Thursday, August 31, 2017

Maryland governor calls for truth-in-sentencing legislation in response to crime ravaged Baltimore

After a closed-door meeting about “out of control” violent crime in Baltimore, Maryland Gov. Larry Hogan said Tuesday he plans to propose a major crime package during next year’s General Assembly session that includes truth-in-sentencing legislation, reports the Baltimore Sun. The Republican governor met for about an hour in Baltimore with elected state and local officials, all of them Democrats, as well as Baltimore Police Commissioner Kevin Davis and acting U.S. Attorney for Maryland Stephen Schenning. Afterward, Hogan said he was frustrated that violent repeat offenders are not receiving long prison sentences. “We keep putting the same exact violent people on the streets,” Hogan said.
In other states, truth-in-sentencing legislation has often meant eliminating parole and good-time credits that reduce sentences. Hogan did not provide details about the bill he will propose. Attendees at the meeting included Mayor Catherine Pugh, Maryland Attorney General Brian Frosh, Baltimore State’s Attorney Marilyn J. Mosby and City Council President Bernard C. “Jack” Young. Hogan invited Baltimore judges to attend the meeting, but they declined, saying it would be inappropriate.
Former NAACP president Ben Jealous, a Democrat running for governor, was among those who gathered outside the meeting. He called for it to be opened up to the public.
“The timing of the meeting reeks of politics,” he said. “Whenever you see a leader close a meeting that’s normally open, you have to ask, ‘Are they trying to hide something?’ You have to ask, ‘What are they afraid of?’ ”
Maryland law requires public bodies to allow people to observe their discussions when a quorum is discussing the public’s business. But, according to the Maryland attorney general’s office, the Baltimore City Criminal Justice Coordinating Council does not fall under the definition of a public body.
However, a memorandum of understanding that created the council says its meetings “shall be open to the public.”
Hogan said he wanted to avoid a “media circus,” and described the conversation as sometimes getting heated.
“The beauty of a having a closed-door session like that is we could be very frank and open and say exactly what we felt,” he said. “This wasn’t for political purposes.”
Frosh said he would have “preferred this be an open meeting.”
“I don’t think there was anything said up there that hasn’t been said somewhere else,” he said. “The main message was we all need to work together.”
To read more CLICK HERE

Wednesday, August 30, 2017

The enormous public cost for gunshot victim hospitalization

More than two thirds of gunshot victims admitted to American hospitals are covered by Medicaid, or don’t have health insurance at all, reported The Trace. And the price of that care is staggering: The average annual cost per admission for a firearm assault injury is $20,989, more than twice that of a typical hospital stay.
These findings anchor one of the most comprehensive studies of the cost of gunshot hospitalization in the United States to date, an examination of 336,785 hospital admissions by public-health researchers at the University of Iowa, published in the July edition of the journal Injury Epidemiology.
The research shows that African-American men are disproportionately represented among gun-injury admissions. It also shows the extent to which hospitals rely on government-backed insurance to pay the costs of caring for shot patients.
In the 10-year period examined by the researchers, uninsured patients and those with Medicaid or Medicare accounted for about 65 percent of the total cost of firearm-related hospital stays. Gunshot wounds resulted in an average annual cost of $622 million — a figure that the researchers say is almost certainly a big undercount, given that the estimated total population of gunshot victims is about three times the pool of patients whose data they were able to obtain.
“It’s important to recognize that this is a public cost,” said Corinne Peek-Asa, the study’s lead author and director of the University of Iowa Injury Prevention Research Center. “Being admitted for a firearm injury is very expensive, and we see so much of that cost is from uninsured or Medicaid sources.

To read more CLICK HERE

Tuesday, August 29, 2017

Trump on law-and-order

President Trump spent 18 months as the ultimate law-and-order candidate, promising to rescue an American way of life he said was threatened by terrorists, illegal immigrants and inner-city criminals.
But during seven months as president, many critics and legal scholars say, Mr. Trump has shown a flexible view on the issue, one that favors the police and his own allies over strict application of the rule of law, reported the New York Times.
Over the past two years, in ways big and small, the critics say, Mr. Trump has signaled that taking the law into one’s own hands is permissible, within the executive branch or in local police departments, or even against a heckler at one of his rallies.
The president’s pardon last week of Joe Arpaio, the former sheriff of Maricopa County, Ariz., and a strong supporter of Mr. Trump’s during the 2016 campaign, illuminated the impulses that shape his opinion.
The case, and the pardon that ended it, involved an assumption that minorities were more likely to commit crimes, a belief in the use of force to keep people in check, and what some of the president’s advisers privately describe as at best a lack of interest in becoming fluent in the legal process.
While Mr. Trump has spoken often of the significance of the rule of law, his actions have raised questions about his commitment to hallmarks of the American system like due process, equal protection under the law, independence of judicial proceedings from political considerations, and respect for orders from the courts.
“I don’t think you have to be a champion of it; all you need to do is comply with it,” said Charles Fried, a Harvard Law School professor who was a solicitor general under President Ronald Reagan.
“And he shows himself absolutely unwilling to respect it,” Mr. Fried said, citing the pardon as a particular thumb in the eye of a judge. “It’s a use of authority specifically to undermine the only weapon that a judge has in this kind of ultimate confrontation.”
Robert Bauer, who was White House counsel under President Barack Obama, said: “It’s very difficult to say that he stands for law and order — in fact, in many respects he’s kind of the president of disorder. He’s lurching around and basically responding to what he sees as his personal or legal imperative at any given moment.”
The historian Douglas Brinkley recalled dining with Mr. Trump at Mar-a-Lago in late 2016, after the election, and hearing the president-elect describe dining privately with Richard M. Nixon in New York after his presidency had ended.
“In his mind, a tough president was Nixon,” Mr. Brinkley said. “He creates a kind of fantasy world, and so he wants to be seen as one of the tough guys.”
The pardon, the conservative Washington Examiner said in an editorial, showed “once again Trump really means ‘busting heads’ when he says ‘law and order.’”
The editorial added: “But ‘law and order,’ if the words have any meaning, has to apply to government actors as well. Lawless sheriffs promote disorder, and that’s what Arpaio did to get himself convicted.”
To read more CLICK HERE

Monday, August 28, 2017

Alabama women's prison population soars

The women's prison population increased in Alabama by 66 percent between 2002 and 2013, driven almost entirely by a surge in the number of white women behind bars, reported The Birmingham News. About 50 percent of women in prison have been convicted of non-violent offenses, according to data provided by the Alabama Sentencing Commission, compared to 25 percent for the entire prison population, which is more than 90 percent male.
The reasons for the influx of white women into prison aren't entirely clear. Marc Mauer, executive director of the Sentencing Project, has documented dramatic changes in the racial makeup of female prisoners across the country. He said tough sentencing for drug crimes accounts for much of the growth in the number of incarcerated women, driven by the decline of crack - which was more prevalent in inner cities - and the rise of meth and opioids in rural areas.
Incarceration is just one symptom of deeper problems affecting white women, especially those with little education who live in rural areas, Mauer said. Demographers last year noted a rare decline in life expectancy for this group, driven by a surge in deaths from alcohol, drugs and suicide. Deaths among middle-aged women in small cities, towns and rural communities have risen the most, according to economists Ann Case and Angus Deaton.
Many of the same things that are killing rural American women - including mental illness and substance abuse - are also sending them to prison, Mauer said. The loss of factory and agriculture jobs have jolted Alabama communities once anchored by coal mines, lumber mills and textile plants. Jobless residents increasingly turn to drugs and crime. Rural communities are now struggling with the same problems that used to be linked to inner cities, Mauer said.
"Black communities have been hit with economic problems for the last hundred years," he said. "There may be more support from churches and within the community for people who are struggling in black communities. Some of these white communities are dealing with these problems for the first time."
To read more CLICK HERE

Sunday, August 27, 2017

Harsher, new DUI law goes into effect in Pennsylvania

A new law went into effect on August 25, 2017 aiming to cut down on drunk driving, reported WITF in Harrisburg.
It requires first-time offenders to have breathalyzers installed in their cars--something 48 other states already do.
Car breathalyzers--officially called Ignition Interlock Systems--require drivers to blow into a device to start their vehicle. If the device detects any alcohol, the car won't start, and it'll also register the attempt.
The systems have been proven to substantially cut down on drunk driving. But under previous Pennsylvania laws, only repeat offenders have been required to install them.
State Senator Scott Martin, a Lancaster County Republican and proponent of stronger impaired driving laws, said that policy was badly out of date.
"It's very symbolic of where Pennsylvania is lagging in terms of how it looks at repeat offenders and DUI laws in general," he said at a press conference. "Something's not getting through, and I believe that this place is part of the problem."
The new law, Act 33 of 2016, stipulates that any driver who's pulled over with a blood alcohol level of .10, or who refuses to be tested for alcohol, has to install an Ignition Interlock System in their car.
Offenders must pay for the devices, which cost between $900 and $1,300 a year. The law also establishes a new class of license that denotes a driver's status as a DUI offender.
Berks County Senator John Rafferty, a Republican who sponsored the measure, said this is just one part of a larger effort to crack down in drunk drivers.
"We've been coddling them for too long," he said. "It's time to recognize that they have problems. It's time to recognize that they're a danger on the highway to other individuals--innocent individuals--and to themselves."
Rafferty and Martin also want to instate mandatory minimum sentences for drunk drivers, and harsher penalties for deadly DUI accidents. 
To read more CLICK HERE

Saturday, August 26, 2017

GateHouse: Florida execution reveals racial inequities

Matthew T. Mangino
GateHouse Media
August 25, 2017
Yesterday at 6:22 p.m., at the State Prison in Starke, Florida the state Department of Corrections carried out its first execution in 19 months. Florida has executed 93 people since the death penalty was reinstated in 1979. Only three states — Texas, Virginia and Oklahoma — have executed more killers in the modern era of the death penalty.
There was another first when Mark James Asay was executed yesterday. A database maintained by the Death Penalty Information Center, a non-profit opposed to the death penalty, noted that Asay was the first white man executed for killing a black victim in Florida in more than 50 years.
Nationally, the racial pattern of death sentences, while not as extreme as Florida, leans sharply the same way, according to the Washington Post. Nationwide since 1976, 20 whites have been executed for murdering blacks, while 288 blacks have been executed for killing whites.
Asay, who is white, fatally shot Robert Lee Booker, a black man, after making multiple racist comments, prosecutors said. Asay’s second victim was Robert McDowell, who was mixed race, white and Hispanic. Prosecutors say Asay had hired McDowell, who was dressed as a woman, for sex and shot him six times after discovering his gender.
The vast majority of killings of whites are committed by other whites, according to the FBI’s Uniform Crime Report, and the overwhelming majority of killings of blacks are by other blacks. However, killings of black males by white people are labeled justifiable much more often than other killings.
When a white person kills a black man in America, the killer often faces no legal consequences. In one in six of these killings, there is no criminal sanction, according to a new Marshall Project analysis of 400,000 homicides committed between 1980 and 2014. That rate is far higher than the one for homicides involving other combinations of races.
In almost 17 percent of cases when a black man was killed by a white person over the last three decades, the killing was categorized as justifiable, which is the term used when a police officer or a civilian kills someone committing a crime or in self-defense. Overall, the police classify fewer than 2 percent of homicides committed by civilians as justifiable.
The disparity persists across different cities, different ages, different weapons and different relationships between killer and victim.
For example, in Houston overall three percent of homicides were determined to be justified. The justification rate soars to 37 percent when a white person kills a black person; in Los Angeles, the overall justification rate is 2 percent — 25 percent when a white kills a black; in Philadelphia, overall three percent — 23 percent when a white person kills a black person.
The Marshall Project acknowledges the problem may not be explained solely by racism. The report points to a 2013 study of justifiable homicide by the Urban Institute. The researcher, John Roman wrote, “If, for instance, white-on-black homicides were mainly defensive shootings in a residence or business, and black-on-white shootings mainly occurred during the commission of a street crime, then the (racial) disparity would be warranted.”
If the racial disparities only existed in the context of justifiable homicide then Roman’s explanation might be worth considering. However, as is painfully obvious in Florida, racial disparities exist with regard to the death penalty. Not to mention, that black people, according to the Prison Policy Initiative, are nearly six times as likely to be incarcerated as white people.
Yesterday’s execution is a painful reminder that racial problems in this country go far beyond white supremacists and confederate monuments.
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 at @MatthewTMangino.
To visit the Column CLICK HERE

Friday, August 25, 2017

Florida executes white man for killing black man--first time in 50 years

The 17th Execution of 2017
Florida executed Mark Asay at 6:22 p.m. ET on August 24, 2017 without any incident, according to CNN. It was the first execution in nearly 19 months, administering a lethal injection drug that had not previously been used in the United States.
Asay was first white man executed for killing a black person in Florida in more than 50 years.
Asay had no last statement, and did not speak or show any indication of pain during the execution. His demeanor earlier in the morning was calm, a Florida corrections department spokeswoman said.
Earlier in the  afternoon, the US Supreme Court denied a stay of execution request for Asay.
Asay was convicted in 1988 of the racially motivated murders of two men in Jacksonville the previous year.
A jury found him guilty of killing Robert Lee Booker -- who was black -- and Robert McDowell. Before he shot Booker, he called him a racial epithet, according to CNN affiliate WJAX.
To read more CLICK HERE

Thursday, August 24, 2017

Florida to execute white man for killing a black person, first time in state history

For the first time in state history, Florida is expecting to execute a white man for killing a black person, according to The Associated Press. The execution is scheduled for today, August 24, 2017.  Just this week I wrote about research that  found one in six white men who kill black men evade prosecution.
Barring a stay, Mark Asay, 53, is scheduled to die by lethal injection after 6 p.m. Asay was convicted by a jury of two racially motivated, premeditated murders in Jacksonville in 1987.
The planned execution — Florida's first since the U.S. Supreme Court halted the practice in the state more than 18 months ago — is expected to be carried out using etomidate, an anesthetic that has been approved by the Florida Supreme Court. Two other drugs also will be used.
Asay, who is white, fatally shot Robert Lee Booker, 34, a black man, after making multiple racist comments, prosecutors said. Asay's second victim was Robert McDowell, 26, who was mixed race, white and Hispanic. Prosecutors say Asay had hired McDowell, who was dressed as a woman, for sex and shot him six times after discovering his gender.
While Asay would be the state's first white man to be executed in Florida for killing a black man, at least 20 black men have been executed for killing white victims since the state reinstated the death penalty in 1976, according to data from the Death Penalty Information Center. A total of 92 Florida inmates have been executed in that time period.
Opponents of capital punishment said much more needs to be done to make Florida's criminal justice system more equitable.
"This does nothing to change the 170-year-long history of Florida not executing whites for killing blacks," said Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty.
To read more CLICK HERE

Wednesday, August 23, 2017

New Jersey abandons traditional bail process, jail population slumps

The bail system, enshrined in the Bill of Rights, is meant to ensure that all defendants, presumed innocent before trial, get a shot at freedom and return to court, reported NBC News.
But allowing people to pay for their release has proved unfair to people who don’t have much money. The poor are far more likely to get stuck in jail, which makes them far more likely to get fired from jobs, lose custody of children, plead guilty to something they didn’t do, serve time in prison and suffer the lifelong consequences of a criminal conviction. Those who borrow from a bail bondsman often fall into crippling debt.
At the same time, the wealthy can buy their way out of pretrial detention on just about any offense, including murder.
The bald inequity of this system has triggered a national movement to eliminate bail altogether.
But what to replace it with?
In New Jersey, the answer is an algorithm, a mathematical formula to determine whether someone is likely to return to court for trial or get arrested again.
This is what the new vision of American justice looks like.
Created by data scientists and criminal-justice researchers, the algorithm — one of dozens of “risk assessment tools” being used around the country — promises to use data to scrub the system of bias by keeping only the most dangerous defendants behind bars, regardless of their socioeconomic status.
Six months into this venture, New Jersey jails are already starting to empty, and the number of people locked up while awaiting trial has dropped.
But it’s also become clear that data is no wonder drug.
The new system — driven by years of research involving hundreds of thousands of cases and requiring multimillion-dollar technology upgrades and the hiring of more judges, prosecutors and court workers — still produces contentious decisions about who deserves freedom and who does not.
Police officials and prosecutors have complained about the release of people charged with gun crimes, fleeing police, attacking an officer, sex offenses and domestic violence — and of those who keep getting re-arrested. In at least two cases, people have been killed by men who’d been released on earlier charges. The bail bond industry, facing extinction, has backed two federal lawsuits seeking to end the algorithm’s use.
Defense lawyers and civil rights advocates, meanwhile, say people who pose little risk have been ordered detained, only to be given plea deals or had their charges dropped — a sign, they fear, that authorities are exploiting the new system to generate convictions.
And it remains unclear whether the new approach will reduce racial disparities, drive down crime rates or be fiscally sustainable.
Still, it is the best alternative anyone’s come up with.
And if this grand experiment works in New Jersey, it could become a model for the rest of the country.
To read more CLICK HERE

Tuesday, August 22, 2017

Ambushed judge returns fire and kills suspect

A judge was ambushed and shot Monday morning as he walked toward the Jefferson County Courthouse, and both the judge and a probation officer returned fire, fatally wounding the suspect, reported the Pittsburgh Post-Gazette. A passenger in the suspect’s car has been questioned by police.
Steubenville City Manager James Mavromatis said that Jefferson County Common Pleas Judge Joseph J. Bruzzese Jr. was shot as he walked just outside the courthouse shortly after 8 a.m. The judge was armed and returned fire, firing at least five shots, according to Jefferson County Sheriff Fred Abdalla. A probation officer fired an unknown number of shots. And the suspect, identified as Nathaniel Richmond, fired five shots.
The Steubenville police, the Jefferson County Sheriff’s department and the FBI are investigating. The FBI is helping with the investigation, said Jefferson County prosecuting attorney Jane Hanlin, “because we asked them to.”
Mr. Richmond was hit three times by gunfire, the sheriff said. He is the father of Ma’lik Richmond, who was convicted in the 2012 rape of a 16-year-old girl from Weirton, W.Va. Ma’lik was a high school football player at the time. The case gained national attention because the victim was incapacitated and because pictures from the scene were circulated on social media.
To read more CLICK HERE

Monday, August 21, 2017

Some long accepted forensic evidence being denounced

Hundreds of people have been  convicted in whole or in part on forensic science that has come under fire during the past decade, reported The Associated Press.
Some of that science — analysis of bite marks, latent fingerprints, firearms identification, burn patterns in arson investigations, footwear patterns and tire treads — was once considered sound, but is now being denounced by some lawyers and scientists who say it has not been studied enough to prove its reliability and in some cases has led to wrongful convictions.
Even so, judges nationwide continue to admit such evidence regularly.
“Courts — unlike scientists — rely too heavily on precedent and not enough on the progress of science,” said Christopher Fabricant, director of strategic litigation for the Innocence Project. “At some point, we have to acknowledge that precedent has to be overruled by scientific reality.”
Defense lawyers and civil rights advocates say prosecutors and judges are slow to acknowledge that some forensic science methods are flawed because they are the very tools that have for decades helped win convictions. And such evidence can be persuasive for jurors, many of whom who have seen it used dramatically on “Law & Order” and “CSI.”
Rulings in the past year show judges are reluctant to rule against long-accepted evidence even when serious questions have been raised about its reliability:
— A judge in Pennsylvania ruled prosecutors can call an expert to testify about bite marks found on a murder victim’s body, despite 29 wrongful arrests and convictions nationwide attributed to unreliable bite mark evidence since 2000.
— A Connecticut judge allowed prosecutors to present evidence that a footprint was made by a specific shoe belonging to a man accused of murder, despite a 2016 finding by the President’s Council of Advisors on Science and Technology that such associations are “unsupported by any meaningful evidence or estimates of their accuracy.”
— In Chicago, a federal judge rejected a request to exclude testimony of government experts to describe firearm and tool-mark comparisons they performed on bullets collected at crime scenes in the trial of Hobos gang members. The judge reasoned that defense lawyers were free to cross-examine the government’s experts.
Two reports by scientific boards have sharply criticized the use of such forensic evidence, and universities that teach it are moving away from visual analysis — essentially, eyeballing it — and toward more precise biometric tools.
But some defense lawyers fear any progress on strengthening forensic science may be lost under President Donald Trump.
a serious problem.”
The National Registry of Exonerations at the University of California Irvine has documented more than 2,000 exonerations since 1989. Nearly one-fourth list “false or misleading forensic evidence” as a contributing factor.
And a report last fall from the President’s Council criticized several “feature-comparison” methods, which attempt to determine whether a sample from a crime scene is associated with a sample from a suspect by comparing patterns. The council said those methods — including analysis of shoeprints, tire tracks, latent fingerprints, firearms and spent ammunition — need more study to determine their reliability and error rates.
When the reliability of forensic evidence is challenged through DNA testing or other new evidence, it often results in the granting of a new trial, even if there is other strong evidence against a
 Science, an independent panel of scientists, researchers, judges and attorneys that had been studying how to improve the reliability of forensic practices.
Some forensic methods have been questioned by defense lawyers for years, but it wasn’t until 2009 that the National Academy of Sciences, a nonprofit consisting of some of the nation’s most distinguished researchers, released a report that found that with the exception of DNA, many methods had not been tested enough to be considered valid.
To read more CLICK HERE

Sunday, August 20, 2017

When a white person kills a black man in America

When a white person kills a black man in America, the killer often faces no legal consequences, reports The Marshall Project.
In one in six of these killings, there is no criminal sanction, according to a new Marshall Project examination of 400,000 homicides committed by civilians between 1980 and 2014. That rate is far higher than the one for homicides involving other combinations of races.
In almost 17 percent of cases when a black man was killed by a non-Hispanic white civilian over the last three decades, the killing was categorized as justifiable, which is the term used when a police officer or a civilian kills someone committing a crime or in self-defense. Overall, the police classify fewer than 2 percent of homicides committed by civilians as justifiable.
The disparity persists across different cities, different ages, different weapons and different relationships between killer and victim.
“If, for instance, white-on-black homicides were mainly defensive shootings in a residence or business, and black-on-white shootings mainly occurred during the commission of a street crime, then the [racial] disparity would be warranted,” wrote researcher John Roman in a 2013 Urban Institute study of justifiable homicides.
Although the F.B.I.’s Supplementary Homicide Report tracks more than 100 details about each killing, the location of the death is not recorded. In addition, some police agencies, indeed some states entirely, choose not to share some or all information on killings.
Still, the disparities in how police classify these cases remain across widely different circumstances and causes of death. Whether the killer and victim were married, lovers, neighbors or complete strangers, whether they were shot, stabbed or beaten, the trend holds. The killings of black men by whites were two to 10 times as likely to be called justifiable.
Even after adjusting for the ages of the killer and victim, their relationship and the weapon used, the likelihood of a white-on-black-male case being called justifiable was still 4.7 times higher than in other cases.
To read more CLICK HERE

Saturday, August 19, 2017

GateHouse: Lincoln and ‘the better angels of our nature’

Matthew T. Mangino
GateHouse Media
August 19, 2017
Hanging on the wall in my office is a painting by Francis Bicknell Carpenter — “First Reading of the Emancipation Proclamation of President Lincoln.” The 1864 painting depicts Abraham Lincoln sitting in his office with members of his cabinet. It is a stark reminder today of “the better angels of our nature.”
Those men with Lincoln — Edwin M. Stanton, Secretary of War; Salmon P. Chase, Secretary of the Treasury; Gideon Wells, Secretary of the Navy; Caleb B. Smith, Secretary of the Interior; William H. Seward, Secretary of State; Montgomery Blair, Postmaster General and Edward Bates, Attorney General — were, as Doris Kearns Goodwin proclaimed, a “Team of Rivals.”
The Emancipation Proclamation was an executive order issued by Abraham Lincoln in the fall of 1862 that took effect on Jan. 1, 1863. In the wake of the unrest in Charlottesville, Virginia, it is important to remember what Lincoln did over 150 years ago.
Some say as a draft of the Emancipation Proclamation sat in his desk, Lincoln wrote a letter to Horace Greeley the editor of the New York Tribune, “My paramount object in this struggle is to save the Union ... If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”
Initially, Lincoln’s advisors were not in support of the Emancipation Proclamation. When Lincoln first proposed the idea many of his cabinet secretaries were concerned that the Proclamation was too radical.
During the meeting depicted in Carpenter’s painting, Secretary of War Stanton, brought up the idea of arming the freed slaves. Lincoln was thinking of something bigger. He rose, turned to his Cabinet and told them that he had prepared a draft of a proclamation that would free all of the slaves in the Confederate States.
Stanton and Bates supported Lincoln’s idea. Seward and Chase were reluctant and Blair was opposed. Welles and Smith apparently remained silent.
Seward suggested waiting for a Union victory to legitimize the Union’s authority to issue such a far-reaching order. The Battle of Antietam was the “victory” Lincoln was looking for. He issued the Proclamation just five days after the battle.
Chase wrote a letter to Carpenter in 1866, an apparent effort to revise history, noting that he and Stanton appear symbolically on Lincoln’s right in the painting, having “thoroughly endorsed and heartily welcomed the measure,” and the cabinet members who had at first “doubted, or advised delay, or even opposed” the proclamation appear on Lincoln’s left.
The Emancipation Proclamation freed the slaves in the 10 Confederate States still fighting the Civil War. Interestingly, the Proclamation did not outlaw slavery or free the slaves in the Union states that still permitted it.
The proclamation also authorized the enlistment of freed slaves in the Union Army, increasing the Union’s available manpower.
Maybe most important for the war effort, the Proclamation also prevented European forces from intervening in the war on behalf of the Confederacy. The proclamation made the abolition of slavery a goal of the war. Most European countries had abolished slavery and were squeamish about slavery in the Confederacy.
As Lincoln hoped, the Proclamation swung foreign popular opinion in favor of the Union and ultimately achieved his goal at saving the Union.
President Lincoln anticipated that the Emancipation Proclamation would be the most important aspect of his legacy. “I never, in my life, felt more certain that I was doing right, than I do in signing this paper,” he declared. “If my name ever goes into history it will be for this act, and my whole soul is in it.”
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 at @MatthewTMangino
To visit the Column CLICK HERE

Thursday, August 17, 2017

Civil forfeitures on the down swing

Today, three states—North Carolina, New Mexico and Nebraska—have abolished civil forfeiture entirely, reports the Institute for Justice.

Since 2014, 24 states and the District of Columbia have reformed their civil forfeiture laws:
Minnesota (the state enacted reforms in both 2014 and 2017)
Michigan (the state enacted reforms in both 2015 and 2017)
Utah (the state enacted reforms in both 2015 and 2017)

Fourteen states now require a criminal conviction for most or all forfeiture cases:
North Carolina
Missouri (enacted in 1993)
California (enacted in 1994) (excluding cash over $40,000)
Oregon (enacted in 2000)
New Mexico
New Hampshire
Ohio (excluding property valued at over $15,000)
Iowa (excluding property valued at over $5,000)
In a similar vein, Utah bans forfeiture for cases where the claimants are found not guilty and are acquitted.
To read more CLICK HERE

Wednesday, August 16, 2017

Former President Obama’s tweet on Charlottesville is is the most liked tweet in Twitter’s history

Former President Barack Obama’s tweet on the violence fueled by neo-Nazi’s is Charlottesville has become the most liked tweet of all-time, reported the Washington Post.
Since leaving office, Obama has commented on major events or controversies, including the terrorist attack in Manchester, England, and Sen. John McCain's brain cancer diagnosis. He did so again on Saturday, after the deadly violence in Charlottesville.
“No one is born hating another person because of the color of his skin or his background or his religion … People must learn to hate, and if they can learn to hate, they can be taught to love … For love comes more naturally to the human heart than its opposite,” Obama said, quoting former South African president Nelson Mandela in tweets.
The first tweet, which shows a picture of Obama smiling at four children, has been retweeted more than 1.1 million times and liked 3.2 million times as of as of this writing.
The message became the most liked tweet of all time, surpassing Ariana Grande's response to the deadly terrorist attack after her concert in Manchester. It also ranks No. 7 among the most retweeted tweets according to Favstar, a tweet tracking site.
To read more CLICK HERE

Tuesday, August 15, 2017

Some states want to protect people who 'accidentally' run-over protesters

It the wake of what appears to be an intentional act to kill and maim counter-protester by a white supremacist in Charlottesville, VA, it is interesting to note that state lawmakers in at least six GOP-controlled states have pushed for laws this year that would shield drivers who hit protesters.
The bills are part of a wave of anti-protest proposals introduced since the rise of the Black Lives Matter and anti-Trump resistance movements, reported ThinkProgress.
Two Republican lawmakers in North Dakota started the trend in January when they introduced a bill that would protect motorists who hit pedestrians blocking traffic, as long as the consequences are unintentional.  State Rep. Keith Kempenich (R) said he authored the legislation after his mother-in-law was swarmed on a roadwayby people protesting the construction of the Dakota Access pipeline.
“A driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages,” the proposed law read.
The bill was rejected in a 41-50 vote in February, but not before it inspired similar legislation in other red states across the country.
In Tennessee, lawmakers proposed a measure to protect drivers from civil liability after a motorist ran into safety workers at a rally against President Trump’s travel ban in Nashville. Police said that five or six protesters ended up on top of an SUV before the driver, who was not arrested, left the scene. The bill failed in a House committee in March.

To read more CLICK HERE

Monday, August 14, 2017

40 years ago: The Summer of Sam

Forty years ago was the Summer of Sam in New York City. David Berkowitz—the Son of Sam--a postal employee from Yonkers killed six and wound seven. He used a .44 caliber revolver and he not only terrified the city—he became a legend. 
According to Irish Central, there had been much speculation that the “Son of Sam” nickname referred to a former US soldier perhaps, but Berkowitz said that the "Sam" was his former neighbor Sam Carr. Berkowitz claimed that Carr's black Labrador retriever Harvey was possessed by an ancient demon and that it issued irresistible commands that Berkowitz must kill people.
New York in 1977 felt like a city under siege. The City of New York was broke. There were 1,919 murders. The subways had wall-to-wall graffiti and more robbers than cops, the potholes were never filled, and in certain areas of the city—like the South Bronx and even what is now lower Columbus Avenue in Manhattan—it looked like Berlin at the end of World War II.
Son of Sam was arrested 40 years ago this month. A woman, Cacilia Davis, saw Berkowitz return to his car his arm held stiffly by his side, holding the gun he had just used for his final killing.
He stared her down. Disconcerted, she took off for home and heard shots as Berkowitz fired after her. Terrified, she did not report the incident until four days later. When the police investigaed, it led them to Yonkers and Berkowitz.
Unlike his terror, his surrender did not end with a bang, but rather a whimper. He was arrested on August 10th outside his apartment without incident. New York’s summer of fear and agony was over.
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Sunday, August 13, 2017

This is the age of the plea bargain

This is the age of the plea bargain, writes Emily Yoffe in The Atlantic. here are excepts from her exceptional recent column.
Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”
Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial is avoided, and everybody benefits. But in recent decades, American legislators have criminalized so many behaviors that police are arresting millions of people annually—almost 11 million in 2015, the most recent year for which figures are available. Taking to trial even a significant proportion of those who are charged would grind proceedings to a halt. According to Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law School, the criminal-justice system has become a “capacious, onerous machinery that sweeps everyone in,” and plea bargains, with their swift finality, are what keep that machinery running smoothly.
Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.
As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”
According to the Prison Policy Initiative, 630,000 people are in jail on any given day, and 443,000 of them—70 percent—are in pretrial detention. Many of these defendants are facing minor charges that would not mandate further incarceration, but they lack the resources to make bail and secure their freedom. Some therefore feel compelled to take whatever deal the prosecutor offers, even if they are innocent.
Writing in 2016 in the William & Mary Law Review, Donald Dripps, a professor at the University of San Diego School of Law, illustrated the capricious and coercive nature of plea bargains. Dripps cited the case of Terrance Graham, a black 16-year-old who, in 2003, attempted to rob a restaurant with some friends. The prosecutor charged Graham as an adult, and he faced a life sentence without the possibility of parole at trial. The prosecutor offered Graham a great deal in exchange for a guilty plea: one year in jail and two more years of probation. Graham took the deal. But he was later accused of participating in another robbery and violated his probation—at which point the judge imposed the life sentence.
What’s startling about this case, Dripps noted, is that Graham faced two radically different punishments for the same crime: either be put away for life or spend minimal time behind bars in exchange for a guilty plea. In 2010, the Supreme Court ruled, in Graham v. Florida, that the punishment Graham faced at trial was so cruel and unusual as to be unconstitutional. The Court found that a juvenile who did not commit homicide cannot face life without parole.
Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me. The result, according to the late Harvard law professor William J. Stuntz, who wrote extensively about the history of plea bargains in The Collapse of American Criminal Justice (2011), is a system that has become “the harshest in the history of democratic government.”
Plea bargaining didn’t exist in colonial America. Law books, lawyers, and prosecutors were rare. Most judges had little or no legal training, and victims ran their own cases (with the self-evident exception of homicides). Trials were brief, and people generally knew one another. By the 19th century, however, our modern criminal-justice system was coming into its own: Professional prosecutors emerged, more defendants hired lawyers to represent them, and the courts developed more-formal rules for evidence. Trials went from taking minutes or hours to lasting days. Calendars became clogged, which gave judges an incentive to start accepting pleas. “Suddenly, everybody operating inside the system is better off if you have these pleas,” Penn’s Stephanos Bibas told me.
The advantages of plea bargains became even clearer in the latter part of the 20th century, after the Supreme Court, under Chief Justice Earl Warren, issued a series of decisions, between 1953 and 1969, that established robust protections for criminal defendants. These included the landmark Gideon v. Wainwright andMiranda v. Arizona decisions, the former of which guaranteed the Sixth Amendment right to counsel in felony cases (since expanded to some misdemeanor cases), and the latter of which required that police inform those in their custody of the right to counsel and against self-incrimination. The Court’s rulings had the inevitable effect of making trials lengthier and more burdensome, so prosecutors began turning more frequently to plea bargains. Before the 1960s, according to William J. Stuntz, between one-fourth and one-third of state felony charges led to a trial. Today the figure is one-twentieth.
The legal system provides few rules and protections for those who take a deal. In what has been described as one of the Court’s earliest plea-bargain decisions, Brady v. United States (1970), the justices found that guilty pleas were acceptable as long as certain conditions were met, among them the following: Defendants had to have competent counsel; they had to face no threats, misrepresentations, or improper promises; and they had to be able to make their plea “intelligently.”
This seemed eminently fair. But crime had already started to increase sharply. The rise provoked a get-tough response from police, prosecutors, and legislators. As the rate of violent crime continued to accelerate, fueled in part by the crack epidemic that started in the ’80s, the response got even tougher. By the 1990s, the U.S. had entered what Donald Dripps calls “a steroid era in criminal justice,” which continued even though violent crime peaked by 1992 and began its now-historic decline. In the late 20th century, legislators passed mandatory-minimum-sentence and “three strikes” laws, which gave prosecutors an effective bludgeon they could use to induce plea bargains. (Some “three strikes” laws result in life imprisonment for a third felony; hundreds of people in California received this punishment for shoplifting. California reformed its three-strikes legislation in 2012 to impose such punishments only for serious or violent felonies.)
The growth of the system took on a life of its own. “No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”
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Saturday, August 12, 2017

GateHouse: A first step: Decriminalizing status offenses

Matthew T. Mangino
GateHouse News
August 11, 2017
Being a kid is difficult. For many young teens, misbehaving can be part of normal development. Teens need to explore and take risks to understand social and personal boundaries. This process is not new -- it has been around since time immemorial.
Why are we criminalizing the “normal” behavior of teenagers?
In 2014, according to a new study by the Vera Institute, there were more than 100,000 cases in the U.S. in which kids were sent to court for status offenses. A status offense is conduct that is only illegal by virtue of the person’s status as a minor.
Status offenses include such things as truancy, running away, curfew violations, underage drinking and the catch-all offense of incorrigibility -- repeatedly defying parents or teachers. The term status offense implies that a kid has committed a crime, just by virtue of age. Yet, they are anything but criminal. Kids -- especially teenagers -- are known to act up or disobey adults, and engaging in status offense behaviors is not uncommon.
These are not actions that most people imagine would land a kid in the juvenile justice system. Unfortunately, everyday teenagers nationwide are handcuffed, taken to court, or locked up for status offenses.
The Vera Institute study, “Just Kids: When Misbehaving is a Crime” explores the behaviors of young people. The behaviors may stem from a variety of factors that can range from normal adolescent development to underlying problems that need closer attention.
However, families, schools and communities frustrated with rebellious kids turn to the justice system. The study points out, unfortunate, but often occurring scenarios when dealing with teens: School officials calling on law enforcement when kids fight in class; police officers taking runaway kids to detention facilities when there is nowhere else to take them; and parents seeking out courts to get help for children they perceive as out of control.
This process of moving disruptive students from the principal’s office to the courthouse is known as the school-to-prison pipeline. When young people are criminalized for their behavior in schools, exposed to law enforcement -- and the rest of the criminal justice system -- at an early age, they become more likely to interact with that system in the future. According to the U.S. Department of Education’s Civil Rights Data Collection during the 2011-2012 school year, schools referred approximately 260,000 students to law enforcement, and approximately 92,000 students were arrested on school property during the school day or at school-sponsored events.
Such a punitive approach has detrimental consequences. According to the Vera Institute study, “it criminalizes kids for misbehaviors that pose little to no risk to public safety and may punish them for developmental changes and service needs that are beyond their control.”
When it comes to the school building, “You have to differentiate the security issue and the discipline issue,” Michael Nash, the former presiding judge of juvenile court in Los Angeles and former president of the National Council of Juvenile and Family Court Judges told the New York Times. “Once the kids get involved in the court system, it’s a slippery slope downhill.”
Some communities have realized the ill effect of criminalizing status offenses. Local courts have adopted diversion programs for offenses such as underage drinking or disorderly conduct. However, the continued, and increasing, presence of law enforcement in schools and the eagerness of school administrators to push school discipline in the direction of the police need to be addressed.
The study summed it up this way, “The misuse of courts for status offense cases is not inevitable. Changing the nation’s approach will require a concerted effort from all the agencies that play a role in working with kids.” A laudable goal and one that is not out of reach.
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 at @MatthewTMangino.
To visit the column CLICK HERE

Friday, August 11, 2017

Trump supporter and Nazi sympathizer Jeffrey Lord out at CNN

CNN severed ties with political commentator, and President Trump apologist, Jeffrey Lord  after he tweeted “Sieg Heil!” His use of that Nazi salute was “indefensible,” the network said, but--What took you so long? 
Since joining CNN as an analyst in August 2015, Lord has become well-known for being one of the network’s most vocal supporters of President Donald Trump and for his outlandish, racist comments. The tweet, which he directed at Media Matters for America’s Angelo Carusone and claimed later was merely “mocking Nazis and Fascists,” is only the latest of such remarks.
To read more CLICK HERE 

Thursday, August 10, 2017

Vera Institute: Status offenses push juveniles into criminal justice system

Skipping school, running away from home, violating curfew: these are not actions that most people imagine would land a kid in the juvenile justice system. And yet, every year, thousands of kids across the United States are handcuffed, taken to court, or locked up for just these misbehaviors—often referred to as status offenses—which are only illegal because of a kid’s status as a minor, according to a new report by the Vera Institute. 
Anyone under the age of 18 is subject to status offense charges, but teenagers between the ages of 14 and 17 comprise most status offense cases, so those are the kids referred to in this report.
These behaviors may stem from a variety of factors that can range from normal adolescent development to underlying problems that need closer attention. But when families, schools, and communities don’t know what else to do, they turn to the justice system. 
Common scenarios that play nationwide include: school officials calling on law enforcement when kids fight in class; police officers taking runaway kids to detention facilities when there is nowhere else to take them; and parents seeking out courts to get help for children they perceive as out of control.Such a punitive approach has detrimental consequences: it criminalizes kids for misbehaviors that pose little to no risk to public safety and may punish them for developmental changes and service needs that are beyond their control. It also disproportionately pushes kids into the system who are already underserved and more likely to be subject to biases and harsher discipline—specifically girls, kids from poor communities, kids of color, and lesbian, gay, bisexual, transgender, and gender non-conforming (LGBT/GNC) kids. 
The justice system is not designed to support kids as they grapple with developmental changes or to address the underlying issues that may be causing them to “act out.” Instead, court involvement—and the incarceration that may follow—increases kids’ risk of engaging in future delinquent (criminal) behaviors and moving deeper into the system.
As policymakers and practitioners across the country look to reduce mass incarceration, status offenses demand attention as early and improper points of entry into the juvenile justice system, and potentially the criminal justice system more broadly. 
This special report offers a primer on status offenses, including what they are and why the current approach to handling these cases is not working. It also highlights the key factors that have contributed to the cycle of kids being pushed into the system and what can be done to shift away from this punitive approach.   
To read the report CLICK HERE

Wednesday, August 9, 2017

Oregon legislature looks to decriminalize hard drugs, Governor expected to sign

On July 6th, the Oregon legislature voted to decriminalize cocaine, heroin, methamphetamine, oxycodone, LSD, and ecstasy, reported The Hill. While reform of prohibitions on both medical and recreational use of marijuana has gained popularity in states across the country, most people remain skeptical of the benefits of reducing or eliminating criminal penalties for harder drugs. Yet, rolling back prohibitions on harder drugs is likely to bring greater benefits than those produced by the relaxation of marijuana prohibitions precisely because the harder drugs are more dangerous.
Oregon House Bill 2355, which would become state law if Governor Kate Brown signs it as expected, decriminalizes the possession of small amounts of the drugs for people who do not have more than two prior drug convictions or any felony convictions. If it becomes law, Oregon will become the first state to decriminalize these hard drugs.
In 1973, Oregon became the first state to decriminalize possession of small amounts of marijuana and, in 2015, it became the 4th state to legalize the sale of marijuana for recreational use. Today, eight states and the District of Colombia have legalized recreational use and most states have passed some version of decriminalization or removed prohibitions on the use of medical marijuana.
To read more CLICK HERE

Tuesday, August 8, 2017

PA Bill would prevent talking on cell phone while driving

Pennsylvania drivers would no longer be allowed to talk on a hand-held phone while they operate a vehicle if a recently introduced House bill is passed, reported Lancaster Online.
House Bill 1684 would prohibit anyone 18 and older from talking on the phone while driving, unless they use hands-free accessories. Drivers under 18 wouldn't be allowed at all, even with hands-free accessories.
A violation would result in three points on a driver's license and a fine of $50 for the first offense, and $100 for each subsequent offense.
Exceptions are included in the bill for emergency situations, such as calls to law enforcement officers and first responders. The full list is outlined in the bill.
To read more CLICK HERE

Monday, August 7, 2017

PLW: A Long and Torturous Journey Through the Criminal Justice System

Matthew T. Mangino
The Legal Intelligencer/PLW
August 3, 2017
Qu'eed Batts will soon be scheduled for his third sentencing hearing. His long and torturous journey through the criminal justice system has placed him right smack in the middle of a judicially driven realignment of juvenile punishment.
Batts was convicted of first-degree murder for a gang-related killing he committed as a 14-year-old. He was sentenced to life without parole in 2007. His case ultimately made it to the Pennsylvania Supreme Court where it was remanded to the trial court for resentencing.
In 2014, Batts was again sentenced to life in prison without the possibility of parole. His case made its way back to the Pennsylvania Supreme Court where last month the court said, "We are now in the undesirable position of yet again having to remand Batts' case for resentencing."
That line from the court's opinion vastly understates everything leading up to the court's decision in Batts. In Commonwealth v. Batts, No. 45 MAP 2016, the Pennsylvania Supreme Court unanimously ruled that the state must bear a high burden—establish a juvenile is permanently incorrigible—before the court can impose a sentence of life without parole.
The origins of this decision can be traced back nearly 30 years. In 1988, the U.S. Supreme Court decided Thompson v. Oklahoma, 487 US 815 (1988). At the age of 15, William Thompson was tried as an adult, convicted of first-degree murder and sentenced to death.
The high court held that the execution of a person under the age of 16 violated the Eighth Amendment's prohibition against "cruel and unusual punishment." The court noted the uniform ban among all relevant state statutes against the execution of an offender under the age of 16. The court held executing an offender under 16 would violate the "evolving standards of decency that mark the progress of a maturing society."
The high court for the first time acknowledged that age of an offender was a disqualifying factor for purposes of the death penalty. One year later, the court was not inclined to expand the age for disqualification. In Stanford v. Kentucky, 492 US 361 (1989), the Supreme Court refused to ban the execution of 16- and 17-year-olds. The Supreme Court ruled, "With respect to American society, there is no national consensus regarding the imposition of capital punishments on 17- or 16-year-old individuals."
In the 1990s with the now debunked "superpredators" and increasing violence in urban areas, things got tougher for youthful offenders in Pennsylvania.
In 1995, Pennsylvania's newly elected governor, Tom Ridge, called for a special legislative session on crime. Pennsylvania fell in line with many other states as Ridge convinced the legislature to overhaul the juvenile justice system with the mantra "adult time for adult crime."
As a result, a fundamental change in the law made it easier to charge juveniles as adults. In fact, certain violent offenses require prosecutors to charge juveniles as adults pursuant to 42 Pa.C.S.A. 6302. At the time, conviction of first- or second-degree murder in Pennsylvania meant a mandatory sentence of life in prison without the possibility of parole.
This contributed to Pennsylvania's distinction of having more than 500 people in prison for life for killings committed as juveniles—the most in the nation.
It took 16 years for the U.S. Supreme Court to revisit the death penalty and juveniles. In 2005, the Supreme Court banned the execution of juveniles in the landmark decision Roper v. Simmons, 543 US 551 (2005).
In a 5-4 opinion delivered by Justice Anthony Kennedy, the court ruled that standards of decency have evolved in the prior 16 years so that executing minors is "cruel and unusual punishment." The majority cited a consensus against the juvenile death penalty among state legislatures, and its own determination that the death penalty is a disproportionate punishment for minors.
However, Kennedy went beyond the issue of evolving standards of decency. Kennedy wrote in Roper that juveniles are cognitively immature and therefore less culpable. The brain development argument sent the issue of juvenile punishment in a whole new direction.
The juvenile criminal court system is distinctly different from the adult criminal court system. The juvenile system is not punitive. The focus has always been on rehabilitation and is oriented toward the treatment of young offenders. Adult court is more about retribution and incapacitation. Sure there are some young offenders who are not amenable to treatment and are so dangerous that only a lifetime of incarceration would protect the public. How do you differentiate between a juvenile who should be in prison and one who belongs in treatment? Kennedy wrote in Roper, "It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." He went on to write that it is impermissible to render an opinion about antisocial disorders in offenders under age 18.
The evolution of juvenile punishment continued. In 2010, the U.S. Supreme Court in Graham v. Florida, 560 US 48 (2010), struck down the punishment of life without the possibility of parole for juveniles who committed crimes other than homicide. In that case, though only 13 states had abolished the punishment, the court nevertheless found a national consensus against the punishment because an additional 26 states did not actually have any juveniles serving a life sentence.
Then came Miller v. Alabama, 567 US 46 (2012). The high court ruled that a mandatory sentence of life in prison without the possibility of parole imposed upon a juvenile violated the Eighth Amendment.
The decision, however, did not outlaw life sentences for juveniles. Prosecutors in Pennsylvania and across the country could still pursue life sentences for juvenile killers. The court ruled that state lawmakers cannot force a judge to impose a life sentence on a juvenile.
Mandatory sentences prevent judges from exercising discretion. "It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him," Justice Elena Kagan wrote for the majority. "We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," Kagan wrote. However, the court did not address whether the decision was retroactive. For Pennsylvania the question remained, what does the state do with the 500 juvenile lifers already in prison?
The legislature addressed the issue of juvenile sentencing for first- and second-degree murder after Miller. The new law provided at least 25 years for those who killed when 14 and younger, and at least 35 years for defendants who were between ages 15 and 18. Life without parole was banned for juveniles convicted of second-degree murder.
Juvenile lifers in Pennsylvania were dealt a blow in 2013 by the Pennsylvania Supreme Court in Commonwealth v. Cunningham, 83 A.3d 1 (2013), a 4-3 decision finding Miller was not retroactive.
According to Cunningham, Miller only applied to cases that were pending on appeal at the time Miller was decided in 2012. The majority opinion written by Justice Thomas G. Saylor found, "Here, applying settled principles of appellate review, nothing in appellant's arguments persuades us that Miller's proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of 18 at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller's announcement."
Then in 2016 hope was restored. The U.S. Supreme Court decided Montgomery v. Louisiana, 577 US ___ (2016). The high court expanded Miller saying that the decision must be applied retroactively to an estimated 1,200 to 1,500 inmates—500 of whom were in Pennsylvania—from states where the courts had decided that Miller was not retroactive.
Henry Montgomery was 17 years old when he shot and killed a deputy sheriff. Montgomery was sentenced to life in prison without the possibility of parole.
Kennedy, writing for the 6-3 majority, held that Montgomery and other similarly situated offenders were entitled to resentencing or parole consideration.
The new decision appeared to go beyond the actual scope of the Miller ruling according to the SCOTUSBlog. Montgomery provided that in the future a newly convicted juvenile will be able to show, at the time of sentencing, that he is not beyond rehabilitation. The court declared that life without parole—not just mandatory life without parole—is always unconstitutional for a juvenile unless he is found to be "irreparably corrupt" or "permanently incorrigible."
That brings us to Batts. The Pennsylvania Supreme Court found Miller and Montgomery establish a presumption against life without parole sentences for juveniles and that the burden is on prosecutors to prove beyond a reasonable doubt that a young person is incapable of rehabilitation before such a sentence is issued. Justice Christine Donohue, who authored the decision, stated that when Batts is re-sentenced he must be provided "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."
The court concluded "There is a presumption against the imposition of a sentence of life without parole for a defendant convicted of first-degree murder committed as a juvenile. The commonwealth must give reasonable notice of its intention to seek a sentence of life without the possibility of parole. To rebut the presumption, the commonwealth has the burden to prove, beyond a reasonable doubt, that the juvenile offender is permanently incorrigible and thus unable to be rehabilitated."
The tally sheet for juvenile lifers in Pennsylvania looks like this—according to the Pennsylvania Department of Corrections—there have been 516 juvenile lifers in the prison system, two have died, 40 have been released, 93 have been resentenced and 56 have been paroled. Batts is now 26 years old and spends his days at SCI Coal Township. He will soon get another chance at someday being a free man. 
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. Contact him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Saturday, August 5, 2017

GateHouse: Not all speech is protected

Matthew T. Mangino
GateHouse Media
August 4, 2017
The woman found guilty in the sensational homicide-by-text case has been sentenced to prison. Twenty-year-old Michelle Carter was found guilty in June by a Massachusetts judge of involuntary manslaughter in the 2014 suicide of her boyfriend, Conrad Roy III. Carter repeatedly encouraged Roy to commit suicide by asphyxiation via text message.
Soon after her conviction some lawyers warned of the impending demise of free speech. Matthew Segal, the head of the Massachusetts branch of the American Civil Liberties Union criticized the Court’s decision according to the Boston Globe, tweeting that Carter’s conviction “expands Massachusetts’ criminal law and imperils free speech.”
Before we grab our torch and pitchfork, let’s review the history of the First Amendment right to free speech.
The First Amendment was ratified, along with nine other amendments to the U.S. Constitution referred to as the Bill of Rights. The First Amendment reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Those 45 words lay the groundwork for some fundamental rights -- freedom of religion, freedom of speech, freedom of the press and the right to assemble.
In 1919, U.S. Supreme Court Justice Oliver Wendell Holmes established the clear-and-present-danger test: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent.” This is the opinion where Holmes declared the now-famous example of unprotected speech -- falsely crying “fire” in a crowded theater.
So, clearly not all speech is protected under the First Amendment. The First Amendment does not simply say that if words are involved, you cannot be held responsible for their consequences.
In 1969, the U.S. Supreme Court further clarified unprotected speech when it held that speech can be prohibited if it is directed at inciting imminent lawlessness and if it is likely to produce such action.
Carter’s crime is not new. Her arrest and trial has been a big story because it involved relatively new technology -- texting. There is a long history of legal precedent laying out when speech can be considered a crime.
In 2011, a Minnesota nurse, William Melchert-Dinkel, was convicted of two counts of assisted suicide. He was encouraging people in Internet chat rooms to commit suicide. He sought vulnerable people contemplating suicide and encouraged them by explaining what methods worked best, that suicide was a viable option and that they would be better off in heaven. In some instances, he falsely entered into suicide pacts with his quarry.
The Minnesota judge said that state law made it a crime to participate in speech that intentionally advised, encouraged or aided another in taking their own life.
The case was complicated and rife with First Amendment concerns. The Minnesota Supreme Court overturned the convictions in 2014. He was subsequently convicted a second time and sentenced to 360 days in jail.
The judge presiding over Carter’s trial agreed with prosecutors that her speech was not protected. The judge was not so concerned with the encouragement of suicide, but rather her recklessness once she realized Roy was in danger.
“She admits in ... texts that she did nothing: She did not call the police or Mr. Roy’s family” after hearing his last breaths during a phone call ... “and, finally, she did not issue a simple additional instruction: Get out of the truck.”
Yesterday she was sentenced to 2 ½ years in prison.

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 at @MatthewTMangino
To visit the column CLICK HERE