Sunday, July 31, 2016

GateHouse: The death penalty promises to make a splash in campaign 2016

Matthew T. Mangino
GateHouse Media
July 20, 2016

The death penalty just became a whole lot more interesting with Hillary Clinton’s choice of running mate. By selecting Virginia Sen. Tim Kaine as her running mate, Hillary Clinton chose one of the few Democratic governors who, like her husband Bill Clinton, put people to death.

Clinton has said she “would breathe a sigh of relief if either the Supreme Court or the states themselves began to eliminate the death penalty.” According to Think Progress, Clinton was signaling for the first time that she would support a court ruling eliminating capital punishment.

With that said, Clinton supports the death penalty being an option for the federal government.

If Clinton’s stance on capital punishment seems awkward wait until you get a load of Kaine’s position. Kaine is opposed to the death penalty, yet he presided over 11 executions as governor of Virginia. The New York Times reported that Kaine’s handling of capital punishment shows that he recognizes — and expediently bends — to the reality of the Democratic Party and the state he represented.

Some death penalty opponents cast his decisions as political survival and ambition. “Tim is a politician,” Jack Payden-Travers, who ran Virginians for Alternatives to the Death Penalty, told the Times.

The machinations of the death penalty have the nation’s political parties abandoning their traditional stances on the ultimate punishment. For instance, in Ohio, with a GOP governor who was the last man standing in opposition to Donald Trump, the evolution of the death penalty has been nothing short of astonishing.

A little more than five years ago, Ohio was second only to Texas with 10 executions in a single year. This year, Ohio has not carried out a single execution. With GOP John Kasich as governor the state has not executed an inmate since Jan. 16, 2014.

Executions are not the only thing plummeting in Ohio. The number of capital murder indictments filed across the state since 2010 has dropped by 77 percent — just 19 capital indictments were brought in 2015, reported the Cleveland Plain Dealer.

However, that is not entirely surprising. Cuyahoga County — Cleveland’s home and the site of the Republican National Convention — had the second most capital convictions in the state, but there has been a changing of the guard.

In 2013, Cuyahoga County elected a new prosecutor. Tim McGinty is not only less likely to seek the death penalty but has written to the parole board on behalf of a condemned inmate declaring that under his leadership the office changed its approach to capital punishment.

Not unexpectedly, Donald Trump supports the death penalty. He made it clear he will expand the death penalty to those who kill police officers. His pick for vice-president Indiana Governor Mike Pence also supports the death penalty.

Where does America stand?

Nationally, a Gallup Poll conducted last fall found that 61 percent of the public still supports the death penalty although executions are at a 25-year low.

A number of states — Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York and Nebraska — have recently abandoned capital punishment. The governors of four other states — Colorado, Oregon, Pennsylvania and Washington — have imposed execution moratoriums.

As lethal injection drugs become more and more scarce, some states are looking for alternatives to lethal injection. Utah is considering bringing back the firing squad and Oklahoma allows for the use of a firing squad if lethal injection is unavailable.

Missouri is considering the gas chamber, and the electric chair is still available in eight states and has been used recently in Virginia and Florida. Pennsylvania apparently has an ample supply of execution drugs, although the state hasn’t involuntarily executed an inmate in over 50 years.

The death penalty — rarely imposed and even more rarely carried out — might just be an issue 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 and follow him on Twitter at @MatthewTMangino.

To visit column CLICK HERE

Saturday, July 30, 2016

My comments in The Legal Intelligencer on Mandatory Minimuns

The Legal Intelligencer
July 29, 2016

Is Retroactivity of 'Alleyne' Settled in Pa.?
By Max Mitchell

"I think there are going to be ample ­opportunities for the Supreme Court to ­revisit the issue," Matthew T. Mangino, a ­former Lawrence County District Attorney who now has a criminal defense practice, said.

To read more CLICK HERE

Police officers under threat of ambush

Are American law enforcement officers are under threat? That theory was fueled in speeches by Donald Trump and Rudy Giuliani at the Republican National Convention, reported the Marshall Project.
A report released by the National Law Enforcement Officers Memorial Fund — a “nonprofit organization dedicated to telling the story of American law enforcement and making it safer for those who serve” — will surely be marshalled to support those pronouncements. The group says 32 law enforcement officers were shot and killed between Jan. 1 and July 20, 2016, compared with 18 during the same span of 2015.
The report adds that there have been 14 “ambush killings” of unsuspecting officers so far this year, versus three in the same period last year. In March, after Jacai Colson, a police officer in Prince George’s County, Md., was shot and killed at a police station, Craig T. Floyd, the CEO of the memorial fund, said in a statement that the high numbers of police deaths “strongly point to a growing disrespect for the rule of law in our nation.”
Other researchers have not reacted with the same alarm. “That’s always a mistake to look at a small portion of time,” says Philip Stinson, a Bowling Green State University criminologist and former cop who collects and analyzes data on police officers. “The difference is that people are paying attention,” he said. “The stories used to be small and local, now they’re national and international.”
It will not be clear for several years whether the higher numbers for the first half of 2016 represent a trend. The number of law enforcement officers killed while on duty has fluctuated significantly by year, and percentages can look outsized because the total numbers are so small when set against the total number of sworn officers in the U.S. — 900,000, according to the memorial fund.
To read more CLICK HERE

Friday, July 29, 2016

President Reagan's would-be assassin John Hinckley to be released from custody

Thirty-five years after he shot President Ronald Reagan and three others outside a D.C. hotel, John W. Hinckley Jr. will be released from a government psychiatric hospital, reported the Washington Post.
The ruling ends the institutionalization of the one of the nation’s most notorious mental health patients.
Outrage over Hinckley’s acquittal in the 1981 shooting reshaped the insanity defense in courts across the country. The revelation that he had pulled the trigger to impress a movie star added obsession and celebrity to the case. And extraordinary television footage of the attack on the 40th U.S. president brought the event to millions of American homes.
In Wednesday’s court order, U.S. District Judge Paul L. Friedman wrote that Hinckley, 61, no longer poses a danger to himself or others and will be freed to live full time with his mother in Williamsburg, Va. His release could come as early as Aug. 5 and is subject to dozens of conditions, some of which could be phased out after a year if Hinckley adheres to them.
After an eight-week trial, a federal jury in Washington found Hinckley not guilty by reason of insanity in June 1982 of all 13 counts against him, setting off a sharp public backlash. The federal government and 38 states subsequently rewrote laws to raise the standard of proof required for the insanity defense, which is now rarely used and is even more rarely successful.
Some research has found that defendants successfully raise an insanity defense in 1 of 500 felony cases nationwide and that of that small pool, defendants are freed between 5 and 65 percent of the time depending on the jurisdiction, making Hinckley’s release all the more exceptional.
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Thursday, July 28, 2016

Sen. Kaine opposes the death penalty, presided over 11 executions

Sen. Tim Kaine (D-Va.), Hillary Clinton's running mate is opposed to the death penalty, yet he presided over 11 executions as governor of Virginia. The New York Times reported that "no issue has been as fraught politically or personally as the death penalty,"  Kaine's handling of capital punishment shows that he recognizes — and expediently bends to, his critics suggest — the reality of the Democratic Party and the state he represents. Kaine presided over 11 executions as governor, delaying some but granting clemency only once. He said that as governor, he was sworn to uphold the law. Kaine, 58, is well liked even by many Republicans. His centrist appeal is one reason Clinton added him to her ticket.
Some death penalty opponents cast his decisions as political survival and ambition. “Tim is a politician,” said Jack Payden-Travers, who ran Virginians for Alternatives to the Death Penalty when Kaine was governor. “Even though they say they’re not running for the next office, there’s always something coming up.” In a 2009 interview with the Virginian-Pilot, he said each clemency decision had been “very painful,” though his experience as a lawyer had prepared him. “I’ve eaten the last meal, and I’ve held the guy’s hand, and I’ve been to the Supreme Court, and I’ve been to the protests, and I know this very, very well,” he said. “And because of that, it was kind of demystified.”
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Wednesday, July 27, 2016

My comments in the Washington Post regarding Ohio lawyer jailed for contempt

Washington Post
July 25, 2106

Youngstown, Ohio Attorney Andrea Burton was held in contempt of court and arrested after wearing a Black Lives Matter pin to court.
Matt Mangino, a criminal defense attorney who used to be a prosecutor in Lawrence County, which borders the county where Burton was arrested, told The Post that a judge has the authority to determine whether certain signs are “political.”
The judge can also determine whether wearing a certain button would be a distraction in the courtroom, or give the impression of bias. Mangino said:

            Judges obviously have wide latitude in their courtroom with regard to decorum and things like that as long as their rules are reasonable. It’s not uncommon to have dress codes and other sorts of things. What you normally might find is a sign outside that says lawyers need to wear ties or no cutoffs or tank tops.
            With regards to protests or political statements, things that can be controversial if they’re displayed in a courtroom, it may be akin to wearing a Hillary Clinton button in the court — anything that could disturb the court or disturb the decorum within a courtroom or lead to either the impression of bias.
            But you have to balance that with First Amendment. I think that distinction is in the eye   of the beholder.  A judge obviously has great authority and latitude within his or her courtroom.  He is the beholder.  Black Lives Matter is so new, what does it mean to a judge?  And how does a judge determine what that means.

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Monday, July 25, 2016

Shaken-Baby Syndrome in question, court orders new trial

The Massachusetts Supreme Judicial Court ordered a new trial for a man convicted of violently shaking his girlfriend’s toddler in 2007, the second ruling in six weeks that vacated guilty verdicts in shaken-baby cases, reported the Boston Globe
Taken together, the two court rulings underscored the court’s view that the “shaken-baby syndrome” diagnosis has become controversial, and defense lawyers who fail to challenge it could be depriving their clients of a fair trial.
In one case, the Supreme Judicial Court said the defense lawyer should have presented medical evidence challenging prosecutors who had depicted the child as a victim of shaken-baby syndrome.
In its unanimous ruling, the court found that jurors should have heard about the possibility that the 2-year-old’s catastrophic eye and brain injuries — which left her blind in one eye, cognitively impaired, and moving around in a wheelchair — could have been caused by a short fall of about 3 feet, like one that might have occurred from a kitchen stool.
Doubts have grown about shaken-baby syndrome among defense lawyers and some professional groups in recent years. Three state medical examiners in less than two years, for example, backed off earlier rulings that a baby died of shaken-baby syndrome, choosing instead after hearing from defense experts to say the cause was “undetermined.”
Several organizations submitted briefs, including The Innocence Network, the American Civil Liberties Union of Massachusetts, and the Committee for Public Counsel Services.
Some medical organizations have pushed back, including the American Academy of Pediatrics,which fears marginal medical theories are gaining too much traction in the courts, allowing people who abuse infants to go free. In 2009, however, the academy did acknowledge the controversy brewing over the role that excessive shaking plays in creating extreme injuries.
The academy now tells doctors to use the term “abusive head trauma,” rather than shaken-baby syndrome, to indicate that traumatic blows to the head, not just shaking, are often behind the brain swelling and eye damage that afflict some 1,000 children each year, often causing permanent neurological damage if not death, the group said.
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Sunday, July 24, 2016

The GOP and Democrat party criminal justice platforms

The 2016 Republican and Democratic party platforms — the GOP’s approved last week, the Democrats’ still in draft form — swing hard to the right and left, reported The Marshall Project, 
That’s particularly clear this year on the subjects of crime and punishment. In the new Democratic party platform, the fingerprints of the Black Lives Matter movement and Bernie Sanders are apparent, in calls for independent investigations of police-involved shootings, more body cameras, and training in de-escalation. There is a declaration that “states that want to decriminalize marijuana should be able to do so.” There is also a call for the end of the death penalty, something President Obama and Hillary Clinton have not endorsed. Parts of the Democratic draft platform clearly repudiate the tough language their party embraced a generation ago, when their current candidate’s husband was president. The mother of Sandra Bland, who died at a Texas jail last year and became a symbol of the Black Lives Matter movement, is scheduled to speak at their convention next week in Philadelphia.
The Republican document reflects recent tensions in conservative circles. It includes the language of conservatives who call for reducing incarceration — influential Republican patrons like the Koch brothers, politicians like Rick Perry, Rand Paul and Newt Gingrich — but it also includes plenty of traditional invocations of law and order. An ambitious bipartisan sentencing reform effort in Congress, which Sen. Ted Cruz supported and then abandoned, has been whittled down and allowed to languish. And it was opponents of that bill including Senator Tom Cotton of Arkansas and Milwaukee Sheriff David Clarke who were in the lineup in Cleveland.
To review the parties criminal justice platforms CLICK HERE

Saturday, July 23, 2016

GateHouse: Why give criminals a second chance?

Matthew T. Mangino
GateHouse Media
July 22, 2016

Several years ago when Ohio enacted legislation that provided an opportunity for offenders to wipe clean their record, Governor John Kasich said, “Who here doesn’t need to be redeemed? We are giving people a second chance.”

Why do criminals need a second chance?

When ex-offenders are released from prison their convictions make it extremely difficult to support themselves because of government-imposed barriers to successful reentry. For instance, Ohio has 46 statutes that impose driver license suspensions. Each of those contributes to the difficulty offenders have in finding or keeping a job.

Criminal records are easily available to potential employers, landlords and other members of the community. As a result, ex-offenders are frequently denied access to employment, housing and other community resources.

The stigma of a criminal past is almost a self-fulfilling prophecy. An offender is convicted, goes to prison, gets out, can’t find legitimate work or housing, returns to crime, and back to prison. The cycle of recidivism is costly. The financial cost can be quantified. According to the Vera Institute, state prison population has grown 700 percent nationwide since the 1970s. The average cost to house an inmate for a year is $31,286. The human cost — equally enormous — cannot be broken down into tidy facts and figures.

Federal and state statutes prohibit certain types of employment for those convicted of a litany of offenses. Ex-offenders are statutorily prohibited from obtaining licenses for a number of occupations, according to the Urban Institute Reentry Roundtable.

Jobs requiring contact with children, some health care occupations and security firms are out-of-reach of ex-offenders. Many employers are simply reluctant to hire ex-offenders to positions that require handling money, merchandise, or where there is limited ability to monitor employee performance.

There are inherent obstacles for ex-offenders. Nearly 70 percent of all offenders are high school dropouts. In “Every Door Closed: Barriers Facing Parents with Criminal Records,” researchers found that about half of all offenders are “functionally illiterate.” Many offenders had limited, if any, employment history prior to incarceration and an absence of job skills.

However, a Texas study found that parolees who obtain employment spend more time crime-free in the community than unemployed parolees. The study further indicated that crime-free periods are indicative of positive behavioral changes that should be supplemented with clinical interventions to help offenders maintain the initial motivation associated with employment.

There are already some federal prohibitions against job discrimination regarding ex-felons. In the fall of 2009, the U.S. Equal Employment Opportunity Commission ruled that screening out job applicants with a criminal record that would not affect their job performance is illegal because it has the effect of excluding minorities and males — these groups have disproportionately higher conviction rates than the general population.

This past June, the Obama Administration announced a series of education and jobs programs designed to ensure that people who are returning from prison to the community are equipped with the skills and resources necessary to obtain employment and support their families.

The Administration’s efforts include the Second Chance Pell Program. The Department of Education and selected colleges and universities will partner with a number of federal and state correctional institutions to enroll roughly 12,000 incarcerated students in educational and training programs. The Department of Labor will provide $31 million in grants to provide job training and a path to employment after prison.

Policymakers are coming to terms with the human and financial toll of a failed, and in some instances, a non-existent prison reentry system. Positive steps are being taken, but the road is long and the time is short.

— 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, July 22, 2016

Police robots and lethal force: Who should make the decision?

The unprecedented decision to blast Micah Xavier Johnson, who had killed five officers in one of the worst ambushes against U.S. law enforcement in modern history, was praised as an innovative way to eliminate a threat without risking more officers’ lives, according to the Washington Post. 
Police said they came up with the deadly plan in 20 minutes after Johnson said that “the end was coming” and negotiations with him broke down. Their use of a robot is prompting debate about the role of remote-controlled robots in law enforcement and whether their use to deliver lethal force should be left to the discretion of police departments or regulated by state or federal governments. “We’ve crossed a new frontier, and we look out and we see an absence of law and policy,” said Peter Singer of New America, who has written on technology, security and robotics.
That void, some worry, has the potential to lead to overuse of machines that can be used to injure, or kill, suspects. 
“Technology can change things,” said Jay Stanley of the American Civil Liberties Union. “When things become easier they tend to become overdone, and sometimes you need to reassess rules.” Police officials said robots were simply another tool in the police arsenal, and their use was already subject to strict laws and regulations about lethal force. “Technology cannot override the legal standards governing police use of deadly force,” said Chuck Wexler of the Police Executive Research Forum. 
To read more CLICK HERE

Thursday, July 21, 2016

Bookman: The 14-Year-Old Who Grew Up in Prison

Thousands of Offenders serving life in prison without parole are getting fresh attention after recent rulings by the United States Supreme Court overhauled America's philosophy of juvenile sentencing, wrote Marc Bookman of the Atlantic Center for Capital Representation in Vice . Studies of developing brains have confirmed what every parent already knew: Children are prone to behaving recklessly and with very little thought to the consequences of their actions. Such studies, authored by leading medical and psychological experts and appearing in hundreds of legal opinions, have supported a new, less draconian approach to the incarceration of children.
In 2005, the US Supreme Court banned the death penalty for minors; in 2010, it ruled against mandatory life sentences for juveniles who committed non-homicide offenses; in 2012, it ruled against mandatory life sentences for juveniles under all circumstances; and this past January, it ruled that inmates already serving mandatory sentences should receive new sentencing hearings.
What this means, practically speaking, is that many young people who had previously been condemned to die in prison will now get a second look, and many will have a chance for freedom. The opportunity has prompted a retrospective examination of crimes that occurred decades ago, and of how these lost boys and girls have emerged from their years of incarceration.
The US Supreme Court barred the executions of 15-year-olds (in a 1988 case) and all minors in the landmark 2005 decision of Roper v. Simmons. That opinion, written by Justice Anthony Kennedy, directly addressed the fear expressed by some of other justices that children no longer fearing execution might suddenly begin committing murder at a higher rate. "[T]o the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person."
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Wednesday, July 20, 2016

Lawmakers seek to make violence against police a hate crime

Texas Governor Greg Abbott announced that he plans to propose a law providing for additional punishment for crimes against law enforcement officers, reported Jurist. The proposed Police Protection Act (PPA) would extend hate crime protections to law enforcement officers, organize a "campaign to educate young Texans on the value law enforcement officers bring to their communities" and "increase criminal penalties for any crime in which the victim is a law enforcement officer" even if the crime would not otherwise qualify as a hate crime. Abbott used assault with bodily injury as an example of a crime subject to the proposed enhancements, from the current third degree felony to a second degree felony under the proposal.
The Governor's announcement comes amid a national conversation about police use of force, particularly against black citizens, and subsequent retaliation. This week, Texas Senator John Cornyn introduced legislation that would elevate the penalties for killing, conspire to kill, or attempting to kill officers and judges. 
Last week, North Carolina's Governor Pat McCory signed [JURIST] into law a bill providing that police camera footage, including body camera footage, is not a matter of public record and proscribes the procedure for release of footage.
Louisiana Governor John Bel Edwards signed a "Blue Lives Matter" bill that also raises the penalties [JURIST] for crimes against police officers. Some have criticized the measures as being redundant since many laws already raise the penalties for crimes against police officers. 
To read more CLICK HERE

Tuesday, July 19, 2016

The future is now for sentencing in Pennsylvania

Officials in Pennsylvania, which has been slowly preparing to use risk assessment in sentencing for the past six years, are sensitive to these potential pitfalls, reported Bloomberg. The state’s experience shows how tricky it is to create an algorithm through the public policy process. To come up with a politically palatable risk tool, Pennsylvania established a sentencing commission. It quickly rejected commercial products like Compas, saying they were too expensive and too mysterious, so the commission began creating its own system.
To understand the algorithms being used all over the country, it’s good to talk to Richard Berk. He’s been writing them for decades. Berk, a professor at the University of Pennsylvania, is a shortish, bald guy, whose solid stature and I-dare-you-to-disagree-with-me demeanor might lead people to mistake him for an ex-cop. In fact, he’s a career statistician.
“Race was discarded immediately as an input. But every other factor became a matter of debate. When the state initially wanted to include location, which it determined to be statistically useful in predicting who would re-offend, the Pennsylvania Association of Criminal Defense Lawyers argued that it was a proxy for race, given patterns of housing segregation. The commission eventually dropped the use of location. Also in question: the system’s use of arrests, instead of convictions, since it seems to punish people who live in communities that are policed more aggressively.
Berk argues that eliminating sensitive factors weakens the predictive power of the algorithms. “If you want me to do a totally race-neutral forecast, you’ve got to tell me what variables you’re going to allow me to use, and nobody can, because everything is confounded with race and gender,” he said.
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Monday, July 18, 2016

Court: Use Stingray, need warrant

For the first time, a federal judge has suppressed evidence obtained without a warrant by U.S. law enforcement using a stingray, a surveillance device that can trick suspects' cell phones into revealing their locations, reported Reuters.
U.S. District Judge William Pauley in Manhattan ruled that defendant Raymond Lambis' rights were violated when the U.S. Drug Enforcement Administration used such a device without a warrant to find his Washington Heights apartment.
The DEA had used a stingray to identify Lambis' apartment as the most likely location of a cell phone identified during a drug-trafficking probe. Pauley said doing so constituted an unreasonable search.
"Absent a search warrant, the government may not turn a citizen's cell phone into a tracking device," Pauley wrote.
The ruling marked the first time a federal judge had suppressed evidence obtained using a stingray, according to the American Civil Liberties Union, which like other privacy advocacy groups has criticized law enforcement's use of such devices.
"This opinion strongly reinforces the strength of our constitutional privacy rights in the digital age," ACLU attorney Nathan Freed Wessler said in a statement.
It was unclear whether prosecutors would seek to appeal. A spokeswoman for Manhattan U.S. Attorney Preet Bharara, whose office was prosecuting the case, declined to comment.
Stingrays, also known as "cell site simulators," mimic cell phone towers in order to force cell phones in the area to transmit "pings" back to the devices, enabling law enforcement to track a suspect's phone and pinpoint its location.
Critics of the technology call it invasive and say it has been regularly used in secret to catch suspect in violation of their rights under the U.S. Constitution.
The ACLU has counted 66 agencies in 24 states and the District of Columbia that own stingrays but said that figure underrepresents the actual number of devices in use given what it called secrecy surrounding their purchases.
A Maryland appeals court in March became what the ACLU said was the first state appellate court to order evidence obtained using a stingray suppressed. Pauley's decision was the first at the federal level.
The U.S. Justice Department in September changed its internal policies and required government agents to obtain a warrant before using a cell site simulator.
To read more CLICK HERE

Sunday, July 17, 2016

GateHouse: Opioid abuse out of control, but not new

Matthew T. Mngino
GateHouse Media
July 15, 2016

Drug overdoses are the leading cause of accidental death in the United States. According to the Center for Disease Control there were 47,055 lethal drug overdoses in 2014.

Opioid addiction is the driving force behind the crisis. More than 194,000 people have died since 1999 from abusing opioid painkillers, including OxyContin. The prescription drug epidemic is also fueling a heroin crisis that is shattering communities, taxing law enforcement and draining local government coffers.

The opioid epidemic is not new. In 2001, as a prosecutor in western Pennsylvania, I wrote an op-ed for the Pittsburgh Post-Gazette about the scourge of OxyContin abuse. At the time, my office led a series of workshops with the manufacturer of OxyContin, Purdue Pharma, to educate health care providers, law enforcement and the public about the potential dangers of opioid abuse.

OxyContin was approved by the government in 1995 and launched for use in the U.S. in 1996. FDA approval was granted to Purdue because of the drug’s 12-hour time release component. At the time those suffering from chronic pain only had temporary relief every four hours.

There were also concerns at the time that pain killers were being abused. OxyContin’s time-release component would stop the drug’s recreational use by eliminating the possibility of a high.

The exact opposite occurred. Within a couple of years, OxyContin exploded on to the illicit drug scene. The time-release aspect of OxyContin was easily defeated by chewing or crushing the tablet--causing a powerful high.

As the abuse of OxyContin became overwhelmingly evident, Purdue Pharma, the manufacturer of OxyContin, began to track the surge in prescriptions, according to the Los Angeles Times.

Purdue had the opportunity to stop the supply of OxyContin to offices and clinics across the country that were serving as nothing more than pill mills generating enormous profit and providing very little medical care.

The Times investigation found that, for more than a decade, Purdue collected extensive evidence suggesting illegal trafficking of OxyContin and, in many cases, did not share it with law enforcement or cut off the flow of pills. A former Purdue executive, who monitored pharmacies for criminal activity, acknowledged that even when the company had evidence of pharmacies colluding with drug dealers, it did not stop supplying those stores.

Purdue knew about many suspicious doctors and pharmacies from prescribing records, pharmacy orders, field reports from sales representatives and, in some instances, its own surveillance operations, according to court and law enforcement records discovered by the Times.

The penalty for this type of conduct? The Slacker family, owners of 100 percent of Purdue Pharma, was listed in Forbes this year as one of the richest families in America. As the result of OxyContin, the Slackers are worth more than $14 billion.

What being done to combat the opioid epidemic?

This summer, New York Governor Andrew Cuomo signed legislation to combat the opioid and heroin crisis by increasing access to treatment, expanding community prevention strategies, and limiting over-prescribing of opioids in his state.

Pennsylvania Governor Tom Wolf recently committed $34 million to address the state’s opioid abuse crisis. Wolf said his action is “a start” as the state begins to explore and understand the scope of the opioid epidemic.

This week, Congress gave final passage to legislation that will help communities’ combat opioid and heroin abuse. The bill will provide grant programs for addressing opioid abuse and treatment.

“This is a historic moment, the first time in decades that Congress has passed comprehensive addiction legislation, and the first time Congress has ever supported long-term addiction recovery,” Ohio Senator Rob Portman, one of the bill’s sponsors, told Roll Call.

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

To visit the column CLICK HERE

Saturday, July 16, 2016

PLW: U.S. Supreme Court Tackles Series of Criminal Controversies

Matthew T. Mangino
The Pennsylvania Law Weekly
July 15, 2016
The momentum for criminal justice reform, which was so promising in Congress early in the year, has fizzled out.
The Sentencing and Reform Act was to update federal mandatory minimum sentences, among other things.
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, told, "I don't see how it gets done before" July 15, referencing the day the senators depart from Washington and won't return until after Labor Day. "It's a real big disappointment to me." After Labor Day there is little chance that anything will get done with the election looming.
As a result, this year any criminal justice "reform" comes the old-fashioned way—through the U.S. Supreme Court. This spring, the court released a flurry of criminal justice decisions, somewhat obscured by titillating decisions on abortion, immigration and affirmative action.
The high court did delve into a couple of jury-related questions, a couple Fourth Amendment cases, sentencing and a corruption decision.
This is by no means an exhaustive list of the court's treatment of criminal justice issues, but an examination of a handful of decisions that might be enlightening.
In Foster v. Chatman, 578 U.S. (2016), decided on May 23, the court reversed a capital murder conviction, finding that the Georgia prosecutors' "two peremptory strikes on the basis of race are two more than the Constitution allows."
Timothy Foster was 18 years old when he was arrested for the murder of a 79-year-old widow and former elementary school teacher. Foster is African-American, while the victim was white. Turned in by his girlfriend, Foster admitted to the crime. But there were questions about his limited-intellectual capacity and whether he had an accomplice.
When the case went to trial all of the black members of the jury pool were removed. Foster's trial came only a year after the court's landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson was intended to eliminate racial bias in jury selection.
The 1986 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.
During jury selection in Foster's case, one black juror was dismissed for cause, and prosecutors eliminated the other four with peremptory challenges, offering a variety of nonracial reasons accepted by the presiding judge.
In 2006, nearly 20 years after his conviction, Foster's lawyers obtained the prosecution team's jury selection notes under the Georgia Open Records Act. The name of each potential black juror was highlighted on four different copies of the jury list and the word "black" was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as "B#1," "B#2," and "B#3."
The high court granted Foster a new trial.
In Lynch v. Arizona, 578 U.S. ___ (2016), decided May 31, another capital case, the state put the defendant's future dangerousness at issue and acknowledged that his only alternative sentence to death was life imprisonment without parole. The Arizona high court concluded that the defendant had no right to inform the jury of his parole ineligibility. The U.S. Supreme Court disagreed.
In Simmons v. South Carolina, 512 U. S. 154 (1994), a capital defendant's future dangerousness was at issue, and the only sentencing alternative to death available to the jury was life imprisonment without possibility of parole. The court ruled that the due process clause entitles the defendant to inform the jury of his parole ineligibility, either by a jury instruction or in arguments by counsel.
A Pennsylvania case was prominently among the high court's decisions this spring. In Williams v. Pennsylvania, 579 U.S. ___ (2016), decided June 9, the court held that due process required that Pennsylvania Supreme Court Chief Justice Ronald Castille recuse himself from the capital defendant's post-conviction challenge where Castille had been the district attorney who gave his official approval to seek the death penalty in the case.
The court stated: "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." It went on to hold that the justice's authorization to seek the death penalty against the defendant constituted significant, personal involvement in a critical trial decision.
In Utah v. Strieff, 579 U.S. ___ (2016), decided June 20, the defendant was stopped along the street without reasonable suspicion. The defendant complied and the officer relayed the defendant's information to a police dispatcher, who reported that the defendant had an outstanding arrest warrant for a traffic violation. The officer then arrested the defendant pursuant to the warrant. When a search incident to arrest revealed methamphetamine and drug paraphernalia, the defendant was charged and convicted.
The Utah Supreme Court reversed and held that the evidence was inadmissible.
The U.S. Supreme Court reversed. The court began by noting that it has recognized several exceptions to the exclusionary rule, three of which involve the causal relationship between the unconstitutional act and the discovery of evidence. "Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."
The court also took up an alcohol-testing incident to an arrest for driving under the influence. In Birchfield v. North Dakota, 579 U.S. ___ (2016), decided June 23, the court held that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. The court concluded: "Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving."
The U.S. Supreme Court overturned the political corruption conviction of former Virginia Gov. Robert F. McDonnell.
McDonnell received more than $175,000 in loans and gifts—including a Rolex watch, vacations and partial payment of his daughter's wedding reception from a Richmond businessman.
The gifts did not violate Virginia law, but federal prosecutors alleged that in exchange for the gifts, McDonnell engaged in official acts to arrange meetings for the businessman and hosted a reception at the governor's mansion for a new product launch.
Although Chief Justice John G. Roberts Jr. tried to distance himself from the conduct of McDonnell, his concern was clear—the term "official acts" could cover almost any action a public official takes.
In McDonnell v. United States, 578 U.S. __ (2016), decided June 27, Roberts wrote, "Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time." He continued, "The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm."
In Betterman v. Montana, 578 U.S. __ (2016), decided May 19, the Sixth Amendment's speedy trial guarantee does not apply to the sentencing phase of a criminal prosecution. The defendant argued that the 14-month gap between conviction and sentencing violated his speedy trial right. For inordinate delay in sentencing, although the speedy trial clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the due process clauses of the Fifth and Fourteenth amendments.
Finally, for those foolish enough to think that reform could somehow be spurred by the U.S. Supreme Court there is Taylor v. United States, 578 U.S. __ (2016), decided June 20. Instead of limiting the federal government's reach in local criminal matters, the court expanded the reach.
As summarized by, Taylor holds that, "Because the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce 'over which the U.S. has jurisdiction,' the prosecution in a Hobbs Act robbery case satisfies the act's commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds."
So much for reform, prosecutors will be further clogging federal prisons with local thugs who prey on local drug dealers. 

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg Garbett Kelly & George. His book "The Executioner's Toll," 2010, was released by McFarland Publishing.

Friday, July 15, 2016

Georgia carries out execution ending two month lull nationwide

The 15th Execution of 2016
Georgia executed John Wayne Conner on July 14, 2016. He was convicted of beating a friend to death during an argument after a night of partying more than three decades ago, according to The Associated Press.
Conner, 60, was put to death by injection of the barbiturate pentobarbital at the state prison in Jackson. He was convicted of fatally beating his friend J.T. White during an argument after a night of drinking and smoking marijuana in January 1982.
The execution was the sixth in Georgia this year and the most in a calendar year in the state since the death penalty was reinstated nationwide in 1976. Georgia executed five inmates last year and in 1987.
Only five states have carried out death sentences this year for a total of 14. Aside from the five already put to death in Georgia, six inmates have been executed in Texas and one each in Alabama, Florida and Missouri.
The Georgia Board of Pardons and Paroles on Wednesday declined to grant him clemency. The board is the only entity in Georgia authorized to commute a death sentence.
The Georgia Supreme Court in a 5-2 decision on Thursday rejected Conner's appeal of a lower court ruling and declined to halt his execution. Conner's attorneys had argued he was ineligible for execution because he's intellectually disabled, that his trial attorney was ineffective and that executing him after 34 years on death row would amount to unconstitutional cruel and unusual punishment.
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Thursday, July 14, 2016

Machine guns not protected by Second Amendment

A federal appeals court has upheld a federal law that generally bars the possession of machine guns.
Machine guns are not protected by the Second Amendment, the New Orleans-based 5th U.S. Circuit Court of Appeals ruled on June 30, reported the ABA Journal.
The plaintiff wanted to build an M-16 machine gun from components of the AR-15. The M-16, which is used in the U.S. military, is defined as a machine gun because it fires more than one round per trigger action, the appeals court explained in a footnote. The AR-15 is a semi-automatic weapon that fires only one round per trigger action.
The 5th Circuit based its decision on a reading of District of Columbia v. Heller, the Supreme Court decision that found the Second Amendment protects an individual right to own a gun.
Heller distinguished between guns used in the military and those possessed at home for self-defense, the appeals court said. Only the second category has Second Amendment protection, though it may sometimes overlap with the first, the appeals court found.
“The Second Amendment does not create a right to possess a weapon solely because a weapon may be used in or is useful for militia or military service,” the appeals court said.
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Wednesday, July 13, 2016

Guns a concern at Republican convention in Cleveland

The city of Cleveland is concerned about visitors and protesters taking firearms downtown during next week's Republican National Convention, where thousands of people plan to demonstrate, reported the New York Times. 
Those who legally own guns can take them into the 1.7-square-mile area where events and protests connected to the convention will be held. Protesters will flood the city, with causes ranging from white supremacy to Palestinian rights. “Obviously, everybody is on edge after Dallas,” said Brian Kazy of the Cleveland City Council's Safety Committee. Kazy said he had never been concerned about Ohio’s open-carry laws, according to The Crime Report.  “If you had some mass confusion, even if you had a civilian who was carrying who would attempt to help out, I think the mentality of any law enforcement officer would see an individual with a gun, would see an individual possibly shoot and would react to that,” he said.
Officials are promising increased security during the Republican gathering. Within the convention area, the Secret Service will set up a smaller perimeter near the Quicken Loans Arena that will have stricter security and prohibit guns. 
Delegates to the convention will not be able to take guns onto the convention floor. Given the recent tumult around the nation, some leaders are anxious that the environment could turn dangerous. One group of current and former members of the military called the Oath Keepers, who have shown up at other tense events heavily armed, plan to carry weapons into Cleveland. Stephen Loomis, president of the Cleveland Police Patrolmen’s Association, said he strongly supports citizens’ rights to bear arms, but he is urging people not to take their guns near Cleveland’s downtown during the convention. “The last thing in the world we need is anybody walking around here with AR-15s strapped to their back,” he said.
Tim Selaty, director of operations at Citizens for Trump, said his group was paying for private security to bolster the police presence. While Mr. Selaty said people should be allowed to carry guns, his group is banning long weapons from a rally in a park it is hosting on Monday.
“We’re going to insist that they leave any long arms out for sure because we believe that will make sure our people are safer,” he said. “In other words, no AR-15s, no shotguns or sniper rifles — all of the things that you would think somebody would bring in to hurt a lot of people in a very short time.”
But, he said, he does generally believe civilians being armed make for a safer environment and that he “can’t blame” people who are scared because of Dallas and want to come to Cleveland armed.
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Tuesday, July 12, 2016

Did OxyContin manufacturer know of widespread abuse?

More than 194,000 people have died since 1999 from overdoses involving opioid painkillers, including OxyContin, reported the Los Angeles Times. Nearly 4,000 people start abusing those drugs every day, according to government statistics. The prescription drug epidemic is fueling a heroin crisis, shattering communities and taxing law enforcement officers who say they would benefit from having information such as that collected by Purdue Pharma.
A private, family-owned corporation, Purdue Pharma has earned more than $31 billion from OxyContin, the nation’s bestselling painkiller.  Purdue and three of its executives pleaded guilty to federal charges of misbranding OxyContin in what the company acknowledged was an attempt to mislead doctors about the risk of addiction. It was ordered to pay $635 million in fines and fees.
A Los Angeles Times investigation found that, for more than a decade, Purdue collected extensive evidence suggesting illegal trafficking of OxyContin and, in many cases, did not share it with law enforcement or cut off the flow of pills. A former Purdue executive, who monitored pharmacies for criminal activity, acknowledged that even when the company had evidence pharmacies were colluding with drug dealers, it did not stop supplying distributors selling to those stores.
Purdue knew about many suspicious doctors and pharmacies from prescribing records, pharmacy orders, field reports from sales representatives and, in some instances, its own surveillance operations, according to court and law enforcement records, which include internal Purdue documents, and interviews with current and former employees.

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Monday, July 11, 2016

Violence in Chicago is reaching epidemic proportions

Violence in Chicago is reaching epidemic proportions, wrote Heather Mac Donald in the City Journal. In the first five months of 2016, someone was shot every two and a half hours and someone murdered every 14 hours, for a total of nearly 1,400 nonfatal shooting victims and 240 fatalities. Over Memorial Day weekend, 69 people were shot, nearly one per hour, dwarfing the previous year’s tally of 53 shootings over the same period. The violence is spilling over from the city’s gang-infested South and West Sides into the downtown business district; Lake Shore Drive has seen drive-by shootings and robberies.
The growing mayhem is the result of Chicago police officers’ withdrawal from proactive enforcement, making the city a dramatic example of what I have called the “Ferguson effect.” Since the shooting of Michael Brown in Ferguson, Missouri, in August 2014, the conceit that American policing is lethally racist has dominated the national airwaves and political discourse, from the White House on down. In response, cops in minority neighborhoods in Chicago and other cities around the country are backing off pedestrian stops and public-order policing; criminals are flourishing in the resulting vacuum. (An early and influential Ferguson-effect denier has now changed his mind: in a June 2016 study for the National Institute of Justice, Richard Rosenfeld of the University of Missouri–St. Louis concedes that the 2015 homicide increase in the nation’s large cities was “real and nearly unprecedented.” “The only explanation that gets the timing right is a version of the Ferguson effect,” he told the Guardian.)
Chicago mayor Rahm Emanuel warned in October 2015 that officers were going “fetal,” as shootings in the city skyrocketed. But 2016 has brought an even sharper reduction in proactive enforcement. Devastating failures in Chicago’s leadership after a horrific police shooting and an ill-considered pact between the American Civil Liberties Union and the police are driving that reduction. Residents of Chicago’s high-crime areas are paying the price.
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Sunday, July 10, 2016

40% of people killed by police in Massachusetts mentally ill

More than 40 percent of people killed by Massachusetts police over the last decade were suicidal, mentally ill, or showed clear signs of crisis, a Boston Globe investigation shows. The deaths are the heavy human toll of an ongoing collision between sick people failed by the mental health care system and police who are often poorly equipped to help, but are thrust into this dangerous role.
The Globe found that 31 of the 74 men and women who were fatally shot between 2005 and 2015 were suicidal or showing clear signs of mental illness, based on interviews, court records, and law enforcement and media reports. Police shot and injured another 24 people who were apparently mentally ill or suicidal in the same period. One third of all police shootings — 55 in all, fatal and nonfatal — involved an apparent mental health crisis.
No one can say how many deaths and injuries might have been prevented if everyone who was shot had received the mental health care they needed. But in many of the cases studied by the Globe, there were opportunities to head off the showdown with police: cries for help that went unheeded; hospitals that discharged patients too quickly; overwhelming responsibility left to struggling people and their desperate families.
It is a problem that has grown steadily worse for police since the 1970s, as Massachusetts shut down 10 psychiatric hospitals and returned thousands of mentally ill people to their communities ­— often with grossly inadequate outpatient care.
Deinstitutionalization allowed many people with mental illness to lead happier, more productive lives, but it also meant many more mental health crises unfolded in suburban living rooms and on city streets instead of on the grounds of state hospitals. Without adequate community-based mental health care to address them, complex problems escalate until they finally fall to the police.
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Saturday, July 9, 2016

GateHouse: The 40th anniversary of the modern death penalty

This month marks the 40th anniversary of the return of the death penalty. From 1972 to 1976 America was without capital punishment. In 1972, the U.S. Supreme Court decided Furman v. Georgia. The court ruled that the death penalty was unconstitutional, violating the Eighth Amendment ban against cruel and unusual punishment.
At the time, U.S. Supreme Court Justice Potter Stewart wrote, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” A year earlier, the justices had upheld the constitutionality of the death penalty under the due process clause of the Fourteenth Amendment. According to The Marshall Project, Furman seemed headed in the same direction until Stewart struck a deal with Justice Byron White, who’d been on the fence about the death penalty. Stewart agreed to abandon his moral statement against the death penalty and would instead say that the problem with capital punishment was excessive arbitrariness. The deal resulted in a surprising 5-4 decision overturning the death penalty.
The decision forced state legislatures to review the death penalty and eliminate the arbitrary, capricious and racially discriminatory aspects of capital punishment. The Court suggested that states establish criteria to direct and limit the circumstances in which the death penalty would apply and to overhaul the sentencing process.
In July 1976, the U.S. Supreme Court in Gregg v. Georgia, found that three of five states that amended their death penalty statute — Georgia, Florida and Texas — did conform to the directives of Furman. The death penalty was back.
The first man executed after Gregg was Gary Gilmore of Utah. Gilmore wanted to be executed, and the state of Utah granted his wish. He was executed by firing squad on January 17, 1977. Since Gilmore, more than 1,400 men and women have been executed nationwide. Texas alone is responsible for more than one-third of those executions.
Executions steadily increased through the 1990s and then began to recede again to the present. Public support for the death penalty reached its lowest point in 1966, when only 42 percent of Americans supported the death penalty. During the 1990s as crime rates soared, support for the death penalty rose to as high as 80 percent. Since then, support for the death penalty has remained steady just above 60 percent, according to Gallup.
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).
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.
Between 1973 and 2013, only 16.1 percent of people sentenced to death were ultimately executed. In other words, the chance of being executed — among defendants sentenced to death — is only about one in six. The probability of receiving the death penalty in the U.S. is miniscule. The Centers for Disease Control reported 16,121 homicides in 2013. There were 39 executions — an execution rate of approximately a quarter of one percent.
The decision in Gregg failed in limiting the circumstances in which the penalty may be applied. A California study found that 87 percent of murders are potentially eligible for the death penalty under the state’s definitions. In Colorado, the rate is 91.1 percent.
My book, “The Executioner’s Toll 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States,” examined every execution in 2010. My research led to the conclusion that the death penalty was once again arbitrary.
Arbitrary — as it was in 1972 — in the manner in which it is imposed. And today, arbitrary in the manner in which it is carried out. Twenty-one, or fewer, executions in a single year out of a pool of nearly 3,000 men and women on death row is certainly arbitrary and capricious.

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, July 8, 2016

Texas cancels execution due to drug purity testing

The scheduled July 14 execution of a Houston man, Perry Eugene Williams, convicted of abducting and killing a Texas Medical Center student was delayed indefinitely this week, after state officials failed to meet a deadline for obtaining test results on the purity of the lethal injection drugs, reported the Houston Chronicle.
Williams was one of only seven executions, all in Texas, to be carried out before the end of 2016. With 14 executions so far this year, 2016 looks to have the fewest executions since 1992.
If this issue with regard to drug purity is not resolved in Texas, there may not be another execution in the United States this year.
To read more CLICK HERE

Thursday, July 7, 2016

California again has death penalty on the ballot, repeal measure failed in 2012

When California voters decide in November whether to abolish the death penalty or speed it up, the rival measures will compete in a political climate that appears to be shifting, gradually, against capital punishment, reported the San Francisco Chronicle.
The ballot this November will include Prop. 62, to repeal the death penalty, and Prop. 66, a counter-initiative backed by prosecutors to reduce the time between sentencing and execution, in a state where condemned prisoners typically spend more than two decades on Death Row. Among other things, it would limit appeals and require the state Supreme Court to decide capital cases within five years of sentencing. If both measures pass, only the one with the most votes will become law.
Nationally, death sentences and executions are declining, and the Democratic Party seems prepared to oppose the death penalty for the first time in 44 years. In California, both U.S. Senate candidates oppose executions, and at least one prominent death penalty supporter is keeping a low profile.
For decades in California, the death penalty has been a subject that candidates have gladly embraced if they supported it. If not, they mostly have tried to change the subject.
When Gov. Jerry Brown vetoed a death penalty bill in 1977, he was overridden by a Legislature with a Democratic majority. The next year, voters approved an expansion of the law by a 71 percent majority.
Republican state Sen. George Deukmejian highlighted his role as the bill’s author in his successful campaigns for state attorney general in 1978 and for governor in 1982 and 1986. And voters in 1986 removed Chief Justice Rose Bird and two of her state Supreme Court colleagues, Justices Cruz Reynoso and Joseph Grodin, largely because of their decisions to overturn death sentences.
As recently as November 2012, a week before a vote to repeal the death penalty in California, Deukmejian appeared at a news conference urging voters to defeat the measure. By his side were two other former governors, Republican Pete Wilson and Democrat Gray Davis, who during his tenure had appointed only judges who favored the death penalty.
The repeal measure lost, 52 to 48 percent.
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Wednesday, July 6, 2016

Chicago judges ignore risk-assessment in bail decisions

Judges in Chicago's Cook County routinely make bail decisions for crime suspects contrary to what the court's new risk-assessment system calls for, The Crime Report.
A review of more than 1,500 cases this year obtained by the Chicago Sun-Times, found that he Cook County sheriff’s office showed judges’ bail decisions differed from the guidelines about 85 percent of the time. The sheriff’s study found bail decisions were “inconsistent,” even when defendants’ backgrounds and the charges they faced were factored in. The 90-page study, the results of which Chief Judge Timothy Evans disputes, found that the amount and conditions of bail varied widely depending on which judge was presiding on a given day.
 Illinois Supreme Court Justice Anne Burke, who pushed for the new system, said recently, “One of the key problems with our bond court judges is not just their unwillingness to apply the risk assessments when making their decisions but ... that they are not being sufficiently trained and supervised and are not being held accountable.”
The assessments assign a risk-level number that corresponds to a recommended bail. One aim was to identify more nonviolent suspects who qualify for release pending trial. Pat Milhizer, a court spokesman, says that in the three months before the assessments began, 52 percent of defendants in nonviolent, non-weapons felony cases were released; from January through May, that rose to 67 percent. Milhizer says training for judges doesn’t replace sound judgment. He points to a case in which the assessment system recommended releasing a man charged with gun possession even though he was accused of pointing the gun at someone and pulling the trigger twice, without it firing. Despite the recommendation, the judge set a significant bail.
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Tuesday, July 5, 2016

Justice Sotomayor champion of Fourth Amendment rights

U.S. Supreme Court Justice Sonia Sotomayor has emerged as a consistent and outspoken voice in favor of broad Fourth Amendment rights. Here's a brief look at some of Sotomayor's most notable actions in recent Fourth Amendment cases, courtesy of Reason magazine.
Missouri v. McNeely
At issue in this 2013 dispute is whether the Fourth Amendment stands in the way of the police obtaining a warrantless and nonconsensual blood test from a suspected drunk driver. Writing for the majority, Sotomayor held that the amendment is indeed such a bulwark. "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search," Sotomayor wrote, "the Fourth Amendment mandates that they do so."
Navarette v. California
In this 2014 case a majority of the Supreme Court said that no Fourth Amendment violation took place when the police conducted a traffic stop and resulting drug bust based solely on information obtained from an anonymous telephone tip. "The Court's opinion serves up a freedom-destroying cocktail," Justice Antonin Scalia seethed in dissent. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That troubling scenario, Scalia wrote, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures." Sotomayor signed on to Scalia's dissent.
Rodriguez v. United States
At issue in this case was whether a police officer "unnecessarily prolonged" an otherwise legal traffic stop when he called for backup in order to walk a drug-sniffing dog around the stopped vehicle. During the January 2015 oral arguments, Justice Department lawyer Ginger Adams insisted that the police are entitled to broad leeway when it comes to determining the amount of time that's "reasonably required" in that sort of situation. Justice Sotomayor took a decidedly different view. "We can't keep bending the Fourth Amendment to the resources of law enforcement," an exasperated Sotomayor lectured Adams. "What you're proposing," she told the government lawyer, is an approach that's "purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper." Three months later Sotomayor joined the majority in voiding the officer's unconstitutional actions.
Mullenix v. Luna
This case centered on a whether or not a police officer was entitled to qualified immunity after using deadly force to end a high-speed car chase. In a 2015 per curiam opinion, the Supreme Court held that the officer was entitled to qualified immunity. In a lone dissent, Sotomayor faulted her colleagues for "sanctioning a 'shoot first, think later' approach to policing [that] renders the protections of the Fourth Amendment hollow."
Utah v. Strieff
In this 2016 ruling the Supreme Court held that the Constitution does not prohibit law enforcement officials from using evidence that had been obtained as a result of an illegal police stop because it turned out that the man who was illegally stopped happened to be the subject of an outstanding traffic warrant. "This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants--even if you are doing nothing wrong," Sotomayor fumed in dissent. "If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant." In her view, "the Fourth Amendment should prohibit, not permit, such misconduct" by the police.
Birchfield v. North Dakota

The final case in our list was decided just last week. At issue here was whether warrantless chemical tests for suspected drunk drivers violate the Fourth Amendment. In a divided opinion, the Court held that warrantless blood tests do violate the Constitution but warrantless breath tests do not. Writing separately, Justice Sotomayor insisted that both types of warrantless DUI tests should have been struck down as unconstitutional. "Because no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver's alcohol level," Sotomayor wrote, "the Fourth Amendment prohibits such searches without a warrant, unless exigent circumstances exist in a particular case."
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Monday, July 4, 2016

Gun owners stockpiling drives historic highs in gun purchases

The percent of American households owning guns is at a near-40 year low in the latest CBS News poll released this month, but the number of gun purchases are at historic highs, reported the Washington Post.
According to the survey, which was conducted among 1,001 Americans in the aftermath of the Orlando nightclub shooting, 36 percent of U.S. adults either own a firearm personally, or live with someone who does. That's the lowest rate of gun ownership in the CBS poll going back to 1978. It's down 17 points from the highest recorded rate in 1994, and nearly 10 percentage points from 2012.
Different national polls tend to show slightly different rates of gun ownership. The latest household gun ownership rate in the General Social Survey, in 2014, was 32 percent. The October 2015 Gallup survey showed a higher rate of 43 percent, including guns kept on property outside the home.
But the downward trend in gun ownership remains consistent across the national polls. According to Gallup, gun ownership has fallen by about 10 percentage points since its peak in 1993. The General Social Survey shows a 20-point drop since the mid-1970s.
But gun purchases, as measured by FBI firearm background checks, are at historic highs. And data from the Bureau of Alcohol, Tobacco and Firearms shows that gun manufacturers are churning out record numbers of guns. Many gun rights advocates argue that these figures mean that the overall number of gun owners is growing: If more guns are being sold, more people must be owning guns.
But the declining rates of gun ownership across three major national surveys suggest a different explanation: that most of the rise in gun purchases is driven by existing gun owners stocking up, rather than by people buying their first gun. A Washington Post analysis last year found that the average American gun owner now owns approximately eight firearms, double the number in the 1990s.
Other research bears this out as well. A 2004 survey found that the average gun owner owned 6.6 firearms, and that the top 3 percent of gun owners owned about 25 guns each. More recently, a CBS News poll taken in March of this year found that roughly 1 in 5 gun owners owned 10 guns or more.
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Sunday, July 3, 2016

Supreme Court: Robbing drug dealers is a federal offense

In Taylor v. United States , decided June 20, 2016, by a 7-1 vote, with the exception of  Justice Clarence Thomas, the Supreme Court gave all conscientious, sentencing-reform-minded folks swift kick in the pants, reported JURIST.
As summarized by, Taylor holds that,
"Because the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce 'over which the US has jurisdiction,' the prosecution in a Hobbs Act robbery case satisfies the act's commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds."
JURIST explains:rob
"The Hobbs Act makes it a crime for a person to affect commerce, or to attempt to do so, by robbery. In an opinion by Justice Samuel Alito, the Court found that because Congress has the power to regulate the marijuana under the Commerce Clause, Congress may also regulate drug theft. 'By targeting a drug dealer in this way, a robber necessarily affects or attempts to affect commerce over which the United States has jurisdiction.'"
Justice Clarence Thomas filed a dissenting opinion. He would 'hold that the Act punishes a robbery only when the government proves that the robbery itself affected interstate commerce.'"
Respectfully, we submit that in his dissent in Taylor, Justice Thomas is the lone Justice to get it right. (And, one has to wonder if his position might have carried more weight= —maybe even the day= —had it had the backing of a still-alive, formidable and feisty, Justice Scalia).
In his dissent, Justice Thomas writes: "When courts construe criminal statutes" it goes without saying that, "they must be especially careful. And when a broad reading of a criminal statute would upset federalism, courts must be more careful still."
Thomas concludes that the majority opinion "fails to identify the language in the Hobbs Act that" unequivocally evidences "Congress' intention to reach the sorts of local, small-scale robberies that States traditionally prosecute."
Taylor was convicted of two separate robberies of low-level marijuana dealers. The underwhelming spoils of Taylor's crimes: three cell phones, $40, some jewelry, and a marijuana cigarette= —hardly, one would think, reason to invoke federal prosecution under the Hobbs Act= —with each charged Hobbs Act violation exposing Taylor to up to 20 years in federal prison (where under federal sentencing law he will have to serve a minimum of 85 percent of his sentence, even with credit for good behavior).
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Saturday, July 2, 2016

GateHouse: Supreme Court refuses to criminalize politics

Matthew T. Mangjno
GateHouse Media
July 1, 2016

This week the U.S. Supreme Court overturned the political corruption conviction of former Virginia Governor Robert F. McDonnell. What does the decision mean for politicians, and the public, moving forward?

McDonnell received more than $175,000 in loans and gifts — including a Rolex watch, vacations and partial payment of his daughter’s wedding reception from a Richmond businessman.

The gifts did not violate Virginia law, but federal prosecutors alleged that in exchange for the gifts McDonnell engaged in “official acts” to arrange meetings for the businessman and hosted a reception at the governor’s mansion for a new product launch.

McDonnell’s wife was also charged and her conviction was not before the court.

Although Chief Justice John G. Roberts, Jr., tried to distance himself from the conduct of McDonnell his concerns were clear — the term “official acts” could cover almost any action a public official takes.

“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,”

At trial, prosecutors had to prove that McDonnell committed, or agreed to commit, an “official act” in return for the loans and gifts that he received. The term is defined by federal law as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such officials’ place of trust or profit.”

According to The Intercept, prosecutors argued that the wording of the definition was intentionally broad and designed to cover “any decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.”

Prosecutors contended that “official act” could specifically include arranging meetings, contacting other public officials or hosting an event concerning any subject, including a broad policy initiative such as economic development.

McDonnell argued to the Supreme Court, according to The Intercept, that both the context and a real-world understanding of the role of a public official requires a more narrow reading of the definition of “official act” to cover only those acts which “direct a particular resolution of a specific government decision.”

The Supreme Court unanimously agreed with McDonnell and his lawyers.

“Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” wrote Roberts. “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns — whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.”

Robert’s wrote that prosecutors “could cast a pall of potential prosecution over these relationships.” For instance, according to the Washington Post, if a union or group made some show of gratitude in the form of a gift, campaign contribution or internal word of praise to its members, the officeholder may be the target of prosecution.

The opinion may not have been entirely clear as to what an “official act” is, but it was clear as to what it is not, “Setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”

This decision put the brakes on criminalizing politics. The role of an elected official is to represent the interests of their constituency. Officeholders should and must, help and promote individuals and businesses in their city, state or district. To do anything less would be a disservice, to risk being labeled a criminal in the process is unconscionable.

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, July 1, 2016

Guest Column: It’s time to take another look at the Miranda ruling

Matthew T. Mangino
Delaware County Daily Times, Guest Columnist
June 28, 2016
Fifty years ago this month, the U.S. Supreme Court ruled in Miranda v. Arizona that police officers are required to inform a suspect that he has the right to remain silent and the right to legal counsel when being questioned. Those rights have evolved overtime and not necessarily for the better.
The landmark Supreme Court decision has become a part of American culture. Miranda’s conversion from legal holding to cultural icon is due mainly to the nation’s insatiable appetite for television crime dramas. Everyone with a TV has heard Miranda warnings.
What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested for robbery. While in the midst of a custodial interrogation by police he confessed to raping an 18 year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. He appealed and his case made its way to the U.S. Supreme Court.
The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court’s opinion finding a confession would be barred under the Fifth and Sixth amendments unless a suspect had been made aware of his rights and the suspect had waived them. Warren made it clear, “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”
As we mark the fiftieth anniversary of Miranda, it is important to note that the U.S. Supreme Court has continually tested, and at times, expanded and restricted, the decision.
For instance, in 1981 the Edwards rule was established. The court held once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel pursuant to Miranda, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.
That changed in 2010. In a case out of Maryland, the court established a bright-line rule finding if at least 14 days passed from the time the suspect invoked his rights under Miranda the police could again initiate an interrogation of the suspect.
Although the Miranda warnings are etched in nearly everyone’s consciousness, the Supreme Court found that the police do not have to use those magical words to get the point across. In a 2010 case out of Florida, the court said as long as the rights are articulated to a suspect in a reasonable manner and the rights are understood they are sufficient. The rights that most of us can recite by rote do not need to be conveyed by the police with any precision.
Finally in 2013, in a case out of Texas, a murder suspect who answered questions for almost an hour was then asked by police if the shotgun shells found at the murder scene would match a shotgun found in his home. The suspect stopped talking.
The police made notes of his conduct once he stopped talking. According to the Supreme Court, the suspect “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.”
That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court found that silence is not enough to invoke the right to remain silent. For purpose of the Fifth Amendment, silence isn’t what it used to be.
Miranda has been revered for half a century. The decision, which outlined specific rules for those accused of a crime, has evolved into a nuanced set of standards that can lure the unsophisticated person into a false sense of constitutional protection.

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