Trump Administration to carry out lame duck executions

The Trump administration announced that it would continue to carry out executions in the days and weeks leading up to the inauguration of President-elect Joe Biden, with the last one now scheduled just five days before Biden takes office on Jan. 20, 2021. This bloodthirsty decision is another and particularly grotesque way in which President Donald Trump and his Justice Department are defying the norms and conventions for modern presidential transitions, reported Slate.

The Death Penalty Information Center reports that the last time an outgoing administration did anything remotely similar was more than a century ago, in 1889. At that time Grover Cleveland, the first Democrat to be elected president after the Civil War and the only president ever to have served as an executioner (when he was the sheriff in Erie County, New York), permitted three executions to proceed in the period between his electoral defeat and Benjamin Harrison’s inauguration in March 1889.

Since then, every outgoing administration has halted the federal death penalty during the transition period. Trump and Attorney General William Barr are not merely failing to engage in a merciful pause: They are rushing to execute persons who might be spared by a new administration.

Indeed, the Biden administration intends to try to abolish the federal death penalty and provide incentives for states to abolish it as well. A spokesperson reaffirmed this intention: “The president-elect opposes the death penalty, now and in the future, and as president will work to end its use.”

The changing nature of America’s death penalty politics is also reflected in the fact that the number of executions carried out at the state level has declined to the lowest number since 1983. This year, even the most pro–death penalty states have to some degree recognized the significant health risks associated with carrying out executions during the pandemic and stopped them. All told, seven men have been executed in five different states (Alabama, Georgia, Missouri, Tennessee, and Texas), with South Carolina scheduled to carry out one more before the end of the year.

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PA Supreme Court to take up 'prior bad acts'

In 2016, as Bill Cosby’s legal team prepared for his sexual assault trial, the Pennsylvania Supreme Court heard a death row inmate’s appeal, according to The Crime Report.

Lawyers for Charles Hicks questioned whether three women who said he had beaten and choked them should have testified at his trial in a fourth woman’s death. Prosecutors hoped to show a pattern of “strikingly similar” conduct, even if only one woman died. The seven Supreme Court justices issued five separate opinions on the use of “prior bad act” testimony. That may explain why they are hearing Cosby’s appeal Tuesday, reports the Associated Press. 

The justices appear eager to clear up the law on when a jury should hear about someone’s past. Investigators say it can be crucial to show a signature crime pattern. Defense lawyers say it often amounts to character assassination. The debate has been central to the high-profile prosecutions of actor and comedian Cosby, movie mogul Harvey Weinstein and a Roman Catholic Church official in Philadelphia charged with protecting predator priests.

The issue “forces defendants to spend time fighting shadows of uncharged, sometimes unrelated accusations that never really became formal criminal charges,” said Philadelphia defense lawyer William Brennan, who was involved in the church trial. “It’s very distracting. You should focus on what you’re criminally charged with.” 

Cosby complains that Judge Steven O’Neill let five other accusers testify at his 2018 retrial, when he became the first celebrity convicted of sexual assault in the #MeToo era. His lawyers called the women gold diggers and their testimony lies. District Attorney Kevin Steele believes similarities in their accounts were no coincidence. Cosby, 83, has spent two years in prison since he was convicted of drugging and sexually assaulting Andrea Constand, a Temple University employee, at his suburban Philadelphia estate in 2004.

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MCN: Punditry and lawyering are two very different things

Matthew T. Mangino
More Content Now
November 27, 2020

President Donald Trump's campaign lawyers Rudy Giuliani and Sidney Powell have repeatedly made baseless claims of widespread voter fraud and, through a flurry of lawsuits challenging the results, may have run afoul of rules barring lawyers from making dishonest statements.

New York Congressman Bill Pascrell Jr. has filed complaints against Giuliani and 22 other lawyers in Arizona, Michigan, Nevada, Pennsylvania and New York alleging the lawyers engaged in “conduct involving dishonesty, fraud, deceit, or misrepresentation.”

He called the campaign legal team’s effort to overturn election results with frivolous lawsuits “misconduct and an affront to the rule of law.”

Giuliani, a former federal prosecutor and Mayor of New York City, made unsubstantiated claims in press conferences and media appearances about electoral fraud. If Giuliani would have restricted his conduct to news conferences and television interviews he might have avoided the scrutiny of judges and state bar authorities.

However, on the eve of an argument in front of a Pennsylvania federal judge, after three Trump lawyers withdrew from the case, Giuliani inserted himself as lead counsel. In Donald J. Trump for President, Inc. v. Boockvar, Giuliani asked the court to discard about 700,000 mail-in ballots.

Giuliani’s argument was devoid of any rational basis for success. His rambling presentation was lampooned by the legal community and met with derision by the judge. The claims were dismissed with a scathing judicial opinion.

Lawyers are not supposed to bring lawsuits that are frivolous, have no legal merit or are downright dishonest. All 50 states and the District of Columbia have legal ethics rules for lawyers that are derived from standards promulgated by the American Bar Association.

In Pennsylvania, the state follows the American Bar Association Model Rules of Professional Conduct. Pennsylvania Rule of Professional Responsibility 3.3 provides a lawyer is prohibited from making “a false statement of fact or law to a tribunal.”

Typically, a complaint is filed with the Disciplinary Board and an investigation ensues. If the state board believes there has been a potential breach of ethical conduct, a formal complaint is filed and hearing scheduled. An ethical violation can result in professional discipline - a reprimand, a temporary license suspension or disbarment.

On a federal level, judges can punish lawyers who fail to meet the ethical standards of candor or legitimate purpose. Federal Rules were established to deter lawyers from pursuing false, misleading or dilatory actions and authorize judges to punish such conduct.

Federal Rule 11 provides that a lawyer must assert that litigation “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

In Michigan another Trump campaign lawyer has been accused of crossing ethical lines.

Republican officials in Michigan initially refused to certify the election results, but quickly reversed themselves.

Mark “Thor” Hearne, a Trump campaign lawyer submitted a filing with the court claiming that Wayne County, Michigan officials “declined to certify the results of the presidential election.”

That statement was not true, and according to Reuters, Hearne acknowledged the same. Attorneys for the city of Detroit asked a judge to reprimand Trump’s campaign for spreading “disinformation” and to strike the document in question from the record as a sanction.

The Trump campaign has filed at least 36 lawsuits across the country relating to ballot tabulation. Now, some of Trump’s targets are fighting back. The NAACP Legal Defense and Educational Fund, Inc., a non-partisan civil and human rights organization, filed a lawsuit challenging the Trump campaign’s ongoing efforts to overturn the results of the presidential election by disenfranchising Black voters in Michigan.

According to the NAACP Education Fund website, the lawsuit claims that both the president and his campaign are in violation of the Voting Rights Act of 1965, by exerting pressure on state and local officials not to count or certify votes.

Joe Biden is the President-elect. Disinformation and meritless lawsuits, no matter how prodigiously filed and vigorously pursued, will not prevent Biden from being president on Jan. 20, 2021. That fact should not insulate those who flouted the rule of law from being 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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Crime Report: A Victory for Independent Courts

Matthew T. Mangino
The Crime Report
November 27, 2020

In the end justice prevailed.

America’s independent courts were the final line of defense against a want-to-be autocrat who intimidated, threatened and cajoled public officials in his ill-fated effort to hold onto power.

There have been at least 36 lawsuits filed by, or on behalf of, President Donald Trump’s campaign. Nearly every legal action was dismissed, withdrawn or settled. Judges of all political persuasions have ruled against the Trump campaign.

Thankfully, in this country it is not enough to run into court with bluster and bravado and intimidate a judge.

Thankfully, in this country judges don’t cave under political pressure.

Thankfully, judges in this country still demand that litigants present evidence to support their claims and make arguments that are supported by law and precedent.

While the leadership of the Republican Party in the House of Representatives and Senate sat silent, influential Republicans like the Secretary of State said a week after the election, “There will be a smooth transition to a second Trump administration.”

When the Attorney General authorized U.S. Attorneys to investigate election irregularities, judges in courts around the country stood tall.

U.S. District Judge Matthew Brann described a Pennsylvania case seeking to prevent state officials from certifying the results of the election as “strained legal arguments without merit and speculative accusations.”

Judge Brann said that he “has no authority to take away the right to vote of even a single person, let alone millions of citizens.”

“This claim, like Frankenstein’s Monster, has been haphazardly stitched together,” wrote Brann in his order dismissing the claim.

Three of Trump’s attorneys withdrew from the Pennsylvania case on the eve of the argument before Judge Brann. Attorneys Linda A. Kerns, John Scott and Douglas Bryan Hughes left the president’s legal team.

Kerns, Scott and Hughes were not the only attorneys involved in election suits to realize representing a client with neither the facts nor the law on their side can be risky business.

While much is made of Rudy Giuliani’s less-than-stellar performance and willingness to play hard and fast with the law and facts, lawyers are required to follow a strict code of professional responsibility established by state bars.

In Pennsylvania, where three of Trump’s lawyers jumped ship and Giuliani took the helm, the state follows the American Bar Association Model Rules of Professional Conduct. Pennsylvania Rule of Professional Responsibility 3.3 prohibits a lawyer from making “a false statement of fact or law to a tribunal.”

Lawyers are obligated to be truthful in everything they say to a court.

The president can tweet about all sorts of conspiracies, and his attorneys can promise all kinds of evidence outside the court; but once inside, the courtroom judges demand facts, they want law, and it doesn’t matter who the attorneys represent. That’s why Kerns, Scott and Hughes withdrew.

To make it clear, in another Pennsylvania suit where the Trump campaign was complaining that their poll watchers were being excluded from observing the ballot count, U.S. District Judge Paul Diamond—a conservative George W. Bush appointee—asked Trump’s lawyer if campaign observers were in fact present.

“There’s a nonzero number of people in the room,” the lawyer responded.

Judge Diamond, said he was “asking you [the lawyer] as a member of the bar of this court.” Uh-oh, that question has serious implications for that lawyer to whom it was posed. The lawyer quickly affirmed that Trump poll watchers were in the room.

Many have labeled the actions of Trump and his campaign as a “slow” coup d’état. We have heard time and time again that “President Trump is a threat to constitutional democracy.”

That threat has subsided for now. Inauguration day is about two months away.

U.S. General Services Administration chief Emily Murphy informed President-elect Joe Biden that her agency has formally ascertained him as the apparent winner of the 2020 election and will move ahead with transition proceedings.

The Constitution prevailed, due in no small part to an independent judiciary which expects, and demands, that lawyers act ethically and with candor in America’s courtrooms.

The court of public opinion is no court at all. Our government of checks and balances has guided us through the dark days of a would-be despot.

Matthew T. Mangino, a former district attorney of Lawrence County in Pennsylvania, is of counsel with Luxenberg, Garbett, Kelly & George P.C. He is the author of The Executioner’s Toll, 2010. His weekly syndicated column is distributed by GateHouse Media. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Trump pardons Flynn

President Donald Trump pardoned his former national security adviser Michael Flynn, ending a years long prosecution in the Russia investigation that saw Flynn twice plead guilty to lying to the FBI and then reverse himself before the Justice Department stepped in to dismiss his case, reported The Associated Press.

“It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon,” Trump tweeted. “Congratulations to @GenFlynn and his wonderful family, I know you will now have a truly fantastic Thanksgiving!”

The pardon, in the waning weeks of Trump’s single term, is part of a broader effort by Trump to undo the results of a Russia investigation that shadowed his administration and yielded criminal charges against a half-dozen associates. It comes just months after the president commuted the sentence of another associate, Roger Stone, days before he was to report to prison.

A Justice Department official said the department was not consulted on the pardon and learned Wednesday of the plan. But the official, who spoke on condition of anonymity to discuss internal deliberations, noted that the president has the legal power to pardon Flynn.

The move is likely to energize supporters who have taken up Flynn as a cause celebre and rallied around the retired Army lieutenant general as the victim of what they assert is an unfair prosecution, even though Flynn twice admitted guilt. Trump has repeatedly spoken warmly about Flynn and, in an indication of his personal interest in his fate, asked then-FBI Director James Comey in February 2017 to end a criminal investigation into the national security adviser.

In a statement, Flynn’s family thanked Trump “for answering our prayers and the prayers of a nation” by issuing the pardon.

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Mississippi continues to sentence juveniles to life without parole

Despite a U.S. Supreme Court ruling that life without parole should be “rare” for juveniles, Mississippi continues to sentence two-thirds of these teens to die in prison, according to the Mississippi Center for Investigative Reporting.

Since that 2012 decision, eight of a dozen Mississippi juveniles convicted of capital murder have received life-without-parole sentences. All but one are Black.

“We continue to devalue Black lives,” said Mississippi Sen. John Horhn, D-Jackson. “The courts say this sentence should be seldomly used, but we’re dead set on the practice of harsh punishment that began decades ago. Elected judges tend to be hell-bent on ruining people’s lives rather than offering pathways to redemption and rehabilitation.”

In 2012, the Supreme Court ruled in Miller v. Alabama that a life-without-parole sentence should not be mandatory for juveniles. Only “permanently incorrigible” juveniles should face such punishment, justices said. Four years later, the high court made that ruling retroactive.

On Nov. 3, the U.S. Supreme Court heard arguments on whether Brett Jones, who had just turned 15 when he stabbed his grandfather to death in Mississippi, was wrongly sentenced – then resentenced after the Miller ruling — to life without parole.

Jones’ attorney, David Shapiro, told justices that many states make findings of incorrigibility before delivering such a sentence and that Mississippi should, too.

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SCOTUS to hear two police misconduct cases

The U.S. Supreme Court granted certiorari for two cases focusing on alleged police misconduct, Caniglia v. Strom and United States v. Cooley, reported Jurist.

The Court will be focusing on issues with Fourth Amendment rights against unlawful search and seizure in Caniglia v. Strom, which arose after Rhode Island police confiscated Caniglia’s guns without a warrant while performing community caretaking duties. 

United States v. Cooley centers on whether a tribal police officer has the authority to detain and search a non-Native American on a public right-of-way for violations of state or federal law that were not apparent or obvious. This case comes after an officer of the Crow Tribe arrested Cooley in Montana in 2016 for illegal possession of drugs and guns.

Caniglia v. Strom and United States v. Cooley are expected to be argued in early 2021.

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Prosecutor asks to be removed from DOJ report on policing reform

A second local prosecutor asked the U.S. Justice Department to have his name removed from a controversial report on policing reforms, saying he feared it would fail to address systemic racism in the criminal justice system, reported Reuters.

Mark Dupree, the district attorney in Wyandotte County, Kansas, told U.S. Attorney General William Barr in a letter seen by Reuters he felt the work of the department’s special law enforcement commission had been “smothered by a pernicious political agenda.”

The commission started working before the May killing of George Floyd in Minneapolis, which sparked nationwide protests against racism and police brutality.

Dupree, an African American, is the second person who worked on the commission to resign.

He is also at least the third person involved with the commission known to voice concerns the Justice Department was not adequately considering feedback from all interested parties on improving policing practices in America.

“We have received Mr. Dupree’s letter and we respect his request,” a Justice Department spokesperson said in a statement.

“He was a valuable member of the working group on Reentry Programs and Initiatives and made important contributions to the Commission’s work.”

In October, a federal judge temporarily stopped the Justice Department from publishing the commission’s report, saying it had violated federal open meetings laws.

The ruling came after the NAACP Legal Defense and Educational Fund (NAACP LDF) sued the panel, alleging it lacked diverse membership, allowed police interest groups to have undue influence on the commission’s work, and failed to give ample access to open meetings.

The commission had planned to deliver a slate of proposals recommending sweeping new powers for police shortly before the November presidential election.

Attorney General William Barr in January said the commission would recommend best practices at a time when “criminal threats and social conditions have changed the responsibilities and roles of police officers.”

In draft chapters of the report seen by Reuters, it calls for bolstering due-process protections for officers accused of wrongdoing and expanding police surveillance powers. But it does not address any concerns about systemic racism in policing.

Earlier this month, the judge told the Justice Department it could only release the final report with a disclaimer saying it was written in violation of federal open meeting laws.

A court filing this week indicated the Justice Department may release the report in the coming weeks, though the NAACP LDF is still fighting for all drafts and internal communications to be made public.

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The dubious label 'superpredator' celebrates an anniversary

The term “superpredator” has been around for 25 years.  It made a resurgence during the 2020 presidential debates, but the reality is that  much of the harsh anti-crime legislation embraced by both parties in the 1990s continues to be a hot-button issue to this day, reported The Marshall Project.

From the moment the term was born, “superpredator” had a game-changing potency, derived in part from the avalanche of media coverage that began almost immediately.

 “It was a word that was constantly in my orbit,” said Steve Drizin, a Chicago lawyer who defended teenagers in the 1990s. “It had a profound effect on the way in which judges and prosecutors viewed my clients.”

An academic named John J. DiIulio Jr. coined the term for a November 1995 cover story in The Weekly Standard, a brand-new magazine of conservative political opinion that hit pay dirt with the provocative coverline, “The Coming of the Super-Predators.”

Then a young professor at Princeton University, DiIulio was extrapolating from a study of Philadelphia boys that calculated that 6 percent of them accounted for more than half the serious crimes committed by the whole cohort. He blamed these chronic offenders on “moral poverty … the poverty of being without loving, capable, responsible adults who teach you right from wrong.”

DiIulio warned that by the year 2000 an additional 30,000 young “murderers, rapists, and muggers” would be roaming America’s streets, sowing mayhem. “They place zero value on the lives of their victims, whom they reflexively dehumanize as just so much worthless ‘white trash,’" he wrote.

But who was doing the dehumanizing? Just a few years before, the news media had introduced the terms “wilding” and “wolf pack” to the national vocabulary, to describe five teenagers—four Black and one Hispanic—who were convicted and later exonerated of the rape of a woman in New York’s Central Park.

“This kind of animal imagery was already in the conversation,” said Kim Taylor-Thompson, a law professor at New York University. “The superpredator language began a process of allowing us to suspend our feelings of empathy towards young people of color.”

The “superpredator” theory, besides being a racist trope, was not borne out in crime statistics. Juvenile arrests for murder—and juvenile crime generally—had already started falling when DiIulio’s article was published. By 2000, when tens of thousands more children were supposed to be out there mugging and killing, juvenile murder arrests had fallen by two-thirds.

It failed as a theory, but as fodder for editorials, columns and magazine features, the term “superpredator” was a tragic success—with an enormous, and lasting, human toll.

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Now is the time for probation and parole reform

Matthew T. Mangino
More Content Now
November 20, 2020

The United States has less than 5% of the world’s population but 20% of the world’s incarcerated people. That is an alarming statistic but the problem in this country is about more than incarceration.

According to EXiT (Executive Transforming Probation and Parole) - a group of former community supervision executives - 4.4 million people are under some form of probation or parole supervision, more than twice as many people as are incarcerated. In the last 40 years, the number of people under community supervision has increased three-fold.

Recently, EXiT and a bipartisan group of over 50 current and former District Attorneys and state Attorneys General issued a statement challenging the efficacy of parole and probation.

Community supervision was created more than a century ago to manage offenders as an alternative to prison or as a supplement to help inmates transition back into the community.

According to The Crime Report, community supervision has now become “overly burdensome, punitive and a driver of mass incarceration, especially for people of color.” For example, while one in 58 adults in America are under probation and parole supervision, that proportion jumps significantly for blacks to one in 23.

“Far from being an aid to community reintegration as originally designed, community supervision too often serves as a tripwire to imprisonment,” the according to the DAs and parole executives who signed-off on the joint statement.

The American people are growing weary of probation and parole. According to recent polling by The Justice Collaborative Institute and Data for Progress, “voters want fewer people in jails and prisons, and fewer people subject to surveillance and control by law enforcement. Instead, they want probation and parole, to the extent they are used at all, to serve as true alternatives to incarceration, not additional means of law enforcement control that makes incarceration more likely.”

Rather than supporting people, today’s probation and parole programs set people up to fail and perpetuate cycles of incarceration. For instance, about 16% of New York City’s jail population is composed of people who were there on state parole violations, according to a report by Columbia University Justice Lab, and published by The Appeal.

A report from the Prison Policy Initiative found that as New York had reduced the number of people detained pretrial by double digits over the last four years, “only one population in the jail has increased, also by double digits: persons held in city jails for state parole violations.”

There are increasing burdens for people being supervised through probation and parole. They are often saddled with onerous supervision fees; required to make regular in-person appointments with a probation or parole officer; abstain from alcohol or drug use; and comply with curfews and strict travel restrictions.

Failure to comply with non-criminal conditions of supervision often leads to arrest and time in jail.

According to the joint statement, community supervision creates “a vicious cycle of reincarceration for people under supervision for administrative rule violations that would rarely lead someone not under supervision into prison.”

The residual effects of strict parole enforcement are enormous. About 45 % of people entering prison nationwide were on probation or parole when they were convicted. One in four people entering prison ended up there for failing to comply with supervision rules costing taxpayers $2.8 billion annually.

The prosecutors and parole executives who joined in the statement demanding reform are calling for common sense initiatives including shortening supervision terms, reinvesting the savings in reentry support and rethinking the collateral consequences of crime like housing exclusions, disenfranchisement and ineligibility for government assistance.

Recalibrating probation and parole can reduce incarceration, save money and, most importantly, help former inmates succeed on the streets.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Federal government carries out 8th execution of the year

The 15th execution of 2020

Orlando Hall was executed just before midnight on November 19, 2020 after the Supreme Court allowed the Justice Department to move forward with his federal death penalty.

Hall’s scheduled execution for 6 p.m. at the federal prison in Terre Haute, Ind., was delayed by several last minute legal filings that sought to halt his killing.

Hall, 49, became the eighth person executed by the U.S. government since the Trump administration pushed to resume federal executions for the first time in 17 years. The Justice Department has carried out more lethal injections in the past four months than the total number the federal government executed over the previous three decades.

The timing of the planned executions comes as President-elect Joe Biden is set to take office in January. Biden opposes the death penalty, and his campaign has said he will work to pass legislation to eliminate capital punishment at the federal level.

The Supreme Court order — which overturns a district judge’s earlier order the same day that had temporarily blocked Hall’s execution — follows legal battles over the Justice Department’s lethal-injection procedures announced by the Trump administration last year. Officials cited the need to carry out lawful death sentences and emphasized the nature of the crimes.

Hall was convicted of kidnapping, raping and murdering 16-year-old Lisa Rene in Arkansas in 1994. A second death-row inmate, Brandon Bernard, is set to be executed on Dec. 10, and also asked the court to delay his date. Bernard was convicted of killing two youth ministers on a military reservation in 1999.

In a separate case, a federal judge on Thursday postponed until at least Dec. 31 the execution of a third death-row inmate, Lisa Montgomery, who would be the first woman put to death by the federal government in nearly 70 years. U.S. District Judge Randolph D. Moss said Montgomery’s longtime lawyers, who became infected with the coronavirus after traveling to visit Montgomery in prison, should have time to recover to prepare her clemency application.

“The ongoing pandemic and the illness of Plaintiff’s long-serving, experienced counsel pose significant hurdles” to Montgomery’s effort to petition the president to commute her death sentence to life in prison.

Montgomery was convicted in 2007 of strangling a woman who was eight months pregnant and kidnapping the baby, who survived the attack.

If all three inmates are executed before the end of Trump’s term, there will be an estimated 52 prisoners remaining on federal death row, according to the Death Penalty Information Center.

John H. Blume, director of Cornell Law School’s Death Penalty Project, anticipates a change in policy once Biden takes office in January. Blume expects Biden will impose a moratorium on federal executions, call for a study of the death penalty, and depending on the outcome, commute some death row sentences to life sentences.

“It’s not a huge mystery,” Blume said. Biden and his attorney general “will have immediate control and I would think once the president-elect becomes president that federal executions will cease.”

The refusal to stop Hall’s execution on Thursday was not surprising. The Supreme Court has repeatedly turned down requests to block the Justice Department’s plans to resume executions.

In a filing to the Supreme Court, Hall’s attorneys told the justices that the government should not rush to execute a federal prisoner in the middle of a pandemic that makes it difficult for Hall to work with his legal team and seek clemency. Leaders of the Congressional Black Caucus also urged Attorney General William P. Barr to pause all scheduled executions, saying the process imposes “an unnecessary health risk” of a coronavirus outbreak by requiring officials to travel and gather at the prison facility in Indiana.

A spokeswoman for Barr declined to comment on the letter.

The Office of the Solicitor General asked the court to allow the execution to proceed.

“The public and the victim’s family have an overwhelming interest in implementing the capital sentence recommended by a jury a quarter-century ago against petitioner, who perpetrated a heinous series of crimes against a child, has had notice that he faces execution for the past 25 years, and has been able to file a clemency petition for the past 13 years,” the government said in its filing Thursday.

Attorneys for Hall and Bernard also asked the justices to halt the executions to give the court time to review fresh legal challenges to the lethal injection protocol that uses one drug, pentobarbital.

The D.C. Circuit ruled Wednesday that the government’s methods are unlawful because the Bureau of Prisons is using the drug without the required prescription. Although the appeals court set aside the government’s protocol, two of the three judges on the panel declined to block the upcoming executions.

The D.C. Circuit said the prisoners had not shown the requisite “irreparable harm” from the government’s failure to comply with the prescription requirement.

Lawyers for the prisoners told the justices that their clients will face “irreparable harm” if they are executed in a way that “greatly increases their risk of suffering excruciating pain before death.” Without a prescription and supervision by a medical professional, who could pair the drug with a separate pain-reliever such as fentanyl, the lawyers said the inmates’ risk of severe pain is increased.

Acting solicitor general Jeffrey B. Wall told the justices in a court filing there is no “logical basis” for stopping the executions after the court already rejected similar challenges. The death sentences before the court, he wrote, “were imposed for heinous federal crimes committed more than 20 years ago” and family members of the 16-year-old victim, he said, were waiting in Terre Haute to witness the execution.

The government says the prescription requirement in the law does not apply to lethal-injection drugs and the absence of a prescription does not create the type of harm that merits an injunction blocking the executions.

The prescription requirement is intended to ensure that drugs are “safe and effective,” but the government says, a lethal-injection drug could never meet that standard because “its intended use is to cause death to effectuate a capital sentence, not provide therapeutic benefits.”

Pentobarbital has “long been used for anesthesia and euthanasia without reports of severe pain” and states have used single-drug pentobarbital protocols to “ ‘carry out over 100 executions, without incident,’ ” according to the government.

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Public Defenders In D.C. sue U.S. Parole Commission

Dominique Davis has spent the last eight months in the D.C. Jail—the site of a large coronavirus outbreak in the spring—despite not being charged with a crime.

Davis was arrested in February on assault charges, but the U.S. Attorney’s Office dropped the case. But because Davis had been on parole when he was arrested, the U.S. Parole Commission still issued a warrant for his arrest.  Now, according to a lawsuit filed by the Public Defender Service in October, Davis is languishing in a legal limbo, reported dcist/WAMU. Because the pandemic has halted normal hearings, he is still waiting for the day when the commission will decide whether it will revoke his parole.

A spokesperson for the Parole Commission says the agency cannot comment on matters related to pending litigation, and added that in addition to criminal charges, someone on parole may remain in jail because they have a history of failing to report for supervision. But attorneys with the Public Defender Service say Davis’s situation is far too common during the pandemic.

As of September, public defenders say they were representing 45 people who are in similar situations. They say these clients remain in jail even though their charges have been dismissed, they have been determined eligible for release by a judge, or they have been “no-papered,” which means prosecutors didn’t charge them with the crime they were arrested for.

Before the pandemic, parole violations were a significant driver of incarceration in D.C, representing more than 14% of men and 8% of women in D.C.’s jails in April. Since March, though, the number of people held for violations has fallen by half. The U.S. Parole Commission says this is because it has been more carefully weighing the risks associated with jail time during the pandemic.

But defense attorneys say the reduction isn’t nearly enough. They say some of their clients are still being jailed over relatively minor parole violations, which the Parole Commission previously said it would limit. Further, they say the pandemic has brought legal delays that are keeping dozens of people in jail even after the charges brought against them have been dismissed, or a judge recommended they be released.

“Because of the pandemic, this group of people has been stuck at the DC jail, with no opportunity to challenge their imprisonment,” writes Rashida Edmondson, Acting Chief of the Parole Division of the Public Defender Service for the District of Columbia, in an email to DCist/WAMU. “There is no bail or bond that they can pay, and the [U.S. Parole] Commission’s refusal to release them effectively overrides the Court’s decision to either dispose of the case altogether, or to release the person while awaiting resolution.”

Parole can be revoked if a parolee commits a crime, or if they commit a technical violation. These include things like missing appointments with parole officers, not showing up to work or treatment programs, or not submitting a drug test on time. When an officer decides that a violation warrants notifying the U.S. Parole Commission, the Commission can bring the parolee into custody while it determines whether they will be released, lose their parole, or have their sentence extended.

According to data from CSOSA—the agency that supervises D.C. residents on probation and parole—most people do not ultimately end up having their parole revoked, but many await that decision while locked up. A recent report from The Prison Policy Initiative, a research group that advocates against mass incarceration, found that for people in the D.C. Jail whose most serious alleged offense was a parole violation, the average length of stay is nearly four months. Andrea Fenster, who authored the report, says this “could in some cases actually outlast even full misdemeanor sentences.” The report also found that in 2019, 40% of parole violations in D.C. deemed serious enough to notify the U.S. Parole Commission were due to missed appointments or other technical violations.

“Incarceration comes with this extreme loss of liberty, privacy and self-determination,” says Fenster. “Technical violations take all of that away for completely, entirely non-criminal behavior—things that don’t result in jail time for other people, like having irregular work or missing an appointment.”

When the coronavirus started spreading in the D.C. region, advocates called for the Parole Commission to reconsider its decisions to incarcerate people for parole violations. In particular, they asked the commission to reconsider jailing people for technical violations, because of the particular risk that the coronavirus poses in jails and prisons.

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PA Supreme Court rules against Trump campaign

The Pennsylvania Supreme Court ruled 5-2 that the Trump campaign’s election observers were not entitled to observe Philadelphia’s ballot counting at close range, reported Jurist.

Throughout the ballot counting process, Trump campaign observers were allowed to stand within 20 feet of election workers processing ballots. However, campaign lawyers claimed that this was not sufficient to allow “meaningful observation.”

The Trump campaign has used their “meaningful observation” argument in a number of post-election and mid-election filings, including in other battleground states such as Nevada. Pennsylvania’s law does not require “meaningful observation” and only requires that observers be allowed to be “present” while election workers process mail-in ballots.

The Trump campaign has argued that presence during ballot processing is insufficient unless their observers are allowed to be closer to the ballot processing. A Trump attorney who observed ballot processing in Philadelphia complained of not being close enough to read the writing on the ballots, according to the court’s ruling. Ultimately, the court ruled that the law did not require observation to require specific activities, such as reading ballots. Philadelphia’s ballot processing observation procedures were sufficient and complied with Pennsylvania law.

This lawsuit is another in a string of defeats for the Trump campaign, after failures in Michigan, Arizona and Nevada, among others. The US Department of Homeland Security has said that the 2020 election was “the most secure in American history.”

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Judge orders revamp of Missouri's 'unconstitutional' parole system

 In a decision that could further reduce Missouri’s prison population, a federal judge has ordered the state to overhaul its parole system, reported the St. Louis Post-Dispatch.

The order, spurred by a class-action lawsuit in 2017 by state prison inmates, requires the state’s Department of Corrections to implement over two dozen reforms related to the agency’s unconstitutional handling of parole revocation proceedings.

The lawsuit alleged that the current practices resulted in the unlawful reincarceration of thousands of people each year.

“These reforms should result in fewer people thrown back behind bars, and slow the churn at prison reception centers,” said Amy Breihan, co-director of the MacArthur Justice Center.

The 55-page order from U.S. District Judge Stephen R. Bough found the Department of Corrections has been intentionally failing to provide state-funded counsel to eligible parolees. The court ordered the department to ensure all eligible parolees have an attorney appointed for any proceeding to move forward.

The judge also ordered several other changes. While the agency previously would not disclose evidence against an individual until the hearing, officials are now required to provide evidence at least five days prior to a revocation hearing.

The court also wants the state to move faster on revocation hearings that have previously resulted in parolees waiting hundreds of days in detention.

“Having reviewed the evidence presented at the hearing and in the parties’ briefing on the matter, the court finds constitutional deficiencies in the current parole revocation process remain and issues this order to remedy such due process violations,” Bough wrote.

Corrections spokeswoman Karen Pojmann said the department had no comment on the order “at this time.”

One of the inmates who brought the lawsuit, Stephanie Gasca, 30, was eight months pregnant and had battled substance abuse and mental health challenges when she was taken into custody by parole officials and held in the Greene County Jail in June 2017. A parole warrant was issued after she left a residential drug treatment program.

Gasca was allegedly held in jail for several days without prenatal or mental health care. When a parole officer showed up, the officer apparently didn’t inform her of a right to counsel and led Gasca to believe it was in her best interest to answer questions and waive formal proceedings.

Instead of ending up on house arrest, as Gasca had hoped, she was transferred to the Women’s Eastern Reception and Diagnostic Center in Vandalia, where she gave birth to a boy.

“Countless parolees are reincarcerated every year while being denied their constitutional right to counsel during the process. To date, MDOC has largely washed its hands of that problem,” said Megan Crane, who also serves as co-director of the MacArthur Justice Center’s St. Louis office.

The decision could mean a further exodus of inmates from the state’s prison population, which has been dropping in recent years.

“That’s critically important to curbing the spread of COVID-19 in Missouri prisons and surrounding (often rural) communities, whose hospitals are already at capacity,” Breihan said.

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COVID-19 outbreak raging across federal prison system

The men at Fort Dix talk about COVID-19 like they’re in a combat zone. And in the war against the coronavirus, this former U.S. Army outpost in New Jersey is losing—badly.

Converted into a federal prison in the early 1990s, Fort Dix is now ground zero of a COVID-19 outbreak that has raged across the federal prison system since March, reported Vice. The 2,800 low-security prisoners currently housed in the compound’s old military barracks are sitting ducks.

With at least 229 prisoners and 12 staffers currently infected, Fort Dix has the most severe outbreak in the federal Bureau of Prisons. The BOP has not reported any deaths, but the prisoners fear it’s only a matter of time. 

“This building is a war zone,” said Troy Wragg, a 39-year-old epileptic who uses a wheelchair. Wragg was the lead plaintiff in a class-action lawsuit filed in May against the BOP, alleging dangerous conditions for medically-vulnerable Fort Dix prisoners. He made it through an earlier outbreak, only to test positive November 2. 

“It is filthy, people are ill, everyone is depressed, everyone looks like death,” Wragg said. “They are not giving us any medicine or treatments, and we were told that they were just going to ‘let this ride out, like they do on the street’ by the staff here.”

Other prisoners at Fort Dix also alleged a lack of adequate medical care, with staff only offering Tylenol for all but the most severe symptoms. Many described being housed in decrepit buildings plagued by mold, leaking pipes, and frigid temperatures.

“Right now, it's like living in a crack house in here,” one prisoner wrote to VICE News. “That’s how it feels, and I am from the streets of Dallas, Texas; I know how they look.”

Nine months into the pandemic, the coronavirus continues to spread unchecked across the federal prison system. At least 135 prisoners and two staffers have died, and the BOP has officially recorded more than 21,000 total infections, including over 3,000 “active” cases.

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Four out of Five Americans say crime is on the rise

Nearly 80 percent of Americans say that crime has increased over the past year, according to a Gallup poll released Friday, as reported by The Hill.

The survey of 1,053 adults found that 78 percent of Americans surveyed say that there is more crime in the U.S. than there was a year ago, up 14 points from a similar poll conducted by Gallup last year. 

The poll found that the increase in perceptions of crime was largely driven by Republican respondents, 83 percent of whom say crime has increased. Meanwhile, 73 percent of Democrats polled said that crime had increased. 

Gallup pointed to Republicans highlighting looting and violence erupting at some racial justice protests earlier this year following the police killing of George Floyd as a possible reason for the increase.

Fifty-one percent of those surveyed said the issue of crime is “extremely” or “very serious.” 

Meanwhile, only 38 percent of Americans said there is less crime in their local area than there was a year ago. In addition, 29 percent of respondents said they would be afraid to walk within their local area alone at night. 

Gallup noted that in recent years, Americans’ perception of crime has been out of sync with federal crime statistics that have shown crime decreasing. The official crime statistics for 2020 will be released next year. 

The poll surveyed 1,053 adults between Sept. 30- Oct. 15. It has a margin of error of plus or minus 4 percentage points.

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GateHouse: President-elect Biden’s criminal justice reform agenda

Matthew T. Mangino
GateHouse Media
November 13, 2020

Soon after entering the Democrat presidential primaries, Joe Biden apologized for his role in shepherding draconian anti-crime legislation through the Congress in 1994.

Here are five things a Biden administration can do to address criminal justice reform.

1. Death penalty

Attorney General William Barr oversaw the most federal executions of any administration in more than a half a century. After a 17-year hiatus, the federal government has executed seven prisoners this year, with three more scheduled before the end of the year.

Biden made eliminating the death penalty part of his criminal justice platform. A Biden attorney general could stop federal executions immediately. Biden could not intervene in state executions, but he could incentivize the abolition of the death penalty by tying federal criminal justice funding to eliminating the death penalty.

2. Qualified immunity

In the wake of nationwide protests inspired by the killing of George Floyd by a Minneapolis police officer, the doctrine of qualified immunity has come under increasing scrutiny. Qualified immunity shields government officials from most lawsuits.

Qualified immunity is rooted in a series of Supreme Court decisions finding that government officials will do their jobs less efficiently and with less enthusiasm if the threat of a lawsuit looms over them.

According to Vox, the Supreme Court justified qualified immunity by finding it ensures that the stresses of litigation won’t divert “official energy from pressing public issues,” and that concerns about being sued won’t deter “able citizens from acceptance of public office.”

Biden has an opportunity to examine how the nuances of qualified immunity can be balanced with rights of individuals.

3. School-to-prison pipeline

A representative of the U.S. Justice Department’s Office of Juvenile Justice and Delinquency Prevention described the school-to-prison pipeline as “the pervasive use of court referrals as a means of disciplining kids in school.”

According to the Washington Post, more than 3 million students each year are suspended or expelled from school across the United States. Federal data, though limited, reveals that more than 240,000 students were referred to law enforcement.

Left unsupervised during the day, without anything constructive to do, students are more likely to get arrested, go to jail, or ultimately drop out of school. According to a 2011 study from the Council of State Governments, students who have been suspended or expelled are twice as likely to repeat their grade and three times as likely to end up in the juvenile justice system—within a year—compared to similar students at similar schools.

A replacement for Education Secretary Betsy DeVos will have a lot to do, but the school-to-prison pipeline should be at the top of the list.

4. Mass incarceration

According to the Marshall Project, crime prevention was a central feature of Biden’s criminal justice plan. He has pledged to set aside $20 billion in federal funding to states that adopt evidence-based crime prevention programs and that opt for diversion programs over incarceration.

Under Biden’s plan, states would have access to federal funding if they agreed to implement programs designed to keep people out of prison.

5. Bail reform

There are 450,000 people sitting in local jails having been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.

Bail serves two purposes: To guarantee that defendants appear for court, and to protect the public from those who are a potential threat.

A recent study in Maryland found that people arrested in the state from 2011 to 2015 paid combined bail premiums of more than $256 million. Those who use the services of a bail bond company do not get back any of the money paid. More than 25 percent of that money was paid by people who were acquitted or never faced trial.

Sadly, the presidential transition is off to a slow start, but there is a whole lot of data and research on criminal justice issues to allow the new administration to hit the ground running.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Trump election lawyers repeatedly rebuked by judges

Lawyers representing President Donald Trump's campaign and the GOP are facing some close questioning by exasperated judges trying to pin them down on claims of election irregularities, reported the ABA Journal.

The result: Lawyers repeatedly have been rebuked by judges for their arguments, the Washington Post reports.

In one of the most-cited examples, U.S. District Judge Paul Diamond of Philadelphia questioned campaign lawyer Jerome Marcus about claims that GOP observers weren’t allowed to watch the ballot count in Philadelphia. CNN had covered the hearing.

Under questioning, Marcus conceded there were “a nonzero number of people in the room.”

“I’m sorry, then what’s your problem?” Diamond responded.

The Post cites another example involving lawyer Jonathan Goldstein, who was representing the Trump campaign in a lawsuit seeking the exclusion of nearly 600 mail-in ballots in Montgomery County, Pennsylvania, for deficiencies. Newsweek had coverage.

The judge told Goldstein he read the petition, and asked him to confirm he isn’t claiming any fraud. Goldstein replied: “Your Honor, accusing people of fraud is a pretty big step. And it is rare that I call somebody a liar, and I am not calling the Board of the [Democratic National Committee] or anybody else involved in this a liar. Everybody is coming to this with good faith. The DNC is coming with good faith. We’re all just trying to get an election done. We think these were a mistake, but we think they are a fatal mistake, and these ballots ought not be counted.”

The judge replied: “I am asking you a specific question, and I am looking for a specific answer. Are you claiming that there is any fraud in connection with these 592 disputed ballots?”

“To my knowledge at present, no,” Goldstein replied.

The judge pressed on. “Are you claiming that there is any undue or improper influence upon the elector with respect to these 592 ballots?”

“To my knowledge at present, no,” Goldstein replied.

A third example cited by the Post involves the Trump campaign’s bid to stop counting some ballots in Detroit, based on a GOP poll watcher who said she was told by an unidentified person that some late-arriving ballots were being backdated to before Election Day so they could be counted. The Detroit Free Press and MLive.com had coverage here and here.

Judge Cynthia Stephens said the information was hearsay, but lawyer Thor Hearne argued to the contrary. He pointed to a sticky note received by the poll watcher that said, “Entered receive date as 11/2/20 on 11/4/20.”

“So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct?” Stephens asked.

“The affiant had direct firsthand knowledge of the communication with the elections inspector and the document they provided them,” Hearne replied.

“OK, which is generally known as hearsay, right?” the judge responded.

“I would not think that’s hearsay, Your Honor,” Hearne said. “That’s firsthand personal knowledge by the affiant of what she physically observed. And we included an exhibit which is a physical copy of the note that she was provided.”

The judge later issued a decision calling the argument “inadmissible hearsay within hearsay.”

“The common thread running through all of these,” the Post said, “is that Trump’s lawyers are regularly offering a significantly more watered-down version of Trump’s claims about rampant voter fraud—because they, unlike Trump, have to substantiate their claims. And as these exchanges show, it’s a rather thankless task that can quickly land them on a judge’s bad side.”

The Associated Press is keeping track of the litigation. At least 17 election lawsuits have been filed by the Trump campaign and allies. The “barrage of lawsuits” has not come close to proving issues that would call into question the election of Joe Biden, the story says.

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