Incarceration: 'More is not always better'

Barack Obama tried to reduce the number of absurdly long prison sentences in America, reported The Economist. His attorney-general, Eric Holder, told federal prosecutors to avoid seeking the maximum penalties for non-violent drug offenders. This reform caused a modest reduction in the number of federal prisoners (who are about 10% of the total). President Donald Trump’s attorney-general, Jeff Sessions, has just torn it up. This month he ordered prosecutors to aim for the harshest punishments the law allows, calling his new crusade against drug dealers “moral and just”. It is neither.

More is not always better

Prisons are an essential tool to keep society safe. A burglar who is locked up cannot break into your home. A mugger may leave you alone if he thinks that robbing you means jail. Without the threat of a cell to keep them in check, the strong and selfish would prey on the weak, as they do in countries where the state is too feeble to run a proper justice system.

But as with many good things, more is not always better (see article). The first people any rational society locks up are the most dangerous criminals, such as murderers and rapists. The more people a country imprisons, the less dangerous each additional prisoner is likely to be. At some point, the costs of incarceration start to outweigh the benefits. Prisons are expensive—cells must be built, guards hired, prisoners fed. The inmate, while confined, is unlikely to work, support his family or pay tax. Money spent on prisons cannot be spent on other things that might reduce crime more, such as hiring extra police or improving pre-school in rough neighborhoods. And—crucially—locking up minor offenders can make them more dangerous, since they learn felonious habits from the hard cases they meet inside.

America passed the point of negative returns long ago. Its incarceration rate rose fivefold between 1970 and 2008. Relative to its population, it now locks up seven times as many people as France, 11 times as many as the Netherlands and 15 times as many as Japan. It imprisons people for things that should not be crimes (drug possession, prostitution, unintentionally violating incomprehensible regulations) and imposes breathtakingly harsh penalties for minor offences. Under “three strikes” rules, petty thieves have been jailed for life.

A ten-year sentence costs ten times as much as a one-year sentence, but is nowhere near ten times as effective a deterrent. Criminals do not think ten years into the future. If they did, they would take up some other line of work. One study found that each extra year in prison raises the risk of reoffending by six percentage points. Also, because mass incarceration breaks up families and renders many ex-convicts unemployable, it has raised the American poverty rate by an estimated 20%. Many states, including Mr Sessions’s home, Alabama, have decided that enough is enough. Between 2010 and 2015 America’s incarceration rate fell by 8%. Far from leading to a surge in crime, this was accompanied by a 15% drop.

America is an outlier, but plenty of countries fail to use prison intelligently. There is ample evidence of what works. Reserve prison for the worst offenders. Divert the less scary ones to drug treatment, community service and other penalties that do not mean severing ties with work, family and normality. A good place to start would be with most of the 2.6m prisoners in the world—a quarter of the total—who are still awaiting trial. For a fraction of the cost of locking them up, they could be fitted with GPS-enabled ankle bracelets that monitor where they are and whether they are taking drugs.

Tagging can also be used as an alternative to locking up convicts—a “prison without walls”, to quote Mark Kleiman of New York University, who estimates that as many as half of America’s prisoners could usefully be released and tagged. A study in Argentina finds that low-risk prisoners who are tagged instead of being incarcerated are less likely to reoffend, probably because they remain among normal folk instead of sitting idly in a cage with sociopaths.

Justice systems could do far more to rehabilitate prisoners, too. Cognitive behavioural therapy—counselling prisoners on how to avoid the places, people and situations that prompt them to commit crimes—can reduce recidivism by 10-30%, and is especially useful in dealing with young offenders. It is also cheap—a rounding error in the $80 billion a year that America spends on incarceration and probation. Yet, by one estimate, only 5% of American prisoners have access to it.

The road to rehabilitation

Ex-convicts who find a job and a place to stay are less likely to return to crime. In Norway prisoners can start their new jobs 18 months before they are released. In America there are 27,000 state licensing rules keeping felons out of jobs such as barber and roofer. Norway has a lower recidivism rate than America, despite locking up only its worst criminals, who are more likely to reoffend. Some American states, meanwhile, do much better than others. Oregon, which insists that programmes to reform felons are measured for effectiveness, has a recidivism rate less than half as high as California’s. Appeals to make prisons more humane often fall on deaf ears; voters detest criminals. But they detest crime more, so politicians should not be afraid to embrace proven ways to make prison less of a school of crime and more of a path back to productive citizenship.

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Prosecutor: The renewed drug war 'will target people wearing heavy gold and chains'

A federal prosecutor said that the Department of Justice’s efforts under Jeff Sessions to aggressively prosecute drug crimes will target people wearing “heavy gold and chains,” reported the Daily Caller.

The National Association of Assistant United States Attorneys — an association representing federal prosecutors — held a conference call with reporters expressing their support for Sessions’ objective of going after drug crime offenders.

Larry Leiser, the president of the group and a current prosecutor, said that this will help “young people who see people in the community wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

A reporter interjected and said that these remarks could be construed as racist and Leiser denied that is the case. “It’s intended to be just the reality that unfortunately there are many people in the minority communities that are caught up in this terrible blight of drugs,” he replied.

He said that mandatory minimums help “alleviate the pain and suffering that these drug traffickers perpetrate on their own.”

Leiser added that the drug “plague” affects all communities and pointed to the opioid and heroin epidemic hitting white communities.

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'Johnny we hardly knew ye', today marks the 100th birthday of JFK

It has been 100 years since John F. Kennedy’s birth on May 29, 1917, at his parents’ home in Brookline, Mass., just outside Boston. Over the course of his life, Kennedy enjoyed lavish birthday celebrations, the most famous being a Democratic fundraising bash at Madison Square Garden on May 19, 1962, when--according to the Washington Post--a sequined Marilyn Monroe breathily purred, Happy burrthday, Mr. President. 

Today, on the this Memorial Day, our memory of Kennedy is more solemn. Kennedy has been dead longer than he was alive and his brief 1,000 days as president ended tragically more than fifty years ago. 

Yet today, more than ever, we yearn for his style, eloquence and confidence. Kennedy was a student of history.  He understood the prestige and historical significance of his office and handled it with grace an dignity.

Kennedy made difficult decisions after careful deliberation.  He was respected abroad and revered at home.  When he spoke the world listened--whether it was on the steps of the capital on inauguration day or Berlin during his international travels--America was proud of its president.

President Kennedy never had to push his way to the front of stage--the way was always clear--world leaders knew where Kennedy belonged.

Kennedy once said, "Let us not seek the Republican answer or the Democratic answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept our own responsibility for the future."  
Wouldn't that be great to put into practice today. Happy Birthday Mr. President!

Criminal justice policy based on anecdote, heavily filtered through a political lens

The enormity of the country’s criminal justice system — 15,000 state and local courts, 18,000 local law enforcement agencies, more than two million prisoners — looks even more daunting when you consider how little we know about what is actually going on in there.

Want to know who we prosecute and why? Good luck. Curious about how many people are charged with misdemeanors each year? Can’t tell you. How about how many people reoffend after prison? We don’t really know that, either. In an age when everything is measured — when data determines the television we watch, the clothes we buy and the posts we see on Facebook — the justice system is a disturbing exception. Agencies exist in silos, and their data stays with them. Instead, we make policy based on anecdote, heavily filtered through a political lens.

This week the nonprofit Measures for Justice is launching an online tool meant to shine a high beam into these dark corners, reported The Marshall Project.

The project, which has as its motto “you can’t change what you can’t see,” centers on 32 “core measures”: yardsticks to determine how well local criminal justice systems are working. How often do people plead guilty without a lawyer? How often do prosecutors dismiss charges? How long do people have to wait for a court hearing? Users can also slice the answers to these questions in different ways, using “companion measures” such as race and political affiliation.

It’s the kind of task you’d expect a federal agency like the Bureau of Justice Statistics, which has an average annual budget of $97 million, to take on. Instead, the 22 people at Measures for Justice’s Rochester, N.Y., offices are doing the work themselves on an annual budget of $4.6 million, donated mostly from foundations.

So far they’ve tackled six states: Washington, Utah, Wisconsin, Pennsylvania, North Carolina and Florida, gathering most of the numbers one county at a time. Together, these make up 10 percent of the nation’s counties. The team chose those six states for their geographical diversity and — to ease the data gathering in the project’s early phases — because they had unified statewide court databases.

The hope is to complete 15 more states by 2020, while updating the statistics from the first six states every two years.

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GateHouse Media: Ratcheting up the ‘war on drugs’

Matthew T. Mangino

GateHouse Media

May 26, 2017

The Trump administration’s first budget is big on public safety. The budget includes $27.7 billion for the Justice Department, including what the White House calls “critical law enforcement, public safety and immigration enforcement programs and activities.”

President Trump is asking Congress for an increase of $175 million for the Justice Department “to target the worst of the worst criminal organizations and drug traffickers in order to address violent crime, gun-related deaths, and the opioid epidemic.”

Trump’s “tough on crime” rhetoric has resulted in a budget proposal that leaves most criminal justice agencies and programs intact -- the FBI, Drug Enforcement Administration and Bureau of Alcohol, Tobacco and Firearms are stable or rising -- while spending reductions are proposed for a number of other federal agencies.

These increases come as both the FBI and Federal Bureau of Justice Statistics (BJS) show a substantial decline in the violent crime rate since its peak in the early 1990s. Using the FBI numbers, according to Salon, the rate fell 50 percent between 1993 and 2015, the most recent full year available. Using the BJS data, the rate fell by 77 percent during that span.

In addition, the administration says it will save nearly $1 billion in federal prison construction because of a 14 percent decrease in the prison population since 2013, wrote Ted Gest at the The Crime Report.

Wait ... the proposed budget provides more resources for crime fighting and the attorney general pledges to lock-up more drug offenders for longer periods of time and the administration is counting on savings from prisoner reductions?

Counting on continued savings in federal prison spending due to declining inmate population seems a bit disingenuous. Attorney General Jeff Sessions has announced that he wants federal prosecutors to take a tougher stance on drug cases, a move that will inevitably increase the number of federal prisoners.

Sessions wants federal prosecutors to reinitiate the “war on drugs” by charging suspects with the most serious offense that can be proved and imposing more mandatory minimum sentences.

“We know that drugs and crime go hand-in-hand,” Sessions said in a speech on May 12. “Drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t file a lawsuit in court. You collect it by the barrel of a gun.”

Sessions’ edict reverses a policy implemented by former Attorney General Eric Holder Jr. in August 2013, one that ordered prosecutors to refrain from pursuing drug charges if doing so would trigger lengthy mandatory minimum sentences -- and the defendant was not part of a gang, cartel, or other large-scale drug trafficking organization.

Sessions has always been on the draconian end of illegal drug policy. When he was Alabama’s attorney general, he pushed for a bill that would have provided for the death penalty for individuals convicted of a second drug trafficking offense.

Being tough on crime means filling prisons. According to the Washington Post, in the 1980s, the U.S. began incarcerating people at a higher rate than any other country -- jailing 25 percent of the world’s prisoners at a cost of $80 billion a year. The nation’s prison and jail population more than quadrupled from 500,000 in 1980 to 2.2 million in 2015.

Former President Barack Obama began a clemency initiative late in his second term. He focused on the release of certain drug offenders from prison. He worked to address some obvious racial disparities in sentencing with progressive forward thinking initiatives. Obama and his attorney general were looking to the future.

Compare that with a recent speech by Sessions where he suggested, “Psychologically, politically, morally, we need to say -- as Nancy Reagan said -- ‘Just say no.’”

That’s a general fighting the last war.

-- 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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Alabama executes man on eighth try, convicted when George Wallace was governor

The 12th Execution of 2017

Convicted murderer Thomas Arthur, 75, of Alabama narrowly dodged execution seven times. Dubbed the “Houdini of death row” he was put to death on May 25, 2017. He was strapped to a gurney at the Holman Correctional Facility in Atmore, Ala., and injected with a cocktail of lethal drugs about 11:45 p.m. local time. according to the Los Angeles Times.

With his final words, Arthur apologized to his children. “I’m sorry for failing you as a father,” he said. “I love you more than anything on Earth.”

Arthur had initially been scheduled to be executed at 6 p.m., but the U.S. Supreme Court issued a temporary stay, signed by Justice Clarence Thomas. The nation’s highest court then went on to lift the stay an hour and 15 minutes before Arthur’s death warrant expired at midnight.

In a dissent, Justice Sonia Sotomayor criticized the court’s decision, arguing that she continued to doubt that one of the state’s execution drugs, midazolam, was capable of rendering prisoners unable to feel the “excruciating pain” of lethal injection. Alabama officials, she argued, had only compounded the risks by denying Arthur’s attorneys access to a phone in the witness room to contact the courts if any aspect of the execution went wrong.

“When Thomas Arthur enters the execution chamber tonight, he will leave his constitutional rights at the door,” she wrote.

Arthur, who was first sentenced to death in 1983 when George Wallace was governor of Alabama, has spent more than 34 years on death row. In that time, 58 other Alabama inmates have been executed.

Arthur was convicted of the contract killing of Troy Wicker of Muscle Shoals, Ala. Wicker's wife had claimed she hired Arthur, who at the time was serving at a Decatur work release center for a conviction in the 1977 murder of his sister-in-law in Marion County.

Arthur has been on death row since March 1983, making him the third longest serving inmate on Alabama's Death Row. He's also the second oldest inmate there.

Arthur's original conviction in Wicker's death and a second conviction were overturned. He was convicted a third time in 1991, and that conviction was upheld. Arthur admits he killed his sister-in-law, but maintains he did not kill Wicker.

When the Alabama Supreme Court set this latest execution date for Arthur, it was the eighth time he's been scheduled to be put to death. The Alabama Attorney General's Office stated in its request to the court that it be done "as soon as possible." Arthur's previous execution dates were in: 2001, twice in 2007, 2008, 2012, 2015 and 2016. Several were stayed within one to two days of being carried out.

The Attorney General's office had sought Arthur's execution soon after he lost his federal court challenge on method of execution. Arthur, who claims the lethal injection method could be painful because of his health condition, appealed to the U.S. 11th Circuit Court of Appeals.

The Attorney General stated that Arthur's 2011 lawsuit over the execution method, as well as his current appeal, is an attempt to delay an execution. "His sentence is long overdue," the Attorney General's Office stated in 2016.

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Sentencing Project: Growing trend toward decarceration

A new analysis by The Sentencing Project reveals a growing trend toward decarceration across jurisdictions.

While 38 states and the federal government have at least modestly reduced their prison populations in recent years, our comparative analysis of U.S. Prison Population Trends 1999-2015 reveals that a growing number of jurisdictions have made dramatic progress. The total number of people held in state and federal prisons has declined by a modest 4.9% since reaching its peak in 2009. Yet 16 states have achieved double-digit rates of decline and the federal system has downsized at almost twice the national rate. Notably:

*Six states have reduced their prison populations by over 20% since reaching their peak levels: New Jersey, New York, Alaska, California, Vermont, and Connecticut.

*Several southern states that have exceptionally high rates of incarceration—including Mississippi, South Carolina, and Louisiana—have also begun to significantly downsize their prison populations.

Given that nationwide violent and property crime rates have fallen by half since 1991, the pace of decarceration has been very modest in most states and a quarter of the states continue to increase their prison populations. In particular:

*Fifteen states had less than a 5% decline since their peak-year prison populations.

*Twelve states have continued to expand their prison populations, with four producing double-digit increases since 2010: North Dakota, Wyoming, Oklahoma, and Minnesota.

These findings reinforce the conclusion that just as mass incarceration has developed primarily as a result of changes in policy, not crime rates, it will require ongoing changes in both policy and practice to produce substantial population reductions.
To read the analysis CLICK HERE

Former CIA director: Russian collusion investigation warranted

The former head of the CIA said he has seen intelligence about interactions between President Donald Trump’s campaign associates and Russian officials that made him believe there was a need for the ongoing FBI investigation into possible collusion, reported The Huffington Post.

“I encountered and am aware of information and intelligence that revealed contacts and interactions between Russian officials and U.S. persons involved in the Trump campaign,” former CIA chief John Brennan told lawmakers on Tuesday during a House Intelligence Committee hearing. By the time he left the CIA on Jan. 20, Brennan continued, he had “unresolved questions” as to whether the Russians were successful in getting Americans “to work on their behalf, again, either in a witting or unwitting fashion.”

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The sinister origins of non-unanimous verdicts in felony cases

Only two U.S. states still allow juries to convict defendants in non-capital cases without a unanimous decision—but Louisiana reformers are hoping to drop that number to one, wrote Katti Gray at The Crime Report.

Legal reform advocates in that state have joined the local bar association in pushing legislators to require unanimous jury verdicts for most felony convictions.  A victory in their campaign will leave Oregon as the only holdout allowing non-unanimous verdicts in felony cases, except those in which the convicted person could face the death penalty.

Even though the outcome remains uncertain, the debate over non-unanimous juries in Louisiana has thrown new light on long-ignored issues relating to race and criminal justice.

The reformers, including the Louisiana branches of the American Civil Liberties Union and the Innocence Project,  argue that state lawmakers must act because the state’s courts have refused to consider changing a practice that was instituted in 1898, when the largely white legislature voted to amend the state constitution to allow 9-to-3 jury votes for felony convictions.

In the 1970s, the allowed majority was changed to 10.

Today’s critics of that constitutional amendment, including Angela Bell, a Southern University Law Center professor whose research on non-unanimous juries was published last year in the Mercer Law Review, say those white legislators mainly were aiming to re-subjugate formerly enslaved blacks., and to supply assorted white-run industries with free labor from a prison population that long has been overwhelmingly black. 

After the Civil War, Louisiana was among southern states relying on “convict leasing,” paying state prisons for convicted persons to labor on plantations and for privately owned business.

“These plantation owners thought to themselves, ‘now that we can lease convicts, we need to get the convicts,’” Bell said.  “Things that were minor infractions became major sentences …

“That’s the scandal, systemically. All of this was born from bad intention. If you understand this law, then you understand why Louisiana is the forerunner in mass incarceration.”

“Sir William Blackstone called the jury a sacred bulwark of liberty,” he told The Crime Report. “This was such a precious thing. Unanimity is the core of it … It’s the unanimity of the jury that serves the rights of mankind.”

That Louisiana and Oregon are outliers on that front owes to racial and religious bias, author Thomas Aiello wrote in “Jim Crow’s Last Stand: Nonunanimous Criminal Jury Verdicts in Louisiana,” published in 2015.

In Louisiana, blacks were targets of non-unanimous jury proponents. In Oregon—where felony defendants can be convicted by a vote of 11-to-1—Jews were the targets, contends Aiello, a history and African American studies professor at Valdosta State University in Georgia.

In Oregon, the Office of Public Defenders has publicly voiced its opposition to non-unanimous juries. But no campaign as widespread as Louisiana’s exists in that state.

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Cosby set to select Pittsburgh jury for Montgomery County trial

A Pennsylvania judge  will begin questioning potential jurors for the rape trial of Bill Cosby, the comedian best known as America's favorite TV dad before dozens of women came forward to accuse him of sex abuse, reported Reuters.

Cosby built a long career with a family-friendly style of comedy that peaked when he played father Heathcliff Huxtable in the 1980's hit "The Cosby Show." His reputation began to crumble as he was hit by a series of lawsuits and allegations charging him with drugging and sexually assaulting women in incidents dating back a half-century.

All but one of the cases is too old to be the subject of criminal prosecution, leaving Montgomery County Judge Steven O'Neill with the task of picking the 12 jurors who will determine whether Cosby, now 79, is guilty of sexually assaulting a former Temple University basketball coach at his home in the Philadelphia suburbs in 2004.

Cosby has steadfastly denied any wrongdoing, portraying all the encounters as consensual and contending that some accusers aimed to prey on his celebrity to secure large cash settlements in lawsuits.

He said in a radio interview last week that he does not plan to take the stand, meaning that the trial will likely focus on the testimony of accuser Andrea Constand.

Her accusation led to Cosby's arrest in December 2014, days before the statute of limitations on the alleged crime was to expire.

The case has drawn massive media coverage, leading O'Neill to agree to select jurors in Pittsburgh, rather than Montgomery County, where Cosby will be tried starting on June 5.

In making his picks, O'Neill will likely not attempt to find people who have not heard of the case, but simply push for jurors who vow to base their verdict solely on the evidence presented at trial.

"You have the right to a fair trial and an impartial jury," said Douglas Sughrue, a Pittsburgh defense attorney. "A fair trial doesn't mean that people aren't going to know anything about the defendant."

Prosecutors plan to call another accuser, whose name has not yet been made public, to testify about her own allegations of sexual assault, as they strive to bolster Constand's account by showing that Cosby engaged in a pattern of criminal behavior.

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Watch my interview on WFMJ-TV21 Weekend Today

Watch my interview with Steve Vesey on the Russian Investigation on WFMJ-TV21 Weekend Today. To watch the interview CLICK HERE 

The Vindicator: Dimensions of Trump’s troubles grow wider than scope of Watergate Scandal

Matthew T. Mangino

The Youngstown Vindicator

May 21, 2017

Last week, at the International Republican Institute dinner, Arizona Sen. John McCain, a Republican, reportedly said the scandals within President Donald Trump’s administration are reaching a “Watergate size and scale.”

McCain’s comment was prescient; within hours of his speech Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as special counsel to conduct the Russia investigation. Mueller will oversee an investigation that has the potential to be even more consequential than Watergate.

Here is why Trump’s problems are worse than Watergate. First, President Richard Nixon obstructed justice when he tried to cover up a “third-rate” burglary at the Democratic National Committee headquarters. President Trump allegedly intervened in an investigation into possible collusion by his administration and campaign with Russia, a foreign power and long-time nemesis of the U.S.

Resignation

Second, Nixon was 51/2 years into his presidency when he came under scrutiny and ultimately resigned. President Trump is a little more than 100 days into his presidency and senior members of his own party are comparing him to a former president that resigned in the face of impeachment.

Third, there are no voices of dissent within the Trump administration – with the possible exception of FBI Director James B. Comey who Trump fired.

There was resistance in the Nixon administration. When Nixon sought to fire special Watergate prosecutor Archibald Cox – he was initially defied by the Department of Justice.

In 1973, President Nixon demanded the Department of Justice fire Cox for refusing to obey the president’s order to abandon his demand for the “White House tapes.” Attorney General Elliot Richardson resigned rather than dismiss Cox.

When Nixon turned to Deputy Attorney General William Ruckelshaus to fire Cox, Ruckelshaus chose to resign as well. Finally, the Solicitor General Robert Bork carried out the demand.

When Trump “decided” to fire Comey, not only did the Justice Department not balk, senior Justice officials aided and abetted the president. Attorney General Jeff Sessions – who had recused himself from the Russia investigation – consulted with the president immediately before the firing.

Rosenstein also met with Trump before the firing, where, according to the Wall Street Journal, they discussed Director Comey’s job performance. At the White House’s request, Rosenstein wrote a memo to the president detailing his concerns about the director’s conduct. After President Trump pointed the finger at Rosenstein to support Comey’s firing, he was left with no alternative but to appoint a special counsel.

Has President Trump obstructed justice?

First, he fires Comey who as director of the FBI is overseeing an investigation of Trump’s administration and Trump’s campaign, right after Comey reportedly asked for more money and agents for the campaign.

Trump suggested during an interview with NBC’s Lester Holt that he was thinking about the “fake” Russia investigation when he fired Comey. However, Trump said at the time of Comey’s firing that the reason behind it was the mistreatment of Hillary Clinton during the email investigation – the same investigation that Trump rallied behind during his presidential campaign.

Loyalty pledge

The New York Times reported that President Trump asked Comey in January to pledge loyalty to him and that Comey refused to do so. According to sources, the director pledged honesty and independence.

Last week we learned that President Trump allegedly asked Comey in February to drop the investigation into his former national security adviser, Michael T. Flynn. Comey apparently has notes memorializing the meeting.

Nixon covered up a bungled break-in, and it cost him the presidency. President Bill Clinton faced impeachment for covering up a tryst in the White House. President Trump may well have attempted to obstruct the investigation into his administration’s ties to a major foreign power and his campaign’s possible collusion with that power.

Now Robert Mueller will investigate whether Mr. Trump committed a crime.

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 www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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GateHouse: A young presidency and a growing scandal

Matthew T. Mangino

GateHouse Media

May 19, 2017

Last week, Senate Majority Leader Mitch McConnell said that calls for a special counsel would only be counterproductive to the Senate Intelligence Committee’s investigation into Russian interference in the 2016 election.

“Partisan calls should not delay the considerable work” of the ranking members of the Intelligence Committee, McConnell told reporters. “Too much is at stake.”

On Wednesday, Deputy Attorney General Rod J. Rosenstein announced the appointment of former FBI Director Robert S. Mueller to serve as Special Counsel to oversee the investigation of Russian government efforts to influence the 2016 presidential election and related matters.

McConnell, with what seems a change of heart, said the appointment of the special counsel “confirms that the investigation into Russian intervention into our election will continue.”

“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter,” said Rosenstein.

He continued, “Our nation is grounded on the rule of law, and the public must be assured that government officials administer the law fairly.”

Mueller is a widely respected lawyer and public servant. He was appointed to head the FBI by Republican President George W. Bush and continued in that capacity under Democratic President Barack Obama. His 10-year term was extended by 2 years, and he finally retired in September 2013 -- making him the second-longest-serving FBI director behind only, J. Edgar Hoover.

Federal law provides that “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted.”

The investigation’s focus will be whether the Trump campaign colluded with the Russian government during the 2016 campaign and whether the Trump administration had improper contact with the Russian government.

The investigation may also involve whether President Donald Trump obstructed justice.

President Trump fired James B. Comey, who as director of the FBI, was overseeing an investigation of Trump’s administration and campaign, right after Comey reportedly asked for more money and agents for the investigation.

Trump suggested during an interview with NBC’s Lester Holt that he was thinking about the “fake” (as he refers to it) Russia investigation when he fired Comey. However, Trump said at the time of Comey’s firing that the reason behind it was the mistreatment of Hillary Clinton during the FBI’s email investigation -- the same investigation that Trump rallied behind during his campaign.

The New York Times reported that President Trump asked Comey in January to pledge loyalty to him and that Comey refused to do so. According to sources, the former director pledged honesty and independence.

This week we learned that President Trump allegedly asked Comey, in February, to drop the investigation into his former national security adviser, Michael T. Flynn. Comey apparently has notes memorializing the meeting.

There is no clear legal answer whether a sitting president can be indicted and prosecuted. The Attorney General’s Office in 1973 -- during the Watergate scandal -- and again in 2000 -- in the wake of the Clinton impeachment -- determined that the indictment or criminal prosecution of a sitting president was impermissible and unconstitutional because it would undermine the executive branch’s ability to perform its constitutionally assigned functions, wrote Robert Anello a contributor to Forbes.

Instead, the decision to terminate the service of a president “is more fittingly handled by Congress than by a jury, and such congressional power is founded in the Constitution” through impeachment.

Whatever direction this investigation leads -- one thing is certain, Robert Mueller will be busy sorting out the sordid details of Trump’s brief presidency.

-- 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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Senators from both parties attack Sessions’s order to pursue most severe penalties

Attorney General Jeff Sessions’s former colleagues in the Senate are pushing back on his order to federal prosecutors to pursue the most severe penalties possible for defendants, including mandatory minimum sentences, and introducing legislation to give federal judges more discretion to impose lower sentences, reported the Washington Post.

Sen. Rand Paul (R-Ky.), who co-sponsored the legislation, said that Sessions’s new policy will “accentuate” the existing “injustice” in the criminal justice system.

“Mandatory minimum sentences disproportionately affect minorities and low-income communities, while doing little to keep us safe and turning mistakes into tragedies,” Paul said. “As this legislation demonstrates, Congress can come together in a bipartisan fashion to change these laws.”

Last week, in a two-page ­memorandum to federal prosecutors across the country, Sessions overturned former attorney general Eric H. Holder Jr.’s sweeping criminal charging policy that instructed his prosecutors to avoid charging certain defendants with offenses that would trigger long mandatory minimum sentences. In its place, Sessions told his more than 5,000 assistant U.S. attorneys to charge defendants with the most serious crimes, carrying the toughest penalties.

After Sessions released his new policy, it drew bipartisan criticism that the policy would mark a return to mass incarceration, especially of minorities. It was embraced, however, by the National Association of Assistant United States Attorneys, whose president said it would restore more tools to do their jobs.

“An outgrowth of the failed war on drugs, mandatory sentencing strips critical public-safety resources away from law-enforcement strategies that actually make our communities safer,” said Sen. Patrick J. Leahy (D-Vt.).

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Trump special counsel: 'Might be seen as the beginning of the end'

The Justice Department has decided to appoint a special counsel to investigate possible coordination between Trump associates and Russian officials seeking to meddle in last year’s election, according to Deputy Attorney General Rod Rosenstein.

The Washington Post reported, Robert Mueller, a former prosecutor who served as the FBI director from 2001 to 2013, has agreed to serve in the role, Rosenstein said. The move marks a concession by the Trump administration to Democratic demands for the investigation to be run independently of the Justice Department. Calls for a special counsel have increased since Trump fired FBI Director James B. Comey last week.

Jennifer Rubin of The Post wrote, this move became inevitable once Rosenstein was embroiled in the Comey firing. Indeed, the appointment of a special counsel may be seen as recognition that those events — in which Rosenstein is both a witness and a participant — must be examined. Rosenstein’s letter is certainly broad enough to cover possible obstruction-of-justice charges against the president, attorney general and other White House aides. (Mueller will look at “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump’’ as well as “any matters that arose or may arise directly from the investigation’’ and, as The Post reported, “any other matters that fall under the scope of the Justice Department regulation covering special counsel appointments.'”)

Rosenstein could not have picked a better choice. As a former FBI chief, Mueller knows precisely what to look for and how to conduct an exhaustive investigation. Rosenstein therefore will be lauded for stepping aside and deemed to have recovered his reputation, sullied by involvement in Comey’s firing.

In one sense, this is a tremendous boost for Democrats who have been imploring Rosenstein to appoint a special prosecutor. They rightly argue that the Justice Department itself is now implicated in potential wrongdoing, as is the president of the United States. However, Republicans in Congress also should breathe a sigh of relief. They will still be hounded to appoint a select committee to oversee the entire matter, if not an independent commission, but they no longer have to resist the demands for a special prosecutor.

Frankly, the White House has every reason to panic. No one will intimidate or throw Mueller off course. The seriousness of the probe could not be more clear. A pall will soon fall over the White House as every member of the staff, the vice president and the president will brace themselves for interrogation, production of potentially damaging documents and, incidentally, big legal bills.

Coming just as the president prepares to leave on a foreign trip, appointment of a special prosecutor comes as one more huge blow to his standing and ego. He now goes overseas — something the homebody Trump reportedly dreaded — as a wounded president with an uncertain future. Nothing could be more disconcerting to allies than dealing with an impulsive, ignorant president — one whose future is far from certain. Trump can whine about the unfair press, as he did at the Coast Guard commencement Wednesday, but he has no one but himself to blame for his predicament.

The 100-day mark was the end of the beginning of Trump’s term. The appointment of a special prosecutor just four months into his presidency might be seen as the beginning of the end.

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Georgia executes murderer by lethal injection, he had demanded the firing squad

The 11th Execution of 2017

Georgia carried out its first execution of the year on May 17, 2017. J.W. Ledford Jr., 45, was pronounced dead at 1:17 a.m. at the state prison in Jackson, more than six hours after his initial execution time, reported the USA Today. The delay was waiting for a ruling from the U.S. Supreme Court, which denied his request for a stay.

He was convicted of murder in the January 1992 stabbing death of Dr. Harry Johnston in Murray County, northwest Georgia.

The State Board of Pardons and Paroles, which is the only authority in Georgia with the power to commute a death sentence, declined to spare Ledford’s life.

Ledford told police he had gone to Johnston’s home on Jan. 31, 1992, to ask for a ride to the grocery store. After the older man accused him of stealing and smacked him, Ledford pulled out a knife and stabbed Johnston to death, according to court filings. The pathologist who did the autopsy said Johnston suffered “one continuous or two slices to the neck” and bled to death.

After dragging Johnston’s body to another part of Johnston’s property and covering it up, Ledford went to Johnston’s house with a knife and demanded money from Johnston’s wife, according to court filings. He took money and four guns from the home, tied up Johnston’s wife and left in Johnston’s truck. He was arrested later that day.

Ledford told police he had a number of beers and smoked a couple joints in the hours before the killing.

Ledford’s lawyers had asked the parole board to spare him, citing a rough childhood, substance abuse from an early age and his intellectual disability. After a hearing Monday, the board declined to grant clemency. Following its normal practice, the board did not give a reason for its denial.

Because of changes in brain chemistry caused by a drug Ledford has been taking for chronic nerve pain for more than a decade, there is a high risk that the pentobarbital Georgia plans to use to execute him will not render him unconscious and devoid of sensation or feeling, his lawyers wrote in a federal lawsuit filed Thursday. That would violate the prohibition against cruel and unusual punishment enshrined in the Eighth Amendment of the U.S. Constitution, the lawsuit says.

When challenging an execution method on those grounds, a U.S. Supreme Court precedent requires inmates to propose a known and available alternative. Ledford’s lawyers, therefore, proposed that he be executed by firing squad, a method that is not allowed under Georgia law.

A federal judge dismissed the lawsuit, saying Ledford’s attorneys had failed to show that execution by pentobarbital would be “sure or very likely” to cause him extreme pain as required by U.S. Supreme Court precedent. U.S. District Judge Steve Jones also said the decision to wait until just a few days before his execution date to file the lawsuit suggested a stalling tactic.

Ledford’s lawyers appealed to the 11th U.S. Circuit Court of Appeals and asked that court to temporarily halt the execution. A three-judge panel of the 11th Circuit on Monday rejected that request. Ledford’s attorneys have asked the full 11th Circuit to take up the case.

Ledford’s lawyers had also asked a state court judge to halt the execution because he was only 20 and his brain wasn’t done developing when he killed Johnston. Just as juvenile offenders are considered less culpable and not the “worst of the worst” for whom the death penalty is reserved, the execution of those under 21 is also unconstitutional, Ledford’s lawyers argue.

A Butts County Superior Court judge rejected that petition, and Ledford’s lawyers have appealed to the state Supreme Court. The Georgia Supreme Court, later Tuesday, rejected the appeal of the lower court refusal to stop the execution.

Ledford was the first inmate executed this year in Georgia. The state executed nine inmates last year, more than any other state and the most Georgia had executed in a single calendar year since the U.S. Supreme Court allowed the death penalty to resume 40 years ago.

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Jeff Sessions, another (attorney) general fighting the last war

Attorney General Jeff Sessions is a warrior in search of a battlefield. Unfortunately, he has the power to create one, even if the majority of the country he serves has decided that the war he thirsts for should not be fought, reported The Week.

With a two-page memo sent last week from the AG's office to the nation's 5,000-plus assistant U.S. attorneys, Sessions wiped away former Obama administration Attorney General Eric Holder's August 2013 directive, which ordered prosecutors to use discretion when bringing charges against defendants who did not have a history of violence, gang associations, or "significant criminal history." Holder's memo also instructed federal prosecutors to not purposefully pile on charges so as to trigger mandatory minimum sentences — which handcuff judges from exercising their own discretion — but to "evaluate these factors in an equally thoughtful and reasoned manner."

Sessions' Department of Justice (DOJ) will have no more of that thoughtfulness. Instead, America's "top cop" has essentially rebooted the war on drugs, a failed and devastating law enforcement strategy that remains unpopular with a majority of Americans (no matter their political affiliation) and that has only served to enrich drug cartels, unnecessarily divert law enforcement resources, and contribute to the tragedy of mass incarceration.

By affirming "a core principle that prosecutors should charge and pursue the most serious, readily provable offense," Sessions' memo turns back the clock and reimposes a "one size fits all" approach to federal prosecutions. The memo specifically cites the pursuit of mandatory minimum sentences as being part of its "moral and just" congressional mandate, and ludicrously states that treating all suspected criminals as harshly as possible no matter their individual circumstances "produces consistency."

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GateHouse: A reprise of ‘our long national nightmare’

Matthew T. Mangino,

GateHouse Media

May 14, 2017

On the night President Donald Trump announced that he had fired FBI Director James B. Comey, David Ignatious, a columnist with the Washington Post, wrote “[A] prominent Republican politician gave me this simple, blunt assessment of the Trump White House: ’These guys scare me.’”

Forty-five years ago this country was in the midst of one of the scariest times in American history. President Gerald Ford referred to Watergate as “our long national nightmare” after assuming the presidency in the wake of Richard Nixon’s resignation.

In many ways, Russiagate and President Trump’s efforts to derail its investigation are far scarier than Nixon and the White House Plumbers.

For starters, there was resistance within Nixon’s own administration. The “Saturday Night Massacre” — the firing of special Watergate prosecutor Archibald Cox — was initially defied by the Department of Justice.

Trump’s firing of Comey has been compared to Nixon’s conduct. To compare the two events is to do a disservice to the top two Nixon-era justice officials and to elevate the top two current Justice officials to a level of unwarranted integrity and independence.

In 1973, President Nixon demanded the Department of Justice fire Cox for refusing to obey the president’s order to abandon his demand for the “White House tapes.” Attorney General Elliot Richardson resigned rather than dismiss Cox.

When Nixon turned to Deputy Attorney General William Ruckelshaus to fire Cox, Ruckelshaus chose to resign as well. Finally, the Solicitor General Robert Bork carried out the president’s demand.

The New York Times reported that President Trump asked Comey in January to pledge loyalty to him and that Comey refused to do so. According to sources, the director pledged honesty and independence. Although a highly unusual request of an official investigating a president’s administration — apparently, neither response was adequate.

When Trump “decided” to fire Comey — the man investigating his administration’s ties to Russia and possible collusion between the Trump Campaign and Russia to turn the election — not only did the Justice Department not bulk, senior Justice officials aided and abetted the president.

Deputy Attorney General Rod Rosenstein met with Trump before the firing, where, according to the Wall Street Journal, they discussed Director Comey’s job performance. At the White House’s request, Rosenstein wrote a memo to the president detailing his concerns about the director’s conduct.

The 12-paragraph letter was deeply critical of Comey’s handling of an investigation into then-Secretary of State Hillary Clinton’s use of a private email server to conduct public business. Rosenstein concluded that the FBI had lost the public’s trust and that “the director cannot be expected to implement corrective action.” The president’s termination letter to Comey refers to the memo.

As for the top man at Justice, Attorney General Jeff Sessions, the concerns are even greater. Sessions admitted that he consulted with the president as he made the decision to terminate Comey. Trump admitted that the Russia investigation was a consideration in his decision. However, Sessions had recused himself from the Russia probe and all matters relating to the 2016 campaign, including the investigation into Clinton’s emails — the “primary” factor is Comey’s firing.

“Refusing to recuse oneself from a conflict or breaking the promise to recuse from a conflict is a serious breach of legal ethics,” conservative Washington Post blogger Jennifer Rubin wrote. “He [Sessions] needs to testify immediately under oath; if there is no satisfactory explanation, he must resign.”

Nixon covered up a bungled break-in at the Democrat National Committee headquarters and it cost him the presidency. President Trump may well have attempted to obstruct the investigation into his administration’s ties to a major foreign power and his campaign’s possible collusion with that power. How will Russiagate end for him?

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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Watch my interview on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today.  To watch the interview "Backlash continues over Comey dismissal" CLICK HERE

PLW: Civil Asset Forfeiture Faces Multi-Pronged Attack

Matthew T. Mangino

Pennsylvania Law Weekly

May 12, 2017

Claude-Frédéric Bastiat, a French economist, politician and author, wrote in the mid-19th century that plunder is exercised on a vast scale around the world.

Violence and trickery distinguish plunder from the voluntary, and mutually beneficial, exchange of wealth. There are two types of plunder—"illegal plunder" undertaken by thieves and robbers, and "legal plunder," usually undertaken by the government and officials "legally" exempt from the usual prohibitions against taking other people's property by force.

Legal plunder is alive and thriving in Pennsylvania and across the country in the form of civil asset forfeiture.

In 1986, the Department of Justice's assets forfeiture fund collected an ample $93.7 million in revenue from federal forfeitures. By 2014, annual deposits had reached $4.5 billion—a 4,667-percent increase.

Cash seizures can be made under state or federal civil law. One of the primary ways police departments are able to seize money and share in the proceeds at the federal level is through a long-standing Justice Department civil asset forfeiture program known as equitable sharing. According to the Washington Post, asset forfeiture is an extraordinarily powerful law enforcement tool that allows the government to take cash and property without pursuing criminal charges and requiring the property's owner to prove legal possession of the property.

According to the Justice Institute, Pennsylvania state law enables agencies to retain 100 percent of the value of forfeited property, and law enforcement in Philadelphia took in more than $69 million between 2002 and 2013. The total is composed of more than 1,200 houses, 3,400 vehicles, $47 million in cash, and various other items, such as electronics and jewelry.

Philadelphia spent none of its forfeiture funds on proactive, community-based anti-drug and crime prevention programs, reported the Justice Institute, despite supporters' claims that forfeited funds are essential to community crime prevention efforts.

The public is fed up with the overreach of law enforcement. A new poll commissioned by Fix Forfeiture, the Commonwealth Foundation and the American Civil Liberties Union of Pennsylvania, found that nearly eight in 10 Pennsylvanians believe the current system needs to be overhauled. Seventy-nine percent of Pennsylvania residents agree that current forfeiture laws are in need of reform. An overwhelming majority of respondents—including 75 percent of Republicans and 82 percent of Democrats and 87 percent of independents—support change.

The courts have also taken a swipe at asset forfeiture. The Commonwealth Court has pulled in the reins on law enforcement. In a case involving the state's attempt to confiscate a man's handgun following his conviction for disorderly conduct, the Commonwealth Court was asked to decide the following: Whether the doctrine of common law forfeiture exists in Pennsylvania and can serve as a legal basis to allow the commonwealth to forfeit any property with a "nexus" to a crime absent any statutory authority.

Justen Irland pleaded guilty to the summary offense of disorderly conduct and was ordered to pay a $200 fine, after which he filed a motion for return of his gun. Prosecutors filed a motion for forfeiture and destruction of the gun based on a theory of common law forfeiture, saying it had legal authority to confiscate any property with a substantial "'nexus'" to the crime committed. The Adams County Court of Common Pleas agreed and ordered the gun destroyed.

Irland appealed, argued that common law forfeiture does not exist in Pennsylvania. The court in Commonwealth v. Irland, PICS Case No. 17-0091 (Pa. Commw. Jan. 13), concluded that common law forfeiture, as that concept originated and developed in England, was never incorporated into or became part of our commonwealth's common law tradition. Zack Needles, managing editor of The Legal, wrote in "Common-Law Forfeiture Doesn't Exist in Pa., Court Says," published Jan. 20 in the Law Weekly, "The Commonwealth Court pointed to the state Supreme Court's 1895 ruling in Carpenter's Estate. ... The justices in that case found that neither a son who was convicted of murdering his father nor the son's mother, who was convicted of being an accessory after the fact, forfeited their right to receive a share of the father's estate, despite having committed the crimes with the intent of inheriting the estate."

The high court reasoned that there was no statutory authority for such a punishment.

"The legislature has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence," the Carpenter's estate court said.

The Irland court found, "Based upon our research, the commonwealth's organic law, namely Article 9, Sections 18 and 19 of the Pennsylvania Constitution of 1790, denounces and effectively abolishes any notion of common law forfeiture and that the predominate, if not unanimous, weight of the authority has determined that common law forfeiture never made it across the seas to America. Therefore, absent a statute that specifically authorizes the forfeiture of property, the commonwealth and the courts have no authority to seek and order forfeiture of property."

Now, the legislature is getting into the act. Recently, the state Senate voted 39-10 in favor of a civil asset reform measure known as SB 8. The bill would make moderate changes to the way law enforcement can confiscate property they believe was used in a crime, or represents the fruit of criminal proceeds.

The bill raises the burden of proof for prosecutors seeking to complete the seizure of a person's assets.

Under existing law, a property seizure can turn into a forfeiture if prosecutors meet their burden of a preponderance of the evidence. The new law would require a showing that the property is tied to criminal activity by "clear and convincing evidence."

State Sen. Mike Folmer, sponsor of the legislation said, "No agent of the government should be able to seize an individual's property without the constitutionally protected right of due process and the legislation I've sponsored will ensure these rights are properly protected."

Opponents say the bill doesn't go far enough to fix what they believe is a badly flawed system.

State Sen. Daylin Leach, told the Harrisburg Patriot-News, "It essentially allows civil forfeiture to continue unabated as long as the government does a bit of extra paperwork." •

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. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Politico: Is Trump's metastasizing crisis Watergate 2.0?

President Donald Trump’s astonishing firing of FBI director James Comey raised throughout Washington the inevitable question: Is this Watergate? 

While Watergate was sui generis and is likely to remain so, Trump’s metastasizing crisis, and Washington’s reaction to it, make for a discomfiting reminder of that period, reported Politico Magazine. And suddenly it seems increasingly possible it could end the same way.

As it did during Watergate, in the spreading Trump scandal, all of Washington fixates on the latest development, virtually to the exclusion of what had preoccupied five minutes earlier. 

Thus the firing of Comey, for the moment at least, displaced the city’s and the national media’s obsession since as long as the day before with the question of it took so long for Trump to fire Lt. Gen. Michael Flynn, his national security adviser, after the acting attorney general at the time, Sally Yates, informed the White House counsel that Flynn had been compromised by Russia.

As the stunning news of Comey’s firing spread through Washington on Tuesday evening, the reactions were similar to those when a previous president fired his chief investigator: astonishment, a kind of ghoulish humor, plus deep unease at a president behaving so far outside of traditional norms. The fear that permeated the Washington atmosphere during Watergate hasn’t quite developed, but some of the elements of the story—in particular, a vindictive president seeming out of control—are in place for that to happen as well.

Like Richard Nixon, Trump has a propensity for ridding himself of those who presented a threat to him. Nixon’s elimination of special prosecutor Archibald Cox, even if he had to fire a couple of attorneys general until he got to a Justice Department official, Robert Bork, who would carry out the deed, was the point at which the word “impeachment” began to be on people’s lips. Until then the idea was too outsized and even alarming to consider. 

No president had ever been removed from office by the constitutionally designated congressional act of impeaching (the House) and convicting (the Senate) a president. Cox was demanding that Nixon turn over the tape recordings of his Oval Office conversations, which Nixon was – understandingly, as it turned out – of no mind to do. Comey was seeking information possibly at least as damning, and perhaps worse. We can get too used to a question until it returns in full force: What if the president, or his close associates, colluded with a hostile foreign power to win the office?

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Delaware seeks to reinstate the death penalty

The Delaware House of Representatives passed a bill on that would reinstate the death penalty, reported Jurist. The House voted a 24-16 on House Bill 125, designated the Extreme Crimes Protection Act. 

The bill requires juries to unanimously agree that aggravating circumstances in a murder warrant a death sentence. Sponsors of the bill hope that this amendment will address issues raised last year that caused Delaware's capital punishment law to be labeled unconstitutional. 

The bill now heads to the Senate.

Last year Delaware’s Supreme Court ruled the death penalty law gave judges, rather than juries, too great a role in imposing death sentences, violating constitutional requirements laid out by the United States Supreme Court.

The Delaware legislature came close to abolishing the death penalty as well, but the debate was put on hold to await the ruling by the state’s highest court.

At the time, Eric M. Freedman, an expert on capital punishment at Hofstra University’s law school told the New York Times, “This probably means, as a practical matter, the end of the death penalty in Delaware.” 

I guess he underestimated the political will of the legislature to be viewed as tough on crime.

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CNN's Toobin: Firing FBI's Comey 'a grotesque abuse of power by the president'

CNN’s legal analyst Jeffrey Toobin held nothing back when news of President Trump’s filing of FBI Director James Comey was announced. Wolf Blitzer broke the news and intoned that this was “an extraordinary moment in American history.”

According to the Washington Post, Toobin shot back: “You bet it is, Wolf, and it is a grotesque abuse of power by the president of the United States.”

Before we could pick our jaws up off the floor, he barreled forward: “This is the kind of things that goes on in non-democracies. That when there is an investigation that reaches near the president of the United States or the leader of a non-democracy, they fire the people who are in charge of the investigation.”

Without hesi­ta­tion or any need for a Google search, Toobin reached back for historical context: He hadn’t seen such a thing since 1973 when President Nixon fired Watergate special prosecutor Archibald Cox. That, he noted, was a key factor leading to Nixon’s resignation.

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Sen. Casey: Trump firing of FBI director Comey 'Nixonian'

Senator Bob Casey, a Democrat who is up for re-election next year in Pennsylvania, a state Mr. Trump won, said, “This is Nixonian,” reported the New York Times.

He called for the deputy attorney general, Rod Rosenstein, to “immediately appoint a special counsel to continue the Trump/Russia investigation.”

Mr. Casey drew a direct link between Mr. Comey’s dismissal and the F.B.I.’s investigation into Russian involvement in the election.

“On March 20, Director Comey said, ‘I have been authorized by the Department of Justice to confirm that the F.B.I., as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government, and whether there was any coordination between the campaign and Russia’s efforts,’” Mr. Casey said.

“This investigation must be independent and thorough in order to uphold our nation’s system of justice.”

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Leading crime academics take issue wiith Trump administration's rejection of science

In an unusual move, the American Society of Criminology (ASC), the nation’s leading academic organization in the field, has taken a shot at the administration of President Donald Trump, wrote Ted Gest for The Crime Report. The ASC’s executive board issued a statement declaring that his administration’s early actions and assertions on criminal justice “demonstrate an incongruity between administrative policy efforts and well-established science about the causes and consequences of crime.”

ASC leaders have made suggestions to previous administrations but not in recent memory has the group issued a broad criticism of a U.S. president. The group’s board said it is “concerned by the actions of the Trump administration in its dissemination of misinformation and development of uninformed policy initiatives. Not only are these initiatives unscientific, they are likely to engender further cynicism about and discontent with the criminal justice system that is harmful to citizens, to members of law enforcement, and to other sources of social control.”

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Capital punishment continues its death spiral

The use and support of the death penalty in the United States has steeply declined to levels unheard of in decades. Reported the Los Angeles Times.

Capital punishment is still legal in most states. But, while activists and experts say it is far-fetched to expect it to be banned nationwide any time soon, they say the momentum against it is strong.

“Practically speaking, the death penalty is in its last days. But like any disease that’s rendered obsolete by modern medicine, it has a few flareups before the end,” said Eric Freedman, a law professor at Hofstra University. “The long-term trend toward its extinction is pretty clear and pronounced.”

The number of annual executions in the U.S. hit a high of 98 in 1999. Last year, the number was 20. The last time it was that low was in 1991, when 14 people were executed.

If all the scheduled executions this year are carried out, 25 Americans will be put to death, according to the Death Penalty Information Center. The Washington-based nonprofit is critical of the death penalty.

Seven states have or are scheduled to carry out executions, according to the center: Texas, Virginia, Missouri, Arkansas, Ohio, Georgia and Alabama.

“It is a phenomenon now of a few counties in a few states,” said Freedman. “The vast majority of the country is living in counties where there hasn’t been an execution for decades.”

More Americans support the death penalty than those who are against it. But surveys over the years show that opposition is increasing and support is declining.

According to the most recent Pew Research Center poll, 49% of Americans support the death penalty for people found guilty of murder. At the same time, 42% of Americans are against it. The gap in part depends on political party. Only 34% of Democrats favor the death penalty, compared with 72% of Republicans.

Experts say the decline can be attributed to a variety of factors, including well-publicized cases of people who were sentenced to death and then exonerated.

One recent such case was in Delaware in January, when Isaiah McCoy, a 29-year-old on death row for murder, was released from prison after being found not guilty in a second trial.

“When people find out real people are sentenced to death even though they are not guilty, people start struggling to support executions,” said Rob Smith, director of Harvard Law School’s Fair Punishment Project, which has argued against the Arkansas executions, saying the trials of the men on death row were full of “legal deficiencies.”

It’s not just that fewer people are being executed. Generally speaking, fewer people are being sentenced to death.

Death sentences hit a high in 1996, when 315 Americans were condemned to die, according to the Death Penalty Information Center. The decline has been steady since. Last year, 30 people were sentenced to death.

“The vast majority of prosecutors these days will never even seek the death penalty,” Smith said. One reason, he said, is that jurors are less likely to be sold on it. Life sentences without parole, Smith said, are seen as better options.

Some district attorneys and state attorneys general have gone a step further, promising to not push for death sentences.

One of them is Dist. Atty. Aramis Ayala of Orlando, Fla., who vowed last month not to seek the death penalty in her cases. “I am prohibited from making the severity of my sentences the index of my effectiveness,” she said in a statement. “What has become abundantly clear through this process is while I currently do have discretion to pursue death sentences, I have determined that doing so is not in the best interests of this community, or in the best interest of justice.”

Governors of several states, including Washington, Oregon and Colorado, have also imposed moratoriums on the death penalty while they are in office.

The Republican governor of Arkansas, Asa Hutchinson, defended his state’s string of planned executions this month by saying it needed to carry them out before one of its drugs used in lethal injections expired.

“It is uncertain as to whether another drug can be obtained,” Hutchinson said in a statement.

The drug in question is midazolam, a sedative that’s part of a three-drug cocktail the state uses in lethal injections. The drug has been tied to several faulty executions, including those in Oklahoma; Arkansas’ supply expires at the end of April.

Another drug the state uses in executions is vecuronium bromide, a muscle relaxer. McKesson Corp., a medical supplier that sold the drug to Arkansas, took the state to court over it. The company says Arkansas purchased the drug, which McKesson says is intended only for medical use, under false pretenses.

The controversy over execution drugs goes beyond Arkansas and extends to the federal government.

In one example, the Texas prison system filed suit this month against the Food and Drug Administration, which seized 1,000 vials of an execution drug whose importation was banned in 2015. The state purchased the drug, sodium thiopental, from India, and the FDA wants it shipped back or destroyed. The Texas Department of Criminal Justice argues that law enforcement agencies are exempt from the ban.

Outside of Arkansas and Texas, several other court cases over the death penalty are looming.

In Cincinnati, the U.S. 6th Circuit Court of Appeals is scheduled in June to have the full court consider whether Ohio’s use of a three-drug cocktail in lethal injections is unconstitutionally cruel and unusual punishment. Earlier, a three-judge panel in the appeals court had upheld a stay that kept the state from using the procedure in executions.

In California, the Supreme Court is expected to decide this summer on challenges to a voter-approved proposition that reduces the time allowed for appeals of death sentences. The new rule was intended to speed up executions in the state, where there are nearly 750 people on death row. The state is considered a "symbolic" death penalty state because capital punishment is legal but has not been used since 2006.

States are also reconsidering their use of the death penalty.

In Oklahoma, a state commission said this week that a moratorium on the death penalty should be extended until the system for carrying out sentences is changed so that innocent people do not die.

“Ultimately we found that there are many serious systemic flaws in Oklahoma's death penalty process that obviously can and have led to innocent people being convicted and put on death row,” former Oklahoma Gov. Brad Henry, who is on the Oklahoma Death Penalty Review Commission, said in a statement. Henry, a Democrat, was governor for two terms when dozens of executions were carried out between 2003 and 2011.

The state had been under scrutiny since a series of botched executions, and it imposed a moratorium in 2015 after the wrong drug was used in one. In a high-profile 2014 execution, inmate Clayton Lockett was struggling for 43 minutes on the gurney after a lethal injection before he finally succumbed.

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Trumpcare considers rape a pre-existing condition

About 24 million Americans stand to lose their health insurance coverage if the Affordable Care Act (ACA-Obamacare) is replaced with the American Health Care Act (AHCA Trumpcare). We know that most of those 24 million people will be low-income.

We also know that groups of people who experience significant health care disparities, such as lesbian, gay, bisexual and transgender (LGBT) people, and Black and Latino people, will be among those who risk losing the most if the ACA is repealed. To that list, we must add survivors of sexual violence.

Before passage of the ACA in 2010, sexual assault survivors who had sought medical care for their injuries could be denied health insurance coverage at a later date. The reason? Health insurers often categorized rape as a pre-existing health condition. 

The National Women’s Law Center launched a campaign called “Being a Woman Is Not a Pre-Existing Condition.” It was so popular that then-House Speaker Nancy Pelosi adopted the phrase in her pro-health reform talking points with media, and the New York Times ran an explainer on the ways in which health insurers treated women as if they were just one giant pre-existing condition.

The AHCA initially retained the ACA’s ban on discrimination against people with pre-existing conditions. But an amendment to the Trumpcare bill offered last week by New Jersey Congressman Tom MacArthur and North Carolina Congressman Mark Meadows would make it easier for health insurers to deny coverage to people with pre-existing conditions.

By letting states waive the ACA prohibition on charging people with pre-existing health conditions higher premiums, protections for those who’ve previously been medically treated for sexual assault would be gutted.

Perhaps more alarming, though, is the MacArthur-Meadows amendment’s provision allowing states to also seek waivers from the ACA’s requirement that essential health benefits be covered by health insurance plans. Essential health benefits include preventive health care services that most of us take for granted. These include tests for blood pressure and cholesterol, mammograms, and vaccinations. Essential health benefits also include coverage for mental health care and substance abuse treatment.

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