Tuesday, May 31, 2016

Support for 'War on Drugs' fading among police, public and politicians

It's now become acceptable for mainstream elected officials and candidates, as well as members of U.S. law enforcement, to say we can't "arrest our way out" of the nation's drug problem. In October, President Barack Obama started to talk more about the opioid epidemic, releasing a memo on public health approaches to solving America's drug problem, according to The Crime Report.
"For a long time I think treatment was seen as a second-class citizen to interdiction and arrest and incarceration. And that mindset needs to change,"Obama said at a panel on drug policy in West Virginia.
"The good news is we are seeing that mindset changing and it is on a bi-partisan basis, which I think is really interesting. We're putting an end to the old politics on this."
According to Diederik Lohman, associate director of Health and Human Rights division at Human Rights Watch,"Over the last year and a half or so, Obama has become much more engaged and outspoken -- and that has coincided with all the coverage of heroin overdoses and prescription painkiller overdoses that have affected white people as opposed to African Americans," he said.
"Combine that with Colorado and Washington voting to legalize marijuana, [and you find that] these changes in multiple areas have pretty significantly reshaped the environment in the U.S."
It's also become acceptable for public officials -- from police chiefs in major U.S. cities to presidential candidates from both major parties -- to say the decades-old "War on Drugs" has "failed." But while the rhetoric has clearly changed, decision-makers at the federal level have not embraced actual reforms aimed at ending that "war."
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Monday, May 30, 2016

Judge: Take closer look at collateral consequences of crime when sentencing

A federal judge in Brooklyn, issued an extraordinary opinion  that calls for courts to pay closer attention to how felony convictions affect people’s lives, sentenced a woman in a drug case to probation rather than prison, saying the collateral consequences she would face as a felon were punishment enough, reported the New York Times.
The judge, Frederic Block of Federal District Court, said such consequences served “no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”
The judge noted that there were nearly 50,000 federal and state statutes and regulations that imposed penalties on felons.
Those penalties — denial of government benefits, ineligibility for public housing, suspension of student loans, revocation or suspension of driver’s licenses — can have devastating effects, he wrote, adding that they may be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.”
The issue of collateral consequences has been considered by other courts, but Judge Block’s 42-page opinion, with his call for reform, appears to be one of the most detailed examinations yet.
To read more CLICK HERE

Sunday, May 29, 2016

Iowa Supreme Court rules juvenile life without parole unconstitutional

The Iowa Supreme Court ruled that juveniles convicted of first-degree murder may not be sentenced to life without parole. The court reasoned that sentencing a juvenile to life without parole was cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution and emphasized that "sentencing courts should not be required to make speculative up-front decisions on juvenile offenders' prospects for rehabilitation."

According to Jurist, the court noted that it may be determined that an individual is beyond rehabilitation after time has passed, "after a record of success or failure in the rehabilitative process is available." The court also emphasized that parole was not guaranteed to juveniles, but rather only needs to be left available.

The court wrote: “In reviewing the case law development, we believe, in the exercise of our independent judgment, that the enterprise of identifying which juvenile offenders are irretrievable at the time of trial is simply too speculative and likely impossible given what we now know about the timeline of brain development and related prospects for self-regulation and rehabilitation… [A] district court at the time of trial cannot apply the Miller factors in any principled way to identify with assurance those very few adolescent offenders that might later be proven to be irretrievably depraved. In short, we are asking the sentencer to do the impossible, namely, to determine whether the offender is ‘irretrievably corrupt’ at a time when even trained professionals with years of clinical experience would not attempt to make such a determination.”

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Saturday, May 28, 2016

GateHouse: High Court decision on jury bias has limited impact

Matthew T. Mangino
GateHouse Media
May 27, 2016

Last fall, a case argued before the U.S. Supreme Court was described in this way by Justice Elena Kagan, “as clear a constitutional violation as a court is ever going to see.”

This week, the Supreme Court ruled in that case, and in favor of a black Georgia death row inmate, Timothy Foster, convicted in 1987 of murdering an elderly white woman. The Court found that prosecutors unlawfully excluded black potential jurors when selecting an all-white jury.

Foster was 18-years-old when he was arrested for the murder of Queen Madge White, a widow and former elementary school teacher in Rome, Georgia. According court documents, “Foster broke into White’s home. He broke her jaw, coated her face with talcum powder, sexually molested her, and strangled her to death.”

Chief Justice John G. Roberts Jr. wrote the opinion in Foster’s case finding that prosecutors had violated a 1986 decision, Batson v. Kentucky, in which the Supreme Court ruled that race-based discrimination in jury selection was unconstitutional and required lawyers accused of it to provide a nondiscriminatory explanation.

The landmark decision in Batson was intended to eliminate racial bias in the use of peremptory challenges in jury selection.

A peremptory challenge is the exclusion of a potential juror, during the jury selection process, without the need for a reason or explanation.

The Batson ruling set up a three-step process for testing complaints about race-based use of peremptory strikes.

First, the accused has to show membership in a specific racial group.

Second, prosecutors need to offer nonracial reasons for removing the juror.

Third, the judge must decide whether, taking everything into consideration, the defense proved a racial bias.

At the time of Foster’s trial, his legal arguments over jury selection failed. However, in 2006 his lawyers obtained access to the prosecution’s jury selection notes, which showed that the race of the black potential jurors was highlighted, indicating “an explicit reliance on race,” according to Foster’s attorneys.

The notes showed that the prosecution marked the names of the black prospective jurors with a “B,” highlighted them in green and circled the word “black” next to the race question on juror questionnaires.

Chief Justice Roberts wrote in Foster, “We are left with the firm conviction that the strikes of (two of the African American potential jurors) were motivated in substantial part by discriminatory intent.”

The decision was narrowly tailored and is unlikely to have a broad impact, according to the New York Times. Evidence of the sort that surfaced in Foster’s case is rare, and the Batson decision is easy to evade.

According to the Times, studies in Alabama, Louisiana and North Carolina have found that prosecutors use peremptory challenges two or three times more often to strike black potential jurors than to strike others. 

Foster’s lawyer, Stephen B. Bright of the Southern Center for Human Rights in Atlanta, argued to the Supreme Court, “The decision in this case will not end discrimination in jury selection . . . The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.”

Bright channeled Justice Thurgood Marshall who wrote in Batson, “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process . . . That goal can be accomplished only by eliminating peremptory challenges entirely.”

Not everyone agrees that the peremptory challenge should be abolished. The peremptory challenge promotes the concept of a fair and impartial jury. Trial attorneys have long suggested that the challenge helps facilitate the search for bias.

The peremptory challenge serves as fallback when a party strongly believes that a potential juror is biased but does not have enough to convince the court to remove the juror for bias. The peremptory challenge will not be disappearing anytime soon.

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

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Friday, May 27, 2016

46 states enacted some form of sentencing reform since 2014

In 2014 and 2015, 46 states enacted at least 201 bills, executive orders, and ballot initiatives to reform at least one aspect of their sentencing and corrections systems, reported the Vera Institute.
In conducting this review of state criminal justice reforms, Vera found that most of the policy changes focused on three areas: creating or expanding opportunities to divert people away from the criminal justice system; reducing prison populations by enacting sentencing reform, expanding opportunities for early release from prison, and reducing the number of people admitted to prison for violating the terms of their community supervision; and supporting reentry into the community from prison.
By providing concise summaries of representative reforms in each of these areas, this report serves as a practical guide for other state and federal policymakers looking to affect similar changes in criminal justice policy.
To read full report CLICK HERE

Thursday, May 26, 2016

Is it time to end the war on drugs?

“In New York City,” NYC’s police commissioner, William Bratton said during a radio interview, “most of the violence we see around drug trafficking is involving marijuana.”
That isn’t particularly surprising, wrote Bonnie Kristian at Rare.us. Just like alcohol prohibition caused violent crime to increase by criminalizing a high-demand industry, so the drug war does the same—and marijuana is particularly popular. More than four in 10 Americans say they’ve tried pot at some point in their lives.
Bratton is right: the drug trade is a huge contributor to our violent crime rates. The reason is obvious: when you have a business as lucrative as the drug trade--by one estimate, heroin consumption in Baltimore alone generates some $950,000 in spending every single day--dealers will enter the industry and use violence to defend their sales.
All this adds up to a strong argument for ending the drug war—not because we want people doing heroin or think it’s totally fine to smoke pot all day, but because these negative consequences far outweigh any benefits of prohibition. If the drug trade isn’t illegal, it will become much less profitable and much less dangerous.
Unfortunately, that’s not where Bratton was going with his argument. After mentioning the effect of marijuana trafficking on violence in New York, he added, “I have to scratch my head as we are seeing many states wanting to legalize marijuana.”
The real head-scratcher is why Bratton doesn’t understand that legalizing pot would significantly decrease the violence he’s observing. “There may be costs to legalizing marijuana. Some people think that they outweigh the benefits,” Conor Friedersdorf notes at The Atlantic. “But there’s no question that legalizing marijuana would shift sale of the drug from criminals who sometimes engage in violence to businesses that almost never would.”
In fact, as Friedersdorf adds, “Legalization is the only effective way to eradicate such violence.”
It’s hard to believe—and frustrating, to boot—that the police chief of America’s largest city doesn’t understand that drug violence is an argument for ending prohibition, not against it.
To read more CLICK HERE

Wednesday, May 25, 2016

Report: Aging prisoners rise dramatically in last two decades

The number of prisoners over the age of 55 serving more than one year in state prisons increased from 26,300 to 131,500 in the last two decades, according to a study released today by the Bureau of Justice Statistics (BJS), reported The Crime Report.
The study, entitled “Aging of the State Prison Population, 1993-2013,”, written by BJS statistician E. Ann Carson and former BJS Director William J. Sabol, identified two principal contributing factors: Between 1993 and 2013, more older prisoners were serving longer sentences for violent offenses, and more older people were sent to prison.
The proportion of older prisoners in state correctional facilities serving time for violent offenses, such as murder and sexual assault was also higher than prisoners in younger age groups.  For instance, in 2013, some 48 percent of those 55 or older were serving sentences for murder, nonnegligent manslaughter or sexual assault, compared to nearly a third (31 percent) of prisoners ages 45 to 54 --- and more than a quarter (27 percent) of those ages 35 to 44.
Other findings include:
Prison admissions for people 55 and older increased by 82 percent between 1993 and 2013.
40 percent of state prisoners aged 55 or older on December 31, 2013, had been imprisoned for at least 10 years, up from nine percent in 1993.
The mean sentence length for prisoners older than 55 was 82 months in 2014, higher than that of 18- to 39-year-old prisoners (69 months) and that of 40- to 54-year-old prisoners (71 months).

Read the full report here

Tuesday, May 24, 2016

SCOTUS: Death Row inmate gets new trial due to jury selection bias

The U.S. Supreme Court  ruled in favor of a black Georgia death row inmate convicted in 1987 of murdering an elderly white woman, finding that prosecutors unlawfully excluded black potential jurors in selecting an all-white jury, reported Reuters.
In a 7-1 ruling, the court handed a victory to inmate Timothy Foster, 48, who asserted prosecutorial misconduct after he was convicted and sentenced to death in the 1986 murder of Queen White, a 79-year-old retired schoolteacher.
The justices threw out Foster's conviction after decades on death row. He could still potentially face a retrial.
During jury selection, all four black members of the pool of potential jurors were removed by prosecutors, who gave reasons not related to race for their decision to exclude them. Only white jurors were selected for the panel that ended up convicting Foster and sentencing him to death.
Chief Justice John Roberts, writing for the court's majority, wrote that prosecution notes introduced into evidence "plainly belie the state's claim that it exercised its strikes (removing a potential juror) in a 'color blind' manner."
At the time of the trial, Foster's legal arguments over jury selection failed. It was only in 2006 that his lawyers obtained access to the prosecution's jury selection notes, which showed that the race of the black potential jurors was highlighted, indicating "an explicit reliance on race," according to Foster's attorneys.
The notes showed that the prosecution marked the names of the black prospective jurors with a "B," highlighted them in green and circled the word "black" next to the race question on juror questionnaires.
The Supreme Court reached the conclusion that the state's prosecutors "were motivated in substantial part by race" when two of the potential jurors were excluded, Roberts wrote.
Justice Clarence Thomas, a conservative and the only black member of the court, was the sole dissenter.
A 1986 U.S. Supreme Court ruling made it unlawful to take race into account when excluding potential jurors from a trial.
Prosecutors say Foster, 18 at the time of the crime, broke into White's home in the middle of the night, broke her jaw and sexually molested the elderly woman before strangling her and stealing items from her house.
To read more CLICK HERE

Monday, May 23, 2016

Federal sentencing reform could reduce costs by $722 million

A criminal justice bill awaiting a vote by the U.S. Senate would reduce federal prison costs by $722 million over the next 10 years by releasing thousands of federal prisoners early, according to Reuters.
Federal benefits received by the newly released prisoners would increase direct spending by $251 million and reduce revenues by $8 million over the same period, according to the estimate by the U.S. Congressional Budget Office.
The new savings estimate buoyed supporters of the bipartisan measure to lower mandatory minimum sentences for some non-violent federal drug offenders, which is central to President Barack Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding.
"We have an obligation to change the way we think about incarceration, and today’s CBO report shows that we have a fiscal obligation as well," said the bill's co-authors, U.S. senators Charles Grassley, a Republican from Iowa, and Richard Durbin, a Democrat from Illinois, in a statement.
The bill was revised last month to exclude prisoners convicted of violent crimes in an effort to garner more support among conservatives.
Still, its prospects for moving to a full Senate vote remain unclear. Some key Republican senators are reluctant to support the bill until it includes changes to "mens rea" laws that govern criminal intent.

To read more CLICK HERE

Sunday, May 22, 2016

Senator Cotton: We have an 'under-incarceration problem'

Arkansas Senator Tom Cotton, a Republican, recently slammed his colleagues' efforts to pass sweeping criminal justice reforms, saying the United States is actually suffering from an "under-incarceration problem," reported Politico.
Cotton, who has been an outspoken critic of the bill in Congress that would reduce mandatory minimum sentences, smacked down what he called "baseless" arguments that there are too many offenders locked up for relatively small crimes, that incarceration is too costly, or that "we should show more empathy toward those caught up in the criminal-justice system."
"Take a look at the facts. First, the claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact: for the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed," Cotton said during a speech at The Hudson Institute, according to his prepared remarks. "Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem."
To read more CLICK HERE

Saturday, May 21, 2016

GateHouse: Rhetoric is not the solution to surge in violence

Matthew T. Mangino
GateHouse Media
May 20, 2016
The number of homicides increased in the first three months of 2016 in more than two dozen major cities across the country and that trend seems to be continuing into the first half of the year.
The data showed particularly significant increases in homicides in six cities —Chicago, Dallas, Jacksonville, Las Vegas, Los Angeles and Memphis— according to The New York Times.
FBI Director James B. Comey said “Something is happening . . . I don’t know what the answer is, but holy cow, do we have a problem.”
Here is what Comey thinks the problem is a link between rising crime and less aggressive policing — he called it the “viral video effect.” According to Comey, the viral video effect is the result of a string of aggressive, sometimes lethal, police videos that went viral on the internet and led some officers to become reluctant to confront suspects.
In reality, the viral video effect is a substitute for a more controversial label coined last year, the “Ferguson Effect.” It took its name from the Missouri city where protests erupted after a white police officer fatally shot a black 18-year-old in 2014.
Not everyone agrees with Comey.
“This administration makes policy decisions that are rooted in evidence, that are rooted in science,” Josh Earnest, The White House press secretary, said according to The Washington Post. “We can’t make broad, sweeping policy decisions or draw policy conclusions based on anecdotal evidence. That’s irresponsible and ultimately counterproductive.”
Earnest said it was a problem that some cities “are experiencing a troubling surge in violent crime . . . But there’s not evidence at this point to link that surge in violent crime to the so-called viral video effect, or the Ferguson effect. There’s just no evidence to substantiate that.”
Ironically, academics, practitioners and politicians have been grappling with why violent crime rates had dropped so precipitously since the high-water mark in the mid-1990s. Since 1993, the survey indicates the rate of violent crime had declined from 79.8 victimizations per 100,000 to 23.2 per 100,000.
Why had violent crime rates fallen so dramatically? 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.
Now, those same people are struggling to understand the sharp increases in violent crime in many major cities.
In cities where more killings are occurring, “those homicides are not randomly distributed around the city,” said Richard Berk, a professor of statistics and criminology at the University of Pennsylvania.
Berk established a forecasting tool for the Philadelphia Adult Department of Probation and Parole that sought to predict those probationers who were most likely to commit murder and therefore were in need of more intensive supervision.
“Crime, like politics, is local,” Berk told The Washington Post. “This stuff all occurs in neighborhoods on much more local levels. … It’s not about a city as a whole, it’s about neighborhoods.”
So why can’t scholars like Berk come together and collaboratively find the reason, or reasons, for rising urban violence and search for an evidence-based solution. Director Comey’s foray into anecdotal theories is a part of a larger problem.
Unsubstantiated rhetoric leads to fear. America’s level of concern about crime and violence is at its highest point in 15 years, according to a Gallup Poll. Fifty-three percent of U.S. adults say they personally worry “a great deal” about crime and violence.
The criminal justice system is plagued by politics and political posturing. Politicians thrive on fear. If there is a concern with violent crime nationwide, there will be 50 different solutions proposed by 50 different state legislatures.
Imagine if the medical profession solved problems in the same manner. Policymakers need to move away from the rhetoric and adopt science-based solutions to crime and violence.
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Friday, May 20, 2016

SCOTUS: No Sixth Amendment right to speedy sentence

This week the Supreme Court  unanimously ruled that the Constitution’s guarantee of a speedy trial does not protect people convicted of crimes from lengthy sentencing delays, reported the New York Times.

The case, Betterman v. Montana, No. 14-1457, concerned Brandon T. Betterman, who pleaded guilty to jumping bail in the spring of 2012. He spent the next 14 months in a Montana jail waiting to hear what his sentence would be.

He complained to the judge, saying the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by the uncertainty.” In the summer of 2013, the judge finally sentenced him to seven years in prison, with four years suspended.

The long delay, Mr. Betterman said, had violated his Sixth Amendment right to a speedy trial.

Justice Ruth Bader Ginsburg, writing for the court, rejected the argument. There is a difference between trials, which adjudicate guilt, and sentencings, which determine punishment, she wrote.

“As a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction,” Justice Ginsburg said.

She added that “the sole remedy for a violation of the speedy trial right” is dismissal of the charges, which “would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions.”

To read more CLICK HERE

Thursday, May 19, 2016

Books explore LBJ's 'Great Society' as foundation for mass incarceration

Elizabeth Hinton, professor of history and African American studies at Harvard University, examines how mass incarceration happened in America in her new book, appropriately titled From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Hinton’s approach is novel. Most criminal justice experts cite President Ronald Reagan’s War on Crime as the driver for today’s current levels of incarceration.  A review in The National Book Review it is suggested that Hinton argues that President Lyndon Johnson’s Great Society policies— which aimed at improving conditions for the most impoverished Americans — laid the foundation for mass incarceration and its attendant racial injustices.  Reagan’s policies, she says, were merely “the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history during the era of civil rights.”
This may be a surprising claim, but it is not a unique one: there are a growing number of academics today who are blaming liberals for creating mass incarceration and for the sizable racial disparities that exist in the justice system.  Naomi Murakawa, political scientist and associate professor of African American studies at Princeton, made this argument in her recent book The First Civil Right: How Liberals Built Prison America. Murakawa points to federal legislation written by liberals to reduce discretion in sentencing and parole.  The liberals’ goal was to avoid racially disparate punishment — judges, they argued, generally used their discretion in ways that hurt racial minorities.  Time has shown, however, that reducing judicial discretion only resulted in more racial disparities, as African-Americans ended up spending more time in prison as a result.
University of Pennsylvania professor of political science Marie Gottschalk, made a similar case in her 2015 book Caught: The Prison State and the Lockdown of American Politics. Gottshalk contends that African-American advocacy groups have not always led the way in criminal justice reform and have in fact, at various points in history, supported measures that created more punitive criminal justice policies that have harmed African-Americans. She notes that the majority of the Congressional Black Caucus supported the Anti-Drug Abuse Act of 1986, a law that notoriously, and controversially, punished crack cocaine use (a crime African-Americans are more likely to be convicted of) 100 times more harshly than powder cocaine use (which skews more white).
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Wednesday, May 18, 2016

FBI director laments the 'viral video effect'

FBI Director James Comey is again sounding the alarm about a surge in murders in several American cities and is publicly complaining that the problem isn't getting much national media attention because the victims are minorities who live in particular neighborhoods, reported Politico.
"I was very worried about it last fall and I am in many ways more worried," Comey told reporters during a question-and-answer session at FBI headquarters Wednesday. "The numbers are not only going up, they're continuing to go up faster than they were going up last year. And I worry very much it's a problem that most of America can drive around....I don't know what the answer is, but, holy cow, do we have a problem."
The FBI chief has acknowledged that the surge in murders is perplexing in several respects, including the fact that some cities have not seen any uptick while others are experiencing a shocking level of violence.
"Why does Dallas see a dramatic spike and Houston doesn't?...The map and the calendar makes no sense," Comey said. "It's a complicated, hard issue, but the stakes couldn't be higher. A whole lot of people are dying. I don't want to drive around it."
Comey said the FBI is working with police in several cities to try to improve relationships between minority communities and police.
The FBI director acknowledged he still has no hard proof that attention to police-involved shootings and other instances of alleged abuse has changed the policing dynamic. But he said he continues to hear that from officers informally.
"What I'm talking about is sort of the viral video effect....Changes in the way police may be acting and in the way communities may be acting in terms of how much information they share with police could well be at the heart of this or could well be an important factor in this," Comey said. "I think it is the potential effect of marginal pullbacks by lots and lots of police officers that is changing some cities. I continue to hear that privately.....I've heard it in lots of conversations privately with police leaders."
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Tuesday, May 17, 2016

Homicides increase in more than two dozen major cities

The number of homicides increased in the first months of 2016 in more than two dozen major U.S. cities, going up in places that also saw spiking violence last year, according to the Washington Post.
The increases were small in some areas, and many big cities also had declines. But the numbers were particularly grim for a handful of places — Chicago, Los Angeles, Dallas and Las Vegas — where the number of homicides increased in the first three months of 2016 after killings and other violent crimes also went up in 2015.
“I was very worried about it last fall, and I am in many ways more worried, because the numbers are not only going up, they’re continuing to go up in most of those cities faster than they were going up last year,” FBI Director James B. Comey, who got an early look at the numbers, said Wednesday. “Something is happening.”
Criminologists and law enforcement officials, including Comey, say the causes of the increases are unclear, and they offer a variety of possible explanations, including gang violence and bloodshed stemming from drug addictions. Comey also again suggested that greater scrutiny of police had possibly changed the way officers and communities interact, which he said may be a factor in the uptick in homicides, an idea he voiced to much disagreement last year.
“I don’t know what the answer is, but holy cow, do we have a problem,” Comey said.
Criminologists say it is too soon to draw conclusions from these increases, and they point out that homicides and crime rates in general are still far below what they were a quarter-century ago, and that urban areas are much safer than they were just a few decades ago. In Chicago, which is facing a mammoth increase in shootings and other violence, the city is on pace to have more than 500 killings for just the third time since 2004; by comparison, Chicago recorded at least 800 victims of homicide each year between 1991 and 1995 before the numbers began declining.
To read more CLICK HERE

Monday, May 16, 2016

Criminalizing politics: Corruption prosecutions challenged in state and federal court

The justices of the Pennsylvania Supreme Court questioned prosecutors' interpretation of the conflict-of-interest statute, tangling with the "frightening" effect former state Rep. Michael Veon's conviction could have on public officials around the state, reported The Legal Intelligencer.
Attorney Joel Sansone, arguing on behalf of Veon, said that not only was the conflict statute inappropriately applied to his client, but that it would open a door that could complicate elected officials' efforts on ­behalf of their constituents.
By telling Veon's jury to consider ­intangible political benefits as "private pecuniary gain" in considering his conflict charge, the trial judge in the case created issues of vagueness and overbreadth that could implicate politicians far beyond Veon himself, Sansone argued, and which make the statute unconstitutional.
"Give a prosecutor that opportunity and they will find private pecuniary gain in any action they want to," he said.
During oral arguments in the State Capitol in Harrisburg, Justice David N. Wecht expressed concern that allowing a jury to convict a politician for gaining intangible benefits could subject any lawmaker in the building to such a charge.
"It sounds a lot like criminalizing politics," Wecht said.
Veon, the former Democratic whip in the Pennsylvania House of Representatives, was convicted in 2012 on a number of charges, including conflict of interest, for using public funds to lease office space for his legislative offices through a ­charity he founded. Veon represented a Beaver County-based district in the state House for more than 20 years.
The statute at issue, Section 1103 of the Public Official and Employee Ethics Act, defines conflict of interest as the use by a public official of the authority of his office for private pecuniary benefit.
The U.S. Supreme Court heard arguments last week in the corruption prosecution of former Virginia Gov. Bob McDonnell, who was convicted of accepting $175,000 worth of benefits – including an engraved Rolex watch, part of a wedding reception for his daughter and his wife's inaugural ball gown – from a businessman, Jonnie R. Williams, Sr., wrote Eric Schnurer for U.S. News and World Report.
 In return, McDonnell instructed state officials to meet with Williams, pressured the state university to study the efficacy of his product (a dietary supplement), allowed a "product launch" at the governor's mansion and personally touted the product.
McDonnell's lawyers argue that the federal laws underpinning his conviction are unconstitutionally "vague." Why? Because it's purportedly impossible to distinguish between outright bribery and everyday politics and government. As Justice Stephen Breyer put it at oral arguments, "For better or for worse, it puts at risk behavior that is common."

To read more CLICK HERE and HERE

Saturday, May 14, 2016

GateHouse: Crime and politics in 2016

Matthew T. Mangino
GateHouse Media
May 13, 2016

Ever wonder what it would be like to pitch to Babe Ruth, Joe DiMaggio and Mickey Mantle in consecutive plate appearances? Obviously, those Yankee greats played in different eras, but arguably they are some of the very best players to ever play the game.
Last year, in the Michigan Law Review Ninth Circuit Court of Appeals Judge Stephen Reinhardt wrote that The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) as interpreted by the U.S. Supreme Court has created “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out” Ruth, DiMaggio and Mantle.
Traditionally, a prisoner could file a habeas corpus petition in federal court seeking to overturn a state conviction. “Habeas lies to enforce the right of personal liberty,” wrote Justice William Brennan in 1963; “when that right is denied and a person confined, the federal court has the power to release him.”
In the 1960s, according to the New York Times, the Supreme Court expanded the law of habeas corpus to protect against the unfair treatment of defendants at every stage of a criminal process, from arrest and interrogation through trial and sentencing, especially in cases leading to death sentences.
The Great Writ, as it was often called, was emasculated by the AEDPA.
The AEDPA was the work of President Bill Clinton and a Republican Congress. Clinton wanted to prove that Democrats were as tough on crime as Republicans. However, some prominent practitioners were concerned. At the time, according to The Intercept, four former attorneys general sent a letter to Clinton urging him to “communicate to the Congress your resolve, and your duty under the Constitution, to prevent the enactment of such unconstitutional legislation and the consequent disruption of so critical a part of our criminal punishment system.”
Clinton capitulated to Congress and the AEDPA was born. The law limited the authority of the writ of habeas corpus to those cases which “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.”
Davis v. Ayala, decided last summer by the U.S. Supreme Court, is a vivid example of the erosion of habeas corpus. In 1989, Hector Ayala was charged with murdering three men in a drug deal gone bad. During jury selection at Ayala’s trial, prosecutors struck all of the prospective jurors who were black or Hispanic.
Three years earlier, the Supreme Court ruled that systematically excluding jurors on the sole basis of race violated the U.S. Constitution. In Batson v. Kentucky, the Supreme Court ruled that making race a disqualifier violated the accused’s rights under the Equal Protection Clause.
Ayala’s case slowly made its way to the U.S. Supreme Court.
According to the New York Times, the Supreme Court, relying on the ADEPA, chided the court of appeals for misunderstanding the role of a federal court. A federal court, Justice Samuel A. Alito Jr. wrote, was merely supposed to stand guard against “extreme” judicial malpractice by state courts — not “substitute its own opinions for the determination made on the scene by the trial judge.
So what is relevant about the ADEPA today? President Clinton’s crime justice legacy — including the ADEPA — will most certainly be an issue in the presidential election this fall. From overcrowded prisons to the erosion of civil rights, Bill Clinton’s tough-on-crime rhetoric of the 1990s may come back to haunt Hillary Clinton in 2016.

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

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Friday, May 13, 2016

Watch my interview on WFMJ-TV

Watch my interview on WFMJ-TV regarding the Obama Administration's directive regarding transgender students and the protections afford by Title IX.

To watch the interview CLICK HERE

Thursday, May 12, 2016

America's concern about crime at highest level in 15 years

American’s level of concern about crime and violence is at its highest point in 15 years, according to Gallup. Fifty-three percent of U.S. adults say they personally worry "a great deal" about crime and violence, an increase of 14 percentage points since 2014. This figure is the highest Gallup has measured since March 2001.
When Gallup first asked Americans about their level of concern regarding crime and violence in March 2001, 62 percent said they worried a great deal. That figure remains the highest level of worry in Gallup's 15-year trend on this question.

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Wednesday, May 11, 2016

Missouri executed man who killed three

The 14th Execution of 2016
Missouri executed Earl Forrest on May 11, 2016 by lethal injection, marking the state’s first execution in 2016, reported The Atlantic.
A Missouri Department of Corrections spokesman said Forrest was executed at 7:10 p.m. local time at a state prison in Bonne Terre. He was pronounced dead eight minutes later.
Forrest received a death sentence in 2004 for the 2002 slayings of Harriet Smith, Michael Wells, and Dent County police officer JoAnn Barnes. 
According to court documents, Forrest went to Smith's house to demand she buy a mobile home and a lawn mower for him, in exchange for his introducing her to someone who could provide her with methamphetamine. He fatally shot Wells in the face during the confrontation, then shot Smith six times, killing her.
Forrest later killed Deputy Barnes during a shootout at his home with law enforcement. He also shot his then-girlfriend, Angela Gamblin and Dent County Sheriff Bob Wofford during the standoff. Wofford and Gamblin survived.
In his final filing to the U.S. Supreme Court, Forrest challenged his death sentence as a violation of the Eighth Amendment’s ban on cruel and unusual punishments. The petition cited Justice Stephen Breyer’s lengthy dissent last year in Glossip v. Gross urging the court to reconsider the death penalty’s constitutionality.
The U.S. Supreme Court denied the last-minute request for a stay of execution on Wednesday with no recorded dissents. Missouri Governor Jay Nixon also issued a statement declining to grant clemency to Forrest hours before the scheduled execution.
Forrest was the 14th person to be executed in the U.S. this year and the 1,436th person executed since the Supreme Court revived capital punishment in 1976.
Executions nationally are on the decline. In 1999, 98 people were executed. That fell to just 28 in 2015 — a 24-year low — and 13 so far in 2016.
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Nonviolent drug crimes are a fantasy

The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime, wrote William J. Bennett and John P. Walters in the Washington Examiner. Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities. Now, this lie is propelling legislation through Congress that will destroy more lives.
Bennett and Walters, former directors of the Office of National Drug Control Policy, wrote “we carry a particular responsibility to speak up when so many who should know better claim that drug trafficking has been treated too harshly under federal law.” 
In the federal prison system, 99.5 percent of those incarcerated for drug convictions are guilty of serious trafficking offenses. And according to a Bureau of Justice Statistics study of state drug inmates, 77 percent reoffend within five years of release, with 25 percent committing violent offenses. Most of these convicted drug dealers are career criminals with long rap sheets. By softening punishments for these traffickers, as this legislation does, Congress would give convicted dealers shorter sentences and early release causing destruction to communities across America. 
Moreover, this push to release experienced traffickers is occurring at the same time our nation is enduring a 440-percent increase over the past seven years in heroin overdose deaths.

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Tuesday, May 10, 2016

Florida's non-unanimous death penalty unconstitutional

A Miami-Dade judge has ruled that Florida’s death penalty is unconstitutional because jurors are not required to agree unanimously on execution, a decision certain to spur more legal wrangling over Florida’s capital punishment system, reported the Miami Herald.
Circuit Judge Milton Hirsch on Monday became the first state judge to rule on the constitutionality of Florida’s revamped death-penalty sentencing law. Miami-Dade prosecutors immediately vowed to appeal.
He issued the ruling in the case of Karon Gaiter, 37, who is awaiting trial for first-degree murder for fatally shooting a man seated in a car in North Miami-Dade in April 2012.
Hirsch wrote that Florida’s recently enacted “super majority” system — 10 of 12 juror votes are needed to impose execution as punishment for murder — goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.

 “A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant,” Hirsch wrote. “And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors — every single one of them.”
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Monday, May 9, 2016

Report: Women's sentences should be shorter than men's, a lot shorter

Women who are convicted of a crime should have their sentences reduced by up to 76 percent because they have lower recidivism rates and tend to face more hardships in prison compared to male inmates, among other factors, according to a study forthcoming in the Vermont Law Review.
Although women participate in crime less frequently than men, the female prison population is growing at nearly 1.5 times the rate of the male prison population, write the authors in the study entitled “Mitigating the Crime that is the Over-Imprisonment of Women: Why Orange Should Not Be the New Black.”
“During the past four decades, females are the fastest growing portion of the prison population,” write Mirko Bagaric, law professor at Deakin University in Melbourne, Australia, and Brienna Bagaric, a teaching fellow at the school. “This demonstrates a grotesque failing in policy development and implementation.”
According to The Crime Report, they argue that women’s sentences should be lower because of factors including:
·         *Women have lower recidivism rates. According to  Bureau of Justice Statistics study, 59 percent of women released from prison had be rearrested within three years of their release compared with 69 percent of men.
·        * The rate of sexual victimization for female inmates exceeds that of male inmates.
·       *  A higher percentage of female inmates in state prisons (73 percent) and federal prisons (61 percent) suffer from mental health problems than male inmates in state prisons (55 percent) and federal prisons (44 percent).
Read the study here

Sunday, May 8, 2016

Alabama chief justice removed from the bench, again

Alabama Chief Justice Roy Moore was suspended on May 6, 2016, for the second time in his career, after being charged with violating ethical rules, reported Jurist. 
The Judicial Inquiry Commission accused Moore of failing to act impartially and refusing to follow the law when he ordered  probate judges not to issue same-sex marriage licenses following the US Supreme Court ruling in Obergefell v. Hodges  which struck down same-sex marriage bans. Moore argued that the Supreme Court ruling only applied to the plaintiff in the case, and probate judges in Alabama had not been ordered to issue same-sex marriage licenses. The commission stated that Moore is bound by the Supreme Court interpretation of the Constitution and has violated the law. 
In 2003, Moore was removed from office after refusing to adhere to a federal court order.  He then successful ran for the position again.
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Saturday, May 7, 2016

GateHouse: Making sure crime doesn’t pay

Matthew T. Mangino
GateHouse Media
May 6, 2016

If Charles Manson were paroled — he is 81-years-old and his next parole interview is scheduled for 2027 — he could sell his jailhouse artwork to the highest bidder without worrying about the government seizing his profits.
What if Jerry Sandusky wrote a book? The disgraced former Penn State coach and convicted sex offender would probably never see a dime from the titillating explanations of his despicable conduct.
Then there is Teresa Giudice, the reality star from Real Housewives of New Jersey and recently paroled convicted felon, her outcome may be a little murky. If she restricted her dialogue or writing to how prison disrupted her family life, or her experiences in prison — as opposed to how she pulled off her criminal scheme — she may not be prohibited from cashing in.
Thanks to statutes referred to as “Son of Sam” laws there is little chance that Sandusky or his family will benefit by the publication of a book. But, for Manson and Giudice, they may profit in a big way.
The law, which exists federally and in 41 states, is named for David Berkowitz, the “Son of Sam” serial killer who was convicted for a string of murders in New York City in the mid 1970s.
Generally, “Son of Sam” laws prevent criminals and their relatives from profiting off their crimes in any way. If there is any profit, the law directs that money to the victims or their families.
Model “Son of Sam” laws provide, “If a person has been convicted of a crime, every person who knowingly contracts for, pays or agrees to pay any profit from a crime to that person shall give written notice to the (Crime Victims Compensation) board of the payment or obligation to pay (and) . . . shall notify all (victims or victims’ families).”
New York was the first state to enact a “Son of Sam” law in 1977. However, the law faced a challenge in 1987 in a case involving the Nicholas Pileggi book, “Wiseguy: A Life in a Mafia Family,” on which the film “Goodfellas” was based. Pileggi wrote the book with the paid help of former mobster Henry Hill.
Publisher Simon and Shuster challenged the law. In Simon & Shuster v. Crime Victims Bd., the U.S. Supreme Court struck down the law for violating the First Amendment’s guarantee of free expression, ruling it would have encompassed works including Henry David Thoreau’s “Civil Disobedience” and The Autobiography of Malcolm X.
New York revised its law in 1992, and the state Senate has passed legislation seven times since 2006 to try to expand the law, most recently, to reach people held not responsible because of mental disease.
A Long Island, New York mother who drowned her three children in a bathtub is now seeking some of the children’s estate. Since the woman was never convicted — instead found not guilty by reason of mental disease — according to the New York Post, legal experts say she could make a plausible case to receive some the $350,000 estate.
While Manson and Sandusky’s victims were individuals and clearly subject to “Son of Sam” laws, Manson’s artwork is not directly related to his crimes although his artwork would have little interest but for Manson’s infamy.
Giudice likely won’t have to contend with “Son of Sam” laws. The New Jersey law was amended in 2006 and while her fraud had victims — Wells Fargo is waiting for Giudice to repay $414,588.90 — the victims are not individuals and not protected by the law.

Matthew T. Mangino can be contacted at mattmangino.com

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Friday, May 6, 2016

Should veterans with PTSD be excluded from the death penalty

 Should service-related PTSD exclude veterans from the death penalty? An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, reported Mother Jones. But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.
Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion." Juveniles receive such treatment, as do those with mental disabilities. In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service." In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence. "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.
Courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process."
That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence. To him, a categorical exclusion would be an "extreme step" that would mean "one factor—always, in every case—necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."
But presenting a case for service-related PTSD often doesn't happen. Richard Dieter, the former director of the Death Penalty Information Center and author of its report "Battle Scars: Military Veterans and the Death Penalty," says PTSD defenses can backfire for defense lawyers. "What I hear from lawyers is, 'Look, we're a little hesitant about bringing this issue up before a jury because it can cut both ways,'" Dieter says. "It sounds like you've got a very dangerous person on your hands with this PTSD. And this person is not getting better, and they're a threat to society."
Furthermore, the relatively small amount of relevant case law isn't consistent. The US Supreme Court overturned a Korean War veteran's death sentence in 2009 after finding that his original lawyers didn't provide the convicting jury enough background of his military service and the resulting physical and psychological wounds. ButAndrew Brannan, a Vietnam veteran with bipolar disorder who was rated as 100 percent disabled on account of his PTSD, was executed by lethal injection in January 2015 for murdering a Georgia deputy sheriff. Brannan had hoped his case would bring attention to the issue: "I am proud to have been able to walk point for my comrades," he said, according to one of his lawyers, "and pray that the same thing does not happen to any of them."
Dr. Stephen Xenakis, a retired general and an Army psychiatrist for 28 years, has served as an expert witness in a number of veterans' trials and says most of the men who've committed these crimes have had multiple problems—everything from traumatic brain injuries and depression to concussive symptoms and substance abuse—that can "lead to a situation and a state of mind where they commit these horrendous offenses." Soldiers who served in Iraq and Afghanistan have had a high rate of head and neck injuries; bullets are causing proportionately less damage than explosions from roadside bombs and IEDs, and highly trained medics are able to address the wounds more effectively than in the past. By 2012, an Institute of Medicine study estimated that between 13 and 20 percent of the 2.6 million Americans who'd served in Iraq and Afghanistan showed at least some of the symptoms of PTSD, according to Mother Jones.
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Thursday, May 5, 2016

SCOTUS: FBI can get hacking warrant from any federal judge

The US Congress has seven months to block a potentially massive expansion of the government’s ability to hack into suspects’ computers, reported The Gaurdian
At the FBI’s request this week, the supreme court ruled that federal judges should be able to issue hacking warrants to federal law enforcement for anywhere in the US if the suspect has tried to hide their location, as criminal suspects are wont to do. 
Additionally, the FBI could get authority to infiltrate any computer – regardless of the owner – if it has already been taken over by bad hackers.
The changes to so-called “rule 41” go into effect 1 December unless Congress acts to block them. The move has set up a showdown with Senator Ron Wyden, the most senior Democrat on the Senate intelligence committee, who is marshaling the opposition on Capitol Hill. He told the Guardian on Friday that he plans to introduce a bill blocking the court’s move.
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Wednesday, May 4, 2016

Justice Breyer takes another jab at the death penalty in certiorari dissent

Richard Boyer was initially sentenced to death 32 years ago. He has been on death row in California since that time.  His case came before the U.S. Supreme Court this week on a Writ of Certiorari alleging among other things that sitting on death row for 32 years is itself cruel and unusual punishment under the 8th Amendment to the U.S. Constitution.

Certiorari was denied but Justice David Breyer wrote an interesting dissent to the order:

The Report and Recommendations on the Administration of the Death Penalty in California 6 (2008). wrote that more than 10 percent of the capital sentences issued in California since 1978 had been reversed. It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the State. Indeed, only a small, apparently random set of death row inmates had been executed.  A vast and growing majority remained incarcerated, on death row under a threat of execution for ever longer periods of time.  The Commission added that California’s death penalty system was expensive, with its system for capital cases costing more than 10 times what the Commission estimated the cost would be for a system that substituted the death penalty with life imprisonment without the possibility of parole. Put simply, California’s costly “administration of the death penalty” likely embodies “three fundamental defects” about which I have previously written: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.” Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting); see Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); see also Valle v. Florida, 564 U. S. 1067 (2011) (BREYER, J., dissenting from denial of stay); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari). For these reasons, I respectfully dissent.

Boyer v. Davis, 578 U.S. ___ (2016).

Tuesday, May 3, 2016

Man released from 43 years in solitary confinement: 'I wish I was back in the security of a cell'

Before walking out of jail a free man in February, Albert Woodfox spent 43 years almost without pause in a Louisiana prison isolation cell, becoming the longest standing solitary confinement prisoner in America, The Guardian. 
He had no view of the sky from inside his 6ft by 9ft concrete box, no human contact, and taking a walk meant pacing from one end of the cell to the other and back again.
A few days ago he found himself on a beach in Galveston, Texas, in the company of a friend. He stood marvelling at all the beachgoers under a cloudless sky, and stared out over the Gulf of Mexico as it stretched far out to the horizon.
“You could hear the tide and the water coming in,” he says. “It was so strange, walking on the beach and all these people and kids running around.”
Of all the terrifying details of Woodfox’s four decades of solitary incarceration – the absence of human touch, the panic attacks and bouts of claustrophobia, the way they chained him even during the one hour a day he was allowed outside the cell – perhaps the most chilling aspect of all is what he says now. Two months after the state of Louisiana set him free on his 69th birthday, he says he sometimes wishes he was back in that cell.
“Oh yeah! Yeah!” he says passionately when asked whether he sometimes misses his life in lockdown. “You know, human beings are territorial, they feel more comfortable in areas they are secure. In a cell you have a routine, you pretty much know what is going to happen, when it’s going to happen, but in society it’s difficult, it’s looser. So there are moments when, yeah, I wish I was back in the security of a cell.”
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Monday, May 2, 2016

Undisclosed informant jeopardizes mass murderer's conviction

Scott Dekraai armed himself with three handguns, drove to the beauty salon in Seal Beach, California, where his ex-wife worked and opened fire. The two-minute rampage in October 2011 left eight people dead and one injured.
Within an hour, Dekraai was pulled over by police and confessed. Numerous witnesses, including a survivor, could testify that he was the shooter. There was no reason to think that convicting him would be difficult.
Nonetheless, Dekraai’s attorney contends, prosecutors decided they wanted some insurance—so they planted an informant in the cell next to him at the Orange County Jail. “Inmate F” struck up a friendship with Dekraai and began asking questions, reported the ABA Journal.
This planting of an informant next to a suspect was not an isolated incident, according to Dekraai’s public defender, Scott Sanders. After a year of investigation, Sanders filed a 505-page motion alleging that the DA’s office and the Orange County Sheriff’s Department had a long-standing practice of planting undercover informants next to high-value defendants represented by counsel. In addition, the DA’s office routinely failed to hand over discoverable evidence and, when asked about it, deputies and prosecutors repeatedly lied, Sanders claims.
If true, such practices would be a violation of civil rights.
The U.S. Supreme Court ruled in 1964’s Massiah v. United States that police officers who use undercover informants to interrogate someone represented by counsel violate the accused’s Sixth Amendment right to an attorney. And failing to turn over exculpatory information on this practice is a violation of the defendant’s 14th Amendment due process rights under 1963’s Brady v. Maryland.
Sanders’ allegations were explosive, triggering a year of hearings that led to an even bigger revelation: For more than 25 years, the sheriff’s department has maintained a database called Tred for tracking jail movements, but had almost never disclosed its information. That means prosecutors who knew about Tred records could have violated Brady dozens, hundreds or even thousands of times—and two decades of convictions could be called into question.
The revelations were so damning that Orange County Superior Court Judge Thomas Goethals disqualified the DA’s entire 250-lawyer office from prosecuting Dekraai. “It is arguable whether or not the evidence currently before this court … reaches the standard of ‘outrageous governmental misconduct,’ ” Goethals wrote in March 2015. “What cannot be debated is the fact that serious, ongoing discovery violations continue to occur in this case.”
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Sunday, May 1, 2016

Senators revise controversial criminal justice reform package

Top senators have been quietly revising a controversial overhaul of criminal justice laws. The recently unveiled compromise addresses conservative criticisms that could have derailed the bill in the Senate, reported Politico.com.
Influential Senate Democrats and Republicans held a news conference trumpeting the changes and to try and show a renewed sense of momentum behind the long-stalled legislation that tries to ease mandatory minimum sentences for nonviolent offenders.
“Obviously, reaching a consensus hasn’t been easy,” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said. “But as you can see, we have a remarkable group of senators supporting the bill. We believe that it truly addresses in a bipartisan way the concerns that had been brought forward.”
The original version passed the Senate Judiciary Committee 15-5 in October, but tough-on-crime Senate conservatives — led by Sen. Tom Cotton of Arkansas — warned that it would inadvertently release felons with violent criminal records early from prison. Sen. Ted Cruz (R-Texas) was also a vocal critic of the bill — which the first endorser of his presidential campaign in the Senate, Mike Lee of Utah, helped draft — but has been quiet lately as he’s been campaigning.
The compromise won’t satisfy critics like Cotton, but nevertheless has been enough to sway a handful of other Republicans and to get influential organizations, such as the National District Attorneys Association, on board.
For instance, one section of the original legislation to reduce enhanced mandatory minimum sentences for people convicted under the Armed Career Criminals Act has been eliminated. The bill also now says that other reduced mandatory minimum sentences won’t apply retroactively for anyone who has been convicted of any serious violent felony. And it adds enhanced mandatory sentences for crimes involving Fentanyl, an opioid drug.
The influential district attorneys group wrote to Senate leaders earlier this week, saying the revised version “filters out the truly dangerous individuals” so they don't benefit from the reduced mandatory minimum sentences.
But the revisions weren’t enough to persuade some Republicans whom backers targeted. Sen. David Perdue of Georgia, seen by some proponents as a potential supporter, argued that the revisions would still allow serious drug traffickers to be released early from prison.
“Proponents of this criminal-leniency bill have waged a disinformation campaign because they simply want to reduce the number of people in federal prison,” Perdue said.
That prompted FreedomWorks, one of the major conservative outside groups backing the Senate measure, to fire back at Perdue, calling the Georgia senator’s comments on the legislation “misleading and hypocritical.”
The next step for the Senate coalition behind the bill will be to persuade Senate Majority Leader Mitch McConnell (R-Ky.) to take up the legislation this year. Speaker Paul Ryan (R-Wis.) has supported criminal justice legislation moving on a parallel track in the House, and the White House backs the effort.
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