GateHouse: Supreme Court to decide police access to cellphone data

Matthew T. Mangino
GateHouse News Service
May 30, 2014
The Fourth Amendment to the U.S. Constitution protects individuals from unlawful searches and seizures. When the Fourth Amendment was drafted, colonial rule was seared in the consciousness of the new nation.

The imperialist British government often used Writs of Assitance. Their use was the driving force behind the Fourth Amendment. The writ permitted British officials unlimited access to search homes without regard to whether the occupant committed a crime.

The contempt of drafters is palpable in the language of the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Today, the idea of the police barging into a house without a warrant and rifling through a person’s bank account, correspondence, photographs and personal effects is repugnant.

However, the U.S. Supreme is considering making an almost identical invasion constitutional, and there is no hue and cry — there’s barely a whimper.

The U.S. Supreme Court is considering whether police need a warrant to search the contents of a cellphone seized when making an arrest. The court is considering two cases. One case out of Massachusetts deals with an old-style flip phone, the other a California case deals with a smartphone.

If you carry a cellphone you should be concerned. And you probably do — a Pew Research Center survey taken last January found that 9 out of 10 Americans carry a cellphone. Fifty-eight percent of Americans carry the more sophisticated smartphone. An estimated 6 billion of the world’s 7 billion people have access to the mobile devices, according to CNN.

“Technology now makes it possible for individuals to carry huge quantities of information with them every day,” wrote Yale Law School professor Eugene Fidell and attorney Andrew Pincus in a brief they filed with the Supreme Court.

A 16-gigabyte phone — the smallest available storage capacity for the Apple iPhone 5 — “can store 800 million words of text — well over a football field’s length of books or 16 flat-bed truckloads of paper,” reported Fortune magazine.

The law currently provides that an arresting officer may search an arrestee to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Included in virtually every search is a cellphone.

The Obama administration and the California attorney general’s office urged the court to endorse a rule that would allow police to search any cellphone being carried by anyone arrested for any reason. Sixteen states’ attorneys general asked the Supreme Court to equate the privacy of handheld data with that of “information on paper or in other documentary forms.”

Critics say cellphones, particularly smartphones, and other electronic devices increasingly hold, or provide access to, the most private details of a person’s life — including personal photos, videos, messages, names of friends and associates, banking and financial information, and medical records, among others, reported the Christian Science Monitor.

Justice Antonin Scalia did not seem deeply troubled by the prospect of a cellphone search during an arrest. However, he suggested that it should be limited to evidence of the crime for which the individual was arrested.

The most vocal defender of smartphone privacy was Justice Elena Kagan, who suggested a person can be arrested for driving without a seat belt, “and the police could take that phone and could look at every single email that person has written, including work emails, including emails to family members, very intimate communications, could look at all that person’s bank records, could look at all that person’s medical data, could look at that person’s calendar, could look at that person’s GPS and find out every place that person had been recently because that person was arrested for driving without a seat belt.”

What was once stored away in one’s home is carried around in a cellphone. Should the police have unfettered access to that information?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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The Cautionary Instruction: The Eighth Amendment — a matter of human dignity

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 30, 2014
This week the U.S. Supreme Court struck down Florida’s strict IQ cutoff for determining intellectual disability and in turn eligibility for the death penalty.
In a 5-4 ruling in Hall v. Florida the court concluded that Florida’s rigid IQ threshold of 70 “disregards established medical practice” and creates the “unacceptable risk” that an inmate with intellectual disabilities might be executed, in violation of the Constitution.
“Our society does not consider this strict cutoff as proper or humane,” Justice Anthony Kennedy wrote.
“No legitimate penological purpose is served by executing a person with intellectual disability,” Kennedy wrote. “To impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.”
It is interesting that Kennedy would refer to the petitioner’s inherent right of “dignity.” The term is not frequently used in American jurisprudence and the term is even more difficult to find in Supreme Court opinions.

In fact, in Atkins v. Virginia the decision that banned the death penalty for the intellectually disabled, the only reference to dignity is the reference to a passage in Chief Justice Earl Warren’s 1958 opinion in Trop v. Dulles, “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”
In “Dignity Rights: Courts, Constitutions, and the Worth of the Human Person,” Erin Daly, a professor at Widener University Law School, wrote that the U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent, Justice Frank Murphy wrote, “The right was his … because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”
In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles. The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”
The reason the Supreme Court was forced to entertain another case dealing with intellectual disability resulted from the Court’s failure to outline a method for determining intellectual disability in the Court’s 2002 decision in Atkins. In Atkins the court left it to the states to define the parameters of who qualifies as mentally disabled for purpose of capital punishment.
Ultimately the question is whether a defendant’s mental deficiency is so significant that he is unable to appreciate the wrongfulness of his conduct. If so, his execution would violate the Eighth Amendment ban on cruel and unusual punishment and violate his inherent dignity as a human being.

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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 www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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Third Circuit considers GPS and 'good faith' exception

Evidence police collected from a GPS device they attached to a suspect's vehicle without a warrant should be admissable because the officers relied in good faith on legal precedent at the time, the U.S. Attorney's Office argued in front of an en banc panel of the Third Circuit, reported The Legal Intelligencer.
Both the trial judge and the three-judge panel of the U.S. Court of Appeals for the Third Circuit that initially heard arguments had decided that the evidence should be suppressed, although the decision of the panel split on that issue. "You're asking for an extension of the good-faith doctrine," Judge D. Brooks Smith said to Robert A. Zauzmer, the assistant U.S. attorney who was arguing the case. Smith sat on the original appeals court panel and joined the majority opinion to suppress the evidence.
"We're asking for what I've described as a very, very slight extension of Davis," said Zauzmer, who was accompanied by U.S. Attorney Zane Memeger of the Eastern District of Pennsylvania. Zauzmer was referring to the U.S. Supreme Court's 2011 opinion in Davis v. United States, in which the high court ruled that the fruits of searches that were conducted in good faith with reasonable reliance on available legal precedent at the time of the search can be used in court. Chief Judge Theodore McKee commended Zauzmer for his candor, saying, "You conceded you were advocating a slight extension of Davis."
However, Catherine Crump, of the American Civil Liberties Union, argued that Davis wouldn't apply to this case. Crump is representing the three brothers who allegedly burglarized area Rite Aid pharmacies in 2010 and were tracked by FBI agents. "Davis does not control the result here. The Supreme Court specifically limited Davis to situations where there is binding precedent on point," according to the ACLU.
There was no such precedent when the FBI attached a GPS tracker to the vehicle used by the Katzin brothers, the ACLU argued. The year after the U.S. Supreme Court decided Davis, it decided United States v. Jones, in which it determined that the use of a GPS tracker would constitute a search under the Fourth Amendment. It didn't, however, declare whether or not a warrant would be required for the use of a GPS.
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Judge imposes moratorium on death penalty in Ohio

U.S. judge Gregory Frost ordered a 2 1/2-month moratorium on executions in Ohio to allow time for arguments over the state's new lethal injection procedures, which have drawn intense scrutiny, reported The Associated Press.
Lethal injection -- the primary means of execution in all 32 states with capital punishment -- is under fire as never before because of botched executions, drug shortages caused by a European-led boycott, and a flurry of lawsuits over the new chemicals that states are using instead.
While public support for the death penalty remains strong in the U.S., concerns have been renewed by the botched execution of an Oklahoma inmate and an incident in January when an Ohio inmate snorted and gasped during the 26 minutes it took him to die.
The Ohio order delays executions scheduled for July and August while attorneys prepare filings about the state's decision to boost the dosages of its lethal injection drugs.
The one-page order by Columbus Judge Frost affects the state's latest death penalty policy change, which was announced in late April.
Ohio uses two drugs injected simultaneously in executions. The policy change considerably increases the amount of the sedative and raises the amount of the painkiller.
The procedure update followed the Jan. 16 execution of Dennis McGuire, the inmate who took 26 minutes to die. The state said in April it was making the changes "to allay any remaining concerns" after McGuire's execution, though it stood by the way McGuire was put to death.
The Department of Rehabilitation and Correction said its review of McGuire's execution determined he was asleep and unconscious a few minutes after the drugs were administered and his execution was conducted in a constitutional manner.
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Supreme Court rejects Florida's bright-line mental disability test

A Florida law that sets an IQ test score of 70 as a minimum in determining who's eligible for the death penalty is unconstitutional, the Supreme Court says. In a reversal of a state court's decision, the justices say Florida's rule ignores norms in the psychiatric profession, reported NPR. The opinion also cites the Eighth Amendment, which bars cruel and unusual punishment.
"Florida set a hard-line rule that the death penalty could not be imposed on convicted felons whose IQ is 70 or below," NPR's Washington desk says in its summary of the case.
The plaintiff, Florida death row inmate Freddie Lee Hall, was found to have an IQ score of 71. Arguing before the court in March, his attorney noted that all such tests have a standard risk of error.
The case centered on the question of whether absolute rules such as the one in Florida give enough protection that was established by an earlier case, Atkins v. Virginia. In that case, the justices said it was unconstitutional to execute people who are mentally disabled, but they left open the question of how to determine that condition.
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Obama administration to disclose universities with inadequate sex assault policies

The Obama administration’s decision to call public attention to universities under investigation over their sexual assault policies could be a major turning point in the fight over government transparency, prompting similar openness about probes into companies and other institutions facing federal inquiries on issues ranging from civil rights to the environment, reported Politico.
The focus remains on investigating the crimes themselves, and the debate continues about whether colleges are doing enough to fight rape and sexual assault on campuses. But for transparency advocates, the decision was a welcome surprise to those pushing for years to see President Barack Obama do more to fulfill his promise to bring unprecedented openness to the federal government.
The administration clearly hopes that schools’ fear of being put on the investigation list will encourage them to do more to prevent and respond to sexual assault. “Disclosure changes behavior. We’ve learned that time after time,” he said.
Title IX is a federal anti-discrimination law that dates to 1972 and prohibits schools receiving federal funds from discriminating on the basis of sex. Universities found to have violated the law can lose funding from the U.S. government.
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New execution method on the horizon--nitrogen asphyxiation

This new method of execution being proposed, it is known as nitrogen asphyxiation, it seals the condemned in an airtight chamber pumped full of nitrogen gas, causing death by a lack of oxygen, according to Slate. Nitrogen gas has yet to be put to the test as a method of capital punishment—no country currently uses it for state-sanctioned executions. But people do die accidentally of nitrogen asphyxiation, and usually never know what hit them. (It’s even possible that death by nitrogen gas is mildly euphoric. Deep-sea divers exposed to an excess of nitrogen develop a narcosis, colorfully known as “raptures of the deep,” similar to drunkenness or nitrous oxide inhalation.)
Proponents say that death by nitrogen, by contrast, adheres to the constitutional prohibition against cruel and unusual punishment. The condemned prisoner would detect no abnormal sensation breathing the odorless, tasteless gas, and would not undergo the painful experience of suffocation, which is caused by a buildup of carbon dioxide in the bloodstream, not by lack of oxygen.

In late April, Louisiana Department of Corrections Secretary James LeBlanc suggested to a state legislative committee that Louisiana should look into using nitrogen gas as a new method of execution, since lethal injection has become so contentious. “It’s become almost impossible to execute someone,” LeBlanc complained to the Louisiana House Administration of Criminal Justice Committee.

“Nitrogen is the big thing,” LeBlanc told the committee. “It’s a painless way to go. But more time needs to be spent [studying] that.” The committee instructed LeBlanc to do some research on the subject and report back. In the meantime, Louisiana has delayed a pending execution. “I’m not taking anything off the table,” says state Rep. Joseph P. Lopinto III, chairman of the state’s Administration of Criminal Justice Committee. “If someone says nitrogen gas is the way to go, then we can debate that and do it if need be.”
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Tennessee brings back the electric chair

Tennessee has decided how it will respond to a nationwide scarcity of lethal injection drugs for death-row inmates: with the electric chair. Gov. Bill Haslam signed a bill into law last week allowing the state to electrocute death row inmates in the event prisons are unable to obtain the drugs, which have become more and more scarce following a European-led boycott of drug sales for executions.
Tennessee lawmakers overwhelmingly passed the electric chair legislation in April, with the Senate voting 23-3 and the House 68-13 in favor of the bill.
Richard Dieter, the executive director of the Death Penalty Information Center, said Tennessee is the first state to enact a law to reintroduce the electric chair without giving prisoners an option.
"There are states that allow inmates to choose, but it is a very different matter for a state to impose a method like electrocution," he said. "No other state has gone so far."
Dieter said he expects legal challenges to arise if the state decides to go through with an electrocution, both on the grounds of whether the state could prove that lethal injection drugs were not obtainable and constitutional protections against cruel and unusual punishment.
The Supreme Court has never declared a method of execution unconstitutional on the grounds that it is cruel and unusual. It upheld the firing squad in 1879, the electric chair in 1890 and lethal injection in 2008.
The court made it clear over the years that the Eighth Amendment prohibits inflicting pain merely to torture or punish an inmate, drawing a distinction between a method like electrocution and old European practices such as drawing and quartering. The Constitution prohibits "unnecessary and wanton infliction of pain," the court said in 1976.
Nonetheless, U.S. states and the federal government have updated execution methods several times in efforts to find more humane ways to put condemned criminals to death.
First used by New York State in 1890, the electric chair was employed throughout the 20th century to execute hundreds and is still an option in eight states. Since 1976, 158 inmates have been executed by electrocution. It was considered humane when it was first introduced but has resulted in many horrific executions over the years.
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GateHouse: The firing squad is still ‘quick, effective and affordable’

Matthew T. Mangino
GateHouse News Service
May 22, 2014

In early April, Rodger Jones of the Dallas Morning News did a Q&A with New York Law School professor Robert Blecker regarding the death penalty. When asked about lethal injection Blecker, a staunch supporter of capital punishment, replied, “I once witnessed an execution … I too, oppose lethal injection, not because it possibly causes pain, but because it certainly causes confusion—conflating medicine with punishment.” When asked what method of execution he would suggest, his answer was, “I prefer the firing squad.”

Within weeks of that interview, Oklahoma was set to execute two men by lethal injection within two hours of each other. However, the first execution was halted when the prisoner, Clayton D. Lockett, began to twitch and gasp after he had already been declared unconscious, and called out “man” and “something’s wrong,” according to the New York Times. He died of a heart attack an hour later.

In the wake of Oklahoma’s botched execution, Blecker’s preferred method of execution is gaining some traction.

A Utah state representative, Paul Ray, recently told the Christian Science Monitor that he’ll introduce legislation next year to make the firing squad the default method of execution in his state. Similar bills stalled in Wyoming and Missouri earlier this year, but the Utah bill might have a chance. After all, Utah is the only state to use a firing squad in the modern era of the death penalty.

In my book, “The Executioner’s Toll, 2010,” I examined the last execution by firing squad in the United States. Ronnie Lee Gardner died strapped in a chair, a hood over his head and a white target over his heart at the Utah State Prison in Draper. It was June 18, 2010, and five rifles — four loaded with a shell and one with a blank — were fired at his chest.

Gardner had asked to be executed by firing squad. At the time, Idaho, Utah and Oklahoma permitted offenders to request execution by firing squad.

Gardner was the third man to die by firing squad in Utah since the U.S. Supreme Court reauthorized the death penalty. Unlike Gary Gilmore, who infamously uttered the last words “Let’s do it” on January17, 1977, Gardner could muster few words before a black hood was fastened over his head. Asked if he had anything to say during the two minutes afforded him, Gardner said simply, “I do not, no.”

Gardner had fasted for 48 hours before his execution. He drank only vitamin water and soft drinks. Gardner ate his last meal two nights before his execution—a feast of steak, lobster tail, apple pie, vanilla ice cream and a 7UP.

The five executioners, certified police officers who volunteered for the task and remained anonymous, stood about 25 feet away, behind a wall cut with small opening, and each was armed with a .30-caliber Winchester rifle. Sandbags stacked behind Gardner’s chair kept the bullets from ricocheting around the execution chamber, reported the Huffington Post.

Deborah W. Denno, a law professor at Fordham University and an expert on the death penalty told the New York Times the most humane way to carry out the death penalty is through the use of a firing squad.

Denno said the firing squad is quick, effective and affordable. “It’s the most humane procedure,” Denno said. “It’s only because of this Wild West notion that people are against it.”

Maybe quick and effective is not always the goal. Austin Sarat recently wrote in the Boston Globe about the Florida Attorney General who — in 1997 after a botched electric chair execution caused the inmate to catch on a fire — warned: “People who wish to commit murder better not be doing it in the state of Florida, because we may have a problem with our electric chair.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter @MatthewTMangino.
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The Cautionary Instruction: Study links domestic violence arrest policies to premature death

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 23, 2014
A study following up on a 1980s report about mandatory domestic violence arrest policies in Milwaukee was the centerpiece of this week’s annual Jerry Lee Symposium on Evidence-Based Crime Policy in Washington, D.C.
The symposium is named for Jerry Lee a Philadelphia radio station owner, and native of New Castle, Pennsylvania, who has funded criminology research at the University of Pennsylvania and Cambridge University in England.
The study, Increased death rates of domestic violence victims from arresting vs. warning suspects in the Milwaukee Domestic Violence Experiment, found increased death rates among victims when suspects were arrested, rather than merely warned, by police.
"The foundational question being begged by this research is an important and understudied one: Is the criminal justice system the best societal response to non-felonious domestic assault?" Milwaukee Police Chief Edward Flynn asked when the report was released.
Researchers highlighted the findings that victims were 64 percent more likely to have died of all causes, such as heart disease, cancer or other illness, if their partner was arrested rather than warned, and noted that among African-American victims, arrest increased early mortality by 98 percent while white victims saw mortality increased from arrest by 9 percent.
The study was a follow-up to the Milwaukee Domestic Violence Experiment from 1987-1989 and undertaken by the same primary researcher, Lawrence W. Sherman, a University of Maryland professor and director of Cambridge University's Police Executive Program. Sherman was formerly of the University of Pennsylvania, where I had the chance to observe his research first-hand as a student in Penn’s criminology program.
At this week's conference, Sherman contended that "criminal penalties have enormous side effects. They do not always deter crime, and they may increase crime." He went on to say, "We should get away from a one-size-fits-all policy."
Flynn and other speakers said that more research is needed to provide law enforcers with better guidance on the effectiveness of arrests versus other tactics, such as referring alleged abusers to social services, reported The Crime Report. He noted that of 81 domestic violence homicides in Milwaukee in the last eight years, suspects in 61 of them had prior arrest records.
Flynn refrained from concluding that the arrests somehow provoked the killings and should not have been made.
Previous studies have shown post-traumatic stress symptoms (PTSS) to be prevalent in victims of domestic violence, and that low but chronic PTSS has been linked to premature death from coronary heart disease and other health problems.
“The impact of seeing a partner arrested could create a traumatic event for the victim, one that raises their risk of death. An arrest may cause more trauma in concentrated black poverty areas than in white working-class neighborhoods, for reasons not yet understood,” concluded the report.
The exact cause of the surprising results remains a “medical mystery,” says Professor Sherman.

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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 www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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Automobile 'secret compartments' may soon be unlawful in PA

The Pennsylvania House Judiciary Committee recently unanimously approved legislation making it a crime to possess a automobile with “secret compartments.” If the bill becomes law, anyone caught with such compartments could be charged with a first-degree misdemeanor and have their vehicle seized by police — even if the compartments hold nothing but air, reported the Pennsylvania Independent.
A conviction would carry up to five years in prison and a $10,000 fine.
State Rep. Kate Harper, R-Montgomery, the bill’s sponsor, said law enforcement asked her to introduce the bill. Police are concerned about vehicles that pass through Pennsylvania on a well-known smuggling route between New York and Florida.
Guns, drugs and even people can be smuggled inside those secret compartments, she said.
If police happen to catch a smuggler with illicit goods, they don’t need any additional laws to arrest the suspect. But if the bill passes, law enforcement will have another way to stop the suspected smugglers — even if they aren’t carrying anything, Harper said.
“The objective is to get those cars and trucks off the road, so if you’re using the same truck to drive back and forth between Florida and New York and we catch you doing it, then we can get it off the road,” Harper said this week.
To find an example of how that law works in practice, look no further than Pennsylvania’s neighbor to the west.
Last year, Ohio made “secret compartments” illegal. The Ohio law, like the proposed bill in Pennsylvania, specifies the compartment must be “used or intended to be used” for the concealment or transportation of illegal substances.
Harper says she only wants to target those who are using the compartments for criminal behavior. The bill was amended in committee to require law enforcement to prove a compartment exists with the intent to be used for criminal activity before a vehicle can be taken.
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Supreme Court stops Missouri execution: Inmate too sick to die

U.S. Supreme Court Justice Samuel Alito issued an order late halting the execution of Missouri inmate Russell Bucklew about an hour before he was set to die by lethal injection this week, reported the Washington Post.
The action most likely means the full Supreme Court will review the order and decide whether or not to hear the merits of Bucklew’s challenge to his execution.
Bucklew, 46, reportedly suffers from a congenital condition that has weakened and malformed his blood vessels. He has tumors growing in his nose and throat, he bleeds from his eyes and ears and he has constant pain in his face that requires pain medicine every few hours. He told the Associated Press that, because of his condition, he was scared of what might happen.
Attorneys for Bucklew, a convicted killer, had asked the courts for a stay of execution owing to his medical condition, which they said would make it more likely he would suffer a prolonged, painful death during the execution.
Alito, who handles emergency matters for Missouri and other states covered by the 8th U.S. Circuit Court of Appeals, didn’t explain why he issued the order suspending Bucklew’s execution. But Missouri Attorney General Chris Koster issued a statement saying his office understands the full Supreme Court would consider Bucklew’s requests.
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FBI reviewing hair analysis, other types of forensic evidence called into question

A 2009 report by a committee of the National Academy of Sciences found “serious problems” with an assortment of methods routinely relied on by prosecutors and the police, reported the New York Times. They included fingerprinting, blood typing, weapons identification, shoe print comparisons, handwriting, bite marks and — yes — hair testing. DNA was the game changer. The 2009 report said that, with the exception of nuclear DNA analysis, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
The Times produced a video documentary on the discrediting forensic evidence with DNA.
The Innocence Project, a nonprofit group based in New York that uses DNA testing to help clear people wrongly convicted of crimes, has played a notable role in casting doubt on how forensic science is applied. Nationwide over the past 25 years, the project says, 316 people sent to prison have been exonerated through DNA analysis; 18 of them served time on death row. Hair comparisons performed by crime labs were factors in nearly one-fourth of those cases.
This is not to say that these techniques are no good at all. Indeed, the F.B.I. still affirms its faith in microscopic hair analysis, particularly as a first look. But it now tries to follow that procedure with a deeper and more certain investigation that uses DNA sampling, and it has done so for 18 years. Nonetheless, many forensic methods no longer come wrapped in the shield of invincibility they once widely enjoyed (especially among those prone to take TV shows literally). Fingerprints get blurred, bullets get smashed, blood specimens get tainted, hairs get mischaracterized.
In addition, the F.B.I. says it is examining more than 2,500 old cases that lacked DNA evidence, to determine if hair analysis, of itself, played a role in guilty verdicts. It is unclear how far along this review is.
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Retribution alone cannot drive the penal system

America's crime rate has dropped significantly. The FBI analyzed statistics of both violent crimes (like homicide and aggravated assault) and property crimes (like petty theft) over different periods in recent history. Between the '60s and '80s, there was a crime explosion for roughly 20 years. But between 1991 and 2001, crime rates dropped almost 30%, and between 2001 and 2012, those numbers fell another 22%, according to Policy Mic.

Since 1990, crime rates have dropped 45%. But the incarceration rate jumped a whopping 222% between 1980 and 2012. Those are the findings of a major policy memo by the Brookings Institute and the Hamilton Project underlining America's economic costs of crime and incarceration.

The U.S. imprisons more people than any other country in the world — currently, state, federal and private prisons hold a combined 2.4 million inmates. However, the correlation between dropping crime rates and increasing incarceration rates is utterly enigmatic.

Ronald S. Sullivan, a clinical professor of law and director of the Criminal Justice Institute at Harvard Law School, explains the penal imbalance best by telling the Harvard Crimson, "the theory would be ... with the high rates of incarceration that the crime rate would go down and then that would be followed by less incarceration because there just wouldn't be as many crimes committed. But those numbers have gone in opposite directions."

A $74 billion a year industry is locking up more and more people each year. "Academic evidence suggests that increases in crime cannot explain the growth in the incarceration rate since the 1980s," according to the Hamilton Project's policy memo. So if escalating crime rates are not the cause, what is?

Sullivan points out that over-policing poor, minority neighborhoods could be one of the causes. Oftentimes, lower class defendants lack the resources to get out on bail or hire good attorneys, and are therefore more likely to end up in the criminal justice system than people with the finances to defend themselves, reported Policy Mic.  

Another thought Sullivan points out is that when the American penal system was created, rehabilitation was at its core. That's no longer the case. Sullivan says that now, "We look at incapacitation, we look at deterrence, and we look at retribution as goals that the penal system serves." Ultimately, if the end goal isn't to healthily reintegrate prisoners into society, then the system is unmotivated to hand out short sentences, oftentimes leaving people imprisoned for far too long.

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Pennsylvania senators look to root out corruption

In light of the recent indictment of two Youngstown, Ohio elected officials, here is a story in the in The Pennsylvania Independent about two Pennsylvania state senators who are seeking to revived a call to create an independent agency to root out corruption.
State Sens. John Yudichak, D-Luzerne, and Ted Erickson, R-Delaware, plan to re-introduce legislation to establish a public integrity commission to uncover and investigate public corruption in state and local government.
“It is the hope that this new, empowered agency would take Pennsylvania out from under the dark cloud of suspicion hovering over many of our governmental institutions and into the light of good, ethical government practices,” the senators wrote in memo seeking support for the legislation. “Self-policing has not worked. It is time to form an independent state agency to root out and prevent public corruption.”
 Former officials with the Pennsylvania Liquor Control Board violated the state’s ethics law and a handful of lawmakers from Philadelphia were caught on tape accepting cash as part of a sting operation, Erickson said reformers have a catalyst for change.
“I think there simply wasn’t a lot of focus on it,” Erickson said of the previous push to create a public integrity commission. “And now, there is.”
In addition to taking an educational role, the commission would refer investigations to law enforcement for prosecution and would report on its work and the status of corruption investigations. It would also make recommendations for further reforms.
Part of the idea is to address corruption at more than just the personal level, Yudichak said.
“It’s too easy to dismiss corruption simply as an individual failing without looking at the institutional structures,” he said.
To “ensure that the commission has maximum ability to carry out investigations,” it would have subpoena power and could seek immunity orders to facilitate testimony in corruption probes, according to the memo.
That commission would replace the Ethics Commission, which enforces laws requiring financial disclosure and prohibiting public officials from conflicts of interest.
Fifteen possible commission members would be selected through a meritorious process, and the governor would choose seven, subject to Senate confirmation to foster a level of independence, Yudichak said. The past proposal indicated that $5 million for the commission could come from an existing surcharge on certain court filings, far more than the current $1.8 million Ethics Commission budget.
Barry Kauffman, executive director of Common Cause Pennsylvania, said his government reform group is supportive of the concept of a public integrity commission, but that the “devil is in the details.” The first step might simply be reforming the existing ethics law, he said.
There are loopholes that should be closed, such as banning public officials from sitting on corporate boards that are looking for government contracts, and requiring more detailed explanation of outside income, Kauffman said.
There’s also the issue of independence for a state agency charged with monitoring elected officials who control the ethics commission’s purse strings and appoint commission members. Floor leaders could bring their influence to bear if the commission cracks down on their party.
“A floor leader in the House or Senate certainly doesn’t want to see the guys on his team getting in trouble,” Kauffman said. “And if the ethics commission is doing its job well and perhaps routing out corrupt officials, that might put majorities at stake in close election years.”
Robert Caruso, executive director of the ethics commission, said he hadn’t heard of the renewed efforts to create a public integrity commission, but said his agency opposed the idea before.
Rather than creating a new state agency, Caruso believes some problems could be addressed by strengthening the state’s current ethics law to include in-laws in conflicts of interest issues and reduce the reporting limits on gifts from $250 to $50.
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GateHouse: The smarter sentencing act under attack

Matthew T. Mangino
GateHouse News Service
May 16, 2014
Earlier this year, bipartisan sentencing reform legislation, known as the Smarter Sentencing Act, made its way through the Judiciary Committee of the United States Senate. The act would reduce federal mandatory minimum sentences for drug offenses and expand the ability of judges to use their discretion when sentencing defendants.

The fight over mandatory minimums is far from over. Prominent criminal justice practitioners have lined up on both sides of the issue.

Attorney General Eric Holder told the U.S. House Judiciary Committee in April, “I’ve been proud to join many of you in supporting the bipartisan Smarter Sentencing Act, which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.”

A 2008 poll commissioned by Families Against Mandatory Minimums found that 78 percent of Americans feel the court is best qualified to determine sentences, not Congress. The poll found bipartisan support among registered voters on the issue of reducing mandatory minimums.

Even “tough on crime” conservatives have been clamoring for sentencing reform and fiscal responsibility when it comes to corrections spending. According to the conservative initiative, Right on Crime, state and federal spending on corrections has grown 400 percent over the past 20 years, from about $12 billion to about $60 billion. Corrections spending is currently among the fastest-growing line items in state budgets — 1 in 8 full-time state government employees works in corrections.

Conservative William J. Bennett, a former drug czar and President George H.W. Bush’s secretary of education, wrote a 2011 commentary for CNN titled, “Lock’em Up Not Always the Best Solution.” Bennett pointed out that Texas saved more than $1 billion in corrections costs, “proving ‘lock them up and throw away the key’ is not always the best solution.”

Just last month, The American Conservative argued, “Politics aside, sentencing reform is simply the right thing to do.”

Yet this week, a group of former leaders in the Department of Justice, the DEA and U.S. attorney’s offices, including William J. Bennett, urged Sens. Harry Reid and Mitch McConnell to derail the Smarter Sentencing Act.

“Many of us once served on the front lines of justice … [w]e believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety.”

Why the change of heart? There are more than just a few conservatives seeking to undermine the Smarter Sentencing Act.

The National Association of Assistant U.S. Attorneys took the rare step of opposing Attorney General Holder by releasing a letter in opposition to reform. “We do not join with those who regard our federal system of justice as ‘broken’ or in need of major reconstruction,” the organization said.

The director of the Drug Enforcement Administration, Michele Leonhart, slammed the Smarter Sentencing Act at a recent Senate Judiciary Committee hearing. “I can tell you that for me and for the agents that work for DEA, mandatory minimums have been very important to our investigations,” Leonhart said.

Leonhart has spent 33 years in the DEA. For decades, she has been a warrior in the war on drugs. It is tough to walk away from that fight. The truth is “tough” mandatory sentences have helped pushed federal prisons to nearly 140 percent of capacity resulting in scarce law enforcement resources being diverted to cover growing prison costs.

The federal Bureau of Prisons gets one out of every three dollars the Department of Justice’s spends. That means prosecutors, the FBI, DEA, ATF and other federal law enforcement agencies have to split the other two dollars.
It is time to pull the plug on draconian mandatory minimum sentences.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing,  You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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The Cautionary Instruction: Public defenders and prosecutors underpaid

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 16, 2014
The Massachusetts Bar Association, Commission on Criminal Justice Attorney Compensation found that Massachusetts ranks dead last in annual salaries paid to public defenders and that the county prosecutor is often the lowest-paid person in the courtroom, finishing behind custodial workers.
Martin W. Healy, chief legal counsel for the bar association told the Boston Globe “There is definitely a public safety aspect to all of it… [t]ax dollars are not being spent in a wise and appropriate fashion.”
The U.S. Supreme Court’s 1963 landmark decision, Gideon v. Wainwright, required states to provide lawyers for defendants, regardless of their ability to pay—a ruling that transformed the nation’s legal landscape. More than fifty years later, defender resources remain scarce and prosecutors have not fared much better.
Last year, after furloughing of 22 lawyers, a Detroit prosecutor said her office was stretched too thin to cover all traffic court and domestic violence cases.

Abe Krash, a Washington, D.C., lawyer who helped represented Gideon has pointed out, “In public defender offices, there are many extremely conscientious attorneys, but they are tremendously underfunded and overburdened.”
A 2011 report by the Justice Policy Institute found that most of the country’s public defender offices lacked enough attorneys to meet nationally established caseload guidelines. Also, the report found that most defender offices did not have sufficient support staff, such as investigators and paralegals.
“When defenders do not have access to sufficient resources, they may be unable to interview key witnesses, collect or test physical evidence, or generally prepare and provide quality defense for their client, resulting in poorer outcomes for the client,” the report concluded.
An exhaustive new analysis of defender workloads in Missouri, sponsored by the American Bar Association, described by legal experts as the most detailed and credible of its kind, has provided numbers to back up the claim that defenders face overwhelming workloads.
For the study, carried out in 2013 by an accounting firm, the 375 lawyers in the Missouri State Public Defender System 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, including duties such as consulting with the defendant, investigating evidence, conducting depositions and researching legal options, as well as their time in court.
“We found we are worse off than we thought we were,” Cathy R. Kelly, director of the state public defender system told the New York Times.
The panel found, on average, that 47 hours were needed to prepare for serious felonies. Missouri defenders spent about nine hours preparing those cases. For misdemeanors, defenders needed 12 hours. However, they spent only about two hours per case.

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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 www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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10 times more people with mental illness in prisons than hospitals

More than 350,000 mentally ill people are behind bars. That’s 10 times more people with mental illness in jail or prison than in state-funded psychiatric beds, which are often the only ones accessible to indigent and uninsured patients, according to an April report from the Treatment Advocacy Center.
“We have replaced the hospital bed with the jail cell, the homeless shelter and the coffin,” Rep. Tim Murphy, R-Pa., a child psychologist leading an effort to remodel the mental health system told the USA Today. “How is that compassionate?”
States have been reducing hospital beds for decades, because of insurance pressures as well as a desire to provide more care outside institutions. Tight budgets during the recession forced some of the most devastating cuts in recent memory, says Robert Glover, executive director of the National Association of State Mental Health Program Directors.
States cut $5 billion in mental health services from 2009 to 2012. In the same period, the country eliminated at least 4,500 public psychiatric hospital beds — nearly 10 percent of the total supply, he says.
Though not all people with mental illness need to be hospitalized, doctors say there aren't enough beds for those in crisis, who need the equivalent of a psychiatric intensive care unit.
In 1995, there were 7.9 million seriously mentally ill adults and 160,645 available hospital beds for those patients. In 2012, there were 108,317 beds for 9.6 million people.
The number of beds available to patients who need intense psychiatric care for short periods fell 32.5 percent since 1995, according to the American Hospital Association.

Ohio AG Indicts Youngstown Officials

The Cuyahoga County Prosecutor’s Office announced a grand jury indictment of Youngstown Mayor John McNally and Mahoning County Auditor Michael Sciortino Wednesday on a first-degree felony charge of engaging in a pattern of corrupt activity in connection with the purchase of Oakhill Renaissance Place, reported WKBN-TV.
The grand jury also indicted Martin Yavorcik, a Youngstown attorney who ran against current Mahoning County Prosecutor Paul Gains in 2008, on the same first-degree felony charge of engaging in a pattern of corrupt activity.
A Mahoning County grand jury indicted the pair on corruption charges in the Oakhill case during the summer of 2010. Those charges were later dismissed.
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Cities Rethink Housing Ban for Former Offenders

Many cities are reevaluating the ban on public housing for former inmates, says the Wall Street Journal. As crime rates have declined and many of the most notorious housing projects were torn down, there's an increased focus on the buildup of prison populations and how the barriers ex-offenders face on release may feed high rates of unemployment, homelessness and recidivism.
Housing advocates increasingly are looking at the connections between homelessness and incarceration. New York corrections data show 22 percent of inmates from New York City paroled last year from state prison listed a homeless shelter as their address.
Encouraged by federal housing officials, cities are starting to rethink the restrictions. The New York City and Los Angeles housing authorities are testing programs to allow certain inmates to move in with family in public housing upon release, while Chicago is planning a similar trial. The New Orleans Housing Authority is going further, with a policy that states a criminal background won't automatically result in rejection.
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Ohio's prison population continues to climb,budget at $3.14 billion

In 1974, there were 8,516 inmates in Ohio state prisons. Forty years later, the system is nearly six times as large, packed with 50,639 offenders, according to the Columbus Dispatch.
One of every 175 adult Ohioans is housed, fed and receives medical care at taxpayer expense in a state prison. The latest two-year budget allocated $3.14 billion for the prison system.
The latest projections suggest the inmate population in 27 prisons (including two private facilities) will hit 52,000 in two years, and 53,484 in five. Prisons already are bulging with 30 percent more prisoners than they were designed to hold.
Here’s the math behind the numbers: Each prisoner costs Ohio taxpayers $22,836 per year, so adding 100 prisoners, for example, costs nearly $2.3 million.
A report by the Correctional Institution Inspection Committee, a legislative corrections watchdog, last August listed five contributing reasons why the prison population has gone up: a very small increase in violent crime, longer sentences for higher-level felonies, dramatically fewer prison releases (a 24.3 percent drop in five years), legislation increasing penalties for specific crimes, and adverse court decisions.
Another factor may trump all the others: a flood of heroin cases. Men coming into prison still outnumber women more than 4 to 1, but that gap is shrinking as more women are incarcerated for nonviolent drug crimes.
The inmate-to-guard ratio, now about 7.4-to-1, has risen because of the increase in the prison population, coupled with decreases in the number of front-line officers. Serious violent assaults on officers rose to a seven-year high as a result of overcrowding and the staffing shortage.
Ohio is not alone in having so many of its citizens locked up. The National Research Council issued a report last week saying incarceration in state and federal prisons rose from 200,000 in 1973 to 1.5 million in 2009. There are 2.2 million adults in U.S. prisons and jails — about 1 in 100 adults — more than in any other country. The U.S. has roughly 25 percent of the world’s inmates, but just 5 percent of the population.
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Connecticut to provide mental health training to all police officers

Late week, Connecticut lawmakers passed a bill ensuring that all police in the state can get some kind of mental health crisis intervention training, reported NPR.
Crisis Intervention Team training includes workshops touching on everything from making suicide assessments to talking to people on the autism spectrum. The training include forging partnerships with community mental health providers and understanding de-escalation techniques.
There are about 2,700 Crisis Intervention Teams nationwide—a fraction of the 18,000 state and local law enforcement jurisdictions across country.
"The characteristic of your work that sets you apart from every other professional is that you never know what you're walking into," Madelon Baranoski, of Yale School of Medicine's Law and Psychiatry division told NPR.. Baranoski's first goal is to give the officers she trains an understanding of various types of behavioral health issues. Psychotic illnesses, for instance, are the ones that make a person unable to tell the difference between thought and reality.
To illustrate, she confesses something many people feel when giving a public talk — she's nervous, and worried about how people will react. But she knows those are her thoughts, and no one else's.
"As long as I know I'm thinking it, I have a choice on how to change my behavior," Baranoski says. "But if I were mentally ill — particularly if I had a mental illness that interfered with what we call reality testing — I think, 'Because you're staring at me, you're thinking I'm stupid.' "
This training is an eye-opener for Fairfield, CT officer John McGrath. "You know, protocol for a police officer is always, 'Protect yourself,' " McGrath told NPR. "To be able to learn what they're thinking and what's going on in their mind, kind of gives you a better perspective of what's going on and what you're able to do to further protect yourself and to protect them."
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Florida legislature gives juveniles a chance at parole

 Florida lawmakers set out this session to help kids, reported WTLV-TV. The full legislature approved a measure which gives juveniles who get an extensive mandatory sentence a chance for parole:
-Someone convicted of murder would get a minimum 40 years to life sentence with a review of their case after 25 years.
-As an accessory to murder, they would get a 20 years to life minimum sentence with a review after 25 years.
-For other serious crimes, they get a review after 20 years, and then 30 years if not released the first time.
-All of them would be denied a review if they committed another serious felony.
The Department of Juvenile Justice has lobbied for other legislation they hope opens the door to help keep the youth from going behind bars.
"What you might have done when you were 14 years old is not necessarily anything that you would want to do when you're an adult," said Wansley Walters, Department of Juvenile Justice secretary.
A bill passed this session focuses on preventing kids from incarceration. " ... putting some additional accountability in place, but also putting in prevention," Walters said.
DJJ records show more than 83,000 kids were arrested in Florida in the last year with more than 26,000 being felonies.
Governor Rick Scott recently announced the youth arrest rate is the lowest it's been in 30 years.
Scott has not yet signed either bill.
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GateHouse: Scrapping college classes for inmates shortsighted

Matthew T. Mangino
GateHouse News Service
May 9, 2014
In February, New York Gov. Andrew M. Cuomo announced a new statewide initiative to give prison inmates the opportunity to earn a college degree through funding college classes in prisons across the state.

In a press release the governor’s office revealed that New York currently spends $60,000 per year to incarcerate each inmate, and approximately $3.6 billion each year in total prison costs. New York’s current recidivism rate is about 40 percent. With a paltry investment of $5,000 per inmate to provide one year of college education, New York could cut into the recidivism rate and reduce costs.

Cuomo told National Public Radio that providing taxpayer-funded college classes in New York’s prisons is a common-sense plan that will reduce the number of inmates who commit new crimes. “Forget nice; let’s talk about self-interest,” Cuomo suggested.

Great idea, right? Not so fast.

In 1971, there was a deadly riot at Attica Prison in New York. Forty-three people died. During the riot inmates made numerous demands, one of which was for better educational programs. As a result, college education programs were soon available to inmates across the country through federal Pell Grants.

Then crime rates began to soar. In 1990, the homicide rate was nearly eight times what it is today in New York City and everyone wanted to get tough on crime.

By 1994, President Bill Clinton pushed through a tough crime bill that dramatically increased penalties for offenders and eliminated all federally financed college education for prison inmates. Pell Grants for federal and state prisons inmates were abolished.

“There must be no doubt about whose side we’re on,” Clinton said at the time. “People who commit crimes should be caught, convicted and punished. This bill puts government on the side of those who abide by the law, not those who break it.”

According to NPR, Clinton’s act was a victory for the tough-on-crime movement, but many prison experts now say dismantling inmate education programs was misguided.

Critics pointed out that education greatly reduces recidivism; only one-tenth of 1 percent of the Pell Grant budget went to the education of prisoners. New York Times Magazine reported that Sen. Kay Bailey Hutchison, a Texas Republican, argued it was unfair for felons to benefit from Pell Grants when as many as 100,000 low-income students were denied them each year. She asked, “Why should prisoners be educated for nothing when so many honest folks failed to get a break?”

At the state capitol, lawmakers were outraged at Cuomo’s plan. Who cares if the plan could reduce crime and save taxpayers’ money. Some legislators started petitions to collect signatures from constituents who opposed the idea, including one with the title “Hell No to Attica University,” reported the New York Times.

The idea didn’t sit well with Washington politicians either. According to the Times, three Republican congressmen from the New York delegation introduced what they called the “Kids Before Cons Act,” which would prevent federal money from being used to pay for college classes for federal or state inmates.

The strenuous opposition continued even in the face of valid research that indicated receiving correctional education while incarcerated reduces recidivism rates. The Rand Corporation analyzed prison education programs and found that, on average, inmates who participated in correctional education programs were 43 percent less likely to recidivate than inmates who did not.

In the face of growing opposition, Cuomo withdrew the plan. Cutting recidivism rates nearly in half would mean fewer victims, fewer inmates in prison and a reduction in prison costs. Lawmakers turned their backs on this opportunity because it gives inmates an advantage over “honest folks.” But honest folks deserve better than shortsighted political pandering.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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The Cautionary Instruction: The Constitution Project recommends death penalty changes

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 9, 2014
Recently Oklahoma became the center of national attention because of the botched execution of Clayton Lockett. A minute-by-minute account of the lethal injection procedure released by the state's Department of Corrections suggested that Lockett was conscious for more than 30 minutes before state officials called off the execution. Lockett died of an apparent heart attack ten minutes later.
This week, a committee of the The Constitution Project (TCP), a Washington-based think tank, identified systemic flaws with the death penalty from arrest to execution and offered proposals to remedy them.
"From the moment of arrest to the moment of death, the criminal justice system faces vexing challenges in carrying out the ultimate punishment," said former Texas Governor Mark White, a co-chair of the committee.
White noted that the issuance of the new report could not be more timely. Just last week, President Barak Obama declared that America continues to have "significant problems" in the application of the death penalty. The president asked Attorney General Eric Holder to review how the death penalty is administered in this country, and report back to him.
Here are some of the recommendations made in the TCP report entitled Irreversible Error:

-- Lethal injection should consist of a deadly dose of a single anesthetic or barbiturate approved by the Food and Drug Administration, rather than a complex multi-drug cocktail.

-- Defendants should be entitled by statute to testing of forensic evidence if the results may be relevant to a claim of innocence or wrongful conviction.

-- Custodial interrogations of a suspect in a homicide case should be videotaped or digitally recorded whenever practical.

-- State and federal jurisdictions should adopt legislation to require that eyewitness identifications be conducted in accordance with best practices called for by prevailing scientific research.

-- There should be a rebuttable presumption that a person with an IQ below 75 is intellectually disabled and therefore ineligible for the death penalty.

-- A defendant who shows reckless indifference but does not personally kill, attempt to kill or intend that a killing take place should not be eligible for capital punishment.

-- Every jurisdiction that imposes capital punishment should create an independent authority to screen, appoint, train and supervise lawyers to represent defendants charged with a capital crime.

-- Judges should be prohibited from overriding a jury’s recommendation of a sentence of less than death.

-- All capital jurisdictions should establish charging review committees to review prosecutorial decisions in death-eligible cases.

The Committee’s members include both supporters and opponents of the death penalty. They are Democrats and Republicans, conservatives and liberals. They reflect the full range of criminal justice stakeholders, including those with experience as judges, prosecutors, defenders, law enforcement officers, policymakers, victim advocates and scholars.
The Committee has released two previous reports: Mandatory Justice: Eighteen Reforms to the Death Penalty, released in 2001 and an update, released in 2005, called Mandatory Justice: The Death Penalty Revisited.

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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 www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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PA Supreme Court: Telephones Exempt from Wiretap Act

 The Pennsylvania Supreme Court ruled recently that a state trooper did not violate the Wiretapping and Electronic Surveillance Control Act when he instructed an informant to set up a drug deal with the defendant on speakerphone and then eavesdropped on the conversation. The Court held that telephones are expressly exempt from the devices prohibited by the act  regardless of how they’re used, reported The Legal Intelligencer.
In Commonwealth v. Spence, the court unanimously reversed a state Superior Court decision that had affirmed a Delaware County trial judge’s ruling suppressing evidence obtained when the trooper listened in on the phone call.
The Wiretap Act bars the interception of “any wire, electronic or oral communication through the use of any electronic, mechanical or other device.”
The act does, however, provide an exception for communications intercepted by “any telephone ... furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business, or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business, or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.”
Justice Seamus P. McCaffery, writing for the high court said the statutory language of the act is clear that telephones are specifically excluded from the definition of “device” and that no further distinction is necessary.
“The cellphone over which the trooper heard the conversations between the arrestee and appellee clearly was a telephone furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business,” McCaffery said. “The language of the statute states that telephones are exempt from the definition of device; the language of the statute does not state that it is the use to which the telephone is being put which determines if it is considered a device.”
McCaffery was joined by Chief Justice Ronald D. Castille and Justices Thomas G. Saylor, J. Michael Eakin, Max Baer, Debra Todd and Correale F. Stevens.
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Constitution Project's Bipartisan Report Recommends End to Death Penalty "Cocktail"

A bipartisan panel of criminal justice system experts that conducted one of the most comprehensive reviews ever undertaken of the administration of the death penalty in the United States is recommending that states currently relying on lethal injection as a means of execution should use a deadly dose of a single anesthetic or barbiturate approved by the Food and Drug Administration, rather than a complex cocktail of drugs, the dosage and administration of which can easily be miscalculated.

 

That is only one of 39 recommendations offered to courts and policymakers in a major report released today by The Constitution Project's Death Penalty Committee.  The new report examines systemic flaws in the administration of the death penalty in America, from arrest to execution, and provides proposals on how to address them.

 

Last week, Oklahoma became the center of national attention because of the gruesome, botched execution by lethal injection of Clayton Lockett using an untested three drug cocktail obtained from undisclosed sources. A minute-by-minute account of the bungled procedure released by the state's Department of Corrections suggests Lockett was conscious and writhing in pain for more than 30 minutes before state officials called off the execution. Lockett died of an apparent heart attack ten minutes later. In January, a similar scene was reported in Ohio during the execution of Dennis McGuire.

 

However, problems with lethal injections are only a small part of what ails administration of capital punishment in America, said former Texas Governor Mark White, a co-chair of the committee.

 

"From the moment of arrest to the moment of death, the criminal justice system faces vexing challenges in carrying out the ultimate punishment," he said. White, a Democrat and death penalty supporter, oversaw 19 executions during his term as governor.

 

"Without substantial revisions -- not only to lethal injection, but across the board -- the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional," said committee member Mark Earley, who served as a Republican Attorney General of Virginia. During his tenure, the state carried out 36 executions.

 

White noted that the issuance of the new report could not be more timely. Just last week, President Obama declared that America continues to have "significant problems" in the application of the death penalty - from uneven application, to racial bias, to the actual innocence of some who have been sentenced to death. He asked Attorney General Holder to look at how the death penalty is administered in this country, and report back to him.

 

"Our comprehensive report represents a bipartisan consensus of essential reforms agreed to by both death penalty supporters and death penalty opponents, and provides a detailed roadmap for the Department of Justice of follow," White said.

 

"We hope these recommendations will be embraced by officials from both parties in Washington and around the country," Earley said. "There's nothing conservative about executing an innocent person, and leaders who support the death penalty bear the greatest responsibility in ensuring it is administered more fairly."

 

TCP's Death Penalty Committee is a group of criminal justice and other experts reflecting the full range of stakeholders - including those with experience as judges, prosecutors, defenders, law enforcement officers, policymakers, victim advocates and scholars - from across the ideological spectrum whose diverse views mirror the array of opinions people across America have about the death penalty.

 

The report looks at a number of death penalty issues in addition to lethal injection.  For instance, in 2002, the U.S. Supreme Court held that it is unconstitutional to execute a person with "mental retardation," now commonly referred to as intellectual disability.  But the court largely left the details of implementing the decision to the states, which has resulted in jurisdictions crafting procedural rules that do not ensure the intellectually disabled will not face execution. Some states adopted definitions of intellectual disability that are fundamentally at odds with clinical consensus and demand a burden of proof for establishing intellectual disability that is far too stringent and unyielding.

 

Now, more than a decade after its initial ruling, the Supreme Court is finally examining the constitutionality of how some states determine whether or not a defendant is intellectually disabled.  The court heard oral argument in Hall v. Florida in February and is expected to rule before June.  However most observers think it is unlikely that a new ruling will provide a detailed framework that states can follow to determine whether a defendant has an intellectual disability. The new report suggests that states adopt procedures that incorporate updated scientific knowledge and are designed to adjudicate fairly and accurately those defendants against which a state can constitutionally seek the death penalty.

 

The new report notes that, in 2009, the National Academy of Sciences said the criminal justice system "has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country."  In fact, more than 50 percent of the first 225 wrongful convictions overturned by DNA testing involved "junk science" relying on invalid or improper forensic evidence.

 

The TCP report recommends that Congress develop federal standards for accreditation of forensic labs, and recommends that only forensic examiners from labs that meet the accreditation standard be allowed to testify in capital cases.  Additionally, it proposes that, to avoid both intentional and unintentional bias in the processing of evidence, forensic labs should operate independently of law enforcement.

 

The report looks at a number of other issues surrounding administration of capital punishment, including the continued lack of safeguards to prevent executing innocent people, ensuring the 6th Amendment right to effective counsel for defendants facing the death penalty, changes in "felony murder" laws and improving the executive clemency process for death row inmates.

 

White said members of TCP's committee are devoted to transcending the political and philosophical divisions that have long plagued this country's debate about the death penalty, and to achieve consensus on meaningful measures to improve fairness in administering capital punishment and to reduce wrongful convictions and executions. The report passes no judgment about the use of the death penalty, but insists that, where states choose to use it, it must be administered in a more just manner.

 

Copies of the full report are available at http://www.constitutionproject.org.

PA Supreme Court: Police no longer need warrant for vehicle search

Police in Pennsylvania are no longer required to secure a warrant to search a vehicle, after a state Supreme Court ruling, reported the Johnstown Tribune-Democrat.
The 4-2 split decision aligns the state's vehicle search law with the federal counterpart, which justifies a search if the officer can demonstrate probable cause.
Chief Justice Ronald Castille, and Justices J. Michael Eakin, Seamus McCaffery and Thomas Saylor held the majority vote. The majority intention, according to McCaffery, is to standardize police search protocol, and cut back on evidence suppression motions and other litigation that muddle the judicial process.
"To provide greater uniformity in the assessment of individual cases and more consistency with regard to the admissibility of the fruits of vehicular searches based on probable cause, a more easily applied rule - such as that of the federal automobile exception - is called for," reads McCaffery's statement in the report.
The decision arose after an evidence suppression effort by Shiem Gary, who was stopped in 2010 by Philadelphia police on a potential window tint violation. The offier reported an odor of marijuana emanating from Gary's SUV and 2 pounds of the drug were found underneath the hood of the vehicle. Gary challenged the legitimacy of the search and won in the state Superior Court.
Justices Debra McCloskey Todd and Max Baer voted against.
"Our Court, by adopting the diluted federal automobile exception and sanctioning the search of Appellee's vehicle under Article 1, Section 8, based solely on the officer's determination of probable cause, has eviscerated the strong privacy protections that amendment affords the people of pennsylvania in their automobiles," reads Todd's dissenting opinon statement. "By so doing, our Court heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright."
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Parole Preparation: An Accessible Advantage for Inmates

Matthew T. Mangino
The Pennsylvania Law Weekly
May 6, 2014
Prison is a terrible and lonely place. As a former member of the Pennsylvania Board of Probation and Parole, I have visited many of Pennsylvania's prisons and have spent countless hours in correctional facilities interviewing inmates who are eligible for parole. Not everyone who is eligible for parole is granted parole.
There are many legitimate reasons to deny parole. Ongoing and persistent failure to conform conduct to prison rules; refusal or failure to complete rehabilitation programs; failure to take responsibility for one's criminal conduct; a pattern of past failures on parole; or a poor parole interview.
There is little an inmate can do to immediately correct a majority of the reasons for denying parole. Other than the passage of time along with a persistent effort to complete programming and a genuine commitment to planning a meaningful reintegration into society, inmates cannot easily undo a board action denying parole.
The passage of time means a longer period of incarceration. As a result, a two-to-four-year sentence becomes a three-to-four-year sentence. Is there anything an inmate can do? Prepare as thoroughly for a parole interview as a defendant prepares for trial. Seek the guidance of a skilled professional to assist in the preparation.
When I worked as a prosecutor, I was acutely aware of the time and effort that went into preparing for trial. Hours were spent preparing witnesses. Defense counsel spent an equal amount of time with witnesses and the defendant preparing for the hours, days or even weeks needed to try a case.
A half-century ago, the U.S. Supreme Court confirmed that the Sixth Amendment provided, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."
Fifty years later, the focus has evolved from merely the right to counsel to the right to effective representation. That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.
Why? A defendant's liberty is at stake.
The effective assistance of counsel can be the difference between two years in prison or five years; the difference between a felony conviction or the conviction of a misdemeanor. The effective assistance of counsel can be the difference between a favorable plea bargain or the wrath of a judge unimpressed with a defendant's presentation at sentencing.
In Pennsylvania, the assistance of counsel has not yet reached prospective parolees facing an interview with the board. Even though there are significant liberty issues at stake, offenders are not entitled to legal counsel.
In fact, the Commonwealth Court has said that the parole interview is not an adjudication. In Reider v. Pennsylvania Board of Probation and Parole, 514 A.2d 967 (1986), the court held that "parole, being a matter of administrative discretion and determination, is nonjudicial and not subject to judicial review under the law of Pennsylvania."
A defendant might have spent hours with his attorney preparing for sentencing in the hope of shaving a year or two off guidelines used for sentencing in Pennsylvania. The defendant may call witnesses and have letters of support to offer the judge.
The Pennsylvania sentencing guidelines permit a judge to impose a sentence outside the guidelines accompanied by a written explanation for the deviation. In Commonwealth v. Holiday, 954 A.2d 6 (2008), the Superior Court found that the sentencing guidelines have no binding effect and create no presumption in sentencing. They are advisory guideposts that must be respected and considered.
A lawyer can be the difference between an aggravated sentence or a mitigated sentence. A deviation from the guidelines can be compelling.
The board also utilizes guidelines in making parole decisions. Yet a parole interview, which could result in incarceration being extended a year or more, or even a board action requiring an inmate to serve the maximum sentence, is often conducted with little or no preparation and without the aid of legal counsel.
With an inmate's continued liberty at stake, shouldn't the system do more? There is no doubt that having counsel present during a parole interview would slow down an already overburdened system. However, encouraging legal counsel or parole counselors to assist inmates in their preparation for parole interviews could have an important impact on the process.
Getting inmates out of prison who deserve to be out could have an enormous impact on managing the size of Pennsylvania's prisons. As of Dec. 31, 2013, the Department of Corrections was housing 51,512 inmates in 26 state correctional institutions and community correction centers—109.7 percent of capacity.
During 2012 and 2013, the board cited the interview as one of the reasons for refusing parole in nearly one in three cases. As a result, the interview played a role in more than 5,500 refusals during that period.
Working with an inmate in preparation for a parole interview should include the following five-point plan:
• Enhance the inmate's ability to articulate the benefit from programming.
• Demonstrate thoughtful consideration of the crime and take responsibility.
• Convey empathy for the victims and society.
• Prepare and present a viable home plan.
• Assemble a written reentry plan and support group.
Each point of the plan should be examined and discussed in detail. This does not include the general advice about appearance, demeanor, eye contact and additional interview skills that any would-be job seekers should hone, let alone an inmate who could be left in prison for another year due to inadequate interviewing skills.
An inmate would benefit by a mock interview, sitting down face-to-face with someone familiar with the process who will take the inmate through the rigors of an interview.
Preparing an inmate for a parole interview is not coddling a criminal. Parole preparation is not providing an unfair advantage to a convict. Parole preparation is a smart way to get inmates out of prison who might otherwise stay behind bars because they cannot effectively articulate what they've learned and how they've changed. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, The Executioner's Toll, 2010, was recently released by McFarland & Co. Reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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The Vindicator: Ohio General Assembly must take action on revenge porn

Matthew T. Mangino
The Vindicator
May 4, 2014
Ohio legislators are looking the other way when it comes to “revenge porn.” That might be the right thing to do if you stumble upon revenge porn while surfing the Internet, but lawmakers refusing to take on the criminality of revenge porn is, at a minimum, irresponsible.
According to the National Conference of State Legislatures, revenge porn is the posting of nude or sexually explicit photographs or videos of people online without their consent, even if the photograph itself was taken with the victim’s consent.
Many relationships end in painful and ugly break ups. A spurned spouse, girlfriend or boyfriend may get revenge by sending photographs taken in private, intimate moments to websites set up specifically for these kinds of explicit photographs or videos.
In Ohio, hundreds of people are using the Internet to punish and humiliate ex-lovers and others by posting explicit photos and videos of them along with their names, addresses and other contact information, according to the Norwalk Reflector.
Silence not golden
Although the Ohio Legislature has been silent on the issue, the courts in Ohio have not. A judge recently imposed a $385,000 fine against Eric Chason and Kevin Bollaert, founders of the revenge porn website ugotposted.com, for broadcasting explicit images of an underage female. The plaintiff’s attorney told Forbes, “the message this $385,000 judgment sends to people who run revenge porn sites is unambiguous,” setting a strong legal precedent that will hopefully deter other would-be distributors.
The Pennsylvania Legislature has at least three pieces of legislation pending that deal with revenge porn. House Bill 1901 and Senate Bill 1167 provide for intimate partner harassment that is committed by exposing a photograph, film or videotape of an intimate partner who is nude or explicitly engaged in a sexual act. House Bill 2017 amends the definition of sexual offenses to include the unlawful dissemination of intimate images.
Last year, California Gov. Jerry Brown signed the first state law criminalizing revenge porn. Bollaert, one of the defendants in the Ohio lawsuit, has been arrested in California under the new statute.

Bills were introduced or are pending in at least 27 states, the District of Columbia and Puerto Rico in 2014. A revenge porn bill recently passed its first test in Colorado. The bipartisan proposal passed through the Colorado House Judiciary Committee by an 11-0 vote after members heard hours of testimony from anguished victims.
States acting
According to the National Conference of State Legislatures, laws have been enacted in Idaho, Utah, Virginia and Wisconsin, and bills in Georgia and Maryland have passed and are awaiting the governors’ signatures. In New Jersey, similar legislation was passed in the wake of the tragic suicide of 18-year-old Rutgers University student Tyler Clementi who was videotaped without his consent during a sexual encounter with another male.
A growing number of women in Ohio are pushing back and advocating for new legislation to criminalize the cowardly conduct of ex-intimate partners.
Teacher’s aide
A Cincinnati teacher’s aide resigned after semi-nude pictures of her surfaced on a website. “I think I stopped breathing for a while,” Hollie Toups told WBNS-TV in Columbus. “I was at a store one day and somebody was like, ‘Hey, you’re the girl from that website.’”
Toups’ joined with Holly Jacobs, a Florida Ph.D. candidate and victim of revenge porn, to start a support group for victims. Jacobs’ created “End Revenge Porn,” an online hub for victims and advocates to discuss revenge porn. According to the New York Observer, the site is one of the most prominent resource platforms for revenge porn victims.
Now is the time for Ohio lawmakers to step up and make revenge porn a crime and make the purveyors of explicit images of unsuspecting, nonconsenting victims pay the price civilly and criminally.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)
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