jr. He was suspected of being under the influence of MDPV, otherwise known as “bath salts.” It was later determined that Parisio was not under the influence of MDVP at the time of the murder. 
Just this week in Pittsburgh, lawmakers are proposing Rocco’s Law. Rocco was a police dog killed in the line of duty. Legislators are looking at enhancing penalties for those responsible for the death of a police dog.
Each law is the result of a horrific case that generated traction through community outrage or the tireless work of the victim’s family, friends or supporters. The results are not always what are expected. Malcolm Gladwell, in his latest book, “David and Goliath: Underdogs, Misfits, and the Art of Battling Giants,” writes about Mike Reynolds. In 1992, Reynolds’ daughter was murdered in Fresno, Calif., by a man with a lengthy criminal history.
As a result of his daughter’s death, Reynolds rallied support for the adoption of “three strikes” legislation in California. In the years that followed, the state’s prison population doubled and homicide rates were cut in half. Reynolds liked to tell supports he reduced murders in California by six a day.
In 2012, sixty-eight percent of California voters agreed by referendum to scale back the three strikes law. Gladwell quoted criminologist Todd Clear, “If you lock up too many people too long, the collateral damage starts to outweigh the benefit.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” is due out this summer. You can reach him at and follow him on Twitter at @MatthewTMangino. 
          To read more Click Here


Friday, February 7, 2014

The Cautionary Instruction: Arm police with drug to reverse overdoses

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
February 7, 2014
As heroin overdoses have soared in Western Pennsylvania and across the country, more police departments are taking a hard look at equipping their police officers and other first responders with overdose reversing drug, Naloxone. Police are often the first to arrive at the scene, and experts say those early minutes can be the key to saving a life.
Since Quincy, MA police officers began carrying a nasal form of the drug, known by its trade name, Narcan, in October 2010, they have administered the drug 221 times and reversed 211 overdoses.
Narcan binds to the opioid receptors in the brain, displacing other drugs and reversing the effects. It works as an opioid antagonist, essentially reviving an unresponsive patient within seconds. Narcan can be administered by injection into a muscle or as a nasal spray and lasts 30 to 90 minutes.
Starting next week, Lorain County law enforcement officers will begin carrying Narcan “We are taking the initiative along with the risk, but it’s worth it because we are going to save lives,” said Lorain County Coroner Dr. Stephen Evans.
St. Louis County Police Chief Tim Fitch wants his department to be the Midwest’s first to carry the antidote, and he met recently with the National Council on Drug and Alcohol Abuse to lobby for support.
St. Louis County Police Association president Gabe Crocker called it an “aggressive approach” that officers would support. “I see this as no different than adding another tool to our first-aid kit to save a life,” he said.
Vermont state troopers are also training to use Narcan. "So the troopers across the state understand what Narcan is all about. The last thing I would want to happen is a trooper go into an apartment where an overdose is taking place, someone is trying to administer Narcan, and a trooper took action [to stop it]," Vermont State Police Col. Tom L’Esperance said.
The public safety department in Espanola Valley, New Mexico in early 2013 became the first police agency in the Southwest to equip its police and first responders with Narcan.
In Ocean County, NJ when overdose deaths doubled from 53 in 2012 to 112 in 2013, the criminal justice community looked at every option to address the problem including equipping officers with Narcan.
In Pittsburgh, every Sunday from noon to 3 p.m., a group of volunteers, including physicians, offer Narcan prescriptions for free at the Oakland Needle Exchange on Forbes Avenue, in the rear of the Allegheny County Health Department. They also teach users how to administer Narcan.
Now is the time to arm law enforcement officers with Narcan. Anything less in Western Pennsylvania would be an injustice and result in needless loss of life.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.
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Thursday, February 6, 2014

Texas executes woman

The 7th Execution of 2014
Suzanne Basso was convicted of torturing and killing a mentally impaired man she lured to Texas with the promise of marriage. She was executed on February 5, 2014, reported the Associated Press.
The execution of Basso made the New York native only the 14th woman executed in the U.S. since the Supreme Court in 1976 allowed capital punishment to resume. Almost 1,400 men have been put to death during that time.
Before being put to death, Basso told a warden who stood near her, "No sir," when asked to make a final statement. She appeared to be holding back tears, then smiled at two friends watching through a window. She mouthed a brief word to them and nodded.
As the lethal dose of pentobarbital took effect, Basso, dressed in a white prison uniform, began to snore. Her deep snoring became less audible and eventually stopped.
She was pronounced dead at 6:26 p.m. CST, 11 minutes after the drug was administered.
Basso was sentenced to die for the 1998 slaying of 59-year-old Louis "Buddy" Musso, whose battered and lacerated body, washed with bleach and scoured with a wire brush, was found in a ditch outside Houston. Prosecutors said Basso had made herself the beneficiary of Musso's insurance policies and took over his Social Security benefits after luring him from New Jersey.
The execution, the second this year in Texas, came about an hour after the Supreme Court rejected a last-day appeal from Basso's attorney who argued she was not mentally competent.
Lower federal courts and state courts also refused to halt the punishment, upholding the findings of a state judge last month that Basso had a history of fabricating stories about herself, seeking attention and manipulating psychological tests.
Leading up to her trial, Basso's court appearances were marked by claims of blindness and paralysis, and speech mimicking a little girl.
"It was challenging, but I saw her for who she was," said Colleen Barnett, the former Harris County assistant district attorney who prosecuted Basso. "I was determined I was not going to let her get away with it."
Basso's attorney, Winston Cochran Jr., argued she suffered from delusions and that the state law governing competency was unconstitutionally flawed.
Her lawyer said a degenerative disease left her paralyzed, but Basso, who used a wheelchair, blamed her paralysis on a jail beating years ago. At a competency hearing two months ago, she testified from a hospital bed wheeled into a Houston courtroom and talked about a snake smuggled into a prison hospital in an attempt to kill her.
But she acknowledged lying about her background, including that she was a triplet, worked in the New York governor's office and had a relationship with Nelson Rockefeller.
She originally was from the Albany and Schenectady areas of New York.
Prosecutors said Musso was living in New Jersey when he met either Basso or her son at a church carnival, then moved to Jacinto City, east of Houston, with an offer of marriage. Evidence showed Basso was already married but took over Musso's benefits and insurance.
An autopsy showed Musso had several broken bones, including a skull fracture and 14 broken ribs. His back was covered with cigarette burns, and bruises were found all over his body.
Basso became a suspect after reporting Musso missing following the discovery of his body. Five others also were convicted, including Basso's son, but prosecutors only sought the death penalty for Basso.
"Suzanne ran the show for sure. ... She was the one in charge. She directed them. She wanted the money," Barnett said. "She's a heinous killer."
Among witnesses testifying at Basso's punishment trial was her daughter, who told of emotional, physical and sexual abuse at the hands of her mother.
About 60 women are on death row in the U.S., making up about 2 percent of the 3,100 condemned inmates. Texas, the nation's busiest death-penalty state, now has executed five women and 505 men.
The last woman executed in Texas before Basso was Kimberly McCarthy, who was put to death last June for killing her neighbor near Dallas and cutting off the 71-year-old victim's finger to steal her wedding ring.
To read more Click Here

Wednesday, February 5, 2014

Trials exceedingly rare in Ohio

Plea agreements have become so common in Ohio that the number of trials by juries or judges has reached a historic low. Just 2.5 percent of criminal cases in Ohio common pleas courts were resolved by going to trial in 2012, the most recent year for which statistics are available from the state Supreme Court, reported the Columbus Dispatch.
Common pleas trials in civil cases were even rarer — 1.2 percent statewide.
Supreme Court records show similar trial rates in municipal courts, which hear misdemeanor crime and traffic cases and civil disputes involving $15,000 or less.
The trial rate has been declining for decades. In 1980, 11.2 percent of criminal cases and 16.2 percent of civil cases went to trial in the state’s common pleas courts, said Chris Davey, a Supreme Court spokesman.
In the nation’s federal courts, the rate of civil cases that went to trial fell from 11.5 percent in 1962 to 1.8 percent in 2002, according to “The Vanishing Trial,” a report compiled for the American Bar Association. In 2012, the rate was 1.2 percent.
Significantly increasing the number of trials would be “an expensive proposition,” requiring more prosecutors and public defenders and increased overtime pay for law-enforcement officers to testify, Franklin County Common Pleas Judge Charles Schneider said.
“Just because cases aren’t being tried doesn’t mean they’re being dismissed,” he said. “In large part, they are resolved in a way that both sides think is fair.”
The trend toward fewer trials is a national and troubling phenomenon, said Robert P. Burns, a professor at the Northwestern University School of Law and author of the book The Death of the American Trial. If the trial rate has appeared to stabilize in recent years, it’s because it can’t get much lower, he said.
“I think this is a big deal. An essential element of American democracy is being squeezed out."
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Tuesday, February 4, 2014

The U.S. Supreme Court Takes on Cellphones and Privacy

Matthew T. Mangino
The Pennsylvania Law Weekly
February 3, 2014
The Fourth Amendment has protected individuals from unlawful governmental searches and seizures for more than two centuries. Initially, the thrust of the Fourth Amendment focused on the homes of early Americans—those places where individuals wanted to remain "secure in their persons, houses, papers and effects."
Today, the Fourth Amendment is being tested in ways that would have been unimaginable when the U.S. Constitution was written.
Last fall, the Washington Post reported that U.S. Supreme Court Chief Justice John G. Roberts Jr. told a room full of college students that the biggest constitutional challenge facing the court was "the fundamental principle underlying what constitutional protection is and apply[ing] it to new issues and new technology."
The Supreme Court will take on another aspect of that challenge when it considers whether police need a warrant to search the contents of a cellphone seized when making an arrest.
This April, the court will hear oral arguments in two cases, Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212. Each case deals with similar, but not identical, technologies. The Wurie case is out of Massachusetts and deals with an old-style flip phone, while the Riley case out of California deals with a smartphone.
Forty years ago, the Supreme Court established the search-incident-to-arrest doctrine in United States v. Robinson, 414 U.S. 218 (1973). Such a search permits an arresting officer to seize and search any item found on an arrestee.
Under the court's ruling, the police could conduct a "full search of the person [of an arrestee], his effects and the area within his immediate reach without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested."
The defendants in the current cases are suggesting that a cellphone is unlike any other evidence that can be found on an individual incident to an arrest.
Judge Norman H. Stahl of the U.S. Court of Appeals for the First Circuit wrote in the lower court opinion in Wurie, "That [cellphone] information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email and voicemail), contacts, calendar appointments, Web search and browsing history, purchases and financial and medical records." He added, "It is the kind of information one would previously have stored in one's home."
Wurie and Riley reflect the deep split between federal appeals courts and state supreme courts regarding the application of constitutional protections to modern technology.
"At least six courts hold that the Fourth Amendment permits such searches, while at least three others hold that it does not," Jeffrey L. Fisher, a Stanford law professor representing David Riley, told the Washington Post.
In 2007, Brima Wurie was picked up in Massachusetts on suspicion of selling crack cocaine. Soon after arriving at the police station, officers noticed that one of Wurie's cellphones, a flip phone that a user must open to make calls, was repeatedly receiving calls from a number identified as "my house" on the phone's external screen.
The police typed the number for "my house" into an online directory and learned that it was associated with an address on Silver Street in South Boston. They went to the Silver Street location and found guns and drugs.
The evidence was used to convict Wurie and he was sentenced to 262 months in prison. The First Circuit reversed the lower court. The appeals court ruled that cellphone information is protected.
The other case is from California, where judges went the other way. The California Supreme Court ruled that police may search a cellphone when the phone is "immediately associated with [the arrestee's] person."
Police examined Riley's cellphone and found information that led them to believe he was in a gang. A photograph on the phone tied him to a shooting. Riley was convicted and sentenced to 15 years in prison.
These cases are a continuation of a line of cases wherein the Supreme Court has methodically taken on issues relating to the Fourth Amendment and evolving issues of technology. In the court's last term, a majority of justices ruled that in most cases, police officers must obtain a warrant before forcing a suspected drunken driver to take a blood test.
Justice Anthony M. Kennedy wrote in Missouri v. McNeely, 133 S.Ct. 832 (2013), that "always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment."
In a separate case, the Supreme Court also found that DNA testing is equivalent to fingerprinting. The high court approved Maryland's law that allows police to take DNA swabs at the time someone is arrested for a serious violent crime.
In Maryland v. King, 569 U.S. ___ (2013), the court held that "taking and analyzing a cheek swab of the arrestee's DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment."
Kennedy wrote in King that the swabbing procedure was a search under the Fourth Amendment and therefore had to be justified as reasonable under the circumstances. The procedure was reasonable given "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody."
Last year, the Supreme Court unanimously ruled that the police violated the U.S. Constitution when they placed a GPS tracking device on a suspect's car and monitored its movements for nearly a month.
Walter Dellinger, a lawyer for the defendant in United States v. Jones, 565 U.S. ___ (2012), told The New York Times the decision "is a signal event in Fourth Amendment history."
"Law enforcement is now on notice," he said, "that almost any use of GPS electronic surveillance of a citizen's movement will be legally questionable unless a warrant is obtained in advance."
The decisions in Riley and Wurie will be closely scrutinized. Will the Supreme Court restrict or expand the protections of the Fourth Amendment? The high court's record in recent decisions provides little guidance. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," is due out this summer. Contact him at and follow him on Twitter @MatthewTMangino.
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Monday, February 3, 2014

Does Ohio’s lethal injection procedure result in torture?

Matthew T. Mangino
The Youngstown Vindicator
February 2, 2014
Ohio’s much maligned execution of Dennis McGuire last month is just the latest in a series of high- profile events that have defined the state’s “tortured” history of lethal injection. McGuire was executed with an untested two-drug lethal injection protocol.
The two drugs, midazolam, a sedative, and hydromorphone, an opiate derivative, resulted in an execution that took an excruciating 25 minutes instead of an anticipated 10 minutes.
Ohio’s lethal injection woes began in September of 2009. Romell Broom, a condemned killer, was scheduled to be executed.On that day, personnel in the death chamber of Lucasville State Prison were unable to access a suitable vein for the injection of the three-drug lethal injection protocol used at the time. Over several hours, prison staff probed for a vein approximately 18 times before Gov. Ted Strickland stopped the execution.
Ohio put executions on hold for three months while it studied options for establishing an alternative lethal injection protocol. The state came back and took the unprecedented step of moving from a three-drug protocol to a single-drug protocol.
The single-drug method has since been adopted by seven other states — Arizona, Georgia, Idaho, Missouri, South Dakota, Texas, and Washington — according to the Death Penalty Information Center.
Kenneth Biros
Trumbull County killer Kenneth Biros was the first inmate in Ohio, and across the country, executed using a single drug. He died about 10 minutes after the lethal dose of Pentobarbital, an anesthetic, was administered.
Attorneys for Biros had argued the state’s new, untested method would be painful and unconstitutional. The argument was made in front of U.S. District Court Judge Gregory Frost. Judge Frost’s name would continue to pop up throughout the unusual, and at times confounding, twists and turns taken by the Ohio Department of Rehabilitation and Correction with regard to the state’s lethal injection protocol.
Frost said Ohio’s execution system still had flaws that “raise profound concerns and present unnecessary risks.” He described the new single-drug protocol as “impermissible human experimentation.” However, he said Biros’ arguments against lethal injection were “unpersuasive.”

Two years later, Frost went in a different direction. In July of 2011, Frost stayed the execution of Ohio inmate Kenneth Smith because of the state’s “haphazard” application of its lethal- injection process. “Ohio pays lip service to standards it then often ignores without valid reasons, sometimes with no physical ramifications and sometimes with what have been described as messy if not botched executions,” said Frost.
Tepid approval
In less than a year, Frost again reversed course and gave tepid approval to the scheduled execution of Mark Wiles. “The protocol is constitutional as written, and executions are lawful, but the problem has been Ohio’s repeated inability to do what it says it will do,” he wrote.
Subsequently, Frost continued to overrule objections to lethal injection. Last year, morbidly obese inmate Ronald Post argued he was so overweight he could not be put to death humanely. Frost disagreed.
Last fall, Ohio announced that it had run out of its lethal injection drug, pentobarbital. The state then moved to the untested two-drug protocol and Dennis McGuire was slated to be the first execution under the new protocol.
McGuire challenged the protocol and, like the other lethal-injection challenges, the case made its way to Judge Frost. He ruled that McGuire had failed to present sufficient evidence that he would unconstitutionally suffer.
“There is absolutely no question that Ohio’s current [two-drug] protocol presents an experiment in lethal injection processes,” Frost wrote. However, he refused to stop the execution.
According to the Columbus Dispatch, the chemicals began flowing into McGuire at about 10:29 a.m., and for a while, he was quiet, closing his eyes and turning his face up and away from his family.
Gasped for air
However, about 10:34 a.m., he began struggling. His body strained against the restraints around his body, and he repeatedly gasped for air, making snorting and choking sounds for about 10 minutes. His chest and stomach heaved; his left hand, which he had used minutes earlier to wave goodbye to his family, clenched in a fist.
McGuire eventually issued two final, silent gasps and became still. He was pronounced dead at 10:53 a.m.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 is due out this summer. You can reach him at and follow him on Twitter @MatthewTMangino

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