Thursday, June 30, 2016

California takes on gun violence research

California will open the nation's first public research center dedicated to the study of gun violence, reported Governing magazine.
The California Firearm Violence Research Center will fill the hole that Congress left when it defunded and effectively banned the Centers for Disease Control and Prevention's gun research in 1996.
The news comes on the heels of one of the deadliest mass shootings in U.S. history, where 49 people were shot dead in an Orlando gay nightclub earlier this month. Since then, Congress has been embattled in emotional and fierce debates that have led to a 15-hour filibuster and a 25-hour sit-in but no legislative action on gun control.
 “Congressional inaction means that states are going to have to step up more on the local level,” said Georges Benjamin, executive director of the American Public Health Association. 
The National Rifle Association (NRA) and other pro-gun rights groups, which lobbied for the federal ban in the 1990s, oppose government-funded research because they believe it's essentially advocacy work on behalf of pro-gun control legislators.
“It is obvious that the research conducted under SB 1006 will not be favorable to law-abiding gun owners,” said a statement on the NRA’s website.
California state Sen. Lois Wolk, who spearheaded the bill, doesn't buy the NRA's claims.
"The hollowness of their arguments was on display for everyone to see," she said. "Plus, this bill had bipartisan support from the beginning."
California already has a Violence Prevention Research Center at the University of California, Davis. The new center, however, will focus specifically on firearm violence -- and not just in California. Researchers will study policies, trends and patterns on firearm violence from around the world. Officials in the university system will convene later this summer to decide on which campus it will be located.
The forthcoming center has a surprising ally: former Congressman Jay Dickey of Arkansas, who authored the amendment that ended the CDC’s gun research. In recent years, he has said he regrets that decision.
“California is setting a very good example by supporting the research that will empower their legislators to protect both its citizens and their gun rights," he said in a statement.
To read more CLICK HERE

Wednesday, June 29, 2016

Bringing back advocacy to the criminal justice system

Below is an excerpt of remarks by Stephen Bright, President of the Southern Center for Human Rights at the Aspen Ideas Festival, reported by The Atlantic:

We've taken power from judges and given it to prosecutors, who now decide, with their charging decisions and whether they file repeat-offender papers and all sorts of other things, how long a person is going to serve. So they decide the sentence. The judge is relegated to being a clerk at the end of the process. He signs off on whatever the sentence is. That's got to be shifted back in the other direction, because the prosecutor is an advocate. We theoretically have an adversary system. The worst system is one that masquerades as an adversary system and is not one.
And in many places, people do not receive any real kind of legal representation. If we are going to say this is an adversarial system where we have prosecutors striking hard blows and trying to lock people up or do whatever, you have to have defense lawyers representing those people. First of all, are we even locking up the right people, because we keep letting out people who didn't do what they were convicted of.
And what about the life and background of that person? When it comes to diversion programs, the prosecutor doesn't go interview the defendant, the defense lawyer does that, and then does a social history workup of who is this person? See my article on Sentence Advocacy. This woman, yes, she wrote a fake prescription to get drugs. But she's got a kid with down syndrome. And that's one of three children that she's trying to raise at 25 years of age. So do we really want to put her in the prison system in Georgia for three years?
Or is there another way to deal with this?
And if she's not represented, the prosecutor and the judge will never know about that child. I've twice been called by the department of criminal justice saying we've got people here with IQs of 45, these kids are walking victims, and they're about to be moved into the adult system, and if somebody doesn't do something...
In both of those cases, lawyers plead them guilty and didn't even spend enough time with them to realize they were severely disabled. There are public defenders’ offices that are hopelessly overburdened. And we have places like Alabama where you appoint anybody with a bar card and a pulse and they represent you. The way to make money at that is to move as many people through the system as fast as you can.
To read more CLICK HERE

Tuesday, June 28, 2016

Is the end of the death penalty near?

Executions are at the lowest level in decades.  In the first half of 2016 there were 14 executions. Those executions occurred in Texas (6), Georgia (5), Alabama (1), Florida (1) and Missouri (1). You can read about each execution here.  
There are seven executions planned for the rest of the year, all in Texas according to the Death Penalty Information Center.
Twenty-one executions would be the fewest since 1992 when there were 14 executions and a fraction of the 98 executions carried out in 1999.
To read more CLICK HERE

Monday, June 27, 2016

Arizona halts executions, supply of lethal injection drug dries up

Executions in Arizona have been put on hold after the state ran out of the controversial drug midazolam used in the state's execution protocol, reported Sky News.
Supplies of midazolam ran dry on May  31 and sources of the drug have been blocked after successful lobbying of European pharmaceutical suppliers by death penalty activists.
In May, Pfizer became the latest pharmaceutical giant to close off the last remaining open-market source for lethal injection drugs, following similar actions by more than 20 US and European drug manufacturers.
Although a ruling last month by an Arizona district judge dismissed parts of the lawsuit, other elements of the case remain, and until the dispute is resolved, executions in Arizona remain suspended.
Dale Baich, an attorney representing death row prisoners, said that even if the lawsuit is dismissed, his clients still have claims that Arizona's Department of Corrections Director abused his discretion over the methods and amounts of the drugs used in past executions.
"It's our belief that the unlimited discretion that the director has during the execution process violates the Eighth Amendment," which forbids cruel and unusual punishment," Baich said.
To read more CLICK HERE

Sunday, June 26, 2016

Pennsylvania to have special legislative session on opioid crisis

Governor Tom Wolf is taking a significant step to deal with what he has called a statewide crisis, Gov. Wolf will call a special session of the legislature this year to address the prescription opioid epidemic, reported the Philadelphia Inquirer.
The session will convene "by the end of the summer, if not early fall," said House Speaker Mike Turzai (R., Allegheny), and will focus on finding solutions to an issue rippling across nearly every community.
The announcement came as lawmakers from both parties and the governor gathered in the Capitol rotunda to renew attention on a problem that has grown dramatically in recent years.
Almost two-thirds of the 47,000 overdose deaths nationwide in 2014 were opioid-related, according to the Centers for Disease Control and Prevention. That year, Pennsylvania recorded about 1,600 overdose deaths from opioid medications and 800 from heroin, the state Coroners Association reported.
To read more CLICK HERE

Saturday, June 25, 2016

Mangino a guest on WFMJ-TV Weekend Today

Watch my interview on WFMJ-TV Weekend Today about the flurry of U.S. Supreme Court decisions regarding immigration, affirmative action and the Fourth Amendment.

To watch the interview CLICK HERE

GateHouse: Supreme Court further narrows Fourth Amendment protections

Matthew T. Mangino
GateHouse Media
June 24, 2016

This week, the U.S. Supreme Court ruled that the exclusionary rule does not apply when an officer makes an illegal stop and finds out the “suspect” has a warrant for his arrest and searches the suspect as a result.

The rationale behind the exclusionary rule was to deter police misconduct. If the police intentionally circumvented their obligation to get a search warrant, made an illegal stop or if the police were just inept, the penalty would be significant — the inability to use the evidence illegally obtained.

The court’s decision this week in Utah v. Strieff seems to fly in the face of the landmark holding in Mapp v. Ohio. Mapp originated out of Cleveland, where police were looking for a fugitive and forced their way into Dollree Mapp’s apartment without her consent. While in the apartment the police confiscated illegal material and arrested Mapp.

Forty-seven years before the 1961 decision in Mapp, the U.S. Supreme Court ruled that evidence collected in federal prosecutions that violated the Fourth Amendment ban against illegal search and seizures would be excluded from trial. The exclusionary rule, as it became known, was available to all defendants in federal court. However, the rule had not been recognized or applied by all states. Ohio was one of those states that did not recognize the exclusionary rule.

Mapp v. Ohio changed the nation’s jurisprudential landscape. Mapp explicitly held that the exclusionary rule applies to the states and as a result state prosecutors could not use evidence gained by illegal or improper means to obtain a conviction.

Many Supreme Court observers suggested that the Mapp decision would be detrimental to law enforcement. The courts would be inundated with challenges and the guilty would go free in droves. The exclusionary rule has been the target of a 50-year assault by conservatives who contend the rule is a boondoggle for criminals.

What the exclusionary rule actually produced was improved police work. The law enforcement training that grew out of the Mapp decision has enhanced the quality of police investigations and protected the rights of individual citizens. In 2005, the late Justice Antonin Scalia cited “increasing professionalism of police” as a reason for the exclusionary rule’s obsolescence.

The court has chipped away at the exclusionary rule. In 2009, The Supreme Court found that evidence confiscated as the result of an arrest that was the product of an expired warrant was not subject to exclusion. The Court found that negligence by one police department in failing to remove a warrant did not contaminate evidence obtained by a different police department that was unaware the arrest warrant was invalid.

In 2011, the Supreme Court further narrowed the exclusionary rule. Police in Alabama arrested Willie Davis. After he was handcuffed and placed in the backseat of a police cruiser Davis’ car was searched. The police found a gun. The police were in conformity with the law as it existed at the time the warrantless search of Davis’ car was conducted.

Subsequently, the law changed and Davis sought to have the evidence excluded. The Supreme Court refused to exclude the evidence. Justice Samuel Alito concluded that suppression of evidence as the result of a change in the law, a change that came after a lawful search, “would do nothing to deter police misconduct.”

Now comes Strieff. Orrin Kerr of George Washington University Law School wrote in the Washington Post, “Strieff is a significant win for the police.” He suggests that “the majority’s approach practically invites police officers to make illegal stops.”

This decision will have significant impact. According to the USA Today, the Justice Department found during its investigation of police misconduct in Ferguson, Missouri, that 16,000 of the city’s 21,000 residents had outstanding warrants. Cincinnati recently had more than 100,000 warrants pending and New York City has 1.2 million outstanding warrants.

— 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 and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

Friday, June 24, 2016

Death sentences rare in Pennsylvania, executions extraordinarily rare

Fewer than 2 percent of Pennsylvania's roughly 25,000 homicides the past four decades have resulted in a death sentence, a Reading Eagle examination has found, part of an ongoing series on the death penalty.
While roughly two-thirds of the commonwealth's counties have sentenced at least one person to death since 1978, Sixty percent of those sentences come from four counties: Philadelphia, Allegheny, York and Berks. And, almost two dozen counties have not sentenced anyone to death.
The findings suggest a far-from-even application of the death penalty in Pennsylvania.
In addition,there have been three executions in Pennsylvania since 1976 and all three "volunteered" to be executed. 
"The idea here isn't that we reserve the death penalty for the really, really bad cases," said John Roman, a senior fellow at the Urban Institute who evaluates criminal justice programs. "We use the death penalty in places where it's politically viable."
Death penalty statutes that states, including Pennsylvania, created in the wake of the U.S. Supreme Court's 1972 decision finding capital punishment unconstitutional as implemented, were intended to make its application - particularly for black defendants - less arbitrary.
Researchers who study capital punishment, though, said the Eagle's findings show the wide discretion prosecutors have in whether to seek a death sentence.
The district attorneys the Eagle spoke to had a mixed reaction to the data. Some said their discretion should be expected, saying the public elects them to make those tough decisions while others said they didn't know what to make of the findings.
There have been 24,942 homicides across the commonwealth from 1978 through 2014, the latest data available from state police. In that time, the commonwealth has sentenced 408 people to death, at a rate of 1.6 death sentences for every 100 homicides.
To identify the rate, the Eagle spent more than five months compiling a comprehensive list of inmates sentenced to death since capital punishment was reinstated in 1978. The database was also used to analyze the death penalty's cost to taxpayers, estimated at more than $800 million.
To read more of series CLICK HERE

Wednesday, June 22, 2016

Phenotyping the next frontier for DNA and forensic analysis

DNA phenotyping is a technique that establishes a physical likeness of the person who left the sample behind, including traits such as geographic ancestry, eye and natural hair color, and even a possible shape for facial features, reported National Geographic.
In 1984 British geneticist Alec Jeffreys stumbled upon a surprising truth: He could tell people in his experiment apart solely by patterns in each person’s minced-up DNA, the genetic code we all inherit from our parents. 
Jeffreys’s discovery formed the basis of the first generation of DNA tests. Three years later Jeffreys’s lab processed DNA from a 17-year-old suspect in the rape and murder of two teenage girls in central England, and saw that it did not match DNA from semen found in the victims. Thus the first use of DNA in a criminal case led not to a conviction but to an exoneration. (The true killer later confessed, after he tried to elude DNA screening of a group of men in the area.) 
Soon other, more sensitive tests were in use, and by 1997 the FBI was employing one that looked at 13 places on the genome where stutters in the DNA code cropped up. The odds of any two unrelated people having the same 13 patterns were one in at least hundreds of billions. It was these patterns that wound up forming the basis of the FBI’s CODIS database. By the 1990s, DNA profiling was being widely used in court cases around the world—in the United States, most famously in the murder trial of O. J. Simpson. 
DNA phenotyping is a relatively recent arrival in forensic science, and some critics question how useful it will be. The facial composites it produces are predictions from genetics, not photographs. Many aspects of a person’s appearance are not encoded in DNA and thus can never be unearthed from it, like whether someone has a beard, or dyed hair. Nevertheless, Parabon, which calls its facial composite service Snapshot, has had more than 40 law enforcement organizations as customers. Human genome pioneer Craig Venter, as part of his new personalized health company called Human Longevity, is also investigating facial reconstruction from DNA, as are many academic labs. 
To read more CLICK HERE

Tuesday, June 21, 2016

Police win victory in search and seizure case

The Supreme Court  gave police more power to stop people on the streets and question them, even when it is not clear they have done anything wrong, reported the Los Angeles Times.
In a 5-3 ruling, the justices relaxed the so-called exclusionary rule and upheld the use of drug evidence found on a Utah man who was stopped illegally by a police officer in Salt Lake City.
The court, in an opinion by Justice Clarence Thomas, said that because the man had an outstanding arrest warrant for a traffic violation, the illegal stop could be ignored.
“In this case, the warrant was valid, it predated [the police officer’s] investigation, and it was entirely unconnected with the stop,” Thomas wrote for the court.
The court’s three women justices strongly dissented and warned that the ruling will encourage police to randomly stop and question people because they face no penalty for violating their constitutional rights against unreasonable searches. They said racial minorities in major cities will be most affected.
Thomas, rebutting the dissenters, said the case did not involve a “flagrant violation” of the 4th Amendment.  He said he doubted “police will engage in dragnet searches if the exclusionary rule is not applied. We think this outcome is unlikely.”
The Supreme Court first adopted the exclusionary rule for federal cases in 1914, but greatly expanded its reach in 1961 by applying the rule to state and local police. The rule generally requires judges to throw out evidence if a police officer or federal agent conducted an unreasonable search, including stopping a pedestrian without reasonable suspicion that the person had committed a crime.
In the last decade, the court led by Chief Justice John Roberts has relaxed the rule in cases in which officers made an innocent mistake or relied on a defective warrant.
To read more CLICK HERE

Monday, June 20, 2016

Violent crime defined . . .

What is a violent crime?
While the Supreme Court has struggled to define when conduct is “violent,” the real-world consequences of this definitional question are critically important: the law often treats violent and nonviolent crime very differently, reported Salon.
Many laws govern the conduct of those with criminal records, restricting housing, employment, voting and a range of benefits. These laws often depend upon the nature of the underlying offense – a violent felony might preclude someone from finding work in a given industry; a nonviolent conviction might not.
Additionally, a conviction for a violent (as opposed to a nonviolent) crime might trigger a much longer sentence if an individual commits another crime – even if the second crime is nonviolent or less serious.  
Because of these dramatic consequences that accompany a violent crime conviction recent scholarship has emphasized that focusing solely on “nonviolent offenders” won’t be enough to reduce prison populations drastically.  
To read more CLICK HERE

Sunday, June 19, 2016

Public assault on beleaguered judge 'threat to judicial independence'

California Judge Aaron Persky is still feeling a fierce backlash for sentencing Brock Turner to six months in jail and three years of probation for sexually assaulting a young woman at Stanford University. Jurors are refusing to serve under him. Santa Clara County prosecutors have successfully pushed to have him removed from a separate sexual assault case. More than a million people, inspired by the victim’s harrowing public account of the rape, have signed a petition to put him up for a recall election, a rare move that isn’t even allowed in most states.
But the judge is finding support from a number of public defenders, who argue that punishing him will ultimately hurt their own clients — most of them, unlike Turner, poor people of color.
A group of more than 70 defense attorneys, including many who have practiced before Persky, have put out their own petition, arguing that if Persky is forced out for what they consider a “reasonable, fair sentence,” it will scare other judges into giving more severe sentences, a dynamic they say contributes to high rates of incarceration.
“When we as a community reprimand or condemn a judge for engaging in such a holistic analysis and for exercising discretion, such efforts can have a chilling effect on judicial courage and compassion,” the letter states. Punishing him, the defenders explain, will “deter other judges from extending mercy and instead encourage them to issue unfairly harsh sentences for fear of reprisal.” The Santa Clara County Bar Association has also released a statement saying that removing Persky would be a “threat to judicial independence.”
To read more CLICK HERE

Saturday, June 18, 2016

GateHouse: America ‘faces a public health crisis of gun violence’

Matthew T. Mangino
GateHouse Media
June 17, 2016

In the aftermath of the horrific slaughter of patrons at an LGBT club in Orlando, Florida, the worst mass shooting in American history, we have learned that the homicide rate in major cities across the country also rose dramatically in 2015.

The homicide increase in the nation’s big cities in 2015 “was real and nearly unprecedented,” according to a report released this week by the National Institute of Justice. The report’s author, criminologist Richard Rosenfeld of the University of Missouri-St. Louis, said “homicide rates in a sample of 56 large U.S. cities rose by an average of 16.8 percent last year over 2014.”

This is not just a big city problem. Last year, The Atlantic reported that guns now kill more people under the age of 26 than automobiles accidents. Couple that with the 353 mass shootings in the United States in 2015 — depending on the definition you use — and the crisis comes into focus. According to the Dallas Morning News, using any definition, the likelihood of being caught in a mass shooting is exceedingly rare — but getting shot is not as rare as one might think. Each year in the United States, more than 32,000 people are killed, and more than 67,000 are injured by firearms.

As a result of Orlando’s catastrophic event and these alarming statistics the American Medical Association (AMA) has called gun violence a “public health crisis” and urged that Congress fund research into gun violence.

The AMA said this week it will press Congress to overturn 20-year-old legislation that blocks the Centers for Disease Control and Prevention from conducting research on gun violence.

That lack of research is attributed to language in a 1996 appropriations bill that the CDC, lawmakers, and the media interpret as blocking the agency from research on firearm deaths and injuries. Some suggest that while Congress put constraints on the CDC, it did not ban the study of gun violence. Instead, they say, senior CDC brass made the choice to restrict gun research, rather than risk political retribution. Whatever the reason, research is lacking and people are dying as a result.

Dr. Steven Stack, AMA president, told Reuters “Even as America faces a crisis unrivaled in any other developed country, the Congress prohibits the CDC from conducting the very research that would help us understand the problems associated with gun violence and determine how to reduce the high rate of firearm-related deaths and injuries.”

Why should every American be concerned about gun violence?

There is a real and growing problem with gun violence in this country. Ten big cities produced two-thirds of the homicide increase in 2015; they also experienced a far larger percentage increase than the 56 city sample. The percentage increases in the top 10 ranged from a frightening 90.5 percent increase in murders in Cleveland to a more modest, yet alarming, 12.9 percent in Philadelphia.

The average homicide increase over 2014 in the top 10 was 33.3 percent, compared with a 16.8 percent rise for the sample as a whole. According to the report, one-year increases of this magnitude in the nation’s large cities, although not unknown, are very rare.

The increase in 2015 was greater than 95 percent of the yearly increases these cities had experienced during the previous three decades. The report suggests that these increases, “If not unprecedented … certainly deserves further scrutiny.”

The AMA’s Stack sounded the alarm, “With approximately 30,000 men, women and children dying each year at the barrel of a gun in elementary schools, movie theaters, workplaces, houses of worship and on live television, the United States faces a public health crisis of gun violence.”

— 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 and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

Friday, June 17, 2016

Louisiana pays more to fight death row air conditioning than it costs to install

The state of Louisiana’s refusal to install air conditioning on death row has already cost taxpayers more than $1 million in legal bills, according to records obtained by The Associated Press.
The state could spend roughly the same money — and possibly much less — on an air conditioning system that would satisfy a federal judge’s order to protect death-row inmates from dangerous heat and humidity inside Louisiana State Penitentiary at Angola, reported The Advocate..
Instead, the corrections department and attorney general’s office have accrued at least $1,067,000 in expenses fighting the 3-year-old lawsuit filed on behalf of three inmates with medical problems. This tally, based on state documents provided in response to the AP’s public records requests, is the first public accounting of how much the case has cost taxpayers.
Most of the money has gone to private attorneys on opposing sides of the case, which the judge said could ultimately cost many more millions of dollars.
Expert witnesses and state contractors also have received tens of thousands of dollars. A list of expenses incurred by the prison itself adds up to more than $100,000, including an April 2014 payment of nearly $29,000 to a firm that was monitoring the heat and humidity every 15 minutes.

To read more CLICK HERE

Thursday, June 16, 2016

Colorado police must record felony confessions

About one quarter of wrongful convictions stem from false confessions, reported Reuters.
Now there’s a fix--at least in Colorado.
Gov. John Hickenlooper has signed into law a measure requiring all Colorado law enforcement agencies to electronically record interrogations in certain felony cases. Such recordings are a known and proven safeguard against wrongful convictions stemming from false confessions.
“This law will not only protect the innocent, it will strengthen good cases against the real perpetrators of crimes. This is a big win for all Coloradans,” said Amshula Jayaram, state policy advocate for the Innocence Project which, nationwide, has either helped secure or documented 342 wrongful convictions proven by DNA evidence.
The new law comes a year after Colorado enacted another innocence reform measure to reduce eyewitness misidentification – also a major factor leading to wrongful convictions. It requires more stringent identification procedures that offer protections against racial bias and faulty memory.
Both policies are the result of the Colorado Best Practices Committee, a two-year-old coalition of prosecutors, defense attorneys and Innocence Project policy advocates.
Several law enforcement agencies, including Denver Police, say they already record police interrogations. One of the reasons, says Jonathyn Priest, a former lieutenant with that department, is to protect “against any unjustified claims of police coercion.”
To read more CLICK HERE

Wednesday, June 15, 2016

WFMJ-TV: Lawrence County teen murder suspect released after seven years in custody

Jordan Brown was released back in to society  after a review hearing by the court. Brown was adjudicated delinquent for the murder of his father's girlfriend and her unborn child in 2009, according to WFMJ-TV.
Former Lawrence County District Attorney Matt Mangino tells 21 News, "Every six months you're required to have a review hearing and at that review hearing the court has to determine whether or not treatment, rehabilitation has been successful, and there could be some other form of supervision for the juvenile."

To watch the interview CLICK HERE

Attorney Dennis Elisco who represents the 18-year-old would only say that the ruling was favorable to Brown and the defense. He says the decision was an agreement by Lawrence County Juvenile Probation, the defense, the juvenile detention facility and the Attorney General's Office that prosecuted the case. Attorney Elisco would not comment further because it is a case still in the juvenile court system.
You may recall Brown was the 11-year-old arrested and charged with killing his father's fiance Kenzie Marie Houk and her unborn child back in 2009. The crime happened at the Wampum home the victim shared with Brown and his father. Houk was shot in the back of the head with a shotgun.
Initially, prosecutors wanted to put Brown on trial as an adult, but in 2012 Brown tried as a juvenile and was adjudicated delinquent - which is the juvenile court's equivalent of a guilty verdict.
Brown's attorney says he graduated from high school on Saturday, and will go on to further his education now.
Sources tell 21 News he is living outside of Lawrence County per the court order, and staying with a relative. He remains on supervised release.
"He's graduated from high school. He's going to attend college in the fall so I think those are factors that the court considered in terms of his overall rehabilitation," Attorney Mangino said.
The Pennsylvania teenager could have been held in a juvenile delinquent facility up until the age of 21.
"Well he could have been there until he was 21. Juvenile matters are closed so we're not exactly sure what was presented on behalf of Jordan Brown in terms of his rehabilitation and treatment. So you know we can only speculate that there's been some success," Former District Attorney Mangino said.
Even though Brown is a free man, his case is far from over, he's appealing his juvenile conviction and is asking for a new trial,

Tuesday, June 14, 2016

Bill to expand rights of sex abuse victims on shaky ground

A change to state law to retroactively give victims of child sexual abuse more time to sue may be unconstitutional, reported The Associated Press.  
A packed three-hour Senate Judiciary Committee hearing came against the backdrop of Roman Catholic Church scandals and a renewed push in Pennsylvania and other states to relax laws that prevent some child sexual abuse victims from suing for damages.
With victims of child sexual abuse looking on, Solicitor General Bruce L. Castor Jr. told senators that case law renders such a retroactive provision unconstitutional in Pennsylvania.
Castor was speaking for the state attorney general’s office after Attorney General Kathleen Kane, whose law license was suspended by the state Supreme Court last year, urged the panel in her seven-minute testimony to “get it right.”
The provision would have the effect of allowing child sexual abuse victims to file civil damages lawsuits, even if the window in current law that allows such a lawsuit had closed. It is contained in a wider bill to raise the age limit to give victims of child sexual abuse more time to sue and more time for prosecutors to bring charges against perpetrators. The bill passed the House overwhelmingly in April.
Under current law, people who say they were abused as children can bring civil lawsuits until they turn 30. The bill would raise that to 50. People who are over 30, but not yet 50, would be allowed to sue.
Sen. John Rafferty, R-Montgomery, said that he would support it and that the question of constitutionality in a “case of first impression” is best left to the courts to decide.
Rafferty also noted that Kane, following a March grand jury report on a scandal in the Altoona-Johnstown diocese, had urged lawmakers to suspend the civil statute of limitations or open a window to people who can no longer sue under current law.
To read more CLICK HERE

Monday, June 13, 2016

Louisiana legislature refuses to deal with JLWOP, courts overwhelmed

About 300 Louisiana inmates spending their lives in prison for murders committed as teens are turning to the courts after the Legislature failed to address their sentences, which were declared unconstitutional by the U.S. Supreme Court in January, reported The Advocate.
A bill that would’ve given the inmates a shot at parole after serving at least 30 years died at the end of the regular Legislative session amid eleventh-hour negotiations and an unrelated spat between the state House and Senate.
Each of the inmates will now need to petition district judges for new sentences individually, prosecutors and defense attorneys say. If district attorneys again seek sentences of life without parole, each defendant is entitled to a full-blown sentencing hearing, including expert testimony and evidence about their home lives, schooling and mindset at the time of the crimes, many of them decades in the past.
The court battles and hearings pose complex legal challenges that could drag on for years and cost an already strained legal system millions of dollars. With budgets stretched for many district attorneys and with local public defenders in many parishes turning away clients because of a lack of funding, many say the flood of cases couldn’t have come at a worse time.
To read more CLICK HERE

Sunday, June 12, 2016

GateHouse: Supreme Court: One cannot act as both accuser and judge

Matthew T. Mangino
GateHouse Media
June 10, 2016
In a stunning rebuke of a former chief justice of the Pennsylvania Supreme Court, the U.S. Supreme Court ruled this week that a judge who had “significant, personal involvement” in a case during his previous role as a prosecutor must recuse himself when the case comes before the bench.
Former Pennsylvania Chief Justice Ronald Castille was the district attorney of Philadelphia in 1986. Terrance Williams was tried for the robbery and murder of Amos Norwood. Castille, as the district attorney, was the final word on whether his office would seek the death penalty. He authorized seeking the death penalty and his office was successful, Williams was convicted and sentenced to death.
After numerous tries to get his conviction overturned, Philadelphia Court of Common Pleas Judge M. Teresa Sarmina, found that prosecutors in Castille’s office had failed to turn over evidence to Williams’ lawyer, and she vacated the death sentence five days before Williams was scheduled to be executed.
The case made its way to the Pennsylvania Supreme Court. At the time, Castille was chief justice. Williams moved to have Castille recuse himself from the case. The case dealt with a misconduct charge against his office; Castille as the district attorney had the sole authority to seek the death penalty against Williams; and he boasted as a candidate for the Supreme Court that he had sent 45 people to death row as district attorney, including Williams.
Castille refused to recuse himself and ultimately joined the opinion that reversed Sarmina’s decision.
Castille even wrote separately to make clear what he thought of the lower court’s ruling. In an opinion laced with withering criticism, Castille suggested Sarmina’s court had become “unmoored from its lawful duty” and accused Williams’ lawyers of sidestepping procedural rules and “pursuing an obstructionist anti-death penalty agenda.”
A defiant Castille told The Associated Press before the U.S. Supreme Court argument, “In Pennsylvania, we leave it up to the judge’s personal conscience ... I’ve always been confident that I can be fair and impartial.”
The U.S Supreme Court did not agree.
The Court made clear in a 1975 decision that “recusal is required when the likelihood of bias on the part of the judge “‘is too high to be constitutionally tolerable.’”
Williams argued that Castille’s actions violated the Due Process Clause of the Fourteenth Amendment by acting as both accuser and judge in his case. The Court was left with this fundamental question — was Castille’s authorization to seek the death penalty against Williams significant, personal involvement in a critical trial decision?
The Court concluded that it was and Castille’s failure to recuse himself from Williams’s case presented an unconstitutional risk of bias.
Anthony Kennedy, writing for a 5-3 majority, ruled “This risk so endangered the appearance of neutrality that his participation in the case ‘must be forbidden if the guarantee of due process is to be adequately implemented.’”
Castille remains defiant. After the high court’s ruling, Castille said the decision was an overreaction and would have wide-ranging effects throughout the country.
“Any county judge who had something to do with a murder case where they didn’t try it, but merely were administrators, those cases could all be in jeopardy by the lack of analysis by the Supreme Court,” Castille told The Legal Intelligencer. “I think it’s extremely short-sighted by the court.”
Castille’s prediction of an onslaught of challenges to prior convictions as a result of the court’s decision may well be overstated. As Justice Kennedy pointed out Pennsylvania, as most states, has a Code of Judicial Conduct that deals specifically with recusal, “The fact that most jurisdictions have these rules in place suggests that today’s decision will not occasion a significant change in recusal practice.”
However, this case is a pointed reminder that sometimes those rules can be inadvertently violated or intentionally ignored.
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 and follow him on Twitter at @MatthewTMangino.
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Thursday, June 9, 2016

Former PA Chief Justice Castille blasts U.S. Supreme Court Ruling

Former Pennsylvania Chief Justice Ron Castille who ruled on a case he once dealt with while serving as the Philadelphia district attorney has blasted as “completely wrong” today’s U.S. Supreme Court decision, which said he should have recused from the case, reported The Legal Intelligencer..
Justice Anthony Kennedy, writing for a 5-3 majority, ruled that “Under the due process clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a pros­ecutor in a critical decision regarding the defendant’s case.”
“No attorney is more integral to the accusatory process than a prosecutor who participates in a ma­jor adversary decision,” the ruling stated. “As a result, a serious question arises as to whether a judge who has served as an advocate for the State in the very case the court is now asked to adjudicate would be influenced by an improper, if inadvertent, motive to validate and preserve the re­sult obtained through the adversary process.”
Castille said that the ruling was an overreaction by the court that would have wide-ranging effects throughout the country.
“Any county judge who had something to do with a murder case where they didn’t try it, but merely were administrators, those cases could all be in jeopardy by the lack of analysis by the Supreme Court,” Castille said. “I think it’s extremely short-sighted by the court.”
The U.S. Supreme Court issued its decision in Williams v. Pennsylvania. The 5-3 ruling held that judges who had “significant, personal involvement” in a case during a previous role as prosecutor must now recuse when ruling on the case at a later stage.
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Are risk assessments racially biased?

Jesse Russell, PhD, chief program officer of the National Council on Crime & Delinquency, writes about risk assessments and sentencing for The Crime Report.  Below is an excerpt:

Risk assessment, at its best, can reduce bias in decision making. At its worst, it can propagate bias.
This is exactly why using risk assessment for sentencing in adult corrections is troubling. The adult corrections system is often racially biased and overwhelmingly punitive in nature. Risk assessments used at sentencing are being used to drive punishment as the risk score moves higher.
In a racially biased system, or in a society that has inequities, risk assessment will create a disproportionate impact on a particular group, in this case, African Americans.
The key fact we need to keep in mind is that before risk assessment has any chance to influence any individual’s corrections involvement, a long list of other factors has already established inequity in the system.

For example:
Federal housing policies like redlining made it difficult for some communities to sustain intergenerational economic prosperity;
Financial redlining created pockets of underserved communities with few resources that have been linked to higher arrest rates;
Policing practices have unfairly targeted black and African-American communities; 
Drug sentencing laws have had disproportionate impacts on black and African-American communities; 
Implicit biases affect how threatening African Americans are perceived to be by decision makers, as compared to whites. 
A history of institutionalized disenfranchisement of African-American communities has eroded the representativeness of democracy. 
The destructive myth of the African-American “super predator” has shaped criminal justice policy and practice. 

Until and unless these types of structural and implicit inequities are resolved and untethered from the adult corrections system, use of fair and equitable risk assessment tools will not be sufficient to transform adult corrections in the United States.
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Tuesday, June 7, 2016

U.S Supreme Court will hear racially charged death penalty case

The U.S. Supreme Court has agreed to hear the Texas case of Duane Buck, who was sentenced to die in 1997 for shooting his ex-girlfriend Debra Gardner and her friend Kenneth Butler, reported The Marshall Project. His small army of advocates don’t dispute his guilt but argue he is facing the harshest possible punishment primarily “because he is black.”
At his trial, Walter Quijano, a psychologist called by the defense, told jurors that Buck was more likely to commit a violent crime again because of his race. (Death sentences in Texas require that a defendant be judged a “continuing threat to society.”) Quijano later told The Texas Tribune he was describing a statistical relationship, and not a causal connection between race and violence, but Buck’s lawyers say his comments tainted the jury’s decision.
Since then, Buck’s attorneys at the NAACP Legal Defense Fund have turned his case into a symbol for the argument that the administration of the death penalty is rife with racial bias, part of the legacy of lynching and the ultimate manifestation of the racism that permeates the wider criminal justice system. Many capital defense attorneys see their work as an heir to the civil rights movement and a precursor to Black Lives Matter. “It is impossible to take race out of the death penalty because that’s what it’s for,” defense attorney Danalynn Recer said at an American Bar Association conference in Austin, Texas, last month. “We spare the people that we identify with.”

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Monday, June 6, 2016

Correctional control, more than prison

Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control, reported Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.
For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.
Incarceration rates do not always tell the complete story of the criminal justice system in each state. Notably, some of the states that are the least likely to send people to prison, such as Rhode Island and Minnesota, are among the most punitive when other methods of correctional control are taken into account. Other states that rank in the bottom half of incarceration rates nationwide, such as Ohio and Idaho, end up surpassing Louisiana — the state notorious for being the global leader in incarceration — in rates of correctional control. Georgia is punitive from any angle, as the only state that is both a top jailer and leader in probation.
We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.

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Sunday, June 5, 2016

'Death Row Marv' has bizarre and twisted impact on death penalty

“Death Row Marv” is a battery-powered toy electric chair that produces an electric buzzing sound with Marv’s eyes glowing red under a helmet attached to electrodes. After his “electrocution,” Marv asks, “That the best you can do, you pansies?”
Because the toy was on display in District Attorney Layla Zon’s office, it now figures prominently in a recently filed court motion that seeks to overturn a Newton County death sentence, reported the Atlanta Journal Constitution.
The motion contends Zon is “pathologically enthralled” with the death penalty and has pursued it with a fervor and zeal unmatched by any other district attorney in the state. Zon is DA of the Alcovy Judicial Circuit, which consists of Walton and Newton counties.
On Wednesday, Zon said she seeks the death penalty only in cases that warrant it. As for “Death Row Marv,” it was already in her office when she became district attorney in 2010 and she recently removed it.
“It was not something I purchased to decorate my office,” she said. “It was a left-behind trinket that became part of the woodwork. … I never sat and looked and fixated on it, like it was part of some medieval mindset.”
Marv was a fictional character created by comic book legend Frank Miller for the “Sin City” graphic novel series. Actor Mickey Rourke portrayed Marv in a 2005 movie adaptation. In “The Hard Goodbye,” Marv is sentenced to die in the electric chair and survives the first jolt — prompting the “you pansies” retort. His executioners then pull the switch again to finish the job.
The toy did not define her philosophy on capital punishment, Zon said. “But when the evidence and the law are not on their side, they launch ad hominem attacks.”
State capital defender Josh Moore, who filed the motion on behalf of condemned inmate Rodney Young, declined to comment. In 2012, Young was condemned to die by lethal injection for killing his ex-fiancĂ©e’s son.
An estimated 1,400 murder cases that were eligible for the death penalty have been closed statewide since Zon took office and fewer than 1 percent of them resulted in death sentences, the motion said. Young’s case was “considerably less aggravated” than the other death cases, the motion said, but his crime occurred in Newton County, where Zon turned down his offer to plead guilty in exchange for a sentence of life in prison without parole.
Since 2011, there have been 13 death-penalty trials statewide and four of them took place in Newton County, the motion said. During that same time frame, Georgia juries imposed five death sentences and two of them came from Newton.
“These statistics resoundingly confirm what Ms. Zon’s toy electric chair perhaps only suggests: that her fixation with the death penalty is completely out of step with the sensibilities and evolving standards of decency in this state,” the motion said.
The motion notes that the Georgia Supreme Court in 2001 found that death by electrocution caused excruciating pain with a certainty of “cooked brains and blistered bodies.”
“The idea of any elected state official memorializing such a barbaric (and unconstitutional) practice with an office ornament would be surprising and troubling,” the motion said. “The fact that the elected official at issue here is a constitutional officer entrusted with virtually unfettered discretion in deciding which defendants under her jurisdiction will be singled out for execution, and which will be spared, is cause for real concern.”
Zon said she now wishes she had “trashed” the toy when she first saw it.
As for the two death sentences she obtained, Zon said, jurors from both trials unanimously agreed the ultimate punishment was necessary. And the case involving Young was particularly heinous, she said.
Young killed Gary Lamar Jones because his mother had ended her relationship with Young, Zon said. On a Sunday in March 2008, Jones returned home from church and was overtaken by Young, who tied him to a chair.
Young bludgeoned Jones with a hammer, sliced open his throat with a knife and beat him so viciously he was found dead with an eyeball hanging out of his face, Zon said. “I think if confronted with those same facts, DAs in other counties would have sought death too.”
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Saturday, June 4, 2016

GateHouse: Sentencing schemes result in longer sentences for aging offenders

Matthew T. Mangino
GateHouse Media
June 3, 2016
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 this week by the Department of Justice, Bureau of Justice Statistics.
Research has shown that all but a small minority of criminals, even violent ones, mature out of crime before middle age, meaning that long sentences for aging offenders does little to prevent crime.
Homicide rates peak at age 19, according to The Marshall Project, while arrest rates for forcible rape peak at 18. Some crimes, such as vandalism, crest even earlier, at age 16, while arrest rates for forgery, fraud and embezzlement peak in the early 20s.
The BJS study, entitled “Aging of the State Prison Population, 1993-2013,” written by E. Ann Carson and William J. Sabo, found prison admissions for people 55 and older increased by 82 percent between 1993 and 2013.
The average sentence length for prisoners older than 55 was 82 months in 2014, higher than the 69 months for the 18- to 39-year-old prisoners, and the 71 months for the 40- to 54-year-old prisoners.
Research by Carnegie Mellon University Professor Alfred Blumstein has found that for the eight serious crimes closely tracked by the FBI — murder, rape, robbery, aggravated assault, burglary, larceny-theft, arson and car theft — a span of five to 10 years in the life of an offender is the typical duration during which these crimes are committed.
Property criminals, like burglars and car thieves, tend to stop in the 20s, while violent criminals are more likely to continue into their early 30s. Drug-crime careers can be lengthier, yet long sentences have had little effect on drug crime. “When you lock up a rapist, you take his rapes off the street. When you lock up a drug seller, you recruit a replacement,” Blumstein told The Marshall Project.
Why does society lock away those least likely to commit crime for the longest periods of time?
To start with, state and federal sentence guidelines have not kept up with evolving science and research. Most states, and the federal government, have guidelines for assisting the court in sentencing. Although, not bound by those guidelines, most judges fall in line.
Sentence guidelines are normally based on two factors — the seriousness of the offense and the defendant’s criminal history. The more serious the offense, combined with a long history of crime, the longer the sentence.
It is difficult for a 19-year-old to accumulate a long criminal record. However, a 40-year-old has had 22 years to collect criminal convictions.
There are actuarial tools — risk assessments — available that can predict the dangerousness of an offender. These tools target younger offenders who are more likely to offend — and more likely to be violent — than their older counterparts, yet the guidelines call for longer sentences for the aging offender.
Many court systems use risk assessments to enhance decisions regarding parole release, probation supervision and, increasingly, to determine pretrial detention and bail decisions.
Pennsylvania is about to take a step most states have resisted for adult defendants. According to, Pennsylvania is about to bring risk assessment into the sentencing equation.
The Pennsylvania Commission on Sentencing has been charged with incorporating a risk assessment tool into the state’s Sentencing Guidelines. When implemented the new guidelines could allow those considered low-risk offenders to get shorter prison sentences and those deemed high risk to spend more time in prison.
The result would be to keep those young violent offenders we fear behind bars and those aging offenders, we’re merely tired of and mad at, out of prison and off the public dole.

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 and follow him on Twitter at @MatthewTMangino.
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Friday, June 3, 2016

SCOTUS reverses Arizona death penalty

In Lynch v. Arizona, No. 15-8366, the Supreme Court reversed a death sentence in an unsigned opinion, saying the jury had not been told an important fact: that the only alternative to a death sentence was life without the possibility of parole, reported the New York Times.
The case concerned Shawn P. Lynch, who was convicted of the 2001 kidnapping and killing of James Panzarella, whom he met at a bar in Scottsdale, Ariz. Prosecutors argued that the death penalty was warranted because Mr. Lynch posed a risk of future dangerousness. But they blocked defense lawyers from telling the jury that the only alternative sentence would have kept Mr. Lynch in prison for life.
The Supreme Court ruled that a 1994 decision required the judge to tell the jury about the alternative or let defense lawyers do so. The unsigned opinion rejected the state’s argument that such statements were not required because executive clemency remained available and because the state Legislature may someday allow parole.
In dissent, Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., said the 1994 decision was wrong. Justice Thomas accused the majority of micromanaging state sentencing procedures and imposing “a magic-words requirement.”

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Thursday, June 2, 2016

SCOTUS refuses to review constitutionality of death penalty

The US Supreme Court refused a request to decide on whether the death penalty is unconstitutional. According to Jurist, Lamondre Tucker, who murdered his pregnant girlfriend in 2008 asked the court to grant certiorari in Tucker v. Louisianato rule on the constitutionality of the death penalty.
Justice Stephen Breyer dissented from the denial ofcertiorari, joined by Justice Ruth Bader Ginsburg. Breyer has long argued against the constitutionality of the death penalty as currently applied. Breyer noted that Tucker may have been wrongly sentenced, as the district in which he was sentenced imposes half the death sentences in Louisiana even though it only accounts for 5 percent of the state's population and homicides.

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Wednesday, June 1, 2016

Report: Some federal prisoners held longer than sentence called for

The federal prison system has a big problem with a small number, reported Fusion.
Between the years of 2009 and 2014, the Bureau of Prisons released 461,966 individuals back into society. But 1% of these individuals were released later than their sentences called for, found a BOP Inspector’s General review released this week.
That adds up to a total of 4,183 people held past their release dates. These people are “deprived of their freedom without just cause during the days they are over-serving,” reads the report. Further, the report notes that “when untimely late releases occur, the harm to the inmate can be significant and irreparable.”
“There were no ifs, ands or buts about it. It was basic arithmetic and somehow, they made a mathematical mistake,” Attorney Steve Meshbesher told Fusion.
Troubling as his case is, the report found, it is an extreme outlier. Of all the cases reviewed, only 152 cases—including a couple who were held over a year too long—were attributed to staffing errors.
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