Sunday, August 31, 2014

Man charged with murder because police shot innocent bystander

The Orlando Police have charged Kody Roach with murder.  He was wielding a gun when police shot him and in the process the police shot and killed Maria Godinez an innocent bystander, reported the Orlando Sentinel.
Godinez, was struck by a stray shot from Officer Eduardo Sanguino's gun, and was fatally injured in the gunfire.
According to a newly released affidavit, in front of police Roach went for his waistband with his right hand, the affidavit says:
"In order to prevent an armed individual from causing harm to any members of the public or to any of the surrounding officers, Ofc. (sic) Sanguino discharges his firearm nine times striking Roach at least five times," it states.
As he fell, Roach dropped a .40 caliber Ruger handgun from his right hand, the affidavit states. Investigators would later determine the gun was not loaded, but had been reported stolen, and Roach was the prime suspect.
The Florida Department of Law Enforcement is investigating the shooting. Sanguino and Angel are on administrative leave, as is common in police-involved shootings.
Roach now faces a charge of first-degree felony murder. When he fired, Sanguino had probable cause to believe Roach was committing attempted armed burglary and armed trespassing, investigators concluded.
"As a result of Roach's actions, an individual was killed therefore probable cause exist to further charge Roach with first degree felony murder," the new arrest affidavit states.
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Saturday, August 30, 2014

GateHouse:Violent crime was rampant not too long ago

Matthew T. Mangino
GateHouse News Service
August 29, 2014

George Santayana, the Spanish-American philosopher and novelist, once said, “Those who cannot remember the past are condemned to repeat it.” As increasingly aggressive police tactics are exposed across the country, discontent grows.

Discontent shortens the memory. What was a crisis not so long ago seems less significant in the face of new concerns about heavy-handed, overreaching police conduct.

America would do well not to forget the early 1990s. In 1991, there were 9.8 murders per 100,000 people. In 2013, there was less than half that number, about 4.7 murders per 100,000. Nowhere has the decline in violent crime been so startling than in New York City. According to the New York Post, there were 2,272 victims of murder in the Big Apple in 1990 — in 2013, there were 335.

There are a number of theories why violent crime fell so dramatically. Some suggest that at the height of the surge in violent crime, crack cocaine dominated the streets. As crack fell out of vogue, violent crime fell as well.

There are those who suggest that higher incarceration rates, a robust economy, fewer young people, tougher sentencing laws even abortion have had an impact on violent crime rates. A factor that cannot be ignored is better policing. That includes training, tactics and firepower.

No one suggests that crime has plummeted due to the emergence of the “better angels of our nature.” Crime has been effectively suppressed by better, smarter — and at times a bit of heavy-handed — policing.

To forget the role policing has played in the decline of violent crime may condemn some neighborhoods and communities nationwide to a renewed cycle of violence and discord.

A sign that memories may be beginning to fade is evident when Missouri Sen. Claire McCaskill asked for a hearing looking into the militarization of local police departments, after recent tensions between law enforcement and protesters in Ferguson, Missouri.

“We need to demilitarize this situation — this kind of response by the police has become the problem instead of the solution,” McCaskill said.

President Barack Obama weighed in, “I think one of the great things about the United States has been our ability to maintain a distinction between our military and domestic law enforcement.”

In New York City, the new mayor, Bill de Blasio, promised to end the controversial law enforcement tactic known as “stop and frisk.” The tactic was being used to take guns off of the streets and to crack down on fugitives. Those opposed to stop and frisk suggested that the tactic disproportionately targeted African-American men. Finally, the courts restricted its use.

However, the picture is not so rosy without stop and frisk. According to the Wall Street Journal, from Jan. 1 to Aug. 10, there have been 702 shooting incidents, compared with 621 for the same period last year — a 13 percent increase. Shootings are at their highest levels since 2012, according to the New York Police Department.

Finding the appropriate balance for police between being too aggressive and not aggressive enough is never easy. To ignore the success of the past — the anguish and pain that has been averted as the result of less victimization and the billions of dollars saved as result of less crime — would be foolish.

Can police tactics be improved? Certainly. Should we revel in the success of lower crime rates and walk away from tactics that have made neighborhoods safer? Certainly not.

New York City’s streets are safer now than ever, in no small part because of aggressive, data-driven policing. To retreat from that posture is not good for New York City or the rest of America.

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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Friday, August 29, 2014

The Cautionary Instruction: This week marks the 90th anniversary of the Leopold and Loeb case

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 29, 2014
Ninety years ago this this week, Clarence Darrow gave a 12-hour summation in the sentencing hearing for Richard Loeb and Nathan Leopold.
The case known as Leopold and Loeb was heralded as the “trial of the century.” The case was not really a trial at all. Darrow had changed the young men’s pleas from not guilty to guilty and focused his efforts on preventing a death sentence.
On May 21, 1924, Leopold and Loeb rented a car and stocked it with tools to commit the “perfect crime.” Then they drove to a park near a local prep school to wait for the perfect victim. They found Bobby Franks.
The two wealthy University of Chicago students lured the 14-year-old Franks into the car. The two men murdered Franks for the thrill of the kill.
The next morning, a man on his way to work found Frank’s naked body, his face and genitals burned with acid, in a culvert in an isolated field outside of Chicago.
Darrow’s change of plea had turned the case on its head. Darrow, a graduate of Allegheny College in Meadville, Pennsylvania, needed only a reduction from death by hanging to life in prison to win the case.
Darrow’s summation has been characterized as one of the greatest orations ever presented in opposition to the death penalty.
Darrow asked the judge, “Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way.”
He continued to argue, “Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!
Darrow pleaded, "If the state in which I live is not kinder, more humane, and more considerate than the mad act of these two boys, I am sorry I have lived so long."
He concluded “Your Honor, what excuse could you possibly have for putting these boys to death? You would have to turn your back on every precedent of the past. You would have to turn your back on the progress of the world. You would have to ignore all human sentiment and feeling …You would have to do all this if you would hang boys of eighteen and nineteen years of age who have come into this court and thrown themselves upon your mercy.”
Cook County Circuit Court Judge John R. Caverly was impressed. He imposed a sentence of life in prison for both men.


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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Thursday, August 28, 2014

Sex offenders being held in custody because of residency restrictions

Dozens of sex offenders who have satisfied their sentences in New York State are being held in prison beyond their release dates because of a new interpretation of state residency restrictions, reported the New York Times.
The law, which has been in effect since 2005, restricts many sex offenders from living within 1,000 feet of a school. Those unable to find such accommodations often end up in homeless shelters.
But in February, the Department of Corrections and Community Supervision, which runs the prisons and parole system, said the 1,000-foot restriction also extended from homeless shelters, making most of them off limits because of the proximity of schools.
The new interpretation has had a profound effect in New York City, where only 14 of the 270 shelters under the auspices of the Department of Homeless Services have been deemed eligible to receive sex offenders. But with the 14 shelters often filled to capacity, the state has opted to keep certain categories of sex offenders in custody until appropriate housing is found.
About 70 of the 101 sex offenders being held are New York City residents, prison authorities said. Some have begun filing habeas corpus petitions in court, demanding to be released and claiming the state has no legal authority to hold them.
The onus of finding a suitable residence upon release is on the sex offender; the state authorities will consider any residence proposed, but will reject it if it is too close to a school or violates other post-release supervision conditions.
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Wednesday, August 27, 2014

Locking more people up does not lead to safer communities

The latest information from the Bureau of Justice Statistics (BJS) and the Uniform Crime Reports (UCR)— the leading crime and prison data sources for the country—shows that locking more people up does not lead to safer communities, wrote Marc Schindler is the Executive Director of the Justice Policy Institute at The Crime Report.
The Justice Policy Institute (JPI) compared the UCR crime rate and the BJS incarceration rate from 2002 and 2012. The data reveals a nation divided.
The 2012 data was released in the summer and fall of 2013. Twenty four states experienced falling crime and incarceration rates, while twenty three states experienced rising incarceration rates and falling crime rates. Only three states experienced rises in both (including West Virginia, which coupled a 7 percent increase in crime with a 51 percent increase in its incarceration rate).
Some numbers stand out as signs that states can opt for smarter and safer justice policies:
  • Many states that saw falling incarceration rates saw large drops in crime: the ten states that decreased their incarceration rate by 10 percent or more saw crime drop at an average rate of 24.1 percent,
  • States that increased their incarceration rate saw much smaller drops in crime: the fifteen states that increased their incarceration rate by 10 percent or more saw, on average, only an accompanying, 12.8 percent drop in crime, much lower than the national average, 20.26 percent, decrease in crime for the same period.
The data shows that Virginia experienced a 25 percent drop in crime, and 2 percent drop in its incarceration rate.  Other Southern states saw a much bigger drop in incarceration, and a drop in crime.
JPI’s report Virginia’s Justice System: Expensive, Ineffective, and Unfair, as well as its follow up study, Billion Dollar Divide, recommends that states like Virginia follow the lead of these other Southern states, and reconsider and review their sentencing laws, practices and policies, reduce the collateral consequences of criminal convictions and introduce more effective public safety and drug policies. Such steps can and should be taken by the states whose incarceration rate has increased or only minimally declined over the past decade.
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Tuesday, August 26, 2014

Policing is the difference in New York City

New York not only became safer than any large city in America, it did so while its population grew and its prison population fell, wrote Franklin E. Zimring, the Simon Professor of Law at the University of California, Berkeley, in the  New York Post.
Some say that crime dropped nationwide, so New York isn’t unique. More criminals were locked up, or demographics changed. Some even credit the legalization of abortion or the introduction of unleaded gasoline.
Statistics illustrate that policing has been the difference in New York City. While the homicide rate dropped by half in the nine largest cities other than NYC between 1990 and 2009, it dropped by 82 percent here. Rapes dropped 77 percent in New York, compared with a median rate of 49 percent in those other cities.
New York showed larger declines in every major crime, though particularly in robbery, burglary and auto theft. While robberies dropped 49 percent in other major cities, they fell an astounding 84 percent here.
Consider: In 1990, there were 2,272 homicide victims in New York City. If that rate had remained unchanged, more than 2,400 would have been killed in 2013.
Instead, there were 335. For one year alone, 2,000 fewer homicides.
The only logical explanation for the New York difference, then, is how New York fought crime. The NYPD rapidly expanded the police force and targeted specific crimes in specific areas, like cleaning up outdoor drug markets.
The only logical explanation for the New York difference, then, is how New York fought crime. The NYPD rapidly expanded the police force and targeted specific crimes in specific areas, like cleaning up outdoor drug markets.
To be clear, this isn’t really “broken windows,” though that term gets much of the credit. The broken windows theory says you flood marginal neighborhoods with “order maintenance” enforcement, making sure it doesn’t slip into a chaotic spiral.
Instead, the NYPD targeted the hot spots where violence was highest. Rather than do sweeps for all low-level crimes, the department experimented with what arrests would be most effective in finding and removing serious offenders. “Zero tolerance” policing never existed in New York (or anywhere else) and would have been a disaster if it had.
Al Sharpton, who led a march on Saturday protesting the NYPD, blames the broken windows approach for the death of Eric Garner, subdued for selling loose cigarettes.
Is the Jack Maple theory to blame? No. Garner’s death is proactive policing done wrong, not right. Garner was already known to the officers and was not a public danger. He was a non-dangerous “dolphin,” and the police knew this.
The tragedy will be tried in the court, and it rightly led to Police Commission Bill Bratton ordering the retraining of all police on the use of force.
Broad slogans like “quality of life” and “order maintenance” that mischaracterize the strategic reason for police stops invite exactly the confusion that produce disasters like the Garner case.
But should this really lead to the elimination of the strategy that made the city safe? Done right, the benefits of intensive patrol and aggressive policing are real.
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Monday, August 25, 2014

Nearly a third of Americans have arrest record

According to Newsmax.com, practically a third of Americans have an arrest record, which can create problems when looking for work and housing, The Wall Street Journal reported.
Most employers conduct criminal background checks on job applicants. With more police making more arrests, and with the Internet providing easy access to the criminal database, Americans are learning that the stigma of rap sheet is hard to shake.
In response to rising crime levels in the 1980s and 1990s police followed a zero tolerance approach for even minor infractions. Crime went down and more serious offenses were probably deterred, law enforcement authorities say. Now, the FBI criminal database contains some 77.7 million names amounting to one out of three adults. Thousands of new names are added daily, according to the WSJ.
A University of South Carolina study found that some 40 percent of men had been arrested by age 23. Among African Americans the rate was 49 percent, for Hispanics 44 percent, and for whites 38 percent. Almost 20 percent of women have also been arrested by the age of 23. Forty-seven percent of people arrested were not convicted, the WSJ reported.
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Sunday, August 24, 2014

The Delaware County Daily Times: Individual liberties at risk if Ebola hits Pa.

Matthew T. Mangino
The Delaware County Daily Times, Guest Column
August 22, 2014
Tom Frieden, the director of the U.S. Centers for Disease Control, said recently that there’s a very real possibility that someone infected with Ebola will enter the United States. However, he suggested the chances of a U.S. outbreak are highly unlikely, “it is a matter of isolating patients.” Can a patient with Ebola, or merely exposed to Ebola, be isolated or quarantined in Pennsylvania?
The U.S. Constitution prohibits the federal government as well as state governments from depriving individuals of specifically protected liberty rights. There are exceptions. In Pennsylvania, the health and well being of the community at large may supersede individual rights of freedom and liberty.
Although matters relating to public health have been left largely to individual states to manage, the federal government does have jurisdiction over cases where communicable disease is introduced into this country from a foreign source or to prevent or curtail the interstate movement of communicable disease.
In more than 40 years, only one person — Andrew Speaker a newlywed form Georgia who was honeymooning in Europe in 2007 and contracted a drug-resistant form of tuberculosis — has been isolated under federal law.
In Pennsylvania the Disease Prevention and Control Law (DPCL) provides that the state Department of Health, county/municipal health departments or a local heath authority may — without court intervention — order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and no lesser restrictive means is warranted.
The DPCL defines quarantine as the “limitation of freedom of movement of persons ... who have been exposed to a communicable disease.” The limitations may continue for a period of time equal to the incubation period of the disease. Isolation is the separation of persons already infected, from other people to prevent direct transmission of disease.
“Ebola is so scary and so unfamiliar; it’s really important to outline what the facts are, and that we know how to control it,” Frieden told NBC News.
In 2002, only months after the 9/11 attacks, the Pennsylvania Legislature went even further by enacting the Counterterrorism Planning, Preparedness and Response Act. The law provides the governor with authority to order the temporary isolation or quarantine of individuals or groups. The law was intended for use following a suspected act of bioterrorism. The statute does not specifically preclude the law from being utilized during a pandemic.
The governor also has the authority to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such an act by the government has serious civil rights implications. People who have no apparent manifestations of a disease are forced, against their will, to remain in an area where other people are infected.
Another concern is the cost of quarantine or isolation and who bears the responsibility for payment. A 1990 tuberculosis outbreak in Fort Worth, Texas, resulted in various levels and durations of quarantine and isolation for 10 patients. The cost reached nearly $1 million. Pennsylvania public health authorities may be required to provide reimbursement for costs associated with isolation or quarantine.
In Pennsylvania, the local health office may order treatment, put restrictions on an individual’s movement, restrict an individual to his or her home, put the individual under surveillance or even isolate the individual in an institution to ensure compliance.
However unlikely an outbreak of Ebola may be in Pennsylvania, it appears the commonwealth has the tools to deal with it in an effective and efficient manner -- even if it means some civil rights get trampled in the process.
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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Saturday, August 23, 2014

GateHouse: The constitutional right to bear … cameras

Matthew T. Mangino
GateHouse News Service
August 22, 2014
Ferguson, Missouri, has stumbled into the national spotlight for all the wrong reasons. From the tragic homicide of Michael Brown, an unarmed teenager, at the hands of the police, to the large-scale protests—peaceful and violent — to the para-military police response and the intervention of the National Guard, Ferguson has taken a hit.

Rolled into all of this have been some obvious, even outrageous, infringements on individual constitutional rights. Amid all the chaos, tear gas, rubber bullets, arrests and violence, the trampling of the First Amendment has been particularly egregious.

Last week, Washington Post reporter Wesley Lowery was arrested while covering the protests. He was told by police to stop recording video on his smartphone.

The editor of the Post, Marty Baron, complained that the order to stop filming was illegal. He was right. While state laws in most states do not address the legality of recording the police at work, courts across the country have ruled that the First Amendment protects videotaping or photographing police conduct during arrests, traffic stops and even protests.

In general, an individual can record an on-duty police officer when the individual is legally authorized to be present, the police activity is in plain view, and the recording is not being obtained through some surreptitious means.

But even in public spaces, police officers may legally order an individual in the act of taping to stop if the activity is interfering with legitimate law enforcement operations. The police may ask someone who is taping an incident to move to another spot. However, the police may not ask an individual to stop taping simply because they do not want to be taped.

When it comes to actual footage, police generally cannot confiscate or demand to view video taken of police conduct without a warrant. In addition, officers are never authorized to destroy film or delete video.

This year, the U.S. Supreme Court ruled that police must obtain a search warrant to inspect the contents of data on a cellphone including photographs and videotape. The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence, reported the New York Times.

Chief Justice John Roberts did not buy either argument. Police may inspect a cellphone to protect themselves from potential harm from hidden weapons, “once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.”

In a recent memorandum, the New York City Police Department confirmed a citizen’s right to photograph or videotape an encounter with the police.

The memo affirmed that “Members of the public are legally allowed to record police interactions,” according to the New York Daily News. “Intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

In 2012, the U.S. Department of Justice distributed a memo supporting “that private individuals have a First Amendment right to record police officers in the public discharge of their duties, and that officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process.”

However, the law is unsettled regarding police officers using wiretapping statutes in certain states to arrest and prosecute those who attempt to record police activities using video cameras that include audio.

In a number of states — Florida, Maryland, Massachusetts, New Jersey, Pennsylvania — there is no general right to record audio. Appellate courts have interpreted the wiretap laws as prohibiting audio recording if the parties have a reasonable expectation of privacy. The police working in a public space normally do not have an expectation of privacy.

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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Friday, August 22, 2014

The Cautionary Instruction: Predicting crime is fine, predicting criminals … not so fast

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 22, 2014
Predictive analytics has made its way into the criminal justice system through the use of assessments to predict future risk. U.S. Attorney General Eric Holder doesn’t think it’s a good idea.
Predictive analytics is the process by which analysts are able extract information from a huge amount of data in order to reveal patterns and make predictions about what might happen in the future. Predictive analytics is not a crystal ball, but it is a tool that looks into the future with an acceptable level of reliability.
Holder cautioned against the use of data in sentencing criminal defendants, saying judges should base punishment on the facts of a crime rather than on statistical predictions of future behavior that can be unfair to minorities.
"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place," Holder said.
The concept is not new. The Commonwealth of Virginia has used risk assessment in sentencing for 15 years. The higher the assessment score, the less likely the offender will be diverted from prison. The result has been fewer people in prison and a crime rate lower than the national average.
Risk forecasting is not just relegated to the courtroom. Police departments have been refining forecasting over the last two decades.
Five years ago, Holder’s justice department sponsored a National Institute of Justice Symposium on Predictive Policing. Then Assistant Attorney General Laurie O. Robinson told the conference attendees, “Eric Holder is thinking a great deal about where we are in the evolution of law enforcement. He knows, as all of you do, that we’re at a point where some very strategic, and collaborative, thinking is in order.”
Predictive policing is the use of analytical techniques to identify promising targets for police intervention with the goal of preventing crime, solving past crimes, and identifying potential offenders and victims. These techniques can help departments address crime problems more effectively and efficiently.
Jeremy Heffner of Azavea, a firm specializing in geographic information system mapping said, “You can kind of think of crime as a disease. If a crime happens, we can see how it affects the likelihood that another incident is going to happen within a certain area in a certain amount of time after that.”


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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Thursday, August 21, 2014

Supreme Court justice signals potential demise of the death penalty

David Menschel, Criminal Defense Lawyer and President of the Vital Projects Fund wrote on the American Constitution Society website how U.S. Supreme Court Justice Anthony Kennedy quietly empowers death penalty opponents. 
Menschel suggested, that since Atkins in 2002, the Supreme Court has used a “national consensus” analysis in a series of cases striking down various punishments as violating the cruel and unusual punishment clause of the Eighth Amendment. For example, the Court has ruled that certain groups of people (for example, juveniles or those who are intellectually disabled) or those who have been convicted of certain crimes (child rape, non-homicide crimes) are exempt from certain punishments (death penalty, life without the possibility of parole) because there is a national consensus against the punishments.
To determine whether a national consensus exists, the Court has used a state-counting process that it sees as providing an “objective” indication of how Americans feel about a punishment. The Court asks questions like: How many states have abolished the punishment? How many states still use it? In the states that retain it, how frequently is it used? The Court then groups states accordingly.
In Atkins, the Supreme Court found that a total of 30 states had abolished the punishment, either because the state had no death penalty or because it had the death penalty but did not subject the “mentally retarded” to it. Three years later, in Roper v. Simmons, the Court abolished the death penalty for juveniles. In Roper, the Court again counted 30 states that had abolished the punishment. Finally in 2010, in Graham v. Florida, the Court struck down the punishment of life without the possibility of parole for juveniles who committed crimes other than homicide. In that case, though only 13 states had abolished the punishment, the Court nevertheless found a national consensus against the punishment because an additional 26 states did not actually have any juveniles serving such a sentence.
What makes this term’s ruling in Hall so important is the way Justice Kennedy characterizes certain states for state-counting purposes.
For example, consider how Justice Kennedy characterizes Oregon. Oregon has only executed two people since the Supreme Court revived the death penalty in 1976. And, though Oregon has approximately 36 people on death row, it currently has a moratorium on executions imposed by Gov. John Kitzhaber. In Hall, Justice Kennedy describes Oregon as having “suspended the death penalty” and having “only executed two individuals in the past 40 years.” Strikingly, Kennedy goes on to place Oregon in the same category as the 18 abolitionist states for state-counting purposes. He specifically refers to Oregon and the abolitionist states jointly as “on the other side of the ledger.” In other words, Kennedy counts a state that has not abolished the death penalty as the equivalent of an abolitionist state.
It is not entirely clear whether Kennedy’s characterization of Oregon is influenced more by the fact that Oregon has a gubernatorial moratorium in place, or because it has executed so few people over the past four decades, or some combination of the two. Nevertheless, Kennedy’s doctrinal move is terribly important, because it expands the ways that death penalty opponents can demonstrate progress to the Supreme Court.
If, doctrinally speaking, gubernatorial moratoria are as valuable as statutory abolition, additional states warrant the Court’s attention. Since Hall was initially briefed, Gov. Jay Inslee of Washington state also imposed a moratorium, thus potentially adding Washington (along with Oregon) to the abolitionist side of the ledger. In addition, Colorado Gov. John Hickenlooper granted an indefinite reprieve to the sole man on death row who is even remotely near execution. In other words, Gov. Hickenlooper has, in effect, created a moratorium on executions, even if he has not used that word to describe it. In any event, as governors impose moratoria like these in various states, there may be additional states where moratoria might be imposed, thereby potentially adding states to the abolitionist side of the ledger.
Pennsylvania has carried out three executions in more than 30 years and all three inmates volunteered to be executed.  Pennsylvania has not carried out an involuntary execution since 1962.
At the same time, Justice Kennedy’s comment about Oregon having “only executed two individuals in the past 40 years” suggests that disuse may also warrant counting a state that retains the death penalty as a de facto abolitionist state. Kennedy expands on this theme obliquely when he refers to Kansas. He says Kansas “has not had an execution in almost five decades,” and he goes on to quote Atkins, “[s]ome States… continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States.” As Kennedy no doubt understands, this insight can be applied to abolition legislation generally. The impetus to abolish the death penalty is diminished in states where executions are exceedingly rare. In other words, Kennedy seems to suggest that we should not see the retention of death penalty statutes in states where there have been few executions in decades – like New Hampshire (no executions since 1939), Kansas (no executions since 1965), Wyoming (one execution since 1965) and Colorado (one execution since 1967), Montana (three executions since 1943), etc. – as evidence of a popular will in favor of the death penalty. Kennedy makes a similar point in Graham, where he places states that allow a punishment but practically speaking do not use it, at the center of his analysis. This insight – that the Court may see states that retain the death penalty statutorily but rarely use it as non-retentionist or even de-facto-abolitionist – expands the ways that death penalty opponents may demonstrate to the Supreme Court that there is a consensus against the punishment.
Hall contains one other important doctrinal nugget of significance. As part of its national consensus analysis, in addition to counting the absolute number of states that have abolished a punishment, in Atkins, the Supreme Court emphasized the general trend, as 16 states had passed statutes exempting the “mentally retarded” from the death penalty in the previous 13 years and none had changed their laws in the other direction. This trend inquiry – which the Supreme Court refers to as the “consistency of the direction of change” – was deemphasized in subsequent opinions like Roper, to the point that it disappeared entirely in recent cases like Graham.
The trend inquiry is revived in Hall where Kennedy characterizes 11 states that had changed their laws in 12 years as a significant trend, even though two states had changed their laws in the opposite direction. Hall shows that this trend inquiry, though once dormant, is still very much alive, and importantly, in Kennedy’s eyes, 11 states in 12 years constitutes a significant trend, even in light of two countervailing states. Considering that six states have abolished the death penalty in the past six years, Hall’s 11 states in 12 years represents a goal to which death penalty opponents might reasonably aspire.
If one looks only at the 18 states that have abolished the death penalty, it may seem that death penalty opponents have a frightfully long distance to travel before they might reasonably look to the Supreme Court to vindicate their cause. And if one looks at Hall for its direct, practical impact, one might easily be underwhelmed. But through Hall Justice Kennedy speaks to death penalty opponents, alerting them to new opportunities that could ease the path that they must travel in order to demonstrate to the Supreme Court that the death penalty violates the Eighth Amendment. Death penalty opponents should pay attention.
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Wednesday, August 20, 2014

Police shootings result in about 400 deaths per year

Nearly two times a week in the United States, a white police officer killed a black person during a seven-year period ending in 2012, according to the most recent accounts of justifiable homicide reported to the FBI, reported by the USA Today.
The killings, about 400 a year, are self-reported by law enforcement and not all police departments participate so the database undercounts the actual number of deaths. Plus, the numbers are not audited after they are submitted to the FBI and the statistics on "justifiable" homicides have conflicted with independent measures of fatalities at the hands of police.
About 750 agencies contribute to the database, a fraction of the 17,000 law enforcement agencies in the United States.
University of South Carolina criminologist Geoff Alpert, who has long studied police use of deadly force, said the FBI's limited database underscores a gaping hole in the nation's understanding of how often local police take a life on America's streets — and under what circumstances.
''There is no national database for this type of information, and that is so crazy," said Alpert. "We've been trying for years, but nobody wanted to fund it and the (police) departments didn't want it. They were concerned with their image and liability. They don't want to bother with it.''
Alpert said the database can confirm that a death has occurred but is good for little else.
"I've looked at records in hundreds of departments,'' Alpert said, "and it is very rare that you find someone saying, 'Oh, gosh, we used excessive force.' In 98.9% of the cases, they are stamped as justified and sent along.''
To read more Click Here

Tuesday, August 19, 2014

ABA: Stand Your Ground Increases Homicides

A yearlong national study by the American Bar Association National Task Force on Stand Your Ground Laws found that Stand Your Ground laws increase homicides, have no deterrent on serious crimes, result in racial disparities in the criminal justice system and impede law enforcement.
Since the nation’s first Stand Your Ground legislation was signed into law by then Florida Gov. Jeb Bush in 2005, a total of 33 states now have similar laws. Stand Your Ground has changed the legal definition of self-defense because it eliminates the duty to retreat rule. It has been part of the public debate since the February 2012 fatal shooting of Florida teenager Trayvon Martin by George Zimmerman, who was found not guilty a year later in a highly publicized trial.
The study revealed five key findings and resulted in a number of recommendations. The findings were:
  • Stand Your Ground states experienced an increase in homicides.
  • Multiple states have attempted to repeal or amend Stand Your Ground laws.
  • The law’s application is unpredictable, uneven and results in racial disparities.
  • A person’s right to self-defense was sufficiently protected prior to Stand Your Ground.
  • Victims’ rights are undermined in states with statutory immunity from criminal prosecution and civil suit related to Stand Your Ground cases.
Among the report’s 11 recommendations were that states repeal or do not enact Stand Your Ground laws, training for law enforcement agencies on best practices for investigating Stand Your Ground cases, and that states with statutory immunity provisions related to Stand Your Ground modify them to eliminate civil immunity provisions.
One of the most telling failures of the Stand Your Ground laws for panelist and task force member David A. Harris, a professor of law at the University of Pittsburgh, is that the law has had the opposite effect of what it was intended to be.
“The Stand Your Ground law was sold on the basis that it would lower serious crime and, in particular, it would lower homicide rates. Those were the two promises,” Harris said. Citing two separate university studies done at Texas A&M and Georgia Tech with data collected from 2000-2010, it did not lower serious crime and homicide rates increased in both studies.
“In the Texas A&M study homicide rates increased by 8 percent,” Harris said. “If your city went up 8 percent in murders do you think there would be a little excitement down at city hall? Yeah, I think so.”
To read more Click Here

Monday, August 18, 2014

50 years after the last execution in the U.K., 45% still support the death penalty

50 years ago this month two unremarkable murderers became the last people to be executed in Britain. Few expected their sentences to be the last of their kind, but that year the death penalty for murder was suspended for a trial period and in 1969 it was abolished completely.
The Commons vote which ended capital punishment was a milestone for British justice, yet YouGov research finds it to be one of those issues where the views of the British public go against the political consensus.
By 45-39% people tend to support the reintroduction of the death penalty for murder.
Support has been dropping steadily - in 2010, 51% were in favour and 37% opposed, and people born after 1964, in the 18-39 age bracket, tend to oppose its reintroduction. This may suggest that we are approaching a moment when people will tend to oppose it, but we are not there yet.
Interestingly, in the US where the death penalty is still legal in some states, YouGov research has found that confidence in its effectiveness as a deterrent is lower (35% compared to 45% in Britain).
The method of Britain’s last state executions – hanging – is also disapproved of by 68-23% amongst all British people, and even by 49-45% amongst those who favour reintroducing capital punishment. Lethal injection is seen as the most appropriate method, approved of by 51% of the general public and 88% of those pro-reintroduction.
To read more Click Here

Sunday, August 17, 2014

Mangino interviewed on WFMJ-TV

Watch my interview on WFMJ-TV Weekend Today on August 17, 2014.  Click Here

Obamacare may keep people healthy and reduce recidivism

Cara Tabachnick writes in the Christian Science Monitor that Obamacare may be more than a health care plan it may also be a crime prevention program.
Excitement is stirring inside the justice system, as corrections officials work to link inmates who are leaving custody with health services in their communities, courtesy of President Obama’s Affordable Care Act (ACA). The idea is to enroll thousands of ex-offenders in Medicaid, the federal-state health insurance program for the poor, thus making them eligible for treatment for mental health issues, substance abuse, and chronic medical problems that most have never before consistently received on the outside.
Enthusiasts for Medicaid sign-ups for ex-inmates build their hopes on research indicating that recidivism rates fall when prisoners and ex-prisoners receive mental health treatment. A 2010 study by David Mancuso of the Washington State Institute of Public Policy, a state-based policy think tank, found that for state residents enrolled in Medicaid and receiving substance abuse treatment, arrest rates dropped by as much as 33 percent compared with rates for those who didn’t receive treatment, leading to lower correctional costs and better public safety.
In any case, about 8 million prisoners leave America’s prisons and jails every year. Since the rollout of Obamacare last October, ex-offenders account for about 1 million of the 6 million new Medicaid beneficiaries enrolled in expansion states.
To read more Click Here

Saturday, August 16, 2014

GateHouse:Quarantine and isolation in the shadow of Ebola

Matthew T. Mangino
GateHouse News Service
August 15, 2014
The World Health Organization has officially declared the Ebola virus an international health emergency.

Emphasizing that the outbreak’s quick rise is “serious and unusual,” the organization issued the following statement, “The Ebola outbreak in West Africa is an ‘extraordinary event’ and a public health risk to other surrounding States, as well as the spread to other countries through lack of screening and monitoring.”

Ebola is a severe, often fatal, disease in humans. It was first discovered in the Republic of Congo in 1976. Until recently, there were fewer than 1,500 recorded cases of the virus. The death toll inflicted in West Africa since February has exceeded 1,000.

“Ebola is so scary and so unfamiliar, it’s really important to outline what the facts are, and that we know how to control it. We control it by traditional public health measures,” said Centers for Disease Control and Prevention Director Tom Frieden.

What are traditional public health measures? Isolation and quarantine are the methods by which public health officials stop the spread of disease.

According to the Department of Health and Humans Services, the president by executive order provides for the use of federal isolation and quarantine for communicable diseases, including cholera, diphtheria, tuberculosis, smallpox, yellow fever and Ebola among other potential pandemic diseases.

Frieden told NBC News that there’s a very real possibility that someone infected with Ebola will enter the United States. But the chances of a U.S. outbreak are highly unlikely: “It’s a matter of isolating patients.”

Isolation is used to separate ill people who have a communicable disease from those who are healthy. Quarantine is used to separate and restrict the movement of people who are well but may have been exposed to a communicable disease.

Isolation and quarantine can have a significant impact on fundamental individual rights. The U.S. Constitution prohibits the federal government, as well as state governments, from depriving individuals of protected liberty rights.

Isolation and quarantine restrict the movement of people to help stop the spread of diseases. This means that an individual can be detained against his or her will for an extended period of time.

Quarantine and isolation are not new public health remedies. As far back as 1902 the U.S. Supreme Court recognized isolation and quarantine as legitimate public health techniques. Although, most patients normally have a right to refuse medical treatment, that right disappears when an infected or exposed person poses a significant risk to public health.

In addition to being medical functions, isolation and quarantine are also “police power” functions, derived from the right of the government to take action affecting individuals for the benefit of society. The authority for carrying out these functions has been delegated to the CDC.

Pursuant to federal regulations, the CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying communicable diseases.

States also have police power functions to protect the health, safety, and welfare of persons within their borders. All 50 states have laws to enforce the use of isolation and quarantine.

For instance, in Pennsylvania, the Disease Prevention and Control Law provides that the state or local health departments may, without court intervention, order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and there are no lesser restrictive means.

In Arizona, the governor, along with the state director of the Department of Health Services, have expansive authority in a state of emergency involving infectious disease. However, there must be an urgent threat to public health to establish a quarantine or isolation without an order of court.

In fact, in many states the governor has the authority to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such authority has far-reaching implications for those not yet infected. They are being forcefully detained in an area were infected persons remain.

The government attempts to balance the good of the community with individual liberty. In times of international crisis, there is a heightened need to zealously protect those individual rights.

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.
To visit the column Click Here

Friday, August 15, 2014

The Cautionary Instruction: U.S. Sentencing Commission reviews white-collar crime guidelines

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 15, 2014
Judge Terrence Boyle of the U.S. District Court for the Eastern District of North Carolina presided over the government’s prosecution of Wakemed Health and Hospitals in 2013, a company accused of pervasive Medicare fraud. He rejected a plea agreement, lamenting the skyrocketing number of healthcare fraud cases across the country and their impact on “every American wage earner and every American citizen.”
Judge Boyle noted the difficulty “for society and the court to differentiate between the everyday working Joe or Jane who goes to prison and the nonprofit corporate giant who doesn’t.” He complained that deferred prosecution agreements like the one he rejected are supposed to be for marijuana-smoking teenagers, not corporations accused of financial crimes.
Boyle’s complaint seemed to be directed at the U.S. Commission on Sentencing. The Commission, which yesterday voted on priorities for the coming year, has expressed interest in examining punishments for white-collar crime. Not to make them stiffer, but to be more lenient.
The timing of the Commission’s action seem a bit peculiar given the public outrage at those recently convicted of massive fraud—stealing the life savings of their clients; the lingering anger over the damage inflicted by the 2008 financial meltdown; and situations described by Judge Boyle.
Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them. Advocates argue that white-collar sentencing guidelines are "mixed up and crazy" and could weaken support for keeping them in place, said Ohio State University law professor Douglas Berman, a sentencing law expert.
Critics of the guidelines in white-collar cases contend that they have come to rely too heavily on financial-loss calculations, which can quickly mushroom when the crime involves a public company. In certain cases, a public-company executive could face life in prison, said James Felman, a Tampa, FL defense attorney and member of an American Bar Association Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes looking at proposing revisions in the guidelines for economic crimes.
The commission's action to soften drug-crime guidelines is a signal that the time is ripe, to soften the impact on white-collar crime sentencing. Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.
A 2013 proposal from an American Bar Association task force proposed that very thing in 2013. The task force encouraged judges to place less emphasis on how much money was lost and more on a defendant's culpability.
Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually financially benefited. Essentially, the Commission would give judges a little more discretion.
I’m sure Judge Boyle would be pleased with a little more discretion, but those brought before him might not be as pleased with the result.
(Image: John Lund/Sam Diephuis/Blend Images)

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.
Visit Ipso Facto

Thursday, August 14, 2014

Judge extends Ohio's death penalty moratorium

 U.S. District Judge Gregory L. Frost, extended Ohio’s moratorium on executions through Jan. 15 next year, reported the Columbus Dispatch.
Frost’s order postponed Ronald Phillips’ execution, set to take place on Sept. 18, plus those of Raymond Tibbetts, 57, of Hamilton County on Oct. 15, and Gregory Lott, 43, of Cuyahoga County on Nov. 19. They all must be rescheduled by the Ohio Supreme Court.
Frost’s latest order was prompted by the continuing legal debate over lethal-injection drugs that have caused problems in executions in Ohio and several other states. In one recent execution in Oklahoma, two hours passed before the inmate died.
In his order, Frost wrote that the latest delay was needed “in light of the continuing need for discovery and necessary preparations related to the adoption and implementation of the new execution protocol.”
In April, Ohio Department of Rehabilitation and Correction officials announced they would use the same drugs that were used in the troubled Ohio execution of Dennis McGuire on Jan. 16, but in larger quantities.
McGuire, 53, was observed to repeatedly gasp, choke, clench his fists and struggle against his restraints for more than 10 minutes after the administration of midazolam, a sedative, and hydromorphone, a painkiller. McGuire was executed for the murder of 22-year-old Joy Stewart in 1989.
To read more Click Here

Wednesday, August 13, 2014

The Vindicator: Considering future risk at sentencing unfair, Holder asserts

Matthew T. Mangino
The Vindicator
August 10, 2014
In 2010, then Pennsylvania Gov. Edward G. Rendell signed into law a mandate that the Pennsylvania Commission on Sentencing develop a risk-assessment instrument for use by judges in sentencing criminal offenders. The law was touted at the time as being able to identify criminals who are “at a lower risk to re-offend and who may be recommended for alternative sentencing programs instead of additional prison time.”
Development of the risk- assessment tool has been slow. And now, the concept of linking risk assessments and sentencing has a pretty important foe — U.S. Attorney General Eric Holder.
In a recent speech, Holder singled out Pennsylvania when he said, “Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice.”
Pennsylvania’s law provides, “The risk-assessment instrument may be used as an aid in evaluating the relative risk that an offender will re-offend and be a threat to public safety.”
Risk assessments are not entirely new to the Pennsylvania criminal justice system. The Board of Probation and Parole has long used an actuarial risk-assessment tool for parole decisions.
University of Pennsylvania Professor Richard Berk created a risk-assessment model for the Philadelphia Adult Probation and Parole Department.The model examined more than 24 variables such as criminal history, age, gender, type of crime and where the crime was committed.
Through powerful computer analysis, Berk found a subset of people much more likely to commit homicide when released from prison and a subset of offenders who were least likely to re-offend. However, Berk warned such forecasting is “like trying to find the needle in the haystack.”
A handful of states now uses some form of risk assessment for sentencing. Florida uses a risk-assessment instrument for prison diversion programs. Illinois has authorized development of risk assessment for sentencing. Tennessee is including a risk-assessment tool in its pre-sentence reports. Washington is using risk assessment for purposes of placement in residential drug treatment. North Carolina is considering risk assessment when imposing community-based punishment.
Holder further noted, “Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant and the particular crime he or she commits.”
Virginia has used risk assessment analysis at sentencing since 1994. In fact, for many years Virginia was the only state using risk information at the time of sentencing.
VIRGINIA’S PHILOSOPHY
Virginia’s sentencing scheme was not just about diverting nonviolent low-risk offenders. It was also about “incapacitating” high-risk offenders. In the process of creating new sentence guidelines, the sentencing commission studied thousands of prison terms and determined the actual time served for specific offenses and then set sentence ranges based on those findings.
The late Dr. Richard Kern, former director of the Virginia Criminal Sentencing Commission, once suggested that a risk-assessment tool must weed out those offenders “who we are afraid of” from those “we were just ticked-off at.” For those feared, longer prison sentences are needed. For those that merely annoyed, diversion to alternative punishment.
The idea of sentencing defendants based on risk factors may help to reduce the prison population, but in certain circumstances it may run the risk of imposing drastically different punishments for the same crimes, said Holder.
Holder may be passionate about his position, but his position also appears to be at odds with the Congress. In the House, The Public Safety Enhancement Act of 2013 proposes to use risk- assessment tools to reduce recidivism, lower the crime rate, and reduce the amount of money spent on the federal prison system. The Senate is considering a bill to incorporate predictive analysis into determining eligibility for sentencing credit.
(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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Monday, August 11, 2014

911 call centers not ready for text messages

With more than 80 percent of Americans using their cellphones to send and receive text messages, it only makes sense we should be able to text 911 in an emergency. But that ability is only now just coming online and there’s still a lot of work to do before it’s universal: Only 100 call centers out of more than 6,000 across the country are capable of receiving and responding to text messages,, reported Governing Magazine.
Now that America’s four major wireless phone carriers have agreed to support text-to-911, however, expect to see the number of call centers accepting text messages grow rapidly, says Trey Forgety, director of government affairs at the National Emergency Number Association (NENA). “Nearly everyone is either working to move to text-to-911 or is planning how they are going to do it,” he says.
 Next-generation 911 isn’t cheap. The Federal Communications Commission estimates that to upgrade every call center in the country to next-generation 911 will cost nearly $3 billion. For now, that means call centers will have different capabilities. And until everyone adopts text-to-911, those who try to text an emergency call center that’s not equipped for texts will get a bounce-back message from the phone carriers, instructing them to call 911.
The Hamilton County, Ohio, Communications Center is one of the first to adopt next-generation 911 technology. The center handles 688,000 calls annually, and Jayson Dunn, the center’s director, says, “We were a bit anxious the move would overwhelm us with messages.” That hasn’t been the case.
To read more Click Here

Sunday, August 10, 2014

Michigan man convicted of killing young girl on his porch

This week, after less than two days of deliberation, a Detroit jury convicted Theodore P. Wafer of murder, reported the New York Times. No one disputed that in the early morning hours of Nov. 2, Renisha McBride, 19, stood on the front porch of a bungalow owned by Wafer in suburban Dearborn Heights, Mich.
She pounded at the door with her hands, moving to the side of the house and back to the front. Minutes later, Wafer who had been roused from his sleep, opened the inside front door, fired a single shotgun blast and killed her.
The case stirred racial tensions in Detroit — McBride was black, and Wafer is white — and has drawn comparisons to the case of Trayvon Martin, the Florida teenager who was fatally shot by a neighborhood watch volunteer, George Zimmerman, in 2012.
But where Zimmerman successfully invoked self-defense,Wafer failed.
Wafer was found guilty of second-degree murder, involuntary manslaughter and a felony weapons charge. He could face life in prison.
Michigan law allows lethal force only if a person “honestly and reasonably believes” that it is necessary to prevent imminent death or great bodily harm. Michigan also has a “castle doctrine,” which states that there is no legal requirement for a person to retreat inside his or her home.
Ron Scott, a community activist who has publicly supported the family, stood outside the courtroom on Thursday and hailed the verdict as a victory for Detroit and its surrounding communities.
“The jury was made up of different races and from many bordering areas,” he said. “This shows we can get beyond separation.”
To read more Click Here

Saturday, August 9, 2014

GateHouse: Holder balks at predicting future risk

Matthew T. Mangino
GateHouse News Service
August 8, 2014
Predictive analytics is the process by which analysts are able extract information from a huge amount of data in order to reveal patterns and make predictions about what might happen in the future. Predictive analytics is not a crystal ball, but it is a tool that looks into the future with an acceptable level of reliability.
Predictive models are typically used to help analysts make business forecasts, military decisions and scientific analysis. Baseball is a business and the movie “Moneyball” made predictive analytics famous.
In the criminal justice system holding people accountable for breaking the law is not a business, but predictive analytics has made its way into the process through the use of assessments to predict future risk. U.S. Attorney General Eric Holder doesn’t think it’s a good idea.
In a recent speech, Holder offered caution regarding the use of risk assessments at sentencing, “Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice.”
Risk assessments are not entirely new to the criminal justice system. Paroling authorities have long used actuarial risk assessment tools for parole decisions.
University of Pennsylvania Professor Richard Berk created a risk assessment model for the Philadelphia Adult Probation and Parole Department. The model examined more than 24 variables including criminal history, age at first crime, gender, the type of crime and where the crime was committed. Through powerful computer analysis Berk found a subset of people much more likely to commit homicide when released from prison and a subset of offenders who were least likely to re-offend.
Holder doesn’t seem to have a problem with using predictive analytics on the “back-side” of the punishment scheme. “When it comes to front-end applications – such as sentencing decisions, where a handful of states are now attempting to employ this methodology – we need to be sure the use of aggregate data analysis won’t have unintended consequences,” said Holder.
Florida is utilizing a risk assessment instrument for purposes of prison diversion programs. Illinois has authorized the development of risk assessment for purposes of sentencing. Tennessee is including a risk assessment tool in its pre-sentence reports. Washington is using risk assessment for purposes of placement in residential drug treatment. North Carolina is considering risk assessment when imposing community-based punishment. Pennsylvania has mandated its Commission on Sentencing to establish as assessment tool for sentencing.
Holder further noted, “Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant and the particular crime he or she commits.”
Virginia has been utilizing risk assessment analysis at sentencing since 1994. In fact, for many years Virginia was the only state using risk information at the time of sentencing.
Virginia’s sentencing scheme was not just about diverting nonviolent low risk offenders. It was also about “incapacitating” high-risk offenders. In the process of creating new sentence guidelines the sentencing commission studied thousands of prison terms and determined the actual time served for specific offenses and then set sentence ranges based on those findings.
A former director of the Virginia Criminal Sentencing Commission suggested the next step was to weed out those offenders “who we are afraid of” from those “we were just ticked-off at.” For those feared, longer prison sentences. For those that merely annoyed, diversion to alternative punishment.
“The idea of sentencing defendants based on risk factors may help to reduce the prison population, but in certain circumstances it may run the risk of imposing drastically different punishments for the same crimes,” Holder told a Philadelphia audience of defense attorneys.
Last week, Holder and the U.S. Department of Justice asked the U.S. Sentencing Commission to study the use of data-driven analysis in sentencing and to issue policy recommendations based the study.

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.
To visit the column Click Here

Friday, August 8, 2014

The Cautionary Instruction: Communicable disease and quarantine in Pennsylvania

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 8, 2014
The U.S. Centers for Disease Control and Prevention has issued its highest-level alert in response to the Ebola crisis in West Africa.
Two Americans, Kent Brantly and Nancy Writebol, have been returned to the U.S. from Liberia and are being treated for Ebola at the Emory University Hospital in Atlanta.
Could a patient with a communicable disease, or merely exposed to a communicable disease, be isolated or quarantined in Pennsylvania?
In 2007, I wrote a column for the Pennsylvania Law Weekly on the issue of quarantine -- in light of the Ebola scare the law in Pennsylvania is worth revisiting.
The United States Constitution prohibits the federal government as well as state governments from depriving individuals of specifically protected liberty rights. There are exceptions. In Pennsylvania the health and well-being of the community at large may supersede individual rights of freedom and liberty.
Although matters relating to public health have been left largely to individual states to manage, the federal government does have jurisdiction over cases where communicable disease is introduced into this country from a foreign source or to prevent or curtail the interstate movement of communicable disease.
In Pennsylvania the Disease Prevention and Control Law (DPCL) provides that the state department of health, county/municipal health departments or a local heath authority may, without court intervention, order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and no lesser restrictive means is warranted. The court may be asked to review the order within 24 hours of service upon the individual being detained.
The DPCL defines quarantine as the “limitation of freedom of movement of persons . . . who have been exposed to a communicable disease.” The limitations may continue for a period of time equal to the incubation period of the disease. Isolation is the separation of persons already infected, from other people to prevent direct transmission of disease.
As far back as 1902 the U.S. Supreme Court recognized isolation and quarantine as legitimate public health techniques to contain the spread of infectious disease.
In the months following the September 11th attack, the Pennsylvania legislature went even further by enacting the Counterterrorism Planning, Preparedness and Response Act (Act). The Act provides the governor with authority to order the temporary isolation or quarantine of individuals or groups. The Act, although not clear, was intended for use following a suspected act of bioterrorism. The statute does not specifically preclude the Act from being utilized during a pandemic.
The governor has also been empowered to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such an order from the governor is subject to judicial review.



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.
Visit Ipso Facto

Thursday, August 7, 2014

Jury to decide fate of Michigan man who shot woman knocking on front door

A Detroit jury on began deliberations to decide whether the shooting of an unarmed black teenager by a white suburban homeowner was murder or a fear-driven mistake, reported Reuters.
Defense attorney Cheryl Carpenter said Theodore Wafer acted in self-defense, and that while he may have been mistaken, he's not guilty.
"He's not a gun nut, he's not an angry person, he's not paranoid," said Carpenter. "He was in terror."
The killing has sparked protests in Dearborn Heights and comparisons to the 2012 Florida shooting death of Trayvon Martin, a black teenager who was also unarmed. Race has rarely been mentioned in the trial.
Carpenter told the mostly white jury that self-defense is the "ultimate protection for all of us" and that people in the Detroit area know what it is to live in fear of crime.
"It's not a race issue," Carpenter said, adding that Wafer is not a racist.
Wafer could face up to life in prison if convicted of second degree murder. He also faces manslaughter and firearms charges.
To convict Wafer of second-degree murder, the jury must find that he meant to kill or cause great bodily harm, or knowingly created a situation that could result in death or bodily harm.
To read more Click Here

Wednesday, August 6, 2014

Missouri carries out execution, first since botched execution in Arizona

The 27th Execution of 2014
The Missouri Department of Corrections said Michael Worthington was executed by lethal injection at the state prison and was pronounced dead at 12:11 a.m. He is the seventh Missouri inmate executed this year, reported the St. Louis Post-Dispatch.
Worthington had been sentenced to death for the attack on 24-year-old Melinda "Mindy" Griffin during a burglary of her Lake St. Louis condominium.
Before the execution began, while strapped to a gurney and covered with a sheet, Worthington spoke with his witnesses — some of them his relatives — through the glass, raising his shaved head.
When the drugs began flowing, his head lowered back to the pillow and he appeared to breathe heavily for about 15 seconds before closing his eyes. Some of his witnesses began crying after he fell unconscious.
The U.S. Supreme Court and Missouri's governor had declined on Tuesday to block the execution.
Worthington, 43, had predicted that the nation's high court and Gov. Jay Nixon would not spare him, insisting in a telephone interview with The Associated Press that he had accepted his fate.
"I figure I'll wake up in a better place tomorrow," Worthington, formerly of Peoria in central Illinois, had said Tuesday. "I'm just accepting of whatever's going to happen because I have no choice. The courts don't seem to care about what's right or wrong anymore."
Worthington's attorneys had pressed the Supreme Court to put off his execution, citing the Arizona execution and two others that were botched in Ohio and Oklahoma, as well as the secrecy involving the drugs used during the process in Missouri.
Those three executions in recent months have renewed the debate over lethal injection. In Arizona, the inmate gasped more than 600 times and took nearly two hours to die. In April, an Oklahoma inmate died of an apparent heart attack 43 minutes after his execution began. And in January, an Ohio inmate snorted and gasped for 26 minutes before dying. Most lethal injections take effect in a fraction of that time, often within 10 or 15 minutes.
Arizona, Oklahoma and Ohio all use midazolam, a drug more commonly given to help patients relax before surgery. In executions, it is part of a two- or three-drug lethal injection.
Texas and Missouri instead administer a single large dose of pentobarbital — often used to treat convulsions and seizures and to euthanize animals. Missouri changed to pentobarbital late last year and since has carried out executions during which inmates showed no obvious signs of distress.
Missouri and Texas have turned to compounding pharmacies to make versions of pentobarbital. But like most states, they refuse to name their drug suppliers, creating a shroud of secrecy that has prompted lawsuits.
In denying Worthington's clemency request, Nixon called Worthington's rape and killing of Griffin "horrific," noting that "there is no question about the brutality of this crime — or doubt of Michael Worthington's guilt."
Worthington was sentenced to death in 1998 after pleading guilty to Griffin's death, confessing that in September 1995 he cut open a window screen to break in to the college finance major's condominium in Lake St. Louis, just west of St. Louis. Worthington admitted he choked Griffin into submission and raped her before strangling her when she regained consciousness. He stole her car keys and jewelry, along with credit cards he used to buy drugs.
DNA tests later linked Worthington to the slaying.
To read more Click Here

Tuesday, August 5, 2014

PLW: In Wake of Rulings, Committee to Review Juvenile Life Sentences

Matthew T. Mangino
The Pennsylvania Law Weekly
August 5, 2014
Last month, the Michigan Supreme Court decided that Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 (2012), the U.S. Supreme Court decision that makes mandatory life sentences without parole for juveniles unconstitutional, should not be applied retroactively.
The Michigan Supreme Court found in a 4-3 decision in People v. Carp, No. 146478, that the rule announced in Miller does not satisfy either the federal test for retroactivity set forth in Teague v. Lane, 489 U.S. 288 (1989), or the tests established by Michigan state law. Furthermore, neither the Eighth Amendment nor the Michigan Constitution categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender.
The ruling is a defeat for more than 350 Michigan inmates serving mandatory life sentences without parole for murders committed when they were juveniles. A number second only to Pennsylvania's 450-plus inmates.
The U.S. Supreme Court decision on mandatory life in prison is just one in a series of decisions that have softened the grip of the "tough-on-crime" movement that has dramatically impacted young offenders.
The U.S. Supreme Court ruled in Roper v. Simmons, 543 U.S. 551 (2005), that juveniles cannot be sentenced to death for crimes committed when they were under 18 years old. The court ruled that the death penalty is a disproportionate punishment for the young. According to The Sentencing Project, the ruling affected 72 juveniles in 12 states. Most of those young people were resentenced to life in prison.
In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court banned the use of life without parole for juveniles not convicted of homicide. The court ruled, "A state need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term."
There were approximately 129 offenders from 11 states serving life without parole for non-homicide crimes committed as juveniles. A significant majority of those offenders were from the state of Florida.
In June 2012, the U.S. Supreme Court decided Miller. The court found that mandatory life without parole for juveniles violated the Eighth Amendment's prohibition against cruel and unusual punishment. The court ruled, as it had in the past, that juveniles are not as responsible as adults for their conduct. However, the decision did not ban life sentences for juveniles. The decision simply said such sentences could not be automatic.
However, the Miller decision left open a very important question, especially in Pennsylvania: Would the ruling apply to the inmates in Pennsylvania who were serving life sentences for offenses committed as juveniles?
The ruling affected 28 states where automatic life without the possibility of parole was the only sentencing option left open to judges in capital cases involving juveniles.
In October 2013, the Pennsylvania Supreme Court decided Commonwealth v. Cunningham, No. 38 EAP 2012. The court ruled that Miller only applied to cases that were pending on appeal at the time Miller was decided in June 2012.
Justice Thomas G. Saylor, who wrote the majority opinion in Cunningham, was not convinced that "the imposition of mandatory life-without-parole sentences upon offenders under the age of 18 at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller's announcement."
In June, the U.S. Supreme Court refused to hear Ian Cunningham's appeal. The rejection impacted Pennsylvania inmates as well as another 2,000 inmates across the country who were watching to see what might happen if the U.S. Supreme Court agreed to hear the case.
When Michigan fell in line with Pennsylvania, it became the fourth state, along with Louisiana and Minnesota, to find the U.S. Supreme Court ruling in Miller was not retroactive. Six states—Illinois, Texas, Nebraska, Iowa, Massachusetts and Mississippi—have ruled that Miller is retroactive.
Bradley Bridge of the Defender Association of Philadelphia told The Philadelphia Inquirer that the high court is going to have to take up the matter sooner or later. He said it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas gets relief. That is not a just result."
Also in response to Miller, Pennsylvania amended its law to remove the mandatory aspect of the statute and provide judges with some discretion when sentencing juvenile offenders. The new law, codified at 18 Pa.C.S.A. § 1102.1, provides a judge may sentence a juvenile under the age of 15 convicted of first-degree murder to either life without parole or a term of imprisonment not less than 25 years. A juvenile over the age of 15 may be sentenced to life without parole or to a term of imprisonment not less than 35 years.
A juvenile convicted of second-degree murder, if under the age of 15, shall be sentenced to a term of imprisonment not less than 20 years to life. If over the age of 15, the defendant shall be sentenced to a term of imprisonment not less than 30 years to life.
Pennsylvania is one of 13 states that have passed legislation to address mandatory life sentences for juveniles. Fifteen states—Alabama, Arizona, Connecticut, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, Ohio, South Carolina and Vermont—have done nothing.
Although the legislature has acted and the Pennsylvania Supreme Court has ruled, the issues are still murky. As a result, Pennsylvania Senate Resolution No. 304 has mandated the Joint State Government Committee to "conduct a study of the Juvenile Act [and] ... include a review of how Pennsylvania and other states have responded to Miller v. Alabama, and whether changes should be made to Pennsylvania law as a result."
As a member of the advisory committee beginning the process of studying these issues, I am looking forward to the next year and would like to hear from you. Please send me your questions or comments on this important matter. Email your thoughts and questions to mmangino@lgkg.com.



Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was recently released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Monday, August 4, 2014

Broken Window Theory Called into Question

Does the "Broken Window" theory of crime suppression, made famous in NYC, need a second look asks Professor Steve Zeidman of CUNY Law School in a New York Daily News op-ed.
Given the tremendous, mostly positive publicity it has engendered, it is surprising to many that this heralded theory of policing is a five-page essay published in The Atlantic in 1982. The article's theme is that untended minor criminal behavior leads inexorably to serious street crime. One broken window left unaddressed will soon yield a building filled with broken windows. As the authors famously wrote, "[T]he unchecked panhandler is, in effect, the first broken window."
Serious crime has decreased dramatically in New York City in the two decades that broken windows policing has been in force, yet the causal connection between that drop and huge numbers of arrests for minor transgressions is unproven to this day. It remains an open question how significant a role the arrests, as opposed to other factors like changing demographics and the relative decline of crack cocaine, played in the reduction in crime.
Consider: New Yorkers live in a far, far less violent city than we have in generations, and yet the NYPD continues to find thousands upon thousands of minor crimes to enforce.
Further, many argue that the efficacy of broken windows must be evaluated by simultaneously considering the brutal impact these arrests have on individuals, their families and their communities. Others argue that if a broken window portends an outbreak of serious crime, then the appropriate response is to actually fix the window, for instance by building more affordable housing.
Police Commissioner William Bratton is an unabashed devotee of broken windows policing, though he now prefers to call it quality of life policing. For him, actualizing the theory has translated into massive arrests for minor crimes beginning, notoriously, with so-called "squeegee men." For Bratton, there is no nuance, other explanation or cause for concern. Broken windows policing is responsible for the drop in reported crime and that end justifies its means.
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Sunday, August 3, 2014

Criminalizing Homelessness


Laws that criminalize homelessness are on the rise across the country, according to a new report by an The National Law Center. The laws prohibit everything from sleeping in public to loitering and begging. Advocates for the homeless say the laws are making the problem worse, reported National Public Radio.
The National Law Center found that local bans on sleeping in vehicles have increased almost 120 percent over the past three years. Citywide bans on camping have grown 60 percent, and laws against begging have increased 25 percent. This all comes at a time when the U.S. government estimates that more than 610,000 people are homeless on any given night.
Susan St. Amour is among those who could be affected by the new restrictions. Twice a week, she stands on a median strip at an intersection in downtown Portland, Maine, asking passersby for cash. She says she needs the money to get by.
"[If] for some reason I don't get a bed at the shelter and I have nowhere to stay, it means I can't eat that night unless I have a few dollars in my pocket," she says. "Or it may be because I need to take the bus to the other side of town. I might have a doctor's appointment."
Last year, though, the city passed a law that banned loitering on median strips. A federal judge has since declared the law unconstitutional, but the city plans to appeal. Council member Ed Suslovic says the goal of the legislation was not to hurt the homeless — just the opposite, in fact.
"This was a public safety threat, mainly to the folks in the median strip, but also to motorists going by as well," Suslovic says.
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