Wednesday, January 31, 2024

Creators: The Myth of 'Out-of-Control Crime'

Matthew T. Mangino
Creators Syndicate
January 29, 2024

Last fall, New York Times columnist Paul Krugman wrote "public views about crime needn't have much to do with personal experience."

Prior to the pandemic, crime rates were at historic lows. Take, for instance, New York City. In 2019, there were 319 murders; in 1990, there were 2,262. Homicide did increase during the pandemic, but those numbers are beginning to decline.

New York City had 386 homicides in 2023, a 12% drop from the 424 in 2022. Shootings were also down. Last year, about 1,166 people were shot in New York City, down approximately 400 from 2022 — hardly indicative of out-of-control violent crime.

The trend extends beyond New York. A recent study by the Council on Criminal Justice examined crime rates reported by law enforcement agencies in 38 American cities. The number of homicides was down 10% from 2022 — representing 515 fewer homicides in 2023.

So why did a Gallup Poll in November of last year find that 63% of Americans describe crime in the U.S. as either extremely serious or very serious?

The answer is simple; fear of crime drives up television ratings, social media traffic and provides fodder for tough-on-crime political rhetoric.

True crime television is at an all-time high. The local nightly news reports neighborhood crime like it is the only thing going on in town. Crime and courtroom dramas are on major networks nearly every night and what you've missed you can stream anytime day or night.

It has long been established that people who watch a lot of television tend to be more afraid of crime. A recent study released in May of last year found that, for many people, time spent on social media appears to similarly heighten fears of being a crime victim. Grisly stories of murder and mayhem pop up as podcasts and docudramas.

In addition, the rhetoric of fear, especially the politically expedient rants about crime and immigration — some of which are on display in the escalating border dispute between Texas and the federal government — contributes to "a positive correlation between media consumption and fear of crime."

Don't overlook the politics of crime. For instance, former President Donald Trump's declaration in his inaugural address that violent crime was experiencing its largest increase in nearly half a century and that the carnage must stop "right here and now" was simply not true. In 2017, violent crime in America was at near record lows.

Trump has never stopped berating big cities about "out-of-control crime." He called Washington, D.C. a "filthy and crime ridden embarrassment to our nation." He once said, "All over the world they're talking about Chicago. Afghanistan is a safe place by comparison." Last fall he inaccurately posted about New York City, "MURDERS & VIOLENT CRIME HIT UNIMAGINABLE RECORDS!"

The continued political rhetoric on the perceived threat to public safety posed by groups advocating and protesting for racial justice has also contributed to some believing that violence is out of control.

Most Americans seems detached from reality when it comes to crime. An interesting set of demographics may be playing a role in the unsubstantiated fear of crime — America is slowly getting older and richer and more stable.

In the last 60 years, the median age of Americans has risen from 29.5 to 44.3. According to John Roman, Ph.D., director of Center on Public Safety and Justice at the University of Chicago, "Older, wealthier people are more risk averse ... (their) tolerance for that disorder will decline ... and they will vote for politicians who vow to restore order."

Without regard to reality, crime is polling well in America. That means better ratings; better election results; and the perpetuation of the myth of "out-of-control violent crime."

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 Creators CLICK HERE


Tuesday, January 30, 2024

PLW: Pennsylvania Approves Funding for Indigent Criminal Defense

Matthew T. Mangino
The Legal Intelligencer
January 26m 2024

Pennsylvania will soon provide funding for indigent criminal defense. The legislature approved $7.5 million for criminal defense for those who cannot afford an attorney. The historic legislation was signed into law by Gov. Josh Shapiro. What is so historical about funding a constitutional right that was confirmed by the U.S. Supreme Court in 1963?

For Pennsylvania, it is an opportunity to move on from the dubious distinction of being one of only two states, South Dakota is the other, providing zero state funding for indigent defense. For Pennsylvania counties the burden of providing counsel to indigent defendants was previously paid for without state assistance.

Article I, Section 9 of the Pennsylvania Constitution provides: “In all criminal prosecutions the accused hath a right to be heard by himself and his counsel.“

According to the Pennsylvania indigent criminal defense services funding and caseloads report of the state legislative and budget committee, Pennsylvania Supreme Court decisions confirm that the Pennsylvania Constitution aligns with the U.S. Constitution in terms of an indigent criminal defendants’ right to counsel at trial.

In 1968 the Public Defender Act was adopted providing that each county is required to appoint a public defender through local government action. The county was also responsible, exclusively, for funding the office.

The Public Defender Act was the result of a 1963 U.S. Supreme Court decision that extended the Sixth Amendment—by way of the 14th Amendment—to indigent criminal defendants facing felony charges in state court. The high court later expanded the protection to misdemeanor charges.

The dire state of indigent defense in Pennsylvania has been front and center for decades. A dozen years ago, in a column for The Legal Intelligencer, I described concerns raised more than 40 years ago. The Pomeroy Report issued in 1982, chaired by Pennsylvania Supreme Court Justice Thomas W. Pomeroy and the 1998 report of the governor’s judicial reform commission, chaired by Superior Court Judge Phyllis W. Beck, both advocated for the state to finance indigent defense costs.

In 2003, The Pennsylvania Supreme Court report on racial and gender bias in the justice system recommended “that Pennsylvania institute statewide funding, and oversight, of the indigent defense system by establishing an independent indigent defense commission and appropriating state funds for the support of indigent defense.”

The report found that “Pennsylvania is generally not fulfilling its obligation to provide adequate, independent defense counsel to indigent persons.”

In 2011, the joint state government task force on services to indigent criminal defendants found, “There is no direct state funding, nor is there a statewide administrative structure for ensuring uniform quality of representation or reasonably consistent eligibility standards.”

How did we get here?

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.”

In 1932, the U.S. Supreme Court decided Powell v. Alabama, 287 U.S. 45 (1932), nine Black youths—the “Scottsboro Nine”—were accused of raping two white women in Alabama. County officials moved quickly. A total of three trials took one day and all nine were sentenced to death. Alabama law required the appointment of counsel in capital cases, but counsel was little more than a “warm body” sitting next to the defendants at trial.

The high court ruled that the U.S. Constitution requires defendants in capital cases, those facing the death penalty, be given access to counsel.

Ten years later in Betts v. Brady, 316 U.S. 455 (1942), the court refused to extend the right to counsel to criminal charges other that capital murder. Betts was indicted for robbery in Maryland. He was unable to afford counsel and requested one be appointed for him. His request was denied. He was convicted and appealed to the U.S. Supreme Court.

The high court held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.

In the early 1960s Clarence Earl Gideon was a 51-year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and Gideon asked the court to appoint him a lawyer.

Gideon was denied a lawyer. He was convicted and his state appeal denied. He ultimately made his way to the U.S. Supreme Court. Gideon was appointed an attorney for his appeal. His attorney argued that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges. He also pointed out that 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases. See Gideon v. Wainwright, 372 U.S. 335 (1963).

Justice Hugo Black’s brief opinion in Gideon was compelling:

“Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Last spring, I wrote in the Pennsylvania Capital Star, that over the decades since Gideon “the focus has evolved from merely the right to counsel—to the right to effective representation.  That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.”

The evolution from a “warm body” at counsel table to a competent attorney creates an additional problem in Pennsylvania. Besides not providing statewide funding for indigent defense, according to the National Conference of State Legislatures, Pennsylvania provides no statewide administration of right to counsel services. The county-based systems remain entirely decentralized with no oversight by state government.

Who will administer the new state funding and establish standards for local public defenders? A county-by-county review by the legislative budget and finance committee of the General Assembly in 2021 found Philadelphia spends the most money on criminal defense per person, around $30.20 in fiscal year 2019, reported The Express. The same year, Mifflin County in rural central Pennsylvania spent $3.20 per person.

The new legislation will establish a committee to decide how to spend the state’s funding for indigent defense. The legislation directs the committee to develop educational training for public defenders and to collect data that will assist in monitoring the quality of public defender services on a county level.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George in New Castle. He is the author of “The Executioner’s Toll,” 2010 and a columnist with Creators. He was the former district attorney of Lawrence County. You can reach him at and follow him on Twitter @MatthewTMangino.

To visit the Legal Intelligencer CLICK HERE

Monday, January 29, 2024

Mangino a guest on Scripps News discussing Jennifer Crumbley Trial

Watch my interview with Del Walters on Scripps News discussing the trial of Jennifer Crumbley the mother of the convicted Oxford school shooter.

 To watch the interview CLICK HERE

Tennessee legislators seek constitutional amendment to expand detention without bail

A bipartisan group of Tennessee state legislators unveiled a proposed state constitutional amendment  to grant judges more discretion to detain individuals without bail before trial for specific violent criminal charges, reported Jurist.

Tennessee House Speaker Cameron Sexton (R-District 25) made the announcement at Memphis City Hall, flanked by Memphis’ Mayor Paul Young (D), Senate Majority Leader Jack Johnson (R-District 27), a number of state legislators representing Memphis and Shelby County, local law enforcement officials and Shelby County District Attorney Steve Mulroy (D).

Sexton stated:

There’s a lot of cases all across our state that you’ve seen, not just in Memphis, but all across our state, of someone who is out on bail who is a violent criminal who committed another violent crime shortly thereafter that took another victim.

Currently, the Tennessee Constitution permits judges to deny bail only for charges that carry the possibility of the death penalty, typically limited to first-degree murder cases.

Rep. Antonio Parkinson (D-Memphis) supported the announcement saying:

A mother who has lost a son to violent crime, she does not care if you’re Democrat or Republican, … When I speak to the mothers or the parents of a constituent in Cordova whose daughter might have gone through a violent rape or a sexual assault, they don’t care if you’re Democrat or Republican.

Despite the bipartisan support, the proposal faces criticism from some advocates who argue that it won’t effectively address the crime issues in Memphis and the broader state. Rep. Justin Pearson (D-District 81), one of the two state legislators expelled last year due to a House floor protest advocating for gun control and later reinstateddismissed the proposed amendment as a “useless amendment related to bail that doesn’t address the devastation of violence in our communities.” He urged Republicans to repeal permitless carry laws in Tennessee and establish a fully funded violence prevention office.

Stand for Children Tennessee, a group that advocates for issues such as racial justice, echoed similar views saying:

This is not ‘bail reform’ — it’s an extremist attack on constitutional rights and fundamental American values that are supposed to be based on being innocent until proven guilty, … It will not fix any problem that exists, and it will not make us safer.

For the amendment to become part of the state constitution, it must successfully pass both the Tennessee State House and Senate, during one two-year General Assembly, and then pass by at least two-thirds of the vote in the second round in both chambers. The amendment would then go on a general election ballot.

The Eighth Amendment of the US Constitution bans excessive bail or fines. However, the US Supreme Court has ruled that denial of bail is constitutional. According to a 2022 policy brief from the National Conference of State Legislatures (NCSL), over 20 states have amended their constitutional bail provisions, enabling expanded pretrial detention through a variety of ways.

To read more CLICK HERE

Sunday, January 28, 2024

Senator looks to restrict use of military within U.S.

A top Democratic senator is renewing his effort to rein a president’s authority to deploy the military inside the United States. Senator Richard Blumenthal (D-Conn.), a senior member of the Homeland, Armed Services and Judiciary committees, told POLITICO he is seeking Republicans and Democrats to join his latest effort to overhaul the law involving deployments inside the U.S., known as the Insurrection Act.

The law, enacted in 1792, grants the president the authority to deploy the military domestically and use it against Americans to suppress rebellion or violence. But Blumenthal and other critics argue that it is overly broad and ripe for abuse.

“Ideally, there would be interest on the Republican side because the potential for abuse really ought to concern all of us, regardless of who was president,” Blumenthal said.

Donald Trump’s back-to-back wins in Iowa and New Hampshire have tightened his grip on the Republican Party’s presidential nomination, prompting worried lawmakers and foreign governments to devise plans to prepare for and protect against more upheaval.

The renewed push comes after Trump told an Iowa audience that he considered, but held back from, deploying the military to inner cities to fight crime. He also called New York City and Chicago “crime dens.”

“And one of the other things I’ll do — because you’re supposed to not be involved in that — you just have to be asked by the governor or the mayor to come in. The next time, I’m not waiting,” Trump said in November. “One of the things I did was let them run it, and we’re going to show how bad a job they do. Well, we did that. We don’t have to wait any longer.”

Blumenthal tried to sharpen the law once before in 2020, following Trump’s threats to use troops amid civil rights protests across the U.S. following the police killing of George Floyd. At the time, progressive Reps. Pramila Jayapal (D-Wash.), Mark Pocan (D-Wis.) and Ilhan Omar (D-Minn.), introduced a companion bill, which attracted 25 cosponsors but never made it onto the House floor. In 2020, the Democratic-controlled House added a modified version to the annual defense policy bill, but the Republican-controlled Senate and the final bill did not.

Whether Democrats in the House will revive their push alongside Blumenthal this time is unclear, but the measure would have better chances in the Democratic-controlled Senate than in the Republican-controlled House.

Blumenthal said he is drafting a new version of his legislation that would amend the law to more clearly define what an insurrection is and the circumstances under which the president can use force, though he did not offer specifics. It would also grant local officials standing in the courts to have the emergency lifted at some point after the act is invoked.

Under the law now, a president may deploy troops to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.”

It also allows a president to send the military to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” Presidents Dwight D. Eisenhower and John F. Kennedy relied on that language to enforce the Brown v. Board of Education desegregation case.

This isn’t the only legislation coming ahead of a potential Trump presidency that appears designed to rein him in. As part of the fiscal 2024 Pentagon policy bill, Congress approved bipartisan legislation that would prevent any president from withdrawing the United States from NATO without approval from the Senate or an act of Congress.

The measure, from Sens. Tim Kaine (D-Va.) and Marco Rubio (R-Fla.), protects an alliance that was a frequent target for Trump. The former president has reportedly been discussing the possibility of withdrawing the U.S. from NATO, if elected.

Blumenthal said he hopes to introduce the proposed changes to the Insurrection Act in the coming weeks as a stand-alone bill. At some point, he could attempt to add it to the next annual Pentagon policy bill.

“President Trump has in fact talked about sending troops into cities where he regards the police as being inadequate — in effect, potentially declaring martial law,” Blumenthal said, “so I think there needs to be stronger oversight.”

To read more CLICK HERE

Saturday, January 27, 2024

GOP lawmakers in Missouri raise concerns about death penalty

A group of Republican lawmakers raised concerns about the death penalty and advocated for legislation that  would abolish it in Missouri during a recent press conference at the state Capitol — characterizing it as an issue of restraining government overreach and protecting life, reported the Missouri Independent. 

Rep. Chad Perkins, a Republican from Bowling Green, has filed legislation to abolish the death penalty and sentence those on death row instead to life in prison without parole.

“I think morally, I feel obligated,” Perkins said. “Anyone who says they’re pro-life should feel a little conflicted on this topic — because if you’re pro-life then I think you’ve got to look at it and say you’re that way from the beginning to the very end. And I don’t think that the government should have a monopoly on violence.”

Joining Perkins at Tuesday’s Capitol rally were Republican Reps. Tony Lovasco of O’Fallon, Jim Murphy of St. Louis and Travis Smith of Douglas.

Missouri was one of only five states to carry out death sentences last year, along with Texas, Florida, Oklahoma and Alabama.

Missouri executed four people in 2023 and two in 2022.

Between 1989 and 2021, the state executed 91 people, according to the Death Penalty Information Center.

Four people on death row in the state have been exonerated in Missouri since 1989.

“If we are truly at a 100% pro-life state, and being 100% pro-life,” Murphy said, “I believe that the death penalty is something that we really need to examine and put an end to because there’s just too many errors to be made and it’s just too big an error to make.”

Demetrius Minor, national manager for that national advocacy group Conservatives Concerned About the Death Penalty, said Missouri could look to other states like Ohio, where there is a Republican trifecta and momentum against the death penalty, with legislative hearings over a bill to abolish it.

“The trend is beyond dispute,” Minor said, “An increasing number of conservative Republican state lawmakers nationwide are taking the lead because they believe in limited government, they demand fiscal responsibility and most importantly, they value life.”

 Lovasco, who filed the bill in previous years seeking to abolish the death penalty in Missouri, said he’s seen increased momentum on the issue from his fellow Republicans. 

“We’re seeing, finally, willingness to have a discussion about this within the Republican Party,” he said, “both behind the scenes and now finally in public.” 

Last year, after Lovasco introduced an amendment during the budget process to defund the death penalty, he said, “almost double the number of people in the Republican Party voted in favor of defunding the death penalty than when it had happened previously, when roll call votes had been done in the past by Democrats.”

Perkins is hopeful the issue gains traction this session, but it hasn’t been referred to a House committee yet. 

“Oftentimes an idea comes about and starts to get a bit of traction, and it doesn’t quite make it across the finish line,” Perkins said. “But you can feel that there’s a direction that people are going and so maybe it’s an idea whose time hasn’t quite come about, but I think that the time is coming.” 

Another bill, filed by Republican state Sen. Mary Elizabeth Coleman of Arnold, would limit but not abolish the death penalty. Her legislation would repeal a state law allowing a judge to decide on a death sentence when a jury is not in unanimous agreement.

Most of the states with active death penalty laws  require unanimous jury decision. In only Indiana and Missouri, a judge is allowed to impose a death sentence when a jury decision can’t be reached on sentencing. 

To read more CLICK HERE

Friday, January 26, 2024

Alabama carries out first ever execution with nitrogen gas

 The 1st Execution of 2024

Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints.

Alabama executed a convicted murderer with nitrogen gas on January 25, 2024, the first execution of 2024.  The state put him to death with a first-of-its-kind method that once again placed the U.S. at the forefront of the debate over capital punishment, reported The Associated Press. The state said the method would be humane, but critics called it cruel and experimental.

Officials said Kenneth Eugene Smith, 58, was pronounced dead at 8:25 p.m. at an Alabama prison after breathing pure nitrogen gas through a face mask to cause oxygen deprivation. It marked the first time that a new execution method has been used in the United States since lethal injection, now the most commonly used method, was introduced in 1982.

The execution took about 22 minutes from the time between the opening and closing of the curtains to the viewing room. Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible.

In a final statement, Smith said, “Tonight Alabama causes humanity to take a step backwards. ... I’m leaving with love, peace and light.”

He made the “I love you sign” with his hands toward family members who were witnesses. “Thank you for supporting me. Love, love all of you,” Smith said.

Alabama Gov. Kay Ivey said the execution was justice for the murder-for-hire killing of 45-year-old Elizabeth Sennett in 1988.

“After more than 30 years and attempt after attempt to game the system, Mr. Smith has answered for his horrendous crimes,” Ivey said in a statement. “I pray that Elizabeth Sennett’s family can receive closure after all these years dealing with that great loss.”

Mike Sennett, the victim’s son, said Thursday night that Smith “had been incarcerated almost twice as long as I knew my mom.”

 “Nothing happened here today is going to bring Mom back. It’s kind of a bittersweet day. We are not going to be jumping around, whooping and holler, hooray and all that,” he said. “I’ll end by saying Elizabeth Dorlene Sennett got her justice tonight.”

The state had previously attempted to execute Smith in 2022, but the lethal injection was called off at the last minute because authorities couldn’t connect an IV line.

The execution came after a last-minute legal battle in which his attorneys contended the state was making him the test subject for an experimental execution method that could violate the constitutional ban on cruel and unusual punishment. Federal courts rejected Smith’s bid to block it, with the latest ruling coming Thursday night from the U.S. Supreme Court.

Justice Sonia Sotomayor, who along with two other liberal justices dissented, wrote, “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before. The world is watching.”

The majority justices did not issue any statements.

The state had predicted the nitrogen gas would cause unconsciousness within seconds and death within minutes. State Attorney General Steve Marshall said late Thursday that nitrogen gas “was intended to be — and has now proved to be — an effective and humane method of execution.”

Asked about Smith’s shaking and convulsing on the gurney, Alabama corrections Commissioner John Q. Hamm said they appeared to be involuntary movements.

 “That was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia,” Hamm said. “Nothing was out of the ordinary from what we were expecting.”

Smith’s spiritual adviser, the Rev. Jeff Hood, said the execution did not match the state attorney general’s prediction in court filings that Smith would lose consciousness in seconds followed by death within minutes.

“We didn’t see somebody go unconscious in 30 seconds. What we saw was minutes of someone struggling for their life,” said Hood, who attended the execution.

Some doctors and organizations had expressed alarm about the method, and Smith’s attorneys asked the Supreme Court to halt the execution to review claims that it violates the constitutional ban on cruel and unusual punishment and deserved more legal scrutiny before it was used on a person.

“There is little research regarding death by nitrogen hypoxia. When the State is considering using a novel form of execution that has never been attempted anywhere, the public has an interest in ensuring the State has researched the method adequately and established procedures to minimize the pain and suffering of the condemned person,” Smith’s attorneys wrote.

In her dissent, Sotomayor said Alabama has shrouded its execution protocol in secrecy, releasing only a heavily redacted version. She added that Smith should have been allowed to obtain evidence about the protocol and to proceed with his legal challenge.

“That information is important not only to Smith, who has an extra reason to fear the gurney, but to anyone the State seeks to execute after him using this novel method,” Sotomayor wrote.

“Twice now this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain,” Sotomayor wrote. “I sincerely hope that he is not proven correct a second time.”

Justice Elena Kagan wrote a separate dissent and was joined by Justice Ketanji Brown Jackson.

In his final hours, Smith met with family members and his spiritual adviser, according to a prison spokesperson.

Smith ate a last meal of T-bone steak, hash browns, toast and eggs slathered in A1 steak sauce, Hood said by telephone before the execution was carried out.

“He’s terrified at the torture that could come. But he’s also at peace. One of the things he told me is he is finally getting out,” Hood said.

The execution protocol called for Smith to be strapped to a gurney in the execution chamber — the same one where he was strapped down for several hours during the lethal injection attempt — and a “full facepiece supplied air respirator” to be placed over his face. After he had a chance to make a final statement, the warden, from another room, was to activate the nitrogen gas. It would be administered through the mask for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol.

Hamm, the corrections commissioner, confirmed afterward that the gas was flowing for about 15 minutes.

Sant’Egidio Community, a Vatican-affiliated Catholic charity based in Rome, had urged Alabama not to go through with the execution, saying the method is “barbarous” and “uncivilized” and would bring “indelible shame” to the state. And experts appointed by the U.N. Human Rights Council cautioned they believe the execution method could violate the prohibition on torture.

Some states are looking for new ways to execute people because the drugs used in lethal injections have become difficult to find. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method, but no state had attempted to use the untested method until now.

Smith’s attorneys had raised concerns that he could choke to death on his own vomit as the nitrogen gas flows. The state made a last-minute procedural change so he would not be allowed food in the eight hours beforehand.

Sennett was found dead in her home March 18, 1988, with eight stab wounds in the chest and one on each side of her neck. Smith was one of two men convicted in the killing. The other, John Forrest Parker, was executed in 2010.

Prosecutors said they were each paid $1,000 to kill Sennett on behalf of her pastor husband, who was deeply in debt and wanted to collect on insurance. The husband, Charles Sennett Sr., killed himself when the investigation focused on him as a suspect, according to court documents.

Smith’s 1989 conviction was overturned, but he was convicted again in 1996. The jury recommended a life sentence by 11-1, but a judge overrode that and sentenced him to death. Alabama no longer allows a judge to override a jury’s death penalty decision.

 To read more CLICK HERE

Thursday, January 25, 2024

One in 5 officer involved killings involve mental illness

Police are often called to respond to situations involving people experiencing mental health crises—with disastrous results. According to The Washington Post's database of fatal police shootings, at least 1 in 5 people fatally shot by police since 2015 were experiencing a mental health crisis at the time. More than 40 percent of the people incarcerated in state prisons nationwide had a history of mental health problems, according to data from the federal Bureau of Justice Statistics, according to The Appeal.

In the absence of better healthcare, municipalities often turn to police and jails to house and "care" for people in crisis—big-city jails like New York's Rikers Island and Los Angeles County's Twin Towers Correctional Facility are often referred to as some of the largest mental health institutions in the country, for example. Experts say criminalizing people for their health problems only makes things worse.

To read more CLICK HERE

Wednesday, January 24, 2024

Creators: The Limits of Absolute Immunity

Matthew T. Mangino
Creators Syndicate
January 16, 2024

A Federal Court of Appeals recently heard lengthy arguments on Donald Trump's claim of immunity from criminal prosecution in the case brought by special counsel Jack Smith.

Questions from the panel of three judges revealed they were a bit leery of Trump's argument that the Founding Fathers envisioned absolute immunity for presidents after they left office.

"I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law," said Judge Karen LeCraft Henderson.

Trump's lawyers are claiming that a current or former president has "absolute presidential immunity from damage liability for acts within the 'outer perimeter' of his official responsibility." Trump's attorneys have conceded that immunity insulating a former president from criminal prosecution is a "serious and unsettled question of law."

The law may be a little murky when it comes to presidential immunity, but when it comes to your local county prosecutor, his or her entitlement to immunity is crystal clear. Prosecutors enjoy absolute immunity for actions they take in the course of their prosecutorial duties.

Whether elected or appointed, some prosecutors lie, cheat or mislead, and there is nothing that can be done short of disbarment — although even disbarment doesn't mean removal from office. Prosecutors can falsify evidence, introduce perjured testimony, coerce witnesses or hide favorable evidence, and those victimized — some who spent years in prison — have no legal recourse.

The Supreme Court announced the doctrine of absolute immunity for prosecutors in the 1976 decision Imbler v. Pachtman. The court ruled that a man who had spent years in prison could not sue a prosecutor who allegedly withheld evidence that ultimately exonerated him.

Paul Imbler was convicted of the murder of a grocery store manager during a botched robbery in Los Angeles. It was later determined that Deputy District Attorney Richard Pachtman knowingly used false testimony during the trial and suppressed evidence favorable to Imbler.

Imbler was released from prison and filed a federal civil rights suit against Pachtman. The district court held that Pachtman was immune from civil liability for acts done in his capacity as prosecutor and dismissed the complaint.

Ultimately, the Supreme Court agreed. However, the court acknowledged "that the immunity of prosecutors from liability ... does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law."

According to the Innocence Project, the only prosecutor in America to go to jail for misconduct was Williamson County, Texas, district attorney Ken Anderson, who oversaw the wrongful murder conviction of Michael Morton in 1987.

Morton was convicted of murdering his wife, Christine Morton. According to the Texas Tribune, attorneys for Morton alleged that Anderson withheld critical evidence that pointed to Morton's innocence and that he lied to the judge about the existence of that evidence.

Morton was sentenced to life in prison and spent nearly 25 years behind bars before DNA analysis revealed that he was innocent and connected another man to his wife's killing. He was released from prison in 2011.

In 2007, Mike Nifong was the district attorney of Durham County, North Carolina. He was removed from office, disbarred and briefly jailed following court findings concerning his conduct during the unsuccessful prosecution of members of the Duke University lacrosse team accused of sexual assault. He was found to have conspired with the DNA lab director to withhold favorable DNA evidence from defendants.

Absolute immunity may protect prosecutors, judges and even presidents from civil law suits resulting from their work. However, absolute immunity does not apply to criminal conduct. Regardless if the Supreme Court puts off deciding Trump's claim of immunity from criminal prosecution, the result is inevitable. Absolute immunity, despite its name, does not immunize public officials from criminal conduct.

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 Creators CLICK HERE

Creators: Doing Time Without Committing a Crime

Matthew T. Mangino
Creators Syndicate
January 9, 2024

Everyday throughout America, people plead guilty to crimes they did not commit. There are countless stories of people who have been exonerated after spending years in prison for crimes to which they pleaded guilty.

Why would an innocent person plead guilty to a crime?

It is not because the police have returned to the era of the "third degree," beating suspects with rubber hoses to elicit confessions. Absent some egregious exceptions, police and prosecutors are not torturing suspects into admissions of guilt.

Law enforcement doesn't have to resort to such tactics. People charged with a crime, and represented by counsel, freely and voluntarily plead guilty to crimes they did not commit.

The convergence of three things in the criminal justice system makes the seemingly impossible — innocent people pleading guilty — routine. Sentence guidelines, plea bargains and the "trial penalty" have created the perfect storm of injustice.

A sentence imposed by a judge is not solely within the discretion of the judge. A majority of states and the federal government utilize guidelines in sentencing. A sentence imposed by a judge is not solely within the discretion of the judge.

Sentence guidelines consist of a grid with two values, the prior history score and gravity score. A defendant with a history of criminal convictions will receive a numerical score — the more prior convictions, the higher the score. Each crime has a gravity score. The more serious the offense, the higher the score. The presumptive range of sentence is determined by where the two values meet on a grid.

An accused with a long criminal record, suspected of a serious crime, could face a hefty sentence under the guidelines.

In steps the plea bargain. Crime victims despise those two words; defense attorneys thrive on them; and prosecutors can't survive without them. Politicians deride the system because of the underhanded "deals" made with vicious criminals. Even frontline police officers challenge prosecutors when they perceive that the terms of a plea bargain are too lenient.

There are compelling reasons to plea bargain. Prosecutors are intimately familiar with the strengths and weaknesses of every case. There are circumstances where a plea to a lesser offense is better than a not-guilty verdict. A reluctant witness or a poor witness may also influence plea negotiations.

How can a plea bargain convince an innocent person to plead guilty? The "trial penalty" is the tipping point. Every person charged with a crime has the constitutional right to face a jury of his or her peers. The Sixth Amendment guarantees the right to trial. However, those who chose to go to trial, instead of accepting a plea bargain, are often penalized by a much harsher sentence.

The formula for getting the innocent to plead guilty is simple. It goes like this: A guy living in a seedy neighborhood, with a criminal history, is accused of a burglary. He is innocent. His criminal record and the seriousness of the offense would result in a guideline sentence of five to 10 years in prison.

The evidence against him is shaky or nonexistent. The prosecutor offers a plea bargain to a lesser offense with a sentence of one to two years. Although he is innocent, if he goes to trial and gets convicted, he could face a sentence even beyond the presumptive guideline range. The guy faces a Hobson's choice: plead guilty to a crime he didn't commit or face the possibility of years languishing in prison after a conviction.

A 2014 report by the National Association of Criminal Defense Lawyers found, "There is ample evidence that . . . defendants are being coerced to plead guilty because the (trial) 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."

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

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Tuesday, January 23, 2024

Creators: The Slow Undoing of America's Death Penalty

Matthew T. Mangino
Creators Syndicate
January 23, 2024

On Jan. 25, Alabama intends to execute Kenneth Eugene Smith by a method known as nitrogen hypoxia. The method has never been used to kill a human being.

As we begin a new year, and a new method of execution, it is abundantly clear that a majority of Americans have grown to doubt the efficacy of the death penalty. For the first time, the number of executions exceeded the number of new death sentences nationwide.

There are fewer prosecutors seeking the death penalty, fewer juries imposing the death penalty and fewer states carrying out the death penalty. In fact, the 24 executions in 2023 were carried out in only five states — Texas, Florida, Missouri, Oklahoma and Alabama.

According to the Death Penalty Information Center, only 21 people were sentenced to death in 2023. Those sentences were meted out in only seven states — Alabama, Arizona, California, Florida, Louisiana, North Carolina and Texas.

A Gallup poll conducted in 2023 found that 50% of Americans believe the death penalty is administered unfairly. Many Americans see the death penalty as an arcane and unfair punishment. However, politicians continue to use the death penalty to win political points and demonstrate their tough-on-crime bona fides.

One example is Alabama's rush to use a new execution method that experts believe may violate condemned prisoners' rights. According to CBS News, experts warn that using nitrogen hypoxia for an execution likely violates "a body of principles adopted by the U.N. to protect detained people and an international treaty against torture that the U.S. signed decades ago."

In another example of political posturing, Florida prosecutors have announced they intend to seek the death penalty in a child rape case. The pursuit of capital punishment comes after lawmakers passed, and Gov. Ron DeSantis signed into law, a measure allowing the death penalty for those convicted of sexually assaulting children under the age of 12.

In Pennsylvania, according to the Uniontown Herald-Standard, a bill was recently introduced allowing the punishment of death for someone who is convicted of the rape of a child.

These new laws come in spite of a 2008 U.S. Supreme Court ruling — Kennedy v. Louisiana — that specifically prohibited the death penalty as an option for the crime of raping a child. What could be more evidence of political grandstanding than trying to enact a law that has been clearly deemed unconstitutional?

Contrary to the ill-conceived efforts in Florida and Pennsylvania, a number of states have recently outlawed the death penalty. Virginia is the most recent state to abolish the death penalty, dumping the punishment in July 2021. As a result, according to the Death Penalty Information Center, half of all U.S. states have abolished the death penalty or currently prohibit executions. In fact, 32 states have either abolished the death penalty or have not carried out an execution in more than a decade.

Is the death penalty inching toward a national consensus opposing executions?

Examining the death penalty in America's largest state provides some perspective on today's death penalty. Since capital punishment was reinstated in California in 1978, 13 condemned inmates have been executed. During those 45 years, 166 death row inmates have died from natural causes, suicide, drug overdoses or undetermined causes.

The absurdity of the death penalty doesn't end there. In Pennsylvania, where Gov. Josh Shapiro continued a "moratorium" implemented by his predecessor, only three men have been executed in more than 45 years.

Shapiro not only continued the previously imposed moratorium on signing death warrants; he called on the legislature to abolish the death penalty. He did not hide behind the idea that the death penalty is arbitrary or too costly; Shapiro said the death penalty is immoral.

Last year, a month into his term, Shapiro said, "The Commonwealth shouldn't be in the business of putting people to death, period." He continued, "At its core, for me, this is a fundamental statement of morality, of what's right and wrong in my humble opinion. And I believe as governor that Pennsylvanians must be on the right side of this issue."

A refreshingly straightforward response to an otherwise politically corrupted issue of life or death.

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

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Monday, January 22, 2024

Significant increase in pending criminal cases since pandemic

A sampling of large prosecutors' offices around the U.S. found a 62% increase in the number of pending cases after the COVID-19 pandemic. The survey was commissioned by the Association of Prosecuting Attorneys (APA) to understand the phenomenon of case backlogs, according to the National Criminal Justice Association.

As the pandemic began in 2020, 14 of the largest prosecutors’ offices reported just under 9,000 cases awaiting trial on average. After various court disruptions caused by COVID-19, there was an average increase of 5,565 cases per office.

"Case backlogs present a serious challenge to not just prosecutors’ offices, but the functioning of the entire criminal legal system," APA said in a report. "We find that caseloads have grown post pandemic and remain higher than pre-pandemic levels despite the resumption of normal operations and a varied programmatic response to address backlogs that remains in place in many offices today."

APA said that "morale challenges during the pandemic and lack of funding to hire and retain prosecutors are

the most salient reasons that offices are not able to act to the fullest extent possible to address their case backlogs."

The association noted that the caseload handled by specific prosecutors is "extremely varied" because of differing prosecution models.

Excessive caseloads for individual prosecutors, a report issued by the association said, "can result in longer case processing time, a greater risk for decision-making errors, increased plea bargains and dismissals, career burnout, and employee turnover."

“Our office struggles with the same issues plaguing prosecutor’s offices around the country. My attorneys each have caseloads in excess of 3-times the national standards and I have hundreds of felony cases waiting to be reviewed for prosecution," said Audrey Cromwell, County Attorney in Gallatin County, Mont.

Caseload levels have been influenced by government "funding shocks" in the past two decades. The 2008 financial crisis and its resulting recession reduced state budgets, employee rank and payroll, shrinking the staff available to carry out prosecutors' requests for help.

APA also cited changing legal requirements and new technologies, as well as victims’ rights laws that require prosecutors to spend more time working with victims.

Some 46 states have enacted "open discovery" laws, up from about a third of the states in 2004. The measures generally increase the requirements for timely evidence collection.

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Saturday, January 20, 2024

Alec Baldwin charged with involuntary manslaughter, again

A grand jury in New Mexico indicted Alec Baldwin on a charge of involuntary manslaughter, reviving the criminal case against him in the fatal shooting of a cinematographer on the set of the film “Rust” more than two years ago when a gun he was rehearsing with went off, according to The New York Times.

The indictment, which came exactly one year after the first involuntary manslaughter case against him was announced, was the latest reversal of fortune for Mr. Baldwin. The local district attorney’s initial case fell apart and the initial charge against Mr. Baldwin was dismissed in April. But a new prosecution team, Kari T. Morrissey and Jason J. Lewis, decided to present the case to a grand jury, which indicted Mr. Baldwin on Friday.

In New Mexico, an involuntary manslaughter conviction on a charge like the one Mr. Baldwin faces can carry up to 18 months in prison.

“We look forward to our day in court,” Mr. Baldwin’s lawyers, Luke Nikas and Alex Spiro, said in a statement on Friday.

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Friday, January 19, 2024

Massachusetts Supreme Court 'emerging adults' entitled to parole

 The Massachusetts Supreme Judicial Court recently ruled that 18-year-old sentenced to life without parole is entitled to seek parole, reported the ABA Journal.

The U.S. Supreme Court banned mandatory sentences of life without the possibility of parole for juvenile offenders in Miller v. Alabama in 2012, holding that such sentences violate the Eighth Amendment when a youth’s individual characteristics are not allowed to be taken into account.

The Massachusetts Supreme Judicial Court went further in 2013, holding that any sentence of life without parole for juveniles under age 18 was unconstitutional.

Sheldon Mattis was 18 years old at the time of the fatal shooting and was sentenced to life without the possibility of parole. Extending its 2013 decision, the Massachusetts Supreme Judicial Court held on Jan. 11 that “emerging adults” ages 18, 19 and 20 are entitled to the possibility of parole under the Massachusetts Declaration of Rights. That case is Commonwealth v. Mattis.

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Thursday, January 18, 2024

PA House Judiciary Committee moves forward with gun measures

Democrats in majority control of the Pennsylvania House of Representatives advanced several gun measures, including one that would ban sales of automatic and semi-automatic guns, after years of standstill in the politically divided state government, reported The Associated Press.

The bills were passed by the Judiciary Committee on party lines and await the full House’s consideration.

Even if the bills clear the House floor, however, they will likely face a cold reception in the state Senate; other gun control measures passed by the House last year did not even get called up in committee. Instead, senators have prioritized working with Democrats to boost funding for anti-violence and mental health programs.

Still, it’s the second time since Democrats regained majority status in the chamber that they’ve used their heft to push gun control measures. They kicked off the current two-year session last March with a hearing on gun violence. Under Republican majorities in both chambers until last year, the Legislature has not seriously considered broadening gun-control measures since 2018.

The slate of bills that passed Judiciary on Wednesday would balance gun ownership with protecting average citizens, Democrats argued.

“These are issues that we were clear at the beginning of the session we wanted to tackle,” said the committee’s chairman, Democratic Rep. Tim Briggs of Montgomery County. “The first thing we did was have a hearing on gun violence prevention measures.”

Republicans raised concerns about infringing upon constitutional rights.

“If the government can infringe on our Second Amendment rights, no rights can be enjoyed by citizens of this nation,” said Rep. Joe Hamm, a Republican from Lycoming County.

One bill the committee approved would ban future sales of “assault weapons,” defined as automatic and semi-automatic firearms. Sponsors cited the use of high-capacity semi-automatic rifles in a number of mass shootings, including in Pittsburgh, where a gunman carried out the deadliest antisemitic attack in U.S. history in 2018 armed with an AR-15 rifle and other weapons.

Previously, Democratic Gov. Josh Shapiro has said he’d support legislation that limits the availability of such firearms. At least 10 states have enacted laws banning them, sometimes spurring litigation.

Among the other legislation that passed the committee, one bill would prohibit accelerated trigger activators, which increase the rate of gunfire. Another bill would prohibit the purchase, sale and production of untraceable gun parts. A fourth would subject 3D-printed firearms to the same regulations as standard firearms.

Another bill would shorten the time a judge has to notify the Pennsylvania State Police about a person with mental health from about a week to four days.

Adam Garber, executive director of CeaseFirePA, a gun violence prevention group, said the advancing of the bills showed a “commitment to survivors.” He called the automatic weapons ban proposal the first such effort in “modern times.”

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Wednesday, January 17, 2024

NRA concocted plan to conceal luxury expenses by chief executive

At a meeting in June 2009, the treasurer of the National Rifle Association worked out a plan to conceal luxury expenses involving its chief executive, Wayne LaPierre, according to audio of the meeting obtained by The Trace and ProPublica

The recording was unknown to New York’s attorney general, who is pursuing the NRA and LaPierre over a range of alleged financial misdeeds. It shows, in real time, the NRA’s treasurer enlisting the group’s longtime public relations firm to obfuscate the extravagant costs.

Captured on tape is talk of LaPierre’s desire to avoid public disclosure of his use of private jets as well as concern about persistent spending at the Beverly Hills Hotel by a PR executive and close LaPierre adviser.

During the meeting, which took place in the Alexandria, Virginia, office of PR firm Ackerman McQueen, executives agreed that Ackerman would issue a Platinum American Express card to Tyler Schropp, the new head of the NRA’s nascent advancement division, which was responsible for bringing in high-dollar contributions from wealthy donors. Ackerman would then cover the card’s charges and bill them back to the NRA under nondescript invoices.

“It’s really the limo services and the hotels that I worry about,” William Winkler, Ackerman’s chief financial officer, said. “He’s going to need it for the hotels especially.”

The use of the Ackerman American Express card, according to a report by New York Attorney General Letitia James’ expert witness on nonprofits, skirted internal controls that existed to ensure proper disclosure and regulatory compliance and to prevent “fraud and abuse” at the nonprofit. As a result, outside of a tiny group of NRA insiders, everyone was in the dark about years of charges by Schropp — who is still the head of the nonprofit’s advancement division — for luxury accommodations, including regular sojourns to the Four Seasons and the Ritz-Carlton. The NRA, in response, said the report was “rife with inadmissible factual narratives, impermissible interpretations and inferences, and improper factual and legal conclusions.”

James’ investigation into the NRA began in 2019, after The Trace, in partnership with The New Yorker, and later with ProPublica, reported on internal accounting documents that indicated a culture of self-dealing at the gun-rights group. In 2020, James sued the NRA and LaPierre, who presided over the organization for three decades, over claims of using nonprofit resources for personal enrichment, luxury travel and bloated contracts for insiders, allegations that the parties deny. The attorney general is seeking financial restitution from the defendants and was until last week petitioning for LaPierre’s removal, which was preempted on Friday when LaPierre announced he would resign at the end of January.

The attorney general’s office was unaware of the audio until it was contacted by The Trace and ProPublica and did not respond to a request for comment.

Ackerman McQueen and Winkler declined to comment. None of the other individuals mentioned in this story responded to requests for comment. The gun-rights group’s attorney, William A. Brewer III, said in an email: “The tape has not been authenticated by the NRA but, if real, we are shocked by its content. The suggested contents would confirm what the NRA has said all along: there were certain ‘insiders’ and vendors who took advantage of the Association. If true, it is an example of a shadowy business arrangement — one that was not brought to the attention of the NRA board.”

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