Friday, April 30, 2021

President Biden pledges $900 million to gun violence prevention

Gun violence plays out every single day in Black and brown communities across the United States — where homicide is the leading cause of death for Black boys and men and the second leading cause for young Latino men, wrote Fatimah Loren Dreier and David Muhammad in the Washington Post. The hardest hit are young Black men ages 15 to 34, who make up just 2 percent of the population yet account for an astounding 37 percent of all gun homicide victims. Much of this violence stems from systemic racism that has led to pervasive inequalities such as poverty, barriers to health care, and insufficient educational and economic opportunities.

Over the past 20 years, while the rest of the country has largely ignored their plight, communities of color and their allies have taken matters into their own hands. With few resources but a wealth of dedication and ingenuity, they have devised a slate of innovative strategies that — if effectively implemented and adequately funded — could end the scourge of cyclical gun violence.

Though the specifics may vary, evidence suggests that the most effective approaches integrate a range of coordinated strategies that identify individuals at greatest risk of violence, leverage credible messengers who coordinate wraparound services, and monitor healing and growth through long-term engagement. Examples include street outreach, hospital-based violence intervention, the Oakland Gun Violence Reduction Strategy, Peacemaker Fellowships, community-based public safety and targeted trauma-informed care.

President Biden pledged to support these efforts through a $900 million investment over eight years. Shortly after he took office, his director of domestic policy, Susan Rice, met with leaders of community violence intervention organizations, who argued for a $5 billion, eight-year investment in cities plagued by the highest rates of gun violence. Last month, Biden released his American Jobs Plan, which calls on Congress to make the $5 billion investment proposed by advocates. And in a Rose Garden ceremony this month, he announced changes to 26 grant programs that will direct an additional $1 billion in vital support to violence intervention in Black and brown communities.

Biden’s actions to support community violence intervention are truly historic. Now, Congress must pass the president’s American Jobs Plan — including the $5 billion investment in community violence intervention. Instead of more heartbreaking tragedies and shocking statistics, let’s put these young men on the path to a better, more peaceful life.

To read more CLICK HERE


Thursday, April 29, 2021

Felony murder no longer life without parole in Colorado

Colorado Gov. Jared Polis signed into law a bill that reforms Colorado's felony murder statute, reported The Denver Post.

Under the prior law, there were six felony crimes that could have lead to a felony murder: burglary, robbery, arson, kidnapping, escape and sexual assault.

Felony murder carries an automatic sentence of life in prison without parole. That penalty could be imposed even if the person who was convicted did not directly kill another person.

"That person could merely be a person who was the driver of a car who didn’t even know his partner, his associate was going to go in and commit a murder," said Senator Pete Lee, D-Colorado Springs, one of the sponsors.

Under the new law, the sentence would be 16 to 48 years in prison. The measure is not retroactive, and Lee said it would not apply to cases that have already been through the judicial system.

To read more CLICK HERE

Wednesday, April 28, 2021

Evan Miller of 'Miller v. Alabama' fame will spend the rest of his life in prison

Evan Miller, the Alabama prisoner whose plea before the U.S. Supreme Court gave hope to others across the nation of one day getting paroled for murders they committed as juveniles, won’t get that chance himself.

Lawrence County Circuit Judge Mark Craig on Tuesday afternoon re-sentenced Miller to life without parole for his capital murder conviction in the 2003 brutal slaying of Cole Cannon. Miller was 14 years old at the time, according to AL.Com. The hearing was held via Zoom with Miller appearing remotely from prison due to COVID-19 restrictions.

In resentencing him to life without parole, the judge said he did consider Miller’s past exposure to violence; a history that he and two siblings were abused, beaten, and whipped; his use of drugs; and his mental health history, that included multiple suicide attempts - one attempt early as age of 5 or 6 years old.

Miller was 14 at the time of Cannon’s death in 2003 and spent several year in jail awaiting trial. His attorneys have said he is the youngest child ever sentenced to life without parole in the state of Alabama. He is represented in his appeals by the Montgomery-based Equal Justice Initiative.

In 2005 the U.S. Supreme Court ruled that juvenile killers can’t be sentenced to death. That left many states, including Alabama, with only one option for sentencing juveniles convicted of capital murder - life with no chance at parole.

Because that sentence was in essence automatic - or mandatory - for juveniles convicted of capital murder, there was no need for a sentencing hearing to reveal any mitigating factors, such as age and maturity of the defendant.

But the U.S. Supreme Court in 2012 ordered Miller be re-sentenced and in separate case in 2016 ruled it retroactively applied to all inmates in similar circumstances - precedent-setting rulings affecting about 2,000 inmates nationwide who were juveniles when they killed.

Craig held a hearing in March 2017 to determine whether Miller should again be sentenced to life without parole or get a chance at one day of being paroled. But the judge did not issue a ruling at that time.

To read more CLICK HERE

Tuesday, April 27, 2021

SCOTUS will decide case on carrying guns in public

The Supreme Court said that it would review a longstanding New York law that imposes strict limits on carrying guns outside the home, setting the stage for its first major Second Amendment decision in more than a decade — and the first to be decided by the court’s newly expanded conservative majority, reported The New York Times.

The move came after a recent spate of mass shootings, which were followed by calls from President Biden and other Democrats for stricter restrictions on firearms. Scholars who study gun rights said a ruling striking down the New York law could undermine those efforts and have broad national implications.

“The ruling will profoundly impact the number of guns legally carried on the streets of New York, Los Angeles and Boston,” said Adam Winkler, a law professor at the University of California, Los Angeles, and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.”

“In these cities, only a handful of residents have permits to carry firearms,” he said.

The Supreme Court has turned down countless Second Amendment appeals since it established an individual right to keep guns in the home for self-defense in 2008 in District of Columbia v. Heller.

To read more CLICK HERE

Monday, April 26, 2021

Foul-mouthed cheerleader ends up before SCOTUS on important First Amendment issue

Fourteen-year-old Brandi Levy was having that kind of day where she just wanted to scream. So she did, in a profanity-laced posting on Snapchat that has, improbably, ended up before the Supreme Court in the most significant case on student speech in more than 50 years, reported The Age.

At issue is whether state schools can discipline students over something they say off-campus. The topic is especially meaningful in a time of remote learning because of the coronavirus pandemic and a rising awareness of the pernicious effects of online bullying.

Arguments are on Wednesday, via telephone because of the pandemic, before a court on which several Supreme Court justices have school-age children or recently did.

The case has its roots in the Vietnam-era case of a high school in Des Moines, Iowa, that suspended students who wore armbands to protest the war. In a landmark ruling, the Supreme Court sided with the students, declaring students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”.

Ever since, courts have wrestled with the contours of the decision in Tinker v. Des Moines in 1969.

Levy’s case has none of the lofty motives of Tinker and more than its share of teenage angst.

Levy and a friend were at a convenience store in her hometown of Mahonoy City, Pennsylvania, when she took to social media to express her frustration at being kept on her high school’s junior varsity cheerleading squad for another year.

“F——— school f——— softball f——— cheer f——— everything,” Levy wrote, in a post that also contained a photo in which she and a classmate raised their middle fingers.

The post was brought to the attention of the team’s coaches, who suspended Levy from the cheerleading team for a year.

Levy, now 18, is finishing her freshman year in college. “I was a 14-year-old kid. I was upset, I was angry. Everyone, every 14-year-old kid speaks like that at one point,” she said in an interview with The Associated Press.

Her parents knew nothing about the Snapchat post until she was suspended, she said. “My parents were more concerned on how I was feeling,” Levy said, adding she wasn’t grounded or otherwise punished for what she did.

Instead, her parents filed a federal lawsuit, claiming the suspension violated their daughter’s constitutional speech rights.

Lower courts agreed and restored her to the cheerleading team. The 3rd US Circuit Court of Appeals in Philadelphia held that “Tinker does not apply to off-campus speech.” The court said it was leaving for another day “the First Amendment implications of off-campus student speech that threatens violence or harasses others”.

But the school district, education groups, the Biden administration and anti-bullying organizations said in court filings that the appeals court went too far.

Philip Lee, a University of District of Columbia law professor who has written about regulation of cyberbullying, said it makes no sense to draw the line on policing students’ speech at the edge of campus.

“Most cyberbullying content is created off campus on computers, iPads, all kinds of electronic devices,” said Lee, who joined a legal brief with other education scholars that calls for a nuanced approach to regulating student speech in the Internet age.

“But at same time, you don’t want situation where schools are monitoring everyone’s speech at home,” he said.

The Mahanoy Area School District declined to comment on the case, its lawyer Lisa Blatt said.

But in her brief for the district, Blatt wrote, “This case is about how schools address the bad days.”

Schools should not be forced “to ignore speech that disrupts the school environment or invades other students’ rights just because students launched that speech from five feet outside the schoolhouse gate,” Blatt wrote.

The school’s approach would allow educators to police what students say round the clock, said Witold “Vic” Walczak of the American Civil Liberties Union, which is representing Levy.

“And that is super dangerous. Not only would students like Brandi not be able to express non-threatening, non-harassing bursts of frustration, but it would give schools the possibility of regulating important political and religious speech,” Walczak said.

An unusual alliance of conservative and liberal interest groups has formed behind Levy, all pointing to the dangers of expanding school regulation of students speech.

The Alliance Defending Freedom and Christian Legal Society urged the court to affirm the appellate ruling because of “the perils of schools regulating off-campus speech. Religious speech, in particular, provokes debate and inflames passions”.

Mary Beth and John Tinker, the siblings at the centre of the 1969 case, also are on Levy’s side. Their protest, updated for the digital age, would have included a social media component, perhaps a black armband digitally imposed on their school’s logo, they wrote in a high-court brief.

The outcome proposed by the school district would have left them subject to discipline, the Tinkers wrote.

Walczak, the ACLU lawyer, acknowledged that the “speech here is not the most important in the world. This isn’t political or religious speech.”

But Levy’s outburst has made her a potential successor to the Tinkers and their antiwar protest from the 1960s.

“I’m just trying to prove a point that young students and adults like me shouldn’t be punished for them expressing their own feelings and letting others know how they feel,” Levy said.

To read more CLICK HERE

Sunday, April 25, 2021

Supreme Court pulls back on juvenile life without parole

The US Supreme Court in Jones v. Mississippi pulled back on a trend of the court showing compassion for juvenile offenders.

The court ruled when sentencing juvenile defendants to life imprisonment without the possibility of parole, judges need not make a separate factual finding concerning the defendant’s youth, reported Jurist. 

The challenge came from Brett Jones, who was convicted in 2004 of killing his grandfather at age 15. Jones argued that under two of the court’s recent decisions, 2012’s Miller v. Alabama and 2016’s Montgomery v. Louisiana, judges could only sentence juvenile defendants to life imprisonment if they made a separate factual finding that the defendant could not be rehabilitated.

The court’s six conservative justices disagreed. In the opinion authored by Justice Brett Kavanaugh, the majority held that Miller and Montgomery imposed no such requirement. Instead, under Miller, a sentencing judge must only “consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence.” Montgomery only held that Miller “applied retroactively on collateral review.” It did not impose any new requirements. If the court had intended to require “a factual finding of permanent incorrigibility” it would have “could have” and “would have said so,” but it did not.

The court also declined to impose a new rule requiring judges to find juvenile defendants incorrigible before sentencing them to life imprisonment, because “it would be all but impossible for a sentencer to avoid considering” youth under the current rule. Kavanaugh also noted that the Eighth Amendment had not been violated because Jones’s life-sentence “was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones’s youth.”

In her dissenting opinion joined by Justices Elena Kagan and Stephen Breyer, Justice Sonia Sotomayor stated that the majority opinion “twists precedent” and “distorts Miller and Montgomery beyond recognition.” While Miller does not “require sentencers to invoke any magic words,” sentencing judges must still decide whether the defendant is “one of those rare children whose crimes reflect irreparable corruption.” Even if the court had “doubts” about that rule, they should have provided “special justification” before overruling Miller and Montgomery, which they failed to do:

To read more CLICK HERE

Saturday, April 24, 2021

Mangino talks about Derek Chauvin trial on KDKA Radio

 Listen to my interview with Robert Mangino on KDKA regarding the Derek Chauvin Trial.

To listen to the interview CLICK HERE

MCN/USA TODAY Network: Stoking expectations for a lengthy Chauvin’s sentence

Matthew T. Mangino
April 24, 2021

Jurors in Minnesota took little more than 10 hours to convict Derek Chauvin of killing George Floyd. Guilty on all counts, offering a quick and decisive verdict in a case that riveted the nation.

The speedy result, announced in that Minneapolis courtroom, further highlights the unusual nature of Derek Chauvin’s prosecution and the exceedingly rare instance of a police officer on trial. The activation of National Guard troops and big city police on high alert intensified the fear—in the face of overwhelming evidence—the public had that Chauvin would be found not guilty.

Floyd’s death was depressingly familiar—the latest in a string of deaths at the hands of police—yet it was also an exceptional case. Brave onlookers knowing what they were seeing was a crime, videotaped the incident, showing Chauvin’s apparent “calm indifference” as he slowly squeezed the life out of Floyd, wrote David A. Graham of The Atlantic. “Condemnation came quickly—not only from many longtime critics of police violence and from ordinary citizens, but also from law-enforcement officers of all ranks around the country,” wrote Graham.

Law enforcement officers kill about 1,000 people a year across the United States. Since the beginning of 2005, 121 officers have been arrested on charges of murder or manslaughter in on-duty killings, according to data compiled by Philip M. Stinson, a criminal justice professor at Bowling Green State University in Ohio. Of the 95 officers whose cases have concluded, 44 were convicted, but often of a lesser charge, Stinson told the New York Times.

In this rare instance a police officer has been convicted of murder while on duty.  The conviction resulted in a collective sigh of relief from big cities to tiny hamlets across the country. There were no violent protests, no riots, violence or unrest.  Americans, from the President to John Q. Public, thought the jury’s verdict was correct and justice was served.

In the aftermath of this historic verdict, it would be smart to pause and consider what would be the prudent way forward.  The verdict may be the impetus for meaningful reform. That momentum may be thwarted by the perception of a “lenient” sentence for Derek Chauvin. His sentence is scheduled for about eight weeks and already the media and talking-heads keep promoting the idea that Derek Chauvin could face 40 years in prison.  Forty years in prison is unlikely and here is why.

A 2019 Prison Policy Institute report indicated that Minnesota has consistently ranked in the top five of American states with the lowest imprisonment rate. Minnesota has been ranked in the top five every year but one between 1980 and 2016.

The reason for the consistent low terms of imprisonment is, in part, because Minnesota, like a majority of states, has sentencing guidelines.  That means a sentence imposed by a judge is not solely within the discretion of the judge.

The guidelines consist of a grid with two values, the prior history score and severity score.  A defendant with a history of criminal convictions will receive a score from one to six.  Every crime in Minnesota receives a severity score from one to eleven. The presumptive range of sentence is determined by where the two values meet on the grid.

Derek Chauvin has no prior record.  Second degree murder scores a 10 on the severity scale.  The range of sentences would be a minimum of 73 months to 103 months.

According to the Minnesota Sentencing Guidelines, judges are required to comply with the presumptive sentencing ranges.

However, the rules define a process through which a court may deviate from the guidelines known as a “departure.” If there’s a compelling reason to support a departure, the judge may impose a sentence higher or lower than the presumptive range.

A sentence may be increased if the court finds the presence of aggravating circumstances. Conversely, the judge may reduce a sentence based on mitigating circumstances. Based on the guideline, getting anywhere near 40 years seems unlikely.

Chauvin’s conviction can be a watershed moment in policing reform, but unrealistic expectations regarding sentencing could lead to disappointment, distrust, or worse, unrest.

(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



Thursday, April 22, 2021

The conviction of a police officer for on-duty killing exceedingly rare

According to The New York Times, law enforcement officers kill about 1,000 people a year across the United States. Since the beginning of 2005, 121 officers have been arrested on charges of murder or manslaughter in on-duty killings, according to data compiled by Philip M. Stinson, a criminal justice professor at Bowling Green State University in Ohio. Of the 95 officers whose cases have concluded, 44 were convicted, but often of a lesser charge, he said.

Convictions include cases like the killing of Laquan McDonald in Chicago, for which Jason Van Dyke was sentenced to nearly seven years in prison, and the killing of Justine Damond in Minneapolis, for which Mohamed Noor was sentenced to 12.5 years.

Many officers who avoided criminal convictions have been fired, like three of the other officers in the McDonald case, and Daniel Pantaleo, who used a chokehold on Eric Garner on Staten Island.

More recently, officers involved in the deaths of Mr. Floyd in Minneapolis and Rayshard Brooks in Atlanta have been swiftly indicted on murder charges. Mr. Brooks’s case in particular appears to reflect changing standards; because he grabbed and fired an officer’s Taser before he was killed, several experts said they doubted charges would have been brought had the death occurred before the wave of protests and police scrutiny that followed Mr. Floyd’s death.

But two cases do not prove that prosecutors have grown more willing — or have yielded to increased pressure — to hold officers criminally accountable. Professor Stinson said any such uptick is so far statistically insignificant. And several equally high-profile investigations of police killings have resulted in no indictment.

To read more CLICK HERE

Wednesday, April 21, 2021

Guilty on all Counts!

Former Minneapolis Police officer Derek Chauvin was convicted Tuesday on all counts in the death of George Floyd, whose killing sparked worldwide protests and a reckoning on race in the U.S., reported CBS News. After about a day of deliberations, the jury found Chauvin guilty of unintentional second-degree murder, third-degree murder and second-degree manslaughter. 

Judge Peter Cahill read the verdict at the heavily secured Hennepin County Government Center in downtown Minneapolis, where the trial began last month. A cheer could be heard from the crowd of peaceful protesters that had gathered outside.   

Chauvin showed little reaction after the verdict was announced. Judge Cahill announced his bail had been revoked and Chauvin was led away in handcuffs. 

Cahill said sentencing will take place in about eight weeks.  

The jury — made up of six White people, four Black people and two multiracial people — heard 13 days of sometimes emotional testimony.  The jury was sequestered during deliberations, but was not sequestered during the earlier portion of the trial.

To read more CLICK HERE

Tuesday, April 20, 2021

Mangino comments on Derek Chauvin guilty verdict

Watch my interview on WFMJ-TV21 Evening News on the Derek Chauvin guilty verdict in the death of George Floyd.

To watch the interview CLICK HERE

Jury continues to deliberate in Derek Chauvin trial

The fate of Derek Chauvin, the former Minneapolis police officer accused of killing George Floyd, is now in the hands of jurors, who will continue to deliberate today in the landmark case that forced a national debate on race and policing, reported the Washington Post.

The eyes of the nation are focused on Minneapolis and bracing for the outcome of the verdict, remembering how Floyd’s death touched off weeks of civil unrest in the United States and brought millions into the streets worldwide in protests for social justice.

The jury of 12 people — six White, four Black and two multiracial — listened to nearly six hours of closing arguments Monday as the prosecution and defense ended the case just as they began three weeks ago, presenting vastly different views of the circumstances that led to Floyd’s Memorial Day death on a Minneapolis street.

To read more CLICK HERE

Monday, April 19, 2021

Supreme Court complicit in structural racism

Nancy Gertner a retired federal judge in Boston and a law professor at Harvard and Dean Strang a criminal defense lawyer in Madison, Wis., and a law professor at Loyola University Chicago, write in The Boston Globe:

Caron Nazario had a newly purchased SUV with a temporary plate taped to the back of the vehicle, properly and lawfully, until his new plates arrived. Daunte Wright had an expired license plate and an air freshener hanging from his rear view mirror. Police officers in both situations said that’s why they were stopped. Nazario was held at gun point and pepper sprayed, but survived. Wright, who had an open arrest warrant for missing a court appearance on a misdemeanor charge, was fatally shot by police.

Although Nazario’s stop happened last December, in rural Virginia, and Wright’s last Sunday, in suburban Minnesota, the patterns are clear. Both are Black men. Both were stopped for minor traffic offenses, or for no offense at all.

Of course, we don’t know the actual intentions of the police officers who stopped both men. We don’t know what racial attitudes or suspicions or anger they harbored, if any.

But that is the point: According to the Supreme Court, the real reason for the stop — even if it was blatant racism — doesn’t matter. The court’s 1996 decision in Whren v. United States held that a traffic stop is lawful if police can come up with some traffic infraction to justify it, however trivial. The subjective intentions of the police — which could be the real reasons for the stop — are irrelevant.

Whren v. United States marked one of those moments in this nation’s history when law reinforced structural racism, when the highest federal court cemented racism more firmly into place. The court knew what it was doing. The briefs included arguments about the probable impact of upholding pretextual stops, backed by statistics and the undeniable, lived experience of Black citizens. Allowing such stops would be to reinforce and insulate racial biases in policing. The court upheld the lower court’s decision anyway.

Wait, you say. There still has to be a traffic violation or at least reasonable suspicion of one. True. But state and local traffic codes are filled with minor, noncriminal infractions — many of them having no serious relation to safety — that a police officer plausibly can stop almost anyone. Fail to make a complete stop at a stop sign? We all do it, but police can stop you if they wish. Have your car window open and the radio on too loud for an officer’s taste? You can be stopped. A decal on your back window? That might obstruct your vision; you can be stopped. Indeed, stopping a car for things like an air freshener (obstructing the driver’s vision) makes Black and brown drivers and their passengers vulnerable to the needless indignity of traffic stops that are more about snooping — and to search a car and its occupants — or worse, harassing.

Moreover, the police don’t even have to be correct when they say that you were violating a traffic or vehicle code rule. They just have to prove to a judge that they were honest in their initial suspicion. Thanks to another Supreme Court case, a police officer who purports to enforce traffic laws can be wrong about those laws, if the mistake was in “good faith,” a “whoops” defense available to no other citizen. That’s cold comfort to Caron Nazario, who was driving lawfully but wound up handcuffed on his stomach on the pavement. Moments earlier, the officer told Nazario that “you’re fixin’ to ride the lightning, son!” — a reference to the electric chair — and that he “should be afraid” to get out of the car, which was what the police had ordered Nazario to do.

Even when wrong, if police can clear the low hurdle of reasonable suspicion of some traffic infraction — something the least creative or experienced of them can do — they can pursue their hunches to investigate anyone. The Supreme Court has also relaxed the standards for constitutional searches under the Fourth Amendment when traffic stops are involved.

So says the nation’s highest court. But of course, police departments don’t have to take every opportunity for abuse or high-handedness that the Supreme Court offers. By internal policy, they could reject Whren and limit traffic stops to actual violations that threaten public safety. Likewise, unless and until the Supreme Court reverses its decision in Whren, state courts could decline to follow it under their state constitutions. While Whren remains the law of the land, it need not remain the practice.

To read more CLICK HERE

Sunday, April 18, 2021

Closing arguments tomorrow in trial of Derek Chauvin charged in the death of George Floyd

Testimony in the murder trial of former Minneapolis police officer Derek Chauvin ended Thursday with Chauvin invoking his constitutional right not to testify and a prosecution expert briefly taking the witness stand. Jurors are likely to begin deliberating Monday, reported the Minneapolis Star-Tribune.

Closing arguments are scheduled for Monday, moving the trial into its seventh week. Jurors will be immediately sequestered for deliberations as they consider the charges facing Chauvin in the May 25 death of George Floyd — second-degree murder, third-degree murder and second-degree manslaughter.

"I will invoke my Fifth Amendment privilege today," Chauvin told the court Thursday morning. The Fifth Amendment protects against self-incrimination.

Chauvin's brief remarks in response to questions from his attorney, Eric Nelson, and Hennepin County District Judge Peter Cahill were the most he's spoken publicly since kneeling on Floyd's neck for about 9 ½ minutes last year when arresting him for using a fake $20 bill to buy cigarettes.

Chauvin took off a blue surgical face mask, mandated by the courts for COVID-19 protection, and spoke into a microphone in his hand. Jurors were not present for the discussion.

Nelson reminded Chauvin that "the state would have broad latitude" to cross-examine him as a witness if he testified. Nelson and Chauvin told the court they had "repeatedly" discussed whether to testify.

"We have gone back and forth on the matter would be kind of an understatement, right?" Nelson asked Chauvin.

"Yes, it is," Chauvin said with a small hint of a smile.

Nelson asked Chauvin if they had a "lengthy" meeting Wednesday night about testifying that led to "further discussion."

"Correct," Chauvin said, adding that he would not testify.

"The decision whether or not to testify is entirely yours," Cahill told Chauvin after his discussion with Nelson. "In other words, it's a personal right. … Is this your decision not to testify?"

"It is, your honor," Chauvin said.

The judge asked if he had any questions. He said no. The judge asked if anyone had made promises or threats to influence his decision.

"No promises or threats, your honor," Chauvin said.

Cahill asked Chauvin if he wanted jurors to receive a special instruction on the issue, which is offered by the courts when defendants choose not to testify. Chauvin said yes.

"The state must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged," according to the instruction Cahill recited Thursday. "The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact the defendant has not testified in this case."

The defense officially rested its case several minutes later with jurors in attendance. Nelson called seven witnesses between Tuesday and Wednesday.

Arthur Reed, one of Floyd's cousins, watched the proceeding from the lone seat in the courtroom designated for a Floyd family representative. COVID-19 safety protocols have severely limited the number of attendees. A woman sat in a seat Thursday reserved for Chauvin's supporters. She declined to identify herself to a reporter.

Asked outside the courtroom about Chauvin's decision not to testify, Reed said he believed the prosecution "would have chopped him down second by second" were he asked why he remained on Floyd for more than nine minutes.

"We didn't think they were going to put him on at all," Reed said. "We're just ready to get this over with, make sure [Floyd] gets the justice he deserves. We think the state has put on an excellent case."

To read more CLICK HERE

Saturday, April 17, 2021

MCN/USA TODAY Network: Court packing or court persuasion

Matthew T. Mangino
April 16, 2021

Recently President Joe Biden issued an executive order creating the Presidential Commission on the Supreme Court of the United States.  The President characterized it as a bipartisan group of experts on Court reform.

A White House press release suggested the Commission’s “purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform… including the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

The phrase that got everyone’s attention was the “size of the court.”  It is no secret that Democrats want to pack the Supreme Court.  The term “packing” comes from the late 1930s, when President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age.

The Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.

According to, Roosevelt’s plan was seen as a political ploy to change the court for favorable rulings on his New Deal legislation.

Roosevelt’s court packing plan failed. According to Reuters, the Supreme court has nine justices and that has not changed since 1869.

As with Roosevelt, President Biden faces a similarly unsympathetic Court.  With Justice Amy Coney Barrett’s rushed confirmation only weeks before the election the Court has a decidedly right-leaning bent with six conservatives and three progressives.

Democrats in the House of Representatives and Senate have proposed legislation to expand the court.  The sponsors of the bill suggest in a press release, “Nine justices may have made sense in the 19th century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration and white-collar crime—simply did not exist and did not require adjudication by the Supreme Court … having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for 13 circuits is a sensible progression.”

For his part, President Biden has previously indicated that he is leery of expanding the court. Justice Stephen G. Breyer, one of the three progressive judges on the court, said this week that packing the court would make the court appear political and erode public confidence.

Speaking recently as Harvard Law School, Breyer said that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

Most Americans are against court packing, the Senate is split 50/50 and Joe Biden is skeptical—so why create a commission to study expanding the court?

A closer look at Roosevelt’s court packing plan may provide some insight.  FDR’s plan to add more justices never came to fruition, but according to The Hill, the court packing plan succeeded in intimidating the Supreme Court into a retreat from its protection of economic liberty against progressive aspirations to regulate American industry.

The Court, following Roosevelt’s “failed” court packing plan, began to act more favorably with regard regulation, public works programs and other Roosevelt initiatives. As the high Court lessened the pressure on FDR the country began to lift itself from the woes of economic decline.

Could President Biden be sending a message to the Court?  Chief Justice John Roberts has not shied away from voting with his progressive colleagues and he has been an ardent supporter of the Court’s reputation.  Perhaps the President’s maneuvering on court reform is a shot across the bow to get the Court’s attention.

(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, April 16, 2021

Mangino appears on segment of Law and Crime

Watch my interview regarding the Derek Chauvin trial on Law and Crime Network.

To watch interview CLICK HERE.

Alabama judge suspended for 'predisposition' against the death penalty

A judge in Birmingham, Alabama, has been suspended with pay after the Alabama Judicial Inquiry Commission alleged that she showed an apparent predisposition against the death penalty, ignored appellate directives, and showed a lack of appropriate demeanor to prosecutors, reported the ABA Journal.

Judge Tracie Todd’s legal errors are part of a continuing pattern with the capacity to harm public confidence in the judicial process, particularly with regards to death penalty issues, according to the commission’s April 6 complaint.

The ethics complaint alleges abuse of judicial power and “abandonment of the judicial role of detachment and neutrality.” The allegations concern mostly incidents from 2014 through 2018 in matters involving the death penalty, prosecutors and personal vindication of her prior rulings and actions, the complaint says.

“This complaint is about a judge who continued to fail to respect and follow clear directives and rulings of the appellate courts,” the complaint says.

The death-penalty imbroglio began in March 2016, when Todd struck down Alabama’s capital sentencing scheme in which judges could impose the death penalty even when jurors recommended life without parole. Todd struck down the sentencing system as applied to four defendants.

The Alabama Supreme Court later upheld the judicial override system in October 2016. A state law passed in 2017 eliminated the judicial override system but allowed jurors to recommend the death penalty by a 10-2 vote.

Todd had ruled that judicial override was unconstitutional under the U.S. Supreme Court’s January 2016 decision, Hurst v. Florida, which struck down Florida’s death penalty scheme because it allowed judges, rather than juries, to find facts necessary to impose the death sentence. Todd then banned Alabama from seeking the death penalty.

The complaint says Todd’s order denied the state its right to seek the death penalty because her ruling only applied to judicial override cases, not cases in which jurors recommended the death penalty. Her order also “exhibited an apparent predisposition against the death penalty generally,” the ethics complaint says.

Todd’s order also cited secondary sources that she had independently collected, including information that judges are more likely to impose the death penalty during an elections cycle, and that unqualified lawyers were being appointed in capital cases based on campaign contributions. Those extraneous sources “violate a judge’s duty of detachment and neutrality,” the complaint says.

Todd’s order was released to the media, and she gave two interviews the same day that criticized partisan judicial elections, judicial override and attorney appointments based on campaign contributions. The comments also gave the appearance of a preconceived bias against the death penalty, the complaint says.

She also denied prosecution motions to recuse in two other death penalty cases, saying the motions were moot after Alabama eliminated the override system. But the ethics complaint noted an appellate ruling finding that the new law did not apply retroactively.

An appeals court ordered Todd to recuse herself in the cases. She nonetheless ordered a status conference in one case and then said she hadn’t received notice of the appeals court’s judgment.

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Thursday, April 15, 2021

Nevada Assembly passes bill to abolish the Death Penalty

The Nevada Assembly passed a bill that would abolish the death penalty and retroactively convert all current capital sentences to life without parole, reported the Jurist. Although several similar bills have been floated before, most recently in 2017, they have never made it out of committee.

Nevada has 70 people on death row but has not executed anyone since 2006 due to drug producers withholding the cocktail for death penalty purposes. A January 2021 poll conducted by the Death Penalty Information Center (DPIC) shows that 49 percent of Nevadans support ending capital punishment, compared to 46 percent that said they would prefer to keep it. That’s up from just 27 percent of residents who were in support of abolition in 2017.

Supporters of the bill argued that the death penalty is racially discriminatory. Around 40 percent of people on death row in Nevada are Black, even though Black people make up just 9 percent of the state’s population. The current statute is broad, listing 14 aggravating circumstances that, if present, would qualify a case for the death penalty. This gives prosecutors a lot of discretion as to when they seek an execution warrant, often leading to disproportionate death sentences for Black people and people of color.

Proponents of abolition also argue that the process is more expensive than a typical first-degree murder case because of necessary background investigations and the automatic appeals process. Opponents suggest these issues could be addressed by streamlining the process to save money–a suggestion that disregards the severity of the penalty in question.

The bill’s future in the Senate remains uncertain. Prosecutor and Democrat Senate Majority Leader Nicole Cannizzaro said, “Right now we’ve got a lot of Assembly bills coming over. … We’re looking at our schedules, and we’ll go through the legislative process, but obviously haven’t had time to sit down, make any commitments on anything.”

And Democratic Governor Steve Sisolak gave a noncommittal answer when asked whether he would sign off if it passed. He said that he is against the death penalty in most cases but believes there are “incredibly severe situations that may warrant consideration of capital punishment,” citing the 2017 shooting at the Route 91 Harvest music festival, where Stephen Paddock killed 60 people after firing more than 1,000 rounds into the crowd from his 32nd-story hotel room window. Paddock took his own life shortly after and never faced trial or sentencing.

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Wednesday, April 14, 2021

Tennessee joins growing list of states with 'constitutional carry'

Tennessee has become the latest state to soon allow most adults 21 and older to carry handguns without first clearing a background check and training after Gov. Bill Lee  signed the measure into law, reported ABC News.

“I signed constitutional carry today because it shouldn’t be hard for law-abiding Tennesseans to exercise their (Second Amendment) rights,” said Lee, a Republican approaching his reelection campaign for 2022, in a tweet.

Lee initially proposed the National Rifle Association-backed legislation last year before the COVID-19 pandemic caused lawmakers to narrow their focus. He renewed that effort when lawmakers returned for this year's legislative session, where the GOP-controlled General Assembly easily advanced the measure to his desk.

The measure applies to handguns that are concealed and ones that are openly carried, but it does not apply to long guns. The law will take effect July 1.

Under the new law, adults 21 and older and military members between 18 and 20 will be allowed to open or concealed carry handguns without a permit. The law also increases certain penalties. For example, theft of a firearm — now a misdemeanor that carries a 30-day sentence — will become a felony with a mandatory six month incarceration. It also makes exceptions for people with certain mental illnesses and criminal convictions.

Nationwide, at least six states are also weighing similar measures this year, with supporters eager to join nearly 20 others that currently don’t require permits for the concealed carry of handguns. Meanwhile, more than 30 states allow for permitless open carry.

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Tuesday, April 13, 2021

Drug overdoses continue to rise nationwide

 Even as the state races to vaccinate thousands of Pennsylvanians against COVID-19, public health officials are still waging an ongoing fight against substance abuse, reported the Pennsylvania Capital-Star.

Preliminary data compiled by the federal Centers for Disease Control and Prevention shows that 88,295 people nationwide died from a drug overdose between August 2019 and August 2020, a 27 percent increase from the previous year, NBC News-Montana reported. Opioids and synthetic opioids, such as fentanyl, were responsible for most of the fatalities, according to NBC News.

In Pennsylvania, the number of reported deaths increased by 17.1 percent during that August to August timeframe, from 4,277 in 2019 to 5,008 in 2020, the CDC data showed.

To help combat that wave of abuse, the state Department of Drug and Alcohol Services has announced that it will award $2.7 million in grants to what are known as "recover community groups" that help people who are in recovery from substance use disorder.

Such groups are "non-profit organizations led and governed by representatives of local communities of recovery. These organizations are comprised of staff and volunteers from the recovery community," DDAP spokesperson Alison Gantz told the Capital-Star in an email. The RASE Project in Harrisburg is an example of such a group. 

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Monday, April 12, 2021

State legislatures look to reform policing

Eighteen days after George Floyd was killed by a Minneapolis police officer, the Minnesota state Legislature introduced 48 bills in a special session on law enforcement, reported The Marshall Project. On the same day, Iowa Gov. Kim Reynolds signed a new bill restricting police chokeholds, and New York Gov. Andrew Cuomo signed a series of police reforms into law, including repealing an obscure law, section 50-a, that shielded police disciplinary records from public scrutiny.

More lawmakers across the country are proposing changes to how police operate. In the three weeks after Floyd’s death and the ensuing nationwide protests against police brutality, 16 state legislatures have discussed the issues roiling the country. As of Tuesday, legislatures had introduced, amended or passed 159 bills and resolutions related to policing, including bills that were introduced in both chambers, according to a database compiled by the National Conference of State Legislatures, a nonpartisan association of state lawmakers.

Of course, in politics, talking about doing something is one thing. Doing it is another. By June 16, nine of these bills have become law, and seven more are waiting for governors’ signatures. In all, three state legislatures—Colorado, Iowa and New York—have passed policing bills.

Looking at action in the statehouse has its limits, because police reform usually happens on the local level, as cities and towns decide how to fund and regulate their own police forces. The sheer number of new bills can also be misleading: some state legislatures will eventually bundle multiple bills related to the same topic and pass them as one omnibus bill.

Still, state legislatures can hold tremendous power on issues like setting pensions for police officers, and the wave of new state-level bills represents how swiftly the conversation around policing has shifted since the death of Floyd.

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Sunday, April 11, 2021

Presidential commission formed to study the United States Supreme Court

President Biden issued an executive order forming the Presidential Commission on the Supreme Court of the United States, reported Jurist. Biden ordered the formation of the commission to study potential changes to the Supreme Court amid calls from many liberals to reform the Court. Under the executive order, membership of the commission is to be “constitutional scholars, retired members of the Federal judiciary, or other individuals having experience with and knowledge of” the Supreme Court and the US judicial system.

The vast majority of the 36 members are law professors and scholars. The bipartisan panel members represent expertise in “constitutional law, history and political science.” A statement by the White House stated that the purpose of the commission is “to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”

Following the commission’s first public meeting, the body will have 180 days to submit a report to President Biden to detail its findings. The commission has instructions to solicit public comment and hold meetings that are open to the public.

Many liberals are calling for President Biden to expand the Court through court-packing, an issue that the commission will be analyzing. Other calls implore Justice Stephen Breyer, the oldest Justice on the Court, to retire so that Biden may nominate a successor. President Trump’s three appointed Justices shifted the Court to a 6 to 3 conservative majority.

Justice Breyer, though, has been vocal about his opposition to expanding the Court. In a speech on Tuesday at Harvard Law School, Breyer argued that the public’s trust in the legitimacy of the Court is based on the idea “that the Court is guided by legal principle, not politics.” He further contended that growing distrust of government and a common view that the Court is too political caution against making reforms to the Court.

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Saturday, April 10, 2021

MCN/USA TODAY Network: Reconsidering qualified immunity in the wake of George Floyd

Matthew T. Mangino
April 9, 2021

Derek Chauvin is on trial in Minnesota for murder.  The former Minneapolis police officer was video-taped with his knees on the neck and back of George Floyd as he laid face down on a city street with his hands cuffed behind his back.

In the wake of nationwide protests after Floyd’s at the hands of the police, the doctrine of qualified immunity has come under increasing scrutiny. Qualified immunity shields government officials from liability for their conduct.

According to the American Bar Association, Floyd’s death, and the national turmoil that followed, made qualified immunity—a relatively unknown concept—an issue of national importance.

This obscure legal doctrine, once known only to civil-rights lawyers and legal scholars, is seen on signs at protest and on newspaper headlines across the country.

A federal lawsuit against police misconduct known as a “1983” action (named for the section of the Civil Rights Act 42 U.S.C. 1983), grants civilians the ability to sue state and local police for violating their constitutional rights. Interestingly, the statute does not mention qualified immunity.

Qualified immunity came about in a series of Supreme Court decisions finding that government officials will afraid to do there job if they are worried about getting sued.

Starting in 1967, the Supreme Court carved out a “qualified immunity” exception that provided police officers could not be sued if they were acting in good faith and didn’t know what they were doing was illegal.

Over the years, the court expanded the doctrine to the point that even police officers who knowingly violate someone’s constitutional rights are protected—unless a court has, in a previous case, ruled that the behavior was unconstitutional.

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.”

Last summer, Colorado established a litany of policing reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses.  The Enhance Law Enforcement Integrity Act also eliminates qualified immunity. 

Now police officers in Colorado who violate a person’s civil rights can be held personally responsible in state court.

 “Colorado has passed what is, for the moment, the gold-standard reform,” Robert McNamara, a senior attorney at the Institute for Justice, a libertarian non-profit, told Forbes. “These laws are changing the status quo as to when there are consequences for bad behavior.”

The New Mexico Civil Rights Act, recently signed into law, eliminated qualified immunity. The law is a product of the New Mexico Civil Rights Commission, authorized by Gov. Lujan Grisham in the summer 2020 special session to evaluate potential statutory changes or policy recommendations, again, in the wake George Floyd’s death.

The George Floyd Justice in Policing Act of 2021 is a civil rights and police reform bill passed by Democrats in the U.S. House of Representatives on February 24, 2021. The bill passed the House on a mostly party-line vote of 220–212, and has been sent to the Senate.

The legislation aims to, among other things, enhance accountability for police officers who commit misconduct, by restricting the application of the qualified immunity doctrine for local and state officers.

In Maine, Bill 214, “An Act to Eliminate Qualified Immunity for Police Officers,” is modeled after the Colorado law. The bill would eliminate qualified immunity in the state. A number of other states are taking a close look at qualified immunity. Finally, the time has come to right a wrong.

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Friday, April 9, 2021

Arizona considers two executions after 7 years hiatus

Two longtime inmates on Arizona's death row may soon be the first to be executed in the state since 2014, reported the Arizona Republic. 

Notices of intent to seek warrants of execution have been filed with the Arizona Supreme Court against Frank Atwood, 65, and Clarence Dixon, 65, Arizona Attorney General Mark Brnovich announced Tuesday.

“Capital punishment is the law in Arizona and the appropriate response to those who commit the most shocking and vile murders,” Brnovich said in a statement. “This is about the administration of justice and ensuring the last word still belongs to the innocent victims who can no longer speak for themselves.”

The Arizona Supreme Court will decide if the Department of Corrections can proceed with the executions, which will occur 35 days after the court's mandate, or order, denying review of their cases. 

Atwood and Dixon have the option to die by lethal injection or gas, according to Arizona law. 

Brnovich asked the court to create a firm briefing schedule before it issues its order to allow the Department of Corrections to comply with execution protocols. 

Brnovich has frequently mentioned Atwood and Dixonin letters he sent to Ducey advocating for the governor to resume executions. Ducey, who oversees Department of Corrections Director David Shinn, has asked the agency to take actions to help resume capital punishment. 

In Arizona's last execution, in 2014, Joseph R. Wood was left snorting and gasping for nearly two hours before he died from a controversial drug cocktail. Arizona faced lawsuits and also had trouble gaining access to approved lethal drugs.

There are 115 people on Arizona's death row, and 20 have exhausted their appeals

Of those inmates who have exhausted their appeals, two are Hispanic, three are Native American, 15 are white and one did not provide his ethnicity.

They have convictions out of Maricopa, Pima, Mohave, Yavapai and Pinal counties. Two men are brothers, and another man's sibling also was on death row until he died of an illness.

Atwood is white, and Dixon is a member of the Navajo Nation. 

Even though some death row inmates have exhausted their appeals, all are able to submit a commutation application to the Arizona Board of Executive Clemency.

According to Arizona law, the governor is only able to consider a pardon or commutation of a sentence if the clemency board has offered a recommendation. 

The board never has issued a recommendation to pardon or commute a sentence of a person on death row, according to the American Bar Association.

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Thursday, April 8, 2021

Scholars examine the 'mercy dividend"

Professors Amanda Agan, Jennifer Doleac and Anna Harvey wrote in the Washington Post about the “mercy dividend.”  Communities across the country are reconsidering how they handle nonviolent misdemeanors such as disorderly conduct, disturbing the peace and possession of small amounts of illicit drugs. In many cities — including Philadelphia, Los Angeles and Baltimore — reform-minded district attorneys have been elected after promising to scale back the prosecution of such offenses. But they face pushback from police and community members who worry that not punishing people for low-level infractions will simply encourage more crime.

It’s an important debate, partly because misdemeanors account for 80 percent of all prosecutions nationally. Hoping to bring evidence to bear on the question, we examine in a new study the effects of prosecuting nonviolent misdemeanors on future criminal involvement in Suffolk County, Mass. — where Boston is located — using data from 2004 to 2018. Specifically, we looked at the effects of prosecuting nonviolent misdemeanors on defendants’ future criminal legal involvement. Across the board, we find that being more lenient on the defendants — that is, erring toward non-prosecution — has big benefits. People who are not prosecuted for misdemeanors are much less likely to find themselves in a courtroom again within two years. Entanglement with the legal system itself seems to be a risk factor for future criminal prosecution.

Figuring this out was not straightforward. Simply comparing people who are prosecuted with those who are not would be misleading, because prosecutors carefully decide which cases to pursue and which to dismiss. (You could imagine that they might focus on the more serious misdemeanors, for example.)

To estimate the causal effect of prosecution, we need something that sorts people into prosecution or non-prosecution in an essentially random way. It turns out that the way nonviolent misdemeanor cases are handled in Suffolk County opened the door to just such a natural experiment. Overall, 79 percent of misdemeanors tend to be prosecuted, while 21 percent are not. But the percentages vary greatly by prosecutor: Some are simply more lenient than others. What’s more, the prosecutors rotate through arraignment hearing rooms in a way that’s unrelated to which cases will be arraigned on particular days. Therefore, once we control for things such as court, month and day of the week, it is random which prosecutors handle each case. That randomness let us home in on people who committed similar crimes but received different treatment.

We examined 67,553 cases in all. Not being prosecuted for a nonviolent misdemeanor, we found, decreases the likelihood of any new criminal complaint — an arrest, basically — within two years by 58 percent and decreases the number of new criminal complaints by 69 percent. These effects are statistically significant and they grow over time; effects after three years are even larger. We find reductions in new misdemeanor complaints as well as in new felony complaints, and in new violent offenses as well as in new nonviolent offenses.

The effects of non-prosecution are biggest for first-time defendants. That supports the hypothesis that helping people avoid their first contact with the criminal legal system helps them avoid a path where criminal activity is more likely. Consider what happens to a prosecuted defendant, even if they are not convicted: A criminal record of the arrest will still be added to the state database. That record is then visible to other law enforcement agencies and potentially to employers, who may choose not to hire the person. Having a criminal record can have collateral consequences in many domains (reducing access to public benefits or housing, for instance) that also increase the likelihood of future criminal activity.

The sheer time that it takes to defend against prosecution exacts a toll, too. People who are not prosecuted walk away after the arraignment hearing, but prosecutions typically take six months or so. That means taking days off work for hearings and meetings with lawyers, not to mention the stress of worrying about the case. These disruptions could cause defendants to lose their jobs if they have them, or increase alcohol or drug use. And these effects could, in turn, increase the chances of future criminal activity.

Then there’s conviction: 26 percent of cases that are prosecuted lead to a misdemeanor conviction. Such convictions could make it even more difficult to find a job, which again could lead to more criminal activity. (“Ban the Box” policies that prevent employers from asking about past convictions on job applications do not appear to change this; employers can still avoid hiring people with criminal records when they do a background check at the end of the interview process.) And the punishments — typically probation or a fine — create other hardships.

Our results imply that future criminal legal involvement would fall in Suffolk County if all prosecutors behaved more like the most lenient ones. But what would happen if the county implemented a presumption of non-prosecution for low-level offenses, as is advocated by many reform-minded district attorneys? This could push all prosecutors to be more lenient than even the most lenient prosecutor was during the period we studied.

It turns out that Suffolk County implemented exactly this sort of policy in 2019, when it elected one of these district attorneys — Rachael Rollins, who took office early that year. Using data on new complaints filed in 2019 and early 2020, we considered the effects of this policy change on non-prosecution rates and subsequent criminal legal involvement. As intended, non-prosecution increased by 15 to 20 percent relative to before Rollins took office. And — in line with our previous results — we again find that non-prosecution caused a reduction in new complaints; the effect was about the same size or larger for this group.

We might worry that even if future criminal legal involvement falls for current defendants, a policy of non-prosecution might increase crime rates more broadly if local residents start to perceive that there are no consequences for bad behavior. But when we look at reported crime rates in Boston, we don’t see any evidence that crime increased in the year after Rollins took office; if anything, it seems to have fallen.

All of this suggests that district attorneys such as Rollins are on the right track. Pushing minor cases — trespassing, shoplifting, driving infractions and so on — through the criminal legal system appears to do more harm than good. There probably are other policies that would deter future crime, such as easing access to treatment for mental illness and substance-use disorders. But many of the people we studied might have simply made a mistake that they will never make again, if they are shown mercy and allowed to resume their normal lives without prosecution or punishment.

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Wednesday, April 7, 2021

Education Department plans overhaul of DeVos era Title IX regulations

The Education Department announced plans to hold public hearings on how schools should handle sexual misconduct cases as the first step in a planned overhaul of Title IX regulations, reported NBC News.

In a letter released by the Education Department, the hearing is described as a chance for students, parents, school officials and advocates to weigh in before the Biden administration offers its proposal for how K-12 schools and colleges receiving public funding must respond to allegations of sexual assault and harassment. The department has not yet announced a timeline for the hearing but plans to share more details in the coming weeks. The hearing will occur over multiple days and include a virtual component, a department official said.

After the hearing, the department intends to begin a formal process known as "proposed rule-making" to rewrite the Title IX rules, which would include another round of public comments.

The department will also issue question-and-answer-style guidance in the coming weeks to advise schools how to adhere to the current Title IX rules.

During the presidential campaign, Joe Biden vowed to scrap the Trump administration's new regulation on campus sexual misconduct, which took effect in August under Title IX, a gender equity law. Former Education Secretary Betsy DeVos had said she had designed the new rules to offer a clearer, fairer process to adjudicate sexual assault complaints; victims' rights advocates criticized the regulation for narrowing the definition of sexual harassment and limiting the incidents schools could investigate.

Biden signed an executive order last month directing Education Secretary Miguel Cardona to review and consider rewriting the regulation.

"Today's action is the first step in making sure that the Title IX regulations are effective and are fostering safe learning environments for our students while implementing fair processes," Cardona said in a statement Tuesday morning.

Cardona has not indicated the specific policies the Biden administration intends to propose or change.

Democratic lawmakers and advocates for sexual assault victims had already started pressuring the Biden administration to quickly act on changing the Title IX rules. Some welcomed Tuesday's announcement.

"This is a critical next step in protecting survivors in school and ensuring Title IX's promise of ending sex discrimination is realized," said Fatima Goss Graves, president of the National Women's Law Center, a nonprofit advocacy group. "So I'd see this step as a victory and a testament to the student survivors who have continued to so bravely fight for campuses where they can be safe and treated fairly and with dignity."

Federal rule-making can be a lengthy process — sometimes taking over a year — but it is more lasting than executive orders or policy statements and more difficult for future administrations to reverse. Under DeVos, the Education Department used the same rule-making process to set up the current Title IX regulation on campus sexual misconduct.

The framework implemented by DeVos prevents schools from launching Title IX investigations into allegations of assaults that take place off campus, uses a narrower definition of sexual harassment compared to workplace standards and requires schools to presume that accused students are innocent at the outset of investigations.

DeVos' rules were widely condemned by victims' rights advocates, who said some elements, such as requiring colleges to allow accused students to cross-examine their accusers through third parties, would discourage people from reporting assaults. Many trade groups for K-12 schools and universities were also critical, arguing that the rules would turn their institutions into courtrooms.

Advocates for accused students praised DeVos' policies as ensuring evenhanded responses to assault allegations on campuses. The Foundation for Individual Rights in Education, a nonprofit that focuses on due process on college campuses, said last month that it would not rule out suing to block a Biden administration rewrite of Title IX rules.

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Tuesday, April 6, 2021

Trump judicial appointee takes on qualified immunity

Don Willett, a former justice of the Texas Supreme Court whom Donald Trump placed on the 5th U.S. Circuit Court of Appeals in 2018 has embarked upon an impressive and even courageous crusade for police accountability, challenging Supreme Court precedents that shield both state and federal law enforcement from liability when they brutalize civilians, reports Slate. Traditionally, it’s left-leaning judges who try to bend the law toward justice for victims of police violence. Willett, however, has become arguably the most vocal advocate of reform in this area of law among lower court judges. And there are already subtle signs that the Supreme Court is listening.

The chief target of Willett’s ire is the doctrine of qualified immunity, which limits the scope of federal civil rights law. The actual statute, Section 1983, that grants civilians the ability to sue state and local law enforcement in federal court for violating their constitutional rights, says nothing about qualified immunity. But the Supreme Court has grafted this doctrine onto the statute and used it to immunize most officers from civil suits. Under qualified immunity, a victim of police misconduct must prove two things before their case can proceed to trial: first, that the officer violated a constitutional right, and second, that this right was “clearly established” at the time of the offense. If the victim flunks either test, the officers get qualified immunity, the case is thrown out, and the victim never even gets their day in court.

It is this second test, the requirement that the right at issue be “clearly established,” that wreaks the most havoc. Federal appeals courts demand that the right be “clearly established” by their own precedents, freeing police to violate their own department rules if those rules haven’t been explicitly affirmed by the court. Yet courts don’t even have to decide whether a constitutional right exists in qualified immunity cases; they can simply say that the alleged right is not “clearly established,” denying future plaintiffs a precedent they could use to overcome qualified immunity.

Worse, courts frequently grant qualified immunity because of some minor discrepancy between the precedent establishing a constitutional right and the case at hand. For instance, in Taylor v. Riojas the 5th Circuit extended qualified immunity to the prison guards who locked Trent Taylor in a cell covered in human feces for six days—even though the court had previously held that locking people in feces-covered cells is unconstitutional. In the prior case, the court reasoned, the victim was locked up for months; in this one, he was locked up for six days. Because of this distinction, the court held, Taylor’s right not to be locked in an excrement-coated cell for six days was not “clearly established.”

Willett has consistently criticized both the doctrine of qualified immunity and its perverse consequences. In one opinion, he wrote “to register my disquiet over the kudzu-like creep of the modern immunity regime.” As he summarized it: “No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.” No wonder that “to some observers, qualified immunity smacks of unqualified impunity.” Willett concluded by adding his “voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration” of the doctrine.

One month later, Willett reiterated his concerns about “the entrenched, judge-invented qualified immunity regime.” By “insulating incaution” from consequence, he wrote, “the doctrine formalizes a rights–remedies gap through which untold constitutional violations slip unchecked.” Victims are left “violated but not vindicated.” But, he added, “as a middle-management circuit judge, I take direction from the Supreme Court.” And “a majority of the Supreme Court,” Willett wrote, “disagrees” with his critique.

Do they, really? On Nov. 2, the Supreme Court issued a surprise 7–1 decision in Taylor v. Riojas reversing the 5th Circuit’s grant of qualified immunity to the prison guards. (Justice Clarence Thomas dissented, and Justice Amy Coney Barrett did not participate.) In its unsigned decision, issued without oral arguments, the court reprimanded the 5th Circuit for ignoring “the obviousness of Taylor’s right.” Because of “the particularly egregious facts of this case,” the court held, “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” Then, in February, the Supreme Court ordered the 5th Circuit to reevaluate its decision in another qualified immunity case, McCoy v. Alamu, in light of Taylor v. Riojas.

As University of South Carolina School of Law professor Colin Miller has noted, these decisions indicate a major shift in the Supreme Court’s qualified immunity jurisprudence. The justices appear to be moving away from a “comparative” standard, which requires a precedent directly on point, toward a “no reasonable officer” standard, which would deny qualified immunity to an officer whose behavior was obviously unreasonable. This development would address Willett’s concerns: Victims of police misconduct would no longer need to identify a virtually identical precedent clearly establishing their rights; they could, instead, demonstrate that any reasonable officer would’ve known that the conduct in question was unconstitutional.

Willett seems to have picked up on this trend. Shortly after the Supreme Court’s decision in Riojas, he denied qualified immunity to two police officers who killed a man who posed no clear threat by pinning him to the ground, shocking him with a stun gun, and beating him with a baton. More recently, on Thursday, Willett denied qualified immunity to an officer who repeatedly shot an unarmed, mentally ill man as he stumbled away from the police, killing him. As Willett summed it up: “By 2017, it was clearly established—and possibly even obvious—that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.”

To his credit, Willett’s distress over law enforcement’s lack of accountability extends beyond qualified immunity. In March, he wrote an impressive opinion criticizing a huge loophole in federal law: While Section 1983 allows lawsuits against state officers, there is no statute that lets victims sue federal officers, like FBI and Border Patrol agents, for damages. In a 1971 case called Bivens, the Supreme Court tried to remedy this problem by authorizing civil suits for excessive force against federal agents. Since 1980, though, an increasingly conservative SCOTUS has slashed away at Bivens, rendering it close to a dead letter.

Bemoaning this trend, Willett highlighted the tragic practical consequences of Bivens’ demise:  “Private citizens who are brutalized—even killed—by rogue federal officers can find little solace in Bivens,” he wrote. In 2021, “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.” That means that “if you wear a federal badge, you can inflict excessive force on someone with little fear of liability.” Willett questioned the Supreme Court’s abandonment of Bivens, citing recent scholarship providing an originalist justification for the decision. And he implored either Congress or SCOTUS to fix the “rights-without-remedies regime” that they helped to create.

Because Willett was nominated by a lawless con artist, it may be tempting to write off his criminal justice opinions as a disingenuous bid for bipartisan praise. But the consistency and passion with which he has attacked unjust precedents suggests that, at least on police accountability, Willett is the real deal. And given that he might have the Supreme Court’s ear, he’s well-positioned to bend the law in a more just direction. In today’s conservative judiciary, progressives need all the allies they can find.

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