Friday, October 30, 2020

Clean Slate Law won't let poverty stand in the way of sealing criminal records

Pennsylvanians whose ancient, minor criminal records have continued to haunt them are getting a break that could help them land a better job and find better housing, reported The Morning Call.

The state’s Clean Slate Law, which blocks many criminal records from public view, was amended recently to allow records to be sealed even if fines and court fees remain unpaid.

All court costs previously had to be paid to qualify.

That left many convicts unable to escape their past and put them in a cycle they couldn’t break. To be able to pay their fines and fees, they needed a good job. But they often couldn’t get one because they couldn’t pass a background check.

It was sort of a debtor’s prison without bars.

“The whole point of this is to find a job,” the bill’s lead sponsor, Rep. Sheryl Delozier, R-Cumberland, told me Wednesday.

Fines and fees still will be owed, and counties will continue trying to collect them. But that debt won’t preclude cases from automatically being removed from public access if they meet the other criteria under the Clean Slate Law.

“It’s important and it’s common sense public policy,” Delozier said.

It’s also a rare example of bipartisanship by the Pennsylvania Legislature, which passed the bill unanimously. The final vote occurred Oct. 21. Gov. Tom Wolf will sign the bill, his spokeswoman said.

This is the kind of criminal justice reform the state should be pursuing. Removing barriers that allow people to find good-paying jobs is a victory for everyone.

The poverty rate could be reduced, lowering the burden on government assistance programs and social services. Higher wages mean higher tax collections for governments. Higher wages also make it more likely that people will be able to pay off any fines or fees they owe the courts, completely satisfying their debt to society.

The change also could open doors for people to move into better housing, as landlords often run background checks.

Once Wolf signs the bill, the state would have one year to seal the eligible cases. But individuals can petition their county court to seal their records sooner, 60 days after the bill is signed. There is a cost to file a petition, but low-income people may qualify for a waiver of that fee.

The Clean Slate Law, passed in 2018, was the first of its kind in the nation. It resulted in about 35 million criminal records being blocked from public view, with a few exceptions, as of this summer.

They include records of arrests that did not result in conviction and records of summary convictions that are more than 10 years old. Records of second- and third-degree misdemeanor convictions with maximum sentences of two years are sealed if they are more than 10 years old and the person has not had other misdemeanor or felony convictions since.

The law requires restitution to crime victims to be paid in full to qualify. That should not change, as criminals should not get a break until their victims have been compensated, no matter how long ago the offense occurred.

Records sealed from public view under the Clean Slate Law still can be accessed by employers who are required by federal law to consider criminal records during the hiring process and those who use FBI background checks such as schools, hospitals, law enforcement and banks.

So far, the law has been more likely to benefit white people than Black people. The amendment that will be made through House Bill 440 could change that.

Only 12% of those who had misdemeanor convictions sealed automatically were Black while 86% were white, according to Community Legal Services of Philadelphia, which cited state police data.

Half of people with misdemeanor convictions statewide would have been eligible to have their records sealed automatically if it hadn’t been for unpaid fines and fees, according to Community Legal Services, which cited data from the Philadelphia district attorney’s office.

The people qualifying for Clean Slate aren’t career criminals or big-time offenders. Felons and people who endangered others, those convicted of gun crimes or sex crimes and those with multiple serious convictions are not eligible.

And if people who are in Clean Slate break the law again, their history still can be held against them by the legal system.

While Clean Slate blocks their records from public view through the state’s online case docket and online public searches, the record remains available to be considered during prosecution of future crimes. It is not expunged, just sealed with limited access.

House Bill 440 automatically expunges some records, in cases where all charges are acquitted and cases where pardons are received.

I’m all for locking up the worst offenders and throwing away the key. But a run-in with the law for a minor crime a long time ago shouldn’t be the burden it has been for many people. This is a big step toward solving that problem.

To read more CLICK HERE

Pennsylvania prepared for civil unrest related to election

Gov. Tom Wolf and his top election official told reporters the state was prepared for civil unrest related to Tuesday’s election, and officials are talking daily about things that might trigger problems, reported The Morning Call.

Wolf, a Democrat, also fired back at Republican President Donald Trump over his statements ― some made at a Trump rally at HoverTech in Northampton County on Monday ― that Trump would be “watching” Wolf’s count of state votes.

“I think the president was mistaken in terms of saying that he was watching me," Wolf told reporters during a news conference. “In Pennsylvania, I don’t count; I don’t think in any state the governor actually counts the votes.”

Concerning potential unrest, Wolf and Secretary of State Kathy Boockvar described a multiagency team, formed in 2018, that has talked daily about things that might trigger unrest on Tuesday or soon afterward.

“I am not sure what the reason might be for unrest, but if there is, we have been preparing for it,” Wolf said.

The task force includes the Pennsylvania Emergency Management Agency, state police, the governor’s office, the National Guard, and other agencies.

“Everybody is aligned to make sure that we are not only preparing in advance but ready to react if needed and also to diffuse the tensions that we know are going to be present," Boockvar said.

Wolf and Boockvar hit on several other issues related to the election, including COVID-19 precautions, the timing of results and a high-profile court case in which Republicans have sought to exclude mail-in ballots received after Election Day.

The election will happen amid a surge of coronavirus cases and increasing hospitalizations in Pennsylvania. Wolf said masks, sneeze guards and hand sanitizer have been provided to counties, and because of a huge number of mail-in ballots, lines at polling places are likely to be shorter than they might otherwise be.

The U.S. Supreme Court on Wednesday said it would not do a quick review of a Republican appeal to exclude those ballots. It remained possible the justices could take up the case after the election, and it remained unclear whether the ballots will ultimately be counted.

On Thursday, Boockvar said all 67 counties have been told to segregate any ballots that arrive after 8 p.m. on Tuesday.

Those ballots will be tabulated and recorded separately, she said. The question of whether they will actually count might depend on the court case.

“There is a lot of noise out there. We don’t know what is going to happen," Wolf said. “The Supreme Court may or may not decide to take this up again after the election.”

Wolf and Boockvar said that as of Thursday, 2.1 million mail-in ballots already had been received.

Some counties ― but none in the Lehigh Valley ― reportedly have said they will not start counting mail-in ballots until Wednesday. Boockvar said it was “only a handful” of counties, and she intended to talk to each one of them.

“I want every one of them starting on Election Day,” she said.

Wolf said that with an unprecedented number of mail-in ballots, results likely would not be available Tuesday night.

“We will have accurate results even if that takes a little longer than normal. On Tuesday night, and the days that follow, I encourage all of us to take a deep breath and just stay calm," Wolf said. "We will have a fair election. Mail-in voting is secure. And going to the polls is safe. We will have accurate election results within a few days.”

To read more CLICK HERE


Thursday, October 29, 2020

The more things change the more they stay the same, the Wickersham Commission Report of 1931

An explosive government report exposed family separations and other immigration horrors —the Wickersham Report of 1931

It doesn’t take longer than the table of contents to realize how much has stayed the same. “Separation of families.” “Invasion of personal rights.” “Illegal searches and seizures.” “Despotic powers of the administrative agency.” These section headings come from a 1931 US government report on the state of America’s deportation machine, reported Mother Jones.

In 1929, President Herbert Hoover tasked former attorney general George Wickersham with producing a series of reports on law enforcement in the United States. Reuben Oppenheimer, a Baltimore lawyer, was put in charge of immigration. What he found was so appalling that it made the front page of the New York Times.

The denials that followed were familiar, too. William Doak, who oversaw deportations as secretary of labor, said the next day that the abuses happened before his tenure. A day later, John Trevor, the head of an anti-immigrant “patriotic” group, warned that he’d heard Oppenheimer was associated with the American Civil Liberties Union. Trevor added that the report’s recommendation to provide immigrants with attorneys would let them avoid deportation with the help of the “shysters who now disgrace the American bar.”

The Wickersham Commission’s largely forgotten report reveals that the immigration debate that’s torn the country apart under President Trump had the same contours a century ago: One side sees inhumanity in the detention and removal of people who came to the United States in search of a better life; the other sees the means necessary to keep out people they don’t want. It’s a reminder that long before Trump, America was violating immigrants’ rights as a matter of course.

If Trump leaves office in a few months, there will be intense pressure from liberals to quickly repeal his immigration policies. The Wickersham report makes the case for doing much more.

Oppenheimer was investigating immigration enforcement as a young Harvard-trained lawyer. Like Wickersham, who worked as a law partner at New York City’s oldest firm before becoming attorney general, he was an establishment reformer, not a radical. Both men believed some deportations were necessary, though the scale was different from today: At the time, the United States had been removing fewer than 10,000 people in an average year, versus the record of more than 400,000 set in 2012.

Still, Oppenheimer concluded that those deportations led to an “almost inconceivable amount of suffering and hardship, of separations of husbands from their wives and of fathers from their children, of exile from a country where the deportee has been a desirable citizen and has formed all his attachments.” He added, “These results occur for the most part not where the deportee has committed a crime but where he has been guilty of a technical violation of the immigrations laws.” 

 As an example, Oppenheimer mentioned a Mexican man with eight US-born children who wound up on the other side of the Rio Grande after a fishing trip. He was apprehended after returning and barred from the United States permanently after being deported. (A 10-year ban is more common today, although there’s usually no way to return in practice.) 

Farther from the border, immigrant inspectors, the equivalent to today’s Immigration and Customs Enforcement agents, made little effort to hide the fact that they valued deportations above due process. One inspector readily admitted to Oppenheimer that he was going to falsify an affidavit so he could deport a man he called a “bum.” It’s reminiscent of a scene in the recently released Netflix documentary series Immigration Nation, in which an ICE officer illegally picks a lock on camera. Then and now, lawbreaking was so routine that immigration agents didn’t think to hide it.

Once in custody, immigrants were detained in jails without the right to counsel. As today, most couldn’t afford attorneys, so they represented themselves in proceedings rigged against them. “In all probability a great many unrepresented persons have been deported whom lawyers could have saved,” Oppenheimer wrote. 

An attorney and media attention didn’t guarantee protection, either. Oppenheimer told the story of Guido Serio, who fled Italy after being attacked by fascists. Serio told an immigrant inspector that he’d be killed in Benito Mussolini’s Italy. The government ordered him deported because he was a communist.

To read more CLICK HERE


Wednesday, October 28, 2020

Respect for the guilty mind-the disappearance of mens rea

Respect for the guilty mind is intuitive, reported the Boston Review. As Justice Oliver Wendell Holmes, Jr., famously put it, “even a dog distinguishes between being stumbled over and being kicked.” Of course, humans do too: a wide array of studies has shown that our intuitive moral sense of how to respond to harm or wrongdoing is keenly sensitive to what is happening in the minds of others. And this appears to be true from a very young age. Psychologists have found that even kindergarteners “make their culpability and punishment decisions proportionately” based on morally relevant differences in mens rea.

In theory, the criminal law is like this too. U.S. legal culture generally accepts that the criminal justice system should not punish people who make reasonable mistakes or for accidents, nor should it punish those who cannot think or act morally (say, due to mental illness). It is also accepted that the criminal justice system should excuse those who make understandably bad decisions in excruciating and extenuating circumstances. No doubt, individuals in these situations may do something harmful—perhaps terribly so. But in the absence of a guilty mind, the law should—and typically does—view them as morally innocent, and therefore beyond the reach of criminal liability.

The law has also embraced a similar notion in sentencing. As I’ve highlighted elsewhere, the principle of “proportional mens rea” says that, all else being equal, punishment should track the guiltiness of a defendant’s state of mind. This is the animating idea behind our centuries-old homicide laws, which go to great lengths to differentiate between mental states, and, ultimately, to lessen sentences for those whose choices are less blameworthy than the paradigmatic case of a cold-blooded, premeditated murder. An intentional killing committed in the heat of passion (e.g., an aggrieved parent who kills her child’s bully in a fit of rage) is often mitigated down to manslaughter, as is one committed recklessly (e.g., a fatal decision to run a red light, in conscious disregard of a slowly approaching pedestrian). And where that killing is intentional but motivated by imperfect self-defense (e.g., someone who unreasonably mistakes a friend for a foe), or is just plain negligent (e.g., a thoughtless college student mishandling a gun accidentally fires it), the charge may be dropped even further to negligent homicide—or a lesser form of manslaughter, with labels varying from jurisdiction to jurisdiction.

All of these individuals have perpetrated the same wrongful act: killing a human being. But because of the important distinctions in mental state accompanying that act, criminal law provides them with increasingly lenient sentences.

This is how the criminal justice system is supposed to operate: limiting convictions to guilty minds and apportioning punishment in accordance with their guiltiness. The U.S. Supreme Court has recognized this basic idea to be (1) “universal and persistent in mature systems of law,” (2) as fundamental as our belief in an individual’s ability to “choose between good and evil,” and (3) “essential if we are to retain ‘the relation between criminal liability and moral culpability’ on which criminal justice depends.” Similar statements are frequently made by courts and scholars around the country, who are drawn to the intuitively appealing vision of—as Douglas Husak puts it—“a world in which impositions of criminal liability and punishment correspond to our considered judgments of blame and desert.”

If legal rhetoric were an accurate gauge of legislative reality, our criminal justice system’s treatment of mens rea would be pristine. But this is simply not the case. Criminal statutes, the primary source of liability and punishment in this country, often fail to live up to this commitment to moral guilt. In a surprisingly large number of situations, our nation’s lawmakers have disregarded traditional mens rea principles in favor of a tough-on-crime approach that sacrifices our intuitive sense of fairness in pursuit of an amorphous idea of “public safety.”

The drug arena is a case in point, in part because it is where some of the most aggressive tough-on-crime campaigns have been waged. U.S. drug policies often focus on behavior to the near total exclusion of mental state considerations. Many drug possession statutes apply a “strict liability” approach, in which—as Markus Dubber explains—“you can be convicted . . . if you don’t know that you are ‘possessing’ a drug of any kind, what drug you are ‘possessing,’ how much of it you’ve got, or—in some states—even that you are possessing anything at all, drug or no drug.”

Just as strict is the ruthlessly quantitative approach to drug sentencing employed in most jurisdictions that bases punishment on what Doug Berman calls “fairly arbitrary questions about how the drugs involved in an offense are to be classified or quantified instead of on a defendant’s actual culpability.” What this means, in practice, is that small-time dealers can be punished just as severely as big-time traffickers (think decades, not years) based upon their tangential connection to massive quantities of narcotics they had no idea existed and had no intent to sell.

Similarly strict tendencies are reflected in the law of violence. Some jurisdictions have assault and homicide statutes that convict those who, absent clear moral fault, accidentally injure or kill another person in the course of daily life. (This situation is often the result of applying civil negligence standards in the criminal context.) And nearly all jurisdictions have homicide laws that treat unwitting fatal accidents that occur in the course of perpetrating a felony crime as murder. The consequences of these “felony murder” laws are often striking.

To read more CLICK HERE

Tuesday, October 27, 2020

Breonna Taylor's death behind efforts to ban or restrict no-knock warrants

No-knock warrants became a popular policing technique in the late 1980s. The warrants, typically issued by a judge, allow law enforcement to enter a home without notice to anyone inside. This practice can give police two major advantages: One, a suspect can’t hide evidence. Two, a suspect is less likely to be ready with a weapon.

But even with those advantages, the warrants have been dangerous — for both residents and law enforcement, reported Stateline.

The Breonna Taylor case was a tragic example. Although a judge approved a no-knock warrant, the officers claim they knocked and said “police” before using a battering ram to get into Taylor’s apartment. Inside, her startled boyfriend fired a gun at the officers, injuring one. Officers shot back, striking Taylor multiple times, killing her. Taylor’s boyfriend later said he didn’t hear any announcement from the officers and thought they were intruders.

Since Taylor’s death, lawmakers in 10 states have introduced or pre-filed legislation to ban or restrict no-knock warrants. A handful of local jurisdictions are discussing it. And at least 13 local governments or police departments — from Baltimore to Killeen, Texas — have banned the warrants or restricted their use.

Some criminal justice experts caution that banning the practice doesn’t take into account possible loopholes.

“Much of the problem is … what we call quick-knock warrants,” said Peter Kraska, a professor at Eastern Kentucky University’s School of Justice Studies.

For example, Kraska said, officers could knock but enter a home right away, thereby potentially creating the same risks as a no-knock warrant. And there are situations when being able to enter a home without knocking could be essential, he said, such as when officers are dealing with an active shooter.

“At the end of the day, any kind of warrant service tends to be dangerous, period,” said Thor Eells, executive director of the National Tactical Officers Association, a 40,000-member organization in the United States and Canada that trains police units. “The question is: What actions can law enforcement take to reduce that risk?”

To read more CLICK HERE

Monday, October 26, 2020

National campaigns gear up for 'litigation arms race'

This past year, Democratic and Republican lawyers have filed hundreds of election-related lawsuits in state and federal courts, putting this election on track to become the most litigated in history, reported TIMEOne reason for the deluge is COVID-19, which compelled most states to expand access to absentee and mail-in voting, add ballot drop boxes, or tweak deadlines and other requirements. Nearly every time states have implemented a change, it’s been followed by a lawsuit. There have been at least 380 election-related lawsuits solely stemming from the pandemic, according to the Stanford-MIT Healthy Elections Project. In 2016, there were 337 lawsuits total, according to data compiled by Rick Hasen, a law professor at the University of California-Irvine. Ned Foley, an election law expert at Ohio State University, has described this year as “a litigation arms race.”

For both the Biden and Trump campaigns, the ideal scenario is for their respective candidates to win the popular vote and electoral college by such indisputable margins that post-Election Day litigation becomes moot. Current polling indicates it is much likelier for Biden to accomplish this objective than Trump. But polling suggests that there are plenty of ways that this one could be a squeaker. While Biden leads in national polls, the margins are much tighter in several swing states, and his campaign is openly saying the race is closer than the numbers indicate. “The closer the outcome, the easier it is to litigate,” says Foley, of Ohio State University.

Both Republicans and Democrats are actively preparing for the possibility of a pitched, multi-front court battle after Nov. 3. “We have been planning for any post-election litigation and recounts for well over a year and are extraordinarily well-positioned,” Justin Riemer, the Republican National Committee’s chief legal counsel said in a statement to TIME. “With the help of our national network of attorneys, the RNC has been beating the Democrats in court for the last several months and that will continue should they attempt to sue their way to victory in November.” The RNC also said they intend to train thousands of lawyers to handle litigation surrounding Election day, post-Election canvassing, and possible recounts. (The Trump campaign declined to comment when asked which lawyers would be involved; the RNC did not respond to a request for further comment.)

The Biden campaign is amassing its own team of lawyers—a force it describes as the largest election protection program in presidential campaign history. “We can and will be able to hold a free and fair election this November and we’re putting in place an unprecedented voter protection effort with thousands of lawyers and volunteers around the country to ensure that voting goes smoothly,” said Dana Remus, general counsel for the campaign, in a statement. The team, led by Remus, includes former Solicitors General Donald Verrilli and Walter Dellinger, and former Attorney General Eric Holder. Marc Elias, who has led the pre-election fight for Democrats, will run any post-Election Day legal contests over state vote counts.

Any post-Election Day litigation is most likely to involve swing states, crucial to determining the Electoral College winner, that end up having tight vote counts. Pennsylvania, Michigan, Wisconsin, Florida and North Carolina are all high on the list of possibilities, and top election officials in these states are girding for battle.

In Pennsylvania, Attorney General Josh Shapiro says his office has “a team of lawyers in place ready to beat back any attempt by the president and his enablers.” On Nov. 3, the office plans on deploying attorneys and investigators in every region of the state in anticipation of possible legal action regarding intimidation, interference or fraud.

But for now, all eyes are on Election Day. If one candidate wins in a landslide, all of this could be moot. “I tell the voters in Pennsylvania, ‘Ignore the noise, don’t worry about the lawsuits filed by the President – I’ve got your back,'” says Shapiro. “What you need to do is make a plan to vote.'”

To read more CLICK HERE


Sunday, October 25, 2020

State and federal prison population declined 3% from last year

 The combined state and federal imprisonment rate for 2019 (419 per 100,000 U.S. residents), based on sentenced prisoners (those sentenced to more than one year), decreased 3% from 2018 (432 per 100,000 U.S. residents), according to a report prepared by the DOJ's Bureau of Justice Statistics.

This was the lowest imprisonment rate in 24 years, dating back to 1995. Since 2009, the imprisonment rate—the portion of U.S. residents who are in prison—has dropped 17% overall, including 29% among black residents, 24% among Hispanic residents, and 12% among white residents. At year-end 2019, there were 1,096 black prisoners per 100,000 black residents, 525 Hispanic prisoners per 100,000 Hispanic residents, and 214 white prisoners per 100,000 white residents in the United States.

The total prison population in the U.S. declined from 1,464,400 at year-end 2018 to 1,430,800 at year-end 2019, a decrease of 33,600 prisoners. This was the largest absolute population decline since year-end 2015. The 2% decline in the prison population marked the fifth consecutive annual decrease of at least 1%. At year-end 2019, the prison population was the smallest since 2002 (1,440,100) and had declined 11% from its all-time peak of 1,615,500 prisoners in 2009.

To read more CLICK HERE

Saturday, October 24, 2020

GateHouse: Local jails can be deadly

Matthew T. Mangino
GateHouse Media
October 24, 2020

This year, the Trump administration got back into the business of federal executions. After a near total pause over the last 17 years - only three federal executions during that period - the federal government has carried out seven executions since July 14.

Since 2008 there have been 412 executions in this country, all but the last seven were carried out by individual states, most notably Texas. However, the execution chamber is not the most lethal place for American prisoners - that distinction goes to America’s local jails.

According to a recent investigation by Reuters, 7,571 inmates have died in local jails since 2008.

Every year, about 11 million people funnel through local jails. According to the Prison Policy Initiative, between 1970 and 2017, the number of people incarcerated in the nation’s 3,000-plus local jails ballooned - from 150,000 to about 720,000 per day.

Some inmates in local jails are serving short sentences, often for minor offenses that did not land them in a state prison. However, most local inmates are awaiting trial. They have not been convicted. They have not been sentenced.

As revealed by the Reuters investigation, most of the prisoners who lost their lives succumbed to illness, due in part to the low quality of healthcare. The U.S. Supreme Court, through the Eighth Amendment, has addressed the failure of jails and prisons to meet prisoners’ serious medical or mental health needs, but the deaths continue.

More than 2,000 of those inmates took their own lives, often the result of inadequate or nonexistent mental health treatment. The U.S. Department of Justice released a report in 2017 that found between 2006 to 2016 suicide was the leading cause of death for inmates in local jails.

According to the Bureau of Justice Statistics (BJS) suicides were responsible for 31% of deaths in local jails. Heart disease was the second-leading cause of death for jail inmates. That report also found that about 40% of inmate deaths in 2016 occurred within the first seven days of admission to jail.

Incarcerated people are five times more likely than the general population to have a serious mental illness and two out of three have a substance abuse disorder. According to BJS, prisoners are also more likely to have had chronic health conditions and infectious diseases. Moreover, many people experience serious medical and mental health crises after they are placed into jail.

Local jails are funded by local tax dollars and the resources are scarce. Programming for inmates in local jails is nearly nonexistent. Training for jail personnel is often impacted by local economic conditions. Healthcare is marginal at best. A lack of money, treatment and training is a lethal combination.

Reuters examined the mortality rate at more than 500 U.S. jails to put together their investigation. Death rates have soared in local jails, rising 35% during the decade ending last year. At least two-thirds of the deceased inmates identified by Reuters - 4,998 people - were never convicted of the charges for which they were being held.

Homicide is also a problem in local jails.

The problem is multifaceted. Inadequate personnel and supervision puts staff and inmates at risk. Reuters found that, at times, local officials report deaths inaccurately, listing homicides or suicides as accidents or illnesses.

Some jails find other ways to keep deaths off the books, according to the investigation, such as “releasing” inmates who have been hospitalized in grave condition, perhaps from a suicide attempt or a medical crisis, so they’re not on the jail’s roster when they die.

A first step in reducing the rising death toll of inmates awaiting trial is to control the local jail population. This can be accomplished through pretrial bail reform. Holding inmates pretrial simply because they cannot afford bond is dangerous and ridiculous. A man or woman accused of crime, who has resources, is no less a danger to the community than a man or woman without resources.

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.

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Friday, October 23, 2020

Can a police officer pursue an alleged misdemeanor offender into a premises without a warrant?

The U.S. Supreme Court agreed to decide whether an officer can enter a garage without a warrant when in pursuit of a misdemeanor suspect, reported the ABA Journal.

The high court granted cert in the case of Arthur Lange, a California man who sought to suppress evidence of alcohol on his breath that led an officer to charge him with driving under the influence. The officer noticed the smell while in Lange’s garage after following him home. The officer first noticed Lange because he was playing loud music and occasionally honking his horn while driving his station wagon.

The state contended that the officer could enter Lange’s garage without a warrant because Lange failed to stop when the officer activated his overhead lights, which is a misdemeanor offense.

The case involves the Fourth Amendment, which requires police to obtain a warrant before entering a home, except in “exigent circumstances,” according to the cert petition. That kind of exigency may exist when a police officer is in “hot pursuit” of a suspect, but it’s unclear when the exception applies.

The Supreme Court has twice upheld warrantless entries by officers pursuing an armed robber and a drug dealer—both felons. But in a case involving a traffic violation that carried no possibility of jail time, the Supreme Court said a warrantless entry for such a minor offense “should rarely be sanctioned.”

The ambiguity has created a circuit split. Some courts hold that the pursuit of a misdemeanor suspect always qualifies as an exigent circumstance. Others decide on a fact-specific, case-by-case basis.

The officer who followed Lange home did not activate his siren or immediately turn on his overheard lights. When Lange opened his garage door, the officer turned on his overhead lights. Instead of pulling over, Lange drove into his garage, and the officer followed him on foot. As the garage door was going down, the officer stuck his foot under the sensor to open it back up.

In the garage, the office noticed the smell of alcohol on Lange’s breath. Lange was charged with driving under the influence and operating a vehicle sound system at excessive levels. Lange pleaded no contest to the DUI in Sonoma County, California, after his suppression motion was denied.

The case is Lange v. California.

To read more CLICK HERE

Thursday, October 22, 2020

Former Trump fundraiser pleads guilty to federal crime

The US Department of Justice (DOJ) announced that a former fundraiser for President Donald Trump has pleaded guilty to one count of conspiracy to violate the Foreign Agents Registration Act (FARA). Elliott Broidy was a fundraiser for Trump’s 2016 campaign and part of his inaugural committee, reported Jurist.

Broidy made the guilty plea before federal Judge Colleen Kollar-Kotelly, who did not immediately impose a sentence. Broidy was accused of attempting to lobby high government officials, including the president and attorney general, to drop an investigation into the embezzlement of billions of dollars from 1Malaysia Development Berhad (1MDB), an investment fund owned by the Malaysian government. As part of his plea, he admitted to receiving $9 million from an unnamed architect of the embezzlement scheme. FARA requires individuals who lobby the US government on behalf of foreign entities to register with the DOJ, which Broidy admits he did not do.

In addition to his attempts to get the government to drop the 1MDB investigation, he also attempted to persuade the administration and the DOJ to return a dissident Chinese national living in the US to Chinese authorities. Broidy expected to receive many more millions of dollars in fees for that effort, which was ultimately unsuccessful, as was his lobbying regarding 1MDB.

Of the $9 million he received, Broidy paid $2.4 million to Nickie Lum Davis, his co-conspirator, who has already pleaded guilty for her role in the lobbying effort. Broidy agreed to forfeit the remaining $6.6 million. He could face up to five years in prison at his sentencing hearing, set for next February.

To read more CLICK HERE

Wednesday, October 21, 2020

President asks attorney general to arrest his political opponent before election day

President Trump called on William P. Barr, the attorney general, to take action before Election Day against his Democratic opponent, former Vice President Joseph R. Biden Jr., over his son’s foreign work, an extraordinary attempt to pressure the government’s chief law enforcement to help him politically, reported the New York Times.

The president made the remark during an interview with “Fox & Friends,” after days of caustic criticism of Mr. Biden, the moderators of the presidential debates, the news media and, increasingly, Mr. Barr. He recently said the attorney general would go down in history “as a very sad, sad situation” if he did not indict Democrats like Mr. Biden and former President Barack Obama.

“We’ve got to get the attorney general to act,” Mr. Trump said on Tuesday, when asked whether he wants to see investigations into unverified information about Mr. Biden and his son Hunter that the president’s personal lawyer, Rudolph W. Giuliani, claims he recently obtained. Mr. Giuliani, who has made a range of outlandish and false assertions in an effort to damage the president’s rivals and critics, has refused to provide news outlets with the information he claims to have.

Mr. Trump called on Mr. Barr to appoint a special prosecutor or similar official, saying: “He’s got to act. And he’s got to act fast.”

To read more CLICK HERE

Tuesday, October 20, 2020

SCOTUS will hear search warrant exception case

The U.S. Supreme Court added three new cases to their merits docket for the term, reported SCOTUSblog. The justices announced that they will weigh in on the scope of the Fourth Amendment’s warrant requirement. The justices denied review in another Fourth Amendment case, prompting a statement from Justice Neil Gorsuch, while Justice Clarence Thomas dissented from the denial of review in a case involving the Indian Gaming Regulatory Act.

The Fourth Amendment generally requires police officers to get a warrant before entering a home. The Supreme Court has recognized an exception to that rule for emergencies, such as when the police are in hot pursuit of a suspect. In Lange v. California, the justices agreed to decide whether that exception applies when police are pursuing a suspect whom they believe committed a misdemeanor.

The question comes to the court in the case of Arthur Lange, a northern California man whom a California highway patrol officer followed to his home because he believed that Lange had violated state traffic laws by listening to loud music and honking his horn a few times. After Lange pulled into his garage, the officer – who had turned on his overhead lights but did not use his siren as Lange approached his house – entered the garage by putting his foot under the garage door to block it from closing. When he spoke to Lange, the officer said that he could smell alcohol on his breath, and Lange was charged with driving under the influence.

At his trial, Lange argued that the officer’s entry into his garage without a warrant violated the Fourth Amendment, so that the evidence obtained in the garage should be thrown out. The trial court rejected that argument, and a state appeals court affirmed that ruling and, eventually, his conviction. The California Court of Appeal also upheld his conviction, rebuffing Lange’s contention that the exception to the warrant requirement for a “hot pursuit” of a suspect should apply only in genuine emergencies, rather than when the police are investigating minor offenses. Instead, the court of appeal concluded, the warrantless entry did not violate the Constitution because the officer was in hot pursuit of Lange, whom he had probable cause to arrest for a misdemeanor.

Lange went to the Supreme Court, asking the justices to review the state court’s decision. The lower courts are “sharply divided” on the question of whether pursuits for misdemeanors justify a warrantless entry, Lange told the justices. And the California court’s rule, he added, would allow “officers investigating trivial offenses to invade the privacy of all occupants of a home even when no emergency prevents them from seeking a warrant.”

California agreed with Lange that the federal and state courts have reached different conclusions on the Fourth Amendment question presented by his case, but it told the justices that Lange’s case is not an appropriate one in which to reach that question because Lange’s DUI conviction should stand regardless of the outcome of this proceeding. But, the state continued, if the court were to grant review, California agrees with Lange that pursuits for misdemeanors do not always justify a warrantless entry; instead, the state suggested, courts should use a case-by-case approach to determine whether there is a genuine emergency.

The case will likely be scheduled for argument in February 2021 or later.

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Monday, October 19, 2020

AG Barr doubles down on qualified immunity

Remarks by Attorney General William P. Barr on October 16, 2020:

The bottom line is that, if we are going to send our police officers into uncertain and potentially fatal encounters, we need to be fair to them in judging their actions.

The absolute worse thing would be to adopt the radical proposal to eliminate qualified immunity, which protects police officers from personal liability when they make good-faith errors in enforcing the law.  If an officer knowingly violates someone’s clearly established rights, personal liability may be appropriate.  But qualified immunity provides breathing space for officers to do their jobs without fear that an inadvertent or unpredictable error will subject them to financial ruin.  Without qualified immunity individual officers would be deterred from going into risky situations that are necessary to save lives.

If we wish to minimize excessive-force situations, the most important step we could take is to re-establish the principle that there is no valid justification for physically resisting a police officer.  The approach must be “comply first, complain later.”  This will save the lives of officers and of suspects.

To read more CLICK HERE

Sunday, October 18, 2020

Less than 20 percent of 911 calls are for serious crime

Michael Gelb of The Crime Report wrote:

Less than 20 percent of the 240 million 911 calls each year report a serious or violent crime in progress; the most frequent calls related to nuisance complaints and low-level crimes, according to a report issued by the Vera Institute of Justice.

In fact, the most common type of incident relayed to 911 dispatchers was noncriminal (i.e., a complaint or a request for a welfare check) —  calls which nevertheless consumed a “substantial proportion” of police officers’ time, wrote S. Rebecca Neusteter, Megan O’Toole, Mawia Khogali, and Abdul Rad – the report’s lead authors.

Despite the frequency of these “resource-intensive calls for service that do not involve a crime,” there is limited information about their causes and consequences.

To strengthen existing knowledge of 911 responses, the authors first analyzed the nature and outcomes of 911 calls as well as computer-aided dispatch data in Camden County, NJ; Tucson; Detroit; New Orleans; and Seattle.

The researchers then devised a so-called “system processing map” that tracked 911 calls from receipt through closure.

The data for this processing map was collected via focus groups, interviews and field observations in police departments and emergency communications centers in the five cities mentioned above.

Lastly, the Vera Institute convened police officers, dispatchers and researchers to discuss the report’s findings and examine “community-based responses that can help prevent a default to [law] enforcement and allow for more appropriate responses to calls for police service.”

In addition to concluding that most 911 callers reported noncriminal and nonemergency incidents, the report found that data collected and disseminated by dispatchers influences police officers’ decisions on the ground.

In Tucson and Camden, when dispatchers labelled incidents violent, as opposed to nonviolent, police officers were more likely to arrest someone.

Meanwhile, incidents characterized as nonviolent were more likely to result in an arrest when initiated by a police officer, as opposed to a 911 call.

These findings led the authors to believe that additional research is necessary to explain and lessen the differential outcomes between police contacts that begin with a 911 call and those that do not.

Furthermore, most mental health- and medical-related incidents were diverted from law enforcement, a trend which benefits both civilians – because they have easier access to treatment outside prison walls – and police officers – because they can spend more time responding to serious and violent crimes.

In light of these and other findings, the authors offered the following recommendations: 

  • Adopt alternative reporting practices to minimize police response to 911 calls;
  • Implement universal and specialized call-taking training;
  • Explore and adopt alternatives to 911 hotlines;
  • Expand the 911 response to include resources for dealing with mental health and drug overdose crises, conflict resolution strategies that are unlikely to result in injury, suicide ambulances, and social net services;
  • Secure funding to 911 call centers and their employees; and
  • Implement national standards for 911 data collection procedures.

Whatever path dispatchers and law enforcement agencies take, the authors argue that creating alternatives to 911 and reducing unnecessary police response should be central to future reforms.

Rebecca Neusteter was formerly the director of the Vera Institute’s Policing Program and is currently the executive director of the University of Chicago Health Lab, and Megan O’Toole was formerly a research associate in the Policing Program.

Mawia Khogali was formerly a research associate in the Policing Program and is currently a research associate in the Center for Policing Equity, and Abdul Rad was formerly a research associate in the Policing Program and is currently an associate fellow at the R Street Institute.

The report’s authors, in addition to the ones mentioned above, include Frankie Wunschel, Sarah Scaffidi, Marilyn Sinkewicz, Maris Mapolski, Paul DeGrandis, Daniel Bodah, and Henessy Pineda.

The Vera Institute of Justice’s full report can be accessed here.

More of the Vera Institute’s research publications can be accessed here.

Additional reading: “Phila. Behavioral Health Expert Helps Answer 911 Calls” by Crime and Justice News, The Crime Report, October 12, 2020

See also: “Police get 911 Calls about Coughs, Toilet Paper,” by Crime and Justice News, The Crime Report, March 19, 2020

To read more CLICK HERE

Saturday, October 17, 2020

GateHouse: Recreational marijuana: Coming soon to a state near you

 Matthew T. Mangino
GateHouse Media
October 16, 2020

There is a “green wave” sweeping the country. Ballot initiatives in Arizona, New Jersey, South Dakota and Montana are seeking to legalize marijuana for recreational use.

Don’t be fooled, the green does not represent marijuana - it represents money. More and more states are legalizing marijuana, not because there has been a massive shift in public sentiment on marijuana use, but because states can raise revenue from marijuana sales.

Ever since Colorado and Washington became the first two states to approve marijuana legalization in 2012, nine states and three territories have joined them including Alaska, California, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, the District of Columbia, the Mariana Islands and Guam. Another 16 states and the U.S. Virgin Islands have decriminalized marijuana and 33 states allow medical marijuana use.

It was not long ago that gambling was illegal everywhere outside of Nevada. Today, you can bet inside some ballparks while games are in progress - try justifying that to Pete Rose or the descendants of Shoeless Joe Jackson. Why? States have made about $1.8 trillion in tax revenue from gambling.

How much tax revenue can marijuana generate?

Legalizing marijuana nationwide would create at least $132 billion in tax revenue and more than a million new jobs across the United States in the next decade, according to a new study by New Frontier Data. The marijuana industry could create an entirely new tax revenue stream for the government, generating millions of dollars in sales tax and payroll deductions.

The analysis shows, according to the Washington Post, that if marijuana were fully legal in all 50 states, it would create at least a combined $131.8 billion in federal tax revenue through 2025.

What is on the ballot for Nov. 3?

In New Jersey, Governor Phil Murphy made a campaign promise to legalize marijuana suggesting that legislation could generate hundreds of millions of dollars in tax revenue.

New Jersey’s Public Question No. 1 would legalize marijuana for adults 21 and older. The sale of recreational marijuana products would be subject to the state’s 6.2% sales tax.

New Jersey first legalized medical marijuana and is now taking on recreational marijuana. South Dakota is going straight to recreational marijuana.

Measure 26 would establish a medical marijuana program and registration system for people with qualifying conditions, as well as on Amendment A, which would legalize marijuana for all adults. According to the Argus Leader a majority of South Dakotans support the measure.

In Arizona, where four years ago residents narrowly defeated an initiative to legalize recreational marijuana, the issue is back on the ballot.

Proposition 207 is structured similarly to 2016′s measure. It would allow adults to possess, consume or transfer up to 1 ounce of marijuana and create a regulatory system for the products’ cultivation and sale.

According to CNN, recreational sales in Arizona could total more than $700 million by 2024.

In Montana policymakers expect recreational marijuana sales to total nearly $193 million by 2025, generating $38.5 million in tax revenue.

According to the Billings Gazette, there are two measures on Montana’s ballot. First, the state is asking voters to amend the state Constitution to authorize a minimum age for alcohol and marijuana purchases, and second, to allow adults in the state to possess, buy and use marijuana for recreation.

Some proponents of criminal justice reform suggest that legalizing marijuana will have a positive impact on racial justice initiatives.

“Cannabis criminalization is a cornerstone of the war on drugs,” Jared Moffat of the Marijuana Policy Project, told The Appeal.

According to the Pew Research Center, 40% of all drug arrests in 2018 were marijuana-related. The overwhelming majority were for possession, as opposed to sale or manufacture.

Legalizing marijuana will have a two-fold effect - pump new revenue into state and local economies and reduce the inequity of racially disparate mass incarceration and the residual ill effects of having a criminal conviction.

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, October 16, 2020

COVID-19 has infected 147,000 prison inmates nationwide

 As of October 15, at least 147,051 people in prison had tested positive for COVID-19, a three percent increase from the week before, reported the Marshall Project. This was the lowest weekly increase among prisoners since June. The numbers suggest infections are slowing in prisons, while the rest of the nation on the outside starts to observe rising numbers of new cases as autumn sets in.

New cases among prisoners reached an all-time high in early August after slowing down in June, driven by big jumps in prisoners testing positive in Florida, California and the federal Bureau of Prisons as well as outbreaks in Arkansas, Hawaii and Oklahoma.

Reported cases first peaked in late April, when states such as Michigan, Ohio, Tennessee and Texas began mass testing of prisoners. Those initiatives suggested that COVID-19 had been circulating among people without symptoms in much greater numbers than previously known.

To read more CLICK HERE

Thursday, October 15, 2020

Dangerous right-wing militia groups grow in Pennsylvania and across the country

The leader of an armed standoff with federal authorities at an Oregon wildlife refuge and his allies have exploited COVID-19 fears to build a dangerous network of militia members and other far-right factions, according to a new report by two groups that track extremism, reported the Kansas City Star.

Ammon Bundy, who led the 41-day occupation of the Malheur National Wildlife Refuge in 2016, began building the People’s Rights network in March, says the report by the Institute for Research and Education on Human Rights and the Montana Human Rights Network. Since then, the report says, the network has rapidly grown to more than 20,000 members across the country.

Bundy rose to prominence in the so-called “patriot” movement after leading an armed standoff in 2014 at his father’s ranch in Nevada. He and his father, Cliven Bundy, faced federal charges following the confrontation over land grazing fees. The case was dismissed in 2018.

Ammon Bundy did not return a call for comment Wednesday. His father told The Star that “he’s hard to get ahold of a lot of times.”

“I’m not really part of that group,” Cliven Bundy said. “I try to keep up with what’s going on a little bit.”

The network, which the report refers to as “Ammon’s Army,” includes militia members, anti-maskers, conspiracy theorists, preppers and anti-vaxxers. Its rapid growth has been boosted by the joining of Bundy’s far-right paramilitary supporters cultivated from armed standoffs over the years with a large base of new activists radicalized through protests over COVID-19 health directives, the report says.

Bundy has put together a team of 153 “assistants” in 16 states, it says, including Missouri.

 “Since the early days of the COVID-19 pandemic, we’ve documented the division and violence sown by Ammon Bundy and his far-right followers in the Northwest,” said Devin Burghart, president and executive director of IREHR. “To see Ammon’s Army continue to grow and gain a foothold in Missouri is cause for deep concern, for both democracy and public health.”

Despite all the talk of rights and freedom, the report says, “a culture of violence and fear lies at the center of the People’s Rights message.”

“As Bundy told the crowd at the third meeting of the group, if local, state, or federal officials attempt to enforce laws that the group doesn’t like, People’s Rights is prepared to adopt a violent posture. … Already there have been significant clashes and growing rage. In the context of the pandemic, it puts the lives of community members and public servants at risk, straining democratic institutions and damaging civil society.”

The other states in the network, the report says, are Arkansas, California, Florida, Georgia, Idaho, Kentucky, Montana, Nebraska, Nevada, North Dakota, Oregon, Pennsylvania, Texas, Utah and Washington. Many of the “assistants,” it says, have been involved in extensive far-right activism. And the majority of those in its local leadership positions are women, which the report says is a first for modern far-right networks.

People’s Rights leaders also have proposed armed enclaves in which “righteous” neighbors stand against the “wicked,” the report says.

Bundy’s violence-tinged rhetoric — such as telling followers that they would “be like a den of rattlesnakes” if their rights are threatened — has attracted many militia members, Three Percenters, Oath Keepers and other paramilitary groups, according to the report. People’s Rights leaders have been members in the Southwest Missouri Militia, Montana Militia, Washington State Militia, III% United Patriots and Southern California Patriots, among others, it says.

The People’s Rights network has many similarities to the paramilitary movements of the past, such as the Posse Comitatus — which rose to power during the farm crisis in the 1970s and 1980s — the report says.

Like those in the Posse Comitatus movement, some People’s Rights groups have started sending bogus documents to lawmakers that they claim carry legal weight, it says. A “Petition to Cease and Desist and Demand to Restore the Republic” was recently sent to Idaho legislators calling for an end to the state’s COVID-19 restrictions.

And in Montana, a People’s Rights leader filed a grievance in Montana District Court against Gov. Steve Bullock, claiming he had no authority to issue a stay-at-home directive. The leader also threatened to have the militia “arrest” public officials who enforced stay-at-home orders and offered a $100 bounty for the mayor of Kalispell, Montana’s, address, which he said he needed in order to make a citizen’s arrest.

Another similarity between the People’s Rights network and the Posse Comitatus and militias, the report says, is the abundance of conspiracy theories it perpetuates — though it hasn’t yet come up with its own.

“Rather, the network rests upon a mélange of conspiracy theories brought in by the leadership from various corners of the far-right,” the report says. “Conspiracy theories from QAnon, the John Birch Society, Three Percenters and militia-types, Christian nationalists, and hardcore anti-Semites have circulated throughout the People’s Rights network.”

The name “People’s Rights,” the report says, “is a misnomer of epic proportions.”

“Don’t be fooled. Whatever they choose to call it, it is Ammon’s Army, and it marches to a far-right drumbeat of narcissistic rage and insurrection.”

To read more CLICK HERE