Monday, August 31, 2015

Federal court will determine if California death penalty is unconstitutional

A federal appellate panel will begin to determine whether California's "dysfunctional" death penalty system is unconstitutional, reported The National Law Journal.
The "dysfunctional" label was imposed July 16, 2014, by U.S. District Judge Cormac Carney of Orange County, who ruled in Jones v. Davis that California's death penalty violates the Eighth Amendment ban on cruel and unusual punishment. The state system, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.
The district court grounded its ruling in the Supreme Court's 1972 unsigned decision in Furman v. Georgia, in which it confronted systemic challenges to Georgia's and Texas' imposition and carrying out of the death penalty and struck down the punishment under the Eighth Amendment.
Furman was concerned with arbitrariness in imposing the death penalty at the sentencing stage.
In a concurring opinion, Justice Byron White wrote: "But when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution" or "society's need for specific deterrence" would be satisfied.
In the Jones case, Carney found similar arbitrariness in California's system, not at the front end when the sentence is imposed but at the back end when it is to be carried out. The system's dysfunction, he said, is evidenced by extraordinary delay and infrequency of executions.
He wrote that since 1978 when the death penalty was adopted by California voters, more than 900 people have been sentenced to death. Of that number, he said, only 13 have been executed.
The delays after sentencing exceed 25 years on average, he said, and are not the result of inmates' tactics, except perhaps in isolated cases. Instead, the reasons include lack of appointed counsel, underfunding of state habeas review, and failure to ensure full and fair review of constitutional challenges. The national average of time to execution was an estimated 12.5 years between 2000 and 2012. In 2012, the delay increased to 15.8 years.
To read more CLICK HERE

Sunday, August 30, 2015

Nebraska's repeal of the death penalty in jeopardy

The victory by death penalty opponents to abolish the death penalty in Nebraska now appears to be in jeopardy, reported Omaha World-Herald.
The pro-capital punishment group turned in nearly three times as many signatures as the 56,942 necessary to place the issue on the ballot, which is 5 percent of the number of registered voters in the state. The drive must also meet that 5 percent threshold in 38 of the state’s 93 counties.
Nebraskans for the Death Penalty also appears to have a comfortable cushion to suspend the repeal of the death penalty until voters decide its fate at the ballot box, which requires 113,883 valid signatures, which is 10 percent of the number of registered voters in the state.
Secretary of State John Gale released the exact numbers of signatures needed late Thursday. 
State Treasurer Don Stenberg, a former attorney general who was an honorary co-chairman of the pro-death penalty group, said there was "a lot of significance" to collecting so many signatures.
"It’s reflective of the tremendous support that Nebraskans have in keeping the death penalty," Stenberg said.
He was one of several supporters of capital punishment who spoke at an afternoon press conference, staged in front of an 8-foot-high wall of boxes holding petitions gathered by the group’s nearly 600 paid and volunteer circulators. Signatures were collected in all 93 counties.
Officials in the counties are expected to take more than a month to count and validate the signatures.
Stenberg, as well as the Attorney General’s Office, said the signatures are presumed valid when they are turned in, until the count proves otherwise.
So, they said, the repeal of the death penalty — which was scheduled to go into effect on Sunday — is on hold until the count is completed.
"There will be some uncertainty in the law," Stenberg said. But, he added, "It’s not unusual to have uncertainty in the law."
To read more CLICK HERE

Saturday, August 29, 2015

GateHouse: Congress tries to get Smart on crime

Matthew T. Mangino
GateHouse Media
August 28, 2015
Congress is taking on criminal justice reform with zeal. There are approximately 94 bills pending in the House and Senate that deal specifically with sentencing reform. The newly reform-minded Congress is no surprise.
The spate of police shootings, the media hype over DNA exonerations and the growing support for legalized marijuana have seemed to generate the sympathy of the media, if not the public at large.
There is also movement among conservative lawmakers to reduce the costs of incarceration. Those costs are substantial and growing. In the last 30 years, federal prisons have grown by a whopping 500 percent and the resulting growth has increased costs by 1,100 percent. The federal prison budget hovers at about $6.9 billion.
Half of the 207,000 federal inmates are in prison as a result of drug crimes; and 20 percent of the overall prison expenditure is spent on inmates 50 years old and above.
Some of the pending legislation in Congress promising to lower prison costs includes the Federal Prison Bureau Relief Act of 2015 which suggests providing alternative release dates for nonviolent offenders; the Police Camera Act seeking to eliminate sentencing disparities; the Fair Sentencing Clarification Act of 2015 proposing to reduce certain cocaine sentences retroactively and the Prisoner Incentive Act of 2015 which seeks to give inmates more credit for “good time” in prison.
However, there are a couple pieces of legislation that merit a closer look. Members of Congress from both sides of the aisle have come together with Sen. Richard Durbin (D-IL) and Sen. Mike Lee (R-UT) who introduced the Smarter Sentencing Act (SSA). The act seeks to reduce the ballooning federal prison population.
The SSA takes on mandatory minimum sentences. The proposal seeks to reduce some mandatory minimums without removing all.
“Our current scheme of mandatory minimum sentences is irrational and wasteful,” said Lee, as quoted on the Brenner Center website “by targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”
The SSA hopes to expand the sentencing “safety valve” which allows a judge to part from mandatory minimum sentencing laws if certain conditions are met. This change is supported by over 60 percent of federal district court judges, many of whom object to mandatory minimum sentences.
The SSA would also institute retroactive application of the Fair Sentencing Act of 2010 for those sentenced under old crack and powder cocaine laws.
The SSA would also eliminate some mandatory drug sentences, allowing judges to determine the appropriate sentence. According to the Brenner Center, most individuals currently serving time for federal drug crimes receive penalties with a five or 10 year mandatory minimum, the bill would cut these penalties in half.
According to the Congressional Budget Office, the Smarter Sentencing Act could save the Department of Justice about $4 billion from 2015-2024.
Another piece of federal legislation worth another look is the Redeem Act introduced by Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) which aims to keep juveniles out of the adult criminal justice system and incentivizes states to make it easier for formerly incarcerated adults to have their criminal records sealed, reported the Huffington Post.
All of this legislation applies to federal sentencing, prisons and inmates. The problem goes far beyond the federal government. Currently, more than 86 percent of prisoners in the United States are in state and local facilities, not federal prisons. There are a great deal of reform measures being proposed and implemented in states nationwide. The result is a mixed bag and a story for another day.
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, August 28, 2015

Tennessee judge rules state's lethal injection method constitutional

Yesterday, I wrote about the US District Court judge for the Southern District of Mississippi who issued a an order blocking the use of two drugs for lethal injections in that state.
Today I write about the opposite outcome in a neighboring state.
This week a Tennessee judge ruled that the state's use of lethal injections for the execution of death row inmates is constitutional. According to Jurist, the decision by a Davidson County judge came in answer to a lawsuit brought by 33 death row inmates and their attorneys. According to the judge, plaintiffs failed to prove  that the state's execution practice, in which only the drug compounded pentobarbital is used, amounts to cruel and unusual punishment, reported The Tennessean.
The ruling cited the testimony of experts who stated at trial that the drug was used successfully in other states, as well as the US Supreme Court's decision in Baze v. Rees, to support the set standard that a single error or mishandled execution does not mean that an Eighth Amendment violation has occurred. Tennessee has not executed a prisoner since 2009.
To read more CLICK HERE

Thursday, August 27, 2015

Federal judge halts executions in Mississippi over lethal injection drugs

A federal judge temporarily blocked Mississippi from carrying out executions, reports the Jackson Clarion-Ledger.
U.S. District Judge Henry Wingate issued a temporary restraining order yesterday in a lawsuit challenging the use of compounded drugs in executions. The state Attorney General's office immediately appealed, reported The Crime Report.
Attorney General Jim Hood said, "We are extremely disappointed that the federal court has frustrated the State of Mississippi's lawful duty to enforce its criminal sentence of capital punishment. Just months ago the United States Supreme Court approved Oklahoma's method of lethal injection. Mississippi's method follows that of Oklahoma."
The lawsuit, filed by the Roderick and Solange MacArthur Justice Center in New Orleans, says Mississippi is one of the last states to use compounded pentobarbital before injecting a death row inmate with a paralytic agent and potassium chloride. "If the compounded pentobarbital does not work to properly anesthetize the prisoner, he will be consciously suffocated to death by the second drug or suffer the burning injection and cardiac arrest produced by the third drug," said center attorney Jim Craig. Craig said the state doesn't have compounded pentobarbital in a sterile injectable form.
To read more CLICK HERE

Wednesday, August 26, 2015

Sen. Durbin's Smarter Sentencing Act

Members of Congress from both sides of the aisle have come together to reduce the country’s over reliance on incarceration, according to the Brennan Center. As Sen. Durbin said when he first introduced the Smarter Sentencing Act in 2013, “mandatory minimum sentences for non-violent drug offenders have played a huge role in the explosion of the U.S. prison population.  Once seen as a strong deterrent, these mandatory minimum sentences have too often been unfair, fiscally irresponsible and a threat to public safety.” 
Sens. Mike Lee (R-UT) and Richard Durbin (D-IL) with wide bipartisan support, this legislation aims to reduce the ballooning federal prison population. The bill takes a modest approach to the problem of mandatory minimum sentences by reducing some without removing all. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” said Lee, “by targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”
The legislation has three main parts.
·         The bill will expand the “safety valve,” which allows a judge to part from mandatory minimum sentencing laws if certain conditions are met. As currently drafted, the safety valve has only a minor impact on non-violent drug offenders.  The Smarter Sentencing Act will expand the current criteria for eligibility. This change is supported by over 60 percent of federal district court judges, many of whom object to mandatory minimum sentences.
·         It institutes retroactivity for those sentenced under old crack and powder cocaine laws.  In 2010, the Congress passed and the President signed the Fair Sentencing Act, which reduced a long-maligned sentencing disparity between crack and powder cocaine. While a provision in that law allowed prisoners sentenced under pre- Fair Sentencing Act laws to apply for a sentence reduction, it did not automatically reduce an inmate’s sentence; inmates would have to petition a court for review. 
To read more CLICK HERE 

Tuesday, August 25, 2015

The private prison boon in Texas is over

While no one keeps an exact count on the number of private prison facilities in Texas, the six largest operators, the Geo Group, Corrections Corp. of America, LaSalle, Emerald, MTC and CEC operate more than 40 facilities containing about 50,000 beds, according to the San Antonio Express-News.
The Texas Department of Criminal Justice, which runs the state prison system, has about 150,000 beds. County jails have about 95,000 beds, many often empty.
Texas had some of the nation’s worst overcrowding 30 years ago. In the 1980s, the state prison system had fewer than 40,000 beds and was under a federal court order not to exceed 95 percent occupancy.
The private prison boon in Texas is over. And as the public sector’s need for private prison beds has diminished, the tally of failing prisons in Texas is increasing, with some already vacant for years.
The bust is evident on a rural tour of the state, where more than a dozen once-profitable facilities have failed. At least seven of them, which together borrowed nearly $200 million, are in arrears on bond payments, figures from Municipal Market Analytics, a bond-research firm, show.
In Polk, Newton, Dickens, Jones, Palo Pinto, Limestone, Lamb, Dallas, Jefferson and Burnet Counties, former private prisons either are empty, losing money or are being converted to other uses, county officials say.
In June 1995, Texas jails had 64,000 beds, and were operating at 80 percent capacity, with 7,775 beds available. In June 2015, having added nearly 30,000 beds, they were operating at 70 percent capacity, and had 19,870 available beds.
The number of federal and contract prisoners in county jails has declined in recent years, due in part to changes in federal policy.
Where in 2000, the U.S. Border Patrol apprehended 1.67 million people, by 2014 the figure had dropped to fewer than 487,000, and has stayed low since. Detentions by Immigration and Customs Enforcement also recently have dipped after a longtime rise.
To read more CLICK HERE

Monday, August 24, 2015

PA Supreme Court moves away from unproven sex offender data

In "Frightening and High: The Supreme Court's Crucial Mistake about sex Crime Statistics," Ira Mark Ellman and Tara Ellman write about how last year the Pennsylvania Supreme Court held that treating everyone convicted of a sex offense as a likely re-offender, when many are not, violates the constitutional guarantees of Due Process.
In J.B. it considered changes to the Pennsylvania registry law that automatically placed juveniles on the offender registry for 25 years if they committed a rape or "aggravated indecent assault" when over 14. The rationale for the registry law was the legislative finding that "Sexual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest."
The court objected that the affected juveniles were effectively subject to an "irrebutable presumption" that they posed a high risk of re-offense even though the presumption is in fact "not universally true". The effect of registration was one key to the court’s holding that this misclassification has constitutional significance. The plaintiffs had argued that registration "impedes a child's pathway to a normal productive life through continuously reinforcing the unlikely supposition that the youth has ‘a high risk of committing additional sexual offenses’," creating "difficulty obtaining housing, employment, and schooling” as well as “depression”.

Imposing these burdens on the plaintiffs unconstitutionally denied them Due Process, the court concluded, because individual offenders were allowed no meaningful opportunity to show the presumption of high risk was factually wrong in their case. Because good individualized measures of the likelihood of re-offending are available, the state has no need to employ, and thus endorse, global stereotypes that registered sex offenders are particularly dangerous, when these stereotypes have no basis in fact. Registration requirements “premised upon the presumption that all sexual offenders pose a high risk of recidivating…impinge upon juvenile offenders' fundamental right to reputation as protected under the Pennsylvania Constitution.”

Sunday, August 23, 2015

The Vindicator: Are prisons worth the cost even though they reduce crime?

Matthew T. Mangino
The Youngstown Vindicator
August 23, 2105
Nearly two years ago, Gary Mohr, director of the Ohio Department of Rehabilitation and Correction, told the [Cleveland] Plain-Dealer he’d quit before allowing the construction of a new prison in Ohio.
“Whatever my term (as director) is going to be, I would expect that our count will be less the day I leave than it is today,” he said.
In the past 25 years, Ohio’s prison population has more than doubled, jumping from 24,750 in 1988 to more than 50,000 as of this year, according to the corrections department. The state’s 27 prisons were built to house about 38,500 inmates.
In 2011, Ohio enacted comprehensive reforms to the sentencing and corrections system. The law created a statewide system of risk and needs assessments to ensure that community supervision and treatment resources are used to their maximum effectiveness on the most appropriate offenders.
The reforms were projected to save taxpayers $46 million by 2015. The savings derived from a reduction in expected prison growth would enable policymakers to invest $20 million into improved community supervision, according to The Pew Center on the States.
Ohio Gov. John Kasich said at the time, “I get emotional about this because I think the passage of this bill and the changing of this law is going to result in the saving of many, many lives, maybe even thousands, before all is said and done.”
The reforms have not panned out. Now Mohr is calling for more compassion toward wrongdoers as he continues a push to reduce the state’s inmate population.
‘Sense of forgiveness’
“Our hearts need to be softened to some degree,” said Mohr. “We have to think about the sense of forgiveness.” A cynical observer might say this is more about the bottom line than holding the line on punishment.
According to the Columbus Dispatch, when Mohr started his prison career 41 years ago, Ohio had 8,300 inmates in seven prisons. The state’s incarceration rate was 5.3 per 100,000 citizens, compared with its current rate of 68.1 per 100,000.
How did Ohio – and nearly every other state – get wrapped up in this unsustainable cycle of over criminalization and draconian punishment? The tough-on-crime approach to public safety seems to have paralleled the unprecedented decline in violent crime.
Over the past 25 years, the tide of crime and violence seemed to simply recede, wrote Inimal M. Chettiar in The Atlantic. Crime is about half of what it was at its peak in 1991. Violent crime plummeted 51 percent. Property crime fell 43 percent. Homicides are down 54 percent. America across the board is a safer place than it was a quarter century ago.
Has incarceration contributed to the decline in crime?
The consensus among researchers is that mass incarceration accounted for about 10 to 20 percent of the overall decline in crime 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,” John Roman of The Urban Institute told The Marshall Project. “Whether the destruction of communities associated with mass incarceration is worth it? That’s a completely different question.”
Cost analysis
The National Research Council has said that the cost, financial and otherwise, is not worth the reduction in crime.
After a comprehensive review of data the council concluded that the costs of the current rate of incarceration outweigh the benefits. The council recommended that federal and state policymakers re-examine policies requiring mandatory and long sentences, as well as take steps to improve prison conditions and to reduce unnecessary harm to the families and communities of those incarcerated.
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)

Saturday, August 22, 2015

GateHouse: Facebook — a venue for abuse

Matthew T. Mangino
GateHouse Media
August 21, 2015
Did you know that hitting “like” on your Facebook page could land you in jail? A Pennsylvania man may soon find out.

Justin Bellanco was recently charged with indirect criminal contempt. Police allege that he violated a restraining order filed against him by his ex-girlfriend. The violation occurred on Facebook.

According to Wilkes-Barre Time Leader, Bellanco was arrested after his victim told police that he “liked” 22 of her photographs and videos on her Facebook page.

He isn’t the first person to be charged for such conduct. An Arkansas man and a New York man have also been charged for similar conduct.

This is not the first, nor most heralded, court intervention into criminal conduct that is allegedly manifested through Facebook. Earlier this year, the United States Supreme Court decided that statements posted on Facebook that may be perceived as threats are protected by the First Amendment.

Domestic violence is a serious problem in this country. Violence and abuse can happen to anyone, regardless of gender, race, ethnicity, sexual orientation or economic status. One in four women are victimized. Domestic violence is most often perpetrated behind closed doors, but in this case the conduct is on a public forum for all the world to see.

Bellanco told police that he didn’t know “liking” Facebook photos constituted a violation of the protective order. That defense won’t fly. No contact means no contact. Any effort to overtly make contact with the subject of a protective order is guilty of criminal contempt.

However, Bellanco posted a subsequent message on — what else — Facebook, telling a different story. His post, according to the website, included, “they were actually posts on my facebook (sic) wall... nothing I liked appeared on her Facebook ... I was not aware that she would receive any notification due to the fact we were no longer friends... and I was not able to remove her tag from posts.”

This case, and others like it, may be more about how social media works, than whether an order of court has been violated or a crime committed.

The breadth of social media is ever expanding. A cursory review of the internet turned up more than 150 social media sites including Facebook, Tumblr, Instagram, Pinterest, Vox, Zoopa, Twitter, Vine and Snapchat.

How does a participant interact with other members of a social network? For instance, a Facebook member “tags” another member in a post and a third member “likes” that post but also happens to have a protective order prohibiting contact with the person tagged. Her “like” has been communicated to the person tagged, albeit unintentionally, is she in violation of the no contact order?

On Twitter, a guy tweets something about his ex who is not following him, but his friend retweets it and the guy’s ex is the friend’s follower and as a result she sees the tweet.

What if you are on Instagram and you double tap on a photograph thinking you might enlarge the photograph but you actually send a “like” to your ex who has a no contact order. Is that a violation?

When an abuser intentionally posts statements on social media, knowing the likelihood of exposure to the victim, that conduct is criminal contempt. The controversy arises when intent is less clear.

Until the courts figure this out, all protective orders should include language to “unfriend” the victim and remove all potential contact with the victim on social media. This may help to prevent traumatic, unwanted contact between an abuser and his victim.

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, August 21, 2015

LAPD: 'We were we are guardians'

The Los Angeles Police Department of the 1970s and '80s acted as a hard-charging, occupying force that raided poor neighborhoods and rounded up anyone in sight. Police stormed suspected crack houses, tearing down walls with a tank-like battering ram.
Officers of that era were trained to think of themselves as soldiers in a never-ending war on crime, says the Los Angeles Times.
Now, the department is using that notorious history as a crucial lesson for its officers. "We were warriors," Deputy Chief Bill Scott told a room filled with rank-and-file officers, a group of fresh-faced rookies watching from the front. Now, he said, officers need to think of themselves as guardians watching over communities, not warriors cracking down on them.
"That means if we've got to take somebody to jail, we'll take them to jail," Scott said. "But when we need to be empathetic and we need to be human, we've got to do that too."
To read more CLICK HERE

Thursday, August 20, 2015

Texas executed cop killer who wanted to die

The 19th Execution of 2015
Texas death row inmate Daniel Lee Lopez, who for years has affirmed his guilt for killing a Corpus Christi police lieutenant and petitioned courts to expedite his execution, was executed on August 12, 2015 after the U.S. Supreme Court denied an appeal by his lawyer, reported the Huffington Post.
Lopez, 27, was pronounced dead at 6:31 p.m. after receiving a lethal injection at the state's death chamber in Huntsville, according to a spokesman from theTexas Department of Criminal Justice.
Convicted in 2010 for killing Corpus Christi Lt. Stuart Alexander during a high-speed chase, Lopez was bound for execution after the court denied an appeal by attorney David Dow, the prominent anti-death penalty defense attorney representing Lopez.
Lopez's "obvious and severe mental illness" led to his desire to use the legal system for suicide, illustrating his "well-documented history of irrational behavior and suicidal tendencies," Dow told the court. Dow argued the March 2009 crime wasn't eligible for the death penalty because Lopez didn't intend to kill the officer.
Courts had previously found Lopez competent to make the decision to waive his appeals and expedite his execution.
"I've accepted my fate," Lopez told The Associated Press. "I'm just ready to move on."
It's a refrain Lopez made often. 
"I'm ready. Ain't no point in staying in here any longer. I'm in a, in a box. So I'm ready, right," Lopez told the AP in 2011.
Lopez' five-year wait on death row  was roughly half the time a typical inmate waits before execution, according to the Death Penalty Information Center.
One of Lopez's final wishes was to donate his organs.
“I’ve sat here for five years thinking of all the mistakes I’ve done and how I could do my part and give back to others,” Lopez wrote in a letter to the Corpus Christi Caller-Times last week. “I’ve accidentally taken a man’s life and have thought on many occasions on how great it would be to give one or more back."
To read more CLICK HERE

Wednesday, August 19, 2015

Traffic fatalities spike to eight year high

The U.S. is on track to have its deadliest traffic year since 2007, the National Safety Council says, with nearly 19,000 people killed as a result of motor vehicle accidents between January and June—a 14 percent increase over the same period last year. Newsweek says the number of injuries and the costs associated with traffic accidents also rose significantly. Nearly 2.3 million serious injuries were sustained during the six-month period, up 30 percent from the first half of 2014.
The estimated costs of these crashes—including medical expenses, wage and productivity losses and property damage—increased 24 percent, to roughly $152 billion. The NSC attributes the increase to lower gas prices, increased cumulative mileage traveled and an improving economy. “One of the strongest correlations tends to be between the economy and traffic fatalities,” said Deborah A.P. Hersman, president and CEO of the NSC. “When the economy is doing well and things are growing, we tend to see more fatalities.” She calls the trend "not just disappointing but heartbreaking."

To read more CLICK HERE

Tuesday, August 18, 2015

GateHouse column reaches milestone: Appears in newspapers in 20 states

My weekly syndicated column distributed by GateHouse Media reached an important milestone last week. My column, Juveniles fear arrest more than punishment, appeared in daily newspapers, and online, in 20 states from California to New Hampshire and North Dakota to Louisiana.

Click on GateHouse News Service under the "Labels" section in the far right column of the site to access 122 of my GateHouse columns.

Last week's column appeared in Arkansas, Colorado, Connecticut, California, Illinois, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, North Dakota, New York, Ohio, Oklahoma, Pennsylvania, Tennessee, West Virginia and Iowa.

For a list of GateHouse publications CLICK HERE

Federal government struggles with aging prisoners and overcrowded prisons

How old is too old for prison?

That's the question two federal agencies are grappling over, and the answer they pick will determine how the government spends more than $800 million in public funding for prisons. And for tens of thousands of federal inmates, it could mean the difference between becoming eligible for a late-life release program and spending their twilight years behind bars.
The Federal Bureau of Prisons is struggling to adjust to an aging prison population, a product, in part, of criminal-justice reforms of the late 1980s that dramatically reduced federal parole and imposed mandatory minimum sentences for some offenses. In fiscal 2013, the Federal Bureau of Prisons spent nearly 20 percent of its $6.9 billion budget to incarcerate inmates aged 50 and older. And without a policy intervention, those costs are set to rise: Inmates aged 50 and older make up the fastest-growing segment of the prison population, according to Justice Department Inspector General Michael Horowitz.

To be eligible for the reduced sentencing program, inmates must have "chronic or serious medical conditions relating to the aging process" that "substantially diminish their ability to function in a correctional facility" for which "conventional treatment promises no substantial improvement," according to a statement from the Bureau of Prisons. They must also have served more than half of their sentence. For inmates looking for early release under nonmedical circumstances, the time-served bar is higher: "the greater of 10 years or 75 percent of their term."

"As with all compassionate-release determinations, the BOP considers whether the offender poses a danger to the safety of another person or to the community," the statement said.
But for any of the above criteria to be considered, the inmate must be aged 65 or older.
The Inspector General report did not explicitly call on the Bureau of Prisons to lower the limit in its May report. Instead, it recommended the bureau reconsider the age bar and noted the potential advantages of setting it at age 50.
The lower threshold would cut incarceration costs and relieve prison overcrowding without significantly increasing recidivism rates, the report said. The report notes several ways in which prisoners 50 and over differ from the rest of the prison population. Older inmates cost an average of 8 percent more to confine, but they are also less likely to end up back in prison after release. While the recidivism rate among all prisoners is 41 percent, for those released after age 50, the rate falls to 15 percent.

To read more CLICK HERE

Monday, August 17, 2015

Why the different response to heroin than crack?

The Recovery Enhancement for Addiction Treatment Act is federal legislation introduced earlier this year. It would make it easier for doctors to treat heroin users with a drug called buprenorphine. Nearly two-dozen states also have passed laws that protect “good Samaritans” who alert doctors or nurses to heroin overdoses, reported The Marshall Project.
Such public-health responses were not necessarily unthinkable during the crack-cocaine wave of the 1980s or the heroin epidemic of the 1960s. But the limited public-health measures adopted during those eras were overshadowed by more punitive responses to those crises. Can you imagine the Congress and the White House of 1985 debating a “Recovery Enhancement for Addiction Act” for crack users?
One public official after another, in states both “red” and “blue,” has pressed in recent years to treat increased heroin use as a public-safety problem as opposed to a criminal-justice matter best left to police, prosecutors, and judges. This is good news. But it forms a vivid contrast with the harsh reaction a generation ago to the sudden rise in the use of crack cocaine, and from the harsh reaction two generations ago to an earlier heroin epidemic .
What accounts for the differences? Clearly policymakers know more today than they did then about the societal costs of waging a war on drugs, and dispatching low-level, nonviolent drug offenders to prison for decades. The contemporary criminal-justice system places more emphasis on treatment and reform than it did, say, during the Reagan years or when New York’s draconian “Rockefeller laws” were passed in the 1970s. But there may be another explanation for the less hysterical reaction, one that few policymakers have been willing to acknowledge: race.
Some experts and researchers see in the different responses to these drug epidemics further proof of America’s racial divide. Are policymakers going easier today on heroin users (white and often affluent) than their elected predecessors did a generation ago when confronted with crack addicts who were largely black, disenfranchised, and economically bereft? Can we explain the disparate response to the “black” heroin epidemic of the 1960s, in which its use and violent crime were commingled in the public consciousness, and the white heroin “epidemic” today, in which its use is considered a disease to be treated or cured, without using race as part of our explanation?
To read more CLICK HERE

Sunday, August 16, 2015

Connecticut Supreme Court Strikes Down Death Penalty

The Connecticut Supreme Court has struck down the state's death penalty as it relates to 11 condemned prisoners on death row, reported the Jurist. The legislature had abolished the death penalty for all future cases but did not address the 11 men on the state's death row.

Justice Richard Palmer wrote for the court's majority that imposing the sentence on existing inmates when it has been outlawed for future use constitutes cruel and unusual punishment in violation of the state constitution:
[T]he death penalty no longer serves any legitimate penological goal in our state. As Judge Kozinski concludes, ‘‘we have little more than an illusion of a death penalty in this country. To be sure, we have capital trials; we have convictions and death sentences imposed; we have endless and massively costly reviews by the state and federal courts; and we do have a small number of people executed each year. But the number of executions compared to the number of people who have been sentenced to death is minuscule, and the gap is widening every year. Whatever purposes the death penalty is said to serve— deterrence, retribution, assuaging the pain suffered by victims’ families—these purposes are not served by the system as it now operates.’’
To read the entire opinion CLICK HERE

Saturday, August 15, 2015

GateHouse: Juveniles fear arrest more than punishment

Matthew T. Mangino
GateHouse Media
August 14, 2015
Research into the adolescent mind and criminality has changed the way we punish   young people. Brain development research has, in part, eliminated juveniles from the death penalty, life without parole for non-homicide offenses, and mandatory life without parole.
A new study of juvenile crime suggests that the severity of punishment — going to prison — has little impact on deterring crime.
Research developed through a project known as Pathways to Desistance examined serious juvenile crime and recidivism in multiple states over a significant period of time. Between November 2000 and January 2003, 1,354 young people from the juvenile and adult court systems in Phoenix and Philadelphia were enrolled in the study.
The enrolled youth were at least 14 years old and under 18 years old at the time they were found guilty of a serious crime. Each study participant was followed for a period of seven years after their conviction.
The research has been used in more than 80 studies including a recent Office of Juvenile Justice and Delinquency Prevention report, “Studying Deterrence Among High-Risk Adolescents.”
The report found no meaningful reduction in offending or arrests based on the severity of the punishment, such as correctional placement versus probation or longer periods of institutional placement. However, researchers found that the certainty of punishment can play a role in deterring future crimes.
In other words, an adolescent offender was more concerned with getting caught than with being punished. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.
Therefore, the report’s authors advocate for shifting resources from prisons to areas that influence an offender’s perception of risk — getting caught. Even if an offender is uncertain about the level of risk, the perception of risk may have an impact on deterrence.
That suggestion is controversial because it would require police agencies to substantially rethink how they deploy scarce resources.
More than two decades ago, Lawrence W. Sherman, currently the director of the Institute of Criminology of the University of Cambridge, England, acknowledged that it is not always possible to increase the certainty of punishment to adequate levels due to limited resources.
He argued that even though the overall level of punishment certainty may be low, the unpredictability variable — very high in some areas but very low in others — could still have a deterrent effect.
Sherman argued that random police activity provides vague or ambiguous information about the certainty of getting caught, exploiting the natural uncertainty about risk.
Although the overall level of detection may be low, creating uncertainty about specific detection probabilities with respect to certain areas, crime types, or other factors, may generate a larger perceived risk of getting caught as compared to a constant, low rate of detection.
The idea is that a little money can go a long way in preventing crime and, more particularly, juvenile crime. The time is ripe to look at alternatives to incarceration without breaking the budget. Random saturation of police patrols in high crime areas can provide enough variability that a potential young offender may become adverse to the perceived risk.
More recent studies have confirmed that this approach to policing, developing tailored responses to very specific recurring problems can be successful without a huge expenditure. The alternative is to build more prisons, with little chance of rehabilitating young offenders. Implementing situational prevention strategies that reduce police reliance on aggressive enforcement strategies like “stop and frisk” may also provide a much needed boost to sagging police-community relations.
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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Friday, August 14, 2015

Kelling: Broken Windows 'has been largely misunderstood'

A lot of sins have been committed in the name of “broken windows,” wrote George Kelling in Politico. That is the name Kelling and the late criminologist James Q. Wilson gave to a new theory of policing more than 30 years ago—it was the title of an essay they published in in the Atlantic in 1982—in which they argued that small things matter in a community and, if nothing is done about them, they can lead to worse things.
Kelling wrote, we expressed this in a metaphor: Just as a broken window left untended in a building is a sign that nobody cares, leading typically to more broken windows—more damage—so disorderly conditions and behaviors left untended in a community are signs that nobody cares and lead to fear of crime, more serious crime, and urban decay.
Today, with the highly publicized deaths of a number of African-Americans at the hands of white police officers over the past year, so-called broken-windows policing has come under attack by activists and academics alike. Such police acts as stopping Michael Brown for jaywalking in Ferguson, Mo., and confronting Eric Garner for selling loose cigarettes in New York, are said to be examples of broken-windows policing run amok. Some have argued that this approach to policing might have been appropriate in the days of high crime during the 1970s and 1980s, but is no longer relevant since crime rates have declined. Others claim that broken windows is responsible for the high rate of incarceration. Others yet say that broken windows does not prevent crime.
Despite these and other criticisms, the demand for order remains high in minority and poor communities. And I would argue that our theory has been largely misunderstood. First of all, broken windows was never intended to be a high-arrest program. Although it has been practiced as such in many cities, neither Wilson nor I ever conceived of it in those terms. Broken-windows policing is a highly discretionary set of activities that seeks the least intrusive means of solving a problem—whether that problem is street prostitution, drug dealing in a park, graffiti, abandoned buildings, or actions such as public drunkenness. Moreover, depending on the problem, good broken windows policing seeks partners to address it: social workers, city code enforcers, business improvement district staff, teachers, medical personnel, clergy, and others. The goal is to reduce the level of disorder in public spaces so that citizens feel safe, are able to use them, and businesses thrive. Arrest of an offender is supposed to be a last resort—not the first.
Some background, perhaps, will help clarify these issues. When Wilson and I agreed in late 1981 to co-author an article in the Atlantic, we knew then that it would stir up controversy. Wilson, a conservative political scientist, had already aroused hostility from the largely liberal criminological establishment with his 1975 book, Thinking About Crime, which challenged the criminological truism that crime could only be prevented by dealing with its “root causes.” I had attracted negative responses as well from the police establishment in 1974 when colleagues and I published the Kansas City Preventive Patrol Experiment, which largely invalidated the accepted and entrenched police tactic of random patrol of city streets by police in cars. More than this, each of us was familiar with the dismal history of police and African Americans in the United States—of police complicity in the maintenance of slavery, the Black Codes, Jim Crow in the South, and de facto segregation in the North. Given the subject of our article, the Black Codes—vague loitering and vagrancy laws passed in the South immediately after the Civil War—were of special concern for us. Under these laws police arrested African Americans for minor offenses and, when they could not pay the fines, courts committed them to involuntary labor on farms—in a sense, extending slavery for many into the 20th century.
Against this backdrop, Wilson and I were arguing for something else: simply doing a better job of maintaining order. In some respects what we wrote was nothing new: maintaining order is an ancient police function. Yet by this time American police had backed away from order maintenance in the name of concentrating on “serious” crimes. Wilson and I urged police to reconsider.
I cannot speak for Jim, who died in 2012 at the age of 80, but my own views about the importance of maintaining order grew out of my research on police foot patrol and meeting with African American citizens in tough areas of cities like Newark, Boston, NYC, Chicago, and others. Starting in the early 1970s, in churches, social centers, living rooms, and walking the streets, I listened to citizens talk about their problems and demand action. If you asked them to list their five greatest concerns, at least three, but more likely four, would be “minor problems:” graffiti, youths drinking in parks, “homeless” peeing on their stoops, prostitutes attempting to hustle fathers in front of their children, “johns” hustling their teen age daughters, abandoned homes, unkempt properties, and so on. These complaints came not from white suburban or middle class areas, but from poor residents, usually minorities, in the heart of inner cities.
Why then has broken windows policing re-emerged as the target not only of academics but activists during the second decade of the 21st century? In part, police themselves have not always applied a broken-windows approach in a manner in which it is most effective as a crime prevention and control technique, while compatible with and responsive to community goals and desires. Both are crucial to good broken-windows policing—which by its nature depends upon the exercise of seasoned discretion and wise judgment by trained police officers familiar with and sensitive to the local community. At the same time, many critics of order maintenance by police fail to understand either the fundamental theory behind its use, or actual positive outcomes that have been documented in its application in numerous cities across the country—outcomes that make it a police tactic worth pursuing.
To read more CLICK HERE

Thursday, August 13, 2015

Severity of punishment does not deter juvenile crime...certainty of punishment does

According to the Juvenile Justice Information Exchange, a new report, “Studying Deterrence Among High-Risk Adolescents,” found that certainty, not severity is the key to deterring juvenile crime.  The report is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.
The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes.
Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.
Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time.
“It’s switching the presumption that kids should be in treatment for ‘as long as it takes,’” he said.The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.
TO read more CLICK HERE

American epidemic: Heroin use has increased 63% in 11 years

Heroin use in the United States has skyrocketed, spreading to include groups who previously were less likely to abuse the drug, according to Time. Heroin use has increased 63% in 11 years.
New data released by the U.S. Centers for Disease Control and Prevention (CDC) show that heroin use increased 63% between 2002 and 2013, and heroin-related overdose deaths have nearly quadrupled over the same time period. In 2013 an estimated 517,000 people reported that they had used heroin in the last year or had a heroin-related dependence, a 150% increase from 2007. More than 8,200 people died of heroin-related overdose in 2013, according to national surveys published in the CDC’s Morbidity and Mortality Weekly Report.
While heroin use continues to be most common among men between the ages of 18 and 25 who make less than $20,000, the CDC researchers note that in recent years people in nearly every demographic group are using the drug more. For instance, heroin use has doubled among women and non-Hispanic white people.
To read more CLICK HERE

Wednesday, August 12, 2015

White House supports comprehensive criminal justice reform

According to a White House press release, the Administration’s National Drug Control Strategy supports comprehensive change within the criminal justice system.

The White House explains its reasoning as follows:  Over the past twenty-five years, the U.S. prison and jail population reached an all-time high and the number of people on probation and parole doubled.  In 2009, nearly seven million individuals were under supervision of the state and Federal criminal justice systems.  Nearly two million of these individuals were incarcerated for their crimes, while the remaining five million were on probation or parole being supervised in the community. As a result, the United States’ criminal justice system faces significant challenges.

While both the Federal and state correctional systems must address this issue, states generally bear the costs related to this population, and correctional spending has dramatically kept pace with the rising corrections population.  Between 1988 and 2009, state corrections spending increased from $12 billion to $52 billion per year. Despite these significant expenditures, far too many offenders return to drug use and crime upon their reentry into society.

In 2009, parole and other conditional release violators accounted for 33.1 percent of all prison admissions, 35.2 percent of state admissions, and 8.2 percent of Federal admissions.  Twenty-four percent of parolees ending supervision in 2009 (approximately 132,000 of 553,000) returned to prison as a result of violating their terms of supervision, and 9 percent of adults ending parole returned to prison as a result of a new conviction.

Among state prisoners who were dependent on or abusing drugs, 53 percent had at least three prior sentences to probation or incarceration, compared to 32 percent of other inmates. Drug dependent or abusing state prisoners (48 percent) were also more likely than other inmates (37 percent) to have been on probation or parole supervision at the time of their arrest.  The 2010 ADAM II Survey found that anywhere from 52 percent (Washington, DC) to 80 percent or more (Chicago and Sacramento) of male arrestees tested positive for the presence of at least one drug at the time of their arrest.

Tuesday, August 11, 2015

North Carolina shuts down access to lethal injection process

North Carolina Gov. Pat McCrory signed into law a bill limiting public disclosure of those who make, supply or administer the drugs used in lethal injections of death-row prisoners, reported the News Observer.
House Bill 774 also removes the requirement that physicians be present during executions. That provision is meant to eliminate one of the legal hurdles that currently block the death penalty in North Carolina.
The protocol would be exempt from the state Rules Review Commission.
The ACLU and a national organization of conservatives who question the death penalty had asked the governor this week to veto the bill. N.C. Conservatives Concerned about the Death Penalty issued a statement saying, “Making secret the way in which our state obtains the drugs needed and conducts executions practically guarantees that NC will join states around the country that have seen horribly botched executions.”To read more CLICK HERE


Monday, August 10, 2015

Homicide rate spikes nationwide

Baltimore, Chicago, Milwaukee, New Orleans, New York City, St. Louis and Washington, D.C., among others, have all seen significant increases in their murder rates through the first half of 2015, reported Time.
Homicides in St. Louis, for example, are up almost 60% from last year while robberies are up 40%. In Washington, D.C., 73 people have been killed so far this year, up from 62 last year, an 18% jump. In Milwaukee, murders have doubled since last year, while in nearby Chicago homicides have jumped almost 20%.
It’s unclear what’s driving the increase across multiple cities, as some cities are dealing with localized issues that may not apply when looking at the rising crime rates elsewhere. St. Louis police say that judges have been too lenient against criminals who have had histories of illegal gun possession and prosecutors haven’t aggressively pursued murder charges.
Criminologists warn that the recent spikes could merely be an anomaly, a sort of reversion to the mean after years of declining crime rates. But there could be something else going on, what some officials have called a “Ferguson effect,” in which criminals who are angry over police-involved shootings like that of Michael Brown, an unarmed black teenager who was shot and killed by a white police officer in August, have felt emboldened to commit increased acts of violence
To read more CLICK HERE

Sunday, August 9, 2015

Colorado jury reflects public opinion in Holmes verdict

The jury’s decision n Colorado theater shooter James Eagan Holmes – life in prison without parole instead of execution – reflects the nation’s attitude about such cases tied to mental illness, says the Christian Science Monitor as reported on The Crime Report. While most Americans still favor the death penalty (63-33 percent for those convicted of murder, says the Gallup survey), a clear majority oppose the ultimate punishment for those diagnosed with severe mental illness amounting to insanity: 58-28 percent, a Public Policy Polling survey found in December.
That opposition is consistent across party affiliations: 62 percent of Democrats, 59 percent of Republicans, and 51 percent of independents agree that mentally ill persons should not be executed. Similar majorities were found across both genders, as well as economic and education levels. “The poll joins other new data demonstrating that sentencing trends are down across the country for death-eligible defendants with severe mental illness,” said University of North Carolina at Chapel Hill law Prof. Robert Smith, who commissioned the survey. “Combining this public polling, sentencing practices, and the recommendations of the mental health medical community, it’s clear that a consensus is emerging against the execution of a person … who suffers from a debilitating illness which is similar to intellectual disability in that it lessens both his culpability and arguable social value of his execution,” he said
To read more CLICK HERE

Saturday, August 8, 2015

Gatehouse: The death penalty and American politics

       Matthew T. Mangino
          GateHouse Media
          August 7, 2015
          What has the death penalty taught us about American politics?
Words matter. When politicians speak, listen. Not because what they say is always important, but because what they say is not always what they mean. In 1976, the U.S. Supreme Court gave imprimatur to new legislation in several states that promised the death penalty would be reserved for the worst of the worst.
The penalty would apply to murders committed with aggravating factors. Today in Pennsylvania there are 19 aggravating factors. Did you know that a killer can get the death penalty for killing a woman in her third trimester of pregnancy? I guess the first and second trimesters are not that aggravating.
Nothing motivates a politician like being personally touched — or polling trends. Timothy McVeigh, the Oklahoma City Bomber, was about to be executed when a Gallup Poll found that 65 percent of people supported the death penalty, but 81 percent supported the execution of McVeigh. Sixteen percent of people who opposed the death penalty wanted McVeigh executed.
“Do you want me to be for you or against you?” That paraphrases and old political boss’ question to a young politician. The same holds true for the death penalty. A shrewd politician can get just as much political mileage out of being for the death penalty as she can being against the death penalty.
The Supreme Court doesn’t decide until you decide. In two landmark decisions by the U.S. Supreme Court — one in 2002 dealing with intellectual disability and the other in 2005 dealing with juveniles — the court waited until 30 states had already struck down the execution of the intellectual disabled and juveniles before striking down both nationwide. A national consensus had been established before acting. Can anyone say polling?
Politicians sometimes twist the truth. Those opposed to the death penalty will suggest that innocent people have been executed. DNA has proven that juries get it wrong. There is no question about that; a significant number of people convicted of a crime have been exonerated by DNA. However, none of those people had been executed and only 17 had spent any time at all on death row.
When an election is on the line, a politician is capable of anything. In 1988, Democrat presidential nominee Michael Dukakis said during a debate he would not seek the death penalty if his wife was raped and murdered. Obviously, that did not sit well with voters — he lost.
In 1992, Arkansas Gov. Bill Clinton, the Democrat nominee, was not going to make the same mistake. He returned to Arkansas from the campaign trail to oversee the execution of a mentally ill inmate who asked the warden to save him a piece of pie for after the execution.
Politicians make empty promises. In Nebraska, the legislature abolished the death penalty, and overrode a governor’s veto. Yet Gov. Pete Rickets is raising money to have the matter placed on the ballot as a referendum. He obviously did not have enough votes to stop its abolition, or to uphold his veto, but he is going to seek to have death penalty reenacted?
Politicians are not always well informed. In Pennsylvania, Gov. Tom Wolf imposed a moratorium on carrying out the death penalty. The DA in Philadelphia was so incensed he sued the governor to stop this egregious conduct — “executions should proceed as normal.” Since 1976, Pennsylvania has executed three men — each waived their appeal rights. There has not been an involuntary execution in Pennsylvania since 1962.
Congress doesn’t care what you think. Massachusetts has not had the death penalty since 1984. A significant majority of citizens in Massachusetts are opposed to the death penalty. Yet in Massachusetts, the federal government sought and gained a death sentence against Dzhokhar Tsarnaev, the Boston Marathon bomber.
If you don’t vote (or can’t), you don’t matter. Hundreds of thousands of inmates are disenfranchised, but more importantly seriously mentally ill inmates make up about 16 percent of all inmates. Even more disturbing, seriously mentally ill death row inmates are also regularly executed in this country. In 2015, Derrick Charles and Cecil Clayton, both seriously mentally ill, were executed.
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.

Friday, August 7, 2015

Death penalty on trial in California?

On Aug. 31, the death penalty will go on trial at the Ninth Circuit Court of Appeals. The oral argument stems from a judgment in 2014, in which Federal District Judge Cormac Carney ruled that California’s death penalty system was unconstitutional, reported the Washington Post.
Carney argued that because of the extremely low likelihood of execution and long delays on death row, the system was actually a penalty of life without parole with the remote possibility of death. His ruling declared that execution after such a long delay serves no retributive or deterrent purpose beyond the long prison term, and is therefore arbitrary and unconstitutional (see Jones v. Chappell, 2014).
As Carney wrote in his California decision, no rational jury or legislature would design a system that functions as the system actually works.  But, he argued, we must evaluate the system we do have, not the one we might prefer to have.
Nationwide, the “new” death penalty consists of 20 years or more on death row, followed by some probability of execution. The average delay from crime to execution for those executed since 2010 is 16 years across the United States, even longer in California, as the judge noted. Thirty-eight percent of inmates executed nationally since 2010 served more than 20 years; 17 percent served more than 25 years; five inmates were killed after more than 35 years of delay. The vast majority are never executed.
To read more CLICK HERE

Thursday, August 6, 2015

Courtrooms have not kept up with science

Americans inherited a legal system shaped by history, not by science, reports Wired Magazine. “The legal system is resistant to change and resistant to paying attention to scientific research,” says Adam Benforado, a law professor at Drexel University and author of the recent book Unfair: The New Science of Criminal Injustice. The system assumes that innocent people don’t confess to crimes they didn’t commit. It presumes that eyewitness testimonies are reliable. It counts on the impartiality of jurors.
None of those things are borne out by evidence.
James Holmes walked into a midnight screening of The Dark Knight Rises in 2012 carrying three guns including a semi-automatic rifle and opened fire, killing 12 people and injuring 70 more. Nobody, not even his defense attorneys, denied that. But those attorneys still told a jury and a judge that Holmes was not guilty of those crimes—because he was insane. Last month, that jury rejected that assertion, finding Holmes guilty on all counts.
Holmes’ plea didn’t get him off, but it did get people talking about the insanity defense again. It’s a rare move for defense attorneys these days, even quaint sounding. Psychiatrists no longer call patients “insane.” It’s not a clinical diagnosis. Yet the term persists in the courtroom—along with many other practices unsupported by modern psychology and neuroscience.
To read more CLICK HERE

Wednesday, August 5, 2015

Pennsylvania Commission on Sentencing to put risk assessments in the hands of sentencing judges

Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science, reported The Marshall Project. The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record. They are now used at some stage of the criminal justice process in nearly every state. Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.
But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars.
Pennsylvania, which already uses risk assessment in other phases of its criminal justice system, is considering the approach in sentencing because it is struggling with an unwieldy and expensive corrections system. Pennsylvania has roughly 50,000 people in state custody, 2,000 more than it has permanent beds for. Thousands more are in local jails, and hundreds of thousands are on probation or parole. The state spends $2 billion a year on its corrections system — more than 7 percent of the total state budget, up from less than 2 percent 30 years ago. Yet recidivism rates remain high: 1 in 3 inmates is arrested again or reincarcerated within a year of being released.
To read more CLICK HERE

Tuesday, August 4, 2015

Will Alabama fund criminal justice reforms?

Alabama is reforming its criminal justice system because a complex web of interconnected problems left it near implosion—a mess of spent money, wasted lives and broken families, reported the Daily Signal of the Heritage Foundation.
As Alabama becomes the latest conservative state of the Deep South to reform its criminal justice system, the challenge, state leaders and outside experts say, may be the greatest yet.
Alabama has the most overcrowded prison system in the nation. Worse than California, where the prison system also was nearing 200 percent capacity when a federal court order forced the state to immediately reduce the population to 137.5 percent capacity.
The U.S. Supreme Court affirmed the decision, ruling that conditions in California’s overcrowded prisons violated the Eighth Amendment’s ban on cruel and unusual punishment.
“We don’t want the federal government ruling our prison system, and we are dangerously close to becoming another California,” says Alabama State Sen. Cam Ward, the Republican chairman of the Judiciary Committee who sponsored the reform legislation.
“We dare defend our rights—that’s our state motto,” Ward says. “I’ve toured every prison in the state, and I can tell you my biggest concern is this: I want public safety first and foremost. And second, at the end of the day, why release a bunch of inmates because we ran a sorry system, when we can improve the system at a small cost without letting a lot of nasty people out? That’s the direction I saw us going.”
In late June, one month after Alabama followed Texas, Georgia and South Carolina in passing a bipartisan plan to relieve prison overcrowding, The Daily Signal spent a week on the ground to explore the state’s criminal justice system.
The visit came at an awkward time, when criminal justice officials act as if the plan will proceed even though they can’t begin to implement it yet.
Alabama Gov. Robert Bentley, a Republican, signed the reform bill into law on May 21, but the plan still is not funded.
During the week of Aug. 3, the Republican-controlled state legislature is slated to interrupt summer recess to convene for a special session. Ward, who says lawmakers must come up with an additional $12 million to bolster the $394-million prison budget, insists he is “very confident” the plan will get funded.
The reform measure, which is supposed to go into effect in January and take five years to implement, is expected to cut Alabama’s prison population by more than 4,200 (a 30-percent reduction), avert more than $380 million in future costs, and provide supervision for every single inmate released from prison.
To read more CLICK HERE

Monday, August 3, 2015

States back off collateral consequences of drug conviction

Hundreds of thousands of Americans are serving time for drug offenses—nearly a half-million according to the latest numbers available, from 2013, said a report from Stateline. For many, leaving prison with a felony conviction on their record adds to the hurdles they face re-entering society. Referred to as the collateral consequences of crime, a 1996 federal law blocks felons with drug convictions from receiving welfare or food stamps unless states choose to waive the restrictions.
The bans, which don’t apply to convictions for any other crimes, were put in place as part of a sweeping reform of the nation’s welfare system, and at the height of the war on drugs. Now many states are rethinking how to help felons become productive citizens and reduce the likelihood they will return to prison.
Since 1996, 18 states have lifted restrictions on food stamps, known as the Supplemental Nutrition Assistance Program, and 26 allow people with certain types of drug felonies to get those benefits—leaving six states where a felony drug record disqualifies a person from receiving them.
States have been more restrictive when it comes to extending welfare benefits through Temporary Assistance to Needy Families: 14 have lifted the restriction, 24 have some restrictions and 12 have full restrictions barring felons with a drug conviction from receiving cash assistance.
To read more CLICK HERE

Sunday, August 2, 2015

SCOTUS to hear challenge to Florida's death penalty

The U.S. Supreme Court this fall will hear arguments in a challenge to the way Florida sentences people to death — a challenge backed by three former Florida Supreme Court justices and the American Bar Association, according to the News Service of Florida.
The case, which stems from the 1998 murder of an Escambia County fast-food worker, focuses on the role that juries play in recommending death sentences, which ultimately are imposed by judges.
Attorneys representing Death Row inmate Timothy Lee Hurst, including former U.S. Solicitor General Seth Waxman, contend that Florida’s unique sentencing system is unconstitutional.
Supporting that position in friend-of-the-court briefs are former Florida Supreme Court justices Harry Lee Anstead, Rosemary Barkett and Gerald Kogan, along with the American Bar Association and seven former Florida circuit judges.
Part of the argument centers on what are known as “aggravating” circumstances that must be found before defendants can be sentenced to death. Hurst’s attorneys argue, in part, that a 2002 U.S. Supreme Court ruling requires that determination of such aggravating circumstances be “entrusted” to juries, not to judges.
Also, they take issue with Florida not requiring unanimous jury recommendations in death-penalty cases. A judge sentenced Hurst to death after receiving a 7-5 jury recommendation.
But in an earlier brief, attorneys for the state argued that the U.S. Supreme Court and the Florida Supreme Court have repeatedly denied challenges to the sentencing process, including the Florida Supreme Court rejecting Hurst’s challenge. The state attorneys argued that a jury, in recommending the death penalty, has found facts that support at least one aggravating factor — which can be the basis for sentencing a defendant to death.
The U.S. Supreme Court this week scheduled oral arguments in the case for Oct. 13, according to an online docket. The court agreed in March to take up the case.
Hurst, now 36, was convicted in the 1998 murder of Cynthia Lee Harrison, who was an assistant manager at a Popeye’s Fried Chicken restaurant where Hurst worked. Harrison’s body was discovered bound in a freezer, and money was missing from a safe, according to a brief in the case.
In sentencing Hurst to death, a judge found two aggravating circumstances — that the murder was committed during a robbery and that it was “especially heinous, atrocious or cruel,” according to the brief filed by Hurst’s attorneys. That brief, along with others in the case, were posted on an American Bar Association website and on SCOTUSblog, which closely tracks U.S. Supreme Court proceedings.
Much of the October hearing could focus on how to apply the 2002 U.S. Supreme Court decision — a major case known as Ring v. Arizona — to the Florida law. Hurst’s attorneys contend that the 2002 decision held that “findings of fact necessary to authorize a death sentence may not be entrusted to the judge.” They said Florida’s system undermines the juries’ constitutional “functions as responsible fact-finder and voice of the community’s moral judgment.”
The brief filed on behalf of Anstead, Barkett and Kogan raised similar arguments and said there is “no assurance that Florida death sentences are premised on a particular aggravating circumstance found by the jury.”
To read more CLICK HERE

Saturday, August 1, 2015

GateHouse: Criminal justice reform: What works and what doesn't?

Matthew T. Mangino
          GateHouse Media
          July 31, 2015
There is, no doubt, a groundswell of support for criminal justice reform. President Barack Obama and Republican lawmakers have finally found some common ground.
Obama and his left-leaning progressive colleagues are attacking a broken criminal justice system for its unfair, often arbitrary treatment of minority and disadvantaged individuals. Grover Nordquist and his conservative allies have attacked the criminal justice system as an economic burden — a costly and obsolete model for punishment.
Whatever the reason that lawmakers are rushing toward reform, now is the time to pull back and consider where we are and how we got there.
With all the criticism of the criminal justice system, it is easy to forget that crime rates have fallen to unprecedented lows nationwide.
Republicans, long considered the party of law and order, are enthusiastically embracing reform in the criminal justice system — but at what cost?
Congressman Raul Labrador, R-Idaho, co-chair of the Congressional Criminal Justice and Public Safety Caucus told McClatchy Newspapers, “Everything in society, [has] a pendulum. There was a lawlessness that was happening in the streets. But because we’ve been able to bring back that law and order, then you can look at the cost to society…”
Does that mean it’s alright to drive up the number of crime victims to save a little money? I’m not sure a victim of crime would agree.
The Bureau of Justice Statistics, National Crime Victimization Survey, found that overall violent crime has plummeted. The victimization report is based on an annual scientific survey of Americans on whether they had been victimized in the previous year. The interviews included about 90,000 households and more than 160,000 persons in 2013.
Since 1993, the survey indicates the rate of violent crime has declined from 79.8 victimizations per 100,000 to 23.2 per 100,000.
Why have crime rates fallen so dramatically? Lawmakers should endeavor to find out before the president and Congress start overhauling the criminal justice system.
Criminologists continue to debate the reasons for the decline. Theories abound from a decline in the demand for crack cocaine, technological advancements, policing strategies, incarceration rates, even abortion and the decline of lead in the air.
There can be little doubt that the strong economy of the 1990s and 2000s played a significant role in declining crime rates. Unemployment was low, so young people were less likely to turn to the drug trade or other criminal activity for work.
Criminologists also seem to agree that mass incarceration accounted for about 10 to 20 percent of the overall crime drop since 1993. If only incapacitating criminals, incarceration has made neighborhoods safer.
Policing has had an impact on crime. Whether it was the much maligned “stop and frisk” in New York City or “hot spot” policing where police departments used real-time crime data to flood dangerous neighborhoods with officers, effective policing has contributed to the decline in crime. 
Psychologists David Finkelhor and Lisa Jones suggest that crimes committed both by and against young people declined because of the ways in which antidepressants and anti-ADHD medications, like Prozac and Ritalin, improved human behavior and moods. 
Economists Steven Levitt triggered a sensation with his theory that the legalization of abortion was responsible for as much as half of the crime decline. The idea was that a drop in unwanted children led to better parenting and fewer delinquent young people.
New York’s experience has been extraordinary. Homicide rates have dropped by about 82 percent in the last 25 years. “Perhaps the most optimistic lesson to take from New York’s experience is that high rates of homicides and muggings are not hardwired into a city’s population, cultures and institutions,” wrote Franklin Zimring, a law professor at the University of California, Berkeley, in a 2011 Scientific American article.
As lawmakers debate the shifting of resources and priorities within the criminal justice system, they would do well to examine the successes and failures of communities across the country. The ebbs and flows of the economy may be beyond government control—the safety and security of our communities may not.
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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