Thursday, July 18, 2019

Philly DA supports inmates' request to abolish death penalty

A petition before the Pennsylvania Supreme Court by two death row inmates could upend Pennsylvania's dysfunctional death penalty, and it has one extremely unusual supporter: the Philadelphia District Attorney's Office, reported Reason.
In a legal brief filed Monday night in support of the petition, Philadelphia D.A. Larry Krasner, who ran for office promising to never pursue a death sentence, argues Pennsylvania's death penalty is applied unreliably and arbitrarily, violating the state constitution's ban on cruel punishment.
To reach its conclusions, the Philadelphia District Attorney's Office reviewed every case where a Philadelphia defendant received a death sentence between 1978 and 2017. The study found that 72 percent of those 155 sentences were ultimately overturned—more than half of them for ineffective legal assistance.
"Where nearly three out of every four death sentences have been overturned—after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires," the office wrote in its brief. "Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the 'worst of the worst.'"
The brief was filed in the case of Jermont Cox and Kevin Marinelli, who were sentenced to death for three drug-related murders in 1992 and a fatal 1994 shooting, respectively. Their petition argues that the Pennsylvania Supreme Court should strike down the state's capital punishment system because of its "pervasive unreliability" and "systemic dysfunction," citing the scores of reversed death penalty sentences, as well as six death row exonerations.
Cox and Marinelli's petition has attracted amici briefs from groups like the Pennsylvania chapter of the American Civil Liberties Union (ACLU) and the NAACP Legal Defense Fund.
Meanwhile, the Pennsylvania attorney general, the Philadelphia chapter of the Fraternal Order of Police, and several groups of Republican state lawmakers filed briefs opposing the petition. But it appears to be the first time, at least as far as several criminal justice experts can tell, that a district attorney has argued broadly in court against a state death penalty. 
"There have been individual cases where a particular defendant challenges the death penalty and a prosecutor who reviews the case on appeal decides, you know, we can't defend what happened here," says David Rudovsky, a professor at the University of Pennsylvania Law School. "I don't know of any case of a broad-scale attack like this on the whole system, where a prosecutor agreed that the death penalty, at least in application here in Pennsylvania, is unconstitutional."
Last year, the prosecuting attorney for King County, Washington, wrote an op-ed calling on the state to end the death penalty.
Krasner, a former civil rights attorney, was elected in 2017 and is one of the most high-profile members of a wave of progressive candidates who have run for prosecutor offices in major cities in recent years, promising to roll back policies they say contribute to mass incarceration.
Krasner pledged during his campaign to never seek the death penalty. That decision, along with others, has led to intense opposition from police unions and critical local news coverage.
Although Pennsylvania is one of 30 states where the death penalty is still on the books, there have only been three executions in the state since 1978. The last took place in 1999. Four years ago, Pennsylvania Democratic Gov. Tom Wolf announced a moratorium on the death penalty that still remains in place.
Nationwide, the use of capital punishment has steadily declined and become more geographically isolated over the past few decades. Only a handful of counties in the U.S. are responsible for the majority of new death penalty sentences. Last year, the Washington Supreme Court struck down the state's death penalty "because it is imposed in an arbitrary and racially biased manner"—much the same argument that Cox and Marinelli, as well as Krasner, make.
However, the extraordinary cost of death penalty trials and near non-existence of executions have not stopped Pennsylvania prosecutors from pursuing capital punishment. A 2016 analysis by the Reading Eagle found that the state had spent $816 million on the death penalty since 1978.
To read more CLICK HERE

Wednesday, July 17, 2019

PA Supreme Court case that could end death penalty

A little-known case before Pennsylvania’s highest court could strike down the death penalty and block the executions of scores of people on death row, reported the Philadelphia Inquirer.
At the heart of the case before the state Supreme Court, Commonwealth v. Cox,  is whether Pennsylvania’s death-penalty system is so flawed that it violates the state constitution’s prohibition on cruel punishment. The justices’ decision could affect not just future cases, but also the 142 inmates awaiting execution, potentially forcing the courts to resentence them. 
 “If the death penalty is abolished, that would have a very real effect on a limited number of cases — which happen to be the most heinous cases,” said Greg Rowe, legislation and policy director for the Pennsylvania District Attorneys Association.
It could also set the stage for another showdown with the Republican-controlled legislature, which just last year accused the Democratic-majority court of trying to set public policy from the bench.

Tuesday, July 16, 2019

Mangino appears on Weekend Today on WFMJ-TV21

Watch my interview on WFMJ-TV21 on the workings of the Pennsylvania Parole Board.  To watch the interview CLICK HERE

Monday, July 15, 2019

PA legislature gives AG role in Philadelphia gun case

Philadelphia District Attorney Larry Krasner and state Attorney General Josh Shapiro wound up on opposing sides of a bill designed to give the AG’s office new powers to prosecute gun crimes in Pennsylvania’s largest city, reported WHYY-FM.
Proponents of the new legislation, which quietly passed last week, say expanding Shapiro’s role will help stem the tide of shootings in the city. But critics say establishing so-called “concurrent jurisdiction” between the city’s DA and the state AG weakens Philadelphia’s home-rule powers, and Krasner’s supporters say it’s designed to undermine the progressive district attorney’s efforts to choose which cases do — and don’t — go to trial.
But on Tuesday, Shapiro was quick to distance himself from the legislation and pledged to continue collaborating with his Philadelphia counterpart.
“I’m going to continue to work in partnership with the District Attorney’s Office,” he said. “I didn’t seek this law and I didn’t advocate for it … And it doesn’t change anything.”
Krasner, who has sought to cut the city’s jail population and reduce criminal sentencing, has already seen federal U.S. Attorney William McSwain file tougher federal charges in a case in which Krasner’s office accepted a plea deal, and Police Commissioner Richard Ross has implied that too many gun charges were being sent to diversionary programs. And Shapiro’s office has notably hired some of the prosecutors dismissed by Krasner during his first week in office.
However, Shapiro’s comments were also a surprise to some of the state lawmakers who said they were confused about the language in the bill and stunned by its swift and near-unanimous passage during the hectic climax of Harrisburg’s budget season.
State Rep. Chris Rabb, who sits on the House Judiciary Committee and was one of the few Democrats who voted against the final version of the bill, was succinct when asked who was lobbying for the concurrent-jurisdiction legislation.
“The attorney general,” he said.
Rabb allowed that Republican State Rep. Martina White, who cosponsored the legislation, and Philadelphia’s Fraternal Order of Police were active in promoting the bill as well. But State Rep. Mary Jo Daley also told the online news outlet The Intercept –– which first broke news of the legislation –– that Shapiro’s office had sought to quickly pass concurrent-jurisdiction language.
Rabb called it “a pretty bad bill,” and echoed other critics’ observations that the language was pared down to only extend Shapiro’s powers in Philadelphia and only for the duration of Krasner’s first term in office.
“It was amended to punish Philadelphia. That’s ultimately what Martina White’s bill did,” he said.
Gov. Tom Wolf similarly criticized the final amendment for failing to create a statewide concurrent-jurisdiction system. Advocates of this language counter that Philadelphia drives much of the state’s gun crime.
“District Attorney Krasner deserves a direct explanation from Attorney General Shapiro of how this targeted attack on his local authority came to be authored, passed without the apparent knowledge of most lawmakers, and signed into law by a Democratic governor who otherwise is supportive of efforts to dramatically reform our system of criminal justice,” Krasner’s office said in a statement.
In an earlier comment to The Intercept, Roh said she had “serious concerns” with the bill “and what it signifies for the justice movement at large.”
Shapiro still struck a positive tone Tuesday. He pointed to a collaborative relationship between his and Krasner’s offices through the state-funded Gun Violence Task Force, which focuses on clearing illegal guns off city streets.
“[Concurrent jurisdiction] doesn’t change the great, collaborative work that’s being done literally right now by the task force,” Shapiro said. “People are dying every single day in the city of Philadelphia because of everyday gun violence. And it’s critically important that no one, my office or anyone else, acts territorial.”
The AG made these remarks while flanked by numerous local law enforcement officials, during a press conference to announce a joint drug raid that had broken up a fentanyl ring in Philadelphia’s Kensington neighborhood. Among them was Police Commissioner Ross and Executive Deputy AG Jen Selber, who left the city’s District Attorney’s Office for Shapiro’s about one year before Krasner’s inauguration.
Krasner, meanwhile, was not in attendance. A staffer from his office observed the proceedings along with reporters and other onlookers.
To read more CLICK HERE

Sunday, July 14, 2019

GateHouse: Pre-trial electronic monitoring as onerous as cash bail

Matthew T. Mangino
GateHouse Media
July 13, 2019This week the Pennsylvania Supreme Court decided to weigh in on the use of cash bail in the city of Philadelphia. In March, attorneys from the American Civil Liberties Union filed a lawsuit on behalf of 10 inmates, arguing that “bail magistrates in Philadelphia’s First Judicial District have failed to consider alternatives to cash bail and have assigned cash bail to people who are too poor to afford it.”
According to the Pennsylvania Capital-Star, ACLU Executive Director Reggie Shuford said, “People who have not been convicted of a crime are sitting in Philadelphia jails only because they are too poor to pay the bail they’ve been assigned. The Philadelphia courts have effectively criminalized poverty.”
As advocates scramble to find alternatives to pretrial detention, one option may be as detrimental to the accused as incarceration.
The movement to overhaul cash bail by challenging the constitutionality of jailing defendants pretrial, has pushed judges, prosecutors and law enforcement to turn to electric monitoring as a “humane” and cost effective substitute.
Electronic monitoring is a method of supervising an accused pre-trial without housing the individual in a costly jail or prison.  The defendant wears an electronic GPS monitor, housed in an ankle bracelet, permitting court or law enforcement personnel to can keep track of their movements. The monitor provides a layer of public safety that doesn’t exist when a defendant is simply walking free pending trial.
States and cities incur the brunt of the costs for jails and prison.  In an effort to cut down on government expenses, more and more local policymakers are passing the financial burden of the monitoring devices onto those who wear them.
A recent investigation by ProPublica and the New York Times cited a 2014 study by NPR and the Brennan Center that found, with the exception of Hawaii, every state required defendants to pay at least part of the costs associated with electronic monitoring.
As the cost of incarceration has soared, and state and local budgets have shrunk, electronic monitoring—paid for by the accused—must have seemed like a life preserver floating in a sea of government debt.
Yet as ProPublica and the New York Times suggested, “like the system of wealth-based detention they are meant to help reform, ankle monitors often place poor people in special jeopardy.”
Many local government agencies engage private entities to operate and manage pre-trial monitoring programs. These for-profit entities often charge defendants more over time than the cost of cash bail at the outset. Private companies set their own rates and charge interest when defendants fall behind in payments. Defendants can pay with a credit card or utilize financing set up through the company and often rack up debt they can never repay. 
In some jurisdictions the expanding use of electronic monitoring has outpaced court rules. Some judges do not, nor are they required to, conduct hearings on a defendant’s ability to pay for private supervision before assigning them to wear a bracelet rather than sit in jail.
It’s not only debt that can send defendants back to jail. Individuals being monitored can be punished for breaking the rules that come with the devices—things like curfew, use of alcohol or maintaining a job.
In 2011, then U.S. Attorney General Eric Holder stated that keeping people awaiting court dates in county jails costs around $9 billion a year. The urgency to address those costs and the concern that cash bail disproportionally affects the poor has created a form of “debtor’s supervision.”
Today, eight years after Holder’s admonition, policymakers risk further exacerbating the plight of the poor by forcing those merely accused of a crime to choose between financial stability and freedom.
(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino)
To visit the column CLICK HERE

Saturday, July 13, 2019

Pa. Supreme Court: Possession of Gun Alone Not Indicia of Dangerousness

Matthew T. Mangino
The Legal Intelligencer
July 11, 2019
Michael Hicks walked into an Allentown convenience store at 3 a.m. on a summer morning in 2014. He had a handgun in his waistband and a license to carry a concealed weapon. That didn’t prevent the police from stopping Hicks’ vehicle before he left the parking lot.
Things got worse for Hicks. Once confronted by the police the officer smelled alcohol and found marijuana in his pocket.
How did Hicks, lawfully carrying a firearm, end up arrested for DUI and possession of marijuana?
The police relied on a 50-year-old landmark U.S. Supreme Court decision and a 1991 ruling from the Pennsylvania Superior Court.
Prior to Terry v. Ohio, 392 U.S. 1 (1968) the concept of an investigatory stop was pretty straightforward. A police officer could act on a hunch and attempt to voluntarily engage an individual. However, once that encounter became involuntary the suspect was considered seized and the police needed probable cause to detain the suspect.
That all changed after Terry. The Supreme Court created a degree of suspicion somewhere between a hunch and probable cause—now known as reasonable suspicion. The Supreme Court authorized police officers lacking probable cause for an arrest to conduct a frisk for weapons if the officer believed the individual was dangerous.
On Halloween in 1963, a veteran Cleveland detective saw two men standing on a downtown street acting in a way that seemed suspicious to the detective. The detective observed the two men, one of whom was John Terry, take turns walking back and forth, in front of a store window. After each trip the two men would talk. The detective recalled that the men repeated this ritual at least a half dozen times. A third man came along as the two men spoke.
The detective approached the three, suspecting they were planning to rob the store. He identified himself as a police officer, and asked their names. Unsatisfied with the responses, the detective spun Terry around, patted down the outside of his clothing, and felt a pistol in his overcoat pocket.
Terry and another man were subsequently charged with carrying a concealed weapon and both filed a motion to suppress the guns as the fruits of an unlawful search.
The Supreme Court found that the detective “seized” Terry and subjected him to a “search” within the meaning of the Fourth Amendment. But the Fourth Amendment protects against unreasonable searches and seizures, so the court next had to determine whether Terry’s seizure and search were “reasonable.”
The events the detective witnessed made it reasonable for him to believe that either Terry or his companions were armed. “The record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.”
The court found that the search was reasonable, and concluded that the gun found on Terry was properly admitted into evidence.
Over time the reasonable suspicion standard from Terry evolved from an investigatory tool to a crime-fighting tool through the advent of “stop and frisk.”
In the early 1980s, if a police officer had reasonable suspicion of a possible crime, she had the authority to stop an individual and ask questions. Reasonable suspicion could be established by a neighborhood’s crime rate or even the time of day or night. For her safety, and the safety of others, the officer could pat-down the individual—if a gun was found the inquiry could continue or an arrest, based on probable cause, could ensue.
If, based on the subject’s answers, the suspicion level did not escalate to probable cause for an arrest the person would be released immediately.
Stop and frisk became popular in New York City. Opponents of stop and frisk argued that the police stops were discriminatory because they did not reflect the city’s overall census numbers.
Supporters argued there were 2,245 murders in New York City in 1990. By 2012, the number had dropped to 414, the lowest since police began keeping records.
Finally, in 2012, U.S. District Judge Shira Scheindlin put a stop to it. She called the city’s stop-and-frisk tactics “indirect racial profiling.” The police used the tactic more than 4.4 million times between 2004 and 2012. The vast majority of the stops were of African Americans, 52%, and Hispanics, 31%. And 88% of stops resulted in no further law enforcement action.
Stop and frisk is not unconstitutional. There is no question that Pennsylvania law provides that an individual may be stopped, briefly detained and frisked for investigatory purposes if the police observe unusual and suspicious conduct on the part of the individual seized.
That brings us closer to Hicks’ dilemma.
In 1989, Charles Robinson Sr., was observed by a Pittsburgh police officer bending over into a van with a gun sticking out of the back of his pants.
Because of the presence of children in the area, the officer decided to confer with her partner. The officers returned and stopped Robinson’s van.
After Robinson stepped out of the van, the officer informed him that she had seen a gun in the back of his pants. She performed a quick pat down of Robinson and discovered a holster inside the back of his shorts.
The officer then looked into the van and saw a gun on the floor beside the driver’s side seat with deep scratches through the serial number.
In Commonwealth v. Robinson, 600 A.2d 957 (1991) the Pennsylvania Superior Court found that possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous. The court found that the observation of a weapon in and of itself was enough to trigger reasonable suspicion—and permit a police officer to temporarily detain that individual.
In Commonwealth v. Hicks, No. 56 MAP 2017, decided May 31, the Pennsylvania Supreme Court overturned Robinson, a 28-year-old precedent.
Hicks was armed and had a license to carry a concealed weapon. Pennsylvania Supreme Court Justice David Wecht writing for the majority contends, “A police officer in the field naturally relies upon his or her common sense when assessing criminal activity. When many people are licensed to do something, and violate no law by doing that thing, common sense dictates that the police officer cannot assume that any given person doing it is breaking the law. Absent some other circumstances giving rise to a suspicion of criminality, a seizure upon that basis alone is unreasonable.”
In overturning Robinson the Pennsylvania Supreme Court said evidence from Hicks’ detention should have been suppressed. Wecht wrote, Robinson “contravenes the requirements of the Terry doctrine and thus subverts the fundamental protections of the Fourth Amendment.”   Wecht concludes, “The Superior Court patently has erred in concluding that the ‘possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous.’”
Some people are barred from gun ownership, and a license is required for a concealed firearm, the court said. But “there is no way to ascertain an individual’s licensing status, or status as a prohibited person, merely by his outward appearance.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George/ His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
 To visit the column CLICK HERE

Friday, July 12, 2019

Mangino provides legal analysis on Pennsylvania parole for WFMJ-TV21

Watch my interview on WFMJ-TV21 regarding the parole of accused child killer Keith Burley. To watch the interview CLICK HERE

NJ puts limits on the use of solitary confinement in prison

A lengthy and vocal campaign to strictly limit solitary confinement in New Jersey’s prisons came to a close Thursday when Gov. Phil Murphy signed a long-stalled reform measure into law, reported NJ.Com.
“I am proud to stand together with New Jersey’s criminal justice reform advocates and legislators to advance a humane correctional system that allows for the safe operation of facilities and focuses on strengthening reentry initiatives, substance use disorder treatment, and recovery programs,” the Democratic governor said in a signing statement Thursday.
Supporters say the measure is among the most comprehensive controls on the controversial practice of placing prisoners in isolation in the United States.
Its passage followed several years of debate in the state Legislature that culminated in 2016 when then-Gov. Chris Christie trashed the proposal, claiming solitary confinement did not happen behind bars in the Garden State.
It was a position long held by corrections officials in New Jersey, where prisoners could be placed in “restrictive housing,” “protective custody,” “administrative segregation” and other methods of isolation.
There are many reasons why corrections officials might need to remove an inmate from the general population, including for their own safety or because they pose a danger to other prisoners.
The current acting corrections commissioner, Marcus Hicks, said in a statement Thursday that the new law “will codify certain existing New Jersey Department of Corrections policies into law and prevent isolated confinement from wrongful overuse in the state of New Jersey by future administrations,” suggesting the practice was not currently an issue in the state’s prison system.
But prison reform and civil rights advocates have long argued the bureaucratic language used by the corrections department obscures how often inmates are placed in isolation as an act of punishment or retaliation.
In recent months, a coalition of advocacy groups under the banner of the NJ Campaign for Alternatives to Isolated Confinement renewed a push to strictly curtail the practice, collecting testimony of inmates who claimed they spent months in isolation.
“The agony of solitary confinement is that it doesn’t just lock up your body – it locks in your mind," said Nafeesah Goldsmith, a community organizer who says she spent 60 days in solitary confinement while serving a New Jersey prison sentence.
“For New Jersey to institute dramatic restrictions on solitary acknowledges the suffering we’ve endured, along with the scars we’ll bear for the rest of our lives.”
To read more CLICK HERE

Thursday, July 11, 2019

UN Report: Organized crime kills more people than armed conflict

The UN Office on Drugs and Crime (UNODC) published a report on Monday that showed that organized crime kills more people than armed conflict, reported Jurist.
According to the report, “[o]rganized crime kills as many people as all armed conflicts combined.” The report also stated that “up to 19 per cent of all homicides recorded globally in 2017 were related to organized crime and gangs.” The report found that while more men were victims of homicide, women were more likely to be killed by their partners or their family.
The report concluded with several policy implications. According to the report, “the only way of obtaining a long-term and sustainable reduction in the homicide rate is by combating impunity, improving the rule of law and governance, and investing in education.” The report also noted that alcohol and drugs “are important facilitators of violence and homicide” and that providing treatment to people who are addicted to alcohol or drugs would reduce “the risk of their becoming involved in crime.”
To read more CLICK HERE

Wednesday, July 10, 2019

PA Supreme Court to review Philadelphia cash bail system

In an order issued Monday, the high court says it’s open to suggestions to improving the existing cash bail system, but “any attempt to advocate for the abolition of cash bail,” is not on the table, reported the Pennsylvania Capital-Star.
In its order, the court agreed to take on the inquiry as part of its “King’s Bench” powers, which gives it supervisory powers over the rest of the statewide judiciary. Typically, the court only wields this authority in matters of “great public importance. Judge John M. Cleland, a senior judge from McKean County, has been named the special master who will oversee the investigation, court documents indicated.
In March, attorneys for the Pennsylvania branch of the American Civil Liberties Union and the Washington D.C.-based law firm Arnold & Porter Kaye Scholer filed a lawsuit on behalf of 10 incarcerated people, as well as a community advocacy group, arguing that “bail magistrates in Philadelphia’s First Judicial District have failed to consider alternatives to cash bail and have assigned cash bail to people who are too poor to afford it.”
In a statement, ACLU Executive Director Reggie Shuford, said his organization is “grateful that the court understands that this situation needs more investigation.
“People who have not been convicted of a crime are sitting in Philadelphia jails only because they are too poor to pay the bail they’ve been assigned. The Philadelphia courts have effectively criminalized poverty,” he said.
In its legal filing, the ACLU claims that Philadelphia courts are violating procedural rules with their bail practices. The high court’s Monday order gives the ACLU and the Philadelphia court officials named as defendants in the case 90 days to submit their evidence. From there, Cleland has 60 days to submit his recommendations to the high court.
“There are people sitting in Philadelphia’s jails right now who have not been proven guilty of a crime,” Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, said in a statement. “Bail hearings in Philadelphia typically last less than three minutes, which is wholly insufficient to inquire into someone’s ability to pay, and the person whose liberty is on the line is not even in the room, as they watch the proceedings by video. The bail system in Philadelphia must change.”
Some legal reform groups, including the Brennan Center for Justice at New York University, have called for the elimination of cash bail, arguing that the decision regarding “whether a defendant should be jailed while awaiting trial is often based on a defendant’s wealth and not on public safety considerations.”
The center’s research has further found that “80 percent of the accused are too poor to afford an attorney, more than 60 percent are people of color, and the bulk of the cases are low-level, non-violent offenses. Most of this population cannot afford bail and are incarcerated before trial for long periods even though they have not been found responsible for any crime.”
“[Sixty] percent of the jail population is not convicted but being held pretrial,” Brennan researchers pointed out in a 2012 report, adding that this “issue is a huge contributor to the mass incarceration of people in the United States, resulting in overcrowded facilities and unsustainable budgets … those too poor to pay a money bail remain in jail regardless of their risk level or presumed innocence … U.S. Attorney General Eric Holder in 2011 stated that keeping people awaiting court dates in county jails costs around $9 billion each year.”
 To read more CLICK HERE

Tuesday, July 9, 2019

Facial recognition software racially biased?

“Facial recognition software proves to be less accurate at identifying people with darker pigmentation,” George Byers II, a black software engineer, told the police board last month. “We live in a major black city. That’s a problem,” reported the New York Times
Researchers at the Massachusetts Institute of Technology reported in January that facial recognition software marketed by Amazon misidentified darker-skinned women as men 31 percent of the time. Others have shown that algorithms used in facial recognition return false matches at a higher rate for African-Americans than white people unless explicitly recalibrated for a black population — in which case their failure rate at finding positive matches for white people climbs. That study, posted in May by computer scientists at the Florida Institute of Technology and the University of Notre Dame, suggests that a single algorithm cannot be applied to both groups with equal accuracy.
Mr. Byers and other critics spoke at a public hearing called by the Detroit Board of Police Commissioners after what the board called unprecedented public interest in two facial recognition items on its agenda. One item, specific to the new traffic light cameras, was approved last week. The other, a comprehensive “acceptable use” policy for facial recognition, has yet to be put to a vote.
To read more CLICK HERE

Monday, July 8, 2019

Electronic monitoring creates a sort of debtor's supervision

Over the past half-century, the number of people behind bars in the United States jumped by more than 500%, to 2.2 million. This extraordinary rise, often attributed to decades of “tough on crime” policies and harsh sentencing laws, has ensured that even as crime rates have dropped since the 1990s, the number of people locked up and the average length of their stay have increased, reported ProPublica and the New York Times.
According to the Bureau of Justice Statistics, the cost of keeping people in jails and prisons soared to $87 billion in 2015 from $19 billion in 1980, in current dollars.
In recent years, politicians on both sides of the aisle have joined criminal-justice reformers in recognizing mass incarceration as both a moral outrage and a fiscal sinkhole. As ankle bracelets have become compact and cost-effective, legislators have embraced them as an enlightened alternative. More than 125,000 people in the criminal-justice system were supervised with monitors in 2015, compared with just 53,000 people in 2005, according to the Pew Charitable Trusts. Although no current national tally is available, data from several cities — Austin, Texas; Indianapolis; Chicago; and San Francisco — show that this number continues to rise.
Last December, the First Step Act, which includes provisions for home detention, was signed into law by President Donald Trump with support from the private prison giants GEO Group and CoreCivic. These corporations dominate the so-called community-corrections market — services such as day-reporting and electronic monitoring — that represents one of the fastest-growing revenue sectors of their industry.
By far the most decisive factor promoting the expansion of monitors is the financial one. The United States government pays for monitors for some of those in the federal criminal-justice system and for tens of thousands of immigrants supervised by Immigration and Customs Enforcement. But states and cities, which incur around 90% of the expenditures for jails and prisons, are increasingly passing the financial burden of the devices onto those who wear them. It costs St. Louis roughly $90 a day to detain a person awaiting trial in the Workhouse, where in 2017 the average stay was 291 days. When individuals pay EMASS $10 a day for their own supervision, it costs the city nothing. A 2014 study by NPR and the Brennan Center found that, with the exception of Hawaii, every state required people to pay at least part of the costs associated with GPS monitoring. Some probation offices and sheriffs run their own monitoring programs — renting the equipment from manufacturers, hiring staff and collecting fees directly from participants. Others have outsourced the supervision of defendants, parolees and probationers to private companies.
“There are a lot of judges who reflexively put people on monitors, without making much of a pretense of seriously weighing it at all,” said Chris Albin-Lackey, a senior legal adviser with Human Rights Watch who has researched private-supervision companies. “The limiting factor is the cost it might impose on the public, but when that expense is sourced out, even that minimal brake on judicial discretion goes out the window.”
Nowhere is the pressure to adopt monitors more pronounced than in places like St. Louis: cash-strapped municipalities with large populations of people awaiting trial. Nationwide on any given day, half a million people sit in crowded and expensive jails because, like Daehaun White, they cannot purchase their freedom.
As the movement to overhaul cash bail has challenged the constitutionality of jailing these defendants, judges and sheriffs have turned to monitors as an appealing substitute. In San Francisco, the number of people released from jail onto electronic monitors tripled after a 2018 ruling forced courts to release more defendants without bail. In Marion County, Indiana, where jail overcrowding is routine, roughly 5,000 defendants were put on monitors last year. “You would be hard-pressed to find bail-reform legislation in any state that does not include the possibility of electronic monitoring,” said Robin Steinberg, the chief executive of the Bail Project.
Yet like the system of wealth-based detention they are meant to help reform, ankle monitors often place poor people in special jeopardy. Across the country, defendants who have not been convicted of a crime are put on “offender funded” payment plans for monitors that sometimes cost more than their bail. And unlike bail, they don’t get the payment back, even if they’re found innocent. Although a federal survey shows that nearly 40% of Americans would have trouble finding $400 to cover an emergency, companies and courts routinely threaten to lock up defendants if they fall behind on payment. In Greenville, South Carolina, pretrial defendants can be sent back to jail when they fall three weeks behind on fees. (An officer for the Greenville County Detention Center defended this practice on the grounds that participants agree to the costs in advance.) In Mohave County, Arizona, pretrial defendants charged with sex offenses have faced rearrest if they fail to pay for their monitors, even if they prove that they can’t afford them. “We risk replacing an unjust cash-bail system,” Steinberg said, “with one just as unfair, inhumane and unnecessary.”
Many local judges, including in St. Louis, do not conduct hearings on a defendant’s ability to pay for private supervision before assigning them to it; those who do often overestimate poor people’s financial means. Without judicial oversight, defendants are vulnerable to private-supervision companies that set their own rates and charge interest when someone can’t pay up front. Some companies even give their employees bonuses for hitting collection targets.
It’s not only debt that can send defendants back to jail. People who may not otherwise be candidates for incarceration can be punished for breaking the lifestyle rules that come with the devices. A survey in California found that juveniles awaiting trial or on probation face especially difficult rules; in one county, juveniles on monitors were asked to follow more than 50 restrictions, including not participating “in any social activity.” For this reason, many advocates describe electronic monitoring as a “net-widener": Far from serving as an alternative to incarceration, it ends up sweeping more people into the system.
To read more CLICK HERE

Sunday, July 7, 2019

California's new plea bargain: Waive your right to future changes in the law

After the jury deadlocked in Victor Hugo Sanchez’s murder trial in February, San Diego prosecutors offered him a deal: plead guilty to manslaughter and spend just 11 years in state prison.
But there was an unusual catch. As part of the agreement, Sanchez had to sign away his right to benefit from any future legal changes, including legislation or court decisions that might reduce his sentence. He agreed, reported The Marshall Project.
The district attorney’s office in San Diego has proposed two more such deals, both in murder cases, but the offers were not accepted.
While the number of these pleas is small, they come at a time of tension between some “law-and-order” prosecutors and lawmakers who have been changing the state’s criminal code to try to cut the number of people in prison. Some district attorneys, include San Diego’s, have publicly pushed back on sentencing reductions.
Some lawmakers recently introduced a bill explicitly aimed at blocking the new plea deals, which they fear might become a common way to try to thwart their work. The bill’s sponsor, state Assemblyman Reggie Jones-Sawyer, a Democrat from South Los Angeles, is pushing for a public hearing in early July.
San Diego prosecutors say they created these plea bargains to give crime victims a sense of finality. The deals will be used in “very narrow and rare circumstances that serve the interests of justice and allow victims of violent crime to have peace of mind that a court’s sentence will be carried out,” according to a statement by district attorney’s spokesman, Steve Walker. He added that if Jones-Sawyer’s proposal becomes law, “we would certainly respect and follow it.”
Robert Weisberg, a criminal law professor at Stanford, said that the deals could raise constitutional questions.
Pleas must be knowing and voluntary, he said, and it’s not clear if a person can give up rights to something that doesn’t exist yet.
“This one is pushing the envelope as far as it can go,” Weisberg said. “It’s a pretty slick and aggressive prosecutorial move.”
In March 2013, authorities arrested Sanchez in Mexico and accused him of killing a San Diego woman in 2005. His case went to trial last February, but the jury couldn’t reach a decision.
Sanchez is serving his sentence at the California Institution for Men, according to records from the California Department of Corrections and Rehabilitation. He did not respond to an interview request.
Katherine Braner, a spokeswoman for the San Diego County Public Defender Office, declined to discuss Sanchez’s case, citing attorney-client privilege, but she described it as “a very unique situation.”
In the deal prosecutors offered Sanchez, they pointed to a 2013 California Supreme Court case that involved a man, known in court filings as John Doe, who in 1991 faced sex-offense charges. He accepted a deal that required him to register as a sex offender. At the time, only law enforcement officials had access to the registry.
Five years later, California lawmakers opened the registry to the public. The man filed a lawsuit, claiming the new legislation violated the terms of his agreement. He said he never would have taken the plea bargain if he knew his name, address and other personal information would be made public.
The court ruled against him, finding that plea agreements don’t insulate defendants from later policy changes. However, the court wrote that it could envision deals crafted so that the parties agree the terms will remain fixed even if the law changed.
The California District Attorneys Association has not taken a position on the pleas.
The California Public Defenders Association opposes them.
“There’s an attempt by some district attorneys to literally thwart the will of the people,” said Margo George, co-chair of the group’s legislative committee. “Some district attorneys are trying to cling to the past.”
To read more CLICK HERE

Saturday, July 6, 2019

GateHouse: Prosecutors struggle with criminal justice reform

Matthew T. Mangino
GateHouse Media
July 5, 2019
Prosecutors are the most powerful people in the criminal justice system. As sentencing guidelines and mandatory sentencing have diminished the influence of judges, prosecutors have filled the void.
Prosecutors have an enormous amount of discretion. A prosecutor can decide who gets charged; who gets a favorable plea; who goes to trial; and who walks with a slap on the wrist. Some reform-minded practitioners have complained that prosecutors’ laser focus on obtaining convictions and securing prison sentences are a major reason for the soaring cost of mass incarceration.
There are an estimated 2,400 prosecutors’ offices across the country. The biggest threat to the authority of prosecutors is from within. New prosecutors are getting elected and bringing with them new ideas and a departure from the old mantra “tough on crime.”
In Ferguson, Missouri - rocked by the unrest following the killing of Michael Brown - Wesley Bell, a Ferguson city councilman, who worked with the Department of Justice on the federal consent decree to reform the police department, decided to run for district attorney.
He beat seven-term incumbent Bob McCulloch who refused to indict the police officer who killed Brown. According to the ABA Journal, under McCulloch’s watch, the Department of Justice “issued a scathing report that held the Ferguson Police Department accountable for a sustained and egregious pattern of racial profiling and abuse.”
In Orange County, Florida, Aramis Ayala pulled-off an upset victory over an incumbent making her the first African American state’s attorney in Florida’s history.
Just two months after taking office, Ayala announced that her office would no longer seek the death penalty, arguing it was costly, inhumane and did not deter violent crime or promote public safety. Florida Governor Rick Scott challenged her prosecutorial discretion. Ayala sued, challenging Scott’s authority to remove cases from her jurisdiction, but she lost in the Florida Supreme Court. According to the ABA Journal, her office instituted a seven-attorney panel to review all first-degree murder cases to determine whether the death penalty would be appropriate. She won’t run for reelection in 2020.
Larry Krasner unexpectedly won the district attorney’s seat in Philadelphia. He had been a public defender and a civil rights attorney, often taking on the police.
Krasner instituted immediate reforms, according to the ABA Journal. He announced the office would no longer prosecute sex workers with fewer than three prior offenses; would not prosecute marijuana possession cases; and would not seek cash bail for low-level offenses.
Some current prosecutors are not accepting reform as inevitable. The district attorney’s office in San Diego has proposed that plea bargains include a provision that the defendant forego any future benefit from criminal justice reform measures - including legislation or court decisions that might reduce sentences.
There is no question that a defendant could waive his right to appeal in exchange for a plea deal. However, the defendant knows the strength of his case and the specific rights he is giving up. The district attorney in San Diego is asking defendants to give up a right or privilege not yet known.
Robert Weisberg, a criminal law professor at Stanford University, told The Marshall Project that the deals could raise constitutional questions.
Pleas must be knowing and voluntary and it is not clear if a person can give up a right that does not yet exist.
“This one is pushing the envelope as far as it can go,” Weisberg said. “It’s a pretty slick and aggressive prosecutorial move.”
The actions of the San Diego District Attorney’s Office may soon run afoul of the separation of powers. The California legislature is considering a Bill that would prohibit prosecutors from forcing defendants to waive yet unknown rights in exchange for a favorable plea.
If such a law is enacted district attorney’s will be foreclosed from seeking such waivers.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Friday, July 5, 2019

No citizenship question for the 2020 census, maybe

The Trump administration announced abandoned its quest to add a citizenship question to the 2020 census, a week after being blocked by the Supreme Court, reported the New York Times. However, the administration immediately did an about face and said they were still considering the question.
Just last week after the Supreme Court’s decision, President Trump said he was asking his lawyers to delay the census, “no matter how long,” in order to fight for the question in court. He reiterated his unwillingness to give up in a Twitter message posted late Tuesday, saying he had asked administration officials “to do whatever is necessary” to get a citizenship question on the census form.
Then he changed his mind and then he changed his mind again, Wow, what a surprise.
The administration change of heart before it most recent change of heart was a victory for critics who said the question was part of an administration effort to skew the census results in favor of Republicans--not so fast. It was also a remarkable retreat for an administration that typically digs into such fights, not.

Thursday, July 4, 2019

Iowa Supreme Court: Due Process not constitutionally mandated for parole

The Iowa Supreme Court ruled in favor of the state’s parole board in a juvenile parole case on Friday.
In 2010 the US Supreme Court disallowed sentences of life without parole for juveniles convicted of non-homicide crimes in Graham v. Florida, reported Jurist.
As a result, the Iowa Supreme court decided to resentence Julio Bonilla, who had been sentenced when he was 16 to life without parole for the kidnapping and sexual assault of a pregnant teenager, to life with the possibility of parole in 2011. Beginning in 2012, Bonilla began to receive annual parole hearings. In advance of his 2016 hearing,  he filed nine motions with the Board of Parole, among them were motions for:
 (i) appointment of counsel at state expense, (ii) provision of an independent psychological evaluation at state expense, (iii) an in-person parole review hearing and interview, (iv) an opportunity to present evidence at the parole hearing, (v) access to information related to his parole review and a right to challenge the information, (vi) exclusion of all nonverifiable evidence, (vii) proper consideration of mitigation factors of youth, (viii) access to rehabilitative treatment and programming, and (ix) establishment of procedures in the event of denial of parole.
The Parole Board refused to rule on the motions explaining that “there was no motion practice in connection with annual reviews,” but made some concessions. It agreed to allow Bonilla’s counsel to provide a written statement in support of his release, to allow counsel to appear at Bonilla’s 2016 parole review, and to disclose records relevant to Bonilla’s parole, including disciplinary records, notes related to his conduct in prison, and parole release plans.
In response to the Parole Board’s refusal to rule on the motions, Bonilla, supported by the ACLU of Iowa, filed a petition in district court for judicial review, claiming that the board’s review procedures violated the US Constitution’s protection against cruel and unusual punishment and guarantee of due process and the Iowa Constitution that additionally provides a right to counsel. In March 2018, the district court denied the petition and dismissed the case, explaining that:
there is no authority compelling the concluding that the matters requested in Bonilla’s nine motions to the Board are constitutionally mandated and there is no basis on this record to conclude that the current statutory and regulatory parole system in Iowa, on its face, denies juvenile offenders a meaningful opportunity for release.
The Supreme Court of Iowa affirmed the district court but held that the requirement of a realistic and meaningful opportunity for release for juvenile offenders applies to parole proceedings. 
To read more CLICK HERE

Tuesday, July 2, 2019

More than 30 million Pennsylvania criminal records became eligible for automatic sealing

Each year, Pennsylvania courts seal thousands of criminal and arrest records, closing them off from public view, reported The Pennsylvania Capital Journal.
That number is about to get a lot bigger. 
On Friday, more than 30 million criminal records became eligible for automatic sealing under Pennsylvania’s Clean Slate law — a landmark piece of legislation that applies to low-level misdemeanors, summary offenses, and charges that didn’t result in convictions.
Supporters say it will unlock the potential of thousands of Pennsylvanians who face housing and employment discrimination due to their criminal records. And since it automates the process, people will no longer have to hire a lawyer and go to court to put their past behind them.
“We will be freeing thousands of people from the handcuffs of history,” Gov. Tom Wolf said at a press conference Friday, exactly one year after he signed the bill into law. “These are people who couldn’t shake the stigma of making a mistake because our faulty criminal justice system didn’t allow them to.”
Wolf celebrated the enactment of Clean Slate outside the Pennsylvania Judicial Center in Harrisburg, where he was joined by lawmakers, criminal justice reform advocates, and Pennsylvanians who are waiting to have their records sealed.
One of those Pennsylvanians was 29-year-old Keith, who lives in suburban Harrisburg. More than a decade ago, Keith incurred a trio of low-level charges that now prevent him from getting professional licenses.
On Friday, he said that’s made it hard for him to advance his career in the insurance industry. But as soon as those charges are sealed, “I can apply for anything I want,” Keith said. 
“I’m just looking forward to new opportunities,” he added.
Pennsylvania’s Legislature passed the Clean Slate law in 2018 with overwhelming bipartisan support. It’s the first law of its kind in the country, and has inspired similar legislation in Utah and California, Katie Svoboda-Kindle, a staff attorney at Community Legal Services in Philadelphia, said. 
“It’s a completely revolutionary law,” Svoboda-Kindle said. “The country has never seen something on this scale and of this kind.”
Under Clean Slate, a computer program run by the Administrative Office of Pennsylvania Courts will automatically seal summary offenses and non-violent misdemeanor charges — such as shoplifting, prostitution, and DUI charges — for people who don’t reoffend for 10 years. 
It will immediately erase charges that are dropped or that don’t result in convictions.
Right now, more than 30 million charges in the Pennsylvania Courts’ database qualify for automatic sealing under Clean Slate. 
They include 23 million charges that didn’t result in convictions, seven million summary offenses, and 84,000 non-violent misdemeanors, said Rep. Sheryl Delozier, R-Cumberland, who sponsored the Clean Slate legislation with Rep. Jordan Harris, D-Philadelphia. 
The Administrative Office of Pennsylvania Courts will seal more than 2.5 million charges a month to get through the backlog in the next year, DeLozier said Friday.
Once a record is sealed, it’s only visible to law enforcement. Landlords, employers, and other members of the public won’t be able to see them.
One in three Americans has a criminal record. But many people don’t know they can have their record sealed, or can’t afford to hire a lawyer to guide them through the process, Svoboda-Kindle said.
For many people, an expungement is all that’s standing in the way of stable employment or housing. 
“A criminal record holds you back so much,” Svoboda-Kindle said. “Once they get their records cleared, it’s like the world is their oyster. They can pursue opportunities they were rejected from or were too fearful to pursue.”
Pennsylvanians can find out if their record is eligible to be sealed by visiting

Monday, July 1, 2019

Feedspot: one of the top 60 criminal justice blogs to follow in 2019

Feedspot rated this blog as one of the top 60 criminal justice blogs to follow in 2019 . . .CLICK HERE

Mangino on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today about the U.S. Supreme Court's decisions on  gerrymandering and the U.S. Census citizenship question.  To watch the segment CLICK HERE