GateHouse: Kennedy’s legacy includes the evolution of juvenile punishment

Matthew T. Mangino

GateHouse Media

June 29, 2018

When U.S. Supreme Court Justice Anthony M. Kennedy announced his retirement there was a mix of nostalgia, dismay and alarm. Kennedy is 81-years-old and has been a judge for 43 years — 30 on the Supreme Court. It would be a bit disingenuous to suggest his announcement was a shock.

My law career began the year Kennedy was confirmed. He came as an afterthought to the beleaguered conservative Robert Bork. President Ronald Reagan nominated Bork to the Supreme Court, but he failed to be confirmed following a raucous and bitter battle in the U.S. Senate.

Kennedy’s record on the Supreme Court has demonstrated that the struggle to keep Robert Bork off the court was worth the effort. Kennedy has been a moderate voice on the court during some turbulent times, thus the dismay at his departure.

The alarm is for good reason. President Donald Trump will have the opportunity to nominate his second Supreme Court justice. With the court evenly divided and the voice of moderation leaving, President Trump can use his acknowledged litmus test for a new justice — overrule Roe v. Wade.

Although America is facing uncertain times it is worthwhile to reflect on the impact that Kennedy has had on American jurisprudence. Certainly, there are his swing votes on same-sex marriage, gun control and campaign finance, but I believe Kennedy’s most impactful decisions grew out of the criminal justice system.

In 2005, in a case known as Roper v. Simmons, Kennedy was the deciding vote in abolishing the death penalty for juvenile offenders. Kennedy wrote the majority opinion and went beyond merely writing that imposing the death penalty on juveniles was cruel and unusual punishment.

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. Adult court is about retribution and incapacitation. The juvenile system is not punitive. The focus has always been on rehabilitation and is oriented toward the treatment of young offenders.

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.”

When Roper was argued, death penalty opponents floated the idea that life without parole was an appropriate alternative to the death penalty. However, Kennedy’s brain development argument lends itself to arguing that life without parole is inappropriate for any juvenile offender regardless of offense.

In 2010, Kennedy was once again the swing-vote in a 5-4 decision out of Florida banning life in prison for juveniles convicted of non-homicide offenses. In Roper, Kennedy wrote that juveniles have a “lack of maturity and an underdeveloped sense of responsibility”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.”

In the Florida case, Kennedy wrote, “No recent data provide reason to reconsider the Court’s observations in Roper about the nature of juveniles. ... developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”

In 2012, the high court took Kennedy’s reasoning a step further. The court ruled that a mandatory sentence of life in prison without the possibility of parole imposed upon a juvenile violated the Eighth Amendment. Kennedy’s legacy lies in infusing dignity into the criminal justice system as it relates to juveniles. Thirteen years before Kennedy’s opinion in Roper the Supreme Court had upheld the execution of juveniles 16 years of age and older.

Today, 13 years after Roper — chiefly through the reasoning of Justice Kennedy — teenagers are no longer subject to the death penalty, they are much less likely to face life in prison and now, more than ever, their age and mental acuity are factors to consider at the time of sentencing.

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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The President's contempt for the judiciary is dangerous

Kevin Judd and Keith Watters writing as part of the Defending Justice Series of the American Bar Association Journal contend, President Trump’s utter lack of respect and understanding of the need for an independent judiciary is exemplified when he debased Judge Curiel on racial grounds and also made ad hoc criticisms against the court of appeals. 

A judiciary without the faith of the executive is a danger to a free and open society. Citizens rely equally on each of the three branches of government for the administration of governmental affairs. When citizens lose confidence with the branch of government responsible for interpreting the laws, all of our institutions are diminished.

President Trump’s attacks upon judges and judicial decisions undermines the legitimacy of the courts. This diminishes the purpose of having not only a system of checks and balances, but of having a neutral court that can operate independently. Derogatory tweets and criticisms from the executive branch must not be allowed to intimidate the judiciary. For centuries, Americans have relied on fair courts to prevent government overreach and to maintain the constitutional rights of its citizens, regardless of the political motivations of the other two government branches. Allowing the federal courts to serve as an impartial and independent body free of executive interference is crucial to preserving the ideals of the United States of America.

The head of state’s disrespect and contempt for one of the bedrock principles of democracy demonstrates why an independent judicial branch is essential. The executive branch cannot usurp the judicial branch, and the executive branch should not attempt to abrogate this core constitutional structure. Our system of checks and balances has proved to be the bedrock of our democracy. The Constitution safeguards judicial independence; however, separation of powers ensures that each branch must accord the others a certain level of deference. As the Supreme Court ruled in United States v. Nixon, no person, not even the president of the United States, is above the law.

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Texas executes the 'ice-pick killer' in spite of health concerns

The 12th Execution of 2018

Bible, the man known as the “ice-pick killer,” accused in a series of murders and rapes, was put to death by lethal injection in Texas on June 27, 2018 following unsuccessful appeals for other execution methods that his attorneys said would be more humane for an elderly and sick prisoner. reported the Washington Post.

Attorneys for Bible argued that death by lethal injection would be inhumane and could result in a botched execution given Bible’s plethora of medical problems. They proposed two alternatives: death by firing squad or by nitrogen hypoxia — execution methods that are not legal in Texas but have been allowed in a handful of states.

Bible was pronounced dead at 6:32 p.m. Central Time, the Associated Press reported. The serial rapist and child molester was sentenced to die in 2003 for raping and murdering a young wife and mother in Houston more than two decades earlier.

Despite his attorney’s fears, Bible’s execution occurred without complications. He declined to give a final statement and stared at relatives of two of his victims who watched through a window, according to the AP. After the drugs were administered, he muttered that it was “burning” and that it “hurt.”

Bible’s attorneys said he was suffering from heart failure, coronary artery disease, chronic obstructive pulmonary disease, Parkinson’s, diabetes and several other illnesses. They argued that scars from several surgeries would make it difficult, if not impossible, to access a vein for a lethal injection. And even if the execution team managed to insert the needle, Bible’s veins were likely to rupture once doses of saline and pentobarbital begin to flow, according to a complaint filed this month in federal court in Houston.

Once Bible, who uses a wheelchair, is strapped to a gurney and lying flat, he will gasp for air and choke, attorneys argued.

In 1998, while in custody for another rape in Louisiana, Bible confessed that he had killed Deaton, court records say.

Death by firing squad is allowed only in Utah, Oklahoma and Mississippi. Utah had avoided the method for several years, but the state reversed its policy in 2015 by making death by firing squad a backup execution method. Utah carried out the country’s most recent execution by firing squad in 2010, when the state put convicted murderer Ronnie Lee Gardner to death. That was also the last execution that Utah has carried out.

In Oklahoma, death by firing squad is a last resort if other methods were deemed unconstitutional. Mississippi joined the two states last year.

A handful of states, including Oklahoma, Mississippi and Alabama, allow execution by nitrogen hypoxia, which involves placing a condemned person in a gas chamber and depriving them of oxygen. In March, Oklahoma made an unprecedented decision to use nitrogen gas to execute death row inmates after state officials had been unable to obtain lethal-injection drugs.

Bible is the 12th man executed in the country this year.

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Justice Kennedy announces retirement, court expected to move to the right

Justice Anthony M. Kennedy announced that he is retiring from the Supreme Court, a move that will give President Trump a chance to replace the pivotal justice and solidify a more conservative majority on the court that plays a crucial role in American life, reported the Washington Post.

Kennedy cast the deciding vote that found a constitutional right for same-sex couples to marry. He determined how far government may intrude on a woman’s right to an abortion; whether attempts to curtail the corrupting influence of campaign contributions violated free speech; and how and when it is appropriate for government to exercise affirmative action.

His decisions shielded juveniles and the intellectually disabled from the death penalty, although he refused to find capital punishment unconstitutional. He found that those seized in the fight against terrorism had rights in U.S. courts. And that is only a partial list of the issues on which he was key.

Kennedy, 81, was appointed by President Reagan in 1988, the year that I became a member of the bar. His departure could mark a dramatic move to the right by the Robert's Court. Kennedy said in a statement released on the last day of the term. He said his final day will be July 31.

Kennedy’s role at the center of a court equally balanced between more predictable conservatives and more consistent liberals made him the most essential member of the modern court.

His opinions often spoke of “dignity” and “liberty,” and his notions of how the Constitution provides for and protects them had an outsize effect on Americans.

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Homicide charges filed against police officer who shot Antwon Rose

Criminal homicide charges have been filed against Michael Rosfeld, the officer who fatally shot 17-year-old Antwon Rose, Channel 11's Rick Earle has confirmed.

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Pennsylvania Task Force and Advisory Committee on Capital Punishment releases 270-page report

I served as a member of the Pennsylvania Task Force and Advisory Committee on Capital Punishment.  Our committee compiled the 270-page report, commissioned by a 2011 Senate resolution.  Data was compiled in part by the Justice Center for Research at The Pennsylvania State University and the Interbranch Commission on Gender, Racial and Ethnic Fairness. 

Our committee was charged with looking at the cost, bias, impact on and services for family members of death penalty inmates; mental illness, counseling, alternatives, and more.

Governor Tom Wolf has imposed a moratorium on the death penalty in Pennsylvania while awaiting the findings of our report.

To read the Report CLICK HERE

Immigrant children expected to represent themselves at immigration hearings

Immigrant children separated from there families at the boarder may be required to represent themselves at immigration hearings. Can a 3-year-old possibly grasp the fundamentals of the American justice system and defend themselves in court?

Judge Jack Weil believes so, according to The Christian Science Monitor. The Virginia-based judge has said in support of the US government’s position that "unaccompanied migrant youths don’t need attorneys in immigration court."

"I've taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience," Judge Weil said. "They get it. It's not the most efficient, but it can be done." 

Most legal profession do not agree.

 “They are just completely disoriented, and they are in the middle of their trauma,” immigration lawyer Kate Lincoln-Goldfinch told the Huffington Post. “Their singular focus is ‘Where’s my mommy and how will I get back to her?’ So all of this other business is almost irrelevant, when, in fact, a lot of these people are fleeing violence, and if they get sent back they could be killed. And yet the child can’t focus on that.”

At the hearings, a judge will ask the children basic questions ― name, date of birth, home country ― and whether they admit or deny allegations, such as if they crossed the border illegally. Children who go through this process without parents or a lawyer have to describe why a situation back home is so bad that they shouldn’t be deported. If successful, they can apply for asylum or other forms of relief.

Kimi Jackson, the director of ProBAR, an organization that provides legal assistance to immigrants, said that in some cases migrant kids are so young that they might not know their parents’ names or be able to speak. But even if they can talk, most children who go through the court system on their own have no idea what is happening. In 2016, Lincoln-Goldfinch filmed a mock deportation hearing with her 3-year-old child to protest a California judge who said kids should be able to represent themselves in immigration court. When she asked, “What defense to deportation are you seeking?” her daughter responded, “Hide and seek.”

The confusion is even worse for children who have fled violence at home only to be separated from their parents upon arriving in the U.S. Mary Lehman Held, an assistant professor of social work at the University of Tennessee, says these children’s brains are stuck in “fight, flight or freeze mode” due to extreme stress, which makes it hard for them to remember information. Elissa Steglich, a clinical professor in the University of Texas School of Law’s Immigration Clinic, thinks the fact that their developing brains are experiencing layers of trauma means “it will be particularly challenging if not impossible to get a full story from many of these children.”

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Mangino talks immigration on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today discussing immigration raids on Ohio businesses and the Trump Administration policy of separating border families.
To watch the interview CLICK  HERE

GateHouse: Immigration raids devastate communities

Matthew T. Mangino

GateHouse Media

June 22, 2018

Crying toddlers being snatched from their parents’ arms and images of young people huddled behind fences in detention centers exploded into a political crisis for President Donald Trump and Congress, as they sat idle while people of every persuasion denounced the practice of separating immigrant children from their families.

Caving under mounting political pressure, President Trump signed an executive order ending the separation of families at the border, despite administration officials’ insistence that only Congress could resolve the situation.

The anguish doesn’t stop at the border. Two weeks ago, U.S. Immigration and Customs Enforcement (ICE) arrested 114 workers at a gardening company in Ohio. In April, ICE raided a meatpacking plant in rural Tennessee and arrested 97 immigrants. In January, ICE raided dozens of 7-Eleven stores nationwide, adding to the mounting arrests.

This week, ICE arrested 146 immigrants at a meat-processing plant in Northern Ohio. ICE said a year-long investigation into Fresh Mark revealed that the company may have knowingly hired undocumented workers.

“Unlawful employment is one of the key magnets drawing illegal aliens across our borders,” Steve Francis, a special agent in charge for the Homeland Security Investigations, said in a statement obtained by the Washington Post. “Businesses who knowingly harbor and hire illegal aliens as a business model must be held accountable for their action.”

Although ICE released several suspects for “humanitarian concerns, such as health or family considerations,” the agency said most of the undocumented workers “will be detained in facilities in Michigan and Ohio while awaiting removal proceedings.”

The tragic impact of the investigation is readily apparent. Families separated, children afraid to go home, parents in fear of further arrests. Those left behind unable to support themselves.

However, that is only the initial impact and it is concentrated on those directly attached to the arrests. In time, those indirectly connected will begin to feel the pain of these raids.

Elizabeth Oglesby, an associate Professor of Latin American Studies and Geography at the University of Arizona, conducted research in Massachusetts, Iowa, and South Carolina during the President George W. Bush era. She found that large-scale raids are local disasters, even for those not directly affected.

In an article first published in The Conversation, she cited the impact of mass immigration arrests.

Postville, Iowa, suffered immensely after an ICE raid on a company known as Agriprocessors. The company nearly collapsed after losing its workforce, devastating the small town’s economy. The plant stopped paying property taxes, real estate values plummeted, and local restaurants and other businesses closed.

To stay in business, Agriprocessors hired a string of temporary legal workers, mostly young, single men, including early release prisoners, and homeless people. The sense of instability and unease in the town, made inhabitants yearn for the undocumented workers and their families.

Oglesby wrote about an ICE raid in 2007, at the Michael Bianco factory in New Bedford, Massachusetts. The plant made backpacks for the Pentagon. Six hundred ICE agents arrested 361 people causing economic hardship throughout the region.

In 2008, ICE raided the House of Raeford poultry plant on the outskirts of Greenville, South Carolina, arresting more than 300 workers.

A House of Raeford manager told the Charlotte Observer that 90 percent of his 800-person plant is Latino and turnover exceeds 100 percent a year.

It is unclear how many illegal immigrants work in the labor-intensive, unskilled poultry industry, reported the Observer. One 2006 study estimated more than a quarter of meat-processing workers nationwide were undocumented.

The residual effect of an immigration raid not only removes the illegal workers from their jobs but also the law abiding legal immigrants and the able-bodied red blooded American citizens, as well.

Postville lost one-third of its population after the 2007 raid, as undocumented workers who evaded arrest fled. Oglesby described how high school students in Postville made a photo banner to remember friends whose desks were suddenly empty.

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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SCOTUS: Police need search warrant to track suspect's movements through cellphone

The U.S. Supreme Court ruled that police generally need a search warrant if they want to track criminal suspects’ movements by collecting information about where they’ve used their cellphones, reported The Crime Report.

The 5-4 decision is a victory for privacy in the digital age. Police collection of cellphone tower information has become an important tool in criminal investigations. The case marks a major change in how police can obtain phone records, according to The Associated Press.

Authorities can obtain information about the numbers dialed from a home telephone without presenting a warrant. Chief Justice John Roberts wrote the majority opinion, joined by the court’s four liberals.

Roberts said the decision is limited to cellphone tracking information and does not affect other business records, including those held by banks. “We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party,” he said. He added that police still can respond to an emergency and obtain records without a warrant.

Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Neil Gorsuch dissented. Kennedy said the court’s “new and uncharted course will inhibit law enforcement” and “keep defendants and judges guessing for years to come.”

In a separate dissent, Alito said, “I fear that today’s decision will do far more harm than good.” He said “it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices.”

The appeal was brought by Timothy Carpenter, who was sentenced to 116 years in prison for his role in robberies of Radio Shack and T-Mobile stores in Michigan and Ohio. Cell tower records that investigators got without a warrant bolstered the case against Carpenter. Investigators got the cell tower records with a court order that requires a lower standard than the “probable cause” needed to obtain a warrant.

The American Civil Liberties Union, representing Carpenter, said a warrant would provide protection against unjustified government snooping. Technology companies including Apple, Facebook and Google urged the Justices to continue bringing Fourth Amendment law into the modern era, reports the New York Times.

“No constitutional doctrine should presume,” their brief said, “that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life.”

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East Pittsburgh police shoot unarmed fleeing teen in the back killing him

East Pittsburgh Police officer shoots a fleeing 17-year-old boy three times in the back killing him.  The officer had been sworn into the police department just hours earlier, reported the Huffington Post.

Antwon Rose was killed Tuesday night while fleeing from a car that had been pulled over in connection with an earlier shooting in North Braddock, Pennsylvania, according to WTAE TV.

A post on the Allegheny County Police Department’s Facebook page described what happened:

An East Pittsburgh police officer saw a vehicle matching the description on Grandview Avenue which also had ballistics damage to the rear window. The officer stopped the vehicle near Grandview and Howard Street in East Pittsburgh.

The officer took the driver into custody. While he was putting the driver into handcuffs, two other occupants ran from the car.

One individual ― a 17-year-old male ― was shot by police. He was transported to McKeesport Hospital where he was declared deceased.

Rose was not armed, Allegheny County police Superintendent Coleman McDonough said at a press conference Wednesday afternoon, according to the Pittsburgh Post-Gazette.

Thirty-three yeas ago, the U.S. Supreme Court ruled in Tennessee v. Garner, the Fourth Amendment prohibits the use of deadly force unless it is necessary to prevent the escape of a fleeing felon and the officer has probable cause to believe that the suspect poses a significant threat of violence to the officer or the community. The Tennessee statute at the time was unconstitutional as far as it allowed deadly force to prevent the escape of an unarmed fleeing felon.

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Supreme Court allows retaliatory arrest claim for exercising First Amendment right

The US Supreme Court held 8-1  in Lozman v. Riviera Beach that it is possible an arrest could have violated the First Amendment when it was ordered in retaliation for earlier, protected speech, even in the presence of probable cause, reported Jurist.

Lozman filed a lawsuit alleging that the city of Riviera, Florida, arrested him after speaking out at a public comments session in retaliation for two instances of First Amendment protected expressions: a then-pending lawsuit under the Florida Sunshine Act and his history of publicly criticizing city officials and policies.

The court decided narrowly. Lozman argued that the city itself retaliated against him pursuant to an "official municipal policy" of intimidation and that they formed a "premeditated plan to intimidate him in retaliation for his criticisms of city officials and his open-meetings lawsuit." The court agreed that if this is true, Lozman would have a stronger case.

Justice Anthony Kennedy wrote:

It must be underscored that this Court has recognized the 'right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights.'... Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman's speech is high in the hierarchy of First Amendment values.

The court remanded the case to the Court of Appeals to decide consistent with its opinion. 

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Sessions tries to distinguish U.S. border policy from Nazi policy

U.S. Attorney General Jeff Sessions rebuffed claims that the Justice Department’s new zero-tolerance immigration policy that separates families echoed Nazi Germany  concentration camps, reported the Huffington Post.

Sessions spoke with Fox News’ Laura Ingraham on Monday and defended his agency amid a growing outcry over family separations at the U.S.-Mexico border under the new DOJ policy.

Last week, the Department of Homeland Security said nearly 2,000 children had been separated from their parents over a six-week period ending in May. Many of these children are being held in juvenile detention centers.

Sessions said comparisons of those centers to the Nazis camps wasn’t fair, “Well, it’s a real exaggeration, of course. In Nazi Germany, they were keeping the Jews from leaving the country,” Sessions said. The Justice Department was simply trying to deter people from crossing the border, not keep them in the U.S.

The best the attorney general could do to refute comparisons to the Nazi's is that the U.S. Government wants to keep people out of the county and the Nazi's wanted to keep them in--what a sad day in America where the U.S. Government is trying to distinguish its conduct from that of the Nazi Germany.

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White supremacists surge on college campuses

Recently released reports from a pair of prominent nonprofit organizations reveal the increased targeting of student spaces by neo-Nazis and white supremacists, and the violence these ideologies entail, according to The Intercept .

The Anti-Defamation League reported that incidents of white supremacist propaganda on U.S. campuses more than tripled in 2017. Groups doubling down on campus propagandizing include explicit neo-Nazis like the Florida-based Atomwaffen Division, as well as associations like Identity Evropa, known for couching its unabashed racist message in thinly veiled panegyrics to protecting Western culture and posters bearing Michelangelo’s David.

“The ‘alt-right’ is a movement of mostly young white males,” Carla Hill, senior researcher for the Anti-Defamation League’s Center on Extremism, told me. “They realize that for any movement to truly grow, they must reach young minds, and this segment of the white supremacist movement has been focused on doing that.”

The potential gravity of this surge was then underlined by a report from the Southern Poverty Law Center, titled simply, “The Alt-Right Is Killing People.” More than 100 people have been killed or injured since 2014 by perpetrators believed to be influenced by the racism and misogyny that defines the so-called alt-right, the center found. More than 60 people were killed or injured in “alt-right” violence last year alone.

The reports draw no direct link between the rise in white supremacist propaganda and the spike in white supremacist murders. But together, they make clear that the threat of “alt-right” influence on young people, above all young white men, is anything but academic: Racist ideology is never free of violence, and neither is it in the case of the cosplaying, Nazi-adjacent trolls of the “alt-right.”

The Anti-Defamation League reported separately in November that white supremacists and other far-right extremists were responsible for 59 percent of all extremist-related fatalities in the U.S. in 2017, up from 20 percent in 2016. While it’s too soon for much dispositive social science on the link, it’s difficult to consider all this data outside of the Trump era in American politics.

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GateHouse: Police are not the answer to every social ill

Matthew T. Mangino

GateHouse Media

June 17, 22018

As policymakers nationwide scramble to deal with policing issues — everything from excessive force; to disrespect for authority; to the role of police in troubled neighborhoods — the recurring question is, are we asking police officers to do too much?

Alex Vitale, Professor of Sociology at Brooklyn College, and author of “The End of Policing” told NPR, “The problem is that they’ve (police have) been given a limited set of tools and placed into circumstances where those tools often can be counterproductive.”

Vitale is not alone. “What police have been forced to do in this country is perform triage,” Dallas Police Chief David Brown told the Washington Post.

In Dallas, according to the Post, police work includes corralling potentially dangerous dogs, among other duties that extend well beyond routine crime. “We have got a loose dog problem — let’s have the cops chase loose dogs,” Brown said. “Schools fail? Give it to the cops.”

Vitale said “the answer is to quit using police to solve every social problem under the sun. Instead we need to invest in new systems of discipline that treat people with dignity and respect and try to identify what’s driving problematic behavior and actually address those root causes.”

The opioid epidemic has exacerbated the role of the police is addressing the community’s social problems, whether criminal or not. Dallas Police Detective Chelsea Whitaker told Reuters, “We can be glorified social workers.”

She described her contact with two teenagers who constantly got into fights at school. One of them had not been eating. Whitaker took her to grocery store to buy food.
“I had to take another girl to get sanitary napkins because nobody ever taught her that,” Whitaker told Reuters. “She is angry and fighting all the time; of course, you would be angry.”

“A lot of the officers are resistant to what we call social work. They want to go out and fight crime, put people in jail,” Capt. Ron Meyers of the in Chillicothe, Ohio Police Department told the Washington Post. “We need to make sure the officers understand this is what is going to stop the (opioid) epidemic.”

Officers are finding children who were barricaded in rooms while their parents got high, and they are responding to the same homes for the same problems. Feelings of exasperation course through some departments in which officers are interacting with the same drug users over and over again, sometimes saving their lives repeatedly with naloxone, a drug that reverses an opiate overdose, reported the Post.

Couple addiction with mental illness and the tension between the police and a bad actor can escalate rapidly — often with disastrous results. Police departments are looking for new and innovative ways to cope with this growing menace.

Amy Watson, an associate professor of social work at The University of Illinois at Chicago, described Crisis Intervention Teams (CITs) for Social Work Today. The CIT Model is an innovative police-based first responder program designed to help law enforcement recognize and appropriately respond to a mental health crisis.

As money for mental health institutions evolved into community based treatment, prisons have become de facto mental health facilities. Police officers have become the caretaker in the community charged with protecting the public from the double malaise of addiction and mental illness.

Being a cop isn’t easy. Sending him or her into the street to deal with issues beyond the scope of law enforcement is outrageous. Sure, training is available, but shouldn’t police officers focus on public safety and law enforcement while other trained professionals deal with illnesses like addiction and schizophrenia?

The police are not the answer to every social ill, nor should that be society’s expectation.

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.

Support for the death penalty on the rise

Public support for the death penalty, which reached a four-decade low in 2016, has increased somewhat since then. Today, 54% of Americans favor the death penalty for people convicted of murder, while 39% are opposed, according to a Pew Research Center survey conducted in April and May.

Two years ago, 49% favored the death penalty for people convicted of murder, the lowest level of support for capital punishment in surveys dating back to the early 1970s.

While the share of Americans supporting the death penalty has risen since 2016, it remains much lower than in the 1990s or throughout much of the 2000s. As recently as 2007, about twice as many Americans favored (64%) as opposed (29%) the death penalty for people convicted of murder.

Since the mid-1990s, support for the death penalty has fallen among Democrats and independents but remained strong among Republicans.

About three-quarters of Republicans (77%) currently favor the death penalty, compared with 52% of independents and 35% of Democrats.

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PA State Police must report all interaction with immigration officials

By the end of this month, Pennsylvania State Police officers will be required to file a report any time they call immigration authorities to the scene of a traffic stop, detailing the circumstances behind the call, the agency said Wednesday.

This change comes two months after ProPublica and the Philadelphia Inquirer published an investigation about state and local police officers in Pennsylvania helping ICE round up immigrants for deportation, using tactics that raise questions about racial profiling and unlawful arrest.

The story focused on Pennsylvania state Trooper Luke C. Macke as an extreme example. In 2017, Macke turned over at least 19 undocumented immigrants to ICE after interrogating them about their legal status and detaining them for up to four hours without a warrant.

In response to the April investigation, Pennsylvania Gov. Tom Wolf released a statement calling for “a need for stronger uniform procedures addressing state police requests for assistance from outside agencies, including ICE, especially given the new pressure on state and local agencies from the federal government.”

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SCOTUS to examine juvenile interrogations today

Decades ago, the Supreme Court articulated that courts should evaluate teenagers' confessions with special care, because kids aren't able to cope with the psychological challenges of police interrogation in the same way adults do, reported CNN.

On June 14, the court will consider whether this requirement is still sound when it meets behind closed doors and discusses whether to take up the case of Brendan Dassey, an intellectually impaired Wisconsin boy who, according to his lawyers, gave a coerced confession to murder at age 16.

Dassey became famous after his story was featured in Netflix's "Making a Murderer." His videotaped interrogation was unforgettable: police falsely promised Dassey he'd be set free if he confessed and then coached him on how the crime unfolded when he was unable to guess even the most basic details. Shockingly, Dassey remains imprisoned for life after a federal appeals court ruled that his confession should not be thrown out.

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Prison reductions 'anemic to the point of listlessness'

Although the US prison population has declined over six years, after increasing for nearly four decades, a new analysis by researcher Malcolm C. Young, published by the Center for Community Alternatives, concludes that the nation is not reducing prison populations at a pace that would end mass incarceration in the foreseeable future, wrote Ted Gest of The Crime Report.

A report issued in January by the Bureau of Justice Statistics of data through 2016 found that prison populations decreased in 33 states that year—more states than had experienced decreases in any recent year. The average decrease was three percent.

In 42 states, prison populations were lower than they had been recently. Just eight states increased their prison populations to record high numbers.

The downturn it documented, while perhaps marking the beginning of an end to three-and-a-half decades of increases, “is anemic to the point of listlessness,” says Young, a longtime advocate of cutting prison populations.

If the numbers of inmates continue to decrease only at the rate they did between 2014 and2016, there will still be more than a million people incarcerated in prison in 2042. The nation wouldn’t reach the goal of groups like #Cut50.org to reduce prison populations to half of what they are today for another 50 years, until 2068.

Moreover, the current rate of decrease may not hold, according to Young.

The prospects for a more rapid de-incarceration are poor unless and until many more states use strategies that have been effective in the handful of states that are significantly reducing prison numbers, Young believes.

Only 13 states have significantly reduced their prison populations below the levels they were at the end of 2000. Seven of those 13 states accounted for most of the national inmate population drop.

California, Connecticut, Illinois, Maryland, Michigan, New Jersey, and New York reduced their collective prison populations by 73,328 between 2000 and 2016, accounting for about two-thirds of the total by which all states reduced prison numbers.

Another 14 states have at times demonstrated a capacity for reducing prison populations.

The experiences in both sets of states show that reductions at rates of three to five percent annually, and even higher, are well within reach of governments motivated to act, Young writes.

The federal prison system, the nation’s largest, contributed to the national decrease. Its population at the end of 2016 was 13 percent under its highest point, in 2011.

Young found that prospects that most of the 13 states responsible for much of the national decrease will continue to reduce their prison populations are good.

For example, Massachusetts has the second-lowest incarceration rate in the nation (after Maine), and the Vera Institute of Justice predicts further decreases. New Jersey will likely continue to reduce its prison population as a result of pretrial reforms signed by Gov. Chris Christie that took effect last year.

In New York State, further decreases are likely if officials can encourage fewer prison commitments from areas outside of New York City.

On the other hand, California, which decreased its prison population by 40,926 in six years to comply with a US Supreme Court ruling, increased its prison population in 2016 by 0.9 percent. California corrections officials predict an annual 0.8 percent increase in coming years.

In Illinois, Gov. Bruce Rauner cut the prison population, incurring little opposition from the same Republicans who savaged his Democratic predecessor’s more modest efforts. Were he to lose his bid for reelection, it is not a given that a Democratic administration would carry his plan forward.

Since 2010, Texas decreased its prison population by 6,749 (4.1 percent). Prospects that the trend will continue are iffy because state legislators have been considering new sentencing enhancements.

Decreases in the 14 states that have demonstrated a capacity to reduce prison populations have been “episodic.”

Young found that decreases in the 14 states that have demonstrated a capacity to reduce prison populations have been “episodic.” Recently enacted reforms have encountered opposition.

In Louisiana, advocates have been concerned that legislators will roll back recently enacted reforms designed to reduce incarceration. In Utah, reforms that relied on treatment and housing programs are at risk because of a lack of funding for alternative programs. In Florida, legislative reforms have not led to the reductions in prison populations for which advocates hoped.

In the federal system, prospects for continued decreases are fading. A bipartisan reform bill that would have reduced some federal sentences seems stalled, while prosecutorial and sentencing policies announced by Attorney General Jeff Sessions will soon add to the prison population.

Young’s report identifies a third group of 23 states that have yet to demonstrate a capacity to reduce prison populations. At the end of 2016, their combined prison populations were 86,866, or 31 percent higher than at the end of 2000.

The report recognizes that new developments might bring significant reductions in prison numbers.

The election of reform prosecutors like Larry Krasner in Philadelphia and Kimberly Foxx in Cook County, Illinois, signal a voter rejection of “tough on crime” and “lock-em-up” policies that have driven incarceration.

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Making criminal justice reform work on the macro and micro level

Greg Berman the  Director of the Center for Court Innovation wrote the following piece for Governing Magazine:

Recently I was asked to speak to a group of idealistic young people just starting their careers in public-interest professions. After my spiel concluded, the first question I was asked caught me completely off guard: "What is justice?"

Somehow, I have managed to work in the field of criminal justice for 25 years without developing a satisfactory response to this question. In the days since, as I have rehearsed what I should have said, I have come to realize that, for me, there are two kinds of justice: micro justice and macro justice.

Micro justice focuses on individual people and asks, "What is an appropriate response to the circumstances presented by this specific case?" Macro justice looks at the bigger picture, examining social impacts, both positive and negative, and tries to determine whether they have been distributed in a way that conforms to basic tenets of fair play.

One of the challenges that confronts the field of criminal justice is that micro justice and macro justice are not always in sync. Every day, police officers, prosecutors and judges are making decisions in individual cases that are rational, that follow all of the proper procedures, and that many would argue are correct on the merits. Unfortunately, the cumulative effect of these decisions is to achieve outcomes that, viewed in the aggregate, do not seem just.

Leadership consultants often exhort their clients to "get off the dance floor and get on the balcony." From the perspective of the balcony, it is possible to offer a fundamental critique of the justice system as an instrument for maintaining an unfair social order. The negative impacts of the justice system on black Americans stand out in particularly stark relief.

Yet the view can look very different from the dance floor. While egregious examples of brutality, incompetence and corruption do exist, the truth is that much of the daily practice of the justice system consists of well-intentioned front-line staffers attempting to do their best with challenging situations and complicated people.

This lesson was hammered home to me when I visited Rikers Island a few years ago during the height of the media coverage of violence in the New York City jail complex. Much of the reporting focused on the brutal behavior of correctional officers. I didn't meet every correctional officer on the island, of course, but those I interacted with (the vast majority of whom were women of color) never expressed contempt or hatred for those in their charge. Quite the contrary -- most conveyed genuine concern and a desire to create a safe environment.

In a similar vein, when I talk to criminal-court judges, many of them express real regret when their actions land someone in jail. When they describe their thought process, they invariably point to the length of a defendant's rap sheet, the suffering of victims and the negative effects of continued wrongdoing in the community.

So where does this leave us? How do we reconcile the reality that at the ground level many of the people in the justice system are trying to do the right thing with an overarching analysis that the system is not achieving just results?

Many of the potential answers being advanced at the moment -- for example, eliminating cash bail or closing private prisons -- are macro justice solutions that tend to limit the discretion of system actors. We need big ideas like these if we are going to improve justice in this country.

But big ideas alone are not enough. We need micro justice solutions too. Small changes in daily practice can also have far-reaching implications. We need to give front-line justice professionals the training they require to understand the traumatic life circumstances that bring people into the justice system, whether as defendants or victims. And we need to give them the encouragement and flexibility necessary to treat every person they encounter with decency, respect and individualized attention.

Perhaps most important of all, we need to convince bright young people, like the ones who initially befuddled me, to become front-line criminal-justice practitioners. The fight to transform the American justice system cannot be won from the offices of our foundations, elected officials or editorial boards. To create a fair, effective and humane justice system, we need judges, probation officials and correctional officers who are willing to wrestle with the question "what is justice?" on the ground each and every day.

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Homicide arrest rates below 50% in America's 50 largest cities

The Washington Post has identified the places in dozens of American cities where murder is common but arrests are rare. These pockets of impunity were identified by obtaining and analyzing up to a decade of homicide arrest data from 50 of the nation’s largest cities. The analysis of 52,000 criminal homicides goes beyond what is known nationally about the unsolved cases, revealing block by block where police fail to catch killers.

The overall homicide arrest rate in the 50 cities is 49 percent, but in these areas of impunity, police make arrests less than 33 percent of the time. Despite a nationwide drop in violence to historic lows, 34 of the 50 cities have a lower homicide arrest rate now than a decade ago.

Some cities, such as Baltimore and Chicago, solve so few homicides that vast areas stretching for miles experience hundreds of homicides with virtually no arrests. In other places, such as Atlanta, police manage to make arrests in a majority of homicides — even those that occur in the city’s most violent areas.

In Pittsburgh, a low-arrest zone occupies a run-down stretch of boarded-up buildings, two-story brick homes and vacant lots. In San Francisco, another one falls within a bustling immigrant neighborhood where day laborers and community college students crowd bus shelters and freeways snake overhead. In the District, yet another sits in the heart of Petworth, a gentrifying neighborhood crowded with construction cranes and the skeletons of future condos.

Police blame the failure to solve homicides in these places on insufficient resources and poor relationships with residents, especially in areas that grapple with drug and gang activity where potential witnesses fear retaliation. But families of those killed, and even some officers, say the fault rests with apathetic police departments. All agree that the unsolved killings perpetuate cycles of violence in low-arrest areas.

Detectives said they cannot solve homicides without community cooperation, which makes it almost impossible to close cases in areas where residents already distrust police. As a result, distrust deepens and killers remain on the street with no deterrent.

“If these cases go unsolved, it has the potential to send the message to our community that we don’t care,” said Oakland police Capt. Roland Holmgren, who leads the department’s criminal investigation division. That city has two zones where unsolved homicides are clustered.

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GateHouse: Alabama sheriff pays the price for profiting on inmate meals

Matthew T. Mangino

GateHouse Media

June 8, 2018

In January, the Southern Center for Human Rights filed a lawsuit challenging the refusal of 49 Alabama sheriffs to produce public records indicating whether they personally profited from funds allocated for feeding people in Alabama county jails.

Sheriffs in Alabama contend that a state law permits them to “keep and retain” as personal income money provided for feeding people in their jails that they do not actually spend on food.

One sheriff, Todd Entrekin from Etowah County, has kept more than $750,000 allocated over three years to feed inmates. He recently purchased a $740,000 beach house with his wife.

Entrekin’s abuses, and the abuses of other Alabama sheriffs, were revealed as a result of the public record lawsuits. “This archaic system is based on a dubious interpretation of state law that has been rejected by two different Attorneys General of Alabama, who concluded that the law merely allows sheriffs to manage the money and use it for official purposes not to line their own pockets,” Aaron Littman, a staff attorney at the Southern Center for Human Rights said in a January press release. “It also raises grave ethical concerns, invites public corruption, and creates a perverse incentive to spend as little as possible on feeding people who are in jail.”

“Everything that I have done is in full compliance with the law,” said Entrekin according to AL.com. “As I proved with documentation ... former District Attorney and Attorney General opinions have clarified that I am in full compliance.”

According to NPR, Alabama’s controversial system hearkens back to a different era, when county jails were more of a mom and pop operation and feeding inmates were often the responsibility of a sheriff’s wife.

That archaic practice continues today in Alabama. Sheriffs are personally responsible for feeding inmates in their jails and receive funds to cover the cost. For state inmates, it’s less than $2 per inmate per day; for county, city or federal inmates, the amount can be higher.

If sheriffs feed inmates on less than the allotted amount, they can keep whatever is left over. This process is deeply woven into the rural traditions of Alabama law. When Entrekin’s predecessor died while still in office, all the money in the food account went to his estate — as state law dictated, reported NPR.

Entrekin’s jail also housed hundreds of U.S. Immigration & Customs Enforcement detainees through a contract with the U.S. Marshals Service. Although Entrekin may have been in compliance with state law does he have a potential problem with the Federal government?

Margot Schlenger, a University of Michigan Law School professor and former head of civil rights for the U.S. Department of Homeland Security, said the way Entrekin spent the inmate food funds is likely illegal under federal law.

“If it’s the case that the sheriff is profiting financially from providing substandard food to detainees, that would violate both the contract and ICE’s standards and the Constitution,” she told AL.com.

Entrekin has another problem. He was running for reelection. He used some all too familiar campaign rhetoric according to the Washington Post. Entrekin, a Republican, played the victim, assailing the “liberal media” and lambasting the “miscellaneous fake news stories” that he said had made his family into targets.

On Tuesday, he was voted out of office after losing in the primary by a margin of nearly 2 to 1.

Entrekin got caught with his hand in the “food” jar and now he is out of a $93,000 a year job, and possibly the focus of a federal investigation.

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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Manafort and Russian business partner indicted for obstructing justice

Paul Manafort, President Trump’s former campaign chairman, has been indicted again, this time on charges of obstruction of justice and conspiracy to obstruct justice, reported the Los Angeles Times.
The new charges were announced Friday by the special counsel Robert S. Mueller III.
Also indicted was Konstantin Kilimnik, a Manafort business partner whom Mueller has accused of having ties to Russian intelligence.
The charges involve allegations that Manafort and Kilimnik tried to convince people to lie about an undisclosed lobbying effort on behalf of Ukraine’s former pro-Russian government.

Mueller unveiled the accusations earlier this week when telling a federal judge that Manafort may have violated the terms of his bail.

Paul Manafort, President Trump’s former campaign chairman, has been indicted again, this time on charges of obstruction of justice and conspiracy to obstruct justice.
The new charges were announced Friday by the special counsel Robert S. Mueller III.
Also indicted was Konstantin Kilimnik, a Manafort business partner whom Mueller has accused of having ties to Russian intelligence.
The charges involve allegations that Manafort and Kilimnik tried to convince people to lie about an undisclosed lobbying effort on behalf of Ukraine’s former pro-Russian government.

Mueller unveiled the accusations earlier this week when telling a federal judge that Manafort may have violated the terms of his bail.

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Alabama sheriff who legally pocketed inmate food money loses election

After an Alabama newspaper reported that Sheriff Todd Entrekin received more than $750,000 from a fund allocated to feed inmates in a jail he oversaw, the law enforcement official was defiant, employing a line of defense that has been increasingly trotted out of late by embattled politicians, posted The Crime Report. 

Entrekin, the sheriff of Etowah County and a Republican, played the victim, assailing the “liberal media” and lambasting the “miscellaneous fake news stories” that he said had made his family into targets. He did not deny that he had legally received money from the fund. On Tuesday, Entrekin was effectively voted out of office after losing in the primary by a margin of nearly two to one, the Washington Post reports. The winning challenger, Jonathan Horton, who had pledged during his campaign not to keep any of the feeding funds, “rode a wave of anti-Entrekin sentiment,” after the story made national news and followed Entrekin throughout the campaign.

The reports about Entrekin’s use of the food funds made national headlines. Entrekin and his wife last year purchased a four-bedroom house with a pool in an upscale neighborhood in Orange Beach, a Gulf Coast beach town. It was one of multiple properties worth more than $1.7 million that the couple owned together in the state. Entrekin’s salary is about $93,000 a year, but Entrekin filed disclosure forms that revealed that he had “received more than $750,000 worth of additional ‘compensation’ from a source he identified as ‘Food Provisions,’ ” AL.com reported. After news reports brought the issue to prominence, he held a news conference, defending the quality of the meals he provided inmates and even bringing a sample breakfast to show reporters.

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Waldron: A presidential take down on the national anthem

President Donald Trump wants the world to believe his decision to cancel a White House visit from the Super Bowl-winning Philadelphia Eagles was about the team’s ― and the NFL’s ― supposed refusal to stand for the national anthem. Trump abruptly canceled the visit, via a White House statement on Monday evening, before returning to his favorite medium to drive home his point, wrote Travis Waldron of the Huffington Post.

“Staying in the Locker Room for the playing of our National Anthem is as disrespectful to our country as kneeling. Sorry!” Trump tweeted Monday night, a reference to the NFL’s new policy requiring teams and their players to stand for the national anthem or stay in the locker room while it is played before games. If the new policy was driven by the cowardice of NFL owners who wanted to appease the president, this was the latest sign they had predictably and miserably failed.

But while the Trump tweet was more red meat for his base, it was also a useful reminder that his fight with NFL players ― from the Eagles, or any other team ― has never been about the national anthem or the kneeling itself, no matter his insistence to the contrary.

Only one Eagles player kneeled during the anthem in 2017, before a preseason game in August. That player was cut before the season began, and not a single Philadelphia Eagle kneeled during the anthem through the entirety of the regular season. The Eagles players who protested at all during the anthem stopped once the Players Coalition, of which Eagles safety Malcolm Jenkins was a vocal leader, reached an agreement with the NFL in November. No member of the Eagles or any other team protested during the anthem throughout the NFL playoffs this winter. Before the NFL revived the issue with its new policy in May, in fact, it seemed likely that the protests that had taken place over the past two seasons would not have occurred this fall.

So the fact that fewer than 10 of Philadelphia’s 53 players planned to make the trip to Washington was rooted in substantive opposition to the president’s policies, words and actions. As much as Trump would like the dispute to be a culture war skirmish about the anthem and the ungrateful athletes who won’t stand for it, the Eagles players’ renunciation was about his presidency ― and their lack of belief that anything positive could come from a glorified “photo op.” 

Aside from one weekend of symbolic but ultimately toothless protests driven by those same scared NFL owners ― some of whom appeared next to players in a cynical show of “solidarity” against the president’s targeting of their business ― little of the sports world’s opposition to Trump, in fact, has been centered on the anthem. And hardly any of his own actions have actually concerned the song, either. Trump’s fight with the sports figures who have criticized him ― the majority of whom are black ― is not about what takes place during 100 seconds of music, but about power and fealty, and his belief that NFL players and other black athletes are displaying too much of one and not enough of the other.

This should have been clear from Trump’s “cancellation” of a White House visit the Golden State Warriors never planned to make last year, after superstar Stephen Curry criticized the president. It should have been clear from the White House’s fight with ESPN anchor Jemele Hill shortly thereafter, or from Trump’s blasting of LaVar Ball. No one on the Warriors had protested during the anthem; neither had Hill or Ball.

Instead, they had challenged the president over the views he had espoused and the policies he had sought to enact; they had pointed out (correctly) that many of those policies were based in racism and white supremacy; they had refused, in Ball’s case, to show deference to a president who hadn’t actually done anything to help Ball free his son from potential incarceration in China.

That hasn’t stopped Trump’s supporters and even some in the media ― especially, but not only, his friends at Fox News ― from adopting Trump’s frame that the problem with the Eagles, and with the NFL, is that this is a legitimate dispute over proper anthem protocol. But the anthem is not the issue here. Not for the majority of the NFL’s protesters, who like Jenkins want to talk about racial inequality, a racist criminal justice system, or the nearly 400 black Americans who have been killed by police since Colin Kaepernick first began his demonstration nearly two years ago. And not for Trump, who along with Vice President Mike Pence has bastardized the anthem for his own political ends, blatantly committing the same perceived crime the players stand accused of.

For the president, who may or may not even know the words to the song, the anthem is only a useful weapon in his broader campaign of silencing black athletes, black sports figures and black people who would dare challenge him. At bottom, it has nothing to do with who is and isn’t kneeling for the anthem. It’s about who is and isn’t kneeling to him.

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Alabama death row inmate takes his own life before state can

Alabama death row inmate Jeffrey Lynn Borden beat the state to the punch, he died of an apparent suicide, according to the state Department of Corrections and AL.Com.

According to information released Sunday afternoon by the Alabama Department of Corrections (ADOC), Borden was found "hanging by a bed sheet in his cell at approximately 2:30 a.m. during a security check." Borden was pronounced dead at 3 a.m.

The ADOC statement said Borden's remains had been turned over to the Alabama Department of Forensic Sciences.

John Palombi, a federal defender who'd represented Borden, issued the following statement: "We are saddened to hear of Mr. Borden's apparent suicide. Mr. Borden suffered from severe mental illness and chronic physical pain, both of which were undertreated by the Department of Corrections despite their knowledge of these issues. We hope that the conditions that led to underfunding and understaffing of the Department, and thus contributed to Mr. Borden's death, will be remedied."

Borden had been on death row since 1995, when he was sentenced for the 1993 murders of Cheryl Borden and Roland Harris. The murders took place at a family gathering in Gardendale on Christmas Eve.

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PA legislature looking to toughen DUI laws for repeat offenders

Pennsylvania’s legislature is looking to toughen DUI laws. State Sen. John Rafferty, R-Montgomery, is sponsoring legislation that would make it tougher for repeat offenders. It is currently awaiting consideration in the House Judiciary Committee, wrote Chris and Susan Demko in the Harrisburg Patriot-News. The Demko's lost a daughter to a drunk driver.

In short, Rafferty's bill would:

Target repeat DUI offenders who continue to drive impaired. Pennsylvania is one of only 4 states that do not classify repeat DUI offenses as a felony, regardless of an offender's prior DUI history. Rafferty's bill (SB961) would create a felony offense for DUI offenders committing their 4th DUI offense, which will have the effect of longer sentences, thereby keeping the worst offenders off the road. There are hundreds of individuals annually arrested for a 4th or greater DUI offense.

Increase penalties for repeat DUI offenders that injure and kill while driving impaired. Today a repeat DUI offender is subject to no more than a 3-year minimum sentence for Homicide by Vehicle while DUI, which is same minimum sentence for a first time DUI offender. Rafferty's bill would increase the minimum sentence to 5 years if the offender was convicted of a prior DUI, and to 7 years if the offender was convicted of 2 or more prior DUIs.

Target individuals who drive with a DUI-related suspended license. Many individuals ignore the suspension and the option to drive legally via an ignition interlock/occupational license. Studies indicate that this high-risk group is responsible for up to 20 percent of fatal DUI crashes. Currently, these offenders are only subject to a $500 fine/60-day sentence (generally served at home), regardless of prior offenses. Rafferty's bill would increase the length of sentence and fine for 2nd and 3rd offense.

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Giuliani: 'President of the United States pardoning himself would just be unthinkable'

President Donald Trump, under pressure from special counsel Robert Mueller's investigation into Russia's role in the 2016 U.S. election, probably has the power to pardon himself but does not plan to do so, his attorney Rudy Giuliani said , according to Thompson-Reuters.

Asked whether Trump has the power to give himself a pardon, Giuliani said, "He's not, but he probably does." Giuliani added that Trump "has no intention of pardoning himself," but that the U.S. Constitution, which gives a president the authority to issue pardons, "doesn't say he can't."

Speaking on ABC's "This Week" program, Giuliani added, "It would be an open question. I think it would probably get answered by, gosh, that's what the Constitution says."

Giuliani noted that the political ramifications of a self-pardon could be severe. Giuliani told NBC's "Meet the Press with Chuck Todd" that "the president of the United States pardoning himself would just be unthinkable. And it would lead to probably an immediate impeachment."

Under the Constitution, a president can be impeached by the House of Representatives and then removed from office by the Senate.

The possibility of a self-pardon appeared to be raised in a Jan. 29 letter from Trump's lawyers to Mueller, published by the New York Times on Saturday, arguing that the president could not have obstructed the probe given the powers granted to him by the Constitution.

"It remains our position that the President's actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired," Trump's lawyers wrote.

The letter did not explicitly describe the possibility of Trump pardoning himself.

Whether Trump may pardon himself is a matter of some debate.

A Justice Department memo dated four days before former President Richard Nixon resigned in 1974 during the Watergate political corruption scandal took the view that "under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself."

House Majority Leader Kevin McCarthy, a Republican, made clear he did not think Trump or any other president should pardon himself. "I don't think a president should pardon themselves," he told CNN's "State of the Union."

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GateHouse: Sotomayor fierce defender of the Fourth Amendment

Matthew T. Mangino

GateHouse Media

June 1, 2018

When Justice Sonia Sotomayor was appointed to the U.S. Supreme Court in 2009, some court observers were concerned that the former prosecutor would be deferential toward law enforcement.

When it comes to the Fourth Amendment, Sotomayor, the first Hispanic member of the court, is anything but pro-prosecution.

That trend continued this week when Justice Sotomayor authored an opinion for the high court barring the police from coming on private property without a warrant to search a motorcycle.

Historically, Sotomayor has been a stalwart supporter of the Fourth Amendment. She issued a fiery dissent in a Utah case where a man challenged his arrest based on a stop that was, in part, racially motivated.

“It is no secret that people of color are disproportionate victims of this type of scrutiny,” wrote Sotomayor. “For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

During oral argument in another Fourth Amendment case, Sotomayor grilled a justice department lawyer who insisted that police officers be granted wide latitude to employ drug-sniffing dogs during traffic stops. “We can’t keep bending the Fourth Amendment to the resources of law enforcement,” said Sotomayor. “What you’re proposing,” continued Sotomayor according to Reason Magazine, is an approach that’s “purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.”

In the case decided this week, the police in Virginia were investigating traffic incidents involving an orange and black motorcycle. The police learned that the motorcycle likely was stolen and in Ryan Collins’ possession. From the street the police could see what appeared to be a motorcycle under a tarp on Collins’ property.

Without a search warrant, a police officer walked up the driveway, removed the tarp and confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers. Collins was arrested when he returned home.

The question before the Supreme Court was whether the automobile exception to the Fourth Amendment — which allows the police to search vehicles on public streets without a warrant — also allows the police to search a vehicle parked in the area near a house or on the area immediately surrounding the home.

The Court ruled 8-1 that the automobile exception did not apply. Sotomayor writing for the court announced, “In physically intruding on ... (the) home to search the motorcycle” the officer “not only invaded Collins’ Fourth Amendment interest in the item searched, i.e., the motorcycle, but also invaded Collins’ Fourth Amendment interest in the curtilage (area immediately surrounding) his home.”

“To allow an officer to rely on the automobile exception to gain entry to a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.”

The Fourth Amendment was part of the Bill of Rights that were added to the Constitution in 1791. In its simplest form the Fourth Amendment protects the people from an overzealous government. It was important to the founding fathers over two-and-a-quarter centuries ago and it is important today. The Fourth Amendment needs a defender and it has a fierce one in Sotomayor.

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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