Tuesday, March 31, 2015

SCOTUS to take up two death penalty sentencing issues from Kansas

The United States Supreme Court will review two Kansas Supreme Court decisions that overturned the death sentences of three convicted killers, reported the Topeka Capital-Journal.
The court agreed to consider the Kansas rulings involving brothers Jonathan and Reginald Carr, and another case involving Sidney Gleason. All three were convicted of capital murder.
Kansas Attorney General Derek Schmidt asked the justices to weigh in on the Kansas court’s ruling in the cases this past summer.
The Carrs shot and killed four people execution style in December 2000 in Wichita and were sentenced to death. The Kansas Supreme Court upheld a capital murder conviction against both, but ruled the two should have received separate penalty phase trials in which they received the death penalty
Gleason, a former Topeka resident, was convicted in the 2004 murders of two people in Great Bend. At the time of the murders he was on parole after a conviction for attempted voluntary manslaughter. The Kansas high court upheld his capital murder conviction, but in a divided decision cited the Barton County district court’s failure to give a jury instruction on mitigating circumstances as its reason for vacating Gleason’s death sentence.
Schmidt argued in asking for a U.S. Supreme Court review that the state court’s ruling in Carr effectively abolished joint death penalty proceedings. In addition, the court will weigh in on the instructions given to the jury during the sentencing portion.
To read more CLICK HERE

Monday, March 30, 2015

Risk Assessments and 'Moneyballing' the Criminal Justice System

Kay Whitlock and Nancy A. Heitzeg of Truthout.com  write about 'Moneyballing the Criminal Justice System." Particularly the role of risk-assessment software programs, already used in at least 20 states. These tools, many of them proprietary and not open to public scrutiny, use statistical analysis of complex sources of data to predict the future crime risk of individuals.
The idea is that dangerous people stay in prison and low-risk non-violent offenders stay out or get out of prison quickly.  All-in-all the state saves money and the streets are safer.  That's the theory but what are the real costs?
These tools are not without criticism. Attorney General Eric Holder has warned that use of predictive data in sentencing is likely to adversely affect communities of color. University of Michigan legal scholar Sonja Starr explains that risk scores are based primarily or wholly on an individual's prior characteristics, including criminal history - some instruments include not only convictions, but arrests and failure to appear in court. Other allegedly criminogenic factors "unrelated to conduct" often include homelessness, "unemployment, marital status, age, education, finances, neighborhood, and family background, including family members' criminal history." Starr asserts that because poor people and people of color bear the brunt of mass incarceration, "[p]unishment profiling will exacerbate these disparities."
To read more CLICK HERE

Sunday, March 29, 2015

Will Georgia Judge give death penalty to grandmother who ran 9-year-old to death?

In Georgia a jury found Joyce Hardin Garrard guilty of murder in the first degree in the death of her granddaughter, Savannah Hardin, by literally running the 9-year-old to death in the backyard in 2012, reported the Christian Science Monitor.
But while the same jury declined to send Ms. Garrard to death row, county judge Billy Ogletree will have a unique option to reverse that decision and instead sentence the grandmother who punished too hard to herself receive capital punishment.
Alabama is one of three states – the others are Delaware and Florida – that allow so-called judicial override of jury sentences in order to impose the death penalty. The option is rarely used in Florida and Delaware has abolished the death penalty, making Alabama, where judges are elected, the only state in the union to regularly utilize the option.
Savannah collapsed and later died in her grandmother’s Etowah County yard after being forced to run for hours as a punishment for lying about taking some candy and eating it. On its face, it was a difficult murder case to prove, since prosecutors had to convince the jury that Ms. Garrard was so angry at Savannah that she intended to kill the girl with her barked demands for the girl to keep moving even as the sun began to set. 
But the jury agreed with the prosecution’s logic, that by the time the punishment was into its third hour, and given wounds on Savannah’s arms from having to carry sticks and pieces of firewood, Garrard was indeed in a murderous frame of mind as she attempted to break her granddaughter of perceived obstinacy.
Five out of 12 jurors voted for the death penalty, while seven voted for life in prison without parole. Given the peculiar nature of the case, prosecutors had not recommended either sentence for jurors to mull.
To read more CLICK HERE

Saturday, March 28, 2015

GateHouse: A clearer picture of police shootings begins to emerge

Matthew T. Mangino
GateHouse Media
March 27, 2015

A Pennsylvania police officer has been charged with murder in the death of a man who sped away after the officer noticed he had an expired inspection sticker on his vehicle. When the officer caught up with the man he attempted to flee on foot.
The officer used a stun gun knocking the suspect to the ground. She then shot him twice as he lay face down. The incident was recorded by a camera activated on the officer’s stun gun.
The arrest of a police officer as a result of a shooting in the line of duty is extremely rare. Families in Ferguson, Cleveland and communities too numerous to mention can attest to that phenomenon.
A little way down the Pennsylvania Turnpike, Philadelphia city officials are dealing with a pervasive problem of police-related shootings. Philadelphia police shot 394 people between 2007 and 2013. According to the Philadelphia Inquirer, police data indicates that 540 officers fired their guns in 364 incidents. Sixty-eight officers were involved in more than one shooting — of those, 12 shot three people each, while another three shot four people each.
If those statistics aren’t alarming enough, consider that police-involved shootings are largely under reported. In February, FBI Director James Comey admitted during a speech at Georgetown University that, “It’s ridiculous that I can’t tell you how many people were shot by the police in this country — last week, last year, the last decade.”
Jim Fisher, a former FBI agent and noted author, compiled his own statistics for police-related shootings in 2011. Why no national database of police-involved shooting? Fisher contends, “The answer is simple: they don’t want us to know. Why? Because police shoot a lot more people than we think.”
The Bureau of Justice Statistics (BJS) confirmed that the government’s own data on police involved deaths have been off for more than a decade — by more than 100 percent.
The report estimates that there were “an average of 928 law enforcement homicides per year” from 2003 through 2011 — which means, according to the Philadelphia Inquirer, that previous yearly tallies by the BJS and the FBI included fewer than half of all such deaths.
More alarming is that a significant number of victims of police-reported shootings are mentally ill. A joint report by the Treatment Advocacy Center and the National Sheriffs Association — Justifiable Homicides by Law Enforcement: What is the Role of Mental Illness? — noted that “Although no national data is collected, multiple informal studies and accounts support the conclusion that “at least half of the people shot and killed by police each year in this country have mental health problems.”
The public has no hard data on the number of police-involved shootings, and as many as one in two of those killings may have been prevented by adequate police training and education.
Just this week the United States Supreme Court heard arguments in a case that has the potential to insure that much needed training and education is mandated. The case, Sheehan v. San Francisco, could settle the extent to which the Americans with Disabilities Act (ADA) serves as a check on police officers’ interactions with people with mental illnesses.
Teresa Sheehan was mentally ill, in her 50s, overweight, and in her own home wielding a knife when she was shot five times by San Francisco Police.
The ADA requires local governments to provide “reasonable accommodations” to individuals with disabilities, and according to Slate, courts have interpreted that guarantee to include arrests — that is, police should take into account a person’s disabilities when taking them into custody.
The ADA has done wonders to protect men and women in the workplace and disabled consumers. Can this be the catalyst to help cut down on police-involved shootings?

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

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Friday, March 27, 2015

California eases up on sex offender residency restrictions

California officials announced that the state would stop enforcing a key provision of a voter ­approved law that prohibits all registered sex offenders from living near schools, reported the Los Angeles Times. 
The California Department of Corrections and Rehabilitation said it would no longer impose the blanket restrictions outlined in Jessica's Law that forbids all sex offenders from living within 2,000 feet of a school or park, regardless of whether their crimes involved children. 
High ­risk sex offenders and those whose crimes involved children under 14 will still be prohibited from living within a half ­mile of a school, the CDCR emphasized. Otherwise, officials will assess each parolee based on factors relating to their individual cases, the agency said. The shift comes nine years after California voters approved the controversial law, which has made it difficult for some sex offenders to find places to live. 
The California Supreme Court on March 2 unanimously ruled that Jessica's Law violated the constitutional rights of parolees living in San Diego County who had argued that the limitations made it impossible for them to obtain housing. As a result, advocates said, some parolees were living in places like riverbeds and alleys. 
To read more CLICK HERE

Thursday, March 26, 2015

Justice lab: The Roaring '90s

This is the tenth and final topic in a series from Dana Goldstein of the Justice Lab at The Marshall Project, Top 10 (Not Entirely Crazy) Theories Explaining the Great Crime Decline:

The roaring ’90s (and Obama-mania)

Until recently, there was little doubt that the strong economy of the 1990s and 2000s played a major role. Unemployment was low, so young men were less likely to turn to the drug trade or other criminal activity for work. Consumers felt confident in their spending power, so they did not seek out cheap, stolen goods on the black market, which decreased the demand for property crime. And though this may be difficult to remember today, Americans generally felt optimistic about their public institutions during the Clinton years.
Then came the Great Recession of 2008, from which we are still recovering. Unemployment spiked, consumer confidence plummeted, trust in political elites sank to record lows ... yet crime did not increase.
Does this mean there is no connection between the economy, trust in public institutions, and crime? Maybe not. Criminologists went back to the drawing board to consider what they might have overlooked in their previous research. In turned out that one economic indicator—high inflation—has been correlated throughout history with high crime, Rosenfeld says. Yet inflation remained low throughout the recent recession. Does this mean crime will spike when and if inflation rises? Only time will tell. Zimring, however, is skeptical about the inflation explanation, noting that in Europe, changes in inflation have not been associated with changes in the crime rate. “There’s no consistent there there,” he says.
Rosenfeld also wonders if African-American optimism after Barack Obama’s presidential election as president may have helped keep crime rates down. “African-Americans, from 2008 to 2009, were more confident than whites were in the economy, even though on an objective level, they suffered more, economically. There is little question their spirits were buoyed by the Obama phenomenon. Can we link that in some rigorous fashion to the crime drop? Not really. But I think it’s an intriguing hypothesis.”
The Marshall Project

Wednesday, March 25, 2015

Citizens Voice: Merge corrections agency, parole board

Editorial, March 23, 2015
A lingering mystery of last year’s gubernatorial campaign is why former [Pennsylvania] Gov. Tom Corbett did not emphasize one of the most successful aspects of his administration — corrections reform.
Gov. Tom Wolf, who defeated Corbett, recognized the improvement. He kept on Corbett’s innovative and thoughtful corrections secretary, John Wetzel, to maintain the momentum towards a lower-cost system that better serves the needs of inmates and the society.
Last week Wetzel and John R. Tuttle, acting chairman of the Pennsylvania Board of Probation and Parole, testified at a budget hearing about needed improvements. The Legislature would be wise to listen. The state had projected its prison population to increase to more than 56,000 in 2014. Instead, Wetzel testified, it dropped by 908 inmates to 50,6756, the lowest population since June 2009, the largest one-year decrease since 1971 and only the fourth annual decrease in 40 years.
At the same time, critically, the state’s crime rate continued to decline, demonstrating that reduced incarceration was not accompanied by increased crime.
Further illustrating that was a decrease in recidivism, which results from a wide array of initiatives ranging from the simple to the complex. For example, Wetzel said the system now ensures that inmates leaving prison have state-issued identification cards to help them gain access to the services they need on the outside to help keep them out of trouble. And, he said, his department and the parole board have worked together to better prepare inmates about to leave prison, and with courts and mental health agencies to help steer exiting inmates to the services they need.
Wetzel and Tuttle asked the Legislature last week to take a major step to accelerate corrections systems improvements. They want to merge the two agencies. Doing so, they said, would provide offenders with just one set of rules rather than two as they leave prison, eliminate confusion over scheduling and streamline the parole process, consolidate some administrative functions to reduce costs and improve services for offenders to help reduce recidivism.
The Legislature has a good record in making some of the state’s mandatory sentencing laws less draconian to help reduce the prison population and its attendant costs. Members should continue that momentum by embracing Wetzel’s and Tuttle’s proposal.

New Mexico seeks to end forfeiture without conviction

The New Mexico legislature passed a bill  that will end civil asset forfeiture in the state, according to Jurist. The bill, HB 560, was passed in the senate by a vote of 37-0. Civil asset forfeiture is a police practice in which authorities can take an individual's property without charging that person for a crime.
The bill abolishes this practice, and now before police may seize an individual's property they must convict that person of a crime and prove that the property being seized was used in the commission of that crime. Additionally, the bill directs any monetary gains from the seizure of property to the state's general fund instead of the police budget. This is thought to remove any incentive police may have to seek out opportunities to seize property. The bill will now move to Republican Governor Susana Martinez's  for a final signature.
Civil asset forfeiture  has been a contentious issue among various states in recent years. Earlier this month Texas state representative David Simpson filed a bill  to repeal the state's civil asset forfeiture laws. "No one should forfeit their property without being convicted of a crime," he stated." Our current civil forfeiture provisions, though a well intended tool for law enforcement, have eroded the constitutional rights of individuals. It is time we end the practice." Last month Wyoming Governor Matt Mead vetoed the state's civil asset forfeiture reform bill, which had gained considerable support before the governor shot it down. The governor cited the importance of fighting illicit drug activity and profiting from the forfeiture of property seized in such situations. "Crime should not pay, especially drug crime," a letter from Mead vetoing the bill reads. "We do not have the abuses found in other in other states."
Visit Jurist

Tuesday, March 24, 2015

SCOTUS to decide if ADA requires police to take special precautions during arrest

The Supreme Court is considering whether the Americans With Disabilities Act requires police to take special precautions when trying to arrest armed and violent suspects who are mentally ill, reported the Associated Press.
The justices hear arguments Monday in a dispute over how police in San Francisco dealt with a woman suffering from schizophrenia who had threatened to kill her social worker. Police forced their way into Teresa Sheehan's room at a group home and then shot her five times after she came at them with a knife.
Sheehan survived and later sued the city, claiming police had a duty under the ADA to consider her mental illness and take more steps to avoid a violent confrontation.
Her attorneys say laws protecting the disabled require police to make reasonable accommodations when arresting people who have mental or physical disabilities. They say police could have used less aggressive tactics, such as waiting for backup and trying to talk to her in a nonthreatening way.
City officials argue the ADA does not require accommodations for armed and dangerous people who are mentally ill and pose a threat to others.
The case has attracted attention from mental health advocates who say that failing to take account of a suspect's disability often results in unnecessary shootings by police.
Law enforcement groups have also weighed in, saying a ruling in Sheehan's favor could undermine police tactics, place officers and bystanders at risk and open them to additional liability.
The ADA generally requires public officials to make "reasonable accommodations" to avoid discriminating against people with disabilities. But lower courts have split on how the law should apply to police conduct when public safety is at risk.
In Sheehan's case, her social worker called police for help in restraining her so she could be taken to a hospital for treatment. Officers entered her room with a key, but Sheehan threatened them with a knife, so they closed the door and called for backup. But they said they weren't sure whether Sheehan had a way to escape, and were concerned that she might have other weapons inside.
The officers then forced their way in and tried to subdue her with pepper spray. But she continued to come toward them with the knife and was shot five times.
A federal district court sided with the police, ruling that it would be unreasonable to ask officers trying to detain a violent, mentally disabled person to comply with the ADA before protecting themselves and others. But the 9th U.S. Circuit Court of Appeals said a jury should decide whether it was reasonable for the officers to use less confrontational tactics.
To read more CLICK HERE

Monday, March 23, 2015

Former Philadelphia mayor compares mass incarceration to Jim Crow

Former Philadelphia Mayor Wilson Goode, speaking at Millersville University, drew parallels between today's criminal justice system and a past of black exploitation and racial segregation, according Lancasteronline.
Goode said the drug war and other ill-considered social policies have led to a comprehensive "prison industrial complex" that operates "very much like slavery and Jim Crow."
"What I know now is that this is a crisis," said Goode, addressing about 150 at Lancaster NAACP's annual dinner. "It is a national crisis. It is a crisis born decades ago in unfulfilled promises and great expectations."
The fruits of the crisis, Goode declared, are drop-out and incarceration rates disproportionately affecting poor blacks.
Goode, 76, speaking in a firm, measured cadence, said blacks represent 12 percent of the nation's population and 44 percent of prisoners. He said a black youth drops out every 26 seconds.
The country ranks No. 18 in the world in high school graduation and No. 1 in incarceration, he said.
"Because of the racial nature of this incarceration, it functions very much like slavery," said Goode, a minister and head of Amachi, a mentoring program for children of incarcerated parents.
"And further," he continued, "that upon the reentry of these persons to society, they are denied the right to vote, the right to serve on juries and denied the right for gainful employment.”
To read more CLICK HERE


Sunday, March 22, 2015

Mangino discusses Robert Durst's arrest on WFMJ-TV Weekend Today

Watch my interview on WFMJ-TV's Weekend Today about the twists and turns in millionaire real estate heir Robert Durst's arrest and prosecution for murder.

To watch the interview CLICK HERE

Florida provides juveniles offenders with opportunity for parole

The Florida Supreme Court has ruled that juvenile convicts sentenced to more than 25 years in prison now have the right to a judicial review of their sentences, according to WLPG-TV.
While considering each individual's capacity for rehabilitation, judges have to determine sentences in accordance with the 2-year-old U.S. Supreme Court decision prohibiting sentences of mandatory life in prison without the possibility of parole.
The U.S. Supreme Court case, Miller v. Alabama, no longer allows a juvenile to be automatically sentenced to life for committing murder. Life sentences are still allowed, but the case mandates an "individualized" sentencing hearing.  Graham v. Florida  held that a juvenile cannot be sentenced to life or a term of years equal to life for a non-homicide crime.
The question remains, "What term of years will the court consider not equal to life?"
The four Florida Supreme Court decisions recently released --  Horsley v. State,  the case of   Falcon v. State, the case of Henry v. State, and Gridine v. State -- change sentencing structure for juvenile defendants who commit both homicide and non-homicide.
In the case of Shimmeka Gridine, who is now 20, the court tossed a 70 year sentence. Gridine will return to Jacksonville to be re-sentenced.
All of the decisions on the new rules for juvenile defendants were unanimous. If a killer is freed, there must be a minimum of five years probation period.
To read more CLICK HERE

Saturday, March 21, 2015

GateHouse: When is a confession not a confession?

Matthew T. Mangino
GateHouse Media
March 20, 2015
About 15 years ago in Winter Haven, Florida, Thomas Roe Oldt, a columnist for the local paper, The Ledger, wrote about the quick and unlikely arrest of two teenagers accused of murder.
The teens apparently bragged about the killing. Winter Haven Police Chief David Romaine told Oldt, “The criminal element likes to brag about what happened and what they did to make themselves higher in the food chain with their peers.”
Criminals boast, and that often leads to their downfall. However, that doesn’t explain what happened this week in the highly charged case of Robert Durst, the heir to a New York real estate fortune. 
The HBO series “The Jinx” is based on filmmaker Andrew Jarecki’s examination of the life of Durst, a key suspect in a series of unsolved murders. In the season finale, Durst walked away from the set to use the bathroom wearing a microphone. While in the bathroom by himself he mumbled, “What the hell did I do? Killed them all, of course.” 
The statement was recorded. The episode was broadcasted. Durst was arrested. 
Unlike the Winter Haven teenagers, Durst wasn’t bragging, he was talking to himself. Therein begins the legal rumblings that will set the stage for yet another made for TV trial. 
Will Durst’s mutterings be admissible at trial? To start, the statement is hearsay. A statement made outside of court is normally not admissible. But there are exceptions to the hearsay rule. A statement against interest by a party to the proceeding, in this case the defendant, is admissible.
However, was the statement against Durst’s interest? Here we need some context and there is no one to provide it. Durst was talking to himself. Did he mean, “now that I spoke on camera, everyone is going to think ‘I killed them all.’” Did he really mean he killed them all; and who is included in “all”—the statement is not specific. Talking out loud to one’s self is not a conversation — but rather an exploration of thoughts, ideas or even fears.
How about the constitutional issues? The filmmakers admitted that they had been cooperating with the police. Were the filmmakers working as an instrument of the state and trying to coax a confession out of Durst?
A court-ordered suppression of a confession is primarily to address police misconduct. Here the filmmakers had no obligation to warn Durst that he had the right to remain silent or have an attorney present — the iconic Miranda warnings we recognize from television crime dramas. Even if the filmmakers were acting on behalf of the police, those warnings only apply to a custodial interrogation — in other words, Durst would have been subject to questioning and would not have been free to leave. That was not the case.
The U.S. Supreme Court has long interpreted the Fourth Amendment to require law enforcement to get a warrant when eavesdropping on a suspect who has a reasonable expectation of privacy. In 1967, the Supreme Court said a bookie had a reasonable expectation of privacy while inside a telephone booth. The court tossed out the surreptitious recording of his bookmaking.
If the filmmakers had become an instrument of law enforcement, then the police would need a warrant to record Durst in the bathroom, because he has a reasonable expectation of privacy. However, Durst had a microphone on, and was warned in the past that the microphone was recording even when not in front of the camera. That fact diminishes his expectation of privacy. 
When Durst was arrested at his New Orleans home, police found marijuana and a gun. He was arraigned on those charges as well. If the court ultimately says that the recorded statement is not admissible and his arrest unlawful, could the drug and gun charge also be gone? Maybe, there is a theory in the law that any evidence illegally obtained with an invalid search warrant or arrest warrant may be suppressed as “fruit of the poisonous tree.”
The issues are many and the potential twists and turns would thrill any television news executive. And, don’t forget, Durst’s high priced legal team already got him acquitted of a homicide that he admitted. Stay tuned.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Friday, March 20, 2015

Washington Post: Only about 1 in 4 condemned inmates have been executed since 1973

If a person is given a death sentence, what is his or her chance of actually being executed? Based on a review of every death sentence in the United States since 1973, the beginning of the modern era of the death penalty,  Frank R. Baumgartner and Anna W. Dietrich wrote in the Washington Post that the most likely outcome is not being executed or even remaining on death row as an appeal makes its way through the courts.
In fact, the most common circumstance is that the death sentence will be overturned. Here is why that matters, according to Baumgartner and Dietrich.
From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts, and 1,359 individuals were executed — only 16 percent. Even excluding those who remained on death row as of 2013, only about 24 percent of condemned inmates have been executed. Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed. Here is a summary of the outcomes:
  • 8,466 death sentences were imposed across the United States from 1973 through 2013.
  • 3,194 were overturned on appeal, composed as follows. For 523, the underlying statute was declared unconstitutional. For 890, the conviction was overturned. For 1,781, the death penalty was overturned, but guilt was sustained.
  • 2,979 remain on death row as of Dec. 31, 2013.
  • 1,359 were executed.
  • 509 died on death row from suicide or natural causes.
  • 392 had their sentence commuted by the governor to life in prison.
  • 33 had some other outcome or a miscellaneous reason for being removed from death row.
Execution is in fact the third most likely outcome following a death sentence. Much more likely is the inmate to have their sentence reversed, or to remain for decades on death row.
Executions have never been the most common outcome of a death sentence. In the early years of the modern death penalty, many were removed from death row because the underlying statute under which they were condemned was ruled unconstitutional. In fact, of 721 individuals sentenced between 1973 and 1976, just 33 were eventually executed. Other reversals have come because inmates’ individual convictions were overturned, and some were exonerated entirely.
But by far the most likely outcome of a U.S. death sentence is that it will eventually be reversed and the inmate will remain in prison with a different form of death sentence: life without the possibility of parole.
Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge.
Throwing out a duly enrolled conviction is not something that state or federal appellate courts do because of a misplaced paperclip on a brief. State appellate courts and federal judges are not knee-jerk opponents of capital punishment; they participate in a system that imposes it regularly.
But both Republican and Democratic appointees have voted to overturn these convictions because they so often involve such issues as evidence withheld from the defense, improper instructions to the jury, or other serious flaws in the original trials.
States differ greatly in the degree to which they carry out their legal promise of death, but most operate systems consistent with the trends above: They sentence far more inmates to death than they actually execute. The graph below shows the percent of death sentences that have been carried out, for all 40 states that have had the death penalty as well as for the federal government, which has executed three individuals but has condemned 71.
The average state has a 13 percent likelihood of carrying out a death sentence. Some states—such as Texas, South Dakota, Missouri, and Oklahoma—significantly higher rates, though none of these states reaches a level of 50 percent.
In fact, only one state, Virginia, has executed more than half of the inmates it has condemned. This rate of execution may stem in part from legal shortcomings, however: an American Bar Association report recently found many areas in which Virginia’s “highly efficient” death penalty suffers from deficiencies: in access to post-conviction DNA testing, jury instructions, prosecutors’ provision of evidence to the defense, and other areas.
Several states listed at the top of the graph have not executed a single person, though New Jersey sentenced as many as 52. Pennsylvania and California have very large death penalty systems, but extremely low rates of executing those who have been condemned.
Texas, Florida, and California have all condemned more than 1,000 individuals to death in the modern period. However, the numbers of executions in these states are 508, 81, and 13, respectively. Virginia has sentenced 152 individuals to die, and 110 have been put to death. The long string of dots along the bottom rows of the graph shows that, in general, no matter how many people the states say they are going to execute, in fact, very few are actually executed.
Regardless of one’s view of the death penalty in principle, these numbers raise questions about how the death penalty is applied in practice. The wide differences across states in the odds of carrying out a death sentence are potentially troubling from an equal protection standpoint. Indeed, David Garland has argued that if it were not for federalism and the strength of the Southern reaction to a series of U.S. Supreme Court decisions in the 1960s and 1970s, we might never have seen the resurgence of the death penalty in the post-Furman world.
Also potentially troubling is the simple fact that most death sentences do not result in executions. In fact, a federal judge recently ruled that California’s death penalty is unconstitutional because it is in fact a penalty of “life in prison with the remote possibility of death.”
Ultimately, the American system of capital punishment arguably creates unnecessary suffering for both those defendants sentenced to death and the surviving family members of the victims of the crimes for which the defendants were convicted. A system that ensures prolonged court time, automatic appeals for the convicted inmate – most of whom are eventually successful – and only a small chance of actual execution is a system built on false promises for everyone, and indeed one that seems to verge on torture.

To read more CLICK HERE

Thursday, March 19, 2015

Former attorneys general come out against Oklahoma execution protocol

More than a dozen former state attorneys general have asked the US Supreme Court to determine that Oklahoma's continued use of  three-drug execution protocol which including midazolam violates the constitutional rights of three death row inmates slated for execution, according to a press release by The Constitution Project.
In a friend-of-the-court brief organized by The Constitution Project, a bipartisan legal watchdog group, the former state officials, including former Vice President Walter Mondale, argued that Oklahoma's use of midazolam as a part of its lethal injection protocol does not properly induce unconsciousness and could therefore result in an extremely painful death, contravening the constitutional ban on cruel and unusual punishment.
"With execution dates looming," the officials wrote in their brief, Oklahoma "rushed to judgment, quickly selecting midazolam to serve as the crucial first drug in a three-drug protocol, even though it is not medically equivalent to drugs used for that purpose." In selecting this new method of execution, Oklahoma's lawyers "failed to consult medical or correctional experts" and instead "relied on their own internet research and conversations with officials in other States," which, the brief argues, violates the State's "most solemn duty to carry out lawful punishments."
"The selection and implementation of the means of executing prisoners condemned to death ... demands serious contemplation, consideration of scientific, medical, and technical evidence, and collaboration with experts," they wrote, adding "Oklahoma failed to meet those standards here."
The brief notes that Oklahoma used the contested drug last April in the execution of Clayton Lockett, who seemed to writhe in pain for 43 minutes after the injection of midazolam, before eventually succumbing to a heart attack after the execution process had been stopped. The chemical was also used in problematic executions in Ohio and Arizona.
The officials also disputed Oklahoma's claim that the state has no alternative but to use the drug.
"States carry out lawful executions by lethal injection on a regular basis without using midazolam," they wrote, noting that three other states have carried out a total of 18 death sentences since Lockett's botched execution without it.
On April 29, the Supreme Court will hear the case of the inmates -- Richard E. Glossip, John M. Grant, and Benjamin R. Cole Sr., all three sentenced to death for their involvement in separate crimes. On January 28, the court blocked the state from using midazolam until it can decide the case.
In addition to Mondale, who previously served as Minnesota Attorney General, other former state attorneys general signing the brief include: William Broaddus (Va.); Robert Del Tufo (N.J.); Mark Earley (Va.); Tyrone Fahner (Ill.); Scott Harshbarger (Mass.); Robert Henry (Okla.); Peg Lautenschlager (Wisc.); Jim Petro (Ohio); Deborah Poritz (N.J.); Ernie Preate (Penn.); Mark Shurtleff (Utah); and John Van de Kamp (Calif.). Some support the death penalty; others oppose it.
The case is Glossip v. Gross (14-7955). The brief, which was drafted with the pro bono assistance of Jenner & Block in Washington, D.C., is available online.

Wednesday, March 18, 2015

Thiel College-The Death Penalty

Thiel College-Comment Project No. 5

The neuropsychology issue raised in juvenile death penalty cases before the U.S. Supreme Court has jumped to non-death penalty cases like juvenile life without parole. Do you think brain development cases will further seep into juvenile criminal jurisprudence?  Explain your position in detail.

Missouri executes 74-year-old brain damaged killer

The 10th Execution of 2015
Missouri executed Cecil Clayton on March 17, 2015. He was convicted of killing a sheriff's deputy.
Clayton, 74, of southwest Missouri, was pronounced dead at 9:21 p.m. CDT after receiving a lethal injection of drugs at a Missouri state prison. He was the second inmate executed in Missouri this year and the 10th in the country.
Police were called in November 1996 on a complaint that Clayton, who had been arguing with his girlfriend, was trespassing. He shot Barry County Sheriff's Deputy Christopher Castetter in the head while the officer was in his patrol car.
Clayton's attorneys had argued that his intelligence dropped precipitously after a piece of wood was driven into his skull during a sawmill accident in 1972. Surgery was required, resulting in the loss of part of the frontal lobe of his brain.
He also suffered from hallucinations and delusions due to the injury, his attorneys said in court papers.
At trial, Clayton's attorneys argued that the accident left him incapable of deliberating or forming the intent necessary for a finding of first-degree murder.
Clayton did not believe he would be executed, thinking instead that God would set him free to travel the country, preaching and singing the gospel, his attorneys said.
"Cecil Clayton tonight has paid the ultimate price for his terrible crime," Missouri Attorney General Chris Koster said in a statement following the execution.
The Missouri Supreme Court, in a 4-3 decision, found Clayton was not intellectually disabled under state law and denied his petition for a competency hearing.
The U.S. Supreme Court on Tuesday night denied his final appeals for a stay of execution. A U.S. appeals court panel had denied his requests to stop the execution earlier on Tuesday, and Missouri Governor Jay Nixon also rejected his clemency request.
To read more CLICK HERE

Tuesday, March 17, 2015

Justice Lab: The Prison Boom

This is the ninth in a series from Dana Goldstein of the Justice Lab at The Marshall Project, Top 10 (Not Entirely Crazy) Theories Explaining the Great Crime Decline:

The prison boom

Because of increased drug-related arrests and mandatory minimum sentences, the American incarceration rate has more than quadrupled since 1970. Long prison sentences were supposed to incapacitate career criminals. Yet because criminals “age out” of law breaking whether or not they are in jail, incarceration itself could not have been the only driver of the crime decline.
The scholarly consensus is that mass incarceration accounted for about 10 to 20 percent of the overall crime drop since 1992. “If you did a thought experiment, let’s add a million people to the prison system, and let’s suppose 1 percent of them are really serious habitual offenders who commit 50 crimes per year, that’s a reduction of half a million crimes,” Roman says. “Whether the destruction of communities associated with mass incarceration is worth it? That’s a completely different question.”

The Marshall Project

Monday, March 16, 2015

GateHouse: Pennsylvania officials battle over possibility of rare execution

Matthew T. Mangino
GateHouse Media
March 6, 2015

The Pennsylvania Supreme Court has agreed to hear a case filed by Philadelphia district attorney Seth Williams challenging Gov. Tom Wolf’s so-called “moratorium” on executions.

Last month, Wolf imposed the moratorium by granting a reprieve to Terrance Williams, who was scheduled to die on March 4, 2015. Wolf has pledged to continue the moratorium by granting a reprieve to every inmate scheduled for execution until the Pennsylvania Task Force and Advisory Committee on Capital Punishment completes its report.

The governor’s legal authority exists pursuant to Article IV, Section 9 of the Pennsylvania Constitution. The governor has exclusive authority to grant reprieves and may exercise that authority for any reason.

Although there has not been an execution in Pennsylvania in 15 years and that was unlikely to change even without the governor’s intervention, Williams sought the King’s Bench authority of the Supreme Court to intervene.

King’s Bench power is a 12th-century legal authority the Legislature bestowed in 1722 on the Pennsylvania Supreme Court. The now codified authority provides the Supreme Court “[M]ay . . . in any matter . . . involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done.”

The Philadelphia district attorney has suggested that Wolf’s action was beyond the governor’s authority. The filing with the Supreme Court makes a point to emphasize, “Merely characterizing conduct by the governor as a reprieve does not make it so.”

The prosecutor’s petition goes on to argue, “The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”

The governor’s response, according to the Pittsburgh Post-Gazette, provides “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis.’ ” The response also notes that there is no time limitation included in the Constitution for how long a reprieve might last, meaning the governor may issue a reprieve as he sees fit.

Prosecutors asked the Supreme Court to take the case on an expedited basis. Citing Pennsylvania case law, prosecutors argued where a case is “one of significant public importance” Pennsylvania’s Supreme Court may grant a request for “an advanced briefing schedule and expedited disposition.” The court refused. The case will be heard on a regular court schedule, providing both sides with the opportunity argue whether the court should even taken up the matter, as well as the parties’ positions regarding the underlying dispute.

“Issues of gubernatorial discretion are really uncharted water in Pennsylvania,” Bruce Ledewitz, a professor at Duquesne University School of Law, told WESA-FM of Pittsburgh.

“If this were at the federal level, there were a lot of ways the president could do this, but the governor in Pennsylvania doesn’t have the kind of authority that the president of the United States has,” Ledewitz said. “We just haven’t structured our executive power the same way under our state constitution. We have fractured the executive power and we have limited it in lots of ways.”

There are approximately 186 men and women on Pennsylvania’s death row. Some of those condemned prisoners has been sitting there for more than 30 years. That won’t change anytime soon.

University of Pittsburgh law professor John Burkoff told the Post-Gazette, “It will probably be more than a year before any decision is reached.” He said it could take even longer if the court decides to wait for the input of two new justices, who will be elected this fall.

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

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Sunday, March 15, 2015

Alabama House opts for the electric chair

The  Alabama House of Representatives voted to keep execution drug suppliers' names secret and to bring back the use of the electric chair when chemicals for lethal injection are not available, reported Jurist. The members of the House added the drug suppliers secrecy section to a bill that is currently under debate.
The bill would allow the use of the electric chair in the state whenever the state is unable to acquire lethal injection drugs or if the execution method is deemed unconstitutional. Representative Lynn Greer said that Alabama and other states are having issues acquiring the drugs because pharmacies fear lawsuits from death penalty opponents. However, there was some opposition to the provision, as representative Chris England stated that drug purchases are public record and the state has no authority to hide this information from the public.
The members passed the bill by a vote of 76-26, sending it now to the Alabama Senate.
To read more CLICK HERE

Saturday, March 14, 2015

GateHouse: Leniency or smart punishment strategy

Matthew T. Mangino
GateHouse Media
March 13, 2015

As prisons continue to grow and states struggle to pay the costs, the disastrous consequences of the prison industrial complex have come into focus.

In 1998, Eric Schlosser, in an Atlantic Monthly article, defined the prison industrial complex as “a set of bureaucratic, political, and economic interests that encourage increased spending on imprisonment, regardless of the actual need.”

The prison industrial complex has fueled the increasing number of Americans in state and federal prisons over the past three decades. Although the rate of growth has slowed, the problem is clearly evident in 17 states where the prison population is now higher than the capacity of the facilities designed to hold them, reported The Washington Post.

The number of persons in local jails declined in 2013 according to the Bureau of Justice Statistics. The news was not all good: The state prison population grew by more than 4,000.

The future looks bleak as well. According to the Justice Policy Institute, one in every 15 Americans born in 2001 is expected to serve at least a year in prison during their lifetime. The news is equally bleak on the federal level. The Bureau of Prisons is more than 30 percent over capacity, and the cost of federal prisons has increased by more than 1,100 percent.

A bipartisan group of senators has introduced the Smarter Sentencing Act of 2015 to modernize federal drug sentencing policies by giving federal judges more discretion in sentencing those convicted of nonviolent drug offenses. The Congressional Budget Office estimated that implementation of the act would save taxpayers approximately $3 billion in corrections costs over 10 years.

In response, U.S. Sen. Charles Grassley, chairman of the Senate Judiciary Committee, lamented what he called the leniency industrial complex. He suggested the Smarter Sentencing Act is a weak attempt to defend the indefensible.

Supporters of the Act “gloss over the fact that even if an offender was not violent in a particular case, he may have committed a prior violent offense that would make him in fact violent … many drug-related crimes occur through force or the threat of force or are conducted by people in a criminal enterprise that relies on violence.”

On the state level, efforts are ongoing to address prison overcrowding. In 2010, the federal Bureau of Justice Assistance launched the Justice Reinvestment Initiative, with funding appropriated by Congress. The JRI State Assessment Report, released by the Urban Institute in January 2014, showed that 17 JRI states are making steady progress toward reducing correctional spending and reinvesting in recidivism-reduction strategies. Although projected savings vary, the report estimates that savings could amount to as much as $4.7 billion over a 10-year period.

A group studying overcrowding in Alabama’s prisons has found that arrests are declining and sentences are getting shorter. But Alabama’s prisons remain at nearly double their designed capacity.

The Council of State Governments told The Montgomery Advertiser that the average length of an inmate’s prison term before parole release has increased from 30 months in 2009 to 43 months in 2014. The number of eligible inmates being released has also fallen from about 42 percent in 2009 to 36 percent in 2013.

New York Gov. Andrew Cuomo took the bold step of taking on the prison industrial complex during his January state of the state address.

“An incarceration program is not an employment program,” Cuomo said. “Don’t put other people in prison in order to give some people jobs.”

While Sen. Grassley raises the specter of the leniency industrial complex, he ignores the pervasive abuse brought on by the prison industrial complex. Whole families and entire communities are devastated when the coercive influence of government is used for the gain of a select few.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Friday, March 13, 2015

Texas carries out first execution in more than a month

The 9th Execution of 2015
Manuel Vasquez a hit man for a Mexican Mafia gang was executed was declared dead on March 11, 2015 at 6:32 p.m., 17 minutes after a lethal dose of pentobarbital was released through an IV into his arm, reported the Texas Tribune.
He was sentenced to death for his role in the murder of Juanita Ybarra, 51, who had refused to pay gang members a 10 percent street tax on illegal drugs she was selling.
Asked if he had a last statement, Vasquez, strapped onto a gurney, looked straight up at the ceiling and uttered a brief one.
"I want to say 'I love you' to all my family and friends. Thank you, Lord for your mercy and unconditional love. In Jesus' name I pray, amen," Vasquez said. His sister, Mary Helen Vasquez, cried loudly as she watched her brother take about two dozen breaths before becoming unconscious.
She declined to make any statement following the execution.
In 1999, jurors convicted Vasquez after hearing how he, Johnny Joe Cruz and Oligario Lujan, broke into Ybarra's motel room and beat up her boyfriend before turning on Ybarra, who Vasquez strangled with a telephone cord. Prosecutors say Ybarra was killed after refusing to pay a street tax to the gang.
The trio robbed the couple of their valuables and left.
According to court records, the three were working for Mexican Mafia boss Rene Munoz, who was on the Texas Department of Public Safety's 10 Most Wanted List until his 2012 arrest. Cruz took a plea deal and served seven years. Lujan is serving a 35-year prison term.
Court records show Vasquez had a history of violence. He received a 10-year prison sentence for his role in the 1986 death of Robert Alva, who was beaten, choked and set on fire.
The execution of Vasquez leaves the Texas Department of Criminal Justice with enough pentobarbital — the drug it uses for lethal injections — for one more execution, unless a new supply of the drug is found. Six more executions are scheduled between now and mid-May.
Jason Clark, spokesman for TDCJ declined to elaborate  specifically on what options the state's prison system is considering if a new pentobarbital source is not found.
To read more CLICK HERE

Thursday, March 12, 2015

U.S. Supreme Court to hear another death penalty case

The US Supreme Court granted certiorari  in Hurst v. Florida to determine "whether Florida's death sentencing scheme violated the Sixth ... or Eighth Amendment," reported Jurist. The court granted certiorari in light of its decision in Ring v. Arizona, in which it held that a sentencing judge, sitting without a jury, may not "find an aggravating circumstance necessary for imposition of the death penalty."
In the case before the court, Timothy Hurst was convicted and sentenced to death in 1998 for one count of first degree murder. It was found that the murder was "especially heinous, atrocious, or cruel," and thus justified the death sentence. Although it was found that Hurst suffered from Fetal Alcohol Syndrome, and thus was of "limited intellectual capacity," the court did not consider this as mitigation, and thus did not assign it any weight.
The high court has already agreed to hear an Oklahoma case, this year, on lethal injection.
To read more CLICK HERE

Wednesday, March 11, 2015

The Champion Book Review: The Executioner's Toll, 2010

Book Review: The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words And Executions of 46 Persons in The United States
By Gregory M. Rosatelli
The Champion Magazine
The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words And Executions of 46 Persons in The United States
By Matthew T. Mangino
McFarland & Company (2014)

             Matthew T. Mangino’s book The Executioner’s Toll, 2010 reminds us of what Justice Harry

Blackmun famously said in 1994: “I no longer shall tinker with the machinery of death.” Many

writers, like Mangino and Evan J. Mandery in A Wild Justice, continue to tinker with the death


             However, none of the recent tinkering is like Mangino’s. As a former prosecutor, Mangino made

every effort to remain unbiased as he examined every execution, 46 to be exact, in 2010. He did not

cherry-pick the “good” cases or the “bad” cases. Mangino meticulously researched each execution

and included 11 pages of endnotes. The stories of each execution are both poignant and unbelievable.

             Interwoven with the stories of mayhem and debauchery is an active practitioners insight into courtroom practice and a concise history of the U.S. Supreme Court’s treatment of the death penalty.

             The book may be a bit too graphic at times, though not necessarily the gratuitous violence we’ve come to expect from slasher movies, but more than one might care to read in a couple settings.

            Mandrey’s book thoroughly examined the back story among the justices with regard to the decision in Furman v. Georgia which struck down the death penalty in 1972.  Mandrey suggested that two of opinion’s principle supporters, Justice Potter Stewart and Justice Byron White, believed “the problem was that the death penalty wasn’t used often enough to serve any societal purpose.”

            Mangino suggests something similar.  He suggested that the death penalty today maybe arbitrary in the way that it is carried out, in much the same way the death penalty was arbitrary in the way it was imposed in 1972.

             This book is timely in that it examines the evolution of lethal injection.  The efficacy of lethal injection has been thoroughly examined in light of a series of recent “botched” executions.  Ohio has lead the way in the evolving methods of lethal injection.  Ohio was, next to Texas, the most prolific state for executions in 2010.  Ohio carried out eight executions, the only state north of the Mason-Dixon line to carry out an execution.

            Ohio was the first state to move to a single drug execution protocol, from the traditional three-drug protocol.  Ohio was the first state to use pentobarbital as a single execution drug. Ohio’s manic approach to state sponsored death is now under scrutiny. Ohio recently moved to a two-drug protocol which was utilized during a “botched” execution in January of 2014.

            As the title of Mangino’s book suggests he examined “The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States.” Some of the final statements are not easily forgotten.

Jeffrey Landrigan was executed in Arizona. He was a native of Oklahoma.  The state lives and breaths OU football with the chant “Boomer Sooner.”  Mangino describes Landrigan’s final words like this, “In a strong voice with a heavy Oklahoma accent, Landrigan's last words were, ‘Well, I'd like to say thank you to my family for being here and all my friends, and Boomer Sooner.’"

There are cases described in “The Executioner’s Toll, 2010” that should cause pause for readers regardless of their position with regard to the death penalty. 

The final execution chronicled by Mangino cries-out for the death penalty.  John David Duty was in an Oklahoma prison for murder.  He didn’t want to spend his life in prison so he decided he would have the state end his life.  He strangled his cellmate and wrote a taunting letter to the DA asking for the death penalty or he would kill again, this time a staff member.

On the other hand, Martin Grossman was executed for the murder of a Florida game warden.  Grossman did not plan to kill anyone.  He was on probation and was out shooting a gun with a friend when he was confronted by the game warden.  He didn’t want to get his probation violated and end up in jail.  He attacked the game warden and ended up killing her.

Mangino’s book also provides a glimpse into an area that is generating a lot of death penalty news.  A federal judge and a number of state legislatures are looking at alternatives to lethal injection for purposes of execution.  In 2010, there was an execution in Utah by firing squad and in Virginia by electrocution.  Mangino examines both, and provides an unbiased insight into the “machinery of death.”

Utah moves closer to return of the firing squad

Utah has passed a bill that would make it the only state to allow firing squads for carrying out a death penalty if there is a shortage of execution drugs, reported The Associated Press.
The 18-10 vote by the state Senate comes as states struggle to obtain lethal injection drugs amid a nationwide shortage.
The bill's sponsor, Republican Rep. Paul Ray of Clearfield, touted the measure as being a more humane form of execution. Ray argued that a team of trained marksmen is faster and more humane than the drawn-out deaths that have occurred in botched lethal injections.
Opponents disagree, saying firing squads are a cruel holdover from the state's wild West days and will earn the state international condemnation.
Whether it will become law in the conservative Western state is unclear: Utah Gov. Gary Herbert, a Republican, won't say if he'll sign the measure. His spokesman, Marty Carpenter, did issue a statement this week acknowledging that the method would give Utah a legitimate backup method if execution drugs are unavailable.
It would reinstate the use of firing squads more than a decade after the state abandoned the practice.
Utah is one of several states to seek out new forms of capital punishment after a botched Oklahoma lethal injection last year and one in Arizona that took nearly two hours for the condemned man to die.
Legislation to allow firing squads has been introduced in Arkansas this year. In Wyoming, a measure to allow firing squads if the lethal drugs aren't available died. In Oklahoma, lawmakers are considering legislation that would allow the state to use nitrogen gas to execute inmates.
Utah's proposal keeps lethal injection as the primary method of execution, but it allows for the state to use firing squads if the state cannot obtain lethal injection drugs.
Utah's last execution was by a firing squad in 2010, when Ronnie Lee Gardner was executed by five police officers with .30-caliber Winchester rifles. The state has carried out three executions by firing squad since the U.S. Supreme Court reinstated the death penalty in 1976.
The Washington, D.C.-based Death Penalty Information Center, which opposes capital punishment, says a firing squad is not a foolproof execution method because the inmate could move or shooters could miss the heart, causing a slower, more painful death.
One such case appears to have happened in Utah's territorial days back in 1879, when a firing squad missed Wallace Wilkerson's heart and it took him 27 minutes to die, according to newspaper accounts.
To read more CLICK HERE

Tuesday, March 10, 2015

PLW: Death-Penalty Dispute Misses the Mark

Matthew T. Mangino
The Pennsylvania Law Weekly
March 9, 2015
The battle in Pennsylvania over the death penalty, although well intended on both sides of the issue, is misguided and will do nothing to advance the fundamental question: Is the death penalty an appropriate punishment in 21st century Pennsylvania?
Gov. Tom Wolf declared a moratorium on the death penalty Feb. 13. Wolf said, "Pennsylvania's system is riddled with flaws, making it error-prone, expensive and anything but infallible."
Wolf immediately came under fire from prosecutors and police officers. The Pennsylvania State Troopers Association excoriated the governor and the Pennsylvania District Attorneys Association admonished the governor, suggesting he exceeded his authority and imposed his will on the citizens of Pennsylvania.
Philadelphia District Attorney R. Seth Williams took the extraordinary step of asking the Pennsylvania Supreme Court to overrule and undo his moratorium on executions.
One might assume that Pennsylvania is a factory of death. An outsider might think that Pennsylvania carries out executions on a regular basis and that Wolf's action has caused the state's machinery of death to grind to a halt.
Not so. Pennsylvania has not carried out an involuntary execution in more than a half-century. There have been three executions in Pennsylvania since 1978 and all three men volunteered to be executed. They gave up their appeal rights and asked to die.
For those pounding their chests and stomping their feet about Wolf's reprieve, here are some things to think about. When Wolf suggested there were flaws with the death penalty, he might have been thinking of Terrance Williams, who was granted a reprieve from his execution scheduled for March 4.
Williams' attorneys and supporters have argued that important evidence was never presented to the jury that might have mitigated the chances that Williams would have been sentenced to death. Jurors from his 1990 trial have come forward to say they would not have sentenced Williams to death had they been aware that he was sexually abused as a child, and that both of his victims had abused him.
None of this mitigation evidence was raised during his direct appeal to the state Supreme Court, nor was the issue raised in post-conviction appeals. He has now exhausted his appeal and post-conviction rights.
In 2012, the Board of Pardons voted 3-2 in favor of commuting his sentence to life without parole. However an amendment to the Pennsylvania Constitution in 1997 requires a unanimous vote from the Board of Pardons to issue a "nonbinding" recommendation to the governor to grant clemency.
When Wolf suggested that the death-penalty process was error-prone, he may have been thinking of Nicholas Yarris. After serving 21 years on death row, Yarris was released in 2004.
Yarris' case shows just how much can go wrong in a high-stakes murder investigation. According to University of Virginia School of Law professor Brandon L. Garrett, Yarris was arrested by local police after being pulled over. He then got into an altercation with the officer. In lockup, he read in the newspaper about a serious rape and murder investigation and made a misguided offer to assist the local police.
Detectives interrogated Yarris, and, without recording the initial conversation, they later asserted, without any notes or documentation, that he had offered two key details about the murder that had never been made public, Garrett said. He supposedly volunteered that the victim had been raped and later described the victim's vehicle.
The prosecution also presented scarcely reliable eyewitness testimony and a jailhouse informant. Yarris was convicted of rape and murder and sentenced to death. He was later exonerated through DNA testing.
There has not been an execution in Pennsylvania in 15 years, and that was unlikely to change even without the governor's intervention. Yet, the Philadelphia district attorney has sought the King's Bench authority of the Supreme Court to intervene.
King's Bench power is a 12th century legal authority the legislature bestowed in 1722 on the state Supreme Court, granting the court constitutional authority over legal and supervisory aspects of the court system in the British colony.
Pursuant to 42 Pa.C.S. Section 726, the Supreme Court "may ... in any matter ... involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done."
In the early 1990s, the state Supreme Court justices faced a King's Bench dilemma. How does the court police itself? In the aftermath of the impeachment trial of Justice Rolf Larsen before the Supreme Court, voters amended the state constitution to limit the court's King's Bench authority. The change created a due process system for judges through a Judicial Conduct Board, which independently investigates misconduct complaints, and a Court of Judicial Discipline, which independently determines a judge's innocence or guilt.
The 1993 amendment to the constitution will have no bearing on the current dispute between the governor and the Philadelphia district attorney. The governor is using his authority pursuant to Article IV, Section 9 of the Pennsylvania Constitution, which provides that the governor has exclusive authority to grant reprieves and may exercise that authority for any reason. There at least two good reasons to exercise that authority.
Last month, the U.S. Supreme Court agreed to hear a lethal-injection case for the second time in seven years. In 2008, the high court upheld the constitutionality of Kentucky's lethal-injection protocol in Baze v. Rees, 553 U.S. 35 (2008).
The new case, Glossip v. Gross, No. 14-7955, was brought by Oklahoma inmates who claim the state execution protocol violates the constitution's ban against cruel and unusual punishment. Just last month,
Ohio Gov. John Kasich postponed all 2015 executions, seven in all, while awaiting a decision from the U.S. Supreme Court on lethal injection.
A second reason for delay was alluded to by Wolf in his announcement of a pause in the death penalty.
Wolf will continue to grant reprieves until the Pennsylvania Task Force and Advisory Committee on Capital Punishment completes its report. I am a member of the task force.
The task force was created by legislative action in 2011. The work of the committee is ongoing and includes the collection and analysis of data. This process is essential to making sound recommendations to the legislature and the governor.
A pause in carrying out executions—which, judging by history in Pennsylvania, seems like much ado about nothing—may nevertheless be helpful as policymakers try to drill down to the meat of the issue: Should Pennsylvania, or any state, have a death penalty? 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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Monday, March 9, 2015

The Graying of America's prisons

The U S. spends $16 billion annually on incarceration for individuals aged 50 and older, about double the cost of incarcerating a younger person, reported the Albany Times-Union and The Crime Report. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital with expensive around-the-clock guards.
Many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65. What are the solutions?
In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population, write Elizabeth Gaynes of the Osborne Association and former New York state corrections commissioner Brian Fischer in the Times-Union.
The Senior Ex-Offender Program in San Francisco is the first re-entry program in the U.S. that exclusively focuses on the aging population. In New York, the Osborne Association will begin a pilot project to provide discharge planning and case management support for elders released to New York City. "Any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people," say Gaynes and Fischer.

Sunday, March 8, 2015

Justice Lab: Police on the beat

This is the eighth in a series from Dana Goldstein of the Justice Lab at The Marshall Project, Top 10 (Not Entirely Crazy) Theories Explaining the Great Crime Decline:
Police on the beat

There are two theories of how policing prevented crime. The first is that Clinton administration funding for police departments allowed cities to put more cops on the beat, and that their increased presence prevented crime, regardless of what those officers were doing. The second is that particular policing tactics, like the broken windows approach or hot spot policing, were effective.
Hot spot, or place-based policing, in which departments use real-time crime data to flood dangerous micro-neighborhoods with officers, was effective in reducing crime, according to the work of David Weisburd, director of the Center for Evidence-Based Crime Policy at George Mason University. “In virtually every city in which it has been studied, the growth of hot spot policing tends to reduce crime without, fortunately, displacing it to other areas,” Rosenfeld explains.
Hot spot policing is often implemented in conjunction with the much heralded and critiqued broken windows strategy, in which police focus on making arrests for low-level misdemeanors—so-called “quality of life” crimes, such as public display of marijuana or selling single, untaxed cigarettes on the street. One of the best recent studies of policing tactics was conducted in Lowell, Mass., by Anthony Braga of Harvard and Brenda Bond of Suffolk University. It found that place-based strategies—such as increasing police presence around an abandoned building—were successful, but that broken windows-type arrests had the disadvantage of seeding distrust between communities and police.
Roman, however, is unsure if policing impacts crime rates as much as its proponents argue. He points out that three cities that experienced large crime declines—Washington, D.C., New York City, and San Diego—pursued vastly different policing strategies. In New York, the size of the police force quadrupled in the 1990s and the use of stop, question, and frisk created an “oppositional” relationship between neighborhoods and officers, Roman says. In San Diego, crime declined without a significant increase in the number of police on the beat. Meanwhile, in Washington, D.C., police chief Cathy Lanier has critiqued hot spot policing and stop, question, and frisk and has focused on community-oriented policing, even speaking about the need to hire officers who display “empathy.”

Saturday, March 7, 2015

PA Sec. Wetzel: 'Significant improvements' combining corrections and parole

"We see this as an opportunity to reset corrections in Pennsylvania"

Pennsylvania Governor Tom Wolf has proposed consolidating the Department of Corrections with the Pennsylvania Board of Probation and Parole as part of his 2015-2016 budget proposal, reported the Harrisburg Patriot-News. Corrections Secretary John Wetzel, who has served since 2011, said the consolidation plans provide an opening to make significant improvements to the Department of Corrections.
"We see this as an opportunity to reset corrections in Pennsylvania and put a system together that makes sense," Wetzel said. "[This consolidation] has been discussed, probably for decades."
At least 40 states already have its parole boards as a part of its departments of corrections. Consolidating the two entities is the "logical next step," he said.
"This is not groundbreaking, [but] it's going to feel like groundbreaking for Pennsylvania," Wetzel said. "Most states do it this way. It's not an idea that we're testing to see if it's effective."
"When you talk about efficiency, it's really going through a process and looking at every function that we do," Wetzel said.
The parole board is responsible for rehabilitating and supervising people on probation or parole and helping them to reintegrate within society. If the board were to be consolidated, it would maintain independent parole responsibility, Wetzel said.
"Their decision-making on releases still [would] remain an independent parole board structure," Wetzel said. "The way it is today... There would be no influence when they decide who is appropriate to get and who is not."
Wetzel said he is excited at the prospect of being able to transform how the corrections system works in the state.
"This is not just putting two agencies together and having two separate functioning agencies under one person," Wetzel said. "This is taking two separate agencies, restructuring both of them in a manner that you get one cohesive, well-functioning agency at the backend."
To read more CLICK HERE

Friday, March 6, 2015

Legislator to conduct hearings on Wolf death penalty moratorium

Opponents of Gov. Tom Wolf's moratorium on the death penalty gathered at the state Capitol on Wednesday to criticize that decision that they say was reached without input from crime victims or law enforcement officers, according to the Harrisburg Patriot-News.
They came together on the day that death row inmate Terrence Williams was scheduled to be executed; his being the first death sentence to be reprieved as a result of the moratorium. House Judiciary Committee Chairman Ron Marsico, R-Lower Paxton Twp., said he
plans to have at least two committee hearings on the issue of capital punishment, starting with one in Philadelphia on March 26 and the other scheduled for June. This month's hearing will focus on testimony from family members of murder victims.
Throughout the news conference, legislators along with the crime victims and district attorneys standing in front of a line of photos of murder victims criticized Wolf for failing to seek their input.
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