Monday, March 31, 2014

Conservatives invoking redemption and second chances

There was a time when Texas conservatives like U.S. Sen. John Cornyn, a former judge and state attorney general, used to tout their tough-on-crime credentials, much like in the cowboy-themed 2008 campaign video, "Big Bad John."
Now Cornyn and many other Republicans across the country are singing a different tune on crime and punishment - this time invoking costs, redemption and second chances, reported the Houston Chronicle.
"We tried the lock 'em all up and keep them locked up philosophy, but sooner or later many of these folks are going to be released from prison," Cornyn said in an interview. "Traditional criminal justice policy called for rehabilitation to be one of the elements of our criminal justice system, but we kind of forgot about that."
Some traditional conservatives have come to the view that treatment and rehabilitation programs - long the province of liberal prison reformers - cost a fraction of mandating long, hard time, and have shown better results with low-level offenders, particularly drug offenders, who make up about half of all federal inmates.
The upshot is a pair of broadly-backed criminal justice reform bills in the Senate - one with Cornyn's name on it - now being hailed as a major transformation in a failed criminal justice system. Even in an election year of a famously gridlocked Congress, Cornyn and others give the legislation a better than even chance of getting to President Barack Obama's desk this year.
The Recidivism Reduction and Public Safety Act, introduced by Cornyn and Sen. Sheldon Whitehouse, D-R.I., would provide early releases to low-risk federal inmates who go through job training, education and drug treatment programs, something Texas has been doing for years. It could be paired with the Smarter Sentencing Act, a bill by Sens. Richard Durbin, D-Ill., and Mike Lee, R-Utah, , which would give judges more discretion and scale back minimum sentences for nonviolent drug crimes.
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Sunday, March 30, 2014

Texas carries out 4th execution of 2014

The 14th Execution of 2014
Texas executed convicted murderer Anthony Doyle on March 27, 2014 as it kept the pace of executions steady while other states have had to postpone capital punishments because they cannot obtain drugs used in lethal injections, reported Reuters.
Doyle, 29, was convicted of beating food delivery woman Hyun Cho, a South Korean native, to death in 2003 with a baseball bat, putting her body in a trash can and stealing her car.
Doyle was pronounced dead at 6:49 p.m. at the state's death chamber in Huntsville after receiving a lethal injection. He did not make a last statement, a Department of Criminal Justice spokesman said.
Texas, which has executed more people than any other state since the U.S. Supreme Court reinstated the death penalty in 1976, has obtained a fresh batch of its execution drug pentobarbital, the Department of Criminal Justice said this month, without revealing the source.
Doyle was the fourth person executed in Texas this year and the 512th in the state since the death penalty was reinstated.
But executions overall have been on the decline in Texas, after hitting a peak of 40 in 2000. Since 2010, Texas has averaged about 15 executions a year.
The high costs of prosecutions and the availability of a sentence of life without parole have caused capital punishment convictions to fall to about 10 or less a year in recent years.
"We are now very selective in what we choose to go after as death penalty cases, instead of deciding that every single murder that we try will be a capital case," said Susan Reed, the district attorney in San Antonio and a death penalty supporter.
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Saturday, March 29, 2014

GateHouse: The knock on truth-in-sentencing

Matthew T. Mangino
GateHouse News Service
March 28, 2014
During the violence-laden years between 1984 and 1996, policymakers scrambled to find a way to throttle crime. In 1991, the national murder rate was 9.8 per 100,000 people. By 2012, the rate fell to 4.7, according to FBI data.
A byproduct of the violence was a new sentencing strategy known as truth-in-sentencing. The laws were enacted as a means to insure that offenders served time in prison consistent with the sentence imposed. The U.S. Department of Justice, Bureau of Justice Assistance found that on average prisoners served only about 44 percent of their sentences in the earlier 1990s.
Washington state enacted the first truth-in-sentencing law in 1984. The law required that offenders serve 85 percent of the sentence imposed. Later, Congress adopted a grant program to incentivize truth-in-sentencing. Twenty-seven states qualified for funding by 1998.
Prior to truth-in-sentencing, states generally permitted parole boards to determine when an offender would be released from prison. The judge would impose a sentence range, for instance, four years to eight years, but the parole board would decide when the inmate was released.
With indeterminate sentencing the inmate stays behind bars for at least the minimum portion of the sentence. In some jurisdictions there may be some incentives available to get the inmate out even before his minimum, however the length of the sentence to be served is no longer up to a judge.
As discretion in sentencing and release policies drew criticism, namely sentencing and parole were too soft on criminals, states developed sentencing guidelines. The guidelines were created to eliminate disparity based on geography and demographics. The violence also ushered in mandatory minimum sentencing and sentence enhancements for using a weapon or, for instance, selling drugs near a school.
Although some observers complained that indeterminate sentencing was soft on criminals, in some states lawyers and judges falsely clung to the myth that criminals, particularly violent criminals, were being held by parole boards until completing about 85 percent of their sentence.
Pennsylvania uses indeterminate sentencing. Even those convicted of the most serious crimes in Pennsylvania tend to be paroled at about the same point in their sentences as other offenders. According to the Allentown Morning Call, inmates sentenced to five to 10 years for crimes like aggravated assault were out in six years on average, not 8 1/2 years as many judges and lawyers believed.
“It's intellectual laziness on people's part," Bucks County District Attorney David Heckler told the Morning Call. He labeled it "baloney" that someone on the bench would cite a number for which he's never seen statistical backing.
The problem goes beyond exaggerating the length of a sentence. Recently, Philadelphia Common Pleas Court Judge Benjamin Lerner testified before the state sentencing commission that the system lacks transparency and truth-in-sentencing. He said he is often asked at sentencings how long a defendant will serve. He told the Philadelphia Inquirer, it is one question “I can't answer."
However, the knock on truth-in-sentencing is that it has clogged prisons and strained state budgets. In 1995, Mississippi adopted a truth-in-sentencing law. The state’s law required all inmates sentenced to state prison must serve at least 85 percent of their term before they could be considered for release.
As a result, state prison population more than doubled and corrections costs increased three-fold. According to the National Conference of State Legislatures, lawmakers reinstated discretionary parole in 2008. The new provision was applied retroactively providing approximately 12 percent of Mississippi’s prison population with immediate eligibility for parole consideration.
In several states, truth-in-sentencing laws have been amended, enabling prisoners to be considered for early release, according to The American Prospect. Democrats and Republicans in a number of states have joined forces to reform sentencing and community supervision with an eye toward saving money and giving offenders a second chance.
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, March 28, 2014

The Cautionary Instruction: Dustup between AG, DA, lead prosecutor has consequences

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
March 28, 2014
The attorney general of Pennsylvania, a former lead prosecutor in the AG’s office and the district attorney of Philadelphia are embroiled in a bitter dispute. The acrimony boiled over after Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.
However, the seeds of discontent were sowed soon after Kane’s swearing-in when she launched an investigation into the Jerry Sandusky investigation. One of the primary prosecutors in the Sandusky investigation was Frank G. Fina, the same prosecutor who oversaw the Philadelphia corruption probe. Fina is now front and center in this ugly public dispute along with his new boss Philadelphia District Attorney Seth Williams.
On March 17, the Philadelphia Inquirer reported that Kane's office shut down a corruption investigation that reportedly involved at least four Philadelphia Democrats accepting payments ranging from $500 to $2,000.
The following day, Kane held a press conference saying that she dropped the investigation because it became "nonprosecutable" once charges were dismissed against the informant in the case. Kane also said that the investigation was mismanaged, and that her office found evidence that it was racially biased.
Several days later Kane issue a statement that read in part, "The majority of the work, including 91 percent of the recordings by a confidential informant, took place 18 months prior to my inauguration, through three former attorneys general.”
"Furthermore, I do not have any animosity towards the lead prosecutor of this case. I do not know the former prosecutor any more than I know the individuals targeted in this investigation,” said Kane.
Fina countered in a Philadelphia Inquirer op-ed. “My colleagues and I conducted our investigation honestly, ably, and with integrity. I am willing to sit down at the same table with Kane … where we can each respond to any questions that are posed about the investigation.”
Williams was also sharply critical of Kane. The AG “drops a case supported by hundreds of hours of devastating tapes because the main witness got a deal on a bunch of government fraud charges," he wrote. "As a DA, I think this might be the most disturbing aspect of the whole sordid spectacle. You don't have to be a prosecutor to know this is how it's done."
This public spectacle should raise grave concerns for elected prosecutors. The buck stops with the attorney general or district attorney. Prosecutors have wide discretion and have to make difficult and often unpopular decisions every day.
Those decisions are generally made with the input of line prosecutors, investigators and staff. There may be dissent within the office on how or whether to proceed. Should that dissent be aired in public?
Should an elected prosecutor, accountable to the citizens who vote her into office, also be accountable to subordinate attorneys within her office? That would be a difficult way to run a prosecutor’s office.

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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Indiana governor signs law permitting guns on school property

In line with his history of support for gun rights, Indiana Governor Mike Pence signed into law  a measure to allow adults to keep guns locked in their vehicles in school parking lots, reported the Indianapolis Star.
Without the fanfare Pence's quiet approval came over the opposition of several school organizations that raised concerns the move would compromise safety.
"Governor Pence believes in the right to keep and bear arms," spokeswoman Kara Brooks wrote in an email, "and that this is a common sense reform of the law that accomplishes the goal of keeping parents and law-abiding citizens from being charged with a felony when they pick their kids up at school or go to cheer on the local basketball team."
Current law can make it a felony for legal gun-permit holders to even inadvertently have their guns in their vehicles while they drop off their children at school. The new law, which takes effect July 1, removes that prospect.
The National Rifle Association and lawmakers who supported the measure said the change was needed to protect the Second Amendment rights of legal gun carriers.
Some school groups questioned the decision.
"There's been so much concern about school security and school safety, so why would we do something that has the potential of easily jeopardizing that with readily accessible guns in cars on school property?" asked JT Coopman, executive director of the Indiana Association of Public School Superintendents.
He said he wasn't surprised by the Republican governor's decision, given Pence's vocal support for the Second Amendment during his 12 years in Congress.
"I guess my next thought is, are (lawmakers) going to take responsibility for a shooting that takes place as a result of this?" Coopman said. "Whether it be a student, or whether it be an angry parent that maybe would have taken other courses of action, had these guns and weapons in cars not been so readily accessible?"
Indianapolis Public Schools Superintendent Lewis Ferebee told The Star last week that he wanted Pence to veto the bill: "Young people, schools, guns and all of that is a mix for something inappropriate."
Under the new law, teachers, parents and school visitors can keep guns concealed and locked in their cars in school parking lots. Student gun club members also could have guns in their cars with permission from school principals.
State Rep. Jim Lucas, a Seymour Republican who originally proposed the idea this session, said he didn't believe allowing guns locked in vehicles would lead to school shootings. Shooters, he said, won't be worried about following laws.
Guns are still banned in school buildings and on school buses, lawmakers said.
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Thursday, March 27, 2014

Missouri carries out 5th execution is as many months

The 13th Execution of 2014
Jeffrey Ferguson abducted Kelli Hall as she finished her shift at a Mobil gas station in St. Charles on Feb. 9, 1989. Her naked, frozen body was found 13 days later on a St. Louis County farm, and investigators determined she had been raped and strangled. Hew was executed in Missouri on March 26, 2014, reported the Associated Press.
Ferguson was pronounced dead shortly after midnight at the state prison in Bonne Terre.
In an attempt to spare his life, Ferguson's attorneys made last-minute court appeals challenging, among other things, the state's refusal to disclose where it gets its execution drugs. Supporters said Ferguson, who expressed remorse for the crime, became deeply religious in prison, counseled inmates and helped start a prison hospice program.
"Society doesn't gain anything by his execution," Rita Linhardt of Missourians for Alternatives to the Death Penalty, said Tuesday. "He's not the same man he was 24 years ago."
His attorney also said he was an alcoholic who blacked out the night of the murder.
But St. Louis County prosecutor Bob McCulloch said Ferguson's good deeds in prison didn't make up for the senseless killing of an innocent teenager. Calling the crime "unspeakable," he noted that it took several minutes for Hall to die.
Missouri switched to a one-drug execution method late last year. The state obtains the drug, pentobarbital, from a compounding pharmacy that it refuses to name.
Ferguson's attorney, Jennifer Herndon, had argued that the state's secretive process prohibited the public from knowing exactly how the drug was made and whether it could, in violation of the U.S. Constitution, cause pain and suffering for the inmate.
The same drug also was used in the state's four previous lethal injections, and the inmates showed no outward signs of distress during the execution process.
On the night of the murder, Ferguson and a friend, Kenneth Ousley, were at a Shell service station in St. Charles across the street from the Mobil station where Hall worked.
Hall was nearing the end of her eight-hour work shift when she went outside to check the levels of four fuel tanks. A witness said Ferguson's Chevrolet Blazer pulled up. The witness saw a man standing close to Hall with his hand in his pocket. Investigators said Ferguson was carrying a pistol.
About a half-hour later, co-workers went looking for Hall. When they found out she was not home and her purse was still at the station, they contacted police. Some of her clothing was later found by a city worker in the St. Louis County town of Chesterfield.
Nearly two weeks later, on Feb. 22, 1989, Warren Stemme was approaching a machine shed on his farm in Maryland Heights, another St. Louis suburb, when he found Hall's frozen body, naked except for socks.
An acquaintance suspicious about Ferguson led police to him, and he was convicted of first-degree murder. Ousley pleaded guilty to second-degree murder in 1993; he is serving a life term but is eligible for parole.
Missouri executed just two men between 2005 and November. But after the state switched from a three-drug execution method to a single-drug protocol last year, executions resumed. All five executions since November have used pentobarbital.
Experts say as many as 20 of Missouri's 41 death row inmates have exhausted appeals and could also face execution dates soon, perhaps making 2014 the most prolific year ever for executions in the state. Missouri executed nine men in 1999, the most-ever in a single calendar year.
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Wednesday, March 26, 2014

Florida executes man who murdered co-workers

The 12th Execution of 2014
      Robert L. Henry, a Florida man, was executed on March 20, 2014, for the 1987 killing of two female co-workers by beating them with a hammer and setting them on fire in a robbery at the fabric store where they worked, reported the Associated Press. One witness to the lethal injection blurted out "Die!" as the inmate read his last statement.
     Henry, 55, was pronounced dead at 6:16 p.m. after the chemical injection at the Florida State Prison. He was convicted of first-degree murder in the November 1987 deaths of Phyllis Harris, 53, and Janet Thermidor, 35, at the Deerfield Beach store. Authorities say about $1,200 was taken in the robbery.
     Before the execution, Henry read a three-minute statement in which he apologized for his crimes and said he hoped his death would comfort the families of the victims. But he also criticized the death penalty, saying thieves don't get their hands amputated as punishment.
     "Why would we continue to be murderers to those who have murdered?," he said.
     Then, as he continued, an unidentified victim family member who was witnessing the execution    said, "Die." The comment wasn't audible through the thick glass partition separating witnesses from the chamber.
      After the execution, Thermidor's sister, Deborah Knights, read a family statement.
      "We will always cherish the memory of her life that was taken too soon by a demon from hell," she said. "Today should be closure, but how can you forget the brutal way in which two lives were taken without remorse?"
     In the 1987 attack, Thermidor was still alive when authorities found her beaten and burned. She identified Henry as the attacker in a recorded statement before she died hours later.
     Court records show Henry initially claimed the robbery was committed by three masked intruders who also abducted him, but later he confessed to acting alone. That confession was recorded.
     "You talk about atrocious, heinous, cruel, vile or wicked," Broward County prosecutor Michael Satz told the jury that convicted Henry in 1988. "This is a case that nightmares are made of."
     In addition to two counts of first-degree murder, Henry was convicted of armed robbery and arson.
     According to trial testimony and Henry's own statements to police, Henry first approached Harris after the store had closed on Nov. 2, 1987, telling her unknown robbers had ordered him to tie her up and blindfold her. Henry led Harris to a restroom, bound her there, then went to the store's office where he hit Thermidor repeatedly on the head with hammer, doused her with a flammable liquid and set her on fire.
     Henry then went back to the restroom and attacked Harris with the hammer, setting her ablaze, according to trial testimony.
      Authorities responding to the fire found Harris dead but Thermidor still alive. Following her statement to investigators, Henry was arrested the next day.
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Tuesday, March 25, 2014

New York to adopt risk based pretrial release

The New York Supreme Court Joint Committee on Criminal Justice, which includes judges, defense lawyers and prosecutors, has recommended that the Legislature adopt pretrial release legislation that would release those charged based on the risk they pose, rather than merely their ability to pay., reported the New York Times
The state Constitution requires that bail be set for all defendants charged with crimes that are not capital offenses. Recommending the changes, Chief Justice Stuart Rabner said that this presented problems “at both ends of the system”: people who pose little risk to public safety are held in jail because they cannot afford to pay even minimal bail, while even the most violent and dangerous defendants must be released if they make bail.
A recent study cited in the report from the committee found that 12 percent of people held in New Jersey’s county jails were there because they could not post bail of $2,500 or less. More than two-thirds of those 12 percent were minorities. Studies have shown that people who are held while awaiting trial are more likely to plead guilty, be convicted, and receive harsher prison sentences than defendants who are released pending trial.
The bail provisions recommended in the report would require a constitutional amendment to allow judges to order defendants held pending trial. And the committee also said that the changes should not be enacted unless the Legislature also establishes a system to monitor defendants who are released on conditions other than bail.
“Releasing defendants without monitoring is not an option,” Chief Justice Rabner said in a conference call with reporters. He also called for more funding to ensure that there are enough judges, prosecutors and public defenders to meet the faster deadlines for trial.
Under the recommendations, all defendants would be evaluated for pretrial release based on the same criteria for risk, considering factors like the nature of the charge, history of prior arrest, flight risk, employment status and drug use.
Ultimately, the committee said that the changes could reduce costs. Each day, an average of 9,000 people are held in pretrial detention in New Jersey, at a cost of about $100 a day. The committee’s report projected that the proposed changes would reduce the number of people held by at least half.

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Monday, March 24, 2014

Illinois Supreme Court says Miller v. Alabama retroactive

The Illinois Supreme Court ruled  last week that about 81 convicted murders – sentenced to mandatory life terms for crimes committed when they were under the age of 18 – can re-argue their sentences in court, reported the Chicago Sun-Times.
That means some of the convicted murderers could argue for reduced sentences and eventually gain release.
The court’s finding builds on a 2012 U.S. Supreme Court case, Miller v. Alabama, that declared mandatory life sentences issued to children a “cruel and unusual” form of punishment and thus unconstitutional.
Left undecided at that time was whether the ruling applied to old cases.
The unanimous Illinois Supreme Court opinion — written by Justice Charles E. Freeman — said that in Illinois, at least, the high court’s ruling does in fact apply to old cases.
Freeman wrote that while juveniles may still be sentenced to life in prison, a life sentence cannot be mandatory.
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Sunday, March 23, 2014

Texas executes San Antonio rapper for 1998 murder

The 11th Execution of 2014
A former San Antonio rap musician was executed March 19, 2014 for a knife attack and robbery more than 15 years ago that left a recording studio owner dead, reported The Associated Press.
Ray Jasper was injected with a lethal dose of pentobarbital for the November 1998 stabbing death of 33-year-old David Alejandro.
Before being put to death, Jasper spoke quietly, asking his family to “take care of each other, stay strong and faithful to God.” He also thanked his supporters and told his daughter that he loved her, adding that she “be strong, be positive, have a great life.”
Jasper then asked that the “Lord God almighty in heaven Jesus Christ see my spirit.”
As the drugs started to take effect, he took a couple of deep breaths, then began snoring — each snore less noticeable until all movement stopped. He was pronounced dead at 6:31 p.m. CDT — 20 minutes after being given the lethal drug.
A printed statement from Jasper that was similar to what he said as his final words was handed out after the execution.
During his case, Jasper had acknowledged he slit Alejandro’s throat to steal equipment from the San Antonio studio, but he insisted a partner was responsible for Alejandro’s fatal stab wounds.
Jasper, 33, became the third Texas prisoner executed this year. Another is set for next week before the state — the nation’s most active when it comes to the death penalty — begins using a new batch of pentobarbital obtained through a different pharmacy. Prison officials have refused requests from The Associated Press to disclose which pharmacy is providing the drugs, arguing that information must be kept secret to protect the safety of its new supplier.
Lawyers for Jasper, who was black, argued unsuccessfully to the courts that a review of juror questionnaires that they say only became available recently showed a black potential juror at Jasper’s San Antonio trial in 2000 was questioned and disqualified improperly because of race.
The US Supreme Court rejected the argument about 30 minutes before Jasper was taken to the death chamber in Huntsville.
State attorneys argued the juror questionnaires long had been accessible and that race was not a factor in jury selection.
A Bexar County jury deliberated only 15 minutes before convicting Jasper of Alejandro’s slaying. The panel then took less than two hours to decide he should be put to death.
The Netherlands-born Jasper, whose father was in the US Air Force, was 18 at the time of the attack on Alejandro and had a criminal record beginning about age 15 when his family moved from California to San Antonio.
Jasper had previous dealings with Alejandro, who was the lead singer of a San Antonio Christian-based music group in addition to running his recording studio.
Two other men were convicted in Alejandro’s slaying along with Jasper. Doug Williams, now 35, was convicted and sentenced to life in prison. Steven Russell, 34, also is serving life after taking a plea deal.
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Saturday, March 22, 2014

GateHouse: Army ill-suited to pursue sex-assault prosecutions

Matthew T. Mangino
GateHouse News Service
March 22, 2014
The U.S. Army announced it was dropping sexual-assault charges against Brig. Gen. Jeffrey Sinclair in exchange for his plea to less-serious charges of misconduct. The plea bargain would end the trial of the highest-ranking officer ever to face such charges and one of the most closely watched military trials in recent history.
The trial may end, but the controversy will continue. While he denied the assault, Sinclair admitted to having a long-standing affair with a soldier under his command, which under military law is considered an abuse of power.
Sinclair’s conduct is just one of a series of black eyes for the military and only begins to scratch the surface of the overall problem. A report from the Department of Defense’s Sexual Assault Prevention and Response Office listed 3,374 reported assaults in 2012 a 6 percent increase in reported assaults over the previous year. However, the reported assaults pale in comparison with the estimated unreported assaults. In 2012, the number of sexual assaults left unreported rose to an estimated 26,000.
Sinclair’s plea bargain has led advocacy groups to question whether the military is capable of fairly prosecuting such crimes. The plea bargain has also focused attention on a contentious and unusual battle in the U.S. Senate. Two Democrats, both who happen to be female, have pointed to the Sinclair case as the answer for the following question: “Should commanders decide whether prosecutors pursue charges in military court?”
The judge, Col. James Pohl, halted Sinclair’s trial, citing information that a commander had improperly influenced prosecutors, using “unlawful command influence” to press the case in order to appear tough on sexual assaults.
The claim was the result of a letter Capt. Cassie L. Fowler, the victim’s special counsel, sent to Lt. Gen. Joseph Anderson, commander at Ft. Bragg. The letter asked Anderson to reject a plea offer, “Allowing the accused to characterize this relationship as a consensual affair would only strengthen the arguments of those individuals that believe the prosecution of sexual assault should be taken away from the Army.”
The rationale behind unlawful command influence, according to the New York Times, is to prevent senior commanders from trying to influence military justice, ensuring that cases are prosecuted based on legal merit alone. Anderson asked prosecutors to reject any plea from Sinclair.
New York Sen. Kristen Gillibrand proposed legislation to take prosecution decisions out of the chain of command. The bill did not survive a filibuster and was defeated.
In a recent op-ed in the New York Daily News, Gillibrand wrote, "We will work harder than ever in the coming year to strengthen our military by taking sexual assaults and other major crimes out of the chain of command — so that no victim is compelled to turn to his or her boss to ask for justice," she wrote. "We need every case to move forward based solely on the evidence and judged solely on the merits, not political pressure or other nonlegal considerations."
Missouri Sen. Claire McCaskill disagreed. "As a former sex-crimes prosecutor, Claire knows how difficult these cases can be, and this case is obviously a complicated one," McCaskill spokeswoman Sarah Feldman told The National Journal. "But one of its lessons highlights what we already know — that commanders are often more aggressive than prosecutors in pursuing prosecutions."
"If this court-martial (Sinclair’s) had been handled by prosecutors alone, it would not have gone to trial," said McCaskill's office in a press release.
Gillibrand’s proposal, although lacking sufficient support, did not go far enough. With unreported sexual assault on the rise in the military, and with men entrenched in leadership positions, lawmakers should consider removing sexual-assault investigations and prosecutions out of the military system and into civilian courts.
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, March 21, 2014

The Cautionary Instruction: NRA shoots down nomination of public health expert

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
March 22, 2014
Intense opposition from the National Rifle Association may have doomed President Barack Obama's nomination of  Dr. Vivek Hallegere Murthy for surgeon general.
In a letter to Senate leadership in February, the NRA warned against the confirmation, saying, "Dr. Murthy's record of political activism in support of radical gun control measures raises significant concerns."
Murthy is a physician and public health expert at Harvard Medical School and Brigham and Women’s Hospital. He is the co-founder and president of Doctors for America a group of about 16,000 physicians and medical students that advocates for access to affordable, high quality health care and has been a strong supporter of the Affordable Care Act.
Murthy became a target of the NRA after he wrote a letter to congressional leaders in his role as president of Doctors for America. “As health care professionals who are confronted with the human cost of gun violence every day, we are unwavering in our belief that strong measures to reduce gun violence must be taken immediately. We strongly urge Congress and the Obama administration to put legislation in place now and develop a comprehensive plan to reduce gun-related injuries and deaths,” Murthy wrote.
He pointed out in the letter that 100,000 people are killed or injured by guns in America every year. It is a statement of fact that gun violence is a public health concern. According to a report by the Center for American Progress, gun deaths will surpass car accident deaths among young people next year.
Murthy’s view is not controversial within the public health community. The American Medical Association officially opposes any laws that would block doctors from having open conversations about firearm safety in the home and the Academy of Pediatrics has recommended specific gun violence prevention measures to Congress.
Murthy’s position is not unprecedented. Past surgeons general, including C. Everett Koop, appointed by President Ronald Reagan, spoke out on the public health threats presented by guns. In 1992 Koop co-authored a paper, “Time to Bite the Bullet Back.”
Koop indicated that his views on gun violence were informed by his 1985 Workshop on Violence and Public Health.
“No society, including ours, need be permeated by firearm homicide. …The right to own or operate a motor vehicle carries with it certain responsibilities…we propose that the right to own or operate a firearm carries with it the same prior conditions,” wrote Koop.

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, March 20, 2014

States look to 'Good Samaritan' laws to fight opioid overdoses

Seventeen states and the District of Columbia have passed “Good Samaritan” laws that grant limited immunity to drug users who seek help for someone who has overdosed, according to the Trust for America’s Health (TFAH), a nonpartisan research and advocacy group based in Washington, D.C, reported Stateline. The same number have expanded access to the medication naloxone (also known by its brand name Narcan), which can quickly reverse the effects of opioid overdoses and restore breathing to a stricken person.
Similar measures are under consideration in at least six other states (Maine, Michigan, New York, Ohio, Pennsylvania and Virginia).
In some states, such as Oklahoma and North Carolina, the measures are passing with the support of conservative Republican lawmakers allied with police and the families of overdose victims.
They also carry the endorsement of the American Medical Association, the National Association of Drug Diversion Investigators, the U.S. Conference of Mayors and the American Public Health Association.
Not everyone is on board, however. Maine Gov. Paul LePage, a Republican, is opposing a naloxone access bill that is under consideration in his state’s legislature, arguing that the availability of an antidote would only encourage more drug use. And last year, LePage vetoed a Good Samaritan bill.
States also are pursuing other strategies to combat the abuse of painkillers and heroin. In October, the Trust for America’s Health listed 10 measures that states could take to combat prescription drug abuse. Good Samaritan laws and expanding access to naloxone were two of the measures TFAH listed. Other provisions include the mandatory use of prescription drug monitoring programs and the requirement that doctors examine patients before prescribing medications.
Only two states, New Mexico and Vermont (where Gov. Peter Shumlin last month devoted his entire State of the State address to the “crisis” of illegal opiate use in his state), have adopted all 10 of the TFAH recommendations.
In an interview with Stateline, Robin Cardiges said she believes her son Stephen might have been saved if Georgia had had a naloxone law on the books two years ago. She’s even surer that with a Good Samaritan law, Stephen’s companions might have been willing to take him to a hospital for treatment. Instead he died, and they were charged with drug possession.
“I think that no one among us hasn’t or won’t make a deeply regrettable choice,” she said. “It shouldn’t cost you your life.”
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Wednesday, March 19, 2014

Public defenders: 'We are worse off than we thought'

More than a half-century after the Supreme Court ruled that impoverished criminal defendants must be provided lawyers free of charge, the state of indigent defense remains “unconscionable,” in the words of Attorney General Eric H. Holder Jr.

In Missouri, where public defenders say they are especially burdened, many legal experts hope that an exhaustive new analysis of workloads and needs, sponsored by the American Bar Association, will strengthen their multiyear battle for change, reported the New York Times.
Chronically understaffed, and reeling from caseloads several times larger than those managed by private lawyers, public defenders in Missouri and in many parts of the country have started trying to force legislators to respond. In the last two years, defender agencies in Missouri and Miami have won, in state Supreme Courts, the right to refuse new cases they cannot responsibly handle.
“Limited resources move to higher-level cases like murder and rape, and thousands of other defendants are simply being thrown under the bus, with the illusion of a lawyer,” said Stephen F. Hanlon, a private lawyer who is chairman of a national bar association advisory group on indigent defense and who provides legal representation to the Missouri State Public Defender System.
The new report, carried out in 2013 by the accounting firm RubinBrown, followed 375 lawyers in the Missouri State Public Defender System who recorded how they spent their time in five-minute increments.
Independently, a panel of private and public lawyers estimated the average time a defense lawyer in Missouri needed to properly argue cases of varying severity.
“We found we are worse off than we thought we were,” said Cathy R. Kelly, director of the state public defender system.

For serious felonies, defenders spent an average of only nine hours preparing their cases, compared with the 47 hours they needed, the study found. For misdemeanors, they spent only two hours while 12 were called for.
To read more Click Here

Tuesday, March 18, 2014

AG Kane scraps investigation suggests racial targeting

Pennsylvania Attorney General Kathleen Kane said  her office found evidence of racial targeting in a recently scrapped Philadelphia corruption investigation, reported the Legal Intelligencer. According to Kane, two sources reported to two different government agencies that they were told to only target members of the Pennsylvania Legislative Black Caucus.
"We had two separate individuals reporting to two independent law enforcement agencies. We also had documentary evidence to support that assertion," she said. "This case was done and over before I even took office."
Kane's office shut down the corruption investigation that reportedly involved at least four Philadelphia Democrats accepting payments. The payments, the Philadelphia Inquirer reported, ranged from $500 to $2,000.
According to a timeline released by Kane's office, the sting began in October 2010, when Gov. Tom Corbett was the state attorney general. The investigation focused on members of the state General Assembly for alleged violations under the Election Code, the State Ethics Act and the Bribery Statute.
Kane was elected as state attorney general Nov. 6, 2012.  Over 2,000 charges were dismissed against the lead informant on Nov. 30, 2012. Kane, who took office as attorney general Jan. 15, 2013, said she first learned of the investigation at her first staff meeting two days after her swearing-in.
To read more Click Here 

Monday, March 17, 2014

Guest Blog: Now you see it, now you don’t: The shortcomings of eyewitness identification

Matthew T. Mangino
Guest Blog, Deliberations
A publication of the American Society of Trial Consultants
March 17, 2014      
             United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty years ago, “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”
            Convincing yes-- reliable, maybe not...
            More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. The fallibility of human memory is not a new concept. In the 1800’s, memory researcher Hermann Ebbinghaus’ “Forgetting Curve” illustrated how quickly memories fade as time passes. Additionally, in 1971, England’s Criminal Law Review Committee stated that relying on eyewitness testimony could lead to false convictions. One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.
            Even U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness identification. She wrote, "eyewitness identifications' unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial."
            Despite this, a number of trial courts have held that experts are not needed to explain eyewitness testimony. They claim that issues such as weapon focus, cross-race identification and post-event contamination are easily understood by the average juror. Jurors are then able to determine an eyewitness’ reliability without the aid of expert testimony.
             Pennsylvania is one of those states. In Commonwealth v. Robinson, 5 A.3d 339 (2010), the defendant sought to offer expert testimony shedding light upon the reliability of an eyewitness in a cross-racial identification. The Superior Court held that the trial court was correct in denying the defendant’s request and properly refused to instruct the jury as to inherent difficulties in making accurate cross-racial identification.
            The Court found that allowing an expert to offer an opinion that cross-racial identification is less reliable than same-race identification would improperly intrude upon the credibility determinations of the jury. The Superior Court held, in light of precedent, “we believe our supreme court would find that proposed testimony (cross-racial identification) equally objectionable.”
            The Pennsylvania Supreme Court has long held that expert testimony from social scientists in the fields related to eyewitness identification — human memory, perception and recall — is improper as it intruded on the jury’s duty to judge the “credibility” of each witness.
            In Commonwealth v. Benjamin Walker, 28EAP2011 the Pennsylvania Supreme Court is being asked to decide two issues: “(1) whether the trial court should have had the discretion to allow the Petitioner to present expert testimony regarding human memory, perception, and recall, and (2) whether the Court should permit expert scientific testimony, whether it be for the defense or prosecution, on how the mind works as long as the testimony has reached general acceptance”.        The fundamental question before the court is the admissibility in Pennsylvania courts of expert testimony on research regarding the reliability of eyewitness identification.
         According to the American Psychological Association website, two students were robbed at gunpoint early one morning. One was hit with the gun while the other got away unharmed. The injured student identified Walker as the perpetrator from a photo lineup and also at trial. The other was unable to make an identification. There were several factors that could have affected the eyewitness: poor lighting, the crime occurred quickly, the presence of a gun, and the fact that the perpetrator was of a different race than the witness. Walker’s attorneys asked the court to allow for an expert to testify about those issues. The requests were denied by the trial court. The case was argued before the Pennsylvania Supreme Court more than a year ago.

Author Snapshot
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. He is the former district attorney of Lawrence County, PA and a former member of the Pennsylvania Board of Probation and Parole. 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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Group using prison labor tries to influence mandatory minimum bill

A group that uses prison labor to make money has appeared on lobby disclosure forms reviewed by Republic Report. Prison labor companies are attempting to influence a bill to reduce mandatory minimum sentencing .
The group is called the Correctional Vendors Association, an organization that represents companies that use prison labor to produce everything from furniture to clothing goods. CVA has spent $240,000 on lobbying over the past year, and forms show the organization is interested in shaping the outcome of the Justice Safety Valve Act, or S.619, a bill proposed Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) to allow judges to impose a sentence below the mandatory minimum in certain drug-related cases.
The prison labor group, which is managed and represented by a lobbying firm called the Leonard Group, has refused to answer multiple e-mails and phone calls from Republic Report which has attempted to reach the Leonard Group for comment since early January.
The Republic Report e-mailed every major group working to pass the Justice Safety Valve Act, and no one could tell us what the Correctional Vendors Association is up to.
“I don’t know its position, and I don’t know who they’ve been lobbying,” says Molly Gill, a lobbyist for Families Against Mandatory Minimums, when asked about the efforts of the Correctional Vendors Association.
“Our government affairs counsel doesn’t recall running across these folks,” says Larry Akey of the Constitution Project.
Other groups working on mandatory minimum reform were similarly puzzled. “I do not know,” says Bill Piper of the Drug Policy Alliance. “Interesting that they would be lobbying on this though.”
“I don’t, Lee, but I bet we can both guess,” replied Thomas Sussman of the American Bar Association.
To read more Click Here

Sunday, March 16, 2014

India: Delay in executions cause for commutation

The India Supreme Court recently upheld a ruling that inordinate delay in execution of death convicts can be a ground for commuting the sentence to life, according to the Hindustan Times.
A three-judge panel headed by Chief Justice of India Palanisamy Sathasivam had on January 21 commuted sentences of 15 death row convicts, ruling that the "inordinate and inexplicable delay is a ground for commuting death penalty to life sentence".
 Human rights lawyers hailed a decision which puts strict new conditions on carrying out the death penalty, and could dramatically reduce its use.
A total of 15 people had challenged their death sentences on the grounds of delay due to the time taken for the president to answer their mercy petitions. Petitioners include notorious sandalwood smuggler Veerappan aides--- Meesekar Madaiah, Gnanaprakash, Simon and Bilavendran--- and Haryana couple Sonia and Sanjiv who were sentenced to death for killing 13 of their relatives.
The judgment is expected to affect more convicts, including Devinder Pal Singh Bhullar from Punjab, who was convicted over a New Delhi car bombing that killed nine people in 1993, and Rajiv Gandhi's assassins Murugan, Arivu and Santhan.
The court had also said that there cannot be any distinction whether a person on death row was convicted on charges of terror or otherwise in entertaining their petition.
The constitution bench said the president and the governor, while deciding mercy petitions were not exercising any prerogative but were discharging their constitutional obligation and even a death row convict has a de factor right.
In another landmark decision that will ensure that there was no repeat of the Afzal Guru like execution, the court had said that there has to be 14 days gap between the communication of rejection of mercy petition to the convict and his family members and actual execution of the death sentence.

The court had said these 14 days are necessary for the convict to come to terms with the reality, to make peace with God, to execute his will and also have the opportunity to meet his family members for the last time.
The court had clarified that delays needed to be "inordinate" and "inexplicable", but it also said that mental illness such as schizophrenia and the use of solitary confinement could make a convict eligible for a reduced sentence.
To read more Click Here

Saturday, March 15, 2014

The Cautionary Instruction: U.S. Supreme Court examines bright-line mental disability rule

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
March 14, 2014
In 2002, the U.S. Supreme Court ruled that executing a mentally disabled (formerly referred to as mentally retarded) person violated the Eighth Amendment's ban against cruel and unusual punishment. In a case known as Atkins v. Virginia, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.”
The Atkins opinion also contains a loophole that renders it virtually meaningless in many cases—in the Court’s words “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”
Given this leeway to design their own methods for screening inmates, several states executed inmates that almost certainly were mentally disabled. Texas executed Marvin Wilson, a man with a “Full Scale I.Q. of 61″ who “required repeated instruction for doing even simple things, such as cutting the grass” and who “seemed to have a difficult time dressing himself properly.”
On Florida’s death row, the state says having an IQ higher than 70 categorically means an inmate is not mentally disabled and may be executed. In Hall v. Florida, 12-10882, recently argued before the U.S. Supreme Court 68-year-old Freddie Lee Hall is challenging the state's use of a rigid IQ cutoff to determine mental disability.
Florida is one of only five states that have set a bright-line rule for determining mental disability in capital cases. The others are Alabama, Kentucky, Virginia and Idaho, and the results there have been stark. Only two claims of mental disability have been successful in those states since 2002, according to a Cornell University study. That's about two percent, compared to a 28 percent success rate in the other 45 states.
In a brief asking the high court to hear the case, Hall's attorney, Eric Pinkard, noted that lower courts originally placed Hall’s IQ at 60. He argued that the state cannot set a "bright line" for measuring something even the IQ tests' inventors say is a moving target.
"We allow people to make their best case about why they're not eligible for the death penalty," Justice Elena Kagan said during the recent argument. "And essentially what your cutoff does is, it stops that in its tracks, as to a person who may or may not even have a true IQ of over 70, let alone it stops people in their tracks who may be mentally retarded."
"Could the state say somebody who is mentally retarded enough—so mentally retarded as not to be responsible and not to be subject to the death penalty certainly could not have pulled all of this [crime] off?" Justice Antonin Scalia said referring to Hall. "This is not a person who is that significantly mentally retarded."

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, March 14, 2014

GateHouse: Demystifying the language of law

Matthew T. Mangino
GateHouse News Service
March 14, 2014
There is a movement afoot in the legal community to simplify the writing and speech of lawyers. Legalese has been condemned from every quarter, including the U.S Supreme Court. When Justice Antonin Scalia was asked what characterized good legal writing he declared, “Beyond pure literacy, avoid legalese.” He suggested, “a good test is, if you used the word at a cocktail party, would people look at you funny?”
However, Scalia is the same guy who wrote in his dissent of the decision striking down the Defense of Marriage Act that the majority opinion was “legalistic argle-bargle.” Not sure that argle-bargle would pass the cocktail party test. Argle-bargle means “imbroglio,” excuse me it means “fight.”
Legalese has been an increasing object of derision. During World War II, Maury Maverick, a U.S. Congressman from Texas and chairman of U.S. Smaller War Plants Corporation, wrote a memo banning "gobbledygook language.” Maverick’s word has been accepted into the American lexicon. Merriam-Webster defines gobbledygook as “speech or writing that is complicated and difficult to understand.”
To put legalese into context here is what the blog Words to Deeds believes the children’s rhyme Jack and Jill would sound like if written by lawyers: “The party of the second part hereinafter known as Jill … Ascended or caused to be ascended an elevation of undetermined height and degree of slope, hereinafter referred to as ‘hill.’”
William C. Burton, a partner in the New York City law firm of Sagat Burton LLC, has long been an advocate for clear and concise legal writing free from the stylized legal gobbledygook that has been so ingrained in the legal community.
In 1999, Burton established the Burton Awards for Legal Achievement to honor quality legal writing that uses plain and simple language. On the Burton Foundation website, Burton contends, “Legal writing is undergoing dramatic changes. Obscure and turgid writing is being replaced with clear, plain and concise wording.”
Law professor Joseph Kimble of the Cooley Law School has earned two Burton Awards. Kimble debunks the myths that using plain language creates documents that are not professional, precise, or legally accurate. Eliminating the confusion caused by legalese allows readers to more easily understand a document and act on it, Kimble told The Legal News.
What is the big deal about legalese? Nobody reads their mortgage or their credit card agreements. If an individual has a contract to read or understand they bring it to a lawyer.
The greater concern is that obtuse language goes beyond contracts and agreements and right to the heart of liberty and freedom. A defendant charged with a crime is entitled to a lawyer — a competent one. The accused is also entitled to a jury of his or her peers and here is where it gets tricky.
Before a jury retires to deliberate the fate of the accused, the judge provides those jurors with instructions to assist in their decision making. Unfortunately, those instructions are legalistic and often difficult to understand.
A report published in The Trial Expert, a publication of the American Society of Trial Consultants, found, “the reading levels of instructions are frequently at or above the twelfth grade, a result that is inconsistent with the average reading level of the American adult.”
The report continued, “Considering that less than fifty percent of adults possess the basic skills and knowledge necessary to read and comprehend moderately difficult reading passages, it’s not likely they are able to synthesize the complex language present in jury instructions.”
That is a mouthful, but simply put — one in two jurors is confused by the language used to help them decide the fate of a fellow citizen.
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.

Thursday, March 13, 2014

Mangino interviewed on WKBN-TV 27 First News

27 First News is still pushing for answers to the mystery surrounding Superintendent Dr. Larry Duck’s departure from the Mahoning County Board of Developmental Disabilities.
WKBN obtained a copy of the MCBDD’s settlement agreement with Duck, and asked attorney Matthew Mangino to evaluate it.
He said the severance package reads more like a buyout than anything else. The deal includes nearly a full year’s salary and medical coverage for six months.
“That’s typically not what happens when someone is terminated for cause. If there is a basis for termination, that’s typically the end of the story,” Mangino said.
There’s nothing in the agreement that indicates any wrongdoing.
“This appears to be a mutual agreement to separate,” Mangino said. “And it appears any allegations in the ethics probe were unfounded.”
Click here to watch the interview

81,000 Pennsylvania children have a parent in state prison

According to Emily DeMarco of PublicSource and Jacob Seibel of Citizens' Voice, an estimated 1.7 million children in the country have a parent in prison, according to a new report from the Office of Juvenile Justice and Delinquency Prevention. Millions more may have a parent in county jail.
In Pennsylvania, about 81,100 children have a parent in state prison, according to the latest data from the state’s Department of Corrections. Those numbers do not include children with parents in federal prisons or county jails.
Some experts said the children of incarcerated parents are often shunned or bullied.
“You should care about the needs of these kids, because you care about the needs of all children,” wrote Judge Kim Berkeley Clark of the Allegheny County Common Pleas Court in an email. “The children don’t have a say in who their parents are or where their parents are.”
To read more Click Here

Wednesday, March 12, 2014

Mangino comments on Jordan Brown appeal

Watch my interview on WFMJ-TV regarding the Pennsylvania Office of Attorney General's appeal of Jordan Brown's case to the Pennsylvania Supreme Court.  Click here to watch the interview.

Man released from death row after 26 years

A man who spent nearly 26 years on death row in Louisiana walked free of prison, hours after a judge approved the state's motion to vacate the man's murder conviction in the 1983 killing of a jeweler, according to The Associated Press.
Glenn Ford, 64, had been on death row since August 1988 in connection with the death of 56-year-old Isadore Rozeman, a Shreveport jeweler and watchmaker for whom Ford had done occasional yard work. Ford had always denied killing Rozeman.
Ford walked out the maximum security prison at Angola on Tuesday afternoon, said Pam Laborde, a spokeswoman for Louisiana's Department of Public Safety and Corrections.
Asked as he walked away from the prison gates about his release, Ford told WAFB-TV, "It feels good; my mind is going in all kind of directions. It feels good."
Ford told the broadcast outlet he does harbor some resentment at being wrongly jailed: "Yeah, cause, I've been locked up almot 30 years for something I didn't do."
"I can't go back and do anything I should have been doing when I was 35, 38, 40 stuff like that," he added.
State District Judge Ramona Emanuel on Monday took the step of voiding Ford's conviction and sentence based on new information that corroborated his claim that he was not present or involved in Rozeman's death, Ford's attorneys said. Ford was tried and convicted of first-degree murder in 1984 and sentenced to death.
To read more Click Here

Tuesday, March 11, 2014

California's prison population on the rise, again

After declining for six years, California's prison population is expected to grow by 10,000 inmates in the next five years, complicating Gov. Jerry Brown's effort to abide by a court order to reduce overcrowding, reported the Los Angeles Times.
New state population projections show criminals heading to prison at the same rates expected before Brown began to shrink the prison population by keeping low-level, nonviolent felons in county jails after their convictions rather than sending them to state lockups.
The reason for the growing prison population is under debate.
County prosecutors dispute suggestions that they are more frequently pursuing charges that put felons in prison instead of jail. Others cite violent crimes committed by felons or parolees cycling in and out of overcrowded jails since the new prison policy, called realignment, took effect in October 2011.
State statistics do not show a rise in violent crime.
Even with room for 3,700 more beds planned over the next two years and the rollout of new parole programs Brown announced Thursday, California would be increasingly far from the inmate population limit set by the court.
The new projections were released by the state Department of Corrections and Rehabilitation in late December, months later than normal. The report comes as California faces the threat of contempt if it fails to meet an order by three federal judges to ease crowding in the state's 34 prisons.

To read more Click Here

Monday, March 10, 2014

Alabama to keep execution drug suppliers secret

Makers and suppliers of Alabama's execution drugs would be kept secret and not released to the public or the courts under a bill approved  in the Alabama House of Representatives.
House members voted 77-19 for the bill being sought by the Alabama Department of Corrections. It now moves to the Alabama Senate, reported the Charlotte Observer.
Rep. Lynn Greer, R-Rogersville, said companies are becoming hesitant to supply the drugs because of the threat of lawsuits and backlash from death penalty opponents.
"We're having a terrible time getting the drug. The Department of Corrections can't get the drugs. It's just simple," Greer said.
Richard Dieter, executive director of the Death Penalty Information Center, said about seven states have adopted similar laws, which he said are being challenged in court.
Supporters of the Alabama bill said the state should protect people playing a role in court-ordered executions from the threat of lawsuits and retaliation. Opponents argued the details of the state-sanctioned taking of a life should not be kept secret.
"I think any contractor in the state of Alabama should be open record," said Rep. Napoleon Bracy, D-Prichard.
"People can create this drug and sell it to the people of Alabama in our prisons. That drug's intent is to kill someone. Then they don't want anyone to know who they are, but they want to profit from selling the drug," Bracy said.
The identities of the drug companies would not be subject to disclosure in a lawsuit or admissible as evidence, according to the legislation. The bill would also keep secret the names of people who perform any ancillary function related to an execution.
Alabama in 2002 switched from the electric chair to lethal injection as its primary form of execution.

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Sunday, March 9, 2014

Every penny you spend in technology increases the efficiency of your agency

At his first Board of Corrections meeting as director of the state Corrections Department, Robert Patton said tackling Oklahoma’s rising prison population is a top priority, reported The Oklahoman.
Patton, who worked more than two decades for the Arizona Department of Corrections, started his new job in Oklahoma in mid-February. He told the board he has established a population management team to look at ways to reduce inmate numbers.
After the meeting, Patton told reporters the team is looking at a variety of ways to reduce the prison population, including looking at agency policy to make sure the department is following statute and processing inmates through the parole process adequately.
“So, in other words, if the courts have sentenced you to a certain sentence where you can earn credits or whatever it is to say you can be released this certain date, are we making sure that you are released on that date,” Patton said.
A bill working its way through the state House of Representatives would allow early release credits for prisoners now required to serve 85 percent of their sentence.
Patton would not comment on whether he supported the bill, but he said it made sense and was a practice used in the Arizona prison system. He said he also is considering ways to improve the parole monitoring system to make sure offenders do not re-offend.
Many records within the Corrections Department are still kept on paper, and Patton acknowledged one way to improve the offender management system is to move to a computer-based model. However, he also noted such a change is not inexpensive.
“Every penny you spend in technology increases the efficiency of your agency,” Patton said. “Right now, I’m looking for quarters under the couch, but through appropriate planning and through appropriate budgeting I think we can address those things.”
County jails across the state are housing inmates waiting for a bed to open up in a state or private facility, and Patton said he would like to shorten the length of time those inmates spend in county jails, relieving stress on jailers and saving his department precious dollars.
“If we can do appropriate population management and not spend all those millions on county jail beds, maybe we do have some money to go over and address some IT issues.”
To read more Click Here

Saturday, March 8, 2014

GateHouse: Supreme Court weakens Fourth Amendment

Matthew T. Mangino
GateHouse News Service
March 7, 2014
One of the bedrock principles of the U.S. Constitution is that a person should be secure from unlawful governmental intrusions into the home. These protections were painstakingly established in response to the unfettered authority of British officials to search the homes of American colonists.
American courts have long acknowledged that the occupant of a home has a reasonable expectation of privacy within the walls of that home and, at times, even directly outside those walls.
Absent consent of the home owner, a lawful search warrant, or some exigent circumstance, the Fourth Amendment has steadfastly prohibited the police from entering a private residence — until now.
Last month, the U.S. Supreme Court ruled in a Los Angeles case that a homeowner who clearly and unequivocally denied access to police who were at his doorstep, may nonetheless have his home searched after he is arrested and removed and another occupant of the premises consents to the search.
The justices declined to extend a prior ruling denying entry to police when the occupants disagree about letting police in to search and both are present. In 2006, the U.S. Supreme Court decided Georgia v. Randolph. At issue was a domestic violence investigation where a suspect refused to let the police search his home while his wife authorized the search.
The police went in anyway and searched the home. The Supreme Court ruled, “A physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.”
This time around, the facts changed and so did the decision. Los Angeles police were investigating a robbery when they came to the door of Walter Fernandez. He strongly objected to the police entering his apartment before he was arrested and taken away. After his removal his girlfriend permitted police to search their shared residence.
Justice Samuel Alito ruled that Fernandez may not object to a search when he is no longer 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.
"A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant," he said in the case aptly entitled 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 Court’s rationale goes something like this: In order to relieve the burden on police to get a warrant to search a home — a procedure that is extremely intrusive for any homeowner — the Supreme Court has acquiesced to an even greater intrusion on the homeowner — an arrest. Once the arrest is effectuated and the homeowner removed, the need for a warrant is obviated if there is someone present to let the police inside.
Last November, when this case was argued before the Supreme Court, Sanford law professor Jeffrey Fisher pointed out the misplaced reliance on the “burden” police endure to get a search warrant, "In Los Angeles County, it takes 15 minutes on average to get a warrant."
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented to the Fernandez decision. The three accused the majority of weakening the Fourth Amendment and granting the police too much latitude, reported the Los Angeles Times.
“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. 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, March 7, 2014

The Cautionary Instruction: The odyssey of Jordan Brown

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
March 7, 2014
Kenzie Houk and her unborn child were murdered as she slept in her Lawrence County home on February 21, 2009.
Five years later, the son of Kenzie’s boyfriend remains in juvenile detention. Jordan Brown has been accused and convicted of killing Kenzie and his conviction has been overturned.
Brown’s case has been appealed to the Superior Court twice and is scheduled to be argued before the Pennsylvania Supreme Court in Philadelphia next week.
Brown was 11 years old when he was charged with murder. He was charged as an adult pursuant to Pennsylvania law. Brown faced life in prison without the possibility of parole, possibly the youngest person in the United States ever to face such a sentence.
Brown's attorneys requested that his case be decertified from adult court to juvenile court. In 2010, Lawrence County Common Pleas Judge Dominick Motto ruled that Brown's case should remain in adult court.
Motto based his findings, in part, on the fact that without accepting responsibility for Houk's death Brown would not be amenable to rehabilitation as set forth in the Juvenile Act.
Attorneys for Brown appealed Motto’s decision. The Superior Court overturned the decision and ordered a second hearing to determine whether Brown should be tried as a juvenile or an adult.
"By finding that Appellant (Brown) had to admit guilt or accept responsibility for his actions as a condition to proving that he was amendable for treatment, the trial court placed Appellant in a situation that needlessly encouraged Appellant to sacrifice his Fifth Amendment rights against self-incrimination," the Superior Court said.
Judge Motto heard the decertification issue for a second time and remanded the case to juvenile court.
In April of 2012, following a closed-door proceeding, Lawrence County Judge John Hodge adjudicated Jordan delinquent of first-degree murder and criminal homicide of an unborn child.
The case then made its way back to the Superior Court.
On May 8, 2013, the Superior Court overturned the 2012 delinquency ruling by Hodge. In reviewing the record, the Superior Court took exception to Hodge’s determination of the evidence. The Court concluded that Hodge had “committed a palpable abuse of discretion in rendering a ruling that is plainly contrary to the evidence.”
Specifically, the court ruled the Hodge did not give enough weight to arguments someone else could have entered the house and committed the crime.
Deputy attorney general Anthony J. Krastek said after the hearing, "If it was anyone else that could have accomplished this, they would have had to ... know what time to get there, known where the guns were, which was in the boy's room, known where the ammunition was for that gun, which was in her bedroom ... and then commit the killing and accomplish all of that without leaving a single footprint or a tire track."
Now, the Attorney General’s office is asking the Pennsylvania Supreme Court to overturn the Superior Court’s ruling and reinstate Hodge’s finding of delinquency.

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Thursday, March 6, 2014

Using urban transformation to eradicate crime

Researchers have long linked urban decay to crime rates. But do the old models of urban renewal—tearing down housing projects in expensive redevelopment schemes—address the roots of the problem?
In Fayetteville, NC, city authorities have been slowly buying up properties in depressed neighborhoods near the downtown area and demolishing abandoned homes, according to The Crime Report.  But without a master “blueprint” that integrates housing reconstruction with efforts to improve infrastructure, schools and community services, such efforts are likely to come up lacking.
Greg Barnes, a reporter for the Fayetteville Observer, went to Atlanta to investigate a program run by a nonprofit called Purpose Built Communities which has pioneered a different approach.  Supporters of the model point to the transformation of East Lake, one of Atlanta’s poorest and most crime-riddled neighborhoods, as evidence of its success.
And the model has been duplicated in other American cities.
Barnes says the program, which operates with private donations,  has already produced a 90 percent drop in crime in the neighborhood.

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Wednesday, March 5, 2014

Promises of Reform Through Justice Reinvestment Initiative Unfulfilled

Matthew T. Mangino
The Pennsylvania Law Weekly
March 4, 2014
The state prison population increased last year. That is not necessarily earth-shattering news. As of Dec. 31, 2013, Pennsylvania's prisons housed 51,512 people, up 328 from the same date in 2012. The increase was enough to require the state Department of Corrections to ask for a supplemental increase to the current year's budget.
According to the Harrisburg Patriot-News, the corrections budget is projected at more than $2 billion next year, despite the passage of Justice Reinvestment Initiative (JRI) legislation to save money by reducing the size of state prisons.
The JRI concept was devised about eight years ago as U.S. prison and jail populations were soaring and eating up more and more of state and local budgets.
The idea was to reduce the high cost of incarceration through improved supervision of offenders in the community, in turn bringing fewer probation and parole violators back to prison.
The JRI became a reality in Pennsylvania when Gov. Tom Corbett signed Act 122 in July 2012. The plan recommended funding for local law enforcement, performance-driven incentives for counties to house state inmates, strengthening local probation and state parole and retooling the state's community corrections system. The plan was to be funded by an estimated $260 million in savings realized by eliminating inefficiencies in the corrections system and lowering the prison population.
The original corrections population projection included a reduction of 719 inmates by 2013 and 1,486 by 2014. The first clearly has not been met and the latter appears to be grossly overstated.
At the very outset of the initiative, there was reason to be concerned. A separate piece of legislation was needed to allocate the savings and reinvestment. HB 135 outlined the formula by which savings would be returned to local governments to carry out the directives of Act 122.
The formula for distributions included the following: 43 percent for local police grants; 26 percent for local grants to improve county probation; 21 percent to implement contracts with counties for diversion of low-level offenders; 6 percent for the Board of Probation and Parole for costs to streamline the parole process; and 4 percent to coordinate and implement improved reentry programs.
However, not all of the $260 million in recommended savings made it into the final version of HB 135. The pool of funds for reinvestment was eventually slashed by about 45 percent to $142 million.
The alarm has been sounded. The DOC can point to averting a crisis in corrections spending—the projected savings of $260 million that was recalculated to $142 million actually amounts to zero.
In his recent official remarks to the state House of Representatives appropriations committee, DOC Secretary 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."
According to the Patriot-News, the corrections budget could be more than $113 million higher than the emergency appropriation. Pennsylvania is not the only state to feel the pinch of unfulfilled promises of the JRI.
The JRI is sputtering in Ohio. The two-year-old plan to reduce Ohio's inmate population is not having the desired impact. The number of prisoners behind bars is expected to spike, according to the Associated Press.
Gary Mohr, director of the Ohio Department of Rehabilitation and Correction, said the state prison's already high population of 50,000 could soar to 52,000 in two years and top 53,000 in six years. The population numbers are in contrast to rosy projections from 2011 when lawmakers passed the JRI.
Under the law, the number of inmates was supposed to drop to around 47,000 by 2015 and dip below 47,000 two years after that.
In Oklahoma, the legislature passed a list of new laws under the umbrella of the JRI. The problem is the legislature did not provide any funding for the criminal justice measures. Oklahoma Gov. Mary Fallin has asked for an investigation into the matter. Not everyone was keen on the JRI, fearing that it would be seen as soft on crime. A recent review of the JRI in Oklahoma concluded in a rather understated manner, "the utilization rate of [justice reinvestment] policies has been much lower than expected."
There are justice reinvestment initiatives underway in 17 states. A recent study by the Urban Institute found the initiatives have the potential to achieve a "massive return" on the investment of $17 million by the federal government and the Pew Charitable Trusts.
More efficient handling of offenders in the justice system could save $4.6 billion in the states as prison populations are reduced over many years, the institute estimated.
Some participating states "have enjoyed both measurable successes and positive cultural and organizational changes as a result of their reform efforts," the assessment concluded. However, the assessment warned that sustaining consensus can be difficult "in the face of policymaker turnover, high-profile incidents, and lack of public education."
That is exactly the issue that Wetzel pointed out to lawmakers during the recent budget hearings.
"No less than 23 bills have passed the House, every one of which has the potential to increase prison populations," Wetzel said, according to the Patriot-News. He lamented that legislators have done little to counteract 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."
According to the Patriot-News, Wetzel suggested that corrections policy 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 or she exits the criminal justice system.
"You can't say that about some of our current laws and corrections policies," Wetzel said.
The route to meaningful reform begins with a comprehensive review of the entire system—from charging to sentencing to parole to the ongoing collateral consequences of crime. Anything short of that is political expedience. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," is out this summer. Reach him at and follow him on Twitter @MatthewTMangino.

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Pennsylvania Improving Entertainment Options for Prison Inmates

Going to prison is never going to be the best way to stay current with new technology – unless you’re really into security innovation, reported the Harrisburg Patriot-News.
But the Pennsylvania Department of Corrections is putting final touches now on a pilot program that could soon give its inmates the chance to buy a customized electronic tablet through the prison’s commissary system.
Once operational, the tablets would permit inmates to download music, receive and send emails, and place orders for goods from the prison commissary.
“They are not iPads as you would know them,” Corrections Secretary John Wetzel said.
That’s because, he explained, the new tablets would not permit general Internet access.
But inmates would, for a fee, be able to use them to plug into a central kiosk through which they could download incoming emails or buy music from a vast pre-screened list, and then read or listen at their leisure.
Wetzel and Corrections Executive Deputy Secretary Shirley Moore Smeal said if the program works, they see it as having a couple of benefits:
• Improving entertainment options for inmates in their down time.
• Enhancing security.
On the latter point, where radios are available to inmates for purchase now, they have been used to store contraband, and component parts have been transformed into weapons.
“What we’re trying to do is replace radios, because radios have parts on them that become weapons. And also, we have some individual who are able to rewire their radios to… intercept our radio signals,” Wetzel told senators.
“These tablets are kind of the new wave… Much more secure.”

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