Friday, July 31, 2015

The rush for criminal justice reform

It wasn’t long ago that any Democratic talk about criminal-injustice reforms would be met with immediate, knee-jerk talking points about “soft-on-crime” liberals who want to “coddle” criminals, reported the MSNBC.  Last month, however, as Rachel noted on the show, even House Speaker John Boehner (R-Ohio) said he “absolutely” supports bipartisan reforms.
“We’ve got a lot of people in prison, frankly, that don’t really in my view need to be there,” the Republican leader told reporters, pleasantly surprising reform proponents. “It’s expensive to house. Some of these people are in there for what I’ll call flimsy reasons.”
The New York Times reported yesterday that the winds of change have shifted in a way that makes real progress possible for the first time in at least a generation.
…Congress seems poised to revise four decades of federal policy that greatly expanded the number of Americans – to roughly 750 per 100,000 – now incarcerated, by far the highest of any Western nation.
Senator Charles E. Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee who has long resisted changes to federal sentencing laws, said he expected to have a bipartisan bill ready before the August recess.
The details of Grassley’s bill are not yet available, but the fact that the effort is moving forward at all is an amazing development.
In 2015, the two major parties agree on practically nothing, but criminal-injustice reforms, of all things, have just the right combination of proponents to break through.
“This is a cause that’s bringing people in both houses of Congress together,” Obama told the NAACP. “It’s created some unlikely bedfellows. You’ve got Van Jones and Newt Gingrich.  You’ve got Americans for Tax Reform and the ACLU.  You’ve got the NAACP and the Koch brothers…. That’s good news.”
It is, indeed. For the left, the current system is destroying communities, hurting families, and ending opportunities for Americans who deserve a chance to succeed. For the right, the status quo is an expensive, inefficient mess.
To read more CLICK HERE

Wednesday, July 29, 2015

Pennsylvania attorneys get entangled in Wire Tap Act

Pennsylvania Attorney General Kathleen Kane's charging of two attorneys over alleged violations of the Wiretap Act could be a wake-up call for attorneys in an era when recording conversations has never been easier, according to Max Mitchell of The Legal Intelligencer.
Ethics attorney Michael B. Hayes of Montgomery McCracken Walker & Rhoads said it is increasingly important for attorneys to make an inquiry and to get information about where certain pieces of evidence came from.
Hayes said that, while legality and admissibility of evidence is weighed on a case-by-case and jurisdiction-by-jurisdiction basis, attorneys cannot direct their clients to do things they are not legally or ethically able to do.
"As folks' ability to generate evidence in this way becomes easier and easier, you've got to be careful that your client is not working to obtain evidence for you that would violate your rules of professional responsibility," Hayes said. In the digital age, "the danger is a little bit enhanced with the client who wants to help their lawyer make their case."
Along with technology, the law in this area is also rapidly evolving, attorneys said.
According to Hayes, the state Supreme Court's April 2014 decision in Commonwealth v. Spence could bear on the cases. In Spence, the justices ruled that telephones are expressly exempt from the devices prohibited by the Wiretap Act regardless of how they are used.
"It exempted phones, no matter what kind of phone it is, from the definition of electronic devices under the act," Hayes said. He noted that the cases could be distinguishable because in Spence a police officer used a phone to eavesdrop rather than record a conversation. "But the decision itself sweeps pretty broadly."
The courts are continuing to grapple with the implications of that decision, Hayes noted.
In June, the state Superior Court ruled in Commonwealth v. Diego that an iPad does not fall within the telephone exemption under the Wiretap Act, and users have no reasonable expectation of privacy when it comes to sending text messages.
To read more CLICK HERE

Tuesday, July 28, 2015

Prisoners will have access to college loans

More prisoners may soon have access to federal subsidies to pay for college under a new Obama administration initiative, ending a 20-year ban on Pell grants for state and federal prisoners, reported Politico.
The move could come as soon as this week. Education Secretary Arne Duncan and Attorney General Loretta Lynch are scheduled to visit Goucher College’s Prison Education Partnership at the Maryland Correctional Institution in Jessup, to make “an important announcement related to federal aid.”
The Obama administration has increased total federal aid available to students by more than $50 billion and increased tax benefits and credits by an additional $12 billion, part of a total of about $150 billion a year in grants and loans for higher education. More than 2 million additional students now receive Pell grants, and the maximum Pell award has increased by more than $1,000.
Lawmakers on both sides of the aisle have expressed support for such a policy, and House Democrats including education committee ranking member Bobby Scott (D-Va.) introduced legislation to reinstate Pell eligibility for federal and state prisoners. Prisoners in local, municipal or county correctional facilities haven’t been banned from access to Pell.
To read more CLICK HERE

Monday, July 27, 2015

1 in 25 sentenced to death are innocent?

Samuel R. Gross, a law professor at the University of Michigan, and editor of the National Registry of Exonerations wrote recently for the Washington Post: How many people are convicted of crimes they did not commit?
Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.
Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.
The problem may be worst at the low end of the spectrum, in misdemeanor courts where almost everybody pleads guilty.
Why then did they plead guilty? As best we can tell, most were held in jail because they couldn’t make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation or weeks to months in jail. If they refused, they’d wait in jail for months, if not a year or more, before they got to trial, and risk additional years in prison if they were convicted. That’s a high price to pay for a chance to prove one’s innocence.
Police officers are supposed to be suspicious and proactive, to stop, question and arrest people who might have committed crimes, or who might be about to do so. Most officers are honest, and, I am sure, they are usually right. But “most” and “usually right” are not good enough for criminal convictions. Courts — judges, prosecutors, defense attorneys, sometime juries — are supposed to decide criminal cases. Instead, most misdemeanor courts outsource deciding guilt or innocence to the police. It’s cheaper, but you get what you pay for.
To read more CLICK HERE

Sunday, July 26, 2015

Police officers killed by gunfire down by 25%

While there was an increase in killings of police officers in 2014, that came after a year in which such killings were at a historic low, according to the Washington Post.
Now, the National Law Enforcement Officers Memorial Fund has released its mid-year report on police officers’ deaths in 2015. Through the end of June, the number of officers killed by gunfire has dropped 25 percent from last year, from 24 to 18. Two of those incidents were accidental shootings (by other cops), so the number killed by hostile gunfire is 16. (As of today, the news is even better: Police deaths due to firearms through July 23 are down 30 percent from last year.)
That’s the same number of cops who have died on the job of a heart attack so far this year. The leading cause of deaths for cops this year has been traffic fatalities: Car accidents have claimed 30 police lives, an increase of 20 percent over last year.
To read more CLICK HERE

Saturday, July 25, 2015

Why are so many of Pennsylvania's mentally ill being locked up?

According to The Crime Report, based on an analysis of data from county and state prisons, PennLive estimates that nearly a third of Pennsylvania's 87,756 inmates had a mental illness on an average day last year. Of those inmates, PennLive estimates, about a third of them had a "serious mental illness" – defined as the most chronic and debilitating of mental disorders, like schizophrenia and bipolar disorder.
Both those rates are significantly higher than the rate among Pennsylvanians outside of prison.
It begs the question: Why are so many of the state's mentally ill being locked up?
Pennsylvania isn't the only state to have significantly high numbers of mentally ill people behind bars. Multiple studies have found disproportionately high rates in correctional facilities across the country.
Keith Humphreys, a professor of psychiatry at Stanford University, said the trend goes back to the 1960s.
Through much of the early 20th century, Humphreys said, a large number of America's seriously mentally ill were held in state psychiatric hospitals.
In the 1960s, however, due to growing concerns about abuses within these facilities and the ethics of confining people for the entirety of their lives, the country began a massive push to close state hospitals and move patients into the community. The hope was that they could live happier and more productive lives with the help of caseworkers and newly developed psychotropic drugs.
Between 1955 and today, America's total state hospital population fell from 558,000 to 43,000 – a decrease of more than 90 percent.
Pennsylvania embraced that campaign, known as deinstitutionalization, as much as any other state. Since 1955, the Commonwealth has closed more than 10 state hospitals and cut its average daily patient population from 41,000 to 1,500 – a decrease of 96 percent.
While the plan to treat former patients in the community might have been well-intentioned, Humphreys said, there was a key problem: Many states didn't invest enough money in case management and other community programs to meet the needs of former patients and those who would've been treated.
To read more CLICK HERE

Friday, July 24, 2015

GateHouse: Harper Lee remakes Atticus Finch

          Matthew T. Mangino
          GateHouse Media
          July 24, 2015
Lawyers are often not held in high esteem, unless of course, you need one. “Go Set a Watchman,” the new novel by Harper Lee, has done nothing to improve the image of lawyers.
More than a half century ago, Lee published her first novel, “To Kill a Mockingbird.” “Watchman” is her second. “Mockingbird” introduced adoring fans to Atticus Finch. A small-town Alabama lawyer, Finch has inspired young men and women to pursue careers in the law for decades.
Atticus, as his children Jem and Scout referred to him, was a beacon of integrity in a state “dripping with the words of ‘interposition’ and ‘nullification.’”
Lee won a Pulitzer Prize for “To Kill a Mockingbird” and never released another book until last week when HarperCollins released “Go Set a Watchman.”
Both stories are told through the eyes of Scout — Jean Louise Finch. In “Mockingbird,” Scout is a child of six through nine; in “Watchman” she is an adult of 26.
Although “Watchman” is a sequel to “Mockingbird,” it was written prior to “Mockingbird.” This curious alignment gives rise to some inconsistency. For those familiar with “Mockingbird,” Jean Louise thinks back to her father’s memorable trial at the Maycomb Courthouse. However, Jean Louise’s memory is not the same as ours. The defendant, Tom Robinson, did not have his arm “chopped off,” he was not acquitted and the case did not have overtures of consensual sex between a black man and a white woman.
What Lee does effectively is to bring her readers, through Jean Louise, back to the courtroom where Jean Louise was most proud of Atticus and reveal him not as a stalwart litigator seeking justice, but as an unabashed racist.
Lee also reveals that Atticus — this much revered man of principle and integrity — was a member of the Ku Klux Klan, albeit according to his apprentice, as a means to find out who was under those hoods, “[Y]our daddy did and still does get mighty uncomfortable around folks who cover up their faces.”
Jean Louise, crushed by what she discovers, confronts her father, “I looked up to you, Atticus, like I never looked up to anybody in my life and never will again.”
“Watchman” is the story of a young woman coming to terms with her father, her hometown and her life.
Atticus, who was an effective and competent jurist in “Mockingbird,” is revealed as a lawyer intimidated by the legal prowess of the NAACP and frightened by the changes thrust upon the South by the U.S. Supreme Court decision in Brown v. Board of Education. Atticus tells Jean Louise, “You do not seem to understand that the Negroes are still in their childhood as a people.”
We knew little about Atticus after “Mockingbird,” except that in a single trial he was a stand-up guy in the face of strong community opposition. “Watchman” portrays Atticus as a complicated and layered character — no different than any other man or woman.
Just like others we exalt because of a single battle, a heroic feat, an extraordinary athletic accomplishment or for taking a wrong and making it right, there is more to that person than a single point in time.
Sometimes it’s good, sometimes it’s bad and most often it’s both. The question that “Go Set a Watchman” raises is quite simple: Do we accept the flaws and move forward, or do we let the pangs of disappointment force us to walk away?
Even in the world of make believe nobody is perfect.
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 and follow him on Twitter at @MatthewTMangino.
           To read more CLICK HERE

Thursday, July 23, 2015

The Vindicator: Miranda rights of accused ‘ain’t what they used to be’

Matthew T. Mangino
The Youngstown Vindicator
July 13, 2015
In Pennsylvania, requesting an attorney in writing is not enough to ensure an accused’s right to counsel before being questioned. As the landmark U.S. Supreme Court decision in Miranda v. Arizona approaches its 50th anniversary, the protections once afforded those accused of a crime, in the melodious words of Duke Ellington, “ain’t what they used to be.”
The Miranda decision is best known for the warnings that police give suspects before they are interrogated. The warnings have been so famously recited during decades of television crime dramas, “You have the right to remain silent ...”
Since 1966, the year Miranda was decided, the U.S. Supreme Court and some state appellate courts have chipped away at the decision. In 2010, the U.S. Supreme Court ruled, in separate cases, that even ambiguous Miranda warnings by law enforcement are sufficient, but a less than specific invocation of those rights by a suspect is inadequate.
In 2013, the U.S. Supreme Court found that a prosecutor’s mention of a defendant’s silence before he was arrested or given Miranda warnings did not violate the defendant’s Fifth Amendment rights because the defendant did not expressly invoke those rights.
The Pennsylvania Supreme Court has taken shots at Miranda as well. Last year, the court decided two cases that found simply being silent is not enough to exercise your right to remain silent.
The court concluded that a detective’s testimony about a suspect’s silence was permissible because it was employed for the narrow purpose of describing the police investigation and not for implying the defendant’s guilt.
However, a defendant’s right against self-incrimination would be violated if the prosecution used a suspect’s silence as proof of guilt in an argument to the jury.
This term, in a case titled Commonwealth v. Dennis Bland, the Pennsylvania Supreme Court rejected the effectiveness of an anticipatory invocation of the right to counsel, or put another way, a suspect’s written demand for legal counsel before being advised of his rights.
Bland was arrested in Florida in connection with a homicide in Pennsylvania. The day after his arrest, a lawyer faxed Bland a form letter that “reflected a very clear putative” invocation of his right to counsel – a fundamental right provided by the U.S. Supreme Court through Miranda.
Bland signed the form and returned it to his lawyer, who forwarded copies to the Philadelphia Police Department and the Philadelphia District Attorney’s office.
The request for counsel was straightforward and unambiguous. Yet, when he returned to Pennsylvania still in police custody, a Philadelphia detective came to interview him and provided him with Miranda warnings. Bland did not have an attorney present as he explicitly requested. As a result, he waived Miranda and confessed to the murder.
Bland’s attorney argued to the court, “my client wanted an attorney and the detective knew it.” The court agreed and threw out the confession.
The appeal, which ultimately made its way to the state Supreme Court, “centers on the nature of a valid invocation of the Miranda-based right to counsel, specifically, in terms of whether the right must be asserted in close temporal proximity to custodial interrogation or may be effectively invoked remotely from such questioning.”
Pennsylvania Chief Justice Thomas G. Saylor wrote, “[W]e hold that ... an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation.”
In Pennsylvania, it is not enough to take advantage of a constitutional right of which a suspect is aware. A suspect must wait until she is advised of those rights – of which she is already aware – to explicitly declare her intention to invoke those rights.
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 and follow him on Twitter @MatthewTMangino.

To visit The Vindicator CLICK HERE

Wednesday, July 22, 2015

Federal prosecutors split with President on sentencing reform

Nervous federal prosecutors attempted to rally opposition to criminal sentencing reform in response to President Barack Obama’s week of issuing commutations and making pro-reform speeches. reported U.S. News and World Report.
The president and a bipartisan alliance in Congress say inflexible penalties for various drug crimes should be reduced or eliminated as a matter of fairness. But the National Association of Assistant U.S. Attorneys says elected officials should make no such change.
Obama, who recently became the first sitting president to visit a federal prison, would threaten public safety if he signs legislation allowing judges greater discretion, they warned.
“The federal criminal justice system is not broken,” Steve Cook, the association's president, said at a lightly attended event in the nation's capital. “What a huge mistake it would be,” he said, to change sentencing laws.
Cook predicted the crime rate would rise and prosecutors would lose a tool to extract information if laws were made more lenient. He also denounced reform proponents for saying nonviolent offenders are being ensnared by tough decades-old drug laws.
The U.S. has the highest number of prisoners in the world at about 2 million, most of whom are held in state or local facilities. More than 200,000 are held in federal prisons.
Cook’s colleagues did not speak at the news conference. He described the event as the first of its kind by the group, which claims to represent 1,500 assistant U.S. attorneys, about 30 percent of the total.
Former President Bill Clinton, one of the leaders responsible for establishing inflexible penalties, this week said doing so led to the imprisonment of a lot of "minor actors for way too long." The association views his reversal as “misinformed,” Cook said: “We think he was right before.”
To read more CLICK HERE

Tuesday, July 21, 2015

The Executioner's Toll, 2010 appears on The Crime Report's Summer Reading List

My book The Executioner's Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States was included in The Crime Report's Summer Reading List compiled by freelance writer Adam Wisnieski. This week the book was also nominated for a 2015 Silver Falchion Award for best non-fiction book of 2015.
To read the Summer Read List CLICK HERE

PLW: Pa. Supreme Court Digs Into Criminal Justice Issues

Matthew T. Mangino
The Pennsylvania Law Weekly
July 20, 2015
The U.S. Supreme Court recently handed down a smattering of criminal justice-related decisions. Although those decisions will have differing influence on the criminal justice system, it is important to note two recent Pennsylvania Supreme Court decisions that will have an impact as well.
The U.S. Supreme Court cases that grabbed the headlines were the Obamacare decision and the same-sex marriage decision. Both cases may have enhanced the legacy of President Obama, but as Yale Law School professor Heather Gerken summed it up in POLITICO Magazine, "Behind each of the high-profile cases ... the country had already made the shift." Neither decision was any great surprise.
With regard to the high court's treatment of criminal justice matters—still no surprises. The case generating the most attention was out of Oklahoma. In that case, the Supreme Court revisited the issue of lethal injection.
It wasn't long ago that the Supreme Court first reviewed lethal injection. In 2008, in Baze v. Rees, 533 U.S. 25 (2008), the court ruled lethal injection did not violate the Eighth Amendment's ban against cruel and unusual punishment. After botched executions in Arizona, Ohio and Oklahoma, the court decided to take a second look at lethal injection.
Last month, the Supreme Court ruled in Glossip v. Gross, No. 14-7955, that the condemned Oklahoma inmates failed to present a less painful alternative to carry out executions and therefore, as in 2008, the state's execution protocol did not violate the Eighth Amendment.
The court also took up an Ohio case to determine whether the Sixth Amendment's confrontation clause prohibited prosecutors from introducing the out-of-court statement of a 3-year-old victim of abuse who was unavailable for trial.
Justice Samuel Alito wrote for the majority in declaring the statement did not violate the confrontation clause of the Sixth Amendment. "Because neither the child nor his teachers had the primary purpose of assisting in [the abuser's] prosecution, the child's statements do not implicate the confrontation clause and therefore were admissible at trial," he wrote in Ohio v. Clark, No. 13-1352.
In another criminal justice decision, the high court struck down a Los Angeles ordinance enacted in 1899. The ordinance allowed police to search hotel registries without a warrant with the goal of cracking down on prostitution, gambling and drug trafficking, particularly at low-cost hotels and motels, The Los Angeles Times reported.
Hotel owners argued the ordinance was a violation of their Fourth Amendment right against unreasonable search and seizure. In City of Los Angeles v. Patel, No. 13-1175, the Supreme Court agreed.
In Johnson v. United States, No. 13-7120, the Supreme Court also struck down a 1984 federal law that set a mandatory minimum 15-year sentence for a third conviction of a "violent felony or serious drug offense." The law is the federal version of "three strikes" laws that impose long penalties for repeat offenders.
Finally, the U.S. Supreme Court in Elonis v. United States, 13-983, ruled in favor of a Pennsylvania man who posted several violent messages on Facebook and was convicted under a federal threat statute. The court said that it wasn't enough to convict based solely on the idea that a reasonable person would regard a communication as a threat. "Our holding makes clear that negligence is not sufficient to support a conviction," wrote Chief Justice John Roberts Jr.
The Pennsylvania Supreme Court took up two notable criminal justice cases as well. Both cases were argued before the court Sept. 10, 2014, and the decisions were issued within weeks of each other in late May and early June.
Commonwealth v. Hopkins, No. 98 MAP 2013, struck down the imposition of a mandatory minimum sentence for selling drugs within 1,000 feet of a school. In Commonwealth v. Bland, No. 33 of 2013, the court rejected the effectiveness of an anticipatory invocation of the right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
Dennis Bland was arrested in Florida for a homicide in Pennsylvania. The day after Bland's arrest, a lawyer faxed Bland a form letter that "reflected a very clear putative" invocation of Bland's Miranda right to counsel.
Bland signed the form and returned it to his lawyer, who forwarded copies to the Philadelphia Police Department and the Philadelphia District Attorney's Office. Bland returned to Pennsylvania after waiving extradition.
About a week later, while he remained in custody, a Philadelphia detective came to interview him and provided him with Miranda warnings. During the interview, Bland waived Miranda and confessed to the murder.
Prior to trial, Bland sought to suppress the confession, claiming that the police had violated his rights under Miranda. The court granted the motion and excluded his confessions from trial.
The appeal, which ultimately made its way to the Supreme Court, "centers on the nature of a valid invocation of the Miranda-based right to counsel, specifically, in terms of whether the right must be asserted in close temporal proximity to custodial interrogation or may be effectively invoked remotely from such questioning."
The commonwealth argued that rejecting an anticipatory invocation maintains an appropriate balance between the rights of the accused and the compelling state interest in effective police investigations.
Chief Justice Thomas G. Saylor, on behalf of the majority, wrote, "We hold that, to require a suspension of questioning by law enforcement officials on pain of an exclusionary remedy, an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation."
In Hopkins, the Pennsylvania Supreme Court was confronted with the imposition of a two-year mandatory minimum sentence for delivery of a controlled substance within 1,000 feet of a school.
The application of the mandatory minimum had come into question as a result of the U.S. Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the court held that, under the Sixth Amendment, a jury must find beyond a reasonable doubt any fact that increases a mandatory minimum sentence.
In 2012, Kyle Hopkins sold heroin to a confidential informant on three occasions; one of those sales was within a school zone. He was arrested. The trial court declared the mandatory minimum, 18 Pa.C.S.6317, unconstitutional because it required the judge to make a finding, by a preponderance of the evidence, that the sale occurred in a school zone.
On appeal, the commonwealth acknowledged that portions of the statute were unconstitutional pursuant to Alleyne. However, it argued that those portions of the law were severable. The Supreme Court disagreed. The unconstitutional provisions of the statute were so intertwined with the remaining constitutional portions of the law that only legislative action could cure the defect.
The commonwealth also asserted that the employment of special interrogatories along with a verdict slip could enable a jury to make findings beyond a reasonable doubt as to the age of the offender and proximity to the school. The Supreme Court rejected that argument as well.
The Superior Court has already struck two other mandatory minimums—defendants convicted of robberies involving a firearm and crimes against victims under age 16. The Supreme Court's decision regarding severability supports the findings by the Superior Court.
There appears to be growing concern that additional mandatory minimum sentences will succumb to appellate review. The question is, will the legislature do anything about it? More and more lawmakers are looking to evidence-based practices to guide the bulging and costly criminal justice system. Some are suggesting, as James Swetz, a recent president of the Pennsylvania Association of Criminal Defense Lawyers, did to the Allentown Morning Call, "Mandatory minimums simply do not work." 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll," was released by McFarland & Co. You can reach him at and follow him on Twitter @MatthewTMangino.

To read more CLICK HERE

Monday, July 20, 2015

Is President Obama moving toward opposing the death penalty?

A long-time associate and mentor to President Obama says the president is "close" to opposing the death penalty but not quite there yet -- and needs to be pushed to do it, according to the Washington Post.
"He's not there yet, but he's close, and needs some help," said Charles J. Ogletree, Jr., a law professor at Harvard University and prominent death penalty opponent who taught the president and First Lady Michelle Obama when both were students there. The legal scholar said he was planning on meeting with his former student next month and would confront him about the issue then.
Obama, who has said he supports executions in some circumstances but raised concerns about the application of capital punishment, has not yet focused in this new push on racial disparities in capital trials -- the most serious cases before any criminal court.
Ogletree predicted that the president will eventually have no choice but to oppose the death penalty, confronted with the data on racial disparities in capital punishment, as well as on the costs of litigating capital cases and on the number of defendants who are eventually exonerated.
To read more CLICK HERE

Sunday, July 19, 2015

The Executioner's Toll, 2010 has been nominated for a 2015 Silver Falchion Award

My book The Executioner's Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States has been nominated for a 2015 Silver Falchion Award for Best Nonfiction book of 2015.  The award is presented on October 31, 2015 at the  Killer Nashville Writers Conference in Nashville, TN.

For a list of nominees CLICK HERE

Saturday, July 18, 2015

GateHouse: Criminal justice reform will take more than rhetoric

Matthew T. Mangino  
GateHouse Media
June 17, 2015 
This week, at the NAACP convention in Philadelphia, President Barack Obama told an enthusiastic audience “all of us need redemption — justice and redemption go hand in hand.”
In his 45-minute speech, Obama outlined an ambitious agenda for criminal justice reform. Obama called for, among other things, reducing or eliminating some mandatory minimum sentences, outlawing the widespread use of solitary confinement and barring a criminal history from eliminating potential candidates for employment.
The speech came on the hills of a major criminal justice announcement by the Obama administration. Obama commuted the sentences of 46 federal inmates who had been incarcerated for committing low-level drug offenses.
More than 35,000 inmates have applied for commutation under a new initiative, which has been bogged down by the number of applications and the arduous review process.
Inmates and former offenders can apply for executive clemency — pardons and commutations — and these requests go through the Justice Department’s Office of the Pardon Attorney. The applications are vetted by a deputy attorney general before they are reviewed and ultimately decided on by the president.
According to the Washington Post, when a sentence is commuted, that does not mean that the person was innocent. A commutation stops a sentence before it has been completed. On the other hand, a pardon is different. When a president grants a pardon, it is also not a declaration of innocence, but the pardon does restore civil rights like voting, owning a gun, access to professional licenses and government entitlements.
The difference between a commutation and pardon is simple: Pardons are generally granted after someone already served their sentence, while commutations typically happen when someone is in prison or on parole.
Before this week, Obama had granted 43 commutations. With this week’s 46 commutations the President has now commuted more sentences than any president since Lyndon B. Johnson, who commuted 226 sentences during his time in Office, according to the Post.
He has also commuted more sentences than his four immediate predecessors — Presidents George W. Bush, Bill Clinton, George H.W. Bush and Ronald Reagan.
Obama has not fared so well with regard to pardons.
A ProPublica analysis of Justice Department statistics last fall found that Obama had granted pardons at a lower rate than presidents Reagan, George H.W. Bush, Clinton or George W. Bush had at the same point in their administrations.
Obama has pardoned only 64 people. President Harry S Truman pardoned 1,537 people. In fact, Truman pardoned his first prisoner eight days after taking office -- an office he assumed by the death of Franklin Delano Roosevelt, not through an election. In contrast, according to the New York Times, Obama waited 682 days into his presidency before granting a pardon.
Obama is not to be blamed for clemency falling out of vogue. The demise of the pardon is a byproduct of being “tough on crime.” Draconian sentencing laws driven by the war on drugs, prisons bursting at the seams, and a never-ending parade of new laws criminalizing everything imaginable are also evidence of a system run amok.
Those tough-on-crime politicians haven’t completely disappeared. A group of 19 Republican lawmakers recently wrote a letter to Attorney General Loretta Lynch accusing Obama of blatantly usurping congressional authority and using his pardon power for political purposes.
Obama appears to be in a “damned if you do, damned if you don’t” dilemma. Although his record with regard to clemency is spotty, redemption or forgiveness will take more work on both sides of the aisle. Obama has taken the first step, now lawmakers need to get to work if smart and meaningful reform is to succeed.
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 and follow him on Twitter at @MatthewTMangino.
          To visit the column CLICK HERE

Friday, July 17, 2015

PA officials look at easing the burden of criminal records

Riding a wave of interest in criminal-justice reform among liberals and conservatives alike, Pennsylvania state lawmakers and nonprofit groups this week renewed calls to erase criminal records for some offenders convicted of minor crimes, Philadelphia Inquirer.
Their focus was on Senate Bill 166, which would give those convicted of second- or third-degree misdemeanors, such as retail theft, the chance to have their records expunged after 10 years if they have stayed out of trouble. The measure, supported by Gov. Wolf, also would require law enforcement agencies to remove arrest records after three years in cases in which defendants had not been convicted. In an afternoon conference call, State Sen. Stewart J. Greenleaf (R., Montgomery) and State Rep. Jordan A. Harris (D., Phila.) said the bill was poised to pass the House when lawmakers return to Harrisburg next week. The Senate unanimously approved the proposal in February.
Many states, including New Jersey, already have such laws. But Pennsylvania's bill reflects the growing momentum throughout the nation - from President Obama to the conservative Koch brothers - to find ways to reduce swelling prison and jail populations and their associated costs. 
Expungement offers one less barrier to convicts seeking a stable job, something that makes them far less likely to re-offend and return to jail, advocates say.

To read more CLICK HERE

Thursday, July 16, 2015

Missouri carries out first execution after Supreme Court's lethal injection decision

The 18th Execution of 2015
David Zink was pronounced dead at 7:41 p.m. on July 14, 2015 after receiving a lethal injection at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri, according to CNN. 
Before his execution, Zink had some unusual advice for other inmates facing the death sentence: appreciate the fate that awaits you.
"For those who remain on death row, understand that everyone is going to die," Zink said in his final statement ahead of his death by lethal injection in Missouri on Tuesday night.
Execution, he suggested, is preferable to spending the rest of your life in prison.
"Statistically speaking, we have a much easier death than most, so I encourage you to embrace it and celebrate our true liberation before society figures it out and condemns us to life without parole and we too will die a lingering death," his statement says.
Zink, 55, was executed for the abduction, sexual assault and murder of 19-year-old Amanda Morton in 2001, a killing described by authorities as "an unspeakable act of violence."
He had confessed to tying Morton to a tree in a cemetery, breaking her neck and then slicing her spinal cord to ensure she wouldn't live, according to CNN.

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Wednesday, July 15, 2015

Facial recognition used to detect fraud at the DMV and beyond

States increasingly are foiling the crooks and scam artists by employing a high-tech tool: facial recognition software. The software uses algorithms of facial characteristics to compare driver’s license or ID photos with other  department of motor vehicles (DMV) images on file, reported Stateline.
At least 39 states now use the facial recognition software in some fashion, and many say they’ve gotten remarkable results. In New York, thousands of people with false identities have been arrested, and even in the less populous state of Nebraska, hundreds have. Two states — New Jersey and New York — are now working together on a project to identify certain types of violators, a step that other states may follow.
Critics raise concerns about privacy invasion and potential abuse. While photo database access is limited to the DMV in some states, others allow sharing with law enforcement.
Here’s how facial recognition works: When someone applies for a driver’s license or ID, a photo is taken and the image is converted into a template created from the person’s unique physical features, such as cheekbones or the distance between eye pupils. An algorithm compares the image with others in the database, searching for a possible match.
If analysts discover that the image is associated with two or more identities, they try to figure out why. Sometimes, it’s a clerical error or the result of a name change after a marriage or divorce.
In some states the use of facial recognition has expanded. In Iowa, most law enforcement agencies can request that the DMV search its database. But this spring, the Department of Public Safety, which runs the state patrol and the department of criminal investigations, gained direct access, said Paul Steier, the Iowa Department of Transportation’s investigations bureau director.
In Nebraska, the state patrol and the Omaha and Lincoln city police departments can access the facial recognition system, said Betty Johnson, an administrator for the DMV there. All three departments have a user ID and password, and can load an image and perform their own searches.
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Tuesday, July 14, 2015

New Mexico bucks the national trend on crime and punishment

In the aftermath of a heinous crime that saw a career criminal kill a New Mexico police officer the state is looking at bucking a national trend and pursuing tougher laws to punish criminals, reported The NM Political Report.
Next week, state lawmakers in the Courts, Corrections & Justice Committee will hear testimony on a bill to add crimes to New Mexico’s existing “three strikes” law, which assigns mandatory life in prison sentences to convicts of three violent crimes.
Yet the local legislative doubling down on “tough on crime” laws—comes at a time with strong national momentum in the opposite direction.
And it’s Republicans with national ambitions that, in many cases, have been making headlines for softening on crime.
“Former [Texas] Gov. Rick Perry is going around the country bragging that he closed three prisons,” said state Rep. Antonio “Moe” Maestas, D-Albuquerque, who supports criminal justice reform.
Likewise, three other Republican candidates for president—Rand Paul, Jeb Bush and Ted Cruz—have been speaking about reforming tough crime laws on the campaign trail. Another GOP presidential contender, Wisconsin Gov. Scott Walker, recently went radio radio silent on his previous record passing tough crime laws as a state assemblyman.
Prominent conservatives like the megadonor Koch brothers and anti-tax activist Grover Norquist are lending their support to the judicial reform cause. And last month, the U.S. Supreme Court dubbed a key clause of the federal three strikes law as “constitutionally vague.”
New Mexico doesn’t seem close to catching onto this trend.
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Monday, July 13, 2015

York County judge throws out wiretap charge of cellphone recording

A York County, Pennsylvania judge has dismissed a wiretapping charge filed against former Unilife Corporation vice president and whistle-blower Talbot "Todd" Smith, reported WITF-FM.
Smith had been charged with intercepting communications after he recorded a conversation with his supervisor, Ramin Mojdeh, according to court documents.
The recording was discovered after Smith filed an ethics complaint with the U.S. Securities and Exchange commission, was fired from Unilife and filed a civil suit against the company.
The wiretapping charge was bound over for trial in August 2014 and Smith's attorney, Ed Paskey, filed a pretrial motion for relief.
Paskey argued that telephones are exempt from the commonwealth's Wiretap Act, and, therefore, Smith's recording of Mojdeh is not an "intercept" under the act.
Last week, Judge Maria Musti Cook agreed with Paskey's argument and ordered the charge against Smith dismissed.
Relying on a prior Pennsylvania Supreme Court decision, Cook held that since telephones are exempt from the Wiretap Act, the commonwealth was left with "no evidence that (Smith) attempted to, or successfully intercepted the communication."
"Judge Cook followed the case law established by the Pennsylvania Supreme Court holding that a cell phone is not a device under the Wiretap Act," Paskey said. "Her ruling supports what we have contended from day one -- Todd's actions were not criminal."
Kyle King, administrator for the district attorney's office, said "We are filing an appeal with the Pennsylvania Superior Court. Our office feels this is an issue of public importance, which best deserves an appellate review and commentary."
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Sunday, July 12, 2015

Thirty-one people killed by police during first week of July

Police in the United States shot and killed 31 people during the first week of July, making it the deadliest such week of the year so far, reported the Washington Post.
This stretch ended with officers across the country shooting and killing eight people, the most police shootings that have occurred on any single day in 2015 — ending the deadliest week so far with the deadliest day.
These deaths push the total number of people fatally shot by police this year to 494 in a little over six months, according to a Washington Post analysis. That number easily exceeds the figures reported by the FBI for any single year since 1976, pointing to the incomplete nature of federal data, which relies on voluntary reporting and patchy information.
Due in part to this inadequate data, which has been highlighted repeatedly as a bizarre gap during the ongoing debate over how police officers use deadly force, The Washington Post is tracking every fatal shooting by a police officer in the line of duty in 2015. These stories are being collected in a database that includes details about each episode.
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Saturday, July 11, 2015

GateHouse: Crime will be a campaign issue in 2016

Matthew T. Mangino
GateHouse Media
July 10, 2015

Crime has not been an issue in U.S. presidential politics in 25 years. In 1988, crime was front and center in Vice President George H.W. Bush’s successful campaign over Massachusetts Gov. Mike Dukakis.

Willie Horton was the lifer who was furloughed and committed a rape while Dukakis was governor. Horton’s furlough was effectively used by Bush in television ads that showed a menacing African-American man going through a revolving prison door.

In 1992, Arkansas Gov. Bill Clinton made a point of returning to Arkansas to oversee a brain-damaged inmate’s execution during the 1992 presidential campaign.

In 2016, crime and violence will once again be an issue in the presidential race as a result of yet unanalyzed data indicating that the tide may have turned after years of declining crime rates.

According to the USA Today, several major American cities have experienced a dramatic surge in homicides and violent crime during the first half of the year.

Milwaukee, which had one of its lowest annual homicide totals in city history last year, has recorded 80 murders so far this year, more than double the 39 it tallied at the same point last year.

Homicides are up 20 percent in Washington, D.C., and New York City. Violent crime is up 12.7 percent in Los Angeles and 25 percent in Sacramento. In Minneapolis, violent crime rose for the first time in three years — even Fargo, N.D.’s crime rate has jumped above the national average for the first time ever.

Meanwhile, in Chicago the homicide rate increased 19 percent and the number of shooting incidents increased by 21 percent during the first six months of 2015.

In Baltimore, where riots broke out after a suspect, Freddie Gray, died in police custody, Mayor Stephanie Rawlings-Blake fired Police Commissioner Anthony Batts. “We need a change,” Rawlings-Blake announced this week. “This was not an easy decision but it is one that is in the best interest of Baltimore. The people of Baltimore deserve better and we’re going to get better.”

So far this year, Baltimore has recorded 155 homicides, including three people who were killed this week near the University of Maryland, Baltimore campus. The 2015 homicide toll is 50 higher than it was at the same time last year.

Some have suggested that the surge in crime can be attributed to the “Ferguson Effect.” A couple months ago, author Heather MacDonald, wrote in the Wall Street Journal about the prospect of a nationwide crime wave. She wrote, “The nation’s two-decades-long crime decline may be over.”

She blamed protests against police violence in Ferguson and Baltimore for rising crime rates in those and other cities.

Not everyone agrees. Some have suggested that the surge in crime is bunk.

University of Missouri-St. Louis criminologist Richard Rosenfeld published a report for the Sentencing Project recently examining whether various factors in the aftermath of alleged police misconduct and heavily publicized protests are driving crime up. He found contradictory evidence, depending on where one looks.

Some cities have not experienced any increase in any major crime, while some have seen a mixed bag and others are seeing crime up across the board. Rosenfeld told the St. Louis Post-Dispatch, the result is a “cherry picker’s delight” of data.

Berkley professor Franklin Zimring provided some perspective on the idea of “cherry picking” for the New York Daily News. “Let’s start with the uptick in violence in New York City. … At their current rate, killings in New York City would end 2015 as either the third or fourth lowest year in the city’s modern history.”

Radley Balko, who quoted Zimring in a column for the Washington Post, wrote, “Fear of crime is a powerful political motivator.” That is why crime and the money federal, state and local policymakers spend on preventing; prosecuting and punishing it will be political fodder for 2016.

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 and follow him on Twitter at @MatthewTMangino.

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PA AG Kane comes out against governor's death penalty moratorium

Pennsylvania Attorney General Kathleen G. Kane called Gov. Wolf's moratorium on the death penalty "an egregious violation" of the state constitution and she is asking its Supreme Court to clear the path for the state's first execution in more than a decade, reported the Philadelphia Inquirer.
In a filing this week Kane asked the court to allow the execution of Hubert L. Michael Jr., who confessed to murdering a York County teenager two decades ago.
Kane argued that it is "blatantly unconstitutional" for Wolf to stay all death sentences, and that allowing Wolf's moratorium to stand would effectively grant him the authority to ignore any laws with which he does not agree.
"In this case, it would allow him to negate a death sentence authorized by the General Assembly, imposed by a jury, and subjected to exhaustive judicial review . . . based on nothing more than personal disapproval and personal public policy beliefs," said the 25-page brief, filed by the attorney general and two of her top deputies. It added: "The governor must execute laws, not sabotage them."
When Wolf announced his moratorium, he wrote that he would lift it after seeing the report's recommendations and after "all concerns are addressed satisfactorily."
"What constitutes the point at which 'all concerns are addressed satisfactorily?' What are the concerns? Who is going to determine whether and when they are satisfactorily addressed?" said the filing, signed by Lawrence M. Cherba, who heads the office's criminal division, and Amy Zapp, who oversees the appeals section.
"In law and in reality, the governor . . . seeks to replace judicial review of capital sentencing with his own review based on his own personal standard of satisfaction, namely an infallible judicial process that can never be attained," it argued. "Such a roadblock to death-sentence executions is impermissible."
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Friday, July 10, 2015

Oklahoma wastes no time in getting back into the execution business

Now that the U.S. Supreme Court has ruled that Oklahoma's execution protocol is not cruel and unusual punishment the state is wasting no time in getting the execution process rolling. The Oklahoma Court of Criminal Appeals has set execution dates for three death row inmates who unsuccessfully challenged the state’s lethal injection process.
The court ordered condemned inmates Richard Eugene Glossip, Benjamin Robert Cole and John Marion Grant could be executed on Sept. 16, Oct. 7 and Oct. 28, respectively.
Their executions had been on hold since the U.S. Supreme Court said in January that it would consider whether the state’s use of midazolam violated the Constitution’s prohibition against cruel and unusual punishment.
On June 29, the U.S. Supreme Court upheld lower court rulings that determined the inmates had failed to prove the use of the drug was unconstitutional.
Evidence presented on behalf of the inmates maintained that midazolam, the first of three drugs utilized during the lethal injection process, was inadequate as a standalone anesthetic required to produce a deep coma-like state prior to the administering of the remaining two drugs.
One of Oklahoma’s execution drug protocols calls for the use of one of three paralytic drugs and potassium chloride in its latter two lethal injection drugs, the latter of which can produce extreme burning sensation if the subject is conscious, according to evidence presented on behalf of the inmates.
Oklahoma officials maintained that midazolam worked adequately as an anesthetic and did not violate the prohibition against cruel and unusual punishment.
The Supreme Court, in a 5-4 ruling authored by Justice Samuel A. Alito Jr., agreed with a lower court when it determined that “the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”
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Wednesday, July 8, 2015

Justice Breyer calls for the end of the death penalty

In a much-discussed dissent from the Supreme Court’s ruling on lethal injection last week, Justice Stephen G. Breyer laid out the problems, as he saw them, with the death penalty, reported the New York Times. Among them was “arbitrariness in application,” including how simple geography can determine whether someone convicted of murder would be sentenced to death.
“Between 2004 and 2009,” Justice Breyer wrote, “just 29 counties (fewer than 1 percent of counties in the country) accounted for approximately half of all death sentences imposed nationwide.”
Caddo Parish, in the northwestern corner of the state, is one of these counties. Within Louisiana, where capital punishment has declined steeply, Caddo has become an outlier, accounting for fewer than 5 percent of the state’s death sentences in the early 1980s but nearly half over the past five years. Even on a national level Caddo stands apart. From 2010 to 2014, more people were sentenced to death per capita here than in any other county in the United States, among counties with four or more death sentences in that period.
Robert J. Smith, a law professor at the University of North Carolina whose work was cited in Justice Breyer’s dissent, said Caddo illustrated the geographic disparity of capital punishment. But he said this analysis did not go far enough. Caddo, he said, has bucked the national trend in large part because of one man: Dale Cox.
Cox, 67, who is the acting district attorney and who has secured more than a third of Louisiana’s death sentences over the last five years, has lately become one of the country’s bluntest spokesmen for the death penalty. He has readily accepted invitations from reporters to explain whether he meant what he said to The Shreveport Times in March: that capital punishment is primarily and rightly about revenge and that the state needs to “kill more people.” Yes, he really meant it.
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Tuesday, July 7, 2015

America is not in the throes of a nationwide crime wave

Radley Balko of the Washington Post wrote: Last week in the Wall Street Journal, Heather Mac Donald of the Manhattan Institute wrote that we are in the throes of a “new nationwide crime wave.”

But over at the NY Daily News, Franklin Zimring explains why Mac Donald’s central premise — that we’re on the brink of a new crime wave — is way off base.
Mac Donald’s recital of frightening statistics plays special attention to the problems in New York City and Los Angeles, America’s two largest cities and most prominent urban success stories in crime reduction in the past two decades. Bill Bratton, now in his second stint in New York, has served as commissioner of both departments.
We are told shootings are up in both Los Angeles and New York, and that “the most plausible explanation of the current surge in lawlessness is the intense agitation against American police departments over the past nine months.”
Is there a nationwide crime wave? On current evidence, probably not, and a careful analysis of official statistics in New York and Los Angeles provides reason for reassurance rather than alarm.
Zimring starts with New York.
Let’s start with the uptick in violence in New York City. The most recent official crime statistics indicate that so far in 2015, the city has experienced significant declines from 2014’s ultra-low levels in burglary, robbery and larceny. At the same time, total homicides for the first five months of the year at 135 are higher than in 2014 — but quite close to the pace of 2013 and around 30% lower than in 2010.
At their current rate, killings in New York City would end 2015 as either the third or fourth lowest year in the city’s modern history.
Balko ties it all together writing,  "Fear of crime is a powerful political motivator. This makes it all the more important to point out when pundits attempt to influence a political debate by using specious data to exploit that fear. There’s some data suggesting that the 20-year decline in violent crime may have hit bottom. In a country of 380 million people, you aren’t going to reduce crime to zero. In some cities, there have been some recent increases in some crimes, just as there were all throughout the crime drop. But the evidence that we’re on the brink of some national crime wave is about as convincing as the evidence 20 years ago that juvenile super predators were about to terrorize American cities."
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Monday, July 6, 2015

Texas has not sentenced a single person to death in 2015

Texas continues to execute people in the highest numbers in the nation. But new death sentences are a different matter, reported the Dallas Morning News. So far this year, not one death sentence has been handed down among Texas’ 254 counties.
That’s an astounding statistic considering Texas’ history with the death penalty. In 1994, death sentences in Texas reached an annual high of 49. It has now been more than six months since jurors in Texas imposed a new death sentence. The last person sentenced to death was Eric Williams, on December 17, 2014.
This is the first time in at least 20 years that the state has gone more than six months without a new death sentence. And, according to Kathryn Kase at Texas Defender Service, it’s also the longest Texas has gone in a calendar year without a new death sentence. Overall, new death sentences in Texas have declined nearly 80% since 1999.
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Sunday, July 5, 2015

Nebraska Governor losing fundraising battle to bring back recently abolished death penalty

After the Nebraska legislature voted to abolish the state's death penalty, an expensive battle has begun to bring it back, noted The Crime Report. So far, the side against the death penalty is winning the fundraising battle, reports BuzzFeed. The money is all about the potential for a statewide vote on the death penalty. In May, the legislature narrowly overruled Republican Gov. Pete Ricketts’ veto of the measure that abolished the death penalty. Ricketts vowed there would be a referendum to give voters the option to bring it back.
Nebraskans for the Death Penalty must collect 57,000 signatures by August to get the vote on the ballot. If they can manage to collect 114,000 signatures, the death penalty will remain on the books until voters weigh in. The group estimates that it would need to spend $900,000. The group has been outraised by an organization opposing the death penalty referendum, according to campaign finance reports filed with the Nebraska Accountability and Disclosure Commission. Nebraskans for the Death Penalty raised $259,744, and more than 75 percent of that came from the governor’s family. On the other side, Nebraskans for Public Safety (an anti-death penalty group), has a $400,000 contribution from a progressive organization called Proteus Action League. Ricketts believes he will still be able to carry out the executions of the 10 men on death row. His corrections department has spent more than $50,000 on execution drugs from a seller based in India.
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Saturday, July 4, 2015

California's prison realignment a shell game

The Marshall Project has shed light on what California officials call “realignment” — a sweeping initiative to reduce the overcrowding of state prisons by turning over responsibility for non-violent offenders to the counties from which they came.
Realignment was forced on California officials were ordered to reduced overcrowded state prisons. The policy, which has helped state prisons shed tens of thousands of inmates, is also fueling a seemingly contradictory effort to re-incarcerate many of them in county jails.
Across the state, county officials are laying claim to billions in state funding to refurbish old jails and build new ones. The remarkable boom in jail construction casts a long shadow over a central promise of prison downsizing: that the policy would encourage counties to invest in the types of stabilizing services that might end the cycle of incarceration.
But it seems the spirit of reform was overtaken by California’s urgent need to get support from counties as it scrambled to meet court-ordered prison population goals. To ease the process, the state ponied up billions of dollars and gave local officials carte blanche on how to spend their share.
So far the lion’s share of the money has paid for shoring up enforcement, while re-entry services and alternatives to incarceration are getting short shrift.
California's much lauded realignment is a shell game.  The policy has not reduced mass incarceration it has merely shifted those inmates to local jails instead of state prisons.
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Friday, July 3, 2015

GateHouse: Supreme Court ends term with flurry of criminal justice decisions

Matthew T. Mangino
GateHouse Media 
July 2, 2015 
The U.S. Supreme Court was extremely busy this term, or so it seemed.  The court made big news with decisions upholding Obamacare and same-sex marriage.
However, this past month the court also unleashed a flurry of less high-profile decisions focusing on the rights of those accused or convicted of a crime. Those decisions dealt with the First Amendment, Fourth Amendment, Sixth Amendment, Eighth Amendment and mandatory minimum sentencing.
The case generating the most attention was out of Oklahoma. In that case the Supreme Court revisited the issue of lethal injection.
At the time of the first lethal injection decision in 2008, nearly every state was using a three drug lethal injection protocol that consisted of the same, or similar, substances.  Since the court’s 2008 decision drug manufacturers either stopped producing or refused to sell the drugs to corrections officials.  The decision was based, in part, on moral grounds and in part on public relations concerns.  The result was a shortage of execution drugs.
As a result, states began to change their protocols. Oklahoma went to a single drug protocol. Ohio went to a two drug protocol and then states began to substitute drugs. Midazolam became a part of the drug protocol in Ohio and Oklahoma and both states experienced “botched” executions in 2014.
This week the Supreme Court said that the condemned inmates failed to present a less painful alternative to carry out executions and therefore the use of midazolam was not a violation of the Eighth Amendment’s ban against cruel and unusual punishment.
Also this term, a case out of Ohio made it easier for law enforcement to prosecute child abuse cases.  The case involved comments made by a 3-year-old boy to his preschool teacher about physical abuse at the hand of his mother’s boyfriend.
The child was unavailable to testify at trial so prosecutors used what the boy said as evidence to help convict the boyfriend. 
“The question in this case is whether the Sixth Amendment’s confrontation clause prohibited prosecutors from introducing those statements when the child was not available to be cross examined,” wrote Justice Samuel Alito. “Because neither the child nor his teachers had the primary purpose of assisting in [the boyfriend’s] prosecution, the child’s statements do not implicate the confrontation clause and therefore were admissible at trial.”
The Supreme Court also struck down a 1984 federal law that sets a mandatory minimum 15-year sentence for a third conviction of a "violent felony or serious drug offense." The law is the federal version of "three strikes" laws that impose long penalties for repeat offenders.
The law included what the Wall Street Journal called "a catchall provision that has bedeviled the courts: any crime that 'presents a serious potential risk of physical injury to another.'  Writing for the court's majority, Justice Antonin Scalia said that "Nine years’ experience trying to derive meaning from the [law] convinces us that we have embarked upon a failed enterprise." 
 In another criminal justice decision, the high court struck down a Los Angeles ordinance enacted in 1899. The ordinance allowed police to search hotel registries without a warrant with the goal of cracking down on prostitution, gambling, and drug trafficking, particularly at low-cost hotels and motels, reported the Los Angeles Times. 
Hotel owners argued that the ordinance was a violation of their Fourth Amendment rights against unreasonable search and seizure. The Supreme Court agreed.
Finally, the Supreme Court ruled in favor of a Pennsylvania man who posted several violent messages on Facebook and was convicted under a federal threat statute — the first time the court raised the implications of the First Amendment and social media, reported CNN.
The court said that it wasn't enough convict based solely on the idea that a reasonable person would regard a communication as a threat. "Our holding makes clear that negligence is not sufficient to support a conviction," wrote Chief Justice John Roberts.
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 and follow him on Twitter at @MatthewTMangino. 
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Wednesday, July 1, 2015

Virginia considers bringing back parole 20 years after its abolition

Virginia Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country, reported the Washington Post.
During a radio appearance Wednesday, McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.
“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”
The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign.
It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s.
To read more CLICK HERE

Mangino talks The Executioner's Toll on Justice for All

Listen to my interview with Georges Yates on Justice For All on WHKT-AM regarding my book The Executioner's Toll, 2010.  To listen CLICK HERE