Alabama executes man for the brutal murder of an elderly couple

The 6th Execution of 2024

Alabama Death Row inmate Jamie Ray Mills was executed by lethal injection on May 30, 2024 for the brutal slayings of an elderly couple with a machete, ball-peen hammer, and a tire iron two decades ago.

Alabama Governor Kay Ivey, in announcing the execution had been carried out, stated that “Almost 20 years ago, the grandchildren of Floyd and Vera Hill, worried for their grandparents, filed a missing-person report only for police to discover the couple had been brutally and horrendously beaten to death. The Hills’ lives were taken at the hands of Jamie Mills. The evidence in this case is overwhelming, and Mr. Mills is undoubtedly guilty.”

“Tonight, two decades after he committed these murders, Jamie Mills has paid the price for his heinous crimes. I pray for the victims and their loved ones as they continue to grieve.”

Mills had maintained his innocence, and didn’t mention the crime in his final words.

Alabama Attorney General Steve Marshall also issued a statement Thursday night, saying Mills’ “actions were cold and calculated, and his assigned punishment has never been more deserved.”

Mills was convicted and sentenced to die for the June 24, 2004 beating deaths of Floyd and Vera Hill. The elderly couple were beaten at their Marion County home before, prosecutors said, Mills and his former wife stole cash and prescription medication.

The execution

The execution was carried out at the William C. Holman Correctional Facility in Atmore using the state’s three-drug lethal injection cocktail instead of nitrogen gas, which was used for the first time in the nation in Alabama in January’s execution of Kenneth Smith. Mills did not elect to change his execution method to nitrogen when inmates were given the opportunity to do so in June 2018.

The curtain to the execution chamber opened at 6:07 p.m., while several of Mills’ five witnesses cried softly in the witness room. One of his witnesses whispered, “Oh my God” as the curtain opened.

During the execution, his family continued to cry softly. One woman whispered, “Oh god” at one point.

After the curtain opened, Mills gave a thumbs up motion towards the witness room where his attorney and family watched, along with members of the media. He was softly trembling as the death warrant was read.

His last words were: “I love my family. I love my brother and sister. I couldn’t ask for more. Charlotte, you fought hard for me. I love ya’ll, carry on.”

He was referring to Charlotte Morrison, his attorney from the Equal Justice Initiative. She was in the witness room.

Mills continuously gave a thumbs up to his family. At 6:12 p.m., his spiritual advisor approached him and prayed over him. Mills mouthed “I love you” to his family. About a minute after that, Mills appeared to slip into unconsciousness.

At 6:14 p.m., a prison guard in the execution chamber performed the standard consciousness check by flicking Mills’ eyelid, yelling his name, and pinching his arm. Mills did not respond to any of those actions.

Curtains to the execution room closed at 6:19 p.m. and his official time of death was 6:26 p.m.

The execution started about an hour and a half after the United States Supreme Court issued orders rejecting Mills’ two appeals and a request to stay the execution.

Alabama Department of Corrections Commissioner John Hamm said the team who starts intravenous lines for the lethal injection didn’t have any issues finding a vein. Similar issues plagued several executions over the past years, with multiple being called off after IV lines couldn’t be started in time.

He said that Mills had “two sticks” and that each of the two IV lines were started on the first try.

The members of the execution team who start IVs were replaced following the governor’s three-month halt to executions at the end of 2022 and into 2023. Hamm credited that personnel change to the quick turn-around of Mills’ execution.

Members of the Hill family witnessed the execution, but requested their names not be shared.

The family of the Hills released a statement for Commissioner John Hamm to read following Mills’ death. It said, “In the past 20 years, our family has been seeking justice, and today justice has been served. However, it took 20 years to do so. Our family believes in the judicial system, no matter how long it takes.”

“Our family now can have some closure to this heinous crime that he committed and our loving grandparents can rest in peace. Let this be a lesson for those that believe justice will not find you. Hopefully this will prevent others from committing future crimes. God help us all.”

Mills’ last hours

Before the execution, Alabama prison spokesperson Kelly Betts provided a recollection of Mills’ last 24 hours, including his last meals.

On Wednesday, he was visited by his brother, sister, brother-in-law, sister-in-law, spiritual advisor and a friend. He ate breakfast and lunch, along with snacks throughout the day. He refused his dinner. He also had phone calls with family members and his attorney.

On Thursday, Mills was visited by his brother, sister, brother-in-law, sister-in-law, spiritual advisor, and attorney. He didn’t make any phone calls.

His breakfast on Thursday was made up of eggs, gravy, prunes, oatmeal, and biscuits. He had snacks including potato chips, a candy bar, and a Sunkist and cola drink. His last meal consisted of a seafood platter with three large shrimp, two catfish filets, three oysters, three onion rings, and one stuffed crab.

Mills, 50, had fought his execution in two separate federal lawsuits: One challenging the state’s lethal injection protocol and another claiming his former wife lied when testifying against him.

Wednesday afternoon, Mills’ lawyers from the Equal Justice Initiative appealed to the U.S. Supreme Court after having had the appeal rejected by the 11th Circuit Court of Appeals on Tuesday.

EJI, which represented Mills for many years released a statement after the execution: “By failing to honestly disclose the conversations and arrangements with the state’s main witness against Jamie Mills at trial, state prosecutors have lied, deceived and misrepresented the reliability of the evidence against Jamie Mills for 17 years. They weren’t honest with Jamie Mills, with the jury, the judge, state and federal appeal courts or the public. New evidence documenting this deceit has been dismissed as ‘too late,’ making finality more important than fairness. This is not justice.”

The group added, “Jamie Mills becomes another person needlessly killed by state officials who comfortably tolerate state deception, violation of the law and breach of fundamental, constitutional rights to carry out a death sentence they claim upholds the rule of law.”

The crime

Floyd Hill and Vera Hill had been married 55 years and lived in Guin, a small town in Marion County. According to an inscription on his gravestone, Floyd Hill was an Army veteran of World War II.

Vera Hill, 72, was in poor health. Though 15 years older, Floyd Hill acted as her caretaker.

Court documents laid out the events surrounding the couple’s brutal deaths on June 24, 2004.

Jamie Mills and his then-wife, JoAnn Mills, went to the Hills’ house on County Road 54. According to JoAnn Mills’ testimony at Jamie Mills’ trial, the Hills let the couple inside for Jamie Mills to use their phone. After he made several phone calls, Vera Hill wanted to show JoAnn Mills some of the items in their shed that she was planning to sell at a yard sale.

Floyd Hill unlocked the shed and everyone looked at the items for sale, according to JoAnn Mills’ testimony. After that, Jamie Mills and Floyd Hill continued to talk inside the shed while the women stepped outside.

JoAnn Mills said that she heard a loud noise and saw her husband swinging something. She followed Vera Hill back inside the shed, when she saw Floyd Hill lying on the ground. Then, she said, Jamie Mills hit Vera Hill in the head with a hammer.

Jamie Mills continued to beat the couple, JoAnn Mills said. At some point, the Mills left the shed and went into the Hill home and stole various items, including Floyd Hills’ wallet, Vera Hills’ purse, a phone, and a tacklebox containing prescription medication.

Guin police stopped the couple the next day when they were leaving their house with the murder weapons and bloody clothes.

The Hills were found after one of their adult grandchildren stopped by to check on them the night of the murders and couldn’t find them. When police arrived and found the elderly couple in their shed, Floyd Hill was pronounced dead at the scene.

Vera Hill was taken to a nearby hospital with serious injuries, and later transferred to UAB Hospital in Birmingham. She died September 12, 2004. Court records show her cause of death was “complications of blunt head trauma.”

JoAnn Mills initially told police a local drug dealer had committed the murders.

But the murder weapons, along with Jamie Mills’ bloody clothes, were found in the Mills car trunk. Jamie Mills has argued that the car trunk didn’t lock, and the drug dealer had access to the couple’s car on the day of the crime.

Mills maintained his innocence.

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Former president and presumptive 2024 GOP nominee is a convicted felon

 On Thursday, May 30, 2024, New York jurors found Donald Trump guilty on all 34 felony counts of falsifying business records to cover up hush money payments to a porn star ultimately to influence the outcome of the 2016 presidential election.

The first-ever criminal trial of a former U.S. president wrapped up in Manhattan, marking an extraordinary moment in American history not only for a former leader, but for one who is seeking to again hold the Oval Office. Trump, the Republican Party’s presumed 2024 presidential nominee, is now a convicted felon.

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Heading to Nashville for CrimeCon 2024

 I will be presenting on Sunday, June 2, 2024 at 9 am-- "Through the lens of an Auter:  How fice classic Hollywood films influenced the justice system."

NYT: Jamie Raskin--How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases

Congressman Jamie Raskin, in a guest opinion for The New York Times, demonstrates how to force Justices Alito and Thomas to recuse themselves from the Jan. 6 cases.

"The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court." 

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Mangino discusses closings in NY v. Trump

Watch my interview with Lindsay McCoy of WFMJ-TV21 regarding the closing arguments in New York v. Donald Trump.

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Creators: What Does It Take To Be The 'Trial of the Century'

Matthew T. Mangino
Creators
May 28, 2024

This week we can expect a verdict in New York v. Donald Trump. This might be the most important criminal trial in the history of our country — a former president and current frontrunner in the race for another shot at the White House is on trial in Manhattan accused of falsifying business records to cover up a tryst with a porn star.

We have heard talk in the past of "trials of the century." The People v. Simpson generated some renewed interest with the recent death of O.J. Simpson. In 1994, the football Hall of Famer's ex-wife, Nicole Brown, and her friend Ronald Goldman were stabbed to death outside her home in Los Angeles. After more than a year of mesmerizing television coverage, Simpson was acquitted.

The Simpson trial riveted the nation. Every moment of the trial was televised on cable news channels. News programs and talk shows analyzed every facet of the trial. The same is not true for New York v. Trump. The lack of cameras has contributed to a lack of interest.

The criminal prosecution of a former president seems to have generated less interest than the 2022 civil trial involving Johnny Depp and his ex-wife, Amber Heard. According to Axios, from April 4 to May 16, 2022, news articles about the trial had generated more social-media interactions per article in the United States than the leaked Supreme Court draft opinion on abortion, Elon Musk's acquisition of Twitter, and the Russian invasion of the Ukraine. Live streaming is the difference between the incredible interest in Depp's trial and the ho-hum view of Trump's trial.

The 20th century had more than one "trial of the century." In fact, exactly 100 years ago, there was a murder trial splashed across newspapers nationwide.

Two men accused of murder, and their names have withstood the test of time even without livestreaming.

In 1924, Nathan Leopold Jr. and Richard Loeb, two wealthy University of Chicago students, rented a car and stocked it with tools to commit the "perfect crime." They drove to a nearby Chicago park and waited for the perfect victim. They found Bobby Franks.

The two young men lured the 14-year-old Franks into the car. They were subsequently accused of murdering and mutilating Franks for the thrill of the kill.

Although the prosecution of Leopold and Loeb was heralded as the "trial of the century," the case was not really a trial at all. Renowned criminal defense attorney Clarence Darrow changed the young men's pleas from not guilty to guilty and focused his efforts on preventing their execution.

Darrow chose to focus on saving the lives of Leopold and Loeb, his two young sadistic clients. Darrow asked the judge, "Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way."

He continued to argue, "Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!"

Darrow's condemnation of the death penalty concluded, "Your Honor, what excuse could you possibly have for putting these boys to death? You would have to turn your back on every precedent of the past. You would have to turn your back on the progress of the world. You would have to ignore all human sentiment and feeling — you would have to do all this if you would hang boys of 18 and 19 years of age who have come into this court and thrown themselves upon your mercy."

Leopold and Loeb were saved from the death penalty and sentenced to life in prison. Trump is not facing the death penalty, but maybe the death of his political ambitions. Can his lawyers save the life of his campaign?

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

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Trump verdict expected this week--look for anger, vengeance and revenge

The verdict in former President Donald J. Trump’s criminal trial remains a mystery, at least for a few more days. Less of a mystery is what Mr. Trump will say and do after it is announced — whatever the outcome might be, reported The New York Times.

If the past is any guide, even with a full acquittal, Mr. Trump will be angry and vengeful, and will direct attacks against everyone he perceives to be responsible for the Manhattan district attorney’s prosecution. He will continue to level the attacks publicly, at rallies and on Truth Social, and privately encourage his House Republican allies to subpoena his Democratic enemies.

The pattern is firmly established: After Mr. Trump escaped impeachment convictions twice and survived a special counsel investigation led by Robert S. Mueller III into ties between his 2016 campaign and Russia, he immediately went into revenge mode — complaining about the injustices he was forced to endure and urging his allies to investigate the investigators.

“Regardless of the outcome, the playbook is the same,” said Alyssa Farah Griffin, Mr. Trump’s former White House communications director, who began working for him shortly after his first impeachment trial but has since become a sharp critic of her former boss.

Mr. Trump’s team is still determining his plans for the period after the trial’s conclusion, timing that remains at the mercy of the jury.

It is unclear how much the public cares about his trial over allegations that he falsified business records to conceal hush money payments to a porn star during the 2016 election. Mr. Trump’s advisers have been running a private poll tracking public opinion throughout the trial, according to a person briefed on the data, and have not seen a significant downturn in his support, even during some of the more bruising days of testimony. Public polling also suggests a relatively stable race.

But that may change, depending on the verdict. A conviction could turn some voters against him, polling suggests, but even his staunchest opponents feel little confidence about that. And any other outcome could boost him at a time when he is already leading President Biden in most polls of the states that will decide the election.

“An acquittal or a hung jury is just absolute gold for Trump. And it will resonate with a lot of people,” Ms. Griffin said. “He doesn’t want to be convicted for a variety of reasons, but I do think he realizes there’s a way to turn this into political jet fuel.”

Some of Mr. Trump’s former staff members who spent time with him after his previous investigations said that he was in no mood to celebrate after these purported victories but instead sought retribution.

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Mangino on WFMJ-TV21 discussing self defense

Watch my interview on WFMJ-TV21 with Kaitlyn McCarthey discussing self defense in Ohio and Pennsylvania.

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Mangino a guest on Crime Stories with Nancy Grace

Check out my appearance on Crime Stories with Nancy Grace discussing the married millionaire-party-mom who kills two boys while drag racing her boyfriend. 

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New York Times: Footprint of gun violence in Lawrence County, Pennsylvania

 

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Federal Judge fights back against expansion of qualified immunity

 A Section 1983 claim is a federal law that allows people to sue state and local officials for violating their federal constitutional rights, reported The New Republic. Congress enacted it as part of the Ku Klux Klan Act of 1871, which is also known as the Enforcement Act, to protect the civil rights of Black Southerners during Reconstruction. Section 1983 cases underwent a revival of sorts in the 1950s and 1960s, only to find themselves curtailed again by the court in Pierson.

Qualified Immunity has made 1983 actions less accessible. Its origins can be traced back to the 1967 case Pierson v. Ray, where the Supreme Court established it in ruling against a group of priests who sued Jackson police officers who had arrested them on spurious grounds at a civil rights protest.

Federal District Judge Carlton Reeves Reeves is fighting the trend of Qualified Immunity. He wrote that it was “difficult to see qualified immunity’s creation as anything other than a backlash to the civil rights movement,” given the historical context. “The justices took a law meant to protect freed people exercising their federal rights in Southern states after the Civil War, then flipped its meaning,” he noted. “In creating qualified immunity, the high court protected the Southern officials still violating those federal rights 100 years after the war ended. Southern trees bear strange fruit, indeed.”

The Supreme Court’s current articulation of qualified immunity hinges on whether a police officer violated a “clearly established right.” This is more bizarre in practice than it sounds in theory. What counts as “clearly established”? In many cases, it means that a federal appeals court previously ruled that the officer’s specific acts violated some part of the Constitution. But lower courts often take an extremely narrow view of whether an act was “clearly established,” and appellate courts aren’t obligated to “clearly establish” it for future cases, either.

Reeves noted that this requirement is “unusual in the law” and that no other claims require it. “If a surgeon accidentally leaves a sponge in your abdomen before stitching you up, you do not have to point to an existing appellate decision ‘clearly establishing’ his error before proceeding with your claim,” he observed. “You simply state the facts and explain that the surgeon’s conduct fell below the standard of care.”

To highlight its absurdity, he pointed to a number of surprising instances in other courts where misconduct wasn’t “clearly established.” The Ninth Circuit once ruled, for example, that officers who stole a $225,000 rare coin collection “did not have clear notice that it violated the Fourth Amendment,” essentially ruling that committing the crime of theft did not violate the victim’s rights. The Fifth Circuit held that it was OK to keep a prisoner “in a frigid cell” where he was “covered in other persons’ feces and forced to sleep naked in sewage” for six days because the “clearly established” precedent only barred it for “months.” In another case, a court held that it was not “clearly established” that prison guards who watched a mentally unstable inmate hang himself should have called for paramedics.

I could list more examples, and so could Reeves, but you probably get the point by now. “[Qualified immunity] discourages victims of misconduct from bringing lawsuits, and those who do file suit sometimes recover nothing because of it,” he wrote. “Qualified immunity accomplishes this by preventing victims of government misconduct from using the discovery tools available to other litigants.” He also noted the obvious effects it had on racial inequality, since Black defendants are statistically more likely to face interactions with law enforcement than other Americans.

Reeves, as a federal district court judge, is not free to simply ignore Supreme Court precedent. But he denied qualified immunity to Thomas all the same. He sided with Green on every portion of his claim, rejecting even some plausible defenses that Thomas had raised. When courts consider a defendant’s motion to dismiss, they typically assume that the plaintiff’s allegations are true and interpret any factual disputes in the plaintiff’s favor. The reasoning for this is simple: If a case can’t survive under even the friendliest circumstances, then it shouldn’t.

Reeves leaned heavily on this principle to allow the malicious prosecution and false arrest claims to go forward. He also used to it defeat Thomas’s insistence that the grand jury’s involvement made her less liable for what happened. Reeves noted that, as alleged by Green, the officer had not told the grand jury that the jailhouse informant had serious credibility issues or that they had contradictory evidence about Robinson’s death. “Had she provided the grand jury with full and complete information, Green alleges, he would not have been indicted,” the judge concluded.

Reeves also took aim at some occasional defenses made of the Supreme Court’s current approach to qualified immunity. He rejected an assertion made by the court in 2018 that it was Congress’s responsibility to address the issue, noting that qualified immunity was a creature of the federal courts’ own making. “Qualified immunity does not appear in the text of the Ku Klux Klan Act,” he observed, quoting from precedent. “It is not found in any constitutional provision or other statute. Nor does it ‘help give life and substance’ to the ‘specific guarantees in the Bill of Rights.’ The defense has the opposite effect. It nullifies the guarantees of the Bill of Rights.”

At one point, he also criticized the Supreme Court for its inaction on qualified immunity by pointing to how it abolished a constitutional right to obtain an abortion in Dobbs v. Jackson Women’s Health Organization. As its name suggests, that case also involved Jackson, Mississippi. Reeves had been the trial judge in the case and ruled in favor of the clinic challenging the state’s restrictions.

On appeal, the Supreme Court ruled in favor of the state instead and overturned Roe v. Wade along the way. Reeves noted that qualified immunity opponents and anti-abortion opponents had made similar arguments: The latter had alleged that previous generations of justices had created an atextual rule though “raw judicial power” and had “short-circuited the democratic process” along the way. “The arguments against qualified immunity are stronger than the arguments [Mississippi] presented in Dobbs,” he concluded.

While this type of direct criticism is somewhat unusual for a federal judge, it is pretty standard for Reeves. Over the last few years, he has pointedly criticized the court on other issues, notably in Second Amendment cases. In a 2022 case, he applied the court’s new history-and-tradition text while adding that neither he nor the justices are “trained historians.” Last summer, at a later stage of the case’s proceedings, he aired his concerns about originalism and its role as “the dominant mode of constitutional interpretation” nowadays. “This court is not so sure it should be,” Reeves wrote, referring to himself.

Thomas will undoubtedly appeal the ruling to the Eleventh Circuit, which may take a different view of things. Even if the appeals courts overturn Reeves’s ruling, however, they can’t stop him from pointing out qualified immunity’s deep and inextricable flaws. Nor can they reverse the growing chorus of calls for the Supreme Court to rethink the matter. As Reeves pointedly observed, it is a problem that only they can truly solve.

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Uvalde families sue police on second anniversary of horrific school shooting and response failures

Tomorrow marks the second anniversary of the horrific school shooting in Uvalde, Texas. The families of 19 of the victims in the Uvalde elementary school shooting have filed a $500 million federal lawsuit against nearly 100 state police officers who were part of the botched law enforcement response to one of the deadliest school shootings in U.S. history, reported The Associated Press.

The families said they also agreed to a $2 million settlement with the city, under which city leaders promised higher standards and better training for local police.

The lawsuit and settlement announcement in Uvalde came two days before the two-year anniversary of the massacre. Nineteen fourth-graders and two teachers were killed on May 24, 2022, when a teenage gunman burst into their classroom at Robb Elementary School and began shooting.

The lawsuit, seeking at least $500 million in damages, is the latest of several seeking accountability for the law enforcement response. More than 370 federal, state and local officers converged on the scene, but they waited more than 70 minutes before confronting the shooter.

It is the first lawsuit to be filed after a 600-page Justice Department report was released in January that catalogued “cascading failures” in training, communication, leadership and technology problems that day.

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Family of wrongfully executed Pennsylvania man sue 90 years later

Susie Williams Carter was only around a year old when her 16-year-old brother, Alexander McClay Williams, was convicted of murder and executed in an electric chair in 1931. She never knew him. But now, more than 90 years after her brother’s death, she wants to tell everyone about him, reported the Washington Post.

“I want the world to know that he did not do this,” Carter, 94, told The Washington Post on Monday.

It took decades, and the dogged work of the great-grandson of Williams’s defense lawyer, to clear his name. Williams, the youngest person to be executed in Pennsylvania history, had his conviction overturned in 2022 when attorneys brought the case to a Delaware County judge after finding that investigators ignored evidence and pressured Williams, a Black minor, to sign several confessions before his trial.

Williams’s exoneration from the almost century-old conviction was a watershed moment for his family. It also cleared the way for them to seek further recourse. On Friday, they sued Delaware County and representatives for the estates of two detectives and the assistant district attorney in Delaware at the time of Williams’s trial, all now deceased, seeking unspecified punitive damages for Williams’s wrongful conviction and execution.

“The next step is to bring justice,” Carter said. “And to keep people from doing things like this.”

Delaware County and attorneys representing the estates did not immediately respond to requests for comment Monday afternoon.

Williams was arrested in 1930 after a White matron at the Delaware County reform school he attended was found dead. Vida Robare, 34, had been stabbed with an ice pick 47 times in a grisly killing that quickly sparked national intrigue, according to Carter’s lawsuit and research conducted by Sam Lemon, the great-grandson of Williams’s defense attorney who led the effort to reexamine his case.

Williams, who was arrested decades before the 1963 Supreme Court ruling that guaranteed criminal defendants the right to counsel, denied the allegations initially but was questioned five times without a lawyer or parent present and ultimately signed three confessions, according to the lawsuit.

Lemon and attorneys who worked to exonerate Williams told The Post in 2022 that prosecutors ignored several pieces of evidence that might have cast doubt on his conviction. A bloody handprint of an adult man found at the crime scene did not match Williams’s handprint. Robare had been discovered by her ex-husband, whom she had recently divorced for “extreme cruelty,” according to family court records. Detectives told a local newspaper that Robare probably was overpowered by an adult.

An all-White jury convicted Williams of murder in January 1931, and he was sent to the electric chair. Carter was too young to remember her brother’s death, she said. But she saw it weigh on her family in the years that followed.

“It breaks my heart when I think of all the things that my mother and father went through,” she said.

Carter said she had assumed Williams was guilty after she was told that he had confessed. Decades later, when Lemon approached Carter with new information about the trial, she was overjoyed and thought back to her parents insisting that her brother was innocent, she said.

Carter saw the county overturn Williams’s conviction in June 2022. In the same courthouse where Williams was convicted, then-Delaware County President Judge Kevin F. Kelly granted a motion for a retrial in Williams’s case, but the district attorney chose not to retry the case. Then-Gov. Tom Wolf (D) exonerated Williams and apologized on behalf of the state, calling his execution “an egregious miscarriage of justice.”

“The Bible says that when Cain killed Abel, God said his blood cried out from the ground,” Carter said. “Well, my brother’s blood must have cried out all these years. And he finally got it answered.”

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Mangino appears on Court TV's Opening Statements

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Creators: On the 70th Anniversary of Brown, School Segregation Continues

Matthew T. Mangino
Creators
May 20, 2024

This past week marked the U.S. Supreme Court setting aside, a portion of, certainly one of the worst decisions in the Court's 235-year history.

In 1896, the high court issued a ruling in Plessy v. Ferguson that held racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that came to be known as "separate but equal."

In 1892, Homer Plessy, a mixed-race resident of New Orleans, deliberately violated Louisiana's Separate Car Act of 1890, which required "equal, but separate" railroad accommodations for white and non-white passengers. Plessy was charged with boarding a "whites-only" car. Judge John Howard Ferguson refused to throw out the charge against Plessy and Plessy's case ended up before the U.S. Supreme Court.

The Supreme Court issued a 7-1 decision against Plessy, ruling that the Louisiana law did not violate the 14th Amendment to the U.S. Constitution, stating that although the 14th Amendment established the legal equality of whites and Blacks it did not, and could not, require the elimination of all "distinctions based upon color." The decision legitimized the "Jim Crow" laws that reestablished racial segregation after Reconstruction.

Justice John Marshall Harlan was the lone dissent, writing that the U.S. Constitution "is color-blind, and neither knows nor tolerates classes among citizens." The Separate Car Act's separating passengers by race was a violation of the U.S. Constitution.

The disgraceful decision in Plessy remained in effect with regard to education for 58 years. Finally on May 17, 1954, the Supreme Court decided Brown v. Board of Education — which held that the "separate but equal" doctrine was unconstitutional in the context of public schools and educational facilities — severely weakening Plessy but not specifically overruling the decision.

The Brown case began in 1951 when the public school system in Topeka, Kansas, refused to enroll a local Black man's daughter at the school closest to her home. Oliver Brown's daughter was instead required to bus to a segregated Black school down the road.

Brown and 12 other local Black families in similar situations filed a lawsuit in federal court against the Board of Education, alleging that its segregation policy was unconstitutional.

A special three-judge panel of the U.S District Court for the District of Kansas heard the case and ruled against Brown, relying on Plessy v. Furgeson. The decision was appealed to the Supreme Court by the NAACP's chief counsel, and future member of the Supreme Court, Thurgood Marshall.

The Supreme Court issued a unanimous 9-0 decision in favor of Brown. The court ruled that "separate educational facilities are inherently unequal," and therefore laws that impose them violate the Equal Protection Clause of the 14th Amendment.

The decision, announced 70 years ago this month, overturned the specious "separate but equal" doctrine and opened the door to full and fair education for all students regardless of race.

But, according to ABC News, seven decades later, "while racial mandates no longer dictate enrollment, schools across the country remain segregated for a variety of reasons."

"A lot of the folks with economic means, who are more likely to be white, are now sending their kids to private schools at a higher rate," University of California Merced associate professor Whitney Pirtle, told ABC News.

At the time of Brown v. Board of Education, charter and magnet schools — publicly funded institutions that can differ from traditional district schools — did not exist.

Magnet schools were created to encourage voluntary desegregation by attracting diverse students with a shared interest or learning style. The result was not as encouraging. According to an ABC News' analysis, (Magnet schools) "are more than twice as likely as non-magnet schools to have at least one racial group represented at double its district rate."

The same analysis found that charter schools also pull money from those school districts that need it most. Today, segregation continues through private, magnet and charter schools.

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

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Mangino appears on Law and Crime's Sidebar with Jesse Weber

Watch my interview with Jesse Weber on Law and Crime Network's Sidebar discussing the  'Evil' parents' torture and abuse case.

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Curb immigration to preserve 'pure, unadulterated Anglo-Saxon Stock'

On May 15, 1924, Congress passed the Johnson-Reed Act, which would constrain immigration into the United States to preserve, in Smith’s words, America’s “pure, unadulterated Anglo-Saxon stock.”

How much has the view of immigration changed in the last 100 years: At a rally in December, former president Donald Trump went as far as to say that immigrants are “poisoning the blood of our country.”

How does this rhetoric differ from the "pure Aryan blood"?

According to Eduardo Porter in the Washington Post,  Smith continued “It is for the preservation of that splendid stock that has characterized us that I would make this not an asylum for the oppressed of all countries,” Smith said America not 40 years after the Statue of Liberty was erected in New York harbor, with its open arms for all humankind. Immigration, Smith noted, should be shaped “to assimilate and perfect that splendid type of manhood that has made America the foremost Nation in her progress and in her power.”

I am not of pure, unadulterated Anglo-Saxon stock--are you? If not of Anglo-Saxon stock are you, and me, poisoning "our country's blood."

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Mangino discusses Trump trial on Scripps News

Watch my interview on Scripps News discussing the Trump trial.

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Firearm attacks on police at 10-year high

The rate of assaults on American law enforcement reached a 10-year high in 2023, with more than 79,000 officer attacks reported, according to a new FBI report released according to The Associated Press. the U.S. to determine trends in violence against law enforcement. It shows that the number of officers assaulted and injured by guns is also climbing.

Agencies reported 466 assaults with firearms in 2023, which is the highest level in a decade, FBI officials said. That’s up from less than 200 officers assaulted and injured by guns in 2014.

There were 60 officers killed as the result of criminal acts in 2023, compared to 61 the year prior and 73 in 2021.

While those numbers declined over the last three years, there were more officer killings as the result of criminal acts in that time than any other three-year period in the last two decades, FBI officials said.

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Mangino discusses lenient poisoning sentence

Watch my interview with the Law and Crime Network discussing the lenient sentence in attempted poisoning case in Arizona.

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Faith in criminal justice system below 20 percent

Americans’ faith in major societal institutions hasn’t improved over the past year following a slump in public confidence in 2022, reported Gallup.

The five worst-rated institutions -- newspapers, the criminal justice system, television news, big business and Congress -- stir confidence in less than 20% of Americans, with Congress, at 8%, the only one in single digits.

Last year, Gallup recorded significant declines in public confidence in 11 of the 16 institutions it tracks annually, with the presidency and Supreme Court suffering the most. The share of Americans expressing a great deal or fair amount of confidence in these fell 15 and 11 percentage points, respectively.

Neither score recovered appreciably in the latest poll, with confidence in the court now at 27% and the presidency at 26%. However, the survey was conducted June 1-22, 2023, before the Supreme Court issued decisions affecting affirmative action in education, college loan forgiveness and LGBTQ+ Americans’ access to creative services. Any or all of these decisions could have altered the court’s image as well as that of President Joe Biden, who spoke out against the rulings.

Public confidence in each of the other 14 institutions remains near last year’s relatively low level, with none of the scores worsening or improving meaningfully.

Overall, the new poll finds small business enjoying the most public trust, with 65% of Americans having a great deal or fair amount of confidence in it. A majority, 60%, also have high confidence in the military, while less than half (43%) feel this way about the next highest-rated institution, the police.

The medical system and the church or organized religion round out the top five annually rated institutions, albeit with meager 34% and 32% confidence ratings, respectively. Another six -- the U.S. Supreme Court, banks, public schools, the presidency, large technology companies and organized labor -- earn between 25% and 27% confidence.

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Creators: 'History and Tradition': An Unpredictable Constitutional Interpretation

Matthew T. Mangino
Creators
May 13, 2024

The U.S. Supreme Court, whose members are certainly learned in the law, has taken to making decisions beyond their area of training and expertise — legal precedent — instead decisions infused with "history and tradition."

None of the six conservative justices are historians — yet some of the court's most momentous recent decisions are grounded in history and tradition.

Thomas Wolf and Alexander Keyssar, writing for the Brennan Center last fall, suggested that "history is more than looking at select old things." They argue that historians "write about the past, using methods and tools they've developed over time to make statements that are reliable."

The justices do not have the required expertise to make rational and honest assessments of history. Wolf and Keyssar opined, "To do their job well, historians must acknowledge the complexity of the past and the importance of context for making sense of things, among many other considerations."

According to Emily Bazelon of The New York Times Magazine, "history and tradition" is a spinoff of "originalism." Former Justice Antonin Scalia was a proponent of originalism.

Scalia argued that the high court decisions should be grounded in the moment the Constitution was written, to prevent judges from substituting their values for the wisdom of the nation's founders.

Bazelon contends that "originalism in practice never lived up to this promise, because judges used it inconsistently or to reach the results they preferred."

Dahlia Lithwick, writing recently for Slate, had a less flattering view of originalism. She wrote, "originalism ... hold(s) that judges and justices should ignore every interpretive methodology judges once used to understand a legal text in favor of free-floating feelings about history."

"History and tradition" is originalism on steroids and the conservative supermajority on the court are flexing their muscles. In 2022, the court made two major decisions utilizing history and tradition.

First, the court found that a New York gun law was not consistent with "historical tradition" against regulating guns. Then the blockbuster decision in Dobbs v. Jackson Women's Health Organization regarding the constitutional right to abortion — "whether the right to obtain an abortion is rooted in the Nation's history and tradition and whether it is an essential component of 'ordered liberty.' The Court finds that the right to abortion is not deeply rooted in the Nation's history and tradition."

A chief concern with history and tradition influencing the outcome of court decisions is, as Ruth Marcus wrote in The Washington Post, "the demonstrated willingness of the originalist justices to pick and choose the historical practices and traditions that best support the result they want, narrowing or expanding the relevant period as is most helpful to their cause; second, their tendency to abandon originalist arguments entirely when they turn out to be inconvenient."

Marcus provided vivid examples using the New York gun law decision and the Dobbs decision to demonstrate the idea of cherry-picking to justify a result. "In Dobbs, the majority reached back to the 13th century to find that the Constitution contained no protection for the right to abortion — even though, in the gun case decided just the day before, it declared that 'historical evidence that long predates [ratification] may not illuminate the scope of the right' at issue."

The concept of history and tradition seems to be antithetical to the very thing it purports to provide — consistency. We know that history is always subject to interpretation. Go to your local library and check out the volume of books, new and old, on the historical influence of Abraham Lincoln.

It may be apt to conclude with an admonishment from a contemporary of Lincoln's. President Ulysses S. Grant wrote in his personal memoirs, "It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies."

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

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Israel may has acted inconsistently with international humanitarian law

A US Department of State report summary claims that Israel may have used US-provided weaponry in an “inconsistent” manner with international humanitarian law (IHL) obligations but could not conclude whether US weaponry was used in specific incidents, reported Jurist.

The State Department’s NSM-20 report acknowledged that the US government received allegations of Israeli IHL violations since Hamas’ October 7 attacks from “[c]redible UN, NGO, and media sources.” Further, the State Department wrote that “certain Israeli-operated systems are entirely U.S.-origin (e.g., crewed attack aircraft) and are likely to have been involved in incidents that raise concerns about Israel’s IHL compliance.”

However, the State Department could not assess whether US weaponry was used in specific high-profile incidents, such as the Israeli attack on a World Central Kitchen convoy that killed seven humanitarian workers. The US reported that Israel’s information sharing regarding the use of US weapons has been limited and claimed that Hamas’s tendency to embed themselves in civilian populations makes it difficult to ascertain whether individual strikes violate international law.

Despite expressing concerns about Israel’s “action and inaction” that hampered the delivery of humanitarian aid into Gaza, the US acknowledged that Israel made steps such as opening the Kerem Shalom border crossing to allow more aid into the enclave. Thus, the US did not conclude that Israel is “prohibiting or otherwise restricting the transport or delivery of [US] humanitarian assistance” to Gaza.

The NSM-20 report also described the compliance of US partners Colombia, Iraq, Kenya, Nigeria, and Ukraine with IHL, concluding that, while Iraqi, Kenyan, Nigerian and Ukranian security forces may have been involved in human rights violations, no US weaponry sent to those countries was used in such breaches.

The Israel-Hamas conflict has drawn international scrutiny for its impact on civilians in both Israel and Gaza. Following Hamas’s October 7 attacks where more than 1,100 Israelis were killed and more than 250 taken hostage, Israel launched an offensive on Gaza that has reportedly led to the death of 30,000 Palestinians. In January, the International Court of Justice (ICJ) ordered Israel to take “all measures within its power” to prevent breaches of the Genocide Convention in Gaza following a complaint by South Africa. Then in March, the ICJ directed Israel to take all necessary measures to ensure the flow of humanitarian aid into the enclave.

Israel carried out strikes on the Gazan city of Rafah on Monday amid international concerns that Israel may invade the city, where 1.4 million people are sheltering.

US President Joe Biden issued memorandum NSM-20 in February, requiring the Departments of State and Defense to produce reports for various congressional committees describing whether US weapons and defense services are being used in compliance with IHL.

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SCOTUS: Police may seize property without immediate hearing

The US Supreme Court recently decided that police officers may continue to seize cars that defendants allegedly use to commit a crime, without an immediate hearing, reported Jurist. States often allow that kind of seizure—known as civil forfeiture—when officers believe that the car is connected to a crime in which the owner is not involved.

Justice Kavanaugh, writing for the majority, noted that the constitutional right to due process depends on the circumstances. States cannot take real property without a prior hearing, but personal property is different because it could be hidden before a hearing takes place. So when police officers seize cars, the owner only has a right to a timely hearing after the seizure, and not a prompt one, according to the Court.

The car owners in this case had argued that due process does give them a right to a prompt hearing under Mathews v. Eldridge. In that case, the Court created a test that balances the impact of seizing particular property or rights against the burden of having more procedures in place. Justice Kavanaugh responded that no prompt hearing is required under the Court’s precedent and that he would reach the same result under the Mathews test.

Justice Gorsuch concurred, but raised concerns about “whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.” He criticized law enforcement agencies for using civil forfeiture as a source of income, seizing property that is easily convertible to cash and small enough to discourage owners to go to court to get it back. He also noted that this practice disproportionately affects “the poor and other groups least able to defend their interests.”

In dissent, Justice Sotomayor echoed Justice Gorsuch’s concerns: “officers have a financial incentive to target marginalized groups, such as low-income communities of color, who are less likely to have the resources to challenge the forfeiture in court.” She also highlighted that many people need their car to get to work. And she pointed to law enforcement agencies imposing high fees and holding on to property for years before going to court—”all without any initial check by a judge as to whether there is a basis to hold the car in the first place.”

Civil forfeiture is a growing practice, although the government does not always win. For example, the US Court of Appeals for the Ninth Circuit ruled in January this year that the FBI went too far when it seized 700 safety-deposit boxes from private individuals.

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Mangino discusses Biden's Ohio ballot problem with WFMJ-TV21

Watch my interview with Lindsay McCoy on WFMJ-TV21 discussing the controversy over placing President Biden's name on the Ohio ballot this fall.

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Creators: The Efficacy of Shaken Baby Syndrome Remains Unresolved

Matthew T. Mangino
Creators
May 7, 2024

Robert Roberson's story is a tragic one. He is sitting on death row in Texas for killing his 2-year-old daughter Nikki Curtis by shaking her so violently that it caused her death. John J. Lennon, an incarcerated journalist who works with the Prison Letters Project at Yale Law School, recently wrote about Roberson for Slate.

The theory behind Roberson's conviction is what is commonly known as shaken baby syndrome.

Proponents of the theory of shaken baby syndrome claim that shaking a baby produces a so-called "triad" of catastrophic injuries exclusive to shaking — subdural hemorrhage, retinal hemorrhage and brain swelling. The diagnosis does not require the presence of other injuries such as bruises, grab marks or damage to the baby's neck.

Injuries from shaken baby syndrome are so severe, these experts say, the baby would immediately collapse. According to The Appeal, the last person with the baby — a parent, babysitter or day care worker — is the person often accused. That person is then left to prove they're innocent of a crime that may not have occurred.

The presence of shaken baby syndrome often pits the accused against the testimony of physicians, who say with certainty that the baby's injuries are comparable to those sustained from falling out of a window or being thrown from a car, reported The Appeal. In comparison, the defendant's explanation falls short of making an impression on an investigator or jury.

However, as with many types of forensic evidence — shaken baby syndrome is under scrutiny. Convictions are supposed to be final, but science is evolving. In recent years, prisoners and their lawyers have challenged a number of forensic disciplines: from eyewitness identification, to fingerprints as well as analysis of blood spatter, hair, bitemarks, toolmarks and a host of other traditionally "reliable" investigative techniques.

Since the 1980s, nearly a quarter of overturned convictions have featured "false or misleading forensic evidence," according to the national Registry of Exoneration.

"We believed anyone in a lab coat with letters after their names," M. Chris Fabricant, a lawyer for the Innocence Project, which works to overturn wrongful convictions across the country, told the Marshall Project. "But these methods were developed by law enforcement to solve possible crimes, not in laboratories."

A. Norman Guthkelch, a British pediatric neurosurgeon whose 1971 paper first posited the shaken baby syndrome, later reviewed a number of cases where defendants claimed their innocence. Patrick D. Barnes, MD of the Stanford University Medical Center, wrote in Bloomberg Law, Guthkelch was struck by the high proportion of cases in which the child had a history of illnesses, indicating their injuries were the result of natural causes, not abuse. In 2015, shortly before his death, Guthkelch told The Washington Post, "I am doing what I can so long as I have a breath to correct a grossly unjust situation."

According to Barnes, over the last two decades, courts in at least 12 states, including Alaska, Nevada, North Carolina, Ohio, and Wisconsin, have overturned shaken baby syndrome convictions, or rejected outdated science.

Some medical organizations have pushed back, including the American Academy of Pediatrics, which fears marginal medical theories are gaining too much traction in the courts, allowing people who abuse infants to go free. In 2009, according to the Boston Globe, the academy did acknowledge the controversy brewing over the role that excessive shaking plays in creating extreme injuries.

The academy now tells doctors to use the term "abusive head trauma," rather than shaken baby syndrome, to indicate that traumatic blows to the head, not just shaking, are often behind the brain swelling and eye damage that afflict some 1,000 children each year, often causing permanent neurological damage if not death.

But the fact remains that at least 32 people have been exonerated for crimes based on shaken baby syndrome, according to The Guardian. In addition, last fall, Superior Court of New Jersey Judge Pedro J. Jimenez Jr. ruled that shaken baby syndrome was "junk science" and "scientifically unreliable".

A definitive answer for shaken baby syndrome remains elusive. Roberson's petition to the U.S. Supreme Court seeking review of his shaken baby syndrome conviction was denied without explanation.

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

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America’s aging prison population turns prisons into de facto nursing home

In state after state, prison systems have long been plagued by inadequate health care, resulting in the spread of treatable diseases and, in many cases, preventable deaths behind bars, reported Vox. But a key demographic trend threatens to make that problem even worse: Over the last several decades, America’s prison population has been rapidly aging, and, as in Washington’s case, prisoners’ health needs have become more significant as a result.

Here is a link to a column I wrote on prisons as de facto mental health facilities In the Criminal Justice System things are Worse than they Seem

People who were 55 years old or older made up about 3 percent of the US prison population in 1991; by 2021, they accounted for 15 percent. The total number of older prisoners is also steadily growing, with no signs of abatement: In 2020, there were about 166,000 incarcerated people aged 55 years or older; that number grew to about 178,000 in 2021 and 186,000 in 2022.

The graying of America’s incarcerated population is effectively turning the US prison system into a de facto nursing home, leaving hundreds of thousands of older people in its care each year. The result is skyrocketing costs: The Bureau of Prisons’ health care spending on federal inmates rose from $978 million in 2009 to $1.34 billion in 2016, and various state governments have seen similar increases.

Still, conditions in American prisons continue to be detrimental to people’s health and often lead to accelerated aging. Prisoners, for example, are much more likely to exhibit signs of cognitive decline, including dementia, at an earlier age than the general population, and one study found that a 59-year-old in prison has the same morbidity rate — that is, how often people get a disease — as a nonincarcerated 75-year-old.

“We have facilities that aren’t considered humane,” said Lauren-Brooke Eisen, a senior director at the Brennan Center for Justice. “They’re not places for elderly people who have dementia and diabetes and maybe walkers or wheelchairs.”

All of this raises both a moral and practical policy question that lawmakers have to face: Why are we forcing older people to spend their dying years in prison when they can get better care elsewhere?

People aren’t just aging behind bars; police are locking up the elderly

One of the explanations for the aging prison population is simple: Since the 1970s and the age of mass incarceration — when the American prison population ballooned and gave the United States the distinction of imprisoning more people than any other country in the world — people have been aging behind bars.

The other explanation, however, is less obvious: Older people have been getting arrested at higher rates than they used to. In 1991, for example, people who were 55 years of age or older made up only 2 percent of adults who were arrested; by 2021, they made up 8 percent, according to the Prison Policy Initiative, a Massachusetts-based nonprofit that does criminal justice research and advocacy. The Marshall Project also found a similar pattern: Between 2000 and 2020, there was nearly a 30 percent increase in the number of arrests of people over 65, despite the overall number of arrests dropping by nearly 40 percent.

So why are arrests among older people suddenly on the rise? The resurging trend across many American cities and states to further criminalize poverty and impose harsher punishments for petty crimes, including things like shoplifting, is partly to blame because the groups of people who become common targets for police are getting older.

“People who are unhoused and people suffering from mental health disorders and substance use disorders are also aging,” said Mike Wessler, the communications director at the Prison Policy Initiative. “If you look across the country right now, we’re obviously seeing efforts to ramp up policing of people who are unhoused, people with untreated mental health disorders, people with substance use disorder. So it’s almost a certainty that in the coming years we are probably going to see this problem get worse.”

People experiencing cognitive decline, including those suffering from dementia, can also be especially vulnerable during interactions with police. Henry Hart, a 76-year-old with dementia in Maryland, for example, was arrested when he had what his daughter described as a mental breakdown. During the incident, Hart had grown agitated and hit her, and when she called for paramedics to take him to the hospital, police showed up at the scene instead. Officers ultimately arrested him for assault despite his family members’ pleas. After spending time in jail, Hart’s condition seemed to get notably worse, according to his daughter.

“As Maryland’s population ages, experts fear that police will encounter people with dementia more often and without recognizing the condition or knowing how to respond to it,” Baltimore Sun reporters Angela Roberts and Cassidy Jensen wrote. “Arrest or jail time can be especially harmful to people with dementia, given their mental and physical vulnerability, experts say.”

There’s also evidence that beefing up law enforcement has had a negative impact on older people. While younger people have become less likely to be arrested for drug-related crimes than in the past, arrests of older people for drug-related offenses have spiked. Between 2000 and 2018, for example, drug-related arrests of people over the age of 50 rose by 92 percent — the fastest increase out of any age group. And while substance use disorder among older people is on the rise, addressing the problem through stricter law enforcement is not a practical solution.

“It’s a heck of a lot easier to order the National Guard to go stand on subway platforms than it is to figure out how to expand mental health treatment in the state; than to figure out how to address substance use disorders in the state; than to figure out how to address the housing crisis in the state,” Wessler said.

The consequences of an aging prison population

Studies have shown that incarcerated people have signs of aging at a faster rate than others as a result of prison conditions, and that each year in prison can shave years off of someone’s life.

“Health care behind bars is bad even in the best scenarios,” Wessler said. “And that’s kind of by design in a lot of respects: Prisons are not places that are therapeutic or designed to heal; they are places that are designed to punish.”

Infectious diseases tend to disproportionately affect prisoners compared to the general population, and the Covid pandemic in particular showed why prisons are especially dangerous for older people. Deaths of inmates rose by nearly 50 percent in the first year of the pandemic, and while mortality rates increased for prisoners across all ages, older people saw the highest surge in mortality. By contrast, among the general population, it was younger people who saw the highest increase in death rates.

From a public policy standpoint, the aging prison population is a failure on multiple fronts. Most importantly, prisons cause people to age more quickly and die prematurely. After all, while so-called “natural” deaths — that is, death from disease or old age — make up the vast majority of deaths behind bars, they often receive little scrutiny despite the fact that many of them have been found to be the result of medical neglect.

But it’s also costing states a lot of money — money that is clearly not well spent. In Texas, for example, the state’s prison health care costs increased by more than $250 million between 2012 and 2019, although the prison population actually decreased by 3 percent during that time. The state’s prison population aged 55 or older, on the other hand, had increased by 65 percent during that same period, according to data reviewed by the Texas Tribune.

Some lawmakers have noted this is unsustainable. As former state Sen. John Whitmire told the Tribune, “Nobody’s tougher on crime than me, but once you’ve incarcerated a guy past the point that he’s a threat to anybody, I’d like to save that $500,000 to put him in a nursing home as a condition of parole, take that money, and spend it on either other public safety efforts or prison costs.”

The system as it is, in other words, isn’t benefiting anyone. It’s both deadlier and more financially costly.

And from a moral standpoint, it’s hard for a society to defend these outcomes. “Do we morally think that it is good to have people spend their dying years behind bars, especially for drug crimes from the ’80s and ’90s?” Wessler said. “That strikes me as morally wrong in addition to being bad public policy.”

Tougher penalties turn into de facto death sentences

In many ways, America’s aging prisons are the expected end result of the tough-on-crime approaches and surge in arrests of the 1980s and 1990s.

A study by researchers at the the State University of New York at Albany, the University of Pennsylvania, and the RAND Corporation, found that young people who were locked up in the 1990s spent more time behind bars than any other generation, in large part because of tougher and longer sentences, higher recidivism rates, and escalating punishments for people who are rearrested. And that generation is now aging behind bars, unlikely to ever come out of prison.

“These extreme sentence lengths paired with narrow release mechanisms — meaning fewer ways to actually leave the system — led to this huge crisis of older adults in American prisons,” Eisen, from the Brennan Center, said. “Because what you had is more people coming in, people staying for longer, and then fewer avenues for release because of mandatory minimums, because of three strikes [laws], because of life without parole.”

While many older people in prison today are being sent there for petty crimes, it’s also true that many others, particularly those serving longer sentences, have been convicted of serious crimes. But regardless of what a person is guilty of, the fate of a death behind bars — which can be the result of inadequate medical care and botched treatments — could itself be seen as a cruel punishment, especially when people no longer pose a threat to society.

Take, for example, the case of Walter Jordan, another elderly Arizona prisoner whose story is eerily similar to Richard Washington’s. Jordan, a 67-year-old man who was convicted of first-degree murder and kidnapping, was serving a life sentence. In a memo he wrote to a federal judge in 2017, he alleged that the state’s Department of Corrections and its private health care contractor had delayed his treatment for skin cancer. The memo was, in his words, a “notice of impending death.”

Jordan wrote that he was in pain and suffering from memory loss. He alleged that other prisoners were also being denied care, and he wrote that as a result of his delayed treatment, he would be “lucky to be alive for 30 days.”

Jordan was right: Just over a week later, he was dead. A physician who reviewed his case found that Jordan could have survived had he received adequate care. The situation was “horrific,” the physician wrote. “He suffered excruciating needless pain from cancer that was not appropriately managed in the months prior to his death.”

There are more humane approaches. States and the federal government can start, for example, by expanding eligibility for compassionate release, which truncates sentences but tends to be reserved for people with terminal illnesses. Parole — which can sometimes have unintended consequences including strict rules that often result in parolees being sent back to prison — can also be especially beneficial to elderly prisoners who can get better health care outside of prison. And yet, tough-on-crime laws like those recently passed in Louisiana are making it harder for prisoners to be eligible for parole.

Governors can also make use of their pardon powers and commute sentences for older prisoners who have shown signs of rehabilitation. And instead of readopting a tough-on-crime approach that will likely result in more arrests of older people, states and the federal government can support social safety net programs that would lift older people out of poverty and homelessness, reducing their odds of being arrested in the first place.

America’s jail and prison population peaked in 2008, when more than 2.3 million people were behind bars. And while it has mostly declined since then — especially during Covid, when many prisoners were released as the virus ravaged prisons — it has recently been ticking back up.

“We have far too many people in our prisons,” Eisen said. One of the fastest ways to address that problem is to release older people, who generally don’t pose a public safety risk. “This is a population that shouldn’t be behind bars.”

But until lawmakers acknowledge that the current prison system is failing some of the most vulnerable people in its care, cases like Washington’s or Jordan’s will become all the more common. And more and more people who are now serving time in an American prison will slowly come to learn that their punishment has morphed into a death sentence.

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