Friday, July 31, 2020

President Trump on Twitter, July 30, 3020: 'Delay the Election until people can properly, securely and safely vote???'

Presidential elections are currently held on the first Tuesday after the first Monday in November. This year, that is November 3, 2020.

The US Constitution demands via the 20th Amendment that the President’s term must end on January 20 of the year following the general election, reported Jurist. The 20th Amendment also requires a new Congress to be installed by January 3. Article II, Section 1 provides guidance for the electoral process. Initially, each state much appoint a number of electors to the Electoral College. Then, Congress may determine “the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

Additionally, Congress has enacted a law to further control the date of elections. It clarifies: “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December . . . .” This year, that day is December 14, 2020. If the President of the US Senate and the Archivist do not receive electoral votes by the fourth Wednesday in December, or December 23, 2020, then the President of the Senate may request the votes by “the most expeditious method available.” Without a resolution by January 6, then the House selects the next president and the Senate selects the next vice president. 

States do have the power to delay election day, but federal elections are beholden to federal election law. Without the consent of Congress, States could only postpone election day to the extent they could still meet the December 14 deadline. From this, only Congress and the States may delay election day.  The President may not unilaterally postpone election day without the consent of Congress.

Finally, the Constitutionally mandated end-of-term, January 20, cannot be changed without a constitutional amendment.

Trump’s suggestion of postponing elections was met with bipartisan reproach Thursday. Senate Majority Leader Mitch McConnell weighed in on a delayed election, speaking to Kentucky TV station WNKY. He said:

Never in the history of this country, through wars, depressions and the Civil War, have we ever not had a federally scheduled election on time. We will find a way to do that again this November 3rd. We will cope with whatever the situation is and have the election on November 3rd as already scheduled.

Trump’s allegations widespread voter fraud are unfounded. Oregon, which has held postal elections since 2000, has had only 14 reported cases of postal fraud.

To read more CLICK HERE

Assistant AG Rosen in support of the federal death penatly

Jeffrey A. Rosen, deputy attorney general of the United States, wrote this op-ed for the New York Times in support of the death penalty.
This month, for the first time in 17 years, the United States resumed carrying out death sentences for federal crimes.
On July 14, Daniel Lewis Lee was executed for the 1996 murder of a family, including an 8-year-old girl, by suffocating and drowning them in the Illinois Bayou after robbing them to fund a white-supremacist organization. On July 16, Wesley Purkey was executed for the 1998 murder of a teenage girl, whom he kidnapped, raped, killed, dismembered and discarded in a septic pond. The next day, Dustin Honken was executed for five murders committed in 1993, including the execution-style shooting of two young girls, their mother, and two prospective witnesses against him in a federal prosecution for methamphetamine trafficking.
The death penalty is a difficult issue for many Americans on moral, religious and policy grounds. But as a legal issue, it is straightforward. The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790. The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof.
The recent executions reflect that consensus, as the Justice Department has an obligation to carry out the law. The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by Deputy Attorney General Eric Holder.
Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.
In a New York Times Op-Ed essay published on July 17, two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.” That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.
Mr. Lee’s lawyers seem to endorse a system of endless delays that prevent a death sentence from ever becoming real. But his execution date was announced almost a year ago, and was initially set for last December. It was delayed when his lawyers obtained six more months of review by unsuccessfully challenging the procedures used to carry out his lethal injection.
After an appellate court rejected their claim as “without merit,” the Justice Department rescheduled Mr. Lee’s execution, providing an additional four weeks of notice. Yet on the day of the rescheduled execution, after family members of his victims had traveled to Terre Haute, Ind., to witness the execution, a District Court granted Mr. Lee’s request for further review. That court entered a last-minute reprieve that the Supreme Court has said should be an “extreme exception.”
Given the long delay that had already occurred, the Justice Department asked the Supreme Court to lift the order so the execution could proceed. Mr. Lee’s lawyers opposed that request, insisting that overturning the order would result in their client’s imminent execution. After reviewing the matter, the court granted the government’s request, rebuked the District Court for creating an unjustified last-minute barrier, and directed that the execution could proceed.
In the final minutes before the execution was to occur, Mr. Lee’s lawyers claimed the execution could not proceed because Mr. Lee still had time to seek further review of an appellate court decision six weeks earlier lifting a prior stay of execution. The Justice Department decided to pause the execution for several hours while the appellate court considered and promptly rejected Mr. Lee’s request. That cautious step, taken to ensure undoubted compliance with court orders, is irreconcilable with the suggestion that the department “rushed” the execution or disregarded any law. Mr. Lee’s final hours awaiting his fate were a result of his own lawyers’ choice to assert a non-meritorious objection at the last moment.
Mr. Lee’s lawyers also disregarded the cost to victims’ families of continued delay. Although they note that some members of Mr. Lee’s victims’ families opposed his execution, others did not. Nor did the family members of Wesley Purkey’s victim, Jennifer Long, who were in Terre Haute on Wednesday afternoon. When the District Court again imposed another last-minute stoppage, granting more time for Mr. Purkey’s lawyers to argue (among other things) that he did not understand the reason for his execution, the Justice Department again sought Supreme Court review.
As the hours wore on, Justice Department officials asked Ms. Long’s father if he would prefer to wait for another day. The answer was unequivocal: He would stay as long as it took. As Ms. Long’s stepmother later said, “We just shouldn’t have had to wait this long.” The Supreme Court ultimately authorized the execution just before 3 a.m. In his final statement, Mr. Purkey apologized to “Jennifer’s family” for the pain he had caused, contradicting the claim of his lawyers that he did not understand the reason for his execution.
The third execution, of Dustin Honken, occurred on schedule, but still too late for some of his victims’ families. John Duncan — the father of the victim Lori Duncan and grandfather of her slain daughters, Kandace (age 10) and Amber (age 6) — had urged Mr. Honken’s execution for years. As John Duncan was dying of cancer in 2018, he asked family members to promise they would witness the execution on his behalf. On July 17, they did. “Finally,” they said in a statement, “justice is being done.”
Mr. Lee’s lawyers and other death penalty opponents are entitled to disagree with that sentiment. But if the United States is going to allow capital punishment, a white-supremacist triple murderer would seem the textbook example of a justified case. And if death sentences are going to be imposed, they cannot just be hypothetical; they eventually have to be carried out, or the punishment will lose its deterrent and retributive effects.
Rather than forthrightly opposing the death penalty and attempting to change the law through democratic means, however, Mr. Lee’s lawyers and others have chosen the legal and public-relations equivalent of guerrilla war. They sought to obstruct by any means the administration of sentences that Congress permitted, juries supported and the Supreme Court approved. And when those tactics failed, they accused the Justice Department of “a grave threat to the rule of law,” even though it operated entirely within the law enacted by Congress and approved by the Supreme Court. The American people can decide for themselves which aspects of that process should be considered “shameful.”
 To read more CLICK HERE

Thursday, July 30, 2020

Opportunity for more Congressional oversight for DHS

Even before DHS deployed its military-styled law enforcement personnel into the streets of Portland, Oregon, more robust congressional oversight of the department was long overdue, reported Just Security. 

In the 18 years since its creation, DHS has ballooned: It operates with a $50 billion budget and has a workforce of more than 240,000 employees. It is also the country’s largest law enforcement agency, with over 60,000 law enforcement officers. And its activities have grown in parallel, so that they are now substantially out of sync with its statutory mandate. For instance, Homeland Security Investigations, a component of Immigration and Customs Enforcement (ICE), claims the authority to investigate literally any federal crime.

Oversight and accountability of this massive department have lagged far behind. The agency’s sheer size and its sprawling, diverse missions have hobbled effective internal oversight. The secretary’s office is too small (and, in the current administration, too politically pliable) to conduct adequate supervision. Internal controls, guidelines, and coordinating mechanisms are often lacking or woefully insufficient.

Oversight by congressional committees has also been difficult for two reasons. First, jurisdiction over the department is spread across more than 100 committees and subcommittees, creating competition, confusion, and gaps in coverage. That’s why consolidating congressional oversight of DHS remains the most important recommendation of the 9/11 Commission that has never been implemented. Second, the political dialogue concerning immigration and border security specifically has become so polarized that bipartisan cooperation on DHS oversight has been severely strained.

The DHS’ trend toward lawlessness is on full display in Portland. Videos captured by bystanders show unidentified federal agents, dressed in camouflage, conducting arrests and detentions that look more like kidnapping than law enforcement. Agents are routinely using tear gas and have fired rubber bullets at members of the press. And they appear to have gone far beyond their remit to protect federal facilities, encroaching on state police powers and the Tenth Amendment to the U.S. Constitution. Even the U.S. Attorney for the District of Oregon, an officer in Trump’s own Department of Justice, referred agents’ conduct for further investigation by the DHS Office of Inspector General.

Given this state of affairs, there is no excuse for Congress to rush through another multi-billion-dollar appropriation for the department. Before any funds are made available, Congress should conduct some of the oversight that’s been missing to date.

Congress should start by holding hearings to demand answers about the conduct of DHS agents in Portland (one such hearing is already scheduled for this Friday, but House leadership is still planning to move forward with DHS appropriations in the interim). But it should not stop there. Congress should insist that the president fulfill his constitutional responsibility to nominate a DHS secretary, a position that has been filled by “acting” secretaries since April 2019. It should require the department to develop, modernize and, to the extent consistent with national security, publish operational guidelines ensuring that the department’s law enforcement activities are conducted with appropriate care for constitutional rights and clear channels of accountability. It should commission a thorough outside review of the legal authorities and activities of Homeland Security Investigations. These actions can then inform, not only any conditions or limitations that Congress might want to place on funding, but additional legislative reforms to tackle the department’s many problems.

To read more CLICK HERE

Wednesday, July 29, 2020

Pittsburgh leaders approve policing reforms

Pittsburgh City Council gave final approval to a series of reforms to police procedures and policies. But council members say the reforms aren’t the city’s final answer to addressing issues raised after the May 25 death of George Floyd at the hands of Minneapolis police.
The legislation, sponsored by Councilmen Ricky Burgess and R. Daniel Lavelle, is supported by other council members and Mayor Bill Peduto, who is expected to sign the bills, according to Peduto’s spokesman, Tim McNulty.
They are highlighted by formation of a Stop the Violence Fund that will enact a police hiring freeze and redirect $250,000 remaining in a budget for new recruits to programs aimed at reducing crime and violence.
Redirect money, not defund
The city can’t defund the police, as some activists have called for, Burgess said. But it can stop hiring new police officers and redirect that money toward alternative programs that help people.
“This money is simply the first step. It is a good-faith effort to say we believe in programming,” Burgess said.
Council also approved a ban on use of chokeholds by police and a ban on buying surplus military equipment for police use without council’s approval.
Another bill that was passed requires sworn police officers to have a “duty to intervene” when faced with a situation within city limits that doesn’t put them at risk of bodily harm.
The move is an attempt to prevent incident similar to the Minneapolis case, where three police officers watched as Officer Derek Chauvin knelt on George Floyd’s neck until he died.
“Black lives actually matter, and we as a council now have a chance to prove it, in Pittsburgh,” Burgess said. “That is to protect the health and safety of Black people.”
The moves come as the police bureau was in the process of strengthening its policies, public safety spokeswoman Cara Cruz said.
“We have met with Council members and respect their recommendations,” Cruz said.
The reduction in funds for police recruits will hamper the department’s ability to build a diverse department, she said.
“We will work with city officials and council to ensure funding is available in the future to recruit new officers who represent the community they will serve and who are willing to make a difference,” Cruz said. “We will look forward to working together in the future.”
To read more CLICK HERE

Tuesday, July 28, 2020

AG Barr to testify before House Judiciary Committee today at 10 a.m.

Attorney General Bill Barr is scheduled to testify before the House Judiciary Committee today at 10 a.m. Here is what to expect:
The Justice Department’s independent inspector general has announced an investigation into the federal response to demonstrations, including the disputed and violent clearing of protesters from Lafayette Square near the White House last month before a photo opportunity for Mr. Trump in front of a church. The attorney general accompanied the president, and the White House initially said Mr. Barr had ordered the clearance, though he later said he had not given a “tactical” order, reported the New York Times.
Mr. Barr has since become the face of a Trump administration vow to send a surge of federal agents into cities to battle violent crime for an effort he is calling Operation Legend, which he has said would include 200 agents in Chicago and Kansas City, Mo., as well as three dozen in Albuquerque. Against the backdrop of the confrontations in Portland, Ore., the announcement received major attention.
Representative Pramila Jayapal, Democrat of Washington, said she was prepared to challenge Mr. Barr on what she said was a double standard in supporting Americans protesting coronavirus-related stay-at-home orders while opposing those protesting police violence and racism.
 “The ways Barr has undermined that and moved toward simply satisfying the president’s needs is quite stunning,” she said.
Democrats will also press Mr. Barr on accusations raised in a hearing last month that he has politicized high-profile criminal and antitrust cases, including the decisions to scrutinize California’s emissions deal with automakers after Mr. Trump attacked it and to harass marijuana sellers in states that have legalized the substance.
They may also ask about Mr. Trump’s firing last month of Geoffrey S. Berman as the top federal prosecutor in Manhattan. Mr. Berman has privately told congressional investigators that Mr. Barr unsuccessfully pressured him to resign.
To read more CLICK HERE

Monday, July 27, 2020

No correlation between the COVID-19 related jail releases and increase in crime

A study of 29 U.S. cities has found no correlation between the early release of detainees from the cities’ jails due to COVID-19 fears and any increase in crime in those cities between March and May, reported The Crime Report.
“The analysis confirmed that the amount by which a county changed their jail population wasn’t correlated with the amount of change in crime,” said the report by the American Civil Liberties Union, “Decarceration and Crime During Covid-19,” released Monday.
“We found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years.”
The ACLU’s Analytics team looked for data on jail population and crime in locations with “the largest jail and overall populations,” using reported data from those 29 localities, which included Atlanta, Chicago, Philadelphia, Washington, D.C., and Los Angeles.
The researchers looked at “Part I” crimes only.
COVID-19 infection rates among prisoners have been 5.5 times higher than the U.S. population case rate, according to a recent study by the Journal of the American Medical Association.
The ACLU found that “nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April.”
Over the same period of time, researchers say that “the reduction in jail population was functionally unrelated to crime trends.”
“In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population,” the report said.
The team said its findings were in line with recent reports that documented certain types of crime have gone down during the COVID-19 pandemic in the spring, which many have attributed to stay-at-home orders and decreased overall activity.
While political rhetoric may be putting the blame on early release from jails or prisons for a reported crime increase, no statistics have been released to support such claims.
COVID-19’s threat to the incarcerated has caused alarm in many quarters.
In its report, the ACLU said, “Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died.”
In early April, Attorney General William P. Barr ordered the Bureau of Prisons to expand the group of federal inmates eligible for early release and to prioritize those at three facilities in Louisiana, Connecticut, and Ohio where known coronavirus cases had grown precipitous.
Barr wrote in a memo to Michael Carvajal, the director of the Bureau of Prisons, that he was intensifying the push to release prisoners to home confinement because “emergency conditions” created by the coronavirus affected the ability of the bureau to function, according to The New York Times.
For its report, the ACLU looked at crime data individually for each city or county. Because each location’s crime dataset was drawn from separate sources and contained varying categorizations of crime, crime patterns could not be compared between cities.
The stats can be seen here.

Judge refuses to stop federal arrests at Portland protests

A federal judge denied Oregon’s legal bid to stop federal law enforcement officer arrest tactics in Portland, reported Jurist. The State of Oregon filed suit following an investigation into federal law enforcement officers who had entered Portland following recent protests and riots over the George Floyd killing.
The State of Oregon alleged that unmarked federal officers had made arrests of protestors without probable cause. The state alleged First, Fourth, and Fifth Amendment violations and sought a temporary restraining order to require that officers identify themselves, state the reason for an arrest, and cease arrests without probable cause.
Judge Michael Mosmon denied the restraining order for lack of legal standing and insufficient evidence. Judge Mosmon wrote:
The State has alleged that the purportedly illegal seizures by Defendants have caused an injury to its citizens’ rights to speech and assembly. In other words, the State must show that the illegal seizures—analogous to the chokeholds in Lyons—will occur again in the future. The State could try to show, for example, that all of Defendants’ seizures are illegal, or that they are under orders to fail to identify themselves or to make random arrests without probable cause. The state has shown none of this. It has presented no evidence of any official orders or policies and has presented no evidence that these allegedly illegal seizures are a widespread practice. Despite the broad language in the complaint, Oregon has shown—at most— that this type of seizure has happened twice.
Mosmon also stressed that evidence of direct orders for officers to violate due process could be used in future proceedings.
The state has not indicated whether it will appeal the decision.
To read more CLICK HERE

Sunday, July 26, 2020

Mangino on WFMJ-TV21 Weekend Today

Watch my interview on the indictment of Ohio House Speaker Larry Householder with WFMJ-TV21 Weekend Today.  
To watch the interview CLICK HERE

The Legal: Pa. Superior Court Strikes Blow to DUI Sentencing Scheme

Matthew T. Mangino
The Legal Intelligencer
July 24, 2020
The Pennsylvania Superior Court recently changed the sentencing landscape for those facing prosecution for a second, or subsequent charge, of Driving Under the Influence. In Commonwealth v. Chichkin, 2020 Pa. Super. 121, No. 3473 EDA 2018 and Commonwealth v. Roche, 2020 Pa.Super. 121, No. 3475 EDA 2018, the Superior Court ruled the prior acceptance of accelerated rehabilitative disposition (ARD) does not qualify as a prior conviction for purposes of driving under the influence (DUI) sentencing.
Igor Chichkin was arrested and charged with DUI in Philadelphia for an incident that occurred during fall 2017. His case proceeded to trial in the Philadelphia Municipal Court in spring 2018, at which time he was found guilty of two counts of DUI-general impairment under 75 Pa.C.S. Section 3802 (a) (1), “An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.”
A violation of Section 3802 (a) (1) is punishable by six months of probation and $300 fine. However, in 2013, Chichkin had been arrested for DUI and was accepted into the ARD program pursuant to 75 Pa.C.S. Section 3807.
As a result, the court applied 75 Pa.C.S. Section 3804 (b) (2) (i) and imposed a mandatory minimum sentence of 30 days in jail because the current DUI was considered a second offense within 10 years.
The facts in Lisa Roche’s case were similar. She pleaded guilty in Philadelphia in 2018 and was sentenced to 30 days to four months because she had been admitted into the ARD program within the previous 10 years.
In both cases, the appellants argued that the application of a mandatory minimum sentence violated well-established decisions by Pennsylvania appellate courts and the U.S. Supreme Court.
In 1982, the Pennsylvania Superior Court ruled in Commonwealth v. Knepp, 453 A.2d 1016 (1982) admission into the ARD program is not considered a conviction for any purpose, other than the classification of the defendant as a recidivist.
For 38 years it has been clear that ARD is not a conviction. Defendants who enter the ARD program do not plead guilty. They apply to participate in the ARD program, admission is at the discretion of the district attorney. Once an applicant successfully completes the program he can apply for the expungement of their record.
Chichkin and Roche appealed their convictions to the Superior Court arguing the enhancement of their sentence based on a conviction for DUI within 10 years of a prior ARD is unconstitutional.
Relying on Alleyne v. United States, 570 U.S. 99 (2013) the appellants argued that in order to apply a mandatory minimum—without a trial or guilty plea on the prior offense—the commonwealth must prove the prior DUI beyond a reasonable doubt.
Allen Ryan Alleyne robbed a convenience store manager in Virginia. He was convicted of robbery and firearm possession by the U.S. District Court for the Eastern District of Virginia.
At the time, carrying a firearm during a violent crime carried a mandatory minimum penalty of five years. If the defendant was found to have “brandished” the firearm during the crime the mandatory minimum would increase to seven years. The judge, not the jury, determined at sentencing that Alleyne had “probably” brandished the firearm during the robbery, and imposed the seven-year mandatory minimum.
Alleyne’s case made its way to the U.S. Supreme Court. Justice Clarence Thomas wrote the opinion for a 5-4 majority. The court held that the Sixth Amendment guarantees the accused a right to a trial by a fair and impartial jury, which can only be accomplished if all of the facts that are elements of the crime are presented to the jury. If an element of the crime increases the mandatory minimum punishment, it must be submitted to the jury and found to be true beyond a reasonable doubt.
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000) wherein the high court ruled criminal sentences cannot be enhanced above the limits provided by statute unless the jury finds beyond a reasonable doubt the existence of the specific aggravating factors giving rise to the enhancement.
Prior to Apprendi and Alleyne it was common in Pennsylvania drug prosecutions to enhance penalties without proving beyond a reasonable doubt the elements necessary to increase the sentence. For instance, the one-year enhancement for selling drugs within 1,000 feet of a school was determined by a judge not a jury. Having possession of a gun during a drug transaction or enhancing a sentence based on the volume of drugs were typically not proven beyond a reasonable doubt.
In 2014, the Superior Court ruled in Commonwealth v. Newman, 99 A.3d 86 (2014) applying sentence enhancements or imposing mandatory minimums without a jury finding was unconstitutional. In 2017, the Pennsylvania Supreme Court in Commonwealth v. Hopkins, 164 A.3d 1133 (2017), found the “1,000 feet of a school enhancement” unconstitutional. In order to enhance or impose a mandatory sentence, the trier of fact must make a finding beyond a reasonable doubt that the defendant committed the conduct that increased the penalty.
As a result, a number of mandatory minimum sentencing statutes have been struck down, because they allowed judges to make findings by a preponderance of the evidence instead of requiring the elements be found by a jury beyond a reasonable doubt.
The Chichkin and Roche opinion authored by Judge Daniel D. McCaffery analogized the Apprendi and Alleyne decisions—which struck down mandatory minimum sentences—to 75 Pa.C.S. Section 3806 that allowed for a defendant to receive an increased DUI sentence for a second or subsequent DUI despite no finding of guilt on the first DUI.
There was an exception carved out for prior convictions in the holdings in Apprendi and Alleyne. A prior conviction stood for itself and did not have to be proven beyond a reasonable doubt when used to enhance a subsequent sentence. However, ARD is not a prior conviction.
McCaffrey wrote, “We conclude the appellant’s acceptances of ARD cannot be categorized as ‘prior convictions’ exempt from the holding of Apprendi and Alleyne.”
Following this reasoning it is unconstitutional to apply heightened DUI penalties to individuals whose prior cases have not been subject to an admission or a verdict of guilt following trial. The Superior Court further reasoned that the purpose of the ARD program is not to convict the defendant but rather offer rehabilitation, treatment and a clean start. Therefore, the mere acceptance of ARD is not the same as a conviction.
In Chichkin and Roche, “The commonwealth seeks to label appellants as ‘recidivist drunk drivers’ based solely on their prior acceptances of ARD.”
McCaffery concluded, “75 Pa.C.S. Section 3806 (a), which defines a prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI sentencing enhancement purposes, offends the due process clause and is therefore unconstitutional.”
As a result, what was once a second offense is now a “second-first offense” for purposes of DUI sentencing. That alone will have a significant impact on those who come before the court after re-offending. In addition, for those who have already come before the court and have been sentenced as recidivist this decision may open the door to post-conviction relief. Expect a spike in petitions from those sentenced on second, third or subsequent DUI offenses who remain in jail, on parole or serving a term of probation.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George in New Castle. His weekly column on crime and punishment is syndicated by GateHouse Media. He is the author of The Executioner’s Toll, 2010. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE

Saturday, July 25, 2020

GateHouse: Federal law enforcement exercising ‘proactive’ arrests

Matthew T. Mangino
GateHouse Media
July 24, 2020
Where is the outrage? The federal government has assembled a secret police force to confront, attack and arrest people for exercising their First Amendment rights. Under the guise of protecting monuments, statues and federal property the White House has declared war on American citizens.
Acting Homeland Security Secretary Chad Wolf said his agents are now “proactively” arresting people. What? How do you proactively arrest someone? People who are accused of a crime have due process rights. What rights do people have who have been arrested without committing a crime? No one knows, because in this country - until now - people who have not been accused of a crime could not be “proactively” arrested. In other words, in America we don’t arrest people before they’ve done something wrong.
Even GOP Sen. Rand Paul has condemned the incursion of federal agents in Portland, Oregon. He wrote in an op-ed for Reason Magazine, “While I respect the determination to preserve law and order, sending in federal forces to quell civil unrest in Portland further distorts the boundaries, results in more aggression and has led to reports we should never hear in a free country: federal officials, dressed in camouflage, snatching protesters away in unmarked vehicles.”
Oregon’s governor and Portland’s mayor along with other state and local officials have demanded the federal government withdraw the unidentified officers, purportedly wearing military gear and using unmarked vehicles.
Protests in Portland have continued for more than 50 consecutive nights. According to the Washington Post, “Videos of federal officers pelting protesters with less-lethal impact munitions like rubber bullets and exploding pepper balls, shooting tear gas into city streets and launching stun grenades into crowds have captured millions of views on social media and incensed local lawmakers.”
Now, the president has sent federal law enforcement into Chicago and Albuquerque, New Mexico. As John L. Micek, editor-in-chief of the online Pennsylvania Capital-Star recently wrote, “That’s not what a democratically elected president does. Rather, they’re the thuggish tactics of a bargain basement Mussolini, a leader who doesn’t care how many of our institutions or norms he torches, just as long as he, and his spectacularly corrupt and incompetent clan, can cling to power.”
Harsh words, but who can argue? This isn’t about crime or unrest - it is about politics. As the White House laments the out-of-control violence, David Abrams, a University of Pennsylvania law and economics professor, told NPR that Baltimore, Philadelphia, San Francisco, Washington, D.C., and Chicago have all experienced a drop in crime of more than 30%. Violent crimes such as aggravated assaults and robberies also fell substantially.
Former Pennsylvania Gov. Tom Ridge, the nation’s first Secretary of Homeland Security and recipient of the Bronze Star in Vietnam - who also happens to be a Republican - said recently, “it would be a cold day in hell,” before he’d allow “uninvited” federal forces into one of his cities.
“Arrests require probable cause that a federal crime had been committed, that is, specific information indicating that the person likely committed a federal offense, or a fair probability that the person committed a federal offense,” Orin Kerr, a professor at University of California at Berkeley Law School, told The Post.
Protest, dissent, even raucous political rhetoric has never been probable cause for arrest - at least not in the United States of America.
Michael Dorf a professor at Cornell University told The Associated Press, ”(F)ederal authorities are going to swoop in and do whatever they want to do without any cooperation and coordination with state and local authorities is extraordinary outside the context of a civil war.”
A frightening thought, but again who can argue? With a void in leadership, millions of Americans out of work, an out-of-control pandemic and racial tensions not seen in half-a-century anything is possible.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
To visit the column CLICK HERE

Thursday, July 23, 2020

John Micek: Donald Trump has seen the enemy — and it is us

And on our streets, as they have for months, a multiracial, multigenerational, gender-spanning coalition of Americans have continued to march, calling for change, demanding better of a country whose status as a beacon of hope to the world is looking dimmer and dimmer all the time, writes John L. Micek for the Pennsylvania Capital-Star.

Rather than move forward with the rest of the nation, President Donald Trump's White House is getting ready to expand its undeclared war against Americans to Chicago, Philadelphia, and other cities -- all run by Democratic mayors, and over their objections -- in the supposed guise of restoring order and protecting federal property.

In reality, these federal officers yanking protesters off the street have exceeded their authority into blatantly unconstitutional territory. They're no longer protecting courthouses or federal buildings. In a campaign worthy of Pinochet's Chile, they're detaining people exercising their First Amendment rights.

Indeed, acting Homeland Security Secretary Chad Wolf said his agents are now "proactively" arresting people, the Washington Post reported, sparing us such tedious notions as due process, or even probable cause. 

Those aren't the actions of a president boldly leading his people in the face of a shaky economy and the greatest public health threat in a century; one that has, without mercy or discrimination, claimed the lives of more than 140,000 Americans. They're the machinations of a coward who so disdains dissent; who so fears defeat, that he's turning the full strength and security apparatus of the state against his own people.

That's not what a democratically elected president does. Rather, they're the thuggish tactics of a bargain basement Mussolini, a leader who doesn't care how many of our institutions or norms he torches, just as long as he, and his spectacularly corrupt and incompetent clan, can cling to power.     
In Philadelphia, the cradle of American democracy, Black leaders said they fear that federal law enforcement will target the city's Black residents. That's not mere rhetoric. It's practically a statistical guarantee in a city that is overwhelmingly Black.

"These troops could be more useful finding the gun-runners that are flooding our community with guns, flooding our community with drugs, flooding our community with every other measure that makes our life chances diminished," Rodney Muhammad, the president of the Philadelphia chapter of the NAACP, said during a Wednesday news conference, according to our partners. at the Philadelphia Tribune.

That is now the ostensible purpose of the operations in Chicago and Albuquerque. But now, thanks to DHS's Wolf, we now know how these agents intend to operate.

And we've long known what Trump thinks of Black people.

In a dog whistle to his supporters that's actually a bullhorn, he's said Democrats and Joe Biden are intent on "destroying the suburbs." A campaign commercial featuring an elderly white woman fearfully calling 911 unsubtly hammers home the real message. She's not quaking because there are white kids at the front door.

And in separate news stories, we've learned that Trump's niece, Mary Trump and former lawyer Michael Cohen, in an unpublished manuscript, allege that President Trump used racial epithets. This isn't news coming from a president who thinks the developing world is filled with "s**thole" countries.

And by executive fiat, as the Capital-Star's Cassie Miller reported this week, the White House has said undocumented immigrants can't be used for congressional apportionment -- a move that serves the disgusting dual purpose of both marginalizing people of color and diminishing the representation of urban Americans in areas that tend to be Democratic strongholds.

At a news conference Wednesday, Trump said he might or might not wait for local officials to ask for help. Philadelphia Mayor Jim Kenney has told him to stay away.

Former Gov. Tom Ridge, a former Homeland Security czar, has said "it'd be a cold day in hell," before he'd allow "uninvited" federal forces into one of his cities. Will Trump listen, and stick with the tradition of nonintervention without local invitation? The evidence is not encouraging.
Meanwhile, a record 69 percent of Americans say they believe Black and Brown Americans are denied equal treatment in the criminal justice system, and nearly an identical amount (63 percent) support Black Lives Matter, according to a new ABC News poll.

And a majority of Americans. (52 percent) support the removal of Confederate monuments, according to a June Quinnipiac University poll. Trump, meanwhile, remains a staunch defenders of the symbols of racism and treason.

The trend lines in both polls have moved in an upward trajectory, even as Trump and his supporters, with the silent acquiescence of Republicans on Capitol Hill, have tried to move the country ever backward, into a past where Blacks were discriminated against; LGBTQ Americans were rendered invisible, and women weren't supposed to work outside the home.

That America is gone. And no matter how many skulls Trump tries to crack, it's not coming back. America is leaving a sad and scared man behind.

But the fight isn't over. With Trump signaling that he may not accept the results of the November election, it will take all of us, rising up and speaking with one voice, that his time is gone. 

Because that's the way actual democracies work.

To read more CLICK HERE

GOP Sen. Paul reintroduces the Stop Militarizing Law Enforcement Act

GOP Senator Rand Paul of Kentucky writes in Reason Magazine:
In a free society, citizens should be able to easily distinguish between civilian law enforcement tasked with keeping the peace in our communities and the armed forces tasked with protecting our country from foreign adversaries.
Unfortunately, thanks to the federal government flooding our neighborhoods with billions of dollars of military equipment and property over the years, the line between peace officer and soldier of war has become increasingly blurry.
Police officers have an incredibly difficult and often thankless job where they lay their lives on the line every day. Without the rule of law, a civilized society cannot exist, and our officers deserve our gratitude. The horrific actions of a few bad actors should not erase all the good done by the vast majority of these brave and hardworking men and women.
But as the federal government has enabled our local police to become more and more militarized, it has placed them in greater danger by eroding the community trust crucial to doing their jobs well.
While I respect the determination to preserve law and order, sending in federal forces to quell civil unrest in Portland further distorts the boundaries, results in more aggression (including pepper-spraying and repeatedly striking a Navy veteran whose injured hand will need surgery), and has led to reports we should never hear in a free country: federal officials, dressed in camouflage, snatching protesters away in unmarked vehicles.  
Sending the feds into Chicago won't make the situation there any better, either.
Nothing you'll read here excuses the actions of those who have destroyed lives and property in a mockery of peaceful protest—actions I have condemned. But many of us have been inspired by seeing protesters confronting these rioters, making the difference between righteous cause and opportunistic destruction even more stark.
Restoring lost trust is essential to reducing the tension and returning to peace. This means stopping the federal militarization of our local law enforcement and keeping federal agents and troops on the national posts where they best serve our country. 
According to the Defense Logistics Agency (DLA), which operates within the Department of Defense, "More than $7.4 billion worth of property" has been transferred to law enforcement through the Law Enforcement Support Office (LESO) program. DLA also reveals that "as of June 2020, there are around 8,200 federal, state and local law enforcement agencies from 49 states and four U.S. territories participating in the program."
Back in 2014, NPR reported the federal government had sent out 79,288 assault rifles, 205 grenade launchers, and 11,959 bayonets from 2006–2014. 
Yahoo recently reported that "the California Highway Patrol received what appeared to be a drone worth $22 million in 2016. The Howell Township Police Department in New Jersey received an MRAP [mine-resistant, ambush-protected vehicle] worth $865,000 in 2016. An MRAP provided to the Payne County Sheriff Office in Stillwater, Oklahoma, cost $1.3 million."
As the Senate debates the latest National Defense Authorization Act, I joined a bipartisan group of senators to introduce an amendment based on my Stop Militarizing Law Enforcement Act, which I originally introduced with Sen. Brian Schatz (D–Hawaii) in 2015 and have reintroduced in each session of Congress since.
Our amendment would have limited the transfer of certain offensive military equipment including bayonets, grenade launchers, and weaponized drones—all without prohibiting the continued distribution of defensive equipment, such as body armor.
It would also have ensured that communities are notified of requests and transfers by posted notices throughout the area and on a public website, and it would have required that a jurisdiction's governing body approves of the transfers.
Though the Senate voted against these common-sense changes, my standalone legislation goes even further to reform the system, and I will keep working to advance it through Congress. 
Our bipartisan approach takes seriously the idea that cops on the beat can only do their jobs well when they are well-known by their neighbors and trusted by their communities.
The Stop Militarizing Law Enforcement Act will help build that relationship, making our citizens, police, and neighborhoods safer.
To read more CLICK HERE 

Wednesday, July 22, 2020

Crime rates have dropped significantly during pandemic

David Abrams, a University of Pennsylvania law and economics professor, has been keeping an eye on a dramatic drop in the overall crime rate across the country, reported NPR. The website he created details what's been happening with crime in more than 25 major cities during the COVID-19 crisis.
"People have reacted to the pandemic in all sorts of ways in decreasing economic activity," Abrams says. "They stopped going to work, they stopped driving their car. They stopped walking around the city, and crime also stopped."
Baltimore, Philadelphia, San Francisco, Washington, D.C., and Chicago all have witnessed a drop of more than 30%. Violent crimes such as aggravated assaults and robberies also fell substantially.
That wasn't true of homicides and shootings though. In some cities, there's a troubling rise compared with last year.
Shauntavius Sims, 35, lives in a Chicago neighborhood that has been plagued by gun violence. That reality makes the news of an overall drop in the crime rate irrelevant.
"Seem like it got worser to me. Just yesterday, I saw it behind my house," Sims says, as the sounds of firecrackers — not guns — filled the air. "Some boys just came and shot while me and my baby was in the back. Like every day, it's constantly on the news. Every day, it's something."
There has been a surge of homicides over recent violent weekends, and several children have been shooting victims. It's that type of tragic crime news in Chicago and other cities such as Houston, Cincinnati and Fresno, Calif., that's gotten the most attention.
Even though the numbers are tragic, Abrams says it's difficult to determine any trend in murder or other crimes over a short time span. He says for a more accurate statistical count it takes comparing what takes place from year to year over a longer period of time.
"When you look at the homicide data and compare it to levels over the past five years," he says, "we didn't see any significant impact because of the pandemic."
Even so, University of Chicago professor Jens Ludwig, the head of the university's Crime Lab, says it's a big puzzle why shootings and murders haven't dropped while other crimes have.
"Murders make up far less than 1% of the crimes in these cities," Ludwig says, "but murder is so damaging to families and communities, and I don't think we have a great understanding of why
Chicago Mayor Lori Lightfoot agrees it is complicated. She says in some ways the pandemic created the perfect storm by compelling people to stay inside, but it also stymied the normal operations of jails and courts. More people intent on causing harm may be out on the streets instead of in the criminal justice system. She adds the underlying causes of violence are also factors.
"That's poverty, lack of hope, despair, not enough access to the things that build healthy and strong families and communities," Lightfoot says. "And we have way too many guns on the street."
There's more positive news when it comes to drug crimes. They plummeted by more than 60% compared with previous years, according to Abrams' website.
Arizona State University criminologist Ojmarrh Mitchell says there are several reasons why.
"First, drug crimes are measured by arrests, not citizen reports to police," Mitchell says. "During a pandemic, police aren't necessarily employing the pro-active police tactics and practices that typically result in discovering drugs."
The pandemic seems to be driving a lot of the reduction in crime, including home burglaries. But in commercial spaces, there's been a bump in burglaries, up by almost 30% on average across the cities examined.
Abrams says there was also a dramatic jump in car theft in Philadelphia, with increases as well in Denver, Los Angeles and Austin, Texas. Baltimore was the only city that saw a substantial decline.
"So if people are leaving cars on the street, they have no need to use them," he says. "They aren't checking on them as frequently. There's also just less foot traffic around and fewer people to observe. I think that makes for more attractive targets for would-be thieves."
Those targets and any COVID-19 impact on crime will likely change altogether as more cities try to reopen their economies and people again adjust their lives.
To read more CLICK HERE

Tuesday, July 21, 2020

Suspending driver’s licenses for non-payment of fines is self-defeating

Suspending driver’s licenses as a penalty for non-payment of fines and fees unrelated to public safety is a self-defeating policy. It intensifies pressure on individuals already struggling with job loss and financial hardship, and it adds strain to relations between police officers and the public they serve. It makes the slope of failure even more slippery for millions of the most vulnerable Americans. And it’s the law of the land in 42 states, according to the Washington Post Editorial Board.
Incredibly, an estimated 11 million people nationwide are believed to have lost their driver’s licenses because of debts owed to or ordered by the government, often for offenses having nothing to do with motor vehicle safety, like minor drug offenses or missed payments for child support — not for unsafe or drunk driving. That’s roughly 1 in every 20 drivers, a cohort tilted heavily toward people of color. For those whose licenses are suspended, the effect is to set a poverty trap while doing nothing to enhance public safety.
Several states, as well as the District of Columbia, have halted such license suspensions, including, just since 2018, Montana, Virginia, West Virginia, Idaho and Mississippi. Elsewhere, however, the practice persists on autopilot, either unexamined or because states, indifferent to soaking the poor, regard it as an effective way to raise revenue for state and local coffers.
The costs of that policy are steep and overlooked. Take away driving privileges from someone already too strapped by debt to cover basic living costs, and it may become impossible for that person to get to work and hold down a job. Or, if the person drives anyway — as most do, according to the American Association of Motor Vehicle Administrators — they face the risk of fines and months of jail time.
Under the status quo in states that suspend licenses for non-payments, police face the additional burden of being expected to enforce those suspensions; forced into the role of debt collectors, they then become the subject of additional resentment and hostility. In 2015 alone, Washington state troopers spent 70,848 hours dealing with license suspensions for non-driving offenses, according to the state’s own calculations. How does that advance public safety or welfare, especially during a pandemic?
In the Senate, a bill that would encourage states to repeal such laws was introduced this month. In a hopeful sign, a Republican and a Democrat are its two main sponsors: Sen. Roger Wicker (R-Miss.) and Sen. Christopher A. Coons (D-Del.).
The measure offers modest incentives to do the right thing. Congress would authorize $20 million a year over the next five years to help states cover the costs of making the change. And the bill would end a major federal incentive for states to do the wrong thing: a measure that slashes highway funding for states that fail to suspend licenses.
Advocates across the ideological spectrum — the Koch network to the ACLU — support the bill, known as the Driving for Opportunity Act. And no wonder: It doesn’t take much explaining to see that punishing poverty is a losing strategy, and one this country can ill afford.
To read more CLICK HERE 

Monday, July 20, 2020

Cato Institute: Two out of three favor eliminating qualified immunity

Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate “clearly established” law, according to the Cato Institute.
While once a fairly unknown legal doctrine, nearly half (47%) of Americans say they’ve heard about qualified immunity, while 53% say they have not. Those who have heard of qualified immunity are more in favor of ending it (69% favor) compared to those who had not heard of it before (58% favor).
The Cato Institute Summer 2020 National Survey of 2,000 Americans conducted with YouGov finds that nearly two​thirds (63%) of Americans support eliminating qualified immunity so that police officers can be sued for misconduct even if there is no previous legal case with similar facts that ruled officers may not engage in that conduct. Thirty​seven percent (37%) oppose ending qualified immunity.
Even in situations where police officers did not know they were breaking the law, Americans say officers should be held accountable. Nearly 8 in 10 Americans (79%) say that if a police officer violates a person’s rights but was “unaware at the time that their actions were illegal” they should be held accountable for that misconduct. Most also believe lawsuits should be on the table. A similar share (77%) say police should not be able to avoid lawsuits for misconduct using ignorance of the law as a defense.
To read more CLICK HERE

Sunday, July 19, 2020

Federal government carries out third execution in four days

The 10th Execution of 2020
The Justice Department carried out its third federal execution in four days, matching the total number the United States government had conducted over the previous three decades.
Officials executed Dustin Lee Honken at a federal penitentiary in Terre Haute, Ind., on July 17, 2020. He was pronounced dead at 4:36 p.m., prison officials told the Washington Post.
Honken was convicted of killing five people, including two young children, and sentenced to death. In 1993, Honken was indicted on federal drug-trafficking charges, after which he and his girlfriend kidnapped and murdered a federal witness, the witness’s girlfriend and the girlfriend’s daughters, a 6-year-old and a 10-year-old, court records show. Months later, they also murdered another potential witness.
Before the execution began, Honken briefly spoke, according to a pool report from a media witness. He did not address the victims’ relatives bearing witness. His last words were, “Holy Mary, mother of God, pray for me.”
Honken’s lethal injection came on the heels of federal officials carrying out two other executions in Indiana, ending a 17-year hiatus.
The federal government executed Daniel Lewis Lee, convicted for his role in killing a family of three. Two days later, it executed Wesley Purkey, convicted of raping and murdering 16-year-old Jennifer Long. Honken’s execution appeared to take longer than the previous two, according to the media witness.
Federal executions had been a rarity. In the decades since the federal death penalty statute’s reinstatement in 1988 and then its expansion in 1994, the United States government had carried out three executions — the same number conducted this week.
In 2001, Timothy McVeigh was executed for the Oklahoma City bombing. Not long after, Juan Raul Garza was executed for murdering three men. And Louis Jones Jr. was executed in 2003 for the kidnapping, rape and murder of Tracie Joy McBride, a 19-year-old Army recruit.
Since then, the federal government has continued to seek and win death sentences, including for high-profile criminals such as the surviving Boston Marathon bomber and the gunman who massacred black parishioners at a church in Charleston, S.C.
But it had not carried out any executions over that span, with Justice Department officials working to review their lethal-injection procedures — and acknowledging even as they won death sentences that they still did not have the necessary drugs on hand.
This week’s executions also unfolded along an unusually aggressive execution schedule, even before the coronavirus pandemic, which prompted officials to delay some other lethal injections.
The death penalty has declined significantly in recent years, with fewer death sentences and executions. There were 22 executions in 2019, down from 98 in 1999.
Since the last federal execution, several states have moved away from the death penalty, including New Hampshire, which last year became the 21st state to abolish capital punishment.
The Justice Department had initially planned to restart executions last year along a similarly busy timeline. Attorney General William P. Barr announced last summer that it would begin carrying out executions again with a new lethal-injection protocol — using only the drug pentobarbital — and scheduled three executions over five days in December.
But those plans were scuttled by legal challenges to the protocol, which was eventually upheld in court. Then this week, with the scheduled executions looming, they were repeatedly put on hold, then given the green light through a tangled web of legal battles.
To read more CLICK HERE

Saturday, July 18, 2020

GateHouse: Stone’s commutation is an impeachable offense

Matthew T. Mangino
GateHouse Media
July 17, 2020
Only days before President Richard Nixon resigned, Mary Lawton, Acting Assistant Attorney General, wrote a memo addressing whether the president could pardon himself.
Lawton wrote, “Pursuant to Article II, Section 2 of the Constitution, the ‘Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,’ is vested in the president. This raises the question whether the president can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.”
President Donald Trump commuted the sentence of Roger Stone on July 10. Stone was convicted of seven felonies for obstructing a congressional inquiry, lying to investigators under oath and trying to block the testimony of a witness. Stone’s commutation is not a self-pardon but it is as close as a president can get.
For over a century, the Department of Justice has utilized a Pardon Attorney to vet requests for justice and mercy. The Pardon Attorney makes a recommendation to the president for each request. According to the legal blog Lawfare, “The idea is to place a rigorous process between the president and requests for pardons in order to guard against the reality and perception of politicized pardons.”
According to Lawfare, 31 of the 36 Trump pardons - including Stone’s - were not based on the Pardon Attorney’s recommendations.
As Lawton wrote in her memo, Article II, Section 2, gives the Commander-in-Chief power to “grant Reprieves and Pardons for Offenses against the United States.” The clemency authority bestowed on the president permits him to grant a reprieve - as in stopping the carrying out of an execution; a pardon - erase a conviction like it never happened; or a commutation - end, or as in Stone’s case - stop the imposition of term of incarceration.
Alexander Hamilton, articulated the rationale for presidential pardons in the Federalist Papers when he wrote in No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
The power to pardon was proposed as part of a system of checks and balances proposed by the founding fathers. Clemency was a check by the executive branch of government on the judicial branch.
The power to pardon was never intended to shield a co-conspirator or reward an individual for not cooperating with an investigation that could implicate the president. Shortly before his sentence was commuted, Stone said that Trump “knows I was under enormous pressure to turn on him,” and added, “It would have eased my situation considerably. But I didn’t.”
Stone’s statement implies that he had damaging evidence against the president. Stone had information that could have been used against the president during his impeachment trial and he did not reveal it, and the president rewarded him with a commutation of this sentence. Stone was going to jail and the president stopped it.
Cory Brettschneider, a professor at Brown University and Jeffrey K. Tulis, a professor at the University of Texas recently wrote in The Atlantic, the power to grant “pardons and reprieves” is constrained by a limit: “except in cases of impeachment.”
Brettschneider wrote back in February for Politico, ”(T)he Constitution’s text and the historical evidence show that once a president has been impeached, he or she loses the power to pardon anyone for criminal offenses connected to the articles of impeachment - and that even after the Senate’s failure to convict the president, he or she does not regain this power.”
Since Trump’s impeachment acquittal by the Senate he has fired several inspectors general, retaliated against officials who testified truthfully to Congress, and now commuted the sentence of a man who acknowledged protecting the president during the impeachment inquiry. These actions are all abuses of presidential power, and warrant impeachment and removal from office.
Sure, we have been down that road and the country is in the midst of a presidential election. But, this is no time to shrug our collective shoulders. This president, now more than ever, needs to be held accountable.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
To visit the column CLICK HERE

Thursday, July 16, 2020

U.S. carries out second execution in three days after a 17-year hiatus

The 9th Execution of 2020
Kansan Wesley Ira Purkey was put to death on July 16, 2020 at the Federal Correctional Complex in Terre Haute, Indiana. This was the second federal execution in three days after a 17-year hiatus. He kidnapped and killing a 16-year-old girl, Jennifer Long, before dismembering, burning and dumping her body in a septic pond. He also was convicted in a state court in Kansas of using a claw hammer to kill an 80-year-old woman who had polio.
After Purkey was strapped to a gurney inside the execution chamber, a prison official removed a mask from his face and asked if he wanted to make a final statement.
He leaned his head up slightly from the gurney and said: “I deeply regret the pain and suffering I caused to Jennifer’s family. I am deeply sorry.”
He also expressed remorse for his own adult daughter’s suffering from his actions. “I deeply regret the pain I caused to my daughter, who I love so very much,” he said.
His last words were: “This sanitized murder really does not serve no purpose whatsoever. Thank you.”
As the lethal chemical was injected, Purkey took several deep breaths and blinked repeatedly, laying his head back down on the gurney. His time of death was 8:19 a.m. EDT.
Jennifer’s father, William Long, and her stepmother were there. Long said delays since the 2003 trial were excruciating and he was glad it was over.
He said he hoped Purkey “rots in hell.”
“We took care of today what we needed to take care of,” Long said. “It has been a long time coming. He needed to take his last breath; he took my daughter’s last breath. And there’s some resolve. There is no closure, and there never will be because I won’t get my daughter back.”
The Supreme Court cleared the way for the execution to take place just hours before, ruling in a 5-4 decision. The four liberal justices dissented, as they had for the first case earlier this week.
Justice Sonia Sotomayor wrote that “proceeding with Purkey’s execution now, despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.” She was joined by Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
The Supreme Court also lifted a hold placed on other executions set for Friday and next month. Dustin Honken, a drug kingpin from Iowa convicted of killing five people in a scheme to silence former dealers, is to be put to death at the prison on Friday. 
While Purkey’s final words were lucid and contrite, his lawyers say his mental health had seriously deteriorated to the point he didn’t have the stamina for long visits with his legal team and often forgot key facts and dates.
Purkey’s was the federal government’s second execution after a 17-year hiatus as the Trump administration pressed for a resumption. Daniel Lewis Lee was put to death Tuesday after his eleventh-hour legal bids failed. Both executions were delayed as legal wrangling continued late into the night and into the next morning.
The Justice Department has been questioned for holding the executions in the middle of the worsening coronavirus pandemic, prompting lawsuits over fears those who would travel to the prison could become infected. The decision to resume executions after nearly two decades was also criticized as a dangerously political move in an election year, forcing an issue that is not high on the list of American priorities considering the 11% unemployment rate and the pandemic.
A Justice Department spokeswoman on Thursday said a just punishment had been carried out.
“After many years of litigation following the death of his victims, in which he lived and was afforded every due process of law under our Constitution, Purkey has finally faced justice,” spokeswoman Kerri Kupec said.
Purkey’s lawyers had argued his condition had deteriorated so severely that he didn’t understand why he was being executed. They said he was repeatedly sexually assaulted as a child and had been diagnosed with schizophrenia, bipolar disorder and other mental health conditions.
The issue of Purkey’s mental health arose in the run-up to his trial and when, after the verdict, jurors had to decide whether he should be put to death in the killing of Jennifer in Kansas City, Missouri. Prosecutors said he raped and stabbed her. He was separately convicted and sentenced to life in the beating death of 80-year-old Mary Ruth Bales, of Kansas City, Kansas.
Purkey had a long history of childhood trauma, was sexually abused by family members and a Catholic priest and was beaten by other family members, said Liz Vartkessian, a mitigation specialist who worked with Purkey’s legal team and visited him dozens of times in the last five years.
“His case is replete with instances where he has expressed a deep remorse,” she said in an interview earlier this month.
To read more CLICK HERE

Judge locks up girl during pandemic for failing to do homework

One afternoon in mid-June, Charisse (not her real name) drove up to the checkpoint at the Children’s Village juvenile detention center in suburban Detroit, desperate to be near her daughter. It had been a month since she had last seen her, when a judge found the girl had violated probation and sent her to the facility during the pandemic, reported ProPublica.
The girl, Grace, hadn’t broken the law again. The 15-year-old wasn’t in trouble for fighting with her mother or stealing, the issues that had gotten her placed on probation in the first place.
She was incarcerated in May for violating her probation by not completing her online coursework when her school in Beverly Hills switched to remote learning.
Because of the confidentiality of juvenile court cases, it’s impossible to determine how unusual Grace’s situation is. But attorneys and advocates in Michigan and elsewhere say they are unaware of any other case involving the detention of a child for failing to meet academic requirements after schools closed to help stop the spread of COVID-19.
The decision, they say, flies in the face of recommendations from the legal and education communities that have urged leniency and a prioritization of children’s health and safety amid the crisis. The case may also reflect, some experts and Grace’s mother believe, systemic racial bias. Grace is Black in a predominantly white community and in a county where a disproportionate percentage of Black youth are involved with the juvenile justice system.
Across the country, teachers, parents and students have struggled with the upheaval caused by monthslong school closures. School districts have documented tens of thousands of students who failed to log in or complete their schoolwork: 15,000 high school students in Los Angeles, one-third of the students in Minneapolis Public Schools and about a quarter of Chicago Public Schools students.
Students with special needs are especially vulnerable without the face-to-face guidance from teachers, social workers and others. Grace, who has ADHD, said she felt unmotivated and overwhelmed when online learning began April 15, about a month after schools closed. Without much live instruction or structure, she got easily distracted and had difficulty keeping herself on track, she said.
“Who can even be a good student right now?” said Ricky Watson Jr., executive director of the National Juvenile Justice Network. “Unless there is an urgent need, I don’t understand why you would be sending a kid to any facility right now and taking them away from their families with all that we are dealing with right now.”
In many places, juvenile courts have attempted to keep children out of detention except in the most serious cases, and they have worked to release those who were already there, experts say. A survey of juvenile justice agencies in 30 states found that the number of youths in secure detention fell by 24% in March, largely due to a steep decline in placements.
In Michigan, Gov. Gretchen Whitmer issued an executive order in March that temporarily suspended the confinement of juveniles who violate probation unless directed by a court order and encouraged eliminating any form of detention or residential placement unless a young person posed a “substantial and immediate safety risk to others.” Acting on Whitmer’s order, which was extended until late May, the Michigan Supreme Court told juvenile court judges to determine which juveniles could be returned home.
Judge Mary Ellen Brennan, the presiding judge of the Oakland County Family Court Division, declined through a court administrator to comment on Grace’s case. In her ruling, she found Grace “guilty on failure to submit to any schoolwork and getting up for school” and called Grace a “threat to (the) community,” citing the assault and theft charges that led to her probation.
“She hasn’t fulfilled the expectation with regard to school performance,” Brennan said as she sentenced Grace. “I told her she was on thin ice and I told her that I was going to hold her to the letter, to the order, of the probation.”
That June afternoon, a month after the sentencing, Charisse left Children’s Village without seeing Grace, but she did pick up a shopping bag of clothes and toiletries she had delivered days earlier. She said officials had rejected them because they violated facility rules: underwear that wasn’t briefs; face wipes that contained alcohol; a pair of jeans deemed too tight.
Charisse counts each day they’re apart, and that was day No. 33. Another month has since passed, and there could still be months to go before they are at home together again.
To read more CLICK HERE