Saturday, October 21, 2017

Condemned Alabama man flips-off state before execution

The 21st Execution of 2017
Alabama  executed Torrey Twane McNabb on October 19, 2017. He convicted of killing Montgomery police officer Anderson Gordon in 1997.
McNabb's attorneys filed appeals in the case throughout Thursday to halt the execution that was set for 6 p.m. at the Holman Correctional Facility in Atmore. the last stay was lifted between 8 p.m. and 8:30 p.m. McNabb's official time of death was 9:38 p.m.
Gordon's family issued a statement after the execution.
"Over 20 years ago we lost a companion, a father a brother and a friend who only wanted to make a difference in his community. Brother, who we affectionately called him, worked to make a difference in his community until his life was taken from him," the statement read in part. "Though this has been a difficult day for the Gordon family, we also continue to pray for the family of Torrey McNabb."
McNabb's final words were as follows:
"Mom, sis, look at my eyes. I'm unafraid ... To the state of Alabama, I hate you motherf***ers. I hate you. I hate you."
A brief portion of his final words was unintelligible.
McNabb raised both of his middle fingers twice during the lead-up to his death.
He raised his right arm and grimaced about 20 minutes before he was declared dead, just after a corrections officer performed the second round of consciousness checks. McNabb's family members and attorneys audibly expressed concern that he was not yet unconscious at that point.
To read more CLICK HERE

Friday, October 20, 2017

Mangino interviewed on WFMJ-TV21

Watch my interview on WFMJ-TV21 regarding Mercer County District Attorney Miles Karson who is facing 17 misdemeanor charges, including obstruction of government functions, officially oppressing an arrest or search warrant, and hindering prosecution.

To watch the interview CLICK HERE

Thursday, October 19, 2017

Locking up crime victims as material witnesses, again victimizing the victim

Sarah Stillman is a staff writer at The New Yorker writes a compelling story about the arrest and jailing of innocent material witnesses. Here is a sample of her provocative article:

In New Orleans, Renata Singleton called the cops after her then boyfriend, in a jealous fit, grabbed her cell phone and smashed it; she’d feared for her safety.
As trial rolled around for her ex-boyfriend, Singleton the victim, was put in jail as a material witness. She was locked up for a week although she had three small kids, ties to the community, and a job.
On the day of trial she showed up ready to testify, only to learn that her ex-boyfriend had already pleaded guilty, avoiding jail time altogether.
According to Stillman, “Her testimony wasn’t needed after all. He’d agreed to a six-month suspended sentence, with one year of inactive probation. “I was so violated, so upset and hurt that I had to sit in jail,” Singleton told me. “So, when I found out he took a plea and didn’t have to do anything, I was, like, ‘Are you serious . . . I wish I could have had that deal.”
The right to jail these so-called material witnesses has deep roots in America. (A material witness is an individual considered vital to a case, often because he or she saw a crime unfold or was its victim.) As early as 1789, the Judiciary Act codified the duty of witnesses to appear before the court and testify. From a public-safety perspective, the statute has a clear purpose: the perpetrator of a crime should not escape punishment because of a witness’s reluctance to testify. “The duty to disclose knowledge of crime rests upon all citizens,” a 1953 U.S. Supreme Court opinion, in the case Stein v. New York, reads. “It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” 
In 1984, Congress reaffirmed the right to jail material witnesses, but also noted that their testimony should be secured by deposition, rather than imprisonment, “whenever possible.” Jailing crime survivors and innocent witnesses, in other words, was legal but undesirable.
After the attacks of September 11, 2001, Attorney General John Ashcroft identified the material-witness statute as a convenient weapon for the war on terror. Federal agents could use it to detain individuals of interest, even without sufficient evidence to arrest them as criminal defendants, by deeming them “witnesses” to terrorism-related crimes. In late 2001, the Department of Justice used material-witness laws to target Muslims, often arresting them at gunpoint and later placing some in solitary confinement. According to Human Rights Watch, the U.S. government eventually apologized to at least thirteen people for wrongful detention as material witnesses, and released dozens more without charges. 
“Holding as ‘witnesses’ people who are in fact suspects sets a disturbing precedent for future use of this extraordinary government power to deprive citizens and others of their liberty,” Human Rights Watch argued. In the face of lawsuits and public scrutiny, the practice slowed.
Recently, however, controversy over the use of material-witness statutes has resurfaced—this time at the state and local level.
To read more CLICK HERE

Wednesday, October 18, 2017

Beaver County, Pennsylvania sues opioid manufactures

Pennsylvania's Beaver County filed a lawsuit on against opioid manufacturers, reported Jurist.
The lawsuit, filed in the Beaver County Court of Common Pleas [official website], accuses manufacturers and doctors of deceptive acts, fraud, unjust enrichment, negligence, misrepresentation and public nuisance, seeking in return compensatory damages, punitive damages and the county's legal costs.
The complaint describes the state of the opioid epidemic in Beaver County, noting it spends millions annually in response to the opioid crisis, including expenses for emergency responses, police overtime, and increased incarceration and treatment. The first 10 pages of the 83-page complaint set forth support for the county's claim, citing to national and county-wide opioid-related statistics. According to the complaint, deaths associated with opioid use have tripled in Beaver County from 1999 to 2015, causing it to incur the highest rate of fatal overdoses in Pennsylvania in 2017 at 59.9 per 100,000 people.
The majority of the text concentrates on manufacturers' alleged strategy and tactics which caused and continue to cause addiction, illness, and death to users. As described in other similar lawsuits, these plaintiffs accuse manufacturers of promoting the sale and use of opioids through third-parties, many of whom are doctors:
Recognizing that doctors are gatekeepers for controlling access to prescription drugs, not surprisingly, manufacturers focused the bulk of their marketing efforts ... on the professional medical community. As a controlled substance with significant regulatory barriers limiting access, Defendants knew doctors would not prescribe opioids to patients with common chronic pain complaints unless doctors were convinced that opioids had real benefits and minimal risks. Accordingly, Defendants concealed from prescribers, patients, and the public that evidence in support of their promotional claims was inconclusive, non-existent and unavailable. Instead, each Defendant disseminated misleading and unsupported messages that caused the target audience to believe those messages were corroborated by scientific evidence. As a result, Beaver County doctors began prescribing opioids long-term to treat chronic pain—a treatment choice that most if not all never would have considered prioir to Defendants' campaign.
Named defendants in the lawsuit include four allied physicians, and manufacturers and some subsidiaries of Purdue Pharma, Teva Pharmaceuticals, Cephalon, Johnson & Johnson, Janssen Pharmaceuticals, Endo Health Solutions, Allergan, Actavis, Watson Pharmaceuticals, McKesson, Cardinal Health, AmerisourceBergen.

To read more CLICK HERE

Tuesday, October 17, 2017

Sen. McCain lashes out against 'spurious' nationalism

Sen. John McCain of Arizona set rhetorical fire to what he called "half-baked, spurious nationalism" in a speech in Philadelphia, reported Business Insider.
McCain was there to accept the National Constitution Center's Liberty Medal, in recognition of his decades of service to the US. Former Vice President Joe Biden presented McCain with the honor on Monday evening.
"To refuse the obligations of international leadership, and our duty to remain the last, best hope of Earth for the sake of some half-baked, spurious nationalism cooked up by people who would rather find scapegoats than solve problems," McCain said, as the audience erupted in a raucous applause.
McCain said that kind of nationalism "is as unpatriotic as an attachment to any other tired dogma that Americans consigned to the ash heap of history."
"We live in a land made of ideals, not blood and soil," McCain declared, referencing the racist ideologies of Nazi Germany that have resurfaced in the midst of the current white-nationalist movement in the US.
To read more CLICK HERE

Monday, October 16, 2017

Suit filed against white supremacists for riots in Charlottesville, VA

 A lawsuit filed Thursday morning seeks to hold white supremacist Richard Spencer and the organizers of the Aug. 12 Unite the Right rally in Charlottesville, VA accountable for the harms and injuries they caused, reported Slate. The suit, filed by 11 plaintiffs harmed that day, was filed in federal court in the Western District of Virginia. Plaintiffs include clergy leaders, peaceful protesters, and University of Virginia students. One suffered a stroke. Two were struck in a car attack. Among the named defendants are Spencer, rally organizer Jason Kessler, Vice interviewee Christopher Cantwell, Daily Stormer founder Andrew Anglin, and James Alex Fields, the driver of the car that killed Heyer.
The suit was brought by a pair of seasoned litigators: Roberta Kaplan, who successfully represented Edie Windsor in the 2013 case challenging the Defense of Marriage Act, and Karen Dunn, a former federal prosecutor in Virginia. (Disclosure: Kaplan is a friend.) It was funded by a new nonprofit, Integrity First for America, dedicated to defending democratic norms and ensuring equal rights for every American. “The whole point of this lawsuit is to make it clear that this kind of conduct—inciting and then engaging in violence based on racism, sexism, and anti-Semitism—has no place in our country,” Kaplan told me via email. “We are a nation of laws, dedicated to the principle that all people are created equal. On behalf of our very brave clients, we are using those laws to prevent these defendants and others like them from being able to repeat what happened in Charlottesville ever again.”
The 96-page filing, which accuses the white supremacists of violating the Ku Klux Klan Act of 1871 and other statutes, paints a picture of the events in Charlottesville that bears no resemblance to the president’s “good people on both sides” narrative. It is shot through with tweets, photos, and messages that capture the gleeful planning and howling execution of an event that was intended to be the largest and most terrifying white supremacist event in decades.
To read more CLICK HERE

Sunday, October 15, 2017

Mangino interviewed on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today on the Nasser Hamad capital murder trial in Warren County, Ohio.
To watch the interview CLICK HERE

Saturday, October 14, 2017

GateHouse: Trump violates the First Amendment in attack on NBC

Matthew T. Mangino
GateHouse Media
October 13, 2017

“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”
                              President Donald Trump, Twitter, October 11, 2017

Gordon Smith, president of the National Association of Broadcasters, denounced President Trump’s threat in an interview with the Los Angeles Times. “The founders of our nation set as a cornerstone of our democracy the First Amendment, forever enshrining and protecting freedom of the press,” said Smith.
“It is contrary to this fundamental right for any government official to threaten the revocation of an FCC license simply because of a disagreement with the reporting of a journalist,” he said.
Robert B. Reich, a professor of Public Policy at the University of California at Berkeley and former Secretary of Labor in the Clinton Administration, wrote last year that over the course of history, tyrants have tried to control the press using four techniques:
     -- Berate the media and turn the public against it;
     -- Limit media access;
     -- Threaten the media; and
     -- Bypass the media and communicate with the public directly.
President Trump constantly berates the media. He pounds away at what he calls “fake news.” His administration has limited media access. For a period of time not conducting press briefings and conducting few press conferences for the president. He has threatened NBC’s license due to unfavorable stories and as the “King” of twitter he continues to bypass the media to speak directly to his supporters.
So you’re not convinced that Trump’s disdain for the media is indicative of his desire to be America’s first dictator. Well, what would you say to his disdain for the media being a violation of the Constitution?
Sure the president has the right to fully exercise his constitutional rights through the First Amendment. However, certain people in powerful positions, like say the president, have some limitations on what they can say.
In 2015, Seventh Circuit Court of Appeals Judge Richard Posner wrote an opinion overturning an Illinois sheriff’s efforts to cajole credit card companies to drop service to a webpage that was involved in promoting some unsavory services.
The sheriff was not taking direct legal action against the companies, but he did send threatening letters to their offices, pressuring them to cut off services, according to Reason Magazine. Posner wrote that government officials are not allowed to make such threats.
“A public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment,” wrote Posner.
Judge Posner, who abruptly retired from the bench in September, continued, “A government entity, including therefore the ... Sheriff’s Office, is entitled to say what it wants to say -- but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens ... a government’s ability to express itself is (not) without restriction.”
After Trump’s tweet, Andrew Schwartzman, a media law specialist at Georgetown University Law told The Washington Post, “Obviously, when a public official, much less the president, threatens media outlets with any kind of legal proceedings, it is a cause for grave concern as a First Amendment matter.”
Schwartzman also noted an historical precedent. In 1973, allies of President Richard M. Nixon challenged the individual licenses of television stations owned by The Washington Post. The famed duo of Bob Woodward and Carl Bernstein worked for the Post and were hot on the trail of Nixon and his involvement in the Watergate cover-up, which ultimately cost Nixon the presidency.
Those challenges were baseless and unsuccessful, Schwartzman said. Just as Trump’s threats against NBC have no merit, nor any chance of success.
-- Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, October 13, 2017

Texas executes man who killed prison guard

The 20th Execution of 2017
Robert Lynn Pruett was executed in Texas on October 12, 2017.  He was the 1,462nd person executed in the United States since 1976, the 544th person executed in Texas, and the 1,287th person executed by lethal injection.
According to The Marshall Project, Pruett was serving a 99-year sentence for a murder in Harris County, Texas, when he fatally stabbed Correctional Officer Daniel Nagle at the McConnell Unit in Beeville, Texas.
The incident began when a correctional officer took Pruett to get new shoes, causing him to miss the distribution of lunches. Instead of his normal meal, Pruett was given a sack lunch, which he took to the prison recreation area, in violation of unit rules. Nagle told Pruett he would have to eat his lunch before entering the recreation area and wrote up a disciplinary complaint.
Later that afternoon, Pruett stabbed Nagle eight times with an improvised knife. The weapon was found beside Nagle's body, along with the disciplinary complaint, which had been torn into several pieces. An autopsy report indicated Nagle had died of a heart attack after the stabbing. Multiple inmates testified at trial that they had witnessed the attack, describing Pruett as excited and covered in blood afterwards. Others testified that Pruett had vowed to kill Nagle. Pruett claimed Nagle had been killed by prison gang members to prevent him from exposing prison corruption. At trial, his attorneys argued that the Pruett's fingerprints were not found on the weapon, nor was the victim's blood found on the prisoner.
On appeal, Pruett contended he had suffered ineffective counsel, because his lawyer failed to develop mitigating factors. In rejecting the assertion, courts noted that Pruett failed to identify the factors he desired to be developed. In April 2015, Pruett's scheduled execution was halted to allow for DNA testing of the weapon in the hope that another individual's DNA would be revealed. The attempt was not successful.
To read more CLICK HERE

Thursday, October 12, 2017

New York prosecutors face little oversight

Four years ago, Kenneth Thompson ousted longtime Brooklyn DA Charles Hynes on the promise of making convictions in Brooklyn fairer. Thompson’s office then went to work correcting past injustices: Over the last three years, courts overturned 22 convictions, reported the New York Daily News.
One of the most striking was the case of Jabbar Collins, who served 16 years in prison after being sentenced to 34-to-life for the murder of a rabbi in 1994. For years, prosecutors suppressed the fact that they had threatened, jailed and badgered witnesses into testifying against Collins.
It turned out that one witness had been threatened with prison time if he didn’t testify. Another was offered a break on an unrelated robbery charge — and when he balked at testifying against Collins, prosecutors locked him up for a week as a “material witness” to apply more pressure.
The judge and jury were never told about these deals that were offered or the threats of prosecution that lay behind them. Hynes’ prosecutors presented coerced witnesses and their tainted evidence as trustworthy and reliable.
Collins performed miracles of evidence retrieval from behind bars with the help of attorney Joel Rudin, and eventually got the conviction reversed. But his case is part of a much bigger crisis.
 “One of the most stunning things when I began to work on my own case was just how common this misconduct was,” Collins told me. “These were institutional policies regarding withholding particular documents, not making a record of all of the incentives given to witnesses . All of the catalog of misconduct that took place in my case wasn’t confined to my prosecution.”
Collins helped a man named Tasker Spruill finally walk free this year after he spent 20 years in prison. Spruill was serving a 25-to-life sentence for the 1993 murder of a drug dealer.
Spruill’s legal team argued the DA’s office improperly withheld evidence that would’ve benefited his case. And the prosecutor involved, Stan Irvin, later admitted to having a witness already in jail shuffled back and forth between facilities 26 times in a six-month period — a punishment to force him into testifying against Spruill.
The harassment grew so bad that the witness attempted suicide. The jury was never told about the coercion.
“That’s how things were done,” Irvin said on the witness stand in August 2016.
Judge Evelyn LaPorte ordered a new trial for Spruill after determining there was prosecutorial misconduct by Hynes’ office. He’s not fully cleared, but at least he’s out of prison.
But there have been no penalties for Irvin, who is now a minister. And there’s an excellent chance that New York taxpayers will eventually have to pay a settlement to Spruill to atone for the misconduct.
The main recourse for bad prosecutors is to vote them out of office, which is what happened in Brooklyn and about a dozen other jurisdictions nationwide in recent years, according to the criminal-justice-reform website the Marshall Project. Prosecutors in Chicago, Cleveland, Tampa and Houston all lost their jobs amid charges of misconduct.
But that’s the exception. Prosecutorial misconduct usually results — at best — in a retrial, exoneration or a monetary settlement. That’s not good enough.
“I think the prosecutors should be held responsible. I think their law license should be on the line. I think that there should be charges that could be brought against them,” says Rita Dave, an attorney who works with wrongfully convicted defendants. “Some people will say I’m being extreme, but there has to be repercussions to your actions. Because if there are not, you get to walk away.”
To read more CLICK HERE

Wednesday, October 11, 2017

Liptak: Lawyer's strategy challenged, SCOTUS to review

Adam Liptak outlines challenge to defense attorney's trial strategy pending before the U.S. Supreme Court for the New York Times:
Two weeks before Robert McCoy was to be tried for a triple murder, his lawyer, Larry English, paid him a visit. It was the summer of 2011, and the two men met in a holding cell in a Louisiana courthouse. Mr. McCoy, who was facing the death penalty, told his lawyer he was innocent.
Mr. McCoy was adamant. Others had committed the crimes, he said, and he wanted to clear his name.
The lawyer, , said he had a different strategy.
“I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”
After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself. Judge Jeff Cox, of the Bossier Parish District Court, turned him down.
“Mr. English is your attorney, and he will be representing you,” the judge said.
Mr. McCoy’s parents had paid Mr. English $5,000 to defend their son. They had borrowed the money, using their car as collateral.
During his opening statement at the trial, Mr. English did what he had promised to do. “I’m telling you,” he told the jury, “Mr. McCoy committed these crimes.”
Mr. McCoy objected. “Judge Cox,” he said, “Mr. English is simply selling me out.”
“I did not murder my family, your honor,” Mr. McCoy said. “I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”
Mr. English’s trial strategy failed. Mr. McCoy was convicted and sentenced to death. He appealed to the Louisiana Supreme Court, saying his lawyer had betrayed him. The court ruled against him.
The decision relied on a unanimous 2004 ruling from the United States Supreme Court in Florida v. Nixon, which said lawyers need not obtain their clients’ express consent before conceding guilt in a capital case. But the ruling did not address whether it was permissible for a lawyer to disregard a client’s explicit instruction to the contrary.
The right answer, Louisiana prosecutors told the justices, is that lawyers may ignore their clients’ wishes. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” they wrote in a brief urging the court not to hear the case.
In a brief supporting Mr. McCoy, the Ethics Bureau at Yale, a law school clinic, said Mr. English had essentially switched sides. “Far from testing the prosecution’s case,” the brief said, “Mr. English seemed downright eager to advance it.”
Mr. McCoy’s situation is not particularly unusual, according to a second supporting brief, this one filed by the Louisiana Association of Criminal Defense Lawyers and the Promise of Justice Initiative, a nonprofit group. “In Louisiana,” the brief said, “a capital defendant has no right to a lawyer who will insist on his innocence.”
Since 2000, the brief said, the Louisiana Supreme Court allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.
The Sixth Amendment guarantees a right to “the assistance of counsel.” Those words, the Supreme Court said in 1975 in Faretta v. California, indicate that the client is the boss.
“It speaks of the ‘assistance’ of counsel,” Justice Potter Stewart wrote, “and an assistant, however expert, is still an assistant.”
That case is McCoy v. Louisiana, No. 16-8255.
To read more CLICK HERE

Tuesday, October 10, 2017

Underfunded Missouri public defender disciplined for not keeping up with work

The chronically underfunded Missouri public defender system is now dealing with another vexing issue: the prospect that its overworked attorneys could be punished for not keeping up with their workloads. And that's leading to a growing standoff between judges and public defender attorneys.
The issue surfaced after the Missouri Supreme Court last month suspended a 21-year veteran of the public defender’s office in Columbia who was laboring under a huge caseload and was hospitalized with chronic health problems.
The lawyer, Karl William Hinkebein, was placed on probation for a year after the Office of Chief Disciplinary Counsel — the state agency that oversees attorney conduct — found that he failed to provide adequate representation to six of his clients between 2011 and 2013. 
In the wake of that decision, many public defenders throughout the state are refusing to take on additional clients. Last week, Boone County Presiding Judge Kevin Crane  said he would start appointing private attorneys to represent indigent clients. He has since appointed more than three dozen, who will be working pro bono, or without pay.
Michael Barrett, director of the Missouri public defender system, says the Supreme Court’s decision has left public defenders in an untenable position.  
To read more CLICK HERE

Monday, October 9, 2017

Author explores the decline of the death penalty

University of Virginia law professor Brandon Garrett’s new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” represents a major new effort to untangle  the demise of the death penalty. He also analyzes the decline for lessons that might be applied to the criminal justice system as a whole. The Marshall Project asked him:
Why has the death penalty declined?
No one expected this to happen. After all, the death penalty has long stood for the ultimate in punishment, and it has been very popular for decades. I felt that understanding the great death penalty decline might help to show us how we can turn away harsh punishment more broadly.
At the county level, my colleagues and I observed a strong statistical connection between murder rates and death sentences. But while declining murder rates matter, it is not the only explanation. Death sentences fell far more steeply than murders did. Unfortunately, while the decline in murders played an important role, when Alex Jakubow, Ankur Desai and I analyzed the past 25 years of death sentencing data, we found a strong county-level pattern of racial bias. Counties with more black residents have more death sentences. And counties with more white victims of murder have more death sentences. Call it a “white lives matter” effect.
We also found a muscle memory effect. Counties impose far more death sentences just as a function of having done so in the past. This inertia is powerful. And yet today, when prosecutors seek the death penalty, they are more often failing to convince jurors to impose it. That reverses the muscle memory in these offices; to lose an expensive death penalty trial is no trivial matter. In 15 death penalty trials since 2015 in Texas, only eight have resulted in death sentences. In Virginia, prosecutors failed to get death sentences more than half of the time in trials since 2005. Rural counties have fallen completely off the death penalty map; just a handful of relatively populous counties still have death sentences.
What I call a “defense lawyering effect” also played an important role in this death penalty decline. The states that created offices for defense lawyers experienced significantly more pronounced declines in their death sentences. The states that continue to leave it to local judges or counties to decide who handles death penalty cases have more death sentences.
To read more CLICK HERE

Sunday, October 8, 2017

Congress to take another crack at criminal justice reform

Senator Chuck Grassley, a Republican representing Iowa and chairman of the Senate Judiciary Committee and Senator Dick Durbin, a Democrat representing Illinois co-authored the following op-ed outlining their bipartisan criminal justice reform bill:
In 2015, a diverse group of lawmakers set out to rethink our approach to federal prison sentences. Our goal: improve public safety and the rule of law by ensuring that penalties match their crime. Many months of thoughtful deliberation yielded a product that earned broad bipartisan support in Congress and from organizations around the country and across the political spectrum. And though the political winds in Washington have shifted, that broad support for comprehensive sentencing reform remains strong.
This week, we are reintroducing the “Sentencing Reform and Corrections Act” as we continue to build on the most sweeping criminal justice reform effort in a generation.
Crafted by Republican and Democratic leaders, this legislation aims to safely and sensibly reduce excessive sentences. It recalibrates prison sentences for certain drug offenders and gives judges greater sentencing flexibility while keeping stiff penalties in place for violent criminals. The bill preserves important law enforcement tools to take down large criminal organizations while expanding outlets to shield low-level nonviolent offenders from lengthy mandatory minimum prison sentences. It eliminates mandatory life sentences for three-strike drug offenders and gives judges authority to retroactively apply the Fair Sentencing Act, which reduced the sentencing disparity between offenses involving crack and powder cocaine. The bill also includes “back end” reforms to curb recidivism by helping inmates successfully re-enter society.
We believe this is the right mix of reforms to give nonviolent offenders who’ve done significant time for their crime a second chance to rejoin their families and contribute to our communities while also reducing taxpayer costs and empowering law enforcement to keep dangerous criminals off our streets. Our bipartisan work represents hard-fought consensus to a long-established problem.
In recent years a unique and growing chorus of voices from across the political spectrum prompted a number of proposals in Congress to reform sentencing laws. However, until now, none garnered enough support to move forward. It became clear that if we wanted to truly make progress on this issue, we would have to come together, check our differences at the door, and focus on areas where we could reach agreement. So a bipartisan group of senators and their staffs held countless discussions to forge a framework for reform. After months of thoughtful deliberation, we introduced a bill that swiftly passed the Judiciary Committee and was cosponsored by 37 senators—a rare broadly bipartisan alliance.
The House of Representatives followed suit, moving its bipartisan sentencing reform package through the committee process less than a month later.
We are encouraged by engagement from the White House on this comprehensive criminal justice reform effort. Last Congress, our bill was supported by hundreds of organizations from a variety of industries and political perspectives, including the NAACP and the Charles Koch Institute. It was also endorsed by a broad range of faith-based organizations and law enforcement leaders. We continue to welcome input from stakeholders and our colleagues in government and the law enforcement community as we make additional improvements.
This bill represents the way Congress is supposed to work, and is well-positioned to be one of the most significant bipartisan achievements of the 115th Congress. It also represents an important step in our nation’s ongoing quest for justice.
Our founders declared that Americans have the inalienable rights to life, liberty and the pursuit of happiness. Our criminal justice system needs to reflect these values. That means seeking justice for both the victim and the accused. Our colleagues in Congress supporting these reforms may not always see eye to eye on every proposal, but we are committed to upholding America’s promise of justice for all.

Saturday, October 7, 2017

GateHouse: The NRA’s silence was deafening

Matthew T. Mangino
GateHouse Media
October 6, 2017
The National Rifle Association has broken its silence. In the days immediately following the Las Vegas massacre nary a word from the gun advocacy group.
Wayne LaPierre, executive vice-president of the NRA, said in a statement last night “devices designed to allow semi-automatic rifles to function like fully-automatic rifles should be subject to additional regulations.”
In the same statement the NRA blamed the massacre on the Obama Administration and claimed gun control laws would not stop further attacks, and called on Congress to pass a law that would make it easier for owners to carry weapons across state lines.
Contrast that with the NRA’s response in the wake of President John F. Kennedy’s assassination by Lee Harvey Oswald on Nov. 22, 1963. Oswald shot the president with an Italian military surplus rifle purchased from a NRA mail-order advertisement.
At the time, NRA Executive Vice-President Franklin Orth, according to Time, told a congressional hearing that mail-order sales should be banned, “We do think that any sane American, who calls himself an American, can object to placing into this bill the instrument which killed the president of the United States.”
For the NRA silence was the course of action after the Pulse nightclub shooting in Orlando, after the Sandy Hook elementary school killings in Newtown and after the massacre at Virginia Tech.
Stephen Paddock murdered 59 people and wounded hundreds more while shooting out of a 32nd floor hotel window into a Las Vegas outdoor concert. Along with the 23 guns that police officers found in Paddock’s hotel room, officials also found “bump stocks.” The device alluded to by the NRA’s LaPierre uses a semi-automatic weapon’s recoil to allow it to fire repeatedly at a rate closer to that of a fully-automatic weapon.
Jill Snyder, special agent in charge of the Bureau of Alcohol, Tobacco and Firearms, told CNN that Paddock rigged 12 semi-automatic rifles with bump stocks.00:
According to the New York Times, bump stocks replace a rifle’s standard stock, which is the part held against the shoulder. The stock “bumps” back and forth between the shooter’s shoulder and trigger finger, causing the rifle to fire far faster than an unaided finger can pull a trigger.
Why does the average American sportsman need an assault rifle modified to be an automatic weapon?
The simple answer is -- he doesn’t. As Justin Peters wrote for Slate after the Pulse nightclub mass shooting, an “AR-15 is very good at one thing: Engaging the enemy at a rapid rate of fire. When (a mass shooter kills multiple people in a short period of time) he’s committing a crime, but he isn’t misusing the rifle. That’s exactly what it was engineered to do.”
Although, lawmakers refused to act after Virginia Tech, Newtown and the Pulse nightclub there appears to be at least some appetite among all important GOP lawmakers for outlawing bump stocks. Hence the NRA’s belated reaction.
Wisconsin GOP Sen. Ron Johnson told reporters on Capitol Hill that he had “no problem” banning the device. “Automatic weapons are illegal,” he said. “To me, that is part of that same type of process. So I have no problem banning those.”
Sen. John Cornyn, the second ranking Republican in the Senate, said he would like a hearing on the issue to learn more and said he has already brought it up to Sen. Chuck Grassley, the chairman of the Senate judiciary committee.
Not everyone is on board. Senate Majority Leader Mitch McConnell told CNN, “The investigation has not even been completed, and I think it’s premature to be discussing legislative solutions if there are any.”
Republican Sen. Richard Shelby of Alabama made his position clear when he spoke to reporters, “I’m a Second Amendment man. I’m not for any gun control. None.”
Maybe this massacre -- unlike the others -- will not slowly drift from our collective conscience and with it any chance to enact common sense gun laws?
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, October 6, 2017

Florida carries out execution for 1983 murders

The 19th Execution of 2017
Michael Lambrix, 57, died by lethal injection at 10:10 p.m. at Florida State Prison in Bradford County on October 5, 2017. He was convicted of killing two people after a night of drinking decades ago, reported the Associated Press.
For his final words, Lambrix said, "I wish to say the Lord's Prayer." He recited the words, ending on the line "deliver us from evil," his voice breaking slightly at times.
When he finished and the drug cocktail began flowing through his veins, Lambrix's chest heaved and his lips fluttered. This continues for about five minutes, until his lips and eyelids turned silver-blue and he lay motionless. A doctor checked his chest with a stethoscope and shined a light in both of his eyes before pronouncing him dead.
Corrections spokeswoman Michelle Glady said Bryant's sister was the only victims' family member to attend and she did not wish to speak with reporters afterward.
Lambrix's attorney, William Hennis, argued in an appeal to the nation's high court that because his client's jury recommendations for death were not unanimous — the juries in his two trials voted 8-4 and 10-2 for death — they should be thrown out. The Florida Supreme Court has ruled that Lambrix's case is too old to qualify for relief from the new sentencing system.
The U.S. Supreme Court on Thursday night denied Lambrix's last-ditch appeal.
Lambrix was convicted of killing Clarence Moore and Aleisha Bryant in 1983 after a long night of partying in a small central Florida town, Labelle, about 30 miles (50 kilometers) northeast of Fort Meyers. Lambrix said he was innocent.
He and his roommate, Frances Smith, had met the victims at a bar, and returned to their trailer to eat spaghetti and continue the party, prosecutors said.
At some point after returning to the trailer, Lambrix asked Moore to go outside. He returned about 20 minutes later and asked Bryant to come out as well, according to Smith's testimony.
Smith testified at trial that Lambrix returned to the trailer alone after the killings, his clothes covered in blood. The two finished the spaghetti, buried the two bodies and then washed up, according to Smith's testimony cited in court documents.
Prosecutors said Lambrix choked Bryant, and used a tire iron to kill Moore. Investigators found the bodies, the tire iron and the bloody shirt.
Lambrix has claimed in previous appeals that it was Moore who killed Bryant, and that he killed Moore only in self-defense.
"It won't be an execution," he told reporters in an interview at the prison Tuesday, according to the Tampa Bay Times. "It's going to be an act of cold-blooded murder."
Lambrix's first trial ended in a hung jury. The jury in the second trial found him guilty of both murders, and a majority of jurors recommended death.
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Thursday, October 5, 2017

Mueller mulls strategy to deflect preemptive pardons

U.S. Special Counsel Robert Mueller has a distinctly modern problem, reported Bloomberg. The president, judging by his tweets, could try to pardon people in his circle even before prosecutors charge anyone with a crime.
Mueller’s all-star team of prosecutors, with expertise in money laundering and foreign bribery, has an answer to that. He’s Michael Dreeben, a bookish career government lawyer with more than 100 Supreme Court appearances under his belt.
Acting as Mueller’s top legal counsel, Dreeben has been researching past pardons and determining what, if any, limits exist, according to a person familiar with the matter. Dreeben’s broader brief is to make sure the special counsel’s prosecutorial moves are legally airtight. That could include anything from strategizing on novel interpretations of criminal law to making sure the recent search warrant on ex-campaign adviser Paul Manafort’s home would stand up to an appeal.
"He’s seen every criminal case of any consequence in the last 20 years," said Kathryn Ruemmler of Latham & Watkins LLP, who served as White House counsel under President Barack Obama. "If you wanted to do a no-knock warrant, he’d be a great guy to consult with to determine if you were exposing yourself.”
Dreeben has begun working on legal issues as a counselor to Mueller but is also retaining some of his solicitor general work for the sake of continuity, according to Peter Carr, a spokesman for the special counsel’s office. Carr declined to elaborate on Dreeben’s work with Mueller or make Dreeben available for comment.
Preemptive pardons are a distinct possibility now that current and former Trump advisers are under Mueller’s scrutiny. Trump himself has tweeted that everyone agrees the U.S. president has “complete power to pardon." Some of those kinds of executive moves have been well studied, including Gerald Ford’s swift pardon of Richard Nixon and Bill Clinton’s exoneration of fugitive financier Marc Rich. But the legal territory is largely uncharted over pardons of a president’s own campaign workers, family members or even himself -- and how prosecutors’ work would then be affected.
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Wednesday, October 4, 2017

Only in America: The answer to gun violence is more guns

An excerpt from Garry Wills column in the New York Review of Books only days after the Newtown Massacre in 2012:
The gun is not a mere tool, a bit of technology, a political issue, a point of debate. It is an object of reverence. Devotion to it precludes interruption with the sacrifices it entails. Like most gods, it does what it will, and cannot be questioned. Its acolytes think it is capable only of good things. It guarantees life and safety and freedom. It even guarantees law. Law grows from it. Then how can law question it?
Its power to do good is matched by its incapacity to do anything wrong. It cannot kill. Thwarting the god is what kills. If it seems to kill, that is only because the god’s bottomless appetite for death has not been adequately fed. The answer to problems caused by guns is more guns, millions of guns, guns everywhere, carried openly, carried secretly, in bars, in churches, in offices, in government buildings. Only the lack of guns can be a curse, not their beneficent omnipresence.

To read more CLICK HERE

Tuesday, October 3, 2017

Gun carnage in America is here every day, every where

Large-scale, high-profile shootings such as the horrific one that just happened in Las Vegas represent just a tiny fraction of the daily drumbeat of gun violence in the United States, reports the Washington Post
This year close to 12,000 people have been killed in gun violence incidents, according to the Gun Violence Archive, a nonprofit organization that tracks shootings via media and police reports.
That works out to around 42 victims of gun violence per day, a figure which does not include suicides.
Sunday alone there were at least 24 fatal shooting incidents in the United States, including the Las Vegas shooting, according to the Gun Violence Archive. That number doesn't include suicides (which account for more than half of all gun shot deaths), and it doesn't include shootings in which individuals were injured but not killed (75,000). It does include fatal shootings involving police officers (737), which are often determined to be justified after the fact.
To read more CLICK HERE

Monday, October 2, 2017

O.J.'s former attorney F. Lee Bailey lives above a beauty salon

Now that O.J. Simpson is out of jail, no one involved in the O.J. spectacle  has taken as big a fall as F. Lee Bailey.
Bailey joined Simpson’s defense team with a courtroom résumé that even Perry Mason would be jealous of. Bailey got neurosurgeon Sam Sheppard a new trial on charges he brutally killed his wife — and a not-guilty verdict. He defended fugitive newspaper heiress Patty Hearst, the “Boston Strangler” and scores of other accused murderers. He was rich, flew on private jets and even played himself in a movie.
Today he lives with a hairstylist in Maine. Last year, Bailey filed for bankruptcy after a string of scandals inside and outside the courtroom left him disbarred and shamed. He was accused of misappropriating funds from his defense of an alleged drug dealer.
Here’s what he had left: a 1999 Mercedes station wagon.
Unable to practice law, Bailey runs a consulting business above his girlfriend’s hair salon.
To read more CLICK HERE

Sunday, October 1, 2017

Forecasting crime: Penn professor on the cutting edge

University of Pennsylvania criminology professor Richard Berk tackled Philadelphia’s probation-and-parole challenge with a computer-modeling technique called “random forests.” I had the pleasure of being a part of the Penn Criminology masters program when Professor Berk joined the Penn Faculty.  I also worked with Dr. Berk while he did some forecasting for the Pennsylvania Board of Probation and Parole.
Here’s how random forest works, according to the Pennsylvania Gazette:
Berk gathered a massive amount of data about 30,000 probationers and parolees who’d been free for at least two years. He fed it into an algorithm that randomly selected different combinations of variables, and fit the information to a known outcome: whether someone had been charged with homicide or attempted homicide in that time frame. The algorithm repeated this process hundreds of times, producing a “forest” of individual regression trees that took arbitrary paths through the data. For instance, one tree might begin by considering parolees’ ages, then the number of years that had passed since their last serious offense, then their current residential ZIP code, then their age at the time of their first juvenile offense, then ZIP code (again), then the total number of days they had been incarcerated, and so on, creating a sort of flow chart that sorts any given individual into a category: homicide, or no homicide. Another tree would follow the same procedure, but using different combinations of variables in a different order.
To test the predictive power of this forest, Berk then fed it data on 30,000 different cases—whose outcomes were also known, but which had not been used to build the model. Each was assessed by every tree in the forest, which cast a “vote” on the likelihood that the individual would try to kill again. Those votes were tabulated to generate a final forecast for each case. Importantly, the forest is a black box; there’s no way to know how—let alone why—it arrives at any given prediction.
Assessing a prediction’s value is tricky. Out of the 30,000 individuals in the test sample, 322 had actually been charged with homicide or attempted homicide within two years. So simply predicting that any given person would not kill again would make you right 99 percent of the time. But that would prevent no deaths. A standard logistic regression using the same data, by comparison, fingered two out of 30,000 subjects as likely to commit murder, and it was right about one of them. Not very impressive, but at least it might have saved one life.
Berk’s algorithm was in a different universe. It forecasted that 27,914 individuals would not attempt murder within two years, and it was right about 99.3 percent of them. It identified 1,764 as at risk for killing, 137 of whom in fact faced homicide charges. Generating a prediction for any given individual, using data already available to criminal-justice decision-makers, took “just 10 or 15 seconds,” according to a subsequent review.
To read more CLICK HERE

Saturday, September 30, 2017

GateHouse: Parental liability: On the hook for a child’s conduct

Matthew T. Mangino
GateHouse Media
September 29, 2017
Tiffany Dickson, the widow of Cpl. Bryon Dickson — a 38-year-old Marine veteran and Pennsylvania State Trooper killed in the line of duty — is suing the parents of Eric Frein.
Cpl. Dickson and Trooper Alex Douglas were ambushed by Frein in September 2014. Douglas survived and is permanently disabled.
Frein’s case generated international attention when he eluded capture for 48 days while hiding in the mountains of northeast Pennsylvania. During that time it was estimated that the manhunt, that involved about 1,000 police officers a day from three states, cost approximately $1.4 million per week.
In April, Frein was convicted of first degree murder and sentenced to death.
Dickson’s lawsuit was filed in Lackawanna County, Pennsylvania last week. The complaint alleges the Frein’s parents, Eugene and Deborah Frein, not only missed warning signs about their son’s troubles but fueled the very anti-government beliefs that drove Frein to murder.
The suit contends the Freins manipulated their son into “developing a strong dislike for police and acting on that dislike.”
According to The Associated Press, the lawsuit suggests that Michael Frein had a long career in the military, taught his son how to shoot, and that Eric had easy access to weapons in the house, including the rifle used to shoot Dickson and Douglas.
Eric Frein was an adult at the time of the murder. History is replete with examples of parents not being responsible for the conduct of their adult children. As far back as biblical times parents could sever their ties with adult children in dramatic ways. The Old Testament Book of Deuteronomy provides a provocative glance back in time. “This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard.” Then, “all the men of his city shall stone him with stones.”
That may be extreme, but should it be a crime to raise a criminal? Or as in Frein’s case, should his parents be financially responsible for his conduct?
Parental liability is the term used to refer to a parent’s obligation to pay for damage caused by negligent, intentional, or criminal acts committed by the parent’s child. State legislators have focused their efforts on liability for the parents of minor children. Statutorily parent liability ends when a child reaches age 18.
Children’s offenses can be civil or criminal in nature. Civil cases are lawsuits, like Dickson’s, brought by a person for money damages. Criminal cases are brought by the government for violations of a specific criminal statute.
Every state has some sort of parental responsibility law that holds parents or legal guardians responsible for property damage, personal injury, theft, shoplifting and vandalism to name a few, resulting from intentional or willful conduct of minor children.
For instance, Oklahoma limits parental responsibility of minor children to vandalism only. In other states — Michigan, Maine, Alabama and Pennsylvania — the legislature capped property damage liability for parents at a few thousand dollars. In Hawaii, Louisiana, New Hampshire and Wisconsin parents are on the hook for the entire cost of property damage.
Laws making parents criminally responsible for the delinquent acts of their children have gained steam in recent years. Most states have laws against contributing to the delinquency of a minor. Those laws may apply to any adult not just a parent.
Parents have been held criminally responsible for a child who is chronically truant from school. More than half of the states and the District of Columbia have child firearm access prevention laws that make it illegal for a parent to leave a firearm within reach of a child.
In California, Civil Code Section 1714.1 provides that parents are held jointly liable with their minor child for acts of willful misconduct on the Internet that result in death, personal injury, or property damage.
When and where does parental responsibility end? Dickson’s lawsuit may help answer those questions.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, September 29, 2017

Hospice for dying Pennsylvania prison inmates

In Pennsylvania, 483 state inmates have died since January 2015. That’s about 180 deaths in prison each year. From 2005 to 2014, the average was 150 deaths per year, reported the Philadelphia Inquirer.
That increase is a byproduct, officials say, of the extraordinarily fast-growing elderly population in prison. In 2001, there were 1,892 geriatric inmates in Pennsylvania (ages 55 or older). Today, that’s more than tripled to 6,458. The leading causes of death in the state’s prisons are heart disease, cancer and liver disease. Caring for this population is extraordinarily expensive: It’s estimated that elderly inmates cost three to nine times more than young ones. Compassionate release, meanwhile, is granted to just a few inmates each year.
But since 2004, families of dying inmates at SCI Graterford have had the small comfort of knowing they will not die alone. The prison provides hospice for dying inmates. There is just one nurse on staff at the 23-bed infirmary, and visitors are allowed only an hour a day, but volunteers man the hospice on 24-hour vigils, sometimes caring for two or three inmates at once.
To read more CLICK HERE

Thursday, September 28, 2017

Senate Committee: Congress may be unable to protect Mueller from Trump firing

Congress may be unable to provide any job protection legislatively for special counsel Robert Mueller, whose wide-ranging investigation into Russian meddling in the 2016 election continues to anger President Donald Trump, reported the McClatchy News Service.
While Trump confidant Roger Stone was defending himself in front of a separate committee elsewhere on Capitol Hill, legal scholars offered competing views on whether two Senate bills designed to protect Mueller from firing by Trump or someone in the Justice Department would pass constitutional muster during a hearing of the Senate Judiciary Committee.
A bill sponsored by North Carolina Republican Thom Tillis and Delaware Democrat Chris Coons would allow a fired special counsel to have his dismissal reviewed by a three-judge panel within 14 days. Another measure, put forward by Lindsey Graham, R-S.C., and Cory Booker, D-N.J., would require the Justice Department to clear such a firing with a panel of judges before it could take effect.
“The bills in their current form are unwise and unconstitutional,” said Akhil Reed Amar, a constitutional law professor at Yale Law School and a Democrat who publicly opposed Trump in the election.
Eric Posner, also no fan of Trump, disagreed. “I’ve concluded they do not violate the principle of the separation of powers and on the contrary advance important constitutional values,” said Posner, a professor at the University of Chicago’s law school.
John Duffy, a law professor at the University of Virginia and former clerk of the late conservative Supreme Court Justice Antonin Scalia, argued that parts of both bills were legally questionable, but said they could be tweaked to help pass judicial reviews. He, however, declined to offer an opinion on how the Supreme Court might view them.
“With such judicial variability, I have to balk,” Duffy said.
The complex legal issues and the scholars’ differing perspectives seemed to give senators pause about how, or whether, to move forward.
The law professors referenced almost a dozen Supreme Court cases, most notably Morrison v. Olson, a 1988 decision that held the Independent Special Counsel Act was constitutional.
To read more CLICK HERE

Wednesday, September 27, 2017

Indefinite commitment of mentally ill without conviction

According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals, reported The New York Times Magazine.
While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.
In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”
The insanity defense has been part of the American judicial system from its founding, carried over from our English forebears. British law has long reflected the moral sense that society has a duty not to punish people who can’t comprehend or control their crimes. But the insanity defense has always sat uneasily with the public, which tends to regard it as a means to escape justice. In the United States, such sentiments reached fever pitch in 1981, when a 25-year-old named John Hinckley Jr., hoping to win Jodie Foster’s heart, tried to assassinate President Reagan and instead shot James Brady, the White House press secretary. Hinckley was found not guilty by reason of insanity (N.G.R.I., as it is frequently abbreviated) and sent to St. Elizabeths Hospital in Washington. The country was outraged. Dan Quayle, then a senator from Indiana, called the verdict “decadent” and said the insanity defense “pampered criminals.” His Senate colleague Strom Thurmond equated it to a free ride.
In fact, despite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist. A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial. At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals. If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury.
If N.G.R.I. was always difficult to get, it became even harder after Hinckley. With the Insanity Defense Reform Act of 1984, Congress restricted the judicial definition of “insanity” to only the most severe cases. Some states — Idaho, Utah, Kansas and Montana — have eliminated the defense 
altogether. In trials in which it is attempted, doctors may disagree, and jurors are often influenced by emotional considerations. Today, only an estimated one-120th of 1 percent of contested felony cases end in a successful N.G.R.I. defense — that is, the prosecutor disputes the insanity defense, the case goes to trial and the jury finds the defendant not guilty by reason of insanity. In addition, the legal standards for “insanity” vary among states; some define it as a defendant’s inability to know the crime was wrong or the inability to act in accordance with the law, but most define it, post-Hinckley, as only the first of these. At the trial of James Holmes, who killed 12 people and injured 70 in a movie theater in Aurora, Colo., one psychiatrist testified that he was mentally ill but that he knew right from wrong and should be considered “sane.” Another testified that he was mentally ill and incapable of reason (and, by extension, guilt). All four who examined him agreed that he had some form of schizophrenia. Jurors rejected his insanity plea.
And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal. N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public. 
To read more CLICK HERE

Tuesday, September 26, 2017

The Vindicator: Lawmakers keep piling on those convicted of sex crimes

Matthew T. Mangino
The Youngstown Vindicator
September 24, 2017
How much is too much? Ma’lik Richmond must be asking himself that very question. The on-again, off-again Youngstown State University football player is embroiled in a controversy of his own making.
Richmond served about 10 months in a juvenile detention facility after he and a high-school teammate were convicted in 2013 of raping a 16-year-old girl.
In January, he joined the YSU football team as a nonscholarship walk-on. In August, Richmond was informed by university officials that he would be required to sit-out a season.
He filed suit against the university, and a federal judge granted him a temporary injunction. He played against Central Connecticut State University on Sept. 16. A hearing on a permanent injunction is scheduled for Thursday.
Prison population
Richmond was convicted of a horrible crime. People charged with sex offenses are the most rapidly increasing segment of the U.S. prison population, according to Marie Gottschalk, a professor of political science at the University of Pennsylvania. Politicians and the general public talk about sex offenders in terms of danger, deviance and pathological pariahs. In some instances that may be warranted, particularly with regard to offenses against children.
Gottschalk said during a recent interview, “According to the latest statistics on federal prosecutions, we are meting out longer sentences on average to people who view child pornography than to people who actually sexually abuse children.”
To use a football metaphor lawmakers across the country keep “piling on” convicted sex offenders.
Just last week, I wrote for GateHouse Media about the proliferation of onerous sentences and ever-longer registration requirements being fueled, in part, by an assertion in a U.S. Supreme Court decision in 2002 wherein Justice Anthony M. Kennedy wrote that the recidivism rate for sex offenders was about 80 percent.
According to Reason magazine, there was never any evidence to support the assertion, and research conducted during the period within which it proliferated indicated that it was not even remotely true. “Nearly every study – including those by states as diverse as Alaska, Nebraska, Maine, New York and California as well as an extremely broad one by the federal government that followed every offender released in the United States for three years – has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent.”
If fact, in some states–including Pennsylvania and Ohio – a sex offender can be detained after completing his or her sentence. The process is called civil commitment. Nearly 5,400 people are currently civilly committed in sexually violent predator programs in 20 states and by the federal Bureau of Prisons. According to The Marshall Project, 13 states allow this practice for people who committed their crimes as juveniles.
All 50 states and Washington, D.C., have developed sex-offender registries. More than 800,000 people in the U.S. are registered sex offenders.
While civil commitment and sex-offender registries are perhaps the most extreme examples of “civil” punishment tagged on at the conclusion of the “criminal” punishment imposed on people convicted of sex crimes, they are by no means the only tag -ons.
Driven by a pervasive fear of sexual predators, and facing no discernible opposition, according to the New York Times, “politicians have become ever more inventive in dreaming up ways to corral and marginalize those convicted of a sex related crime.”
As Richmond now knows, marginalizing former offenders is not exclusively for politicians.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Monday, September 25, 2017

White supremacists infiltrating police departments?

Over the last three years, at least 24 officers — in California, Florida, Missouri, Georgia, and Alabama – have been fired or forced to resign after they were caught exchanging racist texts, emails, or Facebook messages, reported Buzzfeed News.
 Another officer, in South Carolina, was fired after he scrawled a racist slur on a black person’s house last year. In September, a police department in Gainesville, Florida, opened an investigation into an officer who’d made anti-Semitic comments on Facebook. In August, a police chief in Colbert, Oklahoma, resigned after local reporters discovered that he was listed as an administrator on websites selling neo-Nazi merchandise. Since 2009, at least four officers, in Louisiana and Florida, were kicked out of their departments when local officials discovered evidence that they were members of the Ku Klux Klan. One of those officers, from Lake Arthur, Louisiana, initially claimed he had been working undercover at a Klan gathering in 2014, then changed his answer to “standing at a rally against illegal immigration,” then eventually admitted that he had indeed been a member of the group’s Loyal White Knights chapter.
Federal authorities have been concerned about white supremacists infiltrating police departments since at least 2006, when an internal FBI memo stated that investigations into right-wing extremist groups “often” found members who had “active links to law enforcement officers.” The memo, which leaked in late 2016, discussed the possibility of a strategic effort by racist hate groups to embed “ghost skins,” a term used to describe “those who avoid overt displays of their beliefs to blend into society and covertly advance white supremacist causes.” But just as troubling, and perhaps just as hard to catch, is the threat of prospective officers “sympathetic to white supremacist causes” pursuing law enforcement careers for more a straightforward reason: The job simply appeals to them.
To read more CLICK HERE

Sunday, September 24, 2017

Nationwide people suffering a mental health crisis are sent to jail not a hospital

Early last year, two suicidal patients showed up at a hospital emergency room in Pierre, S.D., seeking help. Although the incidents happened weeks apart, both patients ended up in an unexpected place: jail, according to The Marshall Project.
Across the country, and especially in rural areas, people in the middle of a mental health crisis are locked in a cell when a hospital bed or transportation to a hospital isn’t immediately available. The patients are transported from the ER like inmates, handcuffed in the back of police vehicles. Laws in five states — New Mexico, North and South Dakota, Texas and Wyoming — explicitly say that correctional facilities may be used for what is called a “mental health hold.” Even in states without such laws, the practice happens regularly.
“It is a terrible solution...for what is, at the end of the day, a medical crisis,” said John Snook, executive director of the Treatment Advocacy Center, a national group that advocates for the severely mentally ill. Research shows that the risk for suicide, self-harm and worsening symptoms increases the longer a person is behind bars.
But in a shift, Colorado recently outlawed using jail to detain people in a psychiatric crisis who have not committed a crime. The state delegated just over $9 million — with $6 million coming from marijuana tax revenue — to pay for local crisis centers, training for law enforcement and transportation programs.
The new law was passed after Colorado’s sheriffs lobbied the state to extend the amount of time a person could be detained. In rural counties, sheriffs testified, lack of manpower meant they were forced to hold onto people longer than the 24-hour legal limit. A state task force instead recommended ending the practice entirely.
There are no national figures on how many people are held each year in jail just because they have nowhere else to go in a mental health crisis. Reports from the federal agency overseeing hospitals — the Centers for Medicare and Medicaid Services — offer a glimpse. Since 2011, at least 22 hospitals in 16 states have been cited by CMS for failing to stabilize patients in need of mental health help, instead handing them over to law enforcement to wait for a psychiatric evaluation or a bed. The hospitals span the country, from Alabama and South Dakota to New York and Ohio.
To read more CLICK HERE

Saturday, September 23, 2017

GateHouse: ‘Piling on’ offenders, the penalty that never ends

Matthew T. Mangino
GateHouse Media
September 23, 2017
Much has been made of Harvard University’s decision not to admit Michelle Jones into its doctoral program over the recommendation of the university’s history department.
Jones served 20 years in prison for murdering her 4-year-old son. During her time behind bars, according to the New York Times, Jones compiled a record of accomplishment that would be remarkable even for someone who had never been incarcerated.
Scenario’s like Jones’ play out every day in America. The stigma of a criminal conviction haunts former offenders for life. Recently, on a college campus a long way from Harvard, a student with a juvenile criminal conviction for rape faced an onslaught of public outrage and ultimately the capitulation of the university.
Ma’lik Richmond the on again, off again, Youngstown State University (YSU) football player is embroiled in a controversial lawsuit of his own making. However, does that make what is happening at Youngstown State right?
Richmond served about 10 months in a juvenile detention facility after he and a Steubenville High School teammate were convicted in 2013 of rape a 16-year-old girl during a party.
Richmond was released in January 2014 and attended colleges in West Virginia and Pennsylvania before transferring to YSU in the fall 2016.
Richmond did an unspeakable thing. He committed a terrible crime. As a result, he served time and as a 21-year-old is a registered sex-offender — having to report to authorities once a year for 10 years.
Richmond, by all accounts, was a pretty good high school football player. That, and allegations of a cover-up to protect the “prestige” of Steubenville High School football, contributed to the international notoriety the case received.
In January, he joined the YSU football team as a non-scholarship walk-on. In August, Richmond was informed by YSU officials that he would be required to sit-out a season. He had not broken any university rule or violated any policy of the university or the football program.
He was declared ineligible by the university because public sentiment had turned against him. The Board of Trustees turned up the pressure on the YSU administration and the result was Richmond had to sit.
Richmond didn’t take the decision lightly. He filed suit against the university and a federal judge granted him a temporary injunction. He played against Central Connecticut State University last Saturday. A hearing on a permanent injunction is scheduled for Sept. 28.
Sept. 28 will not be the end of it for Ma’lik Richmond or other people, young and old, with criminal records.
Federal, state, and local laws impose an ever growing set of barriers on people with criminal records, no matter how small. The so called collateral consequences of conviction vary depending on the type of crime committed, but can affect nearly every aspect of a person’s life, including admission into institutions of higher learning and apparently participation in extracurricular activities.
According to the Sentencing Project, many collateral consequences apply automatically to anyone with a conviction, without taking into account the nature of the offense or how long ago the crime was committed. Most apply for life, without any method for relief, even if the person never again commits a crime.
Recently, the U.S. Department of Justice Department funded a project, run by the American Bar Association, to create a database of collateral consequences. They found more than 44,000 such consequences nationwide.
To use a football metaphor, politicians across the country just keep “piling on” those convicted of a crime. As Jones and Richmond now know, marginalizing former offenders is not exclusively for politicians.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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Friday, September 22, 2017

Not guilty doesn't mean free to go in Tennessee prisons

As a former member of the Pennsylvania Board of Probation and Parole I found Radley Balko's recent column in the Washington Post very interesting:

From the Tennessean, here’s a crazy story about a man who looks to be doomed to years in prison, despite the fact that the charges that put him there have been dropped. You can thank the state’s parole board.
A judge and prosecutor dismissed the criminal allegations against John Leon Smith, but in the eyes of the Tennessee Board of Parole he’s still guilty.
The man will remain in prison until next year at least — maybe until 2026 …
… Smith served about half of a 40-year prison sentence for a violent armed robbery and threatening to kill workers at a Nashville restaurant in 1992. Smith fired several shots, which wounded one worker, and as he fled from police, fired shots at officers, according to appeals court records.
“I was drinking and drugging and it cost me my life,” he said. “I threw it away in 30 minutes.”
He was released on parole in October 2013, according to state records.
Seventeen months later he was arrested on two felonies, alleging possession of marijuana and a weapon, court records show. At the time, Smith lived at a North Nashville home with two other people.
Because of his criminal history, Smith wasn’t supposed to have guns.
Court records and transcripts say undercover police intercepted a UPS package with nearly 8 pounds of marijuana inside and delivered it to the home, where Smith answered the door. About 30 minutes later, another man arrived and tried to leave with the package before he was arrested, according to a transcript of one detective’s testimony.
Officers later found a handgun in furniture in Smith’s bedroom and three rifles and a shotgun in a separate closet, records say.
A Nashville judge dismissed the gun charge two weeks later after hearing testimony from the homeowner that Smith did not know the guns were in the home and the handgun belonged to someone else, according to a court transcript.
In March 2016, a year after Smith’s arrest, prosecutors dismissed the other charge against Smith — the drug crime — after the man who claimed the package of pot pleaded guilty, court records show.
“Your case is dismissed,” a judge told Smith, according to the transcript. “That’s the end of that, so, for you.”

The problem: Smith’s arrest was a violation of his parole. Such violations can send him back to prison. It doesn’t matter that the charges were dropped. And the ultimate arbiter of whether Smith violated his parole isn’t the judge or prosecutor, but the Tennessee Board of Parole. And that group of seven people, all appointed by the governor, has decided to keep Smith in prison. Bizarrely, the Tennessee legislature has even passed a law that should apply to cases like Smith’s. But the parole board decided, unilaterally, that the law isn’t retroactive.
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