Monday, May 29, 2023

A Memorial Day tribute like no other 'the most moving gesture I ever saw'

 John L. Micek writing for the Pennsylvania Capital-Star:

            Today is Memorial Day in Pennsylvania and across the nation. And while many of us will gather with friends and families for barbecues and picnics, for thousands of our fellow citizens, it’s not a day of celebration. It’s a time to honor America’s fallen, their loved ones, who died in service to the nation.

On Memorial Day in 1945, Lt. Gen. Lucian Truscott Jr., commander of the U.S. Fifth Army, delivered what may well be the most moving and iconic of all addresses.

On that day, instead of addressing the crowd at the Sicily-Rome American Cemetery in Nettuno, Italy, Truscott turned his back on the audience, and delivered an extraordinary apology to the roughly 20,000 American soldiers who were buried there, Doyle Hodges, of the website War on the Rocks, wrote in a piece published on Memorial Day 2021.

Unfortunately, there is neither a transcript nor a recording of Truscott’s speech, not even among his official papers at the George C. Marshall Research Library in Virginia, historian Nicolaus Mills wrote for CNN in 2015.

The accounts we do have come from journalists. The famed combat cartoonist Bill Mauldin called it “the most moving gesture I ever saw,” according to Hodges.

Stars & Stripes, the military newspaper, carried excerpts of Truscott’s remarks, including his observation that “all over the world our soldiers sleep beneath the crosses … It is a challenge to us – all allied nations– to ensure that they do not and have not died in vain,” Mills wrote for CNN.

Mills writes that Mauldin, who recalled the scene in his memoir “The Brass Ring,” said that Truscott’s audience included members of the U.S. Senate Armed Services Committee, making his gesture all the more memorable.

From Mauldin, via Mills:

“When Truscott spoke he turned away from the visitors and addressed himself to the corpses he had commanded here. It was the most moving gesture I ever saw. It came from a hard-boiled old man who was incapable of planned dramatics.

“The general’s remarks were brief and extemporaneous. He apologized to the dead men for their presence here. He said everybody tells leaders it is not their fault that men get killed in war, but that every leader knows in his heart this is not altogether true.

“He said he hoped anybody here through any mistake of his would forgive him, but he realized that was asking a hell of a lot under the circumstances. . . . he would not speak about the glorious dead because he didn’t see much glory in getting killed if you were in your late teens or early twenties. He promised that if in the future he ran into anybody, especially old men, who thought death in battle was glorious, he would straighten them out. He said he thought that was the least he could do,” Truscott said, according to Mauldin.

Separately, the legendary war correspondent Ernie Pyle reflected on the circumstances that had plucked ordinary men from their homes and brought them halfway across the planet to fight in a war that changed the world.

“‘I couldn’t help but feeling the immensity of the catastrophe that has put men all over the world, millions of us, moving in machinelike precision throughout long foreign nights — men who should be comfortably asleep in their own warm beds at home,'” Pyle wrote, according to biographer James Tobin in ‘Ernie Pyle’s War: America’s Witness to World War II.’

“War makes strange giant creatures out of us little men who inhabit the Earth,” Pyle wrote, according to Tobin.

Like so many of the people he wrote about, Pyle never made it home either. He died on April 18, 1944, after a Japanese machine gun bullet pierced his left temple, the Associated Press reported at the time.

From Truscott’s apology to the dead to Pyle’s recollection, we’re offered vivid reminders that so many Americans have given so much to give us this democratic, pluralistic nation where there’s room for everyone — no matter their race, their ethnicity, their gender (or no gender at all), whom they love, or the deity they do or don’t worship.

At some point today, in a quiet moment, I’ll honor those sacrifices and remember our collective responsibility to ensure, as Truscott said all those years ago, that they were not in vain.

And if you are honoring or mourning a fallen loved one today, may their memory be a blessing.

To read more CLICK HERE

Sunday, May 28, 2023

Book Review: Still Doing Life, 22 Lifers, 25 Years Later, Photographs and Interviews of People Serving Life Sentences in Prison Separated by a Quarter Century

Champion Magazine
Authors: Howard Zehr and Barb Toews 
The New Press, 2022, 189 pages
Reviewer: Matthew T. Mangino

            “Life without parole is a death sentence without an execution date,” Aaron Fox told Howard  Zehr in the early 1990s.  At the time, Fox was serving life without parole in a Pennsylvania state prison.

            In 2017, twenty-five years later, Zehr and Barb Toews visited with Fox again.  In their book “Still Doing Life, 22 Lifers, 25 Years Later, Photographs and Interviews of People Serving Life Sentences in Prison Separated by a Quarter Century,” published by The New Press,  Zehr and Toews not only interviewed Fox 25 years later, they interviewed 21 other lifers, then and now.

            Zehr is a distinguished professor at Eastern Mennonite University and Toews is an associate professor at the University of Washington Tacoma. Their book immediately caught my eye because of the home of the lifers—Pennsylvania. I served two terms as district attorney of Lawrence County, Pennsylvania, a rustbelt community north of Pittsburgh, and followed that with a six-year term on the Pennsylvania Parole Board. Zehr and Toews’ book is both fascinating and sad.  The book provides insight into what would seem a hopeless existence and how these men and women manage to keep the faith, the humanity and the respect for themselves and others with whom they touch.

             In Pennsylvania, a conviction for First or Second Degree murder is a mandatory sentence of life in prison without the opportunity for parole. Simply put, in Pennsylvania, life means life.

            Second to only Florida, Pennsylvania has more lifers than any other state. Even more troubling, Pennsylvania leads the nation in offenders serving life who committed the underlining offense as a juvenile.

            What grabbed me when I first picked up “Still Doing Life” are the photographs of the 22 people interviewed by Zehr and Toews. There are two photographs of each person. The first in street clothes and the second, twenty-five years later—in a similar pose, wearing prison garb.

            Bruce Bainbridge explains why, “When we had to get rid of the civilian cloths due to a policy change in 1995, it was depressing for me because I had to throw away my identity.  That’s one of the biggest things that gave me character.” He went on to say, “I didn’t want to turn into a prisoner. I still struggle with keeping my humanity. I don’t want to get numb to that.”

            The first interviewee in the book, Kimberly Joynes, reveals a painfully astonishing short-coming in the criminal justice system. “When I was sentenced, my judge literally believed that after seven years it was possible I would be paroled.” Joynes thought, as did the courts, that she would see the Parole Board.  That was not to be. Now she relies on the possibility of clemency from the Board of Pardons.  Unfortunately, prior to Governor Tom Wolf, clemency for a lifer in Pennsylvania was about as rare as Punxsutawney Phil not seeing his shadow.

            Ricardo Mercado told Zehr that “It broke a lot of people here when they [Board of Pardons] changed from majority vote to . . . unanimous.” Politics, not some evidenced-based practice, was the reason behind the change. 

            In 1994, Congressman Tom Ridge was running for governor against then Lt. Governor Mark Singel.  The Lt. Governor serves by statute on the Board of Pardons.  That same year, a majority of the board recommended clemency for Reginald McFadden. 

            McFadden was granted clemency by the governor and committed a series of rapes and murders after his release. Ridge used McFadden’s clemency against Singel and got elected.  Once Ridge took office, he called a special legislative session on crime and changed, among other things, the board’s clemency recommendation from a majority of the Pardons Board to unanimity for serious violent crimes.

            The pain of a life sentence is no better demonstrated than in the second interview with Kevin Mines.  Kevin shared with Zehr and Toews when he called a niece that he didn’t really know very well and she was reluctant to come to the phone. When she finally did, she told Mines “I don’t know you like that.” The girl’s mom told Mines, “I told her not to talk to strangers.”       

            For decades policymakers have wrestled with holding offenders accountable while still recognizing the dignity of those incarcerated—all the while trying not to be portrayed as soft on crime.

            A small step in the direction of dignity is a movement to drop the dehumanizing label of “inmate” for those who are incarcerated. Cyd Berger, one of eight women interviewed for the book, makes the best argument I’ve heard in support of such a change. She told Zehr and Toews in 2017, “There’s no single description of an inmate because we are people . . . ‘Inmate’ is a word that the prison system gives us, but that’s not who we are.”

            That is exactly what Zehr and Toews do with “Still Doing Life.”  The book humanizes a group of people who society has hidden away and forgotten. Despite the seeming hopelessness that comes with being locked-up forever, Aaron Fox told the authors in 2017, “I have to confess, I’ve been blessed with a good life, even in prison.”

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA.   He is the author of The Executioner’s Toll. 2010. You can follow him on twitter @MatthewTMangino or contact him at

Saturday, May 27, 2023

Accessing government officials personal social media posts in PA

 Min Xian writing for Spotlight PA:

A recent court decision raised the bar for when a government official’s personal social media posts are public records, and will likely make it more burdensome and costly for Pennsylvanians to get their hands on this information.

In an April opinion, Pennsylvania Commonwealth Court established a three-factor test to judge when social media posts made on public officials’ personal accounts should be accessible under the Right-to-Know Law.

Government agencies, the Office of Open Records, and the courts have the power to decide what records should be provided to the public. The test guides them to first examine the social media account in question, including its private or public status, its appearance or purpose, and any actual or apparent duty for public officials to operate it.

The court said agencies that receive open-records requests also should consider the contents of the account, if they “prove, support, or evidence a transaction or activity of an agency.”

The third factor to weigh is whether the person operating the account is acting in what the court calls their “official capacity.” Commonwealth Court cited a previous opinion that found a York Township commissioner’s emails on a personal computer weren’t public records because the township didn’t ratify, adopt, or confirm what the emails discussed.

“This is such a significant opinion because it is, in my opinion, a change of the law as it’s been developing,” Josh Bonn, an attorney practicing in open records and municipal law, told Spotlight PA.

A generally accepted interpretation prior to the April decision was that anytime a public official communicates about public business, “that’s presumed to be a public record.” Bonn said he felt the weight given to the official capacity factor in the court’s newly minted test was a departure from that rule of thumb.

The Office of Open Records — an independent agency that handles disputes over public record requests — had previously ruled that the contents of a social media account decide if they should be public records, and whether a government agency authorizes or controls those accounts was “immaterial” to the question.

All three factors should be assessed in a nonexclusive manner, the opinion said, meaning the agency or court tasked with deciding a record request can determine on a case-by-case basis how much weight each of the elements should carry. Legal experts said that leaves a lot of room for argument, and more litigation on this issue is likely on the horizon.

“There can be a lot of different permutations of how these accounts can be used, and this test allows those different permutations to be reviewed,” Bonn said. He added that Commonwealth Court performed a detailed analysis of relevant case laws in its opinion, and the matter is far from settled.

Courts and government officials nationwide are trying to determine the boundaries between official and personal speech on social media. Commonwealth Court Judge Lori Dumas acknowledged in the opinion that it’s an evolving legal issue, writing “this Court’s precedents are in apparent tension.”

“It will be important for agencies to remember that when in doubt, they should err on the side of openness because the [Right-to-Know] law favors access,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, of which Spotlight PA is a member.

“Social media often provides an unfiltered window into public officials’ stance on important issues, and the public has a right to know where their elected officials stand,” she said.

To read more CLICK HERE

Friday, May 26, 2023

Using an infectious disease model to battle gun violence

FASTER, which provides grants to state health departments, builds on another federal-state partnership that has been used to track infectious diseases and other public health threats using data from ER visits, reported The Trace. That system, known as the National Syndromic Surveillance Program, or NSSP, has served as an early warning system for the flu, the Zika virus, COVID-19, overdose clusters, and even lung injuries from vaping products. 

The goal of FASTER is to enable and encourage state and local health agencies to rapidly track emergency department-treated firearm wounds, classify them by intent, share that data with the CDC, and then use the information to help their local communities respond. State health departments, for example, could help cities target resources or develop violence prevention programs.

“We can support local and state health departments to respond more quickly to upticks, or abnormal patterns of firearm injury ED visits in their jurisdiction,” Marissa Zwald, of the CDC’s National Center for Injury Prevention and Control, told me. “And that’s really the most important piece of FASTER — that data-to-action component.”

As part of the grant agreements, participating state health departments share more detailed data, allowing the CDC to examine information down to the level of individual visits, which goes far beyond the aggregate data that the federal agency currently has. And that data is typically available within one to two days.

“There’s more granularity, and we can see patient demographics and understand some of those trends by demographic characteristics, and empower our funded state health departments to look at and examine these data in that way, too,” Zwald said.

The new approach is less likely to suffer from the shortcomings of some of the CDC’s other efforts to estimate nonfatal shooting injuries, which have relied on small samples of hospitals. But, as with the NVDRS, it does have its own limitations that again come down to a trade-off between detail and timeliness. While FASTER is, well, faster, and will improve our overall understanding of nonfatal shootings, it will be nowhere near as detailed as the NVDRS. On top of that, researchers cautioned it was likely that the intent of injuries would be miscategorized — an assault might be coded as an unintentional shooting, for example.

Another issue: Some emergency rooms don’t yet submit data to the surveillance system. About 75 percent of ERs currently participate, but thanks to a 2021 federal rule change, that number is on an upward trajectory and is likely to get close to 100 percent soon.

FASTER is in its third and final year of the pilot, which wraps up in August. The effort has produced new mechanisms for logging details about firearm injuries into the NSSP system that will be made available to other state health departments. Going forward, it will also be incorporated into a broader initiative to improve surveillance of all violent injuries, not just those from firearms.

The system shows promise for improving national-level data, but getting truly accurate statistics will still take time. Nevertheless, FASTER is already providing benefits in states where it is operating. New Mexico used the data to inform a statewide strategic plan to address gun violence. In Oregon, legislators used it to pass a bill that provides consistent funding for hospital- and community-based violence intervention programs. And in Georgia, the state health department developed a data dashboard — with detail down to the neighborhood level — to support violence intervention efforts in Atlanta that it plans to soon make public.

“It obviously is more timely,” said Elizabeth Blankenship, an epidemiologist focusing on violence at the Georgia Department of Public Health, during a presentation in Milwaukee. “We really have just a great picture of both the morbidity and mortality side of things, and hopefully FASTER will be able to evolve outside of just firearm incidents.”

To read more CLICK HERE

Thursday, May 25, 2023

Already this year 13,959 people have died from gun violence in the U.S.

Shootings have continuously made headlines in just the first few months of the year.

As of May 1, at least 13,959 people have died from gun violence in the U.S. this year, according to the Gun Violence Archive – which is an average of roughly 115 deaths each day, reported ABC News.

Of those who died, 491 were teens and 85 were children.

Deaths by suicide have made up the vast majority of gun violence deaths this year. There's been an average of about 66 deaths by suicide per day in 2023.

The majority of these deaths have occurred in Texas, California, Florida, Georgia, North Carolina, Illinois and Louisiana.

The grim tally of gun violence deaths includes 460 people killed in officer-involved shootings.

There have also been 494 "unintentional" shootings, the Gun Violence Archive shows.

There have been 184 mass shootings in 2023 so far, which is defined by the Gun Violence Archive as an incident in which four or more victims are shot or killed. These mass shootings have led to 248 deaths and 744 injuries.

There have been at least 13 K-12 school shootings so far this year, including a recent incident in Nashville, Tennessee, on March 27 when three children and three staff members were shot and killed at the Covenant School, a Christian school for students in preschool through sixth grade.

In Michigan, three students were killed and five others were injured when a gunman opened fire at two locations on Michigan State University's main campus in East Lansing on Feb. 13, police said.

California saw three mass shootings in a matter of days in January, with one shooting leaving at least 11 people killed and 10 others injured after a gunman opened fire at a dance studio near a Lunar New Year celebration in Monterey Park, California.

The U.S. has surpassed 39,000 deaths from gun violence per year since 2014, according to data from Gun Violence Archive. Still, gun deaths are down from 2016, 2017 and 2018, when the total number of deaths each year surpassed 50,000. There were 44,310 such deaths in 2022.

Last June President Joe Biden signed into law a gun safety package passed by Congress. It was the first gun reform bill from Congress in decades.

But advocates for gun reform continue to push for tougher measures. Florida lawmakers Rep. Jared Moskowitz and Rep. Maxwell Frost spoke with "GMA3" this month to mark the fifth anniversary of the tragic shooting at Marjory Stoneman Douglas High School and called on Congress to do more to curb gun violence.

"Five years later, we feel like we've made some progress and then we were reminded that nothing has changed," Moskowitz said.

To read more CLICK HERE

Wednesday, May 24, 2023

PA House Democrats push for 'red flag' gun law

Authorities could temporarily seize firearms and background checks would be expanded for gun buyers, under two bills passed in the Pennsylvania House, where Democrats are using their razor-thin majority to push gun-control measures after a yearslong standstill in the politically divided government, reported The Associated Press.

The party describes the proposals as relatively moderate measures to cut down on gun trafficking, suicide deaths, accidental shootings and day-to-day violence. Republicans oppose the bills, saying they punish law-abiding gun owners.

 “While this is just the first step, by passing these commonsense and responsible gun safety measures we’ve shown our neighbors and communities that we are listening and we are acting, and that we stand with them in combating senseless gun violence," said House Speaker Joanna McClinton, a Philadelphia Democrat.

The “red flag” bill, which would allow a judge to order the seizure of firearms if asked by family members or police, passed on a 102-99 vote, with two Republicans voting alongside Democrats, and one Democrat flipping to vote with Republicans. Nineteen states have similar laws, according to Everytown for Gun Safety, a leading gun control advocacy group.

Rep. Mike Schlossberg, a Democrat from Lehigh County, recalled his own struggles with mental health as he spoke in favor of the bill.

“I find myself wondering frequently what would have happened that morning, Feb. 3, 2002, if I had had a gun,” he said. “Some of you have been in that deep, dark place. But for those of you who haven’t, you have to understand that getting someone through a moment of suicidal crisis — and it is often just a moment — is the most critical thing you can do to save someone’s life.”

But Republicans said the bill unfairly targets legal gun owners.

“The plan and the strategy has always been and will be to disarm law-abiding citizens," said Rep. Stephanie Borowicz, a Republican from Clinton County. ”And any Republican that thinks they can vote for this today: Know that you are aiding and abetting the socialism and communism that the Democrats are pushing in this nation."

Another bill, which passed by a 109-92 vote, seeks to expand background checks on firearms buyers in Pennsylvania and end an exception for private sales of shotguns, sporting rifles and semi-automatic rifles, known as the “gun show” loophole.

“This is not major legislation. This is not a heavy lift,” said Rep. Matthew Bradford, a Montgomery Democrat. “This is a modest bill, with a modest impact, that will have real impact on some of the most lethal weapons in our Commonwealth.”

A third bill, which failed by a 100-101 vote, would have required gun owners to report a lost or stolen firearm to police within three days. Repeat offenders would have faced a misdemeanor charge.

A fourth measure in the package, which would require long-barreled firearms to be sold with trigger locks, did not come up for a vote.

The bills that make it through the House must still go through the Republican-controlled Senate, which has historically been protective of gun rights, while working with Democrats to boost funding for anti-violence and mental health programs.

The measures come as the U.S. is setting a record pace for mass killings in 2023. In Philadelphia, gun violence played a big role in the campaign for mayor, and the city is asking the state’s highest court to allow it to impose its own gun-control policies.

The Pennsylvania Legislature, long controlled by Republicans, has not seriously considered broadening gun-control measures since 2018. With the newfound Democratic majority in the House, the chamber kicked off this session’s debate over gun violence with a hearing in March.

To read more CLICK HERE


Tuesday, May 23, 2023

NAACP issues formal travel advisory for the state of Florida

Please be advised that Florida is openly hostile toward African Americans, people of color and LGBTQ+ individuals.

The NAACP Board of Directors issued a formal travel advisory for the state of Florida over a series of laws recently signed by Governor Ron DeSantis that the organization says “[attempt] to erase Black history and to restrict diversity, equity, and inclusion programs in Florida schools,” reported Jurist.

The travel advisory reads:

Please be advised that Florida is openly hostile toward African Americans, people of color and LGBTQ+ individuals. Before traveling to Florida, please understand that the State of Florida devalues and marginalizes the contributions of and the challenges faced by African Americans and other minorities.

The advisory cited specific Florida policies including SB 266 and HB 7.

SB 266, signed into law just last week, effectively prohibits higher education institutions from spending state funds on diversity, equity, and inclusion (DEI) initiatives. In the words of Governor DeSantis, this law will help “treat people as individuals” by banning programs that “[stand] for discrimination, exclusion, and indoctrination.” This bill builds on SB 7044, which required periodic reviews of tenured faculty members and mandated professors to post their textbook lists online 45 days before their first classes.

In March, college students in Florida organized numerous walkouts in protest of HB 999, a similar proposal being worked on in the state’s House of Representatives.

HB 7, also known as the Stop Wrongs Against Our Kids and Employees Act (“Stop W.O.K.E. Act”), was enacted in 2022. It attempted to ban “woke indoctrination” by limiting the teaching of Critical Race Theory at public universities and restricting diversity training among employers. A federal court blocked parts of HB 7 after finding them unconstitutional.

The advisory also mentioned other pieces of legislation in Florida including HB 1SB 7066, and HB 543, which the NAACP says threaten civil rights in the state.

To read more CLICK HERE

Monday, May 22, 2023

'Better that ten guilty persons escape, than that one innocent suffer'--not anymore!

Brandon Garrett and Gregory Mitchell write in Slate:

Christopher Michael Sanchez had the right idea. During jury selection in his Texas trial for assault on a public servant, Sanchez’s lawyer asked the prospective jurors “to rate on a scale of one to five whether [they] agreed or disagreed with the statement that it is better for ten people [to] go free than one be convicted.”

While Sanchez was ultimately convicted, defense counsel was on to something fundamental about how people think about crime and punishment. Despite increased public awareness of wrongful convictions, the politics around criminal justice have begun to produce some strange inconsistencies. Particularly during recent elections, we’ve heard loud calls for more people who had been merely arrested, not convicted, to be locked up without a fair hearing. Lawmakers are presently considering harsher arrest, jail, and sentencing measures in response to violent crime. Sensational coverage of murder trials continues to attract wide audiences. Yet, at the same time, in opinion surveys, most people support police reform, reducing racial disparities, and a focus on rehabilitation and not just punishment in the criminal system. People may oppose defunding the police, but they also support community and social services alternatives to policing.

What explains these seemingly inconsistent views? Our research suggests that this is not the product of partisan divides or polarization, but that it actually reflects a deep source of common ground.

When English jurist Sir William Blackstone famously expressed the view that it is “better that ten guilty persons escape, than that one innocent suffer,” in 1765, he was not being particularly original. The notion that false convictions are a greater injustice than false acquittals animated the law at least as early as biblical times.

This view is the cornerstone of due-process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. In the United States, the Supreme Court first invoked Blackstone’s maxim in 1895 to justify the presumption of innocence, and again in 1970 to justify incorporating the requirement of the beyond-a-reasonable-doubt burden of persuasion in criminal cases under the Due Process Clause of the 14th Amendment.

But do people share Blackstone’s view? We asked a simple question that delivered a shocking result:

Which of the following errors at trial do you believe causes more harm to society?

• Erroneously convicting an innocent person

• Failing to convict a guilty person

• The errors are equally bad

Most respondents answered that the errors were equally bad. Our first results showing widespread rejection of the Blackstone ratio were so surprising and potentially disruptive that we tested their robustness multiple times, using a series of large samples drawn from the entire U.S. population and multiple measurement methods.

Across multiple national surveys sampling more than 12,000 people, we have found that a majority of Americans, more than 60 percent, consider false acquittals and false convictions to be equally bad outcomes. Most people are not Blackstonians. They are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority viewed false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. You would not want those people on your jury if you were charged with a crime.

These are not just abstract views, and they translated into how people voted to convict defendants in mock trials and how they weighed the evidence. For example, in one of our recent studies, the conviction rate among people who prioritize avoiding false acquittals was 58 percent, compared to a conviction rate of 25 percent among those who prioritize avoiding false convictions, even though the two groups reviewed the same evidence.

Perhaps still more surprising is that this is not necessarily a partisan preference. Majorities of Democrats, Republicans, and independents all viewed false convictions and false acquittals to be errors of equal magnitude. These findings reflect how most Americans balance fairness and public safety.

These findings have important implications for seemingly intractable divisions in criminal justice debates. Due process depends on jurors faithfully following instructions on the burden of proof, but our research shows that many jurors would not hold the state to its high burden. Instead, courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider other protections, such as stricter limits on prosecution evidence. Lawyers should rethink how they select jurors and present evidence, and judges should reconsider how due-process protections are implemented.

Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. If a policy solution is framed as only improving fairness, but not answering the need for public safety, then it may fail. Similarly, framing a solution as only helping public safety, but not treating the accused fairly, will also not be successful.

Despite sometimes heated legal and political rhetoric, our justice system does not operate as a zero-sum game, even though in any given case the prosecution or defense wins. Convicting the wrong person is not just a fairness concern but also a public safety concern. When an innocent person languishes in prison, a guilty person goes free. From bail reform to sentencing reform to protections against wrongful convictions, a range of proposed changes can improve both fairness and public safety.

The public is not well-served by false dichotomies. Making both fairness and public safety benefits clear to the public will be crucial to the success of future criminal justice reforms.

To read more CLICK HERE

Sunday, May 21, 2023

It is not about violent children, or people with criminal records or mental illness--it's about guns

 Gordon Witkin writes 'Here's what we can do about gun violence' in The New York Times in part suggesting:

Today 36 states have laws requiring the reporting of mental health records to NICS. The number of those records in the system has soared, to 6.88 million early this year from 531,000 at the end of 2008. The number of purchases that were blocked because of mental health issues advanced in lock step, Everytown said; those denials rose to more than 11,000 in 2017 from 960 in 2008. But eight other states have laws merely allowing, not requiring, mental health records to be reported, a far lower standard. And six states — Arkansas, Michigan, Montana, New Hampshire, Ohio and Wyoming — and the District of Columbia have no relevant law at all, so they’re providing only modest amounts of mental health documents. As of January, Montana had provided 36 relevant mental health records; Wyoming had provided 22.

Although Witkin's argument has merit, it ignores an obvious truth.  Every country in the world has mental illness. Not every county in world has mass shootings literally every day. What does America have that all the other countries of the world don't--guns, guns and more guns.  It is not about violent children, or people with criminal records or mental illness--it's about guns, 450 million of them.

To read more CLICK HERE

Wednesday, May 17, 2023

America's over-confident obsession with guns for 'self-protection'

 Christine Emba writing for the Washington Post:

At the Nation’s Gun Show in Chantilly, spirits seemed high. People wandered from booth to booth, and the scent of popcorn filled the air. It could have been mistaken for a state fair or weekend flea market were it not for the rows of weapons and accessories — gun parts, AR build kits and body armor — laid out on every surface. It was easy to overlook the one common emotion underlying the event: fear.

Here were weekend shoppers intently inspecting tools of death: moms testing the heft of handguns and fathers stocking up on ammo. When I asked attendees and sellers what gun ownership meant to them, most replied with the same word: “protection.”previous week had brought three highly publicized shootings. Ralph Yarl, a Black teenager in Kansas City, Mo., was allegedly shot by an 84-year-old White man after he rang the wrong doorbell to pick up his younger siblings; a 65-year-old man in Upstate New York allegedly shot and killed a 20-year-old woman who accidentally pulled into his driveway; and two cheerleaders in Texas were shot after trying to get into the wrong car after a practice.

For all the talk of protection, gun violence is now the leading cause of death for children and teens in the United States. Yet over and over, people told me they needed their guns to keep themselves safe.

Safe from what? Most couldn’t answer; they simply had a feeling that the world had become a more dangerous place. How would they use their guns in a crisis? Their confidence in their own abilities seemed inflated.

This manifested in the constant invocation of the word “tactical” — a gun-industry buzzword used to suggest that buyers of weapons, body armor and shooting courses will be able to engage with enemies like trained soldiers. In other words, a fantasy.

Republican leaders, including Virginia Gov. Glenn Youngkin, have resisted calls for increased gun regulation after shooting deaths, arguing that the root problem is mental illness. But the paranoia that fuels gun-buying has come to seem like a mental health issue in its own right.

“It’s crazy out there,” a woman named Dinah told me, an unloaded rifle slung over one shoulder. “People don’t care anymore, and criminals go for the low-hanging fruit. I don’t ever want to be in a situation where I can’t protect myself.”

A record-high 56 percent of Americans believe that crime has increased in their area, even if reality is more complicated. Republicans in particular have grown sharply more concerned. Many Americans no longer assume that a stranger might be well-meaning, innocent or harmless; rather, the world is seen as an increasingly dangerous place. Incessant media coverage of violent events has encouraged this thinking, the gun-show attendees told me. And poorly understood “stand your ground” and “castle doctrine” laws perpetuate and protect a vigilante mind-set.

Perhaps the most troubling aspect of gun ownership for “protection” is the sharp-edged individualism it implies: an every-man-for-himself mind-set. Institutions can’t be trusted, police will be unresponsive, and the government might one day turn on you. Your only obligations are to yourself and your family.

Individual fear becomes a greater priority than collective safety. Increasing the number of guns in the system will almost certainly spell death for others, but at least your gun will keep you safe.

 “You can’t predict who is going to shoot someone,” one ammunition salesman told me. “It’s just the nature of the evil world we live in. So I’ve got to be prepared.”

Today there are about 393 million privately owned firearms in the United States, according to an estimate by the Switzerland-based Small Arms Survey — in other words, 120 guns for every 100 Americans. That’s the highest rate of any country in the world, and more than double that of the next country on the list.

The gun owners I spoke to were open to some violence-prevention measures. They suggested mandatory training courses, raising age limits for gun-buying or cracking down on dealers who sell to people not legally allowed to buy guns.

But no one was willing to give up their own weapons. They would rather “open the floodgates,” as one shooting instructor put it. If everyone has a gun, the theory goes, everyone will be more careful. If the side effect is a private arms race in a country already flooded with guns, so be it.

Over and over again, I heard the NRA-approved phrase: “An armed society is a polite society.” But guns might be leading us to give up on the concept of society altogether.

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Tuesday, May 16, 2023

PLW: ABA Report on Plea Bargains Reveals Need for Reform

Matthew T. Mangino
The Legal Intelligencer
May 11, 2023

More than a decade ago, in a case known as Missouri v. Frye, former U.S. Supreme Court Justice Anthony Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”

Recently, the American Bar Association (ABA) released its 2023 Plea Bargain Task Force Report. Three years in the making, the report revealed that in 2018, only 2% of federal criminal cases ended in a jury trial. The task force examined how the emphasis on resolving criminal cases through plea bargains negatively impacts the integrity of the criminal justice system by creating “perverse incentives” for lawyers and judges to conclude cases quickly instead of justly.

The plea bargain, however unpopular or unseemly, is an important tool in the administration of justice. Plea bargains save the government time, money, and the trouble of actually proving a case beyond a reasonable doubt. If the plea bargain were to disappear the criminal courts would grind to a halt.

However, just because the plea bargain is needed doesn’t mean it is fair, just, and in line with some of America’s most fundamental constitutional rights.

The ABA report lays out a number of principles for reform—including that people should not be penalized with harsher sentences by exercising their right to a trial, and that people are often incentivized to plead guilty for reasons that have nothing to do with their actual guilt or innocence.

A 2018 National Association of Criminal Defense Lawyers’ report found, “There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This ‘trial penalty’ results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.”

The problem is best exemplified by the reality that one in four people exonerated by DNA in the United States confessed to the crime charged. It seems astonishing that a person would plead guilty to a crime they did not commit.

Here are some things to consider. In the United States of America, a police officer can lie to an accused about incriminating evidence during an interrogation and elicit a confession, and the U.S. Supreme Court has said there is nothing wrong with such conduct.

Sixty years ago, the Supreme Court acquiesced to the potentially innocent pleading guilty. Henry C. Alford was indicted for first-degree murder, a capital offense in North Carolina. Although he proclaimed his innocence, he pleaded guilty to killing a man with a shotgun. He said in court, “I’m not guilty, but I plead guilty.”

The Supreme Court ruled in North Carolina v. Alford, “An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

Then there is the trial penalty—the act of accepting a plea bargain due to the fear of a harsh sentence if convicted at trial. There are reams of data to support the existence of the trial penalty. The trial penalty—and the need to have one—point to the dire state of the criminal justice system. The burden of proof—beyond a reasonable doubt—is rarely employed. The prosecution is rarely forced to prove anything beyond probable cause to make an arrest.

There is an incentive in the system to plead guilty to crimes that were charged but not committed. Police often over-charge defendants. The most serious charges are dropped and the defendant is expected, under oath, to make admissions to crimes he did not commit. The benefit of the plea bargain often comes at a high price to the defendant and to the system. The impact of race in plea bargaining cannot be overstated. The ABA report details significant racial disparities in the plea bargaining. Hannah Dean wrote in Jurist Magazine of Duquesne University School of Law, “Prosecutors’ decisions to drop or reduce charges as part of a plea bargain reveal stark racial bias. White defendants are 25% more likely than Black defendants to have their most serious charge dropped or reduced as part of a plea bargain, and Black defendants frequently receive higher sentences for the same charges as their white counterparts.”

For the most part, plea bargaining is not governed in detail by rules of court or established policy. What Kennedy called “the criminal justice system” has few safeguards and little oversight. A plea offer can be arbitrary and subject to the whim of the prosecutor. In fact, a prosecutor has no obligation to even negotiate a plea with a defendant.

In Pennsylvania if one is looking for guidance of plea bargains here is what is codified on the subject:

Plea Agreements

At any time prior to the verdict, when counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.

The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.

The ABA report’s 14 principles for reform are a small step in a long journey toward fairness and transparency in the criminal justice system. Unfortunately, those accused of criminal conduct do not have a very strong lobby. One way to change this process is through the legislation. The prospect is daunting; there are 50 different legislatures and a Congress that needs convincing.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at 

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Monday, May 15, 2023

ELECTION ALERT: 'Stop the Steal' judge running for PA Supreme Court

In the aftermath of the 2020 election, Donald Trump and his allies filed over 60 lawsuits to overturn results in states he lost. Courts rejected all of Trump’s attempts to halt the certification of election results—except for one decision, reported Bolts Magazine. 

Patricia McCullough, a Pennsylvania appeals court judge, issued an order in late November to halt certification of the state’s elections. It was a rare bright spot for Trump’s “Stop the Steal” crusade and its false claims of electoral impropriety, but his victory was short-lived. Within days, Pennsylvania’s supreme court unanimously reversed her ruling and shut down the case by dismissing it with prejudice.

The case, the justices ruled, offered an “extraordinary proposition that the court disenfranchise all 6.9 million Pennsylvanians who voted in the General Election.” The state supreme court has since repeatedly reversed McCullough in other election cases, including overturning a ruling she joined last year against the state’s expanded mail-in voting rules, and rejecting her advice that the state adopt a Republican-drawn redistricting proposal. 

McCullough is now running to join the court that so directly questioned her judgment. The death of Democratic Chief Justice Max Baer in October has left a vacancy that voters will fill this year. The winner will join this swing state’s high court and hear cases that touch the 2024 election, just as Trump vies to be on the ballot once more. 

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Saturday, May 13, 2023

Texas' counterintuitive approach to guns--more killings, more guns

Deaths from firearms in Texas — the vast majority of them suicides or homicides — have continued rising in Texas, reaching levels not seen in almost three decades, according to the Texas Tribune.

At the same time, Texas relaxed its gun laws in a decades long push to expand Second Amendment rights in the state, most recently in 2021 when Gov. Greg Abbott signed what Republicans called a “constitutional carry” bill into law, allowing Texans to carry handguns without a license or training.

Texas lawmakers have approved more than 100 bills that loosened regulations on firearms over the last two decades, from blocking campus “zero tolerance” policies that expelled gun-carrying students to preventing hotels from restricting handguns, according to data compiled by ProPublica and The Texas Tribune.

U.S. Centers for Disease Control and Prevention data shows that deaths from firearms in Texas generally began to increase about two decades ago after a dramatic decline in the 1990s. There were 15 deaths by firearms per 100,000 people in Texas in 2021, a 50% jump from 1999 when there were on average 10 deaths by firearms per 100,000 people. Over the same period, firearm-related homicides rose 66% and suicides involving firearms rose 40%.

The last time Texas’ firearm death rate — including suicides, homicides and accidents — exceeded 15 per 100,000 people was in 1994.

The debate over gun violence — and how to prevent it — has erupted again this week after another Texas mass shooting: A gunman with an AR-15-style rifle killed eight weekend shoppers at an outlet mall in the Dallas suburb of Allen and wounded seven others before police shot him to death. The shooting happened just weeks before the one-year anniversary of the mass shooting at a Uvalde elementary school that left 19 children and two teachers dead.

Legal experts and researchers said it can be difficult to untangle how much gun violence can be attributed to easing gun regulations. The internet has made it easier to obtain weapons, particularly illegal ones. The COVID-19 pandemic brought massive social upheaval that prompted a rise in violence in general, including gun violence. And a rise in distrust of institutions, from the media to the government, also plays a role, experts said.

Texas Republicans have argued that eliminating regulations on firearms is compelled by a conservative reading of the U.S. Constitution — and necessary to protect the rights of Texas citizens. When Abbott signed legislation to allow permitless carry in Texas and other laws that eliminated gun regulation, he characterized the laws as “defending the Second Amendment.”

“Politicians from the federal level to the local level have threatened to take guns from law-abiding citizens, but we will not let that happen in Texas,” Abbott said.

But there’s evidence that a handful of significant state laws have affected gun ownership and gun use, and ultimately increased fatalities, legal experts and gun violence prevention advocates said.

“There are very strong reasons to believe the weakening of gun laws is associated with the rise in gun violence,” said Lindsay Nichols, policy director for the Giffords Law Center to Prevent Gun Violence, pointing to studies that show a rise in gun fatalities years after stricter regulations are lifted. “I think it’s a very good explanation for this rise in gun deaths [in Texas].”

Gun violence also increases with exposure, like other health problems, she said.

“Many forms of gun violence, like suicide, behave like a contagion,” Nichols said. For example, when people become a victim of gun violence, they are more likely to later become a perpetrator of gun violence themselves, she said. “In that way, it really spreads through communities like a disease.”

Prior to the late 1990s, Texas law had traditionally prohibited carrying handguns in many public places. Texas’ first concealed weapons law was passed in 1995, allowing people to carry concealed handguns after obtaining a license.

That law, research suggests, increased violent crime rates. In a 2017 working paper, researchers with Stanford University, the University of California at Berkeley and Columbia University found that concealed carry laws — sometimes called right to carry laws — were associated with a 13% to 15% higher violent crime rate 10 years after adoption. Such analyses are constructed by complex models that estimate how firearm death rates would have progressed in the state absent the change.

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