Tuesday, April 30, 2019

Incarceration down slightly, US retains largest known incarcerated population in the world

For all the talk of curbing America’s appetite for mass incarceration and bipartisan support for reducing prison sentences, the number of people incarcerated in the United States declined only slightly in 2017, according to The New York Times. 
The United States still has the largest known incarcerated population in the world.
“If we keep working on the kinds of criminal justice reforms that we’re doing right now, it’s going to take us 75 years to reduce the population by half,” said Rachel Barkow, a sentencing expert at New York University School of Law and author of “Prisoners of Politics: Breaking the Cycle of Mass Incarceration.”
Like others who study the United States prison population, Ms. Barkow saw the significance of Thursday’s report not in the decline itself, but in how minor it was.
“The kinds of reforms we’re seeing now are really modest,” she said. “I’m glad were getting them. But this is not transformative yet.”
Slightly under 1.5 million people were in prison at the end of 2017, a slight decrease from 2016 but still a population that, if gathered in one place, would be one of the largest cities in the country.
County and city jails held around 750,000 inmates in mid-2017.
Combined, the United States would remain the world’s leader in incarceration, according to data collected by the Institute for Criminal Policy Research at Birkbeck, University of London. It is unclear, though, exactly how many people are held in detention in China, a country with a similarly high prison population.
The incarceration rates for both jails and prisons in the United States have declined by more than 10 percent over the past 10 years, the federal report found. (Prison is for people serving sentences longer than one year, while jails typically hold those awaiting trial or sentencing, or those serving shorter sentences.)
The decline in the prison population is not connected to the crime rate, which has fallen steadily over the past decades. Instead it is it the result of policy changes and court orders, and has been markedly uneven.
A drop in the federal prison population, due in large part to a 2014 decision by the U.S. Sentencing Commission to reduce sentences for drug crimes, accounts for a third of the year-over-year decline. And while some states have significantly reduced their prison populations in recent years, others continue to set records for the number of people they are keeping locked up.
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Monday, April 29, 2019

The Mueller Report's 'smoking gun' revealed

It is only two sentences in a report of some 448 pages. As yet unnoticed, these lines provide the strongest new evidence uncovered by Robert Mueller’s investigators that President Donald Trump may have indeed obstructed justice. Two people directly involved in the case told me that several of the special counsel’s prosecutors privately considered this information to be a “smoking gun” suggesting that the president acted criminally, according to Murray Wass in  the New York Review of Books. 
That section of the Mueller report—which also refers to former FBI Director James Comey, former National Security Adviser Michael Flynn, then White House Counsel Don McGahn II, and the former Russian ambassador to the United States, Sergey Kislyak—reads as follows:
By the time the President spoke to Comey about Flynn, DOJ officials had informed McGahn, who informed the President, that Flynn’s statements to senior White House officials about his contacts with Kislyak were not true and that Flynn had told the same version of events to the FBI. McGahn also informed the President that Flynn’s conduct could violate 18 USC §1001. [US Code Title 18 § 1001 is the federal statute that makes it a felony to lie to the FBI or other federal investigators, a crime that Flynn did indeed later plead guilty to.]
To read more CLICK HERE

Sunday, April 28, 2019

Mangino discusses the future for President Trump and obstruction of justice on WFMJ-TV21

To watch the interview CLICK HERE

Saturday, April 27, 2019

Defense Attorney Matthew Mangino Discusses Robert Kraft on Law and Crime Network

To watch the interview CLICK HERE

GateHouse: Federal Court rules parking tickets unconstitutional

Matthew T. Mangino
GateHouse Media
April 26, 2019
You know that feeling you get when you return to your parked car and there tucked under the windshield wiper is a parking ticket flapping in the wind. First, there is bewilderment, “how could this happen it’s free parking?” Then comes rage, “Why those rotten @?&%#!” Then there is resignation - the tire is chalked - “They got me.”
Not so fast. The U.S. Court of Appeals for the Sixth Circuit - covering Kentucky, Michigan, Ohio and Tennessee - ruled that marking a car’s tires to gather information is a form of trespass requiring a warrant.
Parking enforcers across the country have been chalking tires for years in areas without parking meters to keep track of time limits and issue tickets. It generates a lot of money but does it also keep streets safe from traffic and congestion?
Allison Taylor was fit to be tied after her 15th parking ticket in Saginaw, Michigan, between 2014 and 2017. The tickets were all from the same parking enforcement officer, Tabitha Hoskins. Taylor filed a federal civil rights suit against the City of Saginaw and Hoskins alleging they violated her Fourth Amendment right against unreasonable searches by placing chalk marks on her tires without her consent and without a valid search warrant.
The trial court dismissed Taylor’s lawsuit, finding that the city did engage in a search as defined by the Fourth Amendment. However, the Court found the city’s search reasonable because there is a lesser expectation of privacy in automobiles and because the “search” deals with community safety and therefore there is no need to get a warrant. Taylor filed an appeal.
There is no question that people driving vehicles, or the passengers in those vehicles, have a lesser expectation of privacy in their cars than in their homes.
Typically, the lesser expectation relates to physical searches of vehicles or its occupants. The reason, a car can be driven away, a house is normally stationary.
The Supreme Court has narrowed some of the broad exceptions to searching a vehicle without a warrant. The High Court has restricted the use of GPS tracking without a warrant, the search of rental vehicles and the search of vehicles in, on, or very near a home or garage.
More troubling was the trial court’s reliance on the community caretaker exception to getting a search warrant. The idea behind community caretaking is that police do not always function as law enforcement officials investigating and solving crimes, but sometimes act as community caretakers designed to prevent harm in emergency situations.
Circuit Court Judge Bernice Bouie Donald reversed the decision of the lower court. She found, as the lower court did, that chalking tires is a search, but she went a step further - she found the practice of tire-chalking is unconstitutional, violating the Fourth Amendment’s bar on unreasonable searches.
If a city wants to chalk tires they need a search warrant.
The judge also pooh-poohed the “caretaker” exception argument, saying that Taylor’s vehicle posed no safety risk. More to the point she wrote - as vehicle operators everywhere already know - parking tickets are not to “mitigate (a) public hazard,” but rather to raise revenue.
Is this the end of parking tickets for cities that don’t want to spring for parking meters? Probably not.
The Washington Post shared a tweet from Fourth Amendment expert Orin Kerr of the University of Southern California law school, “seems easy enough these days for parking enforcers to just take a photo of the car, or even just a close-up photo of the tire, rather than chalk it ... No 4A (Fourth Amendment) issues then.”
I’m sure cities across America are scrambling to trade in the chalk for iPhones to insure parking enforcement officers have all the 21st century tools to apprehend those fiendish parking violators.
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.
 To visit the column CLICK HERE

Friday, April 26, 2019

Ohio judge throws out death sentence for 74-year-old intellectually disabled inmate

A Cleveland  judge has thrown out the death sentence of a man whose been on death row since his 1988 conviction in a brutal beating death of a 74-year-old woman at a laundromat, reported the Cleveland Plain-Dealer.
Cuyahoga County Common Pleas Court Judge Cassandra Collier-Williams found Andre Jackson is intellectually disabled now and likely was at the time he murdered Emily Zak, and that allowing his execution would violate the U.S. Constitution’s ban on cruel and unusual punishment.
The judge issued the 11-page opinion more than two years after she presided over a hearing that featured testimony from psychologists who found that Jackson’s scores were equivalent to that of a 9-year-old child.
“Every professional that evaluated [Jackson] noted that his intellectual functioning was at a lower level than expected for someone in his age range,” Collier-Williams wrote.
Cuyahoga County Prosecutor Michael O’Malley’s office has vowed to appeal Collier-Williams’s opinion.
“The facts of this case are some of the most disturbing we have ever had," O’Malley said.
Jackson unsuccessfully filed a number of appeals in the 1990s. Then in 2002, the U.S. Supreme Court issued a landmark ruling in Atkins v. Virginia in which the court’s justices held that executing an inmate who is intellectually disabled amounts to cruel and unusual punishment and is a violation of the U.S. Constitution’s Eighth Amendment.
That ruling kicked off a new set of appeals for Jackson, whose lawyers argued IQ tests dating back to when he was 12 showed that he was intellectually disabled and functioned at a level much lower than the average person his age.
His case crawled along in the Common Pleas Court’s docket over the next 13 years, until Collier-Williams in 2016 allowed lawyers for Jackson and O’Malley’s office to hire psychologists to test Jackson on his IQ and his intellectual ability. A two-day hearing was held to present their findings.
The average adult’s IQ is about 100, according to court records. Courts have generally accepted the benchmark IQ to determine if a person can face the death penalty at 70, but they have held that an IQ score alone is not enough evidence for a judge to determine whether a defendant is intellectually disabled. They have to find a defendant has subaverage intellectual functioning, significant limitations in everyday skills and that the symptoms began as a child.
Jackson had his IQ measured five times in his life, including two tests in 2016.
He scored a 68 on a test when he was 12, which is generally considered intellectually disabled. He took another test in 1992, when he was 26 years old and had been in prison for four years. He scored a 72 on that test. He scored an IQ of 76 on a 2003.
In two tests in 2016, he scored 80 on one test and 67 on the other.
Assistant Cuyahoga County Prosecutor Christopher Schroeder wrote in court filings that Jackson’s highest score was likely the most reliable. They cited testimony from their expert, Carla Dreyer, who gave him the test that measured his IQ at 67. She said she felt Jackson scored low because he didn’t try very hard, which deflated his score. She said that it is nearly impossible for someone to artificially inflate their IQ score.
“I’m not trying to be inappropriate with the court but you can’t fake smart,” Dreyer testified, according to court records. "You can fake dumb.”
Using that score would put Jackson out of the range of even being considered borderline intellectually disabled, Schroeder wrote.
To read more CLICK HERE

Thursday, April 25, 2019

Texas man executed for 1998 'lynching' of James Byrd, Jr.

The 4th Execution of 2019
John William King, 44, convicted two decades ago for killing James Byrd Jr. in an act of unfathomable racist brutality in the small town of Jasper, was executed on April 24, 2019 by the State of Texas on with a dose of pentobarbital, reported the New York Times.
The execution, carried out at the state’s death chamber in Huntsville, came after the United States Supreme Court turned down Mr. King’s last petition for a stay. He was pronounced dead at 7:08 p.m., said Jeremy Desel, a spokesman for the Texas Department of Criminal Justice.
Mr. King kept his eyes closed as witnesses arrived to the execution chamber on Wednesday, The Associated Press reported. When the prison warden, Bill Lewis, asked him if he had any final words, Mr. King said, “No.”
Mr. King made a final statement issued in writing, Mr. Desel said. “Capital Punishment: Them without the capital get the punishment,” it said.
Early on a Sunday morning in 1998, Mr. King and two other white men attacked Mr. Byrd, a 49-year-old black man who had been offered a ride home in a sinister gesture of neighborliness. The men beat him, spray-painted his face, chained him to the back of a pickup truck and dragged him to his death on an isolated back road. The motive seemed shockingly clear-cut: Mr. King, who had come out of a stint in prison, was a committed white supremacist, his body a billboard of racist tattoos, including one depicting a black man hanged in a noose.
Louvon Harris, a sister of Mr. Byrd’s who planned to attend the execution, said on Tuesday that Mr. King’s death by lethal injection would not compare to the way he had tortured her brother. “He’s not going through any pain,” she said. “He’s not chained and bound and dragged on a concrete road, swinging back and forth like a sack of potatoes, with an arm coming off and being decapitated or nothing like that.”
“When you look at it at that angle,” she continued, “I don’t have sympathy.”
Less than a year after the killing, Mr. King became the first white man in modern Texas history to be sentenced to death for killing a black person. This was a troubling milestone given that, according to the Equal Justice Initiative, 344 black people were lynched in the 73 years after Reconstruction, a tally that included only documented lynchings and that stopped in 1950.
To read more CLICK HERE

Wednesday, April 24, 2019

Navy seal charged with atrocities amid claim of cover-up

Special Operation Chief Edward Gallagher was arrested in September on more than a dozen charges, including premeditated murder and attempted murder. If convicted, he could face life in prison. He has pleaded not guilty and denies all the charges. He is charged with stabbing a defenseless teenage captive to death. Picking off a school-age girl and an old man from a sniper’s roost. Indiscriminately spraying neighborhoods with rockets and machine-gun fire.
Navy SEAL commandos from Team 7’s Alpha Platoon said they had seen their highly decorated platoon chief commit shocking acts in Iraq. And they had spoken up, repeatedly. But their frustration grew as months passed and they saw no sign of official action.
Tired of being brushed off, seven members of the platoon called a private meeting with their troop commander in March 2018 at Naval Base Coronado near San Diego. According to a confidential Navy criminal investigation report obtained by The New York Times, they gave him the bloody details and asked for a formal investigation.
But instead of launching an investigation that day, the troop commander and his senior enlisted aide — both longtime comrades of the accused platoon leader, Special Operations Chief Edward Gallagher — warned the seven platoon members that speaking out could cost them and others their careers, according to the report. 
The clear message, one of the seven told investigators, was “Stop talking about it.”
The platoon members eventually forced the referral of their concerns to authorities outside the SEALs, and Chief Gallagher now faces a court-martial, with his trial set to begin May 28.
But the account of the March 2018 meeting and myriad other details in the 439-page report paint a disturbing picture of a subculture within the SEALs that prized aggression, even when it crossed the line, and that protected wrongdoers.
According to the investigation report, the troop commander, Lt. Cmdr. Robert Breisch, said in the meeting that while the SEALs were free to report the killings, the Navy might not look kindly on rank-and-file team members making allegations against a chief. Their careers could be sidetracked, he said, and their elite status revoked; referring to the eagle-and-trident badges worn by SEALs, he said the Navy “will pull your birds.”
To read more CLICK HERE

Tuesday, April 23, 2019

Named Plaintiff in landmark SCOTUS decision denied parole

IN 1963, when Henry Montgomery was 17 years old, he killed a sheriff’s deputy in East Baton Rouge, Louisiana, reported The Marshall Project. Montgomery was sentenced to life without parole for his crime. Now 71 years old, he has been incarcerated for 54 years. Montgomery is also the named plaintiff in a 2016 landmark U.S. Supreme Court ruling that applied retroactively the Court’s 2012 precedent banning mandatory life without parole sentences for youth who committed their offense under the age of 18. The decision was the third in a series that required states to give Montgomery and 2,000 other people serving life without parole a “meaningful opportunity for release.”
Despite being newly eligible for parole because of his resentencing, last week the Louisiana Board of Parole turned down Montgomery’s application for release. As justification, members of the board cited Montgomery’s short list of official classes completed during his time in prison. It didn’t acknowledge, however, that he was excluded from such programming for the first 30 years of his sentence because of his life sentence.
 To read more CLICK HERE

Monday, April 22, 2019

Slate: DOJ 'an institution compromised by rank partisanship'

Peter M. Shane writes at Slate:
In no small part because of the performance of Attorney General William Barr, history will treat his Justice Department as it treats the Justice Department under Richard Nixon’s one-time attorney general, John Mitchell—an institution compromised by rank partisanship and more committed to ideology than the rule of law. Barr’s spin on special counsel Robert S. Mueller’s report all but ignored the report’s damning findings, misrepresented significant parts of Mueller’s reasoning, and described President Donald Trump’s motivations and supposed cooperation in terms straight out of White House talking points. Barr engaged in word-splitting pettifoggery that would make even Bill Clinton blush. Barr is clearly compromised by the partisan goals of this White House to the point where he cannot be trusted in the job. He should resign immediately.
To read more CLICK HERE

Sunday, April 21, 2019

Lawmakers consider banning death penalty for seriously mentally ill

Lawmakers around the country are considering bans on death sentences for people with certain serious mental illnesses, reported The Marshall Project. Earlier this year, the South Dakota state legislature rejected a proposal to ban death sentences for people with serious mental illnesses, though it had passed such a proposal through one chamber last year
The Virginia state senate approved a similar bill three months ago. Other bills are gaining traction in TexasOhioTennessee and Missouri. Some include post-traumatic stress disorder, while others are limited to schizophrenia, schizoaffective disorder and bipolar disorder. Many require active psychosis at the time of the crime. Some would let a judge decide who should be exempted, before the trial begins. The Texas bill would let a jury decide during the trial. The Tennessee bill requires a documented medical history before the crime, which might exclude someone like Otto.
Supporters of these bills, with the backing of the American Bar Association, argue that the “insanity defense” tends to be very narrowly defined, and juries are skeptical of it. The Supreme Court has already banned the death penalty for people with intellectual disabilities and those who committed their crimes before the age of 18. Both bans were based on the idea that society views these murderers as “categorically less culpable than the average criminal.” The high court has ruled that death row prisoners must be “competent” to be executed, though lower courts are still debating exactly what that means.
“Defendants who have a mental illness are particularly vulnerable in our criminal justice system,” Amanda Marzullo, director of the Texas Defender Service, told a panel of legislators in her state last month. “They are very likely to fire their defense lawyers, or not cooperate with them, or even try to represent themselves.”
Prosecutors have been wary. “The version of this legislation that is pending in Ohio would effectively end the death penalty,” said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association. He predicted that everyone facing the punishment would be able to obtain a diagnosis. A defendant can already mount an insanity defense, he pointed out, and then tell the jury about mental illness as a way of persuading them to vote for life without parole instead of death. Ohio’s bill, as of now, would apply retroactively, potentially setting up lengthy legal fights over old cases.
To read more CLICK HERE

Saturday, April 20, 2019

Friday, April 19, 2019

NRA seeks injunction to stop Pittsburgh gun laws

The National Rifle Association has joined two other groups in seeking a preliminary court injunction in an attempt to stop Pittsburgh from enforcing a gun ban until the conclusion of lawsuits filed against the city by all three organizations.
Four city residents with assistance from the NRA, along with Firearm Owners Against Crime and The Allegheny County Sportsmen’s League, filed suit last week in Allegheny County Common Pleas Court following Pittsburgh’s passage of three bills regulating the use of guns within city limits.
They contend the legislation violates Pennsylvania law prohibiting municipalities from regulating firearms and the constitutional rights of gun owners.
The NRA lawsuit sought a permanent injunction, which would prevent Pittsburgh from enforcing the ban after the court cases are settled. On Wednesday, the NRA filed a court motion for a preliminary injunction.
All three lawsuits ask the court to declare the ban illegal. Firearm Owners Against Crime and the sportsmen’s league also sought preliminary injunctions.
The nonprofit gun control organization Everytown for Gun Safety, founded and funded by former New York Mayor Michael Bloomberg, is representing the city in civil court at no charge, according to Pittsburgh Mayor Bill Peduto.
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Thursday, April 18, 2019

NY Times Magazine: 'Where life is precious, life is precious'

“Where life is precious, life is precious.” Which is to say,  according Ruth Wilson Gilmore, in Spain people have decided that life has enough value that they are not going to behave in a punitive and violent and life-annihilating way toward people who hurt people. “And what this demonstrates is that for people trying to solve their everyday problems, behaving in a violent and life-annihilating way is not a solution.”
Between 1982 and 2000, according to The New York Times Magazine, California built 23 new prisons and, Gilmore found, increased the state’s prison population by 500 percent. If prison scholars tend to focus on one angle or another of incarceration trends, Gilmore provides the most structurally comprehensive explanations, using California as a case study. In her 2007 book, “Golden Gulag,” she draws upon her vast knowledge of political economy and geography to put together a portrait of significant historical change and the drive to embark upon what, as two California state analysts called it, “the largest prison building project in the history of the world.” Were prisons a response to rising crime? As Gilmore writes, “Crime went up; crime went down; we cracked down.” This sequence, and how crime rates are measured, have been heavily debated, but if this noncausal order is really the case, what was going on? Gilmore outlines four categories of “surplus” to explain the prison-building boom. There was “surplus land,” because farmers didn’t have enough water to irrigate crops, and economic stagnation meant the land was no longer as valuable. As the California government faced lean years, it was left with what she calls “surplus state capacity” — government agencies that had lost their political mandate to use funding and expertise for social welfare benefits (like schools, housing and hospitals). In the wake of this austerity, investors specializing in public finance found themselves with no market for projects like schools and housing and instead used this “surplus capital” to make a market in prison bonds. And finally, there was “surplus labor,” resulting from a population of people who, whether from deindustrialized urban centers or languishing rural areas, had been excluded from the economy — in other words, the people from which prison populations nationwide are drawn.
Prisons are not a result of a desire by “bad” people, Gilmore says, to lock up poor people and people of color. “The state did not wake up one morning and say, ‘Let’s be mean to black people.’ All these other things had to happen that made it turn out like this. It didn’t have to turn out like this.” Her narrative involves a broad array of players and facts, some direct, some indirect, some coordinated, many not: for instance, farmers who leased or sold land to the state for the building of prisons; the very powerful correctional officers’ union, state policymakers, city governments, cycles of drought, economic crisis and huge deindustrialized urban centers; and the lives and fates of the descendants of those who migrated to Southern California for factory work during World War II and after. Her fundamental point is that prison was not inevitable — not for individuals and not for California. But the more prisons the state built, the better the state became at filling them, even despite falling crime rates.
To read more CLICK HERE

Wednesday, April 17, 2019

Pennsylvania House Democrats propose package of police reform bills

Democrats in the state House unveiled a quintet of police reform proposals they say will provide for increased oversight and training for law enforcement, even as they seek to rebuild the bonds of trust with communities of Pennsylvanians who have come to view police officers with suspicion and even disdain, the Pennsylvania Capital Journal.
The end goal, the lawmakers said, is to avert the kind of fatal interaction between police officers and such young, unarmed black youth and men as Antwon Rose II, of East Pittsburgh, and David Jones, of Philadelphia, who were both shot and killed in separate incidents, sparking protests and public outcries in their hometowns.
“We had little hope for justice for an unarmed black man who was shot in the back,” said Rep. Summer Lee, an Allegheny County Democrat, whose district neighbors the community where Rose, 17, was shot and killed as he fled former East Pittsburgh Police Officer Michael Rosfeld. In March, a jury in Harrisburg found Rosfeld not guilty of charges of criminal homicide in connection with Rose’s death.
“The community has been demanding answers,” Lee continued. “The cry that ‘black lives matter’ will no longer go unanswered.”
The bills, some of which have been introduced in previous legislative sessions, or have yet to garner the standard memos seeking co-sponsors, would:
  • Clarify when police officers are empowered to use deadly force and under what circumstances the use of deadly force could be employed.
  • Require the state Attorney General’s Office to appoint a special prosecutor to investigate any incident of deadly force by a law enforcement.
  • Reform the arbitration process in disciplinary matters involving the police.
  • Strengthen the certification and decertification process for police officers and establish a statewide standard for training law enforcement officers.
  • Reform hiring practices for police officers to provide greater transparency by including any civil, criminal, or ethical complaints filed against an officer in his or her personnel record and to fully explain why an officer might have left a previous job.
A 2018 analysis of FBI data by the online news publication Vox found that U.S. police kill black people at greater rates than white people. In 2012, black people made up 31 percent of police killing victims, even though they comprised just 13 percent of the country’s total population, Vox reported. The online news site acknowledged that its data was incomplete “because [it was] based on voluntary reports from police agencies around the country.” Even so, the data “[highlighted] the vast disparities in how police use force,” Vox reported.
Cutting down — or even eliminating the disparate use of force — is the main goal of a use-of-force 
The Pennsylvania State Troopers Association, which represents state police troopers, said it was “not prepared” to comment on the proposals.
Rep. Brian Sims, D-Philadephia, who sponsored the special prosecutor bill in last year’s legislative session and is sponsoring it again this year, said his plan was critical to making sure that officers accused in shootings did not benefit from any favoritism from home turf prosecutors.
“We don’t do justice to justice by pretending she is blind. She’s not,” Sims said, adding that “the data” points to racial and ethnic disparities in the dispensation of justice. “We don’t say it enough.”
Democratic lawmakers said Tuesday that they’re hoping their proposals, as they emerge more fully, will garner broad bipartisan support and land on Gov. Tom Wolf’s desk before the end of the current two-year session.
To read more CLICK HERE

Tuesday, April 16, 2019

SCOTUS will not hear juror anti-gay bias case

The Supreme Court declined to take up the case of a death row inmate, Charles Rhines, who sought to challenge his sentence based on juror statements that indicated discrimination based on Rhines' homosexuality, reported CNN. His lawyers argued lower courts have blocked him from making his claims.Rhines hoped the Supreme Court would allow the normal secrecy of jury deliberations to be pierced when there is an allegation of discrimination based on sexual orientation.
Rhines stood for trial in 1993 for the brutal murder of 22-year-old Donnivan Schaeffer. He was found guilty and sentenced to death.
After the guilty verdict, jurors learned that Rhines is gay. While deciding whether to sentence him to life imprisonment or death, they sent the trial judge a note including questions regarding his sexuality.
In 2015, the inmate received new public defenders who sought to amend his claims with evidence of the jury bias. In 2016, they conducted interviews with jurors producing affidavits where one juror recalled that during deliberations there was "disgust" over the fact that Rhines was gay. Another said that jurors, citing the fact that he was homosexual, "thought he shouldn't be able to spend his life with men in prison."
On appeal, Rhines relied on the notes to argue anti-gay prejudice had influenced the juror's sentencing decision.
The lawyers also pointed to a 2017 Supreme Court opinion holding that while ordinarily jury deliberations are secret and immune from judicial review, that rule can be pierced when it comes to evidence of racial bias.
Rhines' lawyers argued the Supreme Court's opinion should be extended to include evidence of discrimination based on sexual orientation.
"Anti-gay bias, if left unaddressed, risks systemic harm to the justice system, and in particular, capital jury sentencing," they told the justices in court briefs.
South Dakota Attorney General Jason R. Ravnsborg said the lower courts were correct to hold that the challenge was procedurally barred in part because Rhines had waited so long to make his claims.
Ravnsborg pointed to the brutality of the crime where the victim's brain stem was partially severed, and questioned the veracity of the jurors' affidavits.
Even if the claims weren't procedurally barred, he argued to the justices in briefs that the court should not expand its precedent: "Sexual orientation does not implicate the same unique historical, constitutional and institutional concerns as race."
"Rhines has now eluded justice for longer than he allowed Donnivan Schaeffer to live his life; there is no justice in further delaying the imposition of Rhines' deserved death sentence," he added.
Lawyers for the ACLU urged the court to step in and extend its precedent to Rhines' case.
"A decision to sentence a person to death because he is gay violates the Sixth Amendment no less than a decision to sentence him to death because he is black," wrote David D. Cole, the ACLU's national legal director.
To read more CLICK HERE

Monday, April 15, 2019

Dallas DA implements policies to end mass incarceration

Dallas DA John Creuzot is unveiling a list of reforms that he calls “a step forward in ending mass incarceration in Dallas County,” reported the Texas Observer. The new policies, which he outlined in a 5-page public letter, range from refusing to prosecute certain drug cases to reforming probation and changing how the office handles crimes related to poverty and homelessness.
“The criminal justice system has fallen disproportionately harshly on poor people and people of color, that’s just a fact,” Creuzot told the Observer. “The entire system is complicit in this dysfunction. We’re doing what we can within this office to address some of that.”
Under the new policies, the DA’s office won’t prosecute people arrested with misdemeanor marijuana possession for the first time; Creuzot said he’s already dismissed more than 1,000 pot possession cases that were filed before he took office. After the first offense, Dallas prosecutors will offer a diversion program — a fine, a class and drug testing — that, if completed, will lead to dismissal of the criminal charge.
Among other changes, prosecutors will no longer take “trace” cases involving a minuscule amount of drugs, nor will they accept criminal trespass charges against someone who is clearly homeless and in need of services. Creuzot’s letter seeks to reduce the county’s heavy reliance on cash bail — the subject of an ongoing federal lawsuit — directing prosecutors to advocate for pretrial release in many low-level felony and most misdemeanor cases. “Our system of justice cannot depend on whether individuals can afford to buy their freedom,” he wrote.
Creuzot’s 5-page memo follows major reforms made by other so-called progressive prosecutors, whom advocates are pushing to change the system from the inside out. Philadelphia DA Larry Krasner set the high bar last year by refusing to prosecute a wide range of crimes and changing how his office handles plea deals and sentencing. Last month in Boston, Suffolk County DA Rachael Rollins issued a 65-page manifesto on “progressive prosecution” that focused on resolving nonviolent offenses without jail time.
“The entire system is complicit in this dysfunction.”
The changes in Dallas show how the movement to elect reformist DAs has evolved in Texas. The new policies go beyond reforms made during the first term of Harris County DA Kim Ogg, who was among an early wave of Democratic prosecutors elected in 2016. Ogg has since been criticized for continuing to seek high bail in misdemeanor cases and now faces a primary challenger from the left.
David Villalobos with the Texas Organizing Project, which rallied behind Creuzot and other progressive DA candidates in the midterms, says the new reforms in Dallas underscore how elections can quickly change policies on the ground that impact poor and marginalized people. That’s also exemplified by a Democratic sweep Harris County in the November election that dramatically changed the landscape for reform in Houston.
“We need people who can help us move away from an incarceration-first mentality,” Villalobos said. “These elections, they’ve given us the foundation for reform.”
To read more CLICK HERE

Sunday, April 14, 2019

California will seek death penalty for Golden State Killer

Prosecutors said Wednesday they will seek the death penalty for the man accused of being the Golden State Killer.
Joseph James DeAngelo Jr. is suspected of raping some 50 women and holding entire families hostage during a reign of terror in Sacramento and the Bay Area in the late 1970s, then progressing to murder, reported the Los Angeles Times.
The killer was given various names in each region, including the Visalia Ransacker, East Area Rapist, Creek Bed Killer and Original Night Stalker, before becoming known as the Golden State Killer.
He was arrested at his home in the Sacramento suburbs on April 24, 2018, just days after DNA samples surreptitiously gathered from him by law enforcement linked him to some of the crimes. 
District attorneys met in a Sacramento office Wednesday to vote on whether to seek the death penalty if DeAngelo is convicted in any of the 13 serial murders he is charged with. The decision in favor was unanimous, said Orange County Dist. Atty. Todd Spitzer, in whose county DeAngelo is accused of killing four people in the early 1980s.
Prosecutors in Santa Barbara, Ventura and Sacramento counties — with eight murder cases among them — agreed.
DeAngelo also is charged with killing a Tulare County journalism professor, but the county has not added special circumstances charges that would allow the death penalty in that case. He also is charged with kidnapping in several Contra Costa County rapes.
The capital punishment decision is strategic as much as anything. The letter prosecutors sent Wednesday to DeAngelo’s public defender notes that they would reconsider a lesser punishment if the defense provides sufficient reason. Spitzer declined to comment on what prosecutors would consider sufficient, but in death-penalty cases that typically includes a confession, especially to crimes not yet charged.
Ron Harrington, brother of 1980 murder victim Keith Harrington, said he was pleased to hear prosecutors will seek the death penalty.
“The Golden State Killer is the worst of the worst of the worst that ever happened,” Harrington said outside the Sacramento jail courtroom where DeAngelo appeared for Wednesday’s brief hearing. “We are thrilled with the decision to seek the death penalty.” Harrington followed with a criticism of Gov. Gavin Newsom, who has put executions on hold after years of an unofficial freeze.
But another murder victim’s relative at Wednesday’s hearing said she does not support the death penalty.
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Saturday, April 13, 2019

GateHouse: In the criminal justice system things are worse than they seem

Matthew T. Mangino
GateHouse Media
April 10, 2019
In 2009, President Barrack Obama appointed Preet Bharara as the United States Attorney for the Southern District of New York. President Donald Trump unceremoniously fired him in 2017.
Bharara has written a book, as has just about anyone who has been hired, fired or lambasted by Trump on Twitter.
John Pfaff, an author himself, and law professor at Fordham University, recently wrote a review of Bharara’s book, “Doing Justice,” for the Washington Monthly.
Pfaff suggested that the thesis of Bharara’s book can be found near the book’s end, where Bharara writes the criminal justice system is ”(A)n inquiry fairly conducted, and accusation rightly made, a judgment properly rendered.” Pfaff pulls no punches when he responds to Bharara’s thesis, “This is a stunningly sunny take on our criminal justice system, optimistic to the point of being dangerously misleading.”
Are things in the criminal justice system really that bleak?
Here are four things to consider:
- Incarceration rates;
- Prison conditions;
- Oppressive community supervision; and
- Collateral consequences of crime.
First, incarceration rates rose fivefold between 1970 and 2008. Relative to population, America now locks up seven times as many people as France, 11 times as many as the Netherlands and 15 times as many as Japan.
America imprisons more people for longer periods of time than at any time in history. There is no question that some recent reforms have the potential to reduce prison population. However, insistence on locking up people for non-violent offenses like theft, drug possession and nuisance crimes insures that the system will continue to waste money and waste lives.
Prisons are doing little to deal with recidivism. We know of truly deplorable prisons and jails like Rikers Island in New York and the state prison system in Alabama, but there are systemic problems across the country.
Prisons have become de facto mental health facilities. There are estimates that as many as 56 percent of state inmates have some mental health malady and a significant amount of those inmates have severe mental health problems.
Local jails across the country are loaded with pretrial detainees. People charged with a crime who cannot post bond. Those individuals, not yet convicted of a crime, languish in jail because they are too poor to pay for their release. Those sitting in jail awaiting trial cost taxpayers millions of dollars every day.
After an offender is released from prison the grip of the state is barely loosened. According to statistics compiled by the Department of Justice, one in 38 Americans is under some form of community supervision. Whether house arrest, parole or probation the government can keep close ties on offenders long after they have been released from prison.
Most of those who return to prison do so not because they committed a new crime, but because they violated a condition of community supervision. For instance, an offender on parole who fails to report goes back to prison. A probationer who drinks alcohol goes to jail; an offender on house arrest who leaves her house gets thrown in the hooskal. Who pays the price for an offender who drinks or leaves his house? Taxpayers.
The cost of incarceration in this country, fueled in part by technical parole and probation violators, is $81 billion per year.
Finally, even when a former offender has served his time in prison and successfully complied with parole while on the street they remain hamstrung by the system.
The collateral consequences of crime may keep convicted individuals from getting a driver’s license, housing, employment, a professional license, voting and other entitlements available to “law abiding citizens.” According to The Heritage Foundation, there are an estimated 46,000 state and federal laws that make it difficult for former offenders to get on with their life.
So what happens when a former offender is thwarted at every turn - no work and no place to live, no driver’s license? That is easy to figure out.
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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Thiel College: Death Penalty

What is your opinion of the death penalty? Is it cruel and unusual punishment or an appropriate punishment under the law?

Friday, April 12, 2019

Barr investigating the investigation of President Trump

Here we go again! Attorney General William Barr has assembled a team to review controversial counterintelligence decisions made by Justice Department and FBI officials, including actions taken during the probe of the Trump campaign in the summer of 2016, according to Bloomberg.
This indicates that Barr is looking into allegations that Republican lawmakers have been pursuing for more than a year -- that the investigation into President Donald Trump and possible collusion with Russia was tainted at the start by anti-Trump bias in the FBI and Justice Department.
 “I am reviewing the conduct of the investigation and trying to get my arms around all the aspects of the counterintelligence investigation that was conducted during the summer of 2016,” Barr told a House panel on Tuesday.
Barr’s inquiry is separate from a long-running investigation by the Justice Department’s inspector general, said the person, who asked not to be identified discussing sensitive matters. The FBI declined to comment. Barr said he expected the inspector general’s work to be completed by May or June.
To read more CLICK HERE

Thursday, April 11, 2019

Texas lawmakers seek death penalty for abortion

Texas lawmakers worked well into Tuesday morning as they listened to hundreds of Texans testify in support of a bill that would criminalize abortion and threaten the death penalty to any woman who undergoes the procedure, reported the Huffington Post.
In total 446 people testified in support of the “Abolition of Abortion in Texas Act,” or House Bill 896, which aims to outlaw all abortions “regardless of any contrary federal law, executive order, or court decision.” State Rep. Tony Tinderholt (R) introduced the bill in 2017, which would define abortion as murder which is punishable by death in the state of Texas. 
“God’s word says, ‘He who sheds man’s blood, by man ― the civil government ― his blood will be shed,’” Sonya Gonnella, a supporter of the bill, testified in the hearing before the Texas House’s Committee on Judiciary and Civil Jurisprudence on Monday. 
After quoting the Book of Genesis, Gonella implored the committee to “repent with us” by passing the proposed legislation. 
Lawmakers in the hearing, which wrapped around 3 a.m. on Tuesday, also heard from people opposed to the bill. In total 54 Texans, including women’s advocates and legal experts, testified against the bill, according to the Washington Post
Supporters of the bill gathered in Texas Capitol Rotunda ahead of the hearing on Monday night, chanting “abolish abortion” and “equal protection for all.” 
To read more CLICK HERE

Wednesday, April 10, 2019

Pittsburgh Mayor Peduto signs gun control laws

Pittsburgh Mayor Bill Peduto signed four gun control laws, setting up a fight over the limits of municipal authority over the regulation of firearms in Pennsylvania, reported Jurist.
Following the mass shooting at the Tree of Life Synagogue in October that killed 11, the Pittsburgh city council passed a series of gun control regulations aimed at reducing the availability of assault-style weapons. Peduto’s signature on the laws effectively bans automatic assault rifles in the city, along with banning armor-piercing ammunition and high capacity magazines. In addition, the laws strengthen “red flag” provisions that allow courts to seize firearms from people who are deemed a danger to themselves or others by the local courts.
The District Attorney for Allegheny County, Stephen Zappala Jr, advised the city council that Pennsylvania law doe not permit municipalities to regulate firearms. It is expected that the laws will be challenged in state courts, a fight that Peduto welcomes. In an interview with NPR, Peduto stated “there is a big difference between legality and justice, and in order to be able to make laws just you have to challenge existing laws.”
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Tuesday, April 9, 2019

Book Review: Preet Bharara, Doing Justice

Here is John Pfaff's review of Preet Bharara’s new book, Doing Justice for The Washington Monthly:  The broad agreement that our criminal justice system is profoundly broken, most recently embodied in a reform bill passed by Congress in December, is a rare contemporary example of genuine bipartisanship. We incarcerate and punish far too many people; we rely on counterproductively punitive sanctions that are often disliked by the very victims in whose name they are imposed; and the system is rife with racial bias at every stage. Thanks to years of work by advocates, academics, and journalists, a broad coalition is now pushing to overhaul how we punish in the U.S. 
You would not know any of this, however, from reading Preet Bharara’s new book, Doing Justice. Bharara was appointed by President Obama in 2009 as the U.S. attorney for the Southern District of New York, perhaps the most prestigious posting a federal prosecutor can get. Although criticized by some for, among other things, not prosecuting the financial fraud underlying the 2008 financial crisis, Bharara aggressively targeted the deep rot of corruption in Albany, convicting both the Democratic head of the assembly and the Republican head of the senate. He was broadly respected by the time President Trump fired him in March 2017. In fact, his abrupt termination, and speculation as to its causes, made him something of a hero to the #Resistance.
In Doing Justice, Bharara explores the criminal justice system by looking at how cases work their way through it, from investigation to trial to punishment. Nearly all the examples and anecdotes come from cases that Bharara’s office handled, which often gives the book the feel of a memoir. But it is clearly intended to be a broad discussion of criminal justice—not just of the rarified world of the federal courts, but of the far messier state systems that handle well over 90 percent of all cases.
The closest thing the book has to a thesis comes toward its end, when Bharara describes the process as “an inquiry fairly conducted, an accusation rightly made, a judgment properly rendered.” This is a stunningly sunny take on our criminal justice system, optimistic to the point of being dangerously misleading. It’s a shame, because Bharara’s insider status would give any criticisms significant heft. Yet not only does he celebrate the current system, he does so without even confronting any of the major criticisms that have been leveled against it. (The major exception is when he addresses the brutality of American prisons.) He offers what is effectively a paean to a slow, deliberative process, divorced from political pressures, that focuses almost exclusively on pursuing the truth, wherever that may lead. It is a laudable system, well worth defending. But it is also one that does not actually exist.
Bharara begins at the beginning, with investigation. “How fraught every decision is along the way to an arrest,” he writes. Yet at the peak of stop-and-frisk in New York City, the New York Police Department stopped about 80 percent of young black men in the city every year. There was nothing deliberative about it; it was impersonal on a massive scale. And the NYPD was not alone in adopting these sorts of tactics. When he turns to trials, Bharara paints a similarly overly optimistic picture. This is the moment for “judges, defense lawyers, jurors,” he writes. “There is judicial and public scrutiny.” He says this without once noting that during his time as U.S. attorney, 90 to 95 percent of all federal cases were resolved by plea bargain, without trial. The jury barely exists in either the federal or the state systems; almost all cases are resolved far from any sort of public scrutiny.
To be fair, Bharara acknowledges that the system is imperfect. But he explicitly rejects the possibility that the problems are at all systemic, arguing instead that the errors that occur are essentially the product of a few bad apples. “False allegations, wrongful convictions, excessive punishments, miscarriages of justice are often wholly the result of human failings, not flaws in the impersonal machinery of justice,” he writes. The idea that failings are individual, not structural, is a theme that permeates Doing Justice.
This runs contrary to all available data. Police violence is a direct product of how officers are trained to use force and the incredibly permissive legal doctrines that insulate them from liability. Judges become noticeably harsher as elections draw near, and prosecutors, judges, and parole boards all feel pressure to look tough on crime. County-funded prosecutors face no restrictions on how many people they can send to state-funded prisons. I could go on; many books have been written about these structural problems (including by me). Yet with only a few passing exceptions, Bharara addresses none of them.
In fact, not only does Doing Justice ignore these issues, it exemplifies and even celebrates the exact kind of thinking that underlies them. Take the incentive to over-punish, which is so well known that it has a name: the Willie Horton effect. Horton was a black man serving a life sentence in Massachusetts for murder who committed two serious violent crimes while out on a weekend furlough program. George H. W. Bush infamously used the case as a racial dog whistle to attack his 1988 Democratic opponent, Massachusetts Governor Michael Dukakis. The high-profile episode ultimately led to more than forty states abolishing prison-leave programs, even though the program from which Horton escaped had a success rate of over 99 percent. This effect encourages everyone from the police to the parole board to err on the side of longer and harsher punishment, even as data consistently shows that such severity is ineffective and harmful to the very communities most often victimized by crime.
Not only does Bharara avoid any discussion of how the Horton effect distorts justice, he actually devotes an entire chapter, titled “God Forbid,” to praising this sort of reasoning. “Law enforcement people are trained to hear that ‘God forbid’ voice,” he writes: “God forbid this person does something.” He then recounts his office’s prosecution of the Newburgh Four, four black Muslim men induced by an undercover FBI informant to plan acts of terror in New York. The informant offered the four men up to $250,000, along with a car and vacations, to carry out a series of attacks near New York City. All of the men were very poor, and one of them seemed quite mentally ill (he stored jars of urine in his house and thought Florida was a foreign country). None of them appeared to be radicalized prior to meeting the informant. 
Even the judge in the case said that she strongly believed the plot existed only because “the government instigated it, planned it, and brought it to fruition.” But Bharara defends the prosecution. “When the possibility of harm is afoot, prosecutors are aggressive,” he writes. “Who knows which threats are real and which are puffery?” And so four men are now spending twenty-five years in prison, because, in Bharara’s eyes, “you don’t want to take any chances.” But what about the chance he did take? Why isn’t the risk of needlessly destroying someone’s life also subject to that “God forbid” voice?
Over and over, Doing Justice perpetuates the problem at the heart of our criminal justice system: the dehumanization of the people subjected to it. With only a few exceptions, including a welcome chapter devoted to lambasting Rikers Island, the New York City jail, for its infamous cruelty, Bharara ignores the complicated lives of those who come into contact with the system. Far more typical is when Bharara reduces defendants to one-dimensional
“bad guys” squaring off against the “good guys” in his office. In a chapter on “snitches,” for example, he notes the emotional nature of working closely with an informant: “You may realize that he is more than the crimes he has committed, just as every person is more than the worst thing he or she has ever done.” This sounds promising. But then he continues: “This is the point of maximal danger.” Danger. Acknowledging the humanity of people facing criminal charges is, apparently, a weakness. This is disturbing. Prosecutors have played a central role in driving mass incarceration, but they also have the power and discretion to reverse it. That even a “liberal” prosecutor like Bharara views empathy as a weakness to guard against, rather than an essential component of doing justice, indicates just how challenging it will be to get the profession to change. 
Few if any books over the past decade have sought to defend the criminal justice status quo with any real rigor. It is possible that such a defense exists—although I am personally hard pressed to imagine what it would look like—but Doing Justice is not it. Real, meaningful reform will require law enforcement officials from the beat cop to the nationally renowned prosecutor to honestly confront the system’s defects and work to make things better. Until then, whatever the criminal justice system is doing, far too rarely can we say that it is doing justice.
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Sunday, April 7, 2019

Supreme Court 'nibbles around the edges' of the death penalty

The headlines say the justices of the Supreme Court are “openly feuding” and “sniping” at one another over the death penalty. What they are in fact doing is nibbling around the edges, writes Kevin D. Williamson of the National Review.
Some opponents of the death penalty wish to see the Supreme Court declare it unconstitutional, and they are not too picky about how that gets done: not jurisprudence but jurispretext.
The problem with that is that the Constitution itself categorically sanctions capital punishment, for instance by specifying in the Fifth Amendment certain limitations on the conditions in which a person may be “deprived of life.” Whatever “cruel and unusual punishment” means in the Eighth Amendment, no one involved in the drafting of that language or the ratification of the Constitution believed that it prohibited capital punishment. “We should not pretend the Constitution is silent or ambivalent about the basic existence of the practice,” writes Damon Root, author of Overruled: The Long War for Control of the U.S. Supreme Court. “Like it or not, the death penalty is constitutional.”
The current Supreme Court action regarding the death penalty, from a legal point of view, amounts to little more than trivia. In some states, only prison employees may be present in the death chamber, which means that if there is a Christian or Muslim chaplain on the prison staff, he may be physically present, but a Buddhist or Zoroastrian may be denied similar consolation if there is no affiliated clergyman on the payroll. That case would be of scant interest if not for its intersection with the issue of capital punishment. Another case involves a man who suffers from a rare disease that, according to his lawyers, would cause him to endure horrifying pain if he were to be put to death via lethal injection. Likewise, that case has little to do with the merits or acceptability of capital punishment as such.
There is a long history of this sort of thing when it comes to the death penalty. The Furman case found the Supreme Court handing down a national moratorium on executions in an intellectually and legally incoherent decision — it was a 5–4 case with five different majority opinions — based on the nebulous considerations of arbitrariness and loosely defined “discrimination.”
Most of the popular arguments against the death penalty are like most investment advice and Republican campaign promises: I want to believe, and am inclined to do so, but they do not stand up to much scrutiny. It may very well be the case that an innocent man will be sentenced to death, but that also is an argument against incarceration, speeding tickets, and much else. An execution cannot be undone, but neither can the damage from 40 years’ wrongful incarceration. The irreversibility of the death penalty is an argument for prudence in its use, as indeed we must be prudent in all uses of state violence. It is not an argument against the thing itself. Neither is the related argument that the wealthy and well-connected tend to achieve better outcomes in capital cases than do the poor and the marginalized. There is little doubt that this accords with the facts on record — everybody hates lawyers until one is needed, and in a murder case, there is practically no expense that will not be endured — but, again, this is an argument for procedural reform rather than argument against a mode of punishment.
The myth that it is wildly more expensive to pursue a death-penalty case than to manage a lifelong incarceration would, even if it were true, be a sterile argument. There are many good occasions for the green eyeshades, but responding to murder or other heinous crimes is not one of them.
The fundamental obstacle to arguments against capital punishment is that it is not as a general matter unjust, though it may be unjustly applied in some particular case. Capital punishment is applied unevenly and in ways that often are perplexing, but it is applied relatively rarely, and it is applied in the context of a legal system that, whatever its faults, provides the accused with representation, procedural openness, a generous appellate process, and much more. Our prisons are a scandal, but the process by which offenders are remanded there is admirable, strange as that word may sound in this grim context. It is not perfect or free from abuse — including the willful abuses and occasional incompetence of police, investigators, and prosecutors, which are serious problems — but perfection is not the criterion of legitimacy or constitutionality.
There is a more straightforward case against the death penalty: that, on balance, it adds more violence and horror to our society than it is worth, that it does not bring out the best in us or in our institutions, that in our necessary pursuit of justice we need not see to it that the bitter cup is drained to the dregs in every instance, that we are better off showing mercy in this matter, and that what mercy entails is forbearance toward those who in fact deserve the worst that we might hand down.
But these are not questions for the Supreme Court. They are considerations for Congress and the states, which have the power to end the practice of capital punishment whenever they so choose. The Democrats who currently are in control of the House of Representatives could, if they had the courage of their convictions, make an issue of the death penalty in federal cases, and could probably count on the cooperation of at least a few Republicans in Congress and many more conservatives outside of elected office.
And it would be a far better thing to eliminate capital punishment on principle rather than on pretext.
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Saturday, April 6, 2019

GateHouse: Prosecutors face dilemma in child exploitation cases

Matthew T. Mangino
GateHouse Media
April 5, 2019
Sexual Exploitation of Children, including what is commonly referred to as child pornography, has increased by more than 200 percent in the last decade. This horrific trend has been fueled by the easy spread of illicit material over the internet, according to Enough is Enough, a website dedicated to making the internet safe for children and families.
Easy access to the internet will only increase in the future. The Pew Research Center predicts that more than 30.7 billion devices are expected to be connected to the internet by next year.
With the proliferation of child pornography, law enforcement agencies have become more sophisticated in trackingdown cyber consumers and purveyors of exploitation. For instance, software that tracks images to specific internet connections has become a vital tool for prosecutors.
With this as a backdrop, eight out of 10 Americans believe federal laws against internet obscenity should be vigorously enforced. The question is how far is too far?
This week, ProPublica an independent, nonprofit investigative news agency, exposed cases in which prosecutors have dismissed charges against an accused consumer of child pornography as opposed to turning over the workings of the technology used to detect the illegal images.
Defense attorneys have sought to have the government explain how child pornography was traced to their clients’ computers.
During the early years of the commercialization of the internet there was a peer-to-peer file-sharing network known as Napster. People who used Napster could share music with one another by sharing files directly with other music enthusiasts. The same method is used to distribute child pornography.
Investigators use software programs to scan for child pornography on peer-to-peer networks. According to ProPublica, police rely on modified versions of peer-to-peer programs to flag IP addresses of suspected users of child pornography. This enables investigators to subpoena the internet providers to reveal the identity of the internet subscribers.
After identifying the internet subscriber, investigators obtain a search warrant for computers or other devices at the home, office or physical location of the subscriber who allegedly received the child pornography file.
However, in some cases, according to ProPublica, child pornography was being traced to an internet address, but after examination no illicit images were found.
As a result, law enforcement agencies have, in some cases, been faced with a difficult decision - drop the charges or disclose the workings of the detection software.
“When protecting the defendant’s right to a fair trial requires the government to disclose its confidential techniques, prosecutors face a choice: Give up the prosecution or give up the secret. Each option has a cost,” Orin Kerr, an expert in computer crime law and former Justice Department lawyer told ProPublica. “If prosecutors give up the prosecution, it may very well mean that a guilty person goes free. If prosecutors give up the secret, it may hurt their ability to catch other criminals. Prosecutors have to choose which of those outcomes is less bad in each particular case.”
Software developers want to protect their propriety rights to the software. Law enforcement wants to protect the ability of investigators to utilize technology that is having an impact on the exchange of child pornography.
The sexual exploitation of children is diabolical. Those who create it, and the consumers who trade it, deserve the wrath of the criminal justice system. However, a hallmark of the American criminal justice system is that a person charged with a crime has the right to “be informed of the nature and cause of the accusation” and the right to confront those who have made the accusation.
Keeping secret the manner and method of detecting a crime flies in the face of the Sixth Amendment to the U.S. Constitution. The end never justifies the means in a court of law. Those who harm children should be held accountable - and those who pursue them must be held to a standard consistent with this nation’s traditions of fairness and transparency.
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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Friday, April 5, 2019

Connecticut judge reduces adult's life sentence based on Miller v. Alabama

Latin King Luis Noel Cruz put two bullets into the head of a potential witness, then held down a perceived snitch as a fellow gang-banger fired four shots into him.
A quarter-century later, the pain caused by that double murder hasn’t changed. But something else has: How society sentences the teenagers who perpetrate such crimes.
U.S. District Court Judge Janet Hall, a Clinton appointee, made that difference clear on Tuesday morning as she considered resentencing Cruz, who’d been put away for life without parole for the murders of the two New Haveners, based on the U.S. Supreme Court’s recent guidance on juvenile offenders, reported the New Haven Independent.
During a three-hour hearing in the Church Street courthouse, Judge Hall recounted Cruz’s childhood on the mean streets of Bridgeport, heard devastating testimony from the victim Tyler White’s New Haven family about how the murders broke them, and questioned a social worker about whether Cruz had truly changed.
Cruz also spoke up for himself.
“I can confidently tell everyone I’m definitely not that stupid, close-minded kid who hurt so many people with my actions,” he said, as he testified that he planned to work with at-risk youth — “the not-yet victims and not-yet offenders” — if the judge would one day release him. “My hope is that will be even the smallest consolation, that others wouldn’t have to go through what I’ve put them through. This is not what I want to be known for, Your Honor.”
Weighing that evidence, Judge Hall ultimately decided to cut Cruz, now 43 years old, a break, dropping his sentence to 35 years in prison.
Judge Hall said Tuesday that she based her decision largely on the Supreme Court’s reasoning in Miller v. Alabama. In that 2012 case, the high court’s justices were deciding whether life in prison without parole was an allowable punishment for a 14-year-old who’d clubbed a man with baseball bat, then burned him alive inside his trailer.
The four liberal justices, joined by swing-vote Anthony Kennedy, ruled that sentence constituted a “cruel and unusual punishment,” in violation of the Eighth Amendment. The four conservative justices disagreed, saying the high court’s job was overstepping its duties in setting a moral standard for the country.
Since then, judges have been interpreting just who counts as a “child,” and Hall has been more willing than others to extend the high court’s reasoning to those who are over 18 years old.
Based on the latest developmental research, experts are suggesting that teenagers might be able to argue that their sentences should be reviewed all the way up to age 24.
While she didn’t want to assign a brightline for adulthood, Hall said she’d consider Cruz, who was just five months past his 18th birthday when he killed White and Diaz, close enough to a juvenile to review his lifetime sentence. She said that also fit with a general trend in sentencing, as only one 18-year-old had been given life in prison without parole in the federal system from 2010 to 2015, according to a U.S. Sentencing Commission report.
Another nearby federal judge, however, a New Yorker presiding over the trials of three murderous gang-bangers from the Bronx who were between 18 and 22 years old, has disagreed, still handing down life without parole to youngsters. That case is currently being challenged before the Second Circuit Court of Appeals.
The lawyers in Hall’s courtroom on Tuesday sparred too, arguing about how much responsibility a young adult should take for their actions, even if the teenage brain isn’t fully developed.
Was Cruz fully culpable at 18 years old when he put a gun against White’s head? Was Cruz fully culpable at 20 years old when he lied about committing the crime at his initial sentencing? Was Cruz fully culpable at 26 years old when he tried to cut ties with the Latin Kings? Was Cruz fully culpable at 43 years old when he still wouldn’t give up a childhood friend who’d been involved in the double murder?
“He was mature enough not to leave a bystander as a witness; so he decided to shoot Tyler White in the head twice,” Patricia Stolfi Collins, an assistant United States attorney, wrote in a brief. “And he was mature enough to know that the business of murder, once begun, should not be left unfinished; and so he helped chase and wrestle down Diaz, as he pled for his life, so that his accomplice could shoot him again and again.”
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Thursday, April 4, 2019

New Orleans to apologize for lynching of 11 Italians in 1891, one of the largest mass lynchings in American history

The Washington Post reports today about the lynching of 11 Italian immigrants in New Orleans in 1891, in what some say was the largest mass lynching in American history.
Thousands of people, among them the most prominent businessmen, lawyers, merchants and politicians in New Orleans, marched in circles around a statue of Henry Clay. The crowd was “yelling itself hoarse,” bent on a kind of justice that would be called murder today but that The Washington Post and numerous other newspapers called “vengeance” in 1891.
The mob’s victims awaited in the Orleans Parish jail, all of them Italian immigrants or children of immigrants who had just been acquitted in the shooting death of the New Orleans police chief; others still awaited trial. To this day, the chief’s killer or killers have never been identified. But on the morning of March 14, 1891, despite the not-guilty verdicts, the mob seemed certain.
“When the law is powerless,” William Parkerson, the mob’s leader and mayor’s former campaign manager, yelled to the crowd, according to a 1991 New Orleans Times-Picayune article, “rights delegated by the people are relegated back to the people, and they are justified in doing that which the courts have failed to do.”
Once the speeches finished, The Post reported then, everyone stood still for a moment, quiet just long enough for one man’s voice to catch the agitated crowd’s attention: “Shall we get our guns?”
The verdict was decisive. That morning, anywhere from 8,000 to 20,000 vigilantes armed with Winchester rifles, axes and shotguns broke down the door of the parish jail and trampled past the passive sheriff’s deputies until they captured 11 defenseless Italians and riddled their bodies with bullets. Two were dragged outside and hanged, one by a tree limb and the other by a lamp post.
Historians have called the massacre the largest mass lynching in American history. The vigilante mob escaped any consequence, and the city of New Orleans refused to take responsibility.
But now, 128 years later, the city is trying to make amends On April 12, New Orleans Mayor LaToya Cantrell (D) is expected to apologize to the Italian American community for the infamous killings — a concession that Michael Santo, special counsel to the Order Sons and Daughters of Italy, said will shore up “long-lasting wounds” among Italians. The mayor is expected to issue a formal proclamation, according to the group. A spokesman for Cantrell confirmed the pending apology to the Associated Press on Sunday.
“This is not something that’s too little, too late,” Santo told The Post. “This is something that has to be addressed.”
The lynchings were a product of anti-Italian sentiment and public hysteria over a shadowy “Mafia” in the aftermath of the chief’s slaying, according to a 1992 paper in the Journal of the Louisiana Historical Association by John V. Baiamonte Jr.
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