Sunday, January 31, 2016

Expert panel makes recommendations to reform federal prisons

A task force of experts commissioned by Congress called for a makeover of the federal prison system, from the sentencing of defendants to the treatment of inmates once they get out, wrote Ted Gest for The Crime Report.
The Charles Colson Task Force on Federal Corrections, completing a year-long study, contended its recommendations would  result in safely dropping the number of federal inmates by 60,000, and save $5 billion.
The federal Bureau of Prisons (BOP) now runs the nation's largest prison system, with 196,352 inmates, of whom about 161,000 were in federal facilities as of last week and the rest in other lockups. The prisons overall are occupied far above their official capacity, making them dangerous to inmates and corrections personnel alike. 
The federal prison population has grown eight-fold since 1980, reaching 220,000 in 2013 before it began to decline recently, partly because the U.S. Sentencing Commissioned has reduced the terms of many prisoners serving long sentences for drug crime. About 6,000 such inmates were released late last year.
With almost 40,000 employees, it costs $7.5 billion annually to run federal prisons, more than one-fourth of the U.S. Justice Department's budget, which has caused concern among members of Congress who watch government spending. Former Rep. Frank Wolf (R-VA), who chaired the subcommittee that helps set the DOJ budget, proposed the panel, which is named for the late aide to President Richard Nixon who became a prison reformer after his own stint as an inmate during the Watergate scandal.
The Colson panel made six main recommendations to deal with what it criticized as a "one size fits all" system:
The federal system should reserve prison beds for those convicted of the most serious federal crimes. This would mean revisiting mandatory minimum drug sentences, which the task force called the "primary driver of BOP overcrowding and unsustainable growth." The task force would also reduce mandatory minimums for gun crimes.
BOP should "promote a culture of safety and rehabilitation and ensure that programming is allocated in accordance with individual risk and needs."
Throughout inmates' terms, correctional policies should give prisoners incentives to take part in programs that would also likely reduce their risk of recidivism. The panel said inmates should be able to cut their sentences by up to 20 percent by participating in such activities.
Before and after releasing inmates, BOP should adopt practices based on scientific evidence.
The federal criminal justice system should enhance performance and accountability through better coordination across agencies and increased transparency.
Congress should reinvest money saved by reducing the prison population to support the expansion of improvement programs for inmates, supervision, and treatment. 
To read more CLICK HERE

Saturday, January 30, 2016

GateHouse: High court provides hope to juvenile lifers, again

Matthew T. Mangino
GateHouse Media
January 29, 2016

The U.S. Supreme Court made a significant decision this week that could give more than a thousand inmates serving life in prison without parole a chance at freedom.
During the 1990s, facing a real or perceived threat of increasing violent crime among teens, nearly every state amended its laws to make it easier for juveniles to be tried in adult court and face adult prison sentences.
More than half of states made transfer to adult court mandatory for violent crimes like murder, rape and assault with a weapon. In a number of states, adults convicted of murder faced a mandatory sentence of life without the possibility of parole.
Through the first decade of the 21st century, the number of juvenile offenders sentenced to life in prison continued to grow as violent crime dipped to its lowest level in decades. In response, the U.S Supreme Court decided Miller v. Alabama in 2012 ruling that juveniles cannot receive a mandatory sentence of life without parole.
This week, in Montgomery v. Louisiana, the high court expanded Miller saying that the decision must be applied retroactively to an estimated 1,200 to 1,500 inmates concentrated in three states — Pennsylvania, Louisiana and Michigan — where state courts had decided that Miller was not retroactive.
In 1963, 17-year-old Henry Montgomery of Louisiana shot and killed a deputy sheriff. Montgomery was sentenced to life in prison without the possibility of parole.
Justice Anthony M. Kennedy, writing for the 6-to-3 majority, held that Montgomery and other similarly situated offenders were entitled to resentencing or parole consideration.
The new decision appears to go beyond the actual scope of the Miller ruling according to the SCOTUS Blog. Montgomery provides that in the future a newly convicted juvenile will be able to show, at the time of sentencing, that he is not beyond rehabilitation. The Court declared that life without parole — not just mandatory life without parole — is always unconstitutional for a juvenile unless he is found to be “irreparably corrupt” or “permanently incorrigible.”
How have we gotten to this point?
The best example lies in Pennsylvania. The keystone state has more lifers convicted as juveniles than any other state — with, by some estimates, as many as 500 such inmates.
In 1994, Tom Ridge was elected Pennsylvania’s governor and his first act was to convene a special legislative session on crime. A significant policy that grew out of the special session was that juveniles who were accused of murder were automatically to be charged as adults.
In Pennsylvania, if an offender is convicted of first degree murder the sentence is mandatory life in prison without the possibility of parole. That, in part, is why Pennsylvania has so many juvenile lifers.
In 2014, the Pennsylvania Supreme Court ruled that Miller was not retroactive — leaving the more than 500 inmates without hope once again. Chief Justice Ronald D. Castille took the U.S. Supreme Court to task for failing to address the issue of retroactivity in Miller.
However, the Pennsylvania General Assembly acted quickly after Miller, enacting legislation permitting courts going forward to impose a minimum of 35 years to life for offenders ages 15 to 17, and 25 to life for offenders 14 or younger.
As a result, a juvenile convicted of first degree murder in Pennsylvania could still be sentenced to life in prison without the possibility of parole.
Justice Kennedy acknowledged that under the Miller decision a judge “might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”
The lesson here — as the high court has acknowledged by outlawing the death penalty for juveniles and abolishing life in prison for non-homicide offenses — is that juvenile brain development diminishes culpability and the young brain has a heightened capacity for change. As a result, a shadow is cast over the efficacy of mandatory life sentences for young offenders under any circumstances.

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 column CLICK HERE

Friday, January 29, 2016

Mississippi AG seeks to use firing squad for executions

Mississippi Attorney General Jim Hood announced that he plans to ask lawmakers to approve the firing squad, electrocution or nitrogen gas as alternate methods of execution if the state prohibits lethal injections, reported Jurist. 
States access to execution drugs has been hindered as a result of companies refusing the use of their products for execution purposes. Currently Mississippi has put all executions on hold due to its exhausted supply of drugs to perform lethal injections. TheAmerican Civil Liberties Union of Mississippi has strongly apposed the suggestion, arguing the proposed methods are barbaric. 
To read more CLICK HERE

Texas executes killer of game warden

The 4th Execution of 2016
James Garrett Freeman, 35, convicted in the 2007 shooting death of a Texas game warden in Wharton County was executed on January 27, 2016, according to the Texas Tribune.
Freeman shot and killed Justin Hurst, a game warden with the Texas Parks and Wildlife Department, following a 90-minute chase on country roads in the early morning of March 17, 2007, according to court documents. It was Hurst’s 34th birthday.
Freeman was injected with a lethal dose of pentobarbital and died at 6:30 p.m., according to the Texas Department of Criminal Justice. He declined to give a final statement.
It was the second execution in Texas this year and the fourth in the United States. Eight more executions are scheduled in the state through July. Texas executed 13 people last year.
Freeman was first approached by law enforcement after he shot and killed a possum from the side of the road, according to court documents. Another game warden patrolling the area heard the shot, and when he activated his emergency lights, Freeman sped away.
Law enforcement from multiple agencies took part in the high-speed chase before Freeman ran over a set of spikes that officers had set up near a cemetery. Dashboard camera video shows he exited the car shooting at officers with a handgun, returned to his car while officers shot back, then came back out firing an assault rifle.
Hurst came out from cover to fire at Freeman and was shot and killed. Freeman was also hit by several bullets, including one that penetrated his leg, Wharton County District Attorney Ross Kurtz said.
In Freeman’s last appeal, the U.S. Supreme Court refused to review his case on January 11. On Monday, the Texas Board of Pardons and Paroles voted not to recommend a commuted sentence, a common occurrence immediately before a scheduled execution.
To read more CLICK HERE

Thursday, January 28, 2016

Armed man in fear of mass shootings accidentally shoots woman in movie theater

Police say the man suspected of accidentally shooting a stranger at a Renton movie theater told them he carried a firearm because he feared mass shootings, reported the Seattle Times.
Dane Gallion, 29, told officers he took the gun to Regal Cinemas 14 at the Landing on Thursday night because he was “concerned about recent mass shootings in public places,” according to a police account in a probable-cause statement released Saturday.
That same anxiety prompted him to keep the gun unholstered in his waistband, the statement says.
The shooting victim, a woman who was wounded in the shoulder, was in stable condition Saturday, according to a nursing supervisor at Harborview Medical Center in Seattle.
According to the police account, Gallion gave inconsistent descriptions of how his firearm discharged while at “13 Hours: The Secret Soldiers of Benghazi.”
His father, Donald Gallion, had called the King County sheriff’s dispatch to say his son had returned home extremely upset, claiming the gun had fallen out of his pocket and gone off, police said.
Dane Gallion later told the arresting officer that another moviegoer reached for his crotch and that’s when he accidentally fired the gun, according to the probable-cause statement. Gallion said he fled the theater immediately because he didn’t want to be taken for a mass shooter.
Finally, at the Renton police station, he told another officer that a man had been bothering him, but declined to go into the details, according to the statement. Gallion alleged the gun accidentally went off and scared him, prompting him to leave; he denied having handled the gun. The officer wrote in the report that he didn’t notice any powder burns or injuries to Gallion.
Officers discovered a 9-mm magazine in a trash can at the theater, according to the probable-cause statement, and a single spent shell casing and an unfired bullet under a seat. The injured woman had been sitting in front of that spot.
Police said Gallion told them he had taken medicine for anxiety in the morning and that he’d had a pizza and a 22-ounce beer before the movie.

 To read more CLICK HERE

Wednesday, January 27, 2016

Pennsylvania and ACLU reach agreement on mentally ill prisoners

The state has reached an agreement with the American Civil Liberties Union of Pennsylvania in a case alleging that hundreds of people with mental illness were left in county jails across the commonwealth for far longer than is constitutional, reported May Wilson of Newsworks.
A federal judge still must approve the terms of the deal in a meeting Wednesday morning, according to the ACLU and a spokeswoman with the state Department of Human Services.
ACLU-Pennsylvania Legal Director Vic Walczak said the next question is how quickly the state can move defendants into mental health treatment.
"Keeping them in jail is really just cruel," said Walczak. "Many of them do not get better, and some of them get significantly worse, and some percentage of those get so much worse that they can't get back to the baseline once they get into a hospital."
The ACLU of Pennsylvania filed the suit in October, alleging the state was violating the constitutional rights of criminal defendants with mental illness.
When people with mental illness are criminally charged, they must receive treatment to see if they could aid in their own defense. Federal courts have ruled that defendants shouldn't be left waiting for hospitalization for more than a week. The ACLU of Pennsylvania alleged that in Pennsylvania some people were left in jail for more than a year.

A closed-door meeting with federal Judge Sylvia Rambo is set for Wednesday at 9 a.m. A press conference is scheduled for 10:30 a.m.

Impeachment process begins against AG Kathleen Kane

The Pennsylvania House of Representatives has begun to move toward impeachment proceedings against Attorney General Kathleen Kane. The House Judiciary Committee unanimously passed a resolution that would authorize the committee to investigate Kane's ­conduct in office, reported The Legal Intelligencer.
The House joins the state Senate in pursuing the possibility of Kane's removal. A special Senate committee is expected to issue a report Wednesday on its investigation into whether Kane can carry out the duties of her office with a suspended law license. Kane is also facing perjury and other criminal charges, as well as five civil suits alleging defamation, retaliation and other counts.
In a statement, Kane criticized Republican efforts to remove her from office, saying the legislators should instead focus on the network of government officials who have exchanged offensive emails that she has appointed a special prosecutor to review.
"Why isn't the Judiciary Committee looking into a judicial system that is clearly broken?" Kane said. "I would hope that political fury does not trump a fair and impartial justice system for the people of [Pennsylvania]."
State Rep. Ron Marsico, R-Dauphin, chair of the committee, said he is confident that HR 659, which would begin an investigation "to determine whether Kathleen Kane is liable to impeachment for misbehavior in office," will pass a vote before the full House. He said he expects that vote to take place sometime during the week of Feb. 8.
The resolution would appoint the subcommittee on courts to take testimony, review documents and interview witnesses in order to present to the Judiciary Committee its findings. The six-member subcommittee, which Marsico said is composed of four Republicans and two Democrats, all of whom are attorneys, would have subpoena power. He said he hopes to present a report on potential impeachment to the full House by June, he said.
The impeachment process is lengthy, and "it can get political very fast," said G. Terry Madonna, director of the Center for Politics and Public Affairs at Franklin & Marshall College. Impeachment is rare, but not nearly as rare as the Senate address procedure currently being pursued, which hasn't been employed since 1891, he said.
But while Kane has questioned the ­constitutionality of the Senate's efforts, ­impeachment "covers a lot more ground and is more definitive," diminishing the potential of legal challenges, Madonna said. The impact the House's move will have on the Senate's efforts at removal is unclear, he said, though it could allow the Senate an opportunity to postpone a vote if some of the Democrats in that chamber would prefer to pause the process.
While the Senate committee is strictly limited in its focus to the question of whether Kane can fulfill her job duties, "the impeachment process being proposed would not be subject to any such limitation on areas to be investigated," Marsico said in a statement. He said the timing of the resolution is coincidental, and discussions on the subject have been ongoing for four to six months.
"I was hoping it wouldn't have to come to this," Marsico said. "We were thinking maybe that the attorney general would perhaps resign so we wouldn't have to go through this process."
After criminal charges were filed against Kane in August, the Pennsylvania Supreme Court on Sept. 21 temporarily suspended her license.
The Senate committee held three hearings in November, at which it heard from district attorneys, law professors and Kane's four executive deputy attorneys general. In a 5-2 vote, the committee decided Nov. 25 to move forward with removal proceedings, allowing Kane the opportunity to testify. She elected to have her chief of staff, Jonathan Duecker, and former Gov. Ed Rendell testify on her behalf.
The committee's final report, due Wednesday, could lead to a vote by the full Senate. A two-thirds majority in favor of removal would send the matter to Gov. Tom Wolf for a final decision.
Kane is also awaiting a ruling from the Supreme Court on her King's Bench petition for reinstatement of her law license, which she filed Jan. 12. In her petition, Kane argued that suspended Justice J. Michael Eakin should not have participated in the court's order suspending her license because she uncovered and publicized the offensive emails that have since contributed to his suspension.

To read more CLICK HERE  

Tuesday, January 26, 2016

President Obama's Washington Post Op-Ed on Solitary Confinement

President Barack Obama
Washington Post, January 25, 2016

In 2010, a 16-year-old named Kalief Browder from the Bronx was accused of stealing a backpack. He was sent to Rikers Island to await trial, where he reportedly endured unspeakable violence at the hands of inmates and guards — and spent nearly two years in solitary confinement.

Read my recent column on Solitary Confinement CLICK HERE

In 2013, Kalief was released, having never stood trial. He completed a successful semester at Bronx Community College. But life was a constant struggle to recover from the trauma of being locked up alone for 23 hours a day. One Saturday, he committed suicide at home. He was just 22 years old.
Solitary confinement gained popularity in the United States in the early 1800s, and the rationale for its use has varied over time. Today, it’s increasingly overused on people such as Kalief, with heartbreaking results — which is why my administration is taking steps to address this problem.
There are as many as 100,000 people held in solitary confinement in U.S. prisons — including juveniles and people with mental illnesses. As many as 25,000 inmates are serving months, even years of their sentences alone in a tiny cell, with almost no human contact.
Research suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences. It has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior. Some studies indicate that it can worsen existing mental illnesses and even trigger new ones. Prisoners in solitary are more likely to commit suicide, especially juveniles and people with mental illnesses.
The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance. Those who do make it out often have trouble holding down jobs, reuniting with family and becoming productive members of society. Imagine having served your time and then being unable to hand change over to a customer or look your wife in the eye or hug your children.
As president, my most important job is to keep the American people safe. And since I took office, overall crime rates have decreased by more than 15 percent. In our criminal justice system, the punishment should fit the crime — and those who have served their time should leave prison ready to become productive members of society. How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.
That’s why last summer, I directed Attorney General Loretta E. Lynch and the Justice Department to review the overuse of solitary confinement across U.S. prisons. They found that there are circumstances when solitary is a necessary tool, such as when certain prisoners must be isolated for their own protection or in order to protect staff and other inmates. In those cases, the practice should be limited, applied with constraints and used only as a measure of last resort. They have identified common-sense principles that should guide the use of solitary confinement in our criminal justice system.
The Justice Department has completed its review, and I am adopting its recommendations to reform the federal prison system. These include banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells. These steps will affect some 10,000 federal prisoners held in solitary confinement — and hopefully serve as a model for state and local corrections systems. And I will direct all relevant federal agencies to review these principles and report back to me with a plan to address their use of solitary confinement.
States that have led the way are already seeing positive results. Colorado cut the number of people in solitary confinement, and assaults against staff are the lowest they’ve been since 2006. New Mexico implemented reforms and has seen a drop in solitary confinement, with more prisoners engaging in promising rehabilitation programs. And since 2012, federal prisons have cut the use of solitary confinement by 25 percent and significantly reduced assaults on staff.
Reforming solitary confinement is just one part of a broader bipartisan push for criminal justice reform. Every year, we spend $80 billion to keep 2.2 million people incarcerated. Many criminals belong behind bars. But too many others, especially nonviolent drug offenders, are serving unnecessarily long sentences. That’s why members of Congress in both parties are pushing for change, from reforming sentencing laws to expanding reentry programs to give those who have paid their debt to society the tools they need to become productive members of their communities. And I hope they will send me legislation as soon as possible that makes our criminal justice system smarter, fairer, less expensive and more effective.
In America, we believe in redemption. We believe, in the words of Pope Francis, that “every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.” We believe that when people make mistakes, they deserve the opportunity to remake their lives. And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.

Visit the Washington Post CLICK HERE

Monday, January 25, 2016

SCOTUS: Miller v. Alabama Retroactive!

The U.S. Supreme Court has ruled that its 2012 decision barring mandatory life in prison without parole for juveniles has retroactive effect, reported the ABA Journal.
The court ruled 6-3 in the case of 69-year-old Henry Montgomery, who was 17 when he killed a deputy sheriff. He has spent most of his life in prison under a sentence of life without parole, imposed automatically when jurors declined to sentence Montgomery to death.
Justice Anthony M. Kennedy wrote the majority opinion (PDF) for Montgomery v. Louisiana, joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The Supreme Court said its 2012 decision Miller v. Alabama is retroactive, and it binds state courts in collateral-review proceedings. Miller found life sentences without parole for juveniles convicted of murder constitute cruel and unusual punishment when a youth’s individual characteristics are not allowed to be taken into account.
Kennedy said Miller announced a substantive rule of constitutional law, rather than a procedural rule, which makes the holding retroactive. “Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution,” Kennedy wrote.
State are not required to relitigate sentences in each case where juveniles received a mandatory sentence of life without parole, however. “A state may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them,” Kennedy wrote.
“The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change,” Kennedy wrote.
The opinion said state collateral review courts, as well as federal habeas courts, must give retroactive effect to Supreme Court decisions that announce new substantive rules of constitutional law. “There is no grandfather clause that permits states to enforce punishments the Constitution forbids,” Kennedy wrote. “To conclude otherwise would undercut the Consti­tution’s substantive guarantees.”
The ABA had filed an amicus brief urging the court to make Miller retroactive.
Justice Antonin Scalia dissented, joined by Justices Clarence Thomas and Samuel A. Alito Jr. Scalia accuses the majority of relying on irrelevant “dicta cherry picked” from cases, of using “sleight of hand,” and of “acting in Godfather fashion.”
Scalia argued that retroactivity does not apply to postconviction remedies in state courts. “This conscription into federal service of state postconviction courts is nothing short of astonishing,” Scalia wrote.
Scalia also disagreed with the majority’s conclusion that Miller announced a substantive rule. The majority had “rewritten” and expanded Miller beyond its original holding, Scalia argued.
Thomas also wrote a separate dissent.

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Williams: Criminal justice reform gaining traction

For the first time in years, the popular culture that usually writes off all Washington politics as a useless, politically polarized fraud is seriously looking to national politicians to do something about the failures of the criminal justice system, writes Juan Williams of Fox News. 
A rare optimism is in the air, convinced that the president and Congress can do something to end the harsh drug sentencing policies that have led to overcrowded jails yet have failed to stop the current epidemic of heroin overdose deaths.
At the Iowa Brown and Black Forum, I watched as Clinton and her fellow Democratic presidential candidates Bernie Sanders and Martin O’Malley heard loud voices from the Black Lives Matter movement calling for urgent reform.
Twenty years ago, the safe bet for politicians was to play on fear of crime by promising to lock up every criminal, violent and non-violent, drug users and even those with mental illness for as long as possible by forcing judges to use mandatory sentencing guidelines. President Bill Clinton and a Republican Congress passed a 1994 crime bill that increased jail sentences and led to a 60 percent rise in the U.S. prison population by the end of Clinton’s term in 2001.
Now under the pull of popular culture those tides have shifted. With crime rates down, concern about flaws in the justice system is on the political upswing.
The evidence can be seen in books, television shows, on the presidential primary campaign trail and in Congress.
In his State of the Union speech, Obama listed sentencing reforms as one of a handful of “bipartisan priorities” that can be achieved even in an election year. “We just might surprise the cynics, again,” the president said, directing his remarks to the Republican Speaker, Paul Ryan (Wis.).
A former prison inmate, Sue Ellen Allen, was in the House gallery for the speech, selected by the president as one of his guests because of her work to help female former inmates as they struggle to find a new life. And last summer, Obama became the first president to visit a federal prison.
In the last year, the president has found public support in polls as he presses for reforms to get more non-violent offenders out of jail and to reverse mandatory sentencing policies. Former Speaker John Boehner (R-Ohio) was also a supporter of changing the rules on mandatory sentencing to cut jail time and help people released from prison find success on the outside.
But there had been questions about whether Ryan, upon assuming the Speakership, would push his colleagues in the new House leadership to work with the Senate to pass criminal justice reform.
In the last month, Ryan has made it clear he is on board.
He recently said in an interview that the “silly season” of campaign politics is on its way but added: “I think criminal justice reform is probably the biggest [issue] we can make a difference on – there is a real way forward on that.”
Ryan predicted that his often-fractured caucus would agree on a package of criminal justice reforms by June. He said he has spoken with members with little in common – Rep. Bobby Scott (D- Va.) and Rep. Raul Labrador (R-Idaho) — and found them willing to make a deal.
Earlier this month, House Judiciary Committee Chairman Rep. Robert Goodlatte (R-Va.) took the first step toward comprehensive reform by passing two bills. The first will ensure that criminals with mental illness get treatment. The second is to help convicts leaving jail so they do not follow the well-worn path of recidivism.
The same pro-reform energy is evident on the GOP campaign trail.
Republican Sens. Ted Cruz (Texas), Marco Rubio (Fla.) and Rand Paul (Ky.) and New Jersey Gov. Chris Christie have all come out in favor of major criminal justice reform in the last year. On the Democratic side of the campaign, Clinton, O’Malley and Sanders talk passionately in their daily stump speeches about the need for reform.
In most cases the candidates focus on the need for a new approach to dealing with drugs that does not center on sending people to jail. Of the 1.57 million Americans in federal and state prisons, half are there for drug related offenses, according to the Department of Justice.

To read more CLICK HERE

Sunday, January 24, 2016

Newest gun control initiative--stock divestiture

After years of trying and failing to push new laws through Congress, gun control advocates are targeting American firearms makers from a different angle, according to NPR..
"The only thing they really understand is money," says Leah Gunn Barrett, executive director of the nonprofit New Yorkers Against Gun Violence. She's also part of a coalition called the Campaign to Unload, which encourages investors large and small to divest from owning stock in companies that make guns and ammunition.
"You may not even know that your 401(k) has gun stocks in it," Barrett says. "So asking the question is very, very important. Not only for individuals, but for public pension's really raising the issue and making gun stocks toxic."
Gun control advocates have been pushing for years to get investors to divest from companies that make firearms and ammunition. Now officials in New York City want to widen that push to include retailers. But not everyone thinks their divestment campaign will succeed.
"If it's made to be punitive, it's not going to work," says Andrea James, a firearms industry analyst with Dougherty & Company. She says gun stocks have performed well because gun sales have been brisk.
"When the divestment happens," James says, "I don't think it really affects the underlying business, meaning the number of firearms they sell."
The divestment camp has claimed some victories after mass shootings in Connecticut and California. Big institutional investors like the California State Teachers' Retirement System (CalSTRS) and pension funds in New York and Philadelphia have dropped their holdings in gun companies.
But the stock price of those gun companies has not gone down. In fact, since the Sandy Hook shootings in 2012, the stock prices of Sturm, Ruger & Co. and Smith & Wesson have mostly gone up, even as big institutional investors have moved to sell.
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Saturday, January 23, 2016

GateHoue: Antipathy grows for solitary confinement

Matthew T. Mangino
GateHouse Media
January 22, 2016

“Sending hardened criminals from death row to solitary confinement is no triumph,” wrote Ninth Circuit Court of Appeals Judge Alex Kozinski in a recent editorial for the Yale Law Review Journal. “It merely swaps one type of death for another.”
“Taking prisoners off death row and putting them in supermax prisons may soothe our collective conscience ... But we may be condemning those inmates to decades-long torture that may make a swift execution look like an act of grace,” added Kozinski.
What Judge Kozinski overlooks is that not every life sentence is served in solitary confinement. But solitary confinement is painful, degrading and a safety issue inside and out of the prison.
For many policy makers and activists, curbing the use of solitary confinement is a moral imperative, wrote Maurice Chammah for The Marshall Project.
Depriving prisoners of human contact exacerbates and even produces mental illness, increases the risk of suicide, and generally engenders a sense of hopelessness. There is a ground swell of support for criminal justice reform and solitary confinement is front and center.
Chammah asks if motivation for change comes from political pressure, court orders, the high cost of solitary cells, or genuine human concern — regardless of the motivation, prison administrators are on board.
Even the U.S. Supreme Court took note of the agony of solitary confinement. Justice Anthony Kennedy described the “human toll wrought by extended terms of isolation,” the “terrible price” exacted by “years on end of near-total isolation,” including anxiety, self-mutilation, and suicide.
Kennedy brought up the issue of isolation during an argument that had nothing to do with solitary confinement, indicating his growing concern and sense of urgency about an issue that has far reaching implications for the criminal justice system.
According to Slate, Kennedy lauded “penalogical [sic] and psychology experts, including scholars in the legal academy,” for offering “essential information and analysis” about the horrors of solitary confinement.
Last fall, the Prisoner Reentry Institute at John Jay College in New York conducted a colloquium on solitary confinement that included the leaders of 15 corrections agencies across the country, as well as leading academic experts and advocates.
The group issued a 90-page report proposing widespread reform of solitary confinement.
“The purpose was to determine if consensus might be achievable about ways to achieve (these) long sought-after reforms by common agreement and without resort to litigation,” former California and Pennsylvania Corrections chief Martin Horn told The Crime Report.
The colloquium recommendations included: Mandating solitary confinement within prison only on the grounds of behavioral issues; exclude persons with mental illness and other vulnerable populations; limit periods of social isolation to “the least amount of time necessary and in the least restrictive conditions.”
Congress has now taken up the torch. The Solitary Confinement Study and Reform Act of 2015 proposes establishing a commission to recommend reforms to Congress and the Obama administration, reported The Times Picayune.
The bill requires the Department of Justice to issue regulations on best practices for federal prisons, and provide incentives for changes in operations of state and local prisons.
The bill also calls for major changes in the use of solitary confinement in the punishment of the mentally ill and juvenile offenders.
“We have abused the practice of solitary confinement to the point where it has become modern day torture,” Congressman Cedric Richmond, one of the bill’s lead sponsors, told The (New Orleans, Louisiana) Times-Picayune. “Too many prisoners, including the seriously mentally ill and juveniles are locked away for 23 hours a day, often with little to no due process and at a steep cost to the taxpayer.”

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.

Visit the column CLICK HERE

Alabama executes man for 1992 murder

The 3rd Execution of 2016
Alabama death row inmate Christopher Eugene Brooks was executed Thursday night for the 1992 slaying of a Homewood woman after the U.S. Supreme Court denied his request for a stay of execution, according to the Birmingham News .
Brooks was pronounced dead at 6:38 p.m. in the execution chamber at the Holman Correctional Facility in Atmore. He was the 57th death row inmate executed in Alabama since executions resumed in 1983 after an unofficial more than decade-long nationwide moratorium ended. He was the first person executed in Alabama since 2013.
Brooks final words included: "I hope this brings closure to everybody." To the two friends, a spiritual advisor, and his lawyers who witnessed the execution he said they were a "Godsend" and that "I will take you with me in my heart"... "I'll see you soon. Bye. I love y'all."
Brooks, however, did not admit guilt in his statement.
After he was brought into the execution chamber, the curtain opened to witnesses at 6:06 p.m. and closed at 6:30 p.m. The exact time of death was 6:38 p.m.
A prison chaplain held Brooks' hand and appeared to pray with him as the first drug, a sedative, was administered. Brooks' eyes closed, his mouth gaped open and his breathing slowed. By 6:19 p.m. there was no detectable breathing. A prison captain pinched his upper left arm and pulled open his eyelid to check for consciousness before the final two drugs were administered.
After the execution Alabama Prison Commissioner Jeff Dunn said the execution with the controversial sedative drug midazolam "went exactly as planned."
Brooks did not appear to struggle during the administration of the drugs. His attorneys and other inmates had claimed the first drug in the cocktail does not put the condemned inmate in deep enough sleep to prevent pain when the other two drugs are administered.
Dunn said that there are no other executions currently planned, but the prison system does have the drugs available to conduct more. He said the same drug combination has been used in other states.
Dunn also read letters from victim Jo Deann Campbell's two sisters and mother, all of whom witnessed the execution.
Mona Campbell, her mother, said the execution does not give her closure and will not bring back her youngest daughter. She said she hoped Brooks had "made peace with God." Jo Deann's sister, Fran Romano and Corinne Campbell also issued statements.
"Just as God forgives me for my sins I pray for mercy for this man's soul," Corinne wrote.
During the execution Brooks' spiritual adviser held a Bible and read quietly from it.
Brooks kept his focus primarily on the witness box where his friends, three attorneys, and the five media representatives sat. He glanced once to the victims' family witness box when he hoped everyone would get closure.
Minutes before he was to die, word spread that the U.S. Supreme Court had denied Brook's request to stay the execution. Justice Stephen Breyer dissented from the ruling.
Dunn said prison officials were notified of the justices' decision at 5:55 p.m., five minutes before the execution was scheduled to begin.
"Christopher Eugene Brooks was sentenced to death in accordance with Alabama's procedures, which allow a jury to render an "advisory verdict" that "is not binding on the court," the dissent states.
"Moreover, we have recognized that Alabama's sentencing scheme is "much like" and "based on Florida's sentencing scheme," Breyer wrote.
The request for the stay was made to Justice Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred with Thomas' decision to deny the stay.
Brooks, 43, was convicted in the December 1992 rape and murder of 23-year-old Jo Deann Campbell. Investigators linked Brooks to the crime through DNA, fingerprints, and Campbell's car and other items taken from her Homewood apartment, including a credit card he had used. Her partially clothed body had been found under her bed and she had been beaten with a barbell.
No one protested the execution in an area set aside for vigils, according to reporter Casey Toner. Other protests were held around the state, including a small gathering of death penalty opponents in a Birmingham park.
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Friday, January 22, 2016

Texas executes killer, state's first execution of the year

The 2nd Execution of 2016
Richard Allen Masterson, a two-time convicted burglar condemned for the 2001 murder of a professional Houston female impersonator, was executed in Texas on January 20, 2016. He was the first Texas killer to be put to death this year.
The lethal dose of pentobarbital was administered after the U.S. Supreme Court rejected multiple petitions seeking reviews of issues involved in his case. Masterson was pronounced dead at 6:53 p.m.
Masterson, 42, was sentenced to die for the strangulation-robbery of 35-year-old Darrin Honeycutt. Honeycutt's nude body was found in his Montrose apartment days after his murder. Masterson contended that Honeycutt, whom he had met at a Montrose nightclub, died accidentally as the pair engaged in sex.
Lawyers for Masterson asked the high court to review such issues as the impact of a trial court judge's failure to advise jurors they could convict Masterson of the lesser charge of felony murder ‑ an offense that could have resulted in an extended prison sentence, but not death.
They also asked the court to review a lower-court's rejection of the claim that a Harris County medical examiner misinterpreted results of Honeycutt's autopsy, testifying that the man had died of strangulation and giving short shrift to the possibility that he died of natural causes.
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Thursday, January 21, 2016

SCOTUS: End of the death penalty near--not so fast

The U.S. Supreme Court restored death sentences this week for three Kansas murderers by an 8-1 vote, undercutting predictions by some that a majority of the justices is ready to strike down capital punishment nationwide, reported the Los Angeles Times.
The Court ruled in Kansas v. Carr that a jury in a death penalty case does not need to be advised that mitigating factors which can lessen the severity of a criminal act, do not need to proven beyond a reasonable doubt like aggravating factors. The defendants argued that without this instruction the jury would have understood that the mitigating factors had to be proven beyond a reasonable doubt.
Speaking in court, Justice Antonin Scalia described the "notorious Wichita Massacre" in which two brothers broke into a home, tortured five young men and women and then took them to a snowy field where they were "shot in the back of the head, execution-style."
Amazingly, one young woman survived when a hair clip deflected a bullet, and she later testified against Reginald and Jonathan Carr. A jury convicted the pair of the four murders and sentenced them to death.
The Kansas Supreme Court reversed both death sentences as well as another for Sidney Gleason, a paroled inmate who participated in the robbing and killing of an elderly man over $35 and a box of cigarettes. Gleason then murdered two others who knew about that killing.
The state justices said the jurors may have been confused about whether they had to agree on a single reason for extending mercy to the killers. 
All the members of the court joined Scalia's opinion in full, except Justice Sonia Sotomayor, who issued a partial dissent. She did not endorse the state court's decision, but instead said the justices should have passed up the chance to review it."The standard adage teaches that hard cases make bad law," she said. "I fear that these cases suggest a corollary: Shocking cases make too much law. Because I believe the court should not have granted certiorari here, I respectfully dissent."
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Wednesday, January 20, 2016

FBI: Violent Crime up in every category

Statistics released by the FBI’s Preliminary Semiannual Uniform Crime Report revealed an overall increase in the number of violent crimes reported for the first six months of 2015 when compared with figures for the first six months of 2014. 
The report is based on information from 12,879 law enforcement agencies that submitted three to six months of comparable data to the FBI’s Uniform Crime Reporting (UCR) Program for the first six months of 2014 and 2015.
All of the offenses in the violent crime category—murder and non-negligent manslaughter, rape (revised definition), rape (legacy definition), aggravated assault, and robbery—showed increases when data from the first six months of 2015 were compared with data from the first six months of 2014. 
The number of rapes (legacy definition) increased 9.6 percent, the number of murders increased 6.2 percent, aggravated assaults increased 2.3 percent, the number of rapes (revised definition) rose 1.1 percent, and robbery offenses were up 0.3 percent.
Violent crime increased in all but two city groupings. In cities with populations from 50,000 to 99,999 inhabitants, violent crime was down 0.3 percent, and in cities with 500,000 to 999,999 in population, violent crime decreased 0.1 percent. The largest increase in violent crime, 5.3 percent, was noted in cities with 250,000 to 499,999 in population.
Violent crime decreased 3.3 percent in non-metropolitan counties but rose slightly, 0.1 percent, in metropolitan counties.
Violent crime increased in all but one of the nation’s four regions. These crimes were down 3.2 percent in the Northeast but increased 5.6 percent in the West, followed by rises of 1.6 percent in the South and 1.4 percent in the Midwest.

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Tuesday, January 19, 2016

PA death penalty case scheduled for argument before U.S. Supreme Court

On February 29, 2016, the full U.S. Supreme Court will hear arguments in Williams v. Pennsylvania, reported the National Constitution Center.
In October 2015, Terrance Williams saw the Supreme Court accepted an appeal on Eighth and 14th Amendment ground in an appeals process that goes back to 2012. At the time, Williams’ defense wanted then-Pennsylvania Supreme Court chief justice Ron Castille recused from his appeals case, since Castille had been the Philadelphia district attorney when Williams was convicted in 1986 of murder.
In 2012, Castille voted with four other Pennsylvania supreme court justices, in a unanimous decision, to overturn a lower court state ruling that found Williams should have a new penalty phase in his murder trial and that his execution order should be stayed. Before that ruling, Castille declined to recuse himself from deliberations.
The U.S. Supreme Court will decide in the Williams case if a judge or a member of a public tribunal should be disqualified – even if that person’s vote in a decision didn’t affect the final outcome- based on a perceived conflict of interest.
Williams’ attorneys are seeking answers from the United States Supreme Court related to two prior decisions. First, in a 2009 decision called Caperton v. A.T. Massey Coal Co., the Supreme Court said the West Virginia Supreme Court violated the concept of constitutional due process when a judge who cast a deciding vote had taken $3 million in political contributions from a party in the case.
The attorneys also cited a case from 1986, Aetna Life Insurance v. Lavoie, where an Alabama judge had voted in a health insurance case after he had filed several personal legal actions in insurance cases.
The Williams team is claiming that Castille’s decision to ask for the death penalty for Williams, while he was Philadelphia district attorney, along with Castille’s judicial role in considering allegations of misconduct of his prior district attorney’s office, are key factors in the appeal.

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Monday, January 18, 2016

Ex-DA to testify for defense at Cosby hearing

An ex-prosecutor is expected to testify that he promised Bill Cosby would never be charged over a 2005 sex-assault complaint, but a judge must decide if that constitutes an immunity deal, reported The Morning Call.
Read my column in The Legal Intelligencer on the decision to prosecute Cosby.
Then-prosecutor Bruce Castor will be a key witness for the defense at a Feb. 2 hearing over what Cosby's lawyers have called a "non-prosecution agreement."
The defense argues that prosecutors who charged Cosby last month unfairly used his deposition testimony from the accuser's civil lawsuit against him. Castor supports their position.
But Montgomery County District Attorney Kevin Steele, the prosecutor handling Cosby's case, said there is no evidence of a signed immunity agreement. Cosby's lawyers did not attach one to their recent motion to dismiss the case.
On Saturday, Andrea Constand's lawyer said she never knew of such an agreement.
"He (Castor) said ... that he talked to us about it. That's a lie," lawyer Dolores Troiani said. "It never happened."
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More than half the murders in Pittsburgh unsolved since 2010

From 2010 through 2015, the Pittsburgh Bureau of Police investigated 311 homicides. Only 163 of those have been cleared with an arrest or other explanation for the death, according to available police and court records. Sixteen cases, however, did not end in a conviction. That means more than half of the murders have gone unsolved, reported PublicSource.
Pittsburgh’s police have been through years of turmoil, including a leadership crisis, citizen allegations of rudeness and brutality, and reported lack of cooperation with an anti-violence intervention program. Now the bureau has a new chief, public safety director, and help from the U.S. Justice Department to repair frayed community relationships and improve homicide investigations. Pittsburgh police officials say they’re making progress.
Nationally, police make arrests in about 64 percent of murders, according to FBI statistics that allow arrests in old cases to be counted as clearances in a new year. Those rates have dropped from 90 percent in the 1960s. Violent crime has also declined.
The reasons cases aren’t solved are easily stated. Lack of community trust in police, active disdain, fear of being targeted for testifying, and the inability of the justice system to overcome those known challenges.
There have been attempts to change things. In 2010, the Pittsburgh Initiative to Reduce Crime, created explicitly to reduce gun violence, was launched in Pittsburgh.
But criminologist David Kennedy, who created the program PIRC is based on, told the Pittsburgh Post-Gazette last year that the program here was “actively rejected” by police.
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Sunday, January 17, 2016

Obama's mention of crime reform in State of the Union historic

Those who watched President Obama’s State of the Union might have missed a moment of historical importance in the first minute of his speech, reported The Guardian.
The president called on Congress to “work together this year on bipartisan priorities like criminal justice reform” – a reference to the Sentencing Reform and Corrections Act, which would reduce mandatory minimum sentences for some nonviolent and drug crimes, providing relief to hundreds of thousands of unnecessarily incarcerated people.
It was so noncontroversial, it merited barely 11 words, after which the president moved on.
But for decades in American political life, the parties and their leaders competed on who could be more punitive and draconian on criminal sentencing; for a president to stand before the American people and call on Congress to pass legislation to reduce imprisonment is unprecedented.
To determine just how unusual Obama’s call to action was, we need only to look at some of his predecessors.
In 1970, Richard Nixon proclaimed that the word “war” was more appropriate for crime than for poverty, disease, or hunger, helping coin the phrase war on crime. He noted that most Members of Congress “would not dare walk home at night.”
In 1989, George H. W. Bush advocated for $1bn “to escalate the war against drugs. A war that must be waged on all fronts.” He asked Congress to fund “beefed up prosecution” and “enforcement of tougher sentences.”
And in 1994, Bill Clinton called for both parties to come together to pass the 1994 Crime Bill, which gave $9bn to states to increase prison populations and instituted federal “three-strikes-you’re-out” laws.
These tough-on-crime calls weren’t mere bloodlust or pandering: crime was disproportionately high at the time and ravaging urban neighborhoods.
But those responses to crime overshot the mark and made the United States the largest incarcerator in the world. With just 5% of the world’s population, we have 25% of its prisoners. 
It would have been even more powerful on Tuesday if President Obama had spent more time talking about the need to reduce the number of people incarcerated – or even just mentioned that crime today is at historic all-time lows.
The dawning awareness that crime has dropped dramatically is one of the most significant, if under-discussed, factors in the current movement to reduce mass incarceration – and it makes it more likely that Congress will act. Since 2008, crime and incarceration have both decreased, for the first time in 40 years. Crime in the United States hasn’t been this low since 1969 – when bell-bottoms were in, the Mets won the World Series and even the biggest techies were tethered to walls when they talked on their phones.
Violent crime dropped 20% during Obama’s tenure from 2009 to 2014. The average person in a large urban area is safer walking the streets today than they would have been at almost any time in the past 30 years. And while it is true that some cities have recently seen increases in their murder rates this year, the statistics show that these increases are localized and not a harbinger of a nationwide crime surge. In fact, crime overall dropped 6% in 2015.
Studies have conclusively shown that mass incarceration played a limited role in the crime drop: more police officers, smarter policing and economic factors did. In response, states as disparate as Texas, Georgia and New York have passed legislation to reduce crime and incarceration simultaneously. Last fall, a prominent national group of 160 law enforcement leaders – police chiefs, sheriffs, and district attorneys – from all 50 states affirmed that they too believe that we can reduce crime and reduce imprisonment.
The political consensus that criminal justice reform is needed may be starting to strain at the seams, but so far it’s holding: both parties have come to agree that it is time to end mass incarceration.
For a time, it looked as if a generational split might bifurcate Congress; young Senators Rand Paul of Kentucky and Cory Booker of New Jersey were pushing for reform, but their party bigwigs remained skeptical. But more recently, Senate Judiciary Chairman Chuck Grassley of Iowa and House SpeakerPaul Ryan of Wisconsin have spoken out to support reform.
The Sentencing Reform and Corrections Act is also supported by the conservative Koch brothers, the NAACP and law enforcement organizations; you could hardly find a more diverse coalition. (Thebill may be one of the few things Congress gets done in 2016. )
But a new sentencing bill can’t be the last word in the reform moment; it should merely begin to show that it is indeed possible for politicians to come together to achieve reform. There is more to be done: for instance, the current bill focuses on reducing the federal prison population, but 85% of inmates are housed in state-controlled prisons.
The federal government could make a large impact on state policy, by taking the$3.8 billion in federal grants that currently and all-but-automatically subsidize mass incarceration in the states – much of that because of the 1994 Crime Bill and similar efforts – and using those funds to encourage states to reduce imprisonment while keeping down crime.

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Saturday, January 16, 2016

GateHouse:The CDC could learn a bit from the NRA

Matthew T. Mangino
GateHouse Media
January 15, 2016
The National Rifle Association has beaten the Centers for Disease Control and Prevention at its own game. Fifty years ago, 42.4 percent of U.S. adults smoked. That figure has declined to a record low 17.8 percent in 2014 and the number of smokers continues to decline. The CDC played an important role in the stunning unraveling of the powerful tobacco industry.
The NRA has done the reverse for gun ownership. According to a 2015 Gallup Poll, 43 percent of Americans have a gun in their home or on their property. It is estimated that there are 310 million guns in the U.S.--enough for every man, woman and child in the country.
For years the tobacco industry spent millions of dollars funding pseudo-scientific research that downplayed the harmful health consequences of cigarettes, as Naomi Oreskes and Erik M. Conway wrote in their book Merchants of Doubt. The “research” was meant to silence the many legitimate studies to the contrary, according to Jesse Rifkin of the Huffington Post.
“Millions of pages released during the 1990s tobacco litigation demonstrate these links,” Oreskes and Conway wrote, “They show the crucial role that scientists played in sowing doubt about the links between smoking and health risks.”
The NRA nipped the science problem in the bud. They lobbied to throttle gun research. The NRA-backed ban on research came after a 1993 study funded by the CDC’s National Center for Injury Prevention showed homes with firearms were at an increased risk for homicide in the home. After the study came out, the NRA pushed Congress to defund gun research.
“Gun violence is probably the only thing in this country that kills so many people, injures so many people, that we are not actually doing sufficient research on,” Dr. Alice Chen, the executive director of Doctors for America, told The Huffington Post.
After the tragedy in Newtown, CT in which 26 students and teachers were gunned down, the president of the NRA, Wayne LaPierre, went on the offensive. He declared, “The only thing that stops a bad guy with a gun is a good guy with a gun.”
Is there any truth to LaPierre assertion?
In 2012, there were 1.2 million violent crimes, defined as murder, forcible rape, robbery and aggravated assault. As Scott Martelle put it in the Los Angeles Times, there were 1.2 million chances at armed self-defense.
There were a total of 259 justifiable homicides in 2012 or about one in every 5,000 violent crimes. Martelle writes, “The notion that a good guy with a gun will stop a bad guy with a gun is a romanticized vision of the nature of violent crime.”
Not only are gun sales up, but gun-favorable legislation is also on the rise. In 2015, the Georgia legislators passed what has become known as the “guns everywhere” law--a measure that makes it possible to carry guns inside bars, restaurants and churches. Proposed legislation in Florida would make it easier to carry firearms on college campuses.
The NRA has effectively molded the gun ownership issue into a constitutional one. The NRA and gun rights activists have made gun ownership an inalienable right, and any effort to restrict access an act of tyranny.
In 1994, the fight against smoking ushered in the Pro-Children Act. The law banned smoking in public schools across the country. Today, the NRA is advocating arming teachers in school. The NRA’s savvy political positioning “has made any chance of meaningful gun reform in the foreseeable future [is] basically nil,” wrote Ben Hallman on The Huffington Post.
If gun violence is a national health problem then the CDC and policy makers across the country have a lot of catching up to do. The NRA has crafted a message that resonates with millions and millions of Americans.

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

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Friday, January 15, 2016

PA death penalty case may be considered by SCOTUS

Last June, Supreme Court Justice Stephen Breyer suggested that the death penalty might be close to its ultimate demise, reported The Marshall Project. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote in a dissent to Glossip v. Gross, to which Justice Ruth Bader Ginsburg added her name, “I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.”
Attorneys for death-row inmates, generally a tight-knit group, immediately started talking about what to do next. While some urged caution — arguing that if the court upholds capital punishment it could set their cause back indefinitely — others sensed a rare opportunity. The most outspoken advocates for a more aggressive strategy have been the 8th Amendment Project, a group of lawyers who oppose the death penalty and are tracking cases that might allow the court to strike it down for good.
Today, the high court will discuss whether to hear a challenge to the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one of several posed as direct responses to Breyer’s invitation to attack the death penalty head-on.
There is no way to know whether the justices will take any of these cases; for the court to take a case, four justices must agree, and aside from Breyer and Ginsburg, no other justices have indicated their views on whether to take such a challenge. If they do take a case, there is also no way of knowing which one they will position as the next potential landmark, the next Brown or Miranda or Roe. But each of those historic cases was preceded by numerous appeals of the sort that are now reaching the court. Death penalty abolitionists are braiding the details of these cases to the legal arguments they believe have the best shot at swaying the court.
Shonda Walter, whose case will be discussed in a conference of the judges on Friday, was convicted in 2005 of killing 83-year-old James Sementelli with a hatchet in the small, central Pennsylvania town of Lock Haven. She was 24 years old. Walter’s current defense team argues that her trial was unfair in part because her trial lawyer openly conceded her guilt to the jury (she tried to have a new lawyer appointed, but the judge refused). In an appeal, the trial lawyer made arguments that one judge described as “unintelligible.” Her new lawyers argue that Walter “emerged from an arbitrary process which fails to limit the death penalty to the worst offenders.”

            Several independent groups have weighed in on Walter’s case with briefs that aim to tie it to broad arguments over the death penalty’s fairness as it is practiced around the country. In one, a group of social scientists declare that an “extensive body of academic literature” shows prosecutors pursue the death penalty disproportionately against blacks (Walter is black) and discriminate to keep blacks off capital juries. A brief by the group, Witness to Innocence, argues that innocent people are often sent to death row (and Walter’s own petition notes that the kind of bad lawyering that got her to death row is present in many of these wrongful convictions). A third brief, by several groups of French, British, and Irish lawyers, urges the court to follow the lead of other Western countries that have abolished the death penalty (they note that prior U.S. Supreme Court decisions limiting the death penalty’s use have cited foreign law).
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Wednesday, January 13, 2016

'Porngate' fallout: The appeals start rolling in

Since late last year, lawyers across the state have quietly seized upon the pornographic, sexist, and racially offensive emails exchanged by a small circle of judges, prosecutors, and law enforcement officials to ask courts to reevaluate decisions ranging from criminal convictions to civil judgments and even death sentences, reports the Philadelphia Inquirer.
Mallissa Weaver knew she faced long odds when in 2008 she sought to convince the Pennsylvania Supreme Court that unrelenting sexual harassment by her former boss was so egregious that the justices should overturn a state law that barred her from suing for discrimination.
Much as she expected, she lost. She left her job at a small financial planning office in rural Snyder County and resolved to put the experience behind her.
But as the statewide Porngate scandal continues to widen, Weaver is finding it more difficult to remain at peace with the outcome of her case.
"It's so frustrating to think about," Weaver, 48, said in a recent interview from her home in Kreamer, some 50 miles north of Harrisburg. "There I was complaining about degrading sexual treatment from my boss. Now, I found out that the judges were making the same types of jokes about women while they were deciding my case. How am I supposed to believe I got a fair shake?"
She's not the only one asking that question.
One Supreme Court justice that ruled against Weaver in 2008 - Seamus McCaffery - has already resigned.
Another - Justice J. Michael Eakin - was suspended last month and faces a trial before state judicial authorities this year that could lead to his removal from the bench.
But lost amid the growing list of Porngate's political casualties, are stories like Weaver's - tales of individuals who now feel they have reason to question whether they received justice in their own brushes with Pennsylvania's legal system. 
Lawyers looking into bias argue that the insensitive correspondence - many of which contain jokes about rape; photos mocking African Americans, Hispanics, and other minorities; and insulting comments about gays, the obese, and the disabled - expose hidden biases and an inappropriate chumminess between the judges and prosecutors who already wield great power over the state's system of justice.
"It is important that any case be judged by someone who is fair, impartial, and sensitive to the issues of abuse, racial discrimination, and to prolonged exposure to trauma," said Robert Dunham, of the Washington-based Death Penalty Information Center. "Given the insensitivity reflected in those emails, it's not surprising that lawyers would be raising challenges."
Eakin himself responded broadly to those claims in a hearing last month before a judicial review court.
He apologized and said he did not open half of the emails he received, but he maintained the "locker-room humor" on display had no bearing on how he ruled on cases.
"It's not criminal, it has nothing to do with my performance on the job," he told the state Court of Judicial Discipline. "There is no suggestion or inference that I had manipulated cases."
Reviews by the Supreme Court, the Attorney General's Office, and the state Judicial Conduct Board have found no emails in which individual cases were discussed.
Still, defense lawyers have challenged cases across the state:
In Philadelphia, lawyers for Griffin Campbell, the demolition contractor sentenced Friday to 15 to 30 years in prison for his role in the deadly 2013 Center City building collapse, have pointed to crude racial jokes contained in many of the emails of the prosecutor who oversaw the grand jury investigation. They argued the messages raise questions over whether his was a "racially selective prosecution."
In Harrisburg, three African American women from Philadelphia have asked the Supreme Court to reconsider a 1997 decision upholding their convictions on contempt of court, saying Eakin's emails now "raise substantial questions about the propriety of his participation in cases such as this one."
And in Cumberland County, death-row inmate Antyane Robinson is seeking a Supreme Court rehearing, saying the email traffic between Eakin, who wrote an opinion denying his earlier appeal, and the trial prosecutor in his case suggests an inappropriately friendly relationship and a potential bias toward the government case that earned Robinson a death sentence for the 1997 murder of a romantic rival.
The emails, Robinson's Luzerne County lawyer Enid Harris wrote in a filing last month, "indicate an utter lack of judicial sensibility and impartiality necessary for Eakin to have provided a fair review."
Whether any of those arguments will succeed remains to be seen.
Prosecutors in all three cases have dismissed the idea that any prejudice the emails may expose should warrant tossing out judgments settled years ago.
The larger concern, legal experts say, is not that prosecutors or judges allowed their legal reasoning to be overtly guided by the sophomoric attitudes on display in their email in-boxes.
Rather, the more insidious threat, said Nicholas Cafardi, a Duquesne University law professor, is the doubt their correspondence may have planted in the minds of ordinary citizens with business before the court.
Thirteen years ago, Cafardi led a panel of experts appointed by the state Supreme Court in an assessment of racial and gender bias in the state's court system and produced a stunning report cataloging dozens of examples of prejudice - both subtle and overt.
More than a decade since that exhaustive review, Porngate's revelations have sat uncomfortably with Cafardi.
"The only credibility our judicial system has is its impartiality," he said. "Judges who make sexist or racist remarks or even enjoy being told racist or sexist jokes convey the impression that they're not impartial. It's not enough to say that they didn't mean ill. The damage to the system has already been done."
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