Legal Intelligencer--High Court: ARD Admission Is Not Considered a Prior Offense to Enhance Sentencing for a DUI

Matthew T. Mangino
The Legal Intelligencer
June 12, 2025

The Pennsylvania Supreme Court has ruled that 75 Pa.C.S.A. 3806 of the Motor Vehicle Code—which includes accelerated rehabilitation disposition (ARD) in the definition of a prior offense for purpose of sentencing on a second or subsequent driving under the influence conviction—unconstitutional.

The court found that ARD does not equate to a conviction because it lacks the procedural safeguards of a criminal trial, such as the right to a jury trial and the requirement of proof beyond a reasonable doubt.

The high court’s decision finally puts to rest the evolving question of whether admission into the ARD program can be used as a sentence enhancement for purposes of deterring recidivist conduct on Pennsylvania’s roadways.

In May 2020, the Pennsylvania Superior Court turned the DUI statute on its head.

Igor Chichkin was charged with DUI in Philadelphia in 2017. Chichkin had a prior DUI charge in which he received ARD, a diversion program. Upon acceptance into the ARD program a defendant need not plead guilty or not guilty. If the defendant successfully completes the program the charges are dismissed and the defendant may seek the expungement of the charge.

Prior to the decision is Chichkin, if a defendant was arrested within 10 years of accepting ARD, he or she could be charged with a DUI second offense which carried a mandatory minimum of 30 days in jail, 75 Pa.C.S.A. 3804 (b) (2). For sentencing purposes in Pennsylvania an ARD was considered a prior offense, Section 3806 (a).

Chichkin went to trial on his new offense and was convicted of DUI. As a result of his prior ARD, he was sentenced to 30 days to six months in jail.

On appeal, Chichkin raised the landmark U.S. Supreme Court decision of Alleyne v. United States, 570 U.S. 99 (2013). The Alleyne court held that the Sixth Amendment guarantees an accused a right to a trial by a fair and impartial jury, which can only be accomplished if all of the facts that are elements of the crime are presented to the jury. If an element of the crime increases the mandatory minimum punishment, it must be submitted to the jury and found beyond a reasonable doubt.

Alleyne was an expansion of the high court's prior ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Alleyne held "a defendant has due process rights to specific notice in the charging document and proof beyond a reasonable doubt, as well as, the constitutional guarantee of a jury determination" with regard to "any factual determination that triggers a mandatory minimum sentence."

As a result, the court vacated Chichkin’s mandatory minimum sentence.

The court wrote about the prior offense excused by ARD, “They are a "fact" that, pursuant to Alleyne, Apprendi, and their progeny, must be presented to the fact finder and determined beyond a reasonable doubt before a trial court may impose a mandatory minimum sentence under Section 3804,” see Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).

The Chichkin decision created chaos for prosecutors and the courts. However, that chaos was short lived. In fact, I anticipated the recent Pennsylvania Supreme Court decision in an article for “The Legel Intelligencer” in January 2023. I wrote then, “The prosecution of repeat DUI offenders is back where it was prior to 2020 ... this is not the last we will hear on this subject. Stay tuned, this matter will most likely end up before the Pennsylvania Supreme Court.”

How did this matter ultimately get to the high court? In Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc), and Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc), the Superior Court held that, pursuant to Section 3806, a defendant’s previous acceptance of ARD for a DUI constitutes a prior offense for purposes of imposing a mandatory minimum sentence under Section 3804.

The court made it clear that the decision of a defendant to enter the ARD program is voluntary. A defendant “is free to reject participation in the program if he wishes to avail himself of his full panoply of constitutional rights.”

Applying for, and being accepted into, the ARD program does not carry the same procedural safeguards of a conviction following trial. The court found “The safeguards in place to be adequate.” The court emphasized that “Section 3806(a) appropriately notifies a defendant that earlier ARD acceptance will be considered a prior DUI offense for future sentencing purposes.” The voluntary nature of the ARD program mitigates the due process concerns expressed by the U.S. Supreme Court. As a result, a defendant’s prior acceptance of ARD fits within the limited “prior conviction” exception set forth in Apprendi.

The Superior Court was unequivocal in its holding in Richards, “We expressly overrule Chichkin.”

On May 30, 2025, the Pennsylvania Supreme Court decided Commonwealth v. Shifflett, No. 26 MAP 2024. In 2012, Shifflett was charged with the offense of driving under the influence of alcohol 75 Pa.C.S. Section 3802(d)(3). He was accepted into an ARD program.

In 2022, George Thomas Shifflett was arrested for another DUI and, based on his previous acceptance of ARD for his 2012 offense, he was charged with DUI as a second offense.

Shifflett pleaded guilty to the second DUI. At that time, the commonwealth asserted that, pursuant to Section 3806 the plea constituted a second DUI offense. The trial court agreed with Shifflett’s claim that the prior ARD should be considered a prior offense.

The commonwealth appealed, arguing that the trial court erred in failing to treat the appellant’s 2012 offense as a prior offense under Section 3806 and impose an enhanced sentence under Section 3804 as a result of the decisions in Richards and Moroz holding that, pursuant to Section 3806, a defendant’s previous acceptance of ARD for a DUI constitutes a prior offense for purposes of imposing a mandatory minimum sentence under Section 3804.

According to the opinion in Shifflett, the trial court, in its opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, concluded that, in light of Richards and Moroz, it erred in granting the appellant’s motion to exclude at sentencing evidence of his previous acceptance of ARD for his 2012 offense, and, accordingly, requested that the Superior Court remand the case for resentencing. In a unanimous, unpublished memorandum opinion, the Superior Court vacated Shifflett’s judgment of sentence and remanded for resentencing.

The Pennsylvania Supreme Court agreed to hear Shifflett’s appeal focusing on the U.S. Supreme Court’s decision in Alleyne, and whether it was unconstitutional to consider Shifflett’s previous acceptance of ARD as a prior offense for sentencing purposes.

Pennsylvania Supreme Court Chief Justice Debra Todd, writing for a 4-3 majority, found “acceptance into an ARD program does not offer a defendant any of the constitutional safeguards that accompany either a criminal conviction or a guilty plea proceeding.”

The safeguards recognized by the U.S. Supreme Court’s in Apprendi and Alleyne, namely that any fact which increases the penalty for a crime beyond the statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt are not present with admission to ARD.

The high court continued, “Thus, an individual’s previous acceptance of ARD, which, when construed as a prior offense under Section 3806 to increase the penalty for a subsequent conviction pursuant to Section 3804, is a fact that must be submitted to a jury and proven beyond a reasonable doubt.”

The reasoning in Chichkin is again the law of the commonwealth. Once and for all, admission to ARD is not considered a prior offense for purposes of enhancing a driving under the influence sentence.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County, Pennsylvania. He is the author of "The Executioner’s Toll." You can follow him on Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com.

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SCOTUS grants relief to death row inmate seeking DNA testing

The US Supreme Court ruled in a 6-3 decision that a Texas death row inmate has the right to sue over the state’s laws governing DNA testing, reported Jurist. The majority opinion was written by Justice Sonia Sotomayor.

Ruben Gutierrez was convicted of capital murder in 1998. Since 2010, he has been unsuccessfully requesting DNA testing of crime scene evidence he claimed would prove he was not in the victim’s home the night of the murder. Texas’ Article 64 allows DNA testing where a “convicted person establishes by a preponderance of the evidence” that he “would not have been convicted if exculpatory results had been obtained through DNA testing.”

Gutierrez filed a §1983 lawsuit in federal court against Luis Saenz, the district attorney who has custody of the untested evidence. Gutierrez argued that Texas’ state post-conviction DNA testing procedures violated his liberty interests under the Fourteenth Amendment’s Due Process Clause. The trial court agreed and granted declaratory relief. However, the US Court of Appeals for the Fifth Circuit reversed, holding that Gutierrez lacked standing because his claimed injury was not redressable since a declaratory judgment would be unlikely to cause the prosecutor to allow testing. The defendants additionally argued to the Supreme Court that the prosecutor has several independent state-law grounds not to provide the DNA testing.

The Supreme Court disagreed and found Gutierrez had standing based on its precedent concerning standing for a due process claim against custodians of evidence. They explained that “if a federal court concluded that Texas’ postconviction DNA testing procedures violate due process, the state prosecutor’s justification for denying DNA testing would be eliminated, thereby removing the barrier between [Gutierrez] and the requested testing.” Furthermore, the possibility that “a prosecutor might eventually find another reason to deny a prisoner’s DNA testing request does not eliminate the prisoner’s standing to argue that the cited reasons violated his rights under the Due Process Clause.”

The defendants also argued that the case is moot after Sanez refused “Gutierrez’s DNA testing request even after the District Court issued the declaratory judgment.” The court disagreed, explaining that holding so “would allow defendants to manufacture mootness by ensuring that, no matter what procedures a court requires them to employ, the same substantive outcome will follow.”

Justice Amy Coney Barrett issued a concurrence opinion stating she would reverse the Fifth Circuit’s decision on the sole basis that “it failed to consider the breadth of the relief that Gutierrez requested in his complaint.”

Justice Samuel Alito dissented from the majority, holding that it ignored that precedent “held that…declaratory judgment would redress the prisoner’s deprivation of DNA testing because it would ‘substantially’ alter the likelihood of the district attorney’s ordering DNA testing.”

Justices Clarence Thomas and Neil Gorsuch joined Alito’s dissent. Thomas wrote separately to emphasize that “this Court has no business intervening in this case in the first place” because the original meaning of “liberty” in the Fourteenth Amendment “did not include entitlements to government-created benefits” and “likely referred only to freedom from physical restraint.”

While Gutierrez’s request for rehearing was pending in the Fifth Circuit, Texas scheduled his execution. The court had pre­vi­ous­ly issued a stay of exe­cu­tion to Gutierrez on July 16, 2024, just 20 min­utes before he was sched­uled to be executed.

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Book Review: Barbara Bradley Hagerty--Bringing Ben Home: A murder, a conviction, and the fight to redeem American justice

Bringing Ben Home: A murder, a conviction,
and the fight to redeem American justice

Barbara Bradley Hagerty

Riverhead Books, p. 443

Review by Matthew T. Mangino 

            Ben Spencer was convicted in 1987 of the carjacking and murder of Jeffrey Young. “Bringing Ben Home: A murder, a conviction, and the fight to redeem American justice,” is Ben’s compelling journey through a “broken” criminal justice system, told by Barbara Bradley Hagerty.

            Hagerty was a correspondent for NPR for 18 years.  She received numerous awards for her on air reporting and has met with success as a writer as well. 

            Bringing Ben Home was an ambitious project and Hagerty pulled it off. She not only meticulously brought Ben Spencer’s harrowing story to life; she was able analyze the growing problems in the criminal justice system which makes justice for some out of reach.

            Bradley examines the unlikely phenomenon of people pleading guilty to crimes they did not commit. She acknowledges that Spencer never confessed to the crime, but she deftly weaves this important issue into her story.

            A startling one in five innocent people charged with murder confessed.  Whether it’s investigators lying to suspects about evidence—condoned by the U.S. Supreme Court or its a prolonged interrogation of a juvenile or intellectually disabled suspect—innocent people confess to crimes they did not commit.

            After Spencer’s first trial his conviction was overturned on appeal. Bradley examined a plea offer that was made to Spencer of 20 years with the likelihood of being released in three years.  Spencer refused the offer “I didn’t do anything” was his response.

            Unfortunately, in today’s criminal justice system, innocent people plead guilty all the time.  Whether the risk of losing at trial is too great because of the Defendant’s prior record—which enhances sentences, or the so-called trial penalty which punishes people more harshly if they go to trial—innocent people plead guilty to avoid trial.

            The politics of criminal justice can at times be shocking. Prosecutors who refuse to give up on obviously bad cases.  In most states prosecutors are elected and letting a “convicted killer” off doesn’t bode well on election day.

            Bradley tells the story of Bill Clinton, who as a candidate for President in 1992, returned to his native Arkansas to oversee the execution of a mentally disabled black man.

            Bradley examined how some staples of forensic evidence like bite marks and microscopic hair evidence have been debunked.  For instance, Bradley pointed out the FBI concluded that with regard to hair analysis “its experts had provided scenically invalid testimony in 96 percent of cases.”

            How do we now know that widely accepted forensic analysis is now junk science? As Bradley put it, “The double helix has sparked a revolution.”

            DNA has exposed the errors of our way.  As Bradley suggested “DNA jump-started the innocence revolution.” But, as with Ben Spencer, DNA is not present in every case.  However, as Bradley’s story makes clear even in the cases without DNA, there are still mistaken identifications, police misconduct and band forensics.

            It is difficult to imagine that an innocent man who spent 34 years in prison is lucky, but Ben Spencer was the luckiest of the unlucky. Bradley examines in detail the group of advocates and lawyers who took up Spencer’s cause and fought tirelessly for justice. Many men and women sit in prison with no one to give them a voice, and opportunity for vindication.

            On top of that, even with a team working on your behalf you need even more than luck. “[O]verturning a wrongful conviction, even with DNA evidence, is extremely difficult . . . [without it] it’s so much harder,” Rebecca Brown of the Innocent Project told Bradley.  She goes on to say, “It comes down to, really, serendipity. . . We should not be having to depend on luck.”

            Bradley takes on the criminal justice system -- whether its big pictures issues like flawed forensic evidence, the trial penalty, habeas corpus or politics – or the private anguish of a single person wrongfully convicted of a crime – Bradley paints a vivid and troubling portrait of America’s criminal justice system.

(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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Lawyers challenge execution of Tennessee man with intellectual disability, dementia and severe brain damage

Attorneys for a 68-year-old death row inmate set to be executed Aug. 5 are asking the Tennessee Supreme Court to reverse a lower court’s decision that declined to decide whether he is ineligible for capital punishment, reported The Tennessean. 

Byron Black has been on death row since 1989 for the Nashville murders of his ex-girlfriend Angela Clay, 29, and her two daughters, Latoya, 9, and Lakesha, 6. 

His lawyers argue that Black’s intellectual disability, along with dementia and severe brain damage, make him incompetent for execution. 

“Byron simply does not have the intellectual capacity to grasp why the State seeks to kill him, so his execution serves no legitimate penological purpose, it’s just cruel,” said his lawyer Kelley Henry, a supervisory assistant federal public defender. “Byron is an elderly man in failing health. His execution would be a grotesque and pointless exercise of state power.” 

Black, one of the longest serving death row inmates, is the second man scheduled to be executed this year after Tennessee in December announced that it would resume capital punishment following a five-year hiatus.

The state on May 22 executed Oscar Smith for the 1989 killings of his estranged wife and her two teenage sons.

Black’s lawyers have long argued that his intellectual disabilities should keep him off death row.

Davidson County District Attorney Glenn Funk has declared Black intellectually disabled and said his death sentence should be commuted. 

A trial court, however, ruled that it did not have the jurisdiction to decide Black’s incompetency claim. The Tennessee Court of Appeals later denied Black’s request for a hearing on his intellectual disability claim.

According to court documents, experts have said Black is “profoundly disabled" with memory, cognition and daily functioning in the bottom 5% of people his age.

His lawyers said Black has been diagnosed with brain damage, possibly from factors including “fetal exposure to alcohol, lead exposure during childhood, and several serious head injuries.”

Black is also frail and suffers from congestive heart failure and stage 4 kidney disease, his lawyers said.

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Mississippi executes man after nearly 50 years on death row

The 25th Execution of 2025

Richard Jordan, Mississippi’s longest serving and oldest death row inmate, died by lethal injection Wednesday evening at the Mississippi State Penitentiary nearly 50 years after he kidnapped and murdered Edwina Marter, reported Mississippi Today. 

The 79-year-old Vietnam War veteran who experienced post-traumatic stress disorder was pronounced dead at 6:16 p.m. 

“First I would like to thank everyone for a humane way of doing this. I want to apologize to the victim’s family,” Jordan said, adding thanks to his wife and lawyers and asking for forgiveness. 

“I love you very much,” he said as his last words. “I will see you on the other side, all of you.”

Prison officials confirmed Jordan was unconscious after injecting a sedative before following with injection of two other injection drugs – a check ordered by a federal judge who greenlighted the execution late last week. This was part of a federal lawsuit challenging the lethal injection protocol in which Jordan was a lead plaintiff. 

In January 1976, Jordan found himself desperate for money and made a plan to kidnap the family member of a bank employee and demand funds. The Vietnam War veteran had a job lined up and had moved his family to Louisiana, only to find the position was filled, according to his clemency petition. 

He spent a few days looking for work before calling the Gulfport bank where Charles Marter worked as the commercial loan agent. Jordan found the man’s address in the phonebook and went there, posing as an electric company worker to get the banker’s wife, Edwina, to open the door at gunpoint. Her toddler son was left unharmed at home. 

Jordan had Edwina drive to the DeSoto National Forest. As she tried to run away, Jordan shot in her direction, hitting her in the head. Afterwards, he called Edwina’s husband to demand $25,000 in ransom. After two failed money drops, Jordan was arrested. 

He went to trial that year and received a death sentence, only for it to be overturned multiple times due to questions about the legality of Mississippi’s death penalty law. It wasn’t until 1998 and four trials later that the sentence stuck. Then Jordan began years of appeals. 

Eric and Kevin Marter, the now-adult sons of Edwina, and her husband Charles did not travel to Parchman to witness the execution, but Edwina’s brother planned to attend with help of his family, Kevin Marter said. 

Family members left without offering comment. 

Ahead of the execution, Eric Marter said he wanted Jordan’s sentence to be carried out sooner rather than almost 50 years later after his mother’s death. 

“I don’t want him to get what he wants,” Marter, who was 11 in 1976, said about Jordan’s efforts to fight his death sentence. 

Jordan’s wife, Marsha, witnessed the execution along with his attorney Krissy Nobile of the Office of Capital Post-Conviction Counsel and his spiritual adviser, the Rev. Tim Murphy. Such advisers have been allowed to accompany death row inmates since a 2022 U.S. Supreme Court ruling.

After the execution, Attorney General Lynn Fitch said her office has pressed for justice and was pleased to be able to provide the Marter family, friends and the community with closure. 

Leading up to the execution, Jordan petitioned the U.S Supreme Court and the U.S. 5th Circuit Court of Appeals to step in. The appeals court denied a stay of execution Tuesday, and the high court denied request for a stay and writ of certiorari Wednesday afternoon – about an hour before the execution. 

Tuesday evening, Gov. Tate Reeves reviewed Jordan’s clemency petition and said he would not intervene in the execution, noting circumstances of the crime, how Jordan admitted his guilt, multiple trials and appeals. 

Frank Rosenblatt, a professor at the Mississippi College School of Law, submitted the clemency petition that included letters of support from at least a dozen people, including Jordan’s wife, his sister and a pastor. 

“Richard is all of these things: a patriot; a Vietnam Veteran; a man of faith; a good son, brother, and friend; and he is an exemplary inmate who has worked to prevent this type of crime from happening ever again,” Rosenblatt wrote in Jordan’s petition. 

Organizations including Death Penalty Action and Catholic Mobilizing Network circulated petitions that called on Reeves to stop Jordan’s execution citing similar factors, including how he experienced post-traumatic stress disorder from his military service. Death Penalty Action’s petitions were delivered to the governor’s office Tuesday. 

During an afternoon news conference, Parchman Superintendent Marc McClure said Jordan seemed talkative and was telling stories about his past. He had been moved to a holding cell Sunday evening, and before the execution he visited with family, his attorneys and spiritual advisers. 

He requested chicken tenders, French fries, strawberry ice cream and a rootbeer float for his last meal, prison officials said at the earlier news conference. 

Starting in the afternoon, demonstrators gathered outside Parchman in the Delta and the Governor’s Mansion in Jackson. Death Penalty Action also hosted a virtual vigil. 

Minutes before the execution, a group gathered outside the prison entrance and offered prayers for Edwina Marter, her family, Jordan and his family. Among them were Rev. Jeff Hood, an Arkansas-based spiritual adviser who has accompanied 11 death row inmates to the execution chamber and has spoken out against the death penalty. 

Jordan’s execution is the third in the past decade, with the most recent taking place in December 2022. 

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CREATORS: The End May Be Near for Miranda v. Arizona

Matthew T. Mangino
CREATORS
June 24, 2025

Nearly 60 years ago, U.S. Supreme Court Justice Potter Stewart asked Attorney John J. Flynn, representing Ernesto Miranda before the court, what rights an accused should be advised of while in custody. Flynn replied, "(H)e had a right not to incriminate himself, that he had the right not to make any statement, that he had a right to be free from further questioning ... to be represented adequately by counsel in court, that if he was too indigent and poor to employ counsel, that the state would furnish him counsel."

So were born the Miranda warnings. The landmark Supreme Court decision in Miranda v. Arizona has become part of American culture. Miranda's conversion from legal holding to cultural icon is due mainly to the nation's insatiable appetite for television crime dramas. Everyone with a television has heard Miranda warnings.

What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested for robbery. While in the midst of a custodial interrogation by police he confessed to raping an 18-year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. He appealed and his case made its way to the U.S. Supreme Court.

The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court's opinion finding a confession would be barred under the Fifth and Sixth Amendments unless a suspect had been made aware of his rights and the suspect had waived them. Warren made it clear, "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."

As we soon mark 60 years since the decision in Miranda, it is important to note that the decision has remained far from pristine over the years. Nor was the ruling placed on a pedestal beyond the reach of activist courts — quite the contrary — the U.S. Supreme Court has continually tested, and at times, expanded and restricted the decision.

For instance, in 1981, the Edwards rule was established. The Court held that once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel pursuant to Miranda, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.

That changed in 2010. In a case out of Maryland, the Court established a bright-line rule finding that if at least 14 days passed from the time the suspect invoked his rights under Miranda, the police could again initiate an interrogation of the suspect.

Although the Miranda warnings are etched in nearly everyone's consciousness, the Supreme Court found that the police do not have to use those magical words to get the point across. In a 2010 case out of Florida, the court said as long as the rights are articulated to a suspect in a reasonable manner and the rights are understood, they are sufficient.

Then, in 2011, the Supreme Court decided a North Carolina case establishing for the first time that law enforcement must consider a suspect's juvenile status when carrying out the requirements of Miranda.

In 2022, the high Court held that a Miranda violation does not automatically translate into a constitutional violation actionable under the Civil Rights Act. The Court reasoned that Miranda warnings are procedural safeguards, not constitutional rights, and that a violation of these safeguards does not necessarily mean a violation of the Fifth Amendment.

Miranda is ever evolving. The late Justice Antonin Scalia was a critic of Miranda, although he didn't have time to dismantle the ruling. With six conservative justices on the court, the end may be near.

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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Is calling out the National Guard strictly necessary for protection of federal property?

President Donald Trump’s controversial federalization of members of the California National Guard and his deployment of at least 700 active-duty Marines to Los Angeles has raised a series of novel, important, and challenging questions about the scope of the Executive Branch’s legal authorities when it comes to domestic use of the military, reported Just Security.

On one hand, the Posse Comitatus Act of 1878 generally forbids use of federal armed forces for civilian law enforcement unless a statute specifically authorizes it. Although the Insurrection Act has long been understood to be one such statute, Trump has, quite notably, not invoked it here. On the other hand, the Executive Branch (with a bit of help from the Supreme Court) has long claimed inherent power to use military force unilaterally to “protect federal functions,” including the power to defend federal property and federal personnel from violence. Thus, perhaps the dominant question Trump’s military deployment raises is the shape of the Venn diagram created by these two opposing forces. Are they mutually exclusive? If they overlap, which one prevails? Or put more basically, where does this “protective power” end, and (generally prohibited) law enforcement begin?

In our view, there are three possible answers to this question. On the first view, the protective power can include law enforcement—and overrides the Posse Comitatus Act when it does. On the second, the protective power, as an exercise of Article II authority, cannot be understood to include any typical law enforcement activity—and so such activity is unlawful unless specifically authorized by congressional statute. On the third, the answer is somewhere in between—where the protective power does not generally authorize law enforcement activity, but does when that activity is incidental to the protection of federal property and personnel (such as arresting individuals while they are attacking a federal building).

As we explain in the discussion that follows, we think that there are strong arguments to be made in support of both the second and third options—but not the first. More to the point, we think Congress has been far more clear than is widely believed about what its view is—in a way that calls into at least some question what the Trump administration has thus far used federal military forces for in and around Los Angeles.

1. Protective Power as an Exception to Posse Comitatus

The Posse Comitatus Act itself bars domestic use of the military “to execute the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Obviously, nothing in the Constitution “expressly authorize[s]” the President to protect federal functions. Instead, such an Article II power is, at best, implicit—derived from some combination of the Vesting Clause and the Take Care Clause.

By itself, that ought to resolve any debate over whether any protection of a federal function is therefore exempted from the Posse Comitatus Act’s ban, whether it involves law enforcement or not. But there is also plenty of Founding-era history supporting the view that Congress, and not the President, would have broad power to define the circumstances in which the military could be used domestically. Indeed, the Insurrection Act itself derives from statutes Congress enacted in 1792 and 1795, both of which reflected the universal understanding at the time that the President could use military force “to execute the laws of the union” only if Congress had specifically authorized him to do so.

And, to its credit, the Department of Justice in the current litigation over the Los Angeles deployments has seemingly embraced this view. As it argued in its very first brief:

“Plaintiffs’ objection based on the Posse Comitatus Act is equally misdirected. Neither the National Guard nor the Marines are engaged in law enforcement. Rather, they are protecting law enforcement, consistent with longstanding practice and the inherent protective power to provide for the safety of federal property and personnel.” (emphasis in original)

(See also the most recent brief at p. 29).

Thus, not only do we find wholly unpersuasive any argument that the protective power overrides the Posse Comitatus Act; we don’t understand that to be the Trump administration’s litigating position, at least thus far.

Congress has been far more clear than is widely believed about what its view is—in a way that calls into at least some question what the Trump administration has thus far used federal military forces for in and around Los Angeles.

2. Posse Comitatus as a Law Enforcement Ban

At the other end of the spectrum is the argument that the protective power cannot fairly be understood to include any law enforcement functions—that it does not encompass searches, seizures, arrests, or any other activity similarly characteristic of law enforcement. The Ninth Circuit, for example, has interpreted the Posse Comitatus Act to prohibit any direct participation by the military in actions that “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” Thus, on this view, even where what might be viewed as law enforcement activity by the military is necessarily incidental to protecting federal buildings or personnel, it is still prohibited without clear congressional authorization.

Congress put at least a thumb on the scale in this direction in 1981—when it enacted what is present-day 10 U.S.C. § 275. Under that provision,

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

Although this provision is focused on military support for civilian law enforcement agencies, the authoritative House Report is much clearer on how Congress understood the relationship between the protective power and the Posse Comitatus Act:

Certain military activities, although otherwise prohibited by the Posse Comitatus Act, are permissible if expressly authorized by statute. These permissible military actions are specifically defined and are generally restricted to instances involving civil disorders (10 U.S.C. 331–36), disasters (42 U.S. 4401–84 and 1855), and threats to federal property (see letter from Mary C. Lawton, Office of Legal Counsel, Department of Justice, to Deanne Siemer, General Counsel, Department of Defense, March 24, 1978 at 3; see also United States v. Banks, 539 F.2d 14, 16 (4th Cir. 1976). The other specific and “express” statutory exceptions to Posse Comitatus include: (1) 16 U.S.C. 23 and 16 U.S.C. 78 (protection of federal parks); (2) 18 U.S.C. 112(f) and 1116 (protection of foreign officials, official guests, and other internationally protected persons); (3) 18 U.S.C. 351 (crimes against members of congress); (4) 18 U.S.C. 1751 and 3056 (protection against crimes against the president); (5) 22 U.S.C. 408, and 461-462 (enforcement of the neutrality laws); (6) 42 U.S.C. 1989 (execution of warrants relating to certain violations of the civil rights laws); (7) 42 U.S.C. 3756 (loan of services, equipment, personnel and facilities to LEAA [Law Enforcement Assistance Administration]); (8) 43 U.S.C. 1065 (removal of unlawful enclosures from public lands); and (9) 50 U.S.C. 220 (enforcement of the customs laws).

Thus, § 375 was enacted against a backdrop in which the presumption is that activities are prohibited unless they are statutorily authorized. In a note accompanying the first sentence of the above passage, the House Report rules out any notion of a separate Article II authority in reference to the Posse Comitatus Act. The note states in full: “The statute permits constitutional exceptions. However, there are none.” Thus, Congress’s view appears to be that the protective power is not an “exception” to the Posse Comitatus Act; it is defined in such a way so as to not even implicate it.

Note: The Office of Legal Counsel has relied on the House Report and accompanying Conference Report as authoritative guides for determining the scope of permissible military action and the Posse Comitatus Act.

3. The Hybrid: Law Enforcement Only as Necessarily Incidental to Protection

Although we generally find Congress’s view satisfying, it raises one puzzle: What about the Supreme Court’s decision in In re Neagle, which held that the President did not need statutory authorization to appoint a deputy U.S. marshal to protect a Supreme Court Justice from an attempted assassination? Even if Deputy Neagle wasn’t exercising “law enforcement” authority when he shot and killed David Terry in defense of himself and Justice Field, it would be a very strange result if he had the power to shoot at Terry, but not to arrest and detain him. The point is not that Deputy Neagle had general law enforcement power; it’s that he had those powers that were necessary to discharge his (valid) duty to protect Justice Field.

We think the 1981 amendment can be read consistently with this view. As the 1981 Conference Report noted,

Nothing in this section, however, limits the inherent authority of military personnel to defend themselves or to protect federal property. Nothing in this chapter adversely affects the authority of the attorney general to request assistance from the department of defense under the provisions of 21 U.S.C. 873(b). The limitation posed by this section is only with respect to assistance authorized under any part of this chapter.

[Update: Further to our point, the above passage might be read even more narrowly as an emergency exception. The House Report states: “Nothing in this section, however, changes the existing exceptions to the Posse Comitatus Act which allow military personnel to protect lives and federal property in emergency situations when they are involved in the performance of a lawful activity. For example, under current law, and under this proposal, nothing prohibits an air force pilot operating military aircraft from protecting him or herself from aggressive or destructive acts of a drug violator while on an authorized mission.” (We thank Chris Mirasola for this point.)]

Consistent with this understanding, long-standing Defense Department policies state that it is permissible for the military to engage in at least some law enforcement activity in the protection of federal government functions:

Permissible Direct Assistance. Categories of active participation in direct law enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or DoD policy are …

Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because:
…
When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect Federal property or functions. (emphasis added).

The key, in our view, is the bolded language. The question is whether the specific search, seizure, and arrest are “necessary to protect Federal property or functions.” Sending armed troops along with ICE agents on immigration raids can’t possibly meet that test, whereas stationing troops in front of a federal building and authorizing them to arrest those who attack it is. It would also be completely unprecedented to use the protective function to protect enforcement officials – and in a way that entangles the military forces in the very act of law enforcement. The key, in our view, as reflected in both the 1981 enactment of § 275 and the Department of Defense’s own long-standing view, is that law enforcement qua law enforcement is strictly prohibited. Only if the compulsory action is necessary (and incidental) to the protection of federal property or personnel can it be said to have any basis in Article II of the Constitution.

Of course, law enforcement activities can be authorized by other statutes. But we’re not at all persuaded that 10 U.S.C. § 12406 is such a statute. And it would not resolve the use of the Marines. Thus, in our view, the central legal question arising out of the use of military force in and around Los Angeles is not whether the troops are engaged in any “law enforcement-like activities,” but whether those activities are strictly necessary (and incidental) to the protection of federal property and functions. Insofar as they are not, we believe they violate the Posse Comitatus Act.

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DOJ wants life in prison for man pardoned by President Trump

Federal prosecutors are asking a judge to sentence a Jan. 6 rioter to a lifetime behind bars—despite President Donald Trump pardoning his crimes at the U.S. Capitol, reported The Daily Beast.

Edward Kelley, a 35-year-old East Tennessee native, was convicted in November of conspiring to murder FBI agents and other officials who investigated his role in the Jan. 6 Capitol riots.

                                            Edward Kelly 'Make America Great Again'

Kelley was separately convicted of throwing a Capitol cop to the ground, with the help of others, and smashing a window with a piece of wood. However, those charges were wiped away by the president’s sweeping pardon of so-called “Jan. 6ers” in January. 

Edward Kelley was wearing a helmet, gloves, and a paint respirator when he entered the U.S. Capitol. / Department of Justice

Kelley has contested that Trump’s pardon of his Capitol crimes should also apply to his conviction for plotting to kill FBI agents and local law enforcement in Tennessee.

The Department of Justice disagrees. In a sentencing memorandum filed Tuesday, and first reported by Politico, they asked a judge to send Kelley to prison for the rest of his life.

“Kelley created a list of specific people he intended to assassinate, including agents, officers, and employees of the FBI, Tennessee Bureau of Investigation, Tennessee Highway Patrol, Maryville Police Department, Blount County Sheriff’s Office, and Clinton Police Department,” the memorandum read. “To effectuate his plan, Kelley sought the assistance of others to identify his victims’ pattern of life and to murder them at their offices, homes, and in public places.”

Part of his alleged plan was to attack his local FBI office in Knoxville by using “improvised explosive devices attached to vehicles and drones.”

To read more CLICK HERE

States consider surgical castration as a punishment for sex crimes against children

 The Marshall Project expands on castration as punishment:

Last year, Louisiana sparked a slew of sensational headlines when state legislators passed a law allowing surgical castration as punishment for people convicted of sex crimes against children. That was the first successful legislation in a new wave of bills proposing both chemical and surgical castration in states such as New Mexico, Mississippi, and South Carolina.

This March, Oklahoma’s House of Representatives passed a bill that would make chemical castration a precondition of parole in sex offenses involving a child under the age of 13. As the bill headed over to the state senate, Republican Rep. Scott Fetgatter made its intent clear, saying, “I will fight for stricter laws against such offenders to better protect our kids.”

But while supporters of these bills echo that cause, many experts say the approach is needlessly cruel and lacks a sound scientific basis.

Castration — both reversible chemical and permanent surgical castration — does lead to the reduction of testosterone and a diminished libido. But “there is literally no evidence that testosterone is the driving factor of individuals committing crimes of a sexual nature,” said Kristen M. Budd, a senior analyst with the Sentencing Project, a research and advocacy organization working to reduce the number of people behind bars in the U.S.

Castration is not a new idea. According to the Journal of the American Academy of Psychiatry and the Law, doctors in the U.S. have been using hormone therapy — via off-label use of medications for conditions like prostate cancer — since the 1940s to lower the testosterone in men with “pathological sexual behavior.” Sandy Rozek, the communications director for the National Association for Rational Sexual Offense Laws, told The Marshall Project that she’s occasionally heard from people who want to avoid reoffending that the treatment plans they’ve created with their doctors have included surgical castration. Rozek draws a line between these self-appointed procedures and the criminal justice bills mandating castration as a condition of parole or as a court-ordered punishment.

“If your choice is between 10 more years in prison and castration, that’s not really a choice,” she said. “That’s coercion.”

The coercive nature of the state permanently or temporarily altering a man’s body in exchange for release is what led the courts in Michigan to deem the practice unlawful and experts like Budd to point out its similarity to 20th century eugenics, which resulted in the systematic sterilization of thousands of incarcerated women who were deemed “subnormal.”

Proponents like Democratic Louisiana Rep. Delisha Boyd, who co-authored the castration bill that became law in her state, believe that the harshness of the procedure is a self-evident deterrent against sex crime. Boyd, who comes from a family with a history of child sexual abuse, emphatically told NPR, “Even if just one rapist changes his mind about raping a child, I will take that.”

According to Gary Taylor, a researcher and professor who wrote an authoritative book on the history of castration, this strategy has long been practiced with the goal of inciting fear. Some ancient societies would kill enemies and cut off their testicles to intimidate future foes. The practice also permeated the antebellum and Jim Crow South, in which the extra-judicial lynchings of Black people were punctuated with castration as a form of White supremacist psychological terror, with the severed testicles often kept as souvenirs.

The bill Boyd co-authored made Louisiana the first state to allow judges to order surgical castration as a punishment, but there are at least 10 states that passed laws before 2008 to allow chemical or surgical castration as a condition of parole. California led the way in 1996. But despite these laws having been on the books for years, there is little information on how often states perform these procedures. A former sex crime prosecutor told the LAist in 2019 he never saw it done in Los Angeles.

Given the scant information available, the experts we spoke with are not aware of any concrete way to demonstrate that castration deters crime. But Rozek believes the claim is analogous to arguments made in favor of the death penalty, which numerous studies show offers no unique deterrent to violent crime. “People don’t stop and think about things like that when they are committing an offense,” she said. And like the death penalty, Budd is worried that when this punishment is performed, it will be done disproportionately to Black people who have White victims.

In terms of recidivism — whether a formerly incarcerated person reoffends — both Budd and Rozek note that people convicted of sex offenses are less likely than people convicted of other crimes to be rearrested after release. A study by the Bureau of Justice Statistics that followed the post-prison lives of people across 30 states released in 2005 found that about 67% of people convicted of sex offenses were rearrested in the nine years following their release, compared with about 84% of people convicted of other crimes.

For those at risk of reoffending, they point to treatment programs, like cognitive behavioral therapy — which studies have consistently found to reduce sexual recidivism — over the unknowns of castration. Budd also notes that castration can further ostracize those who have committed crimes of a sexual nature. Instead of states investing millions into post-release punishments, such as sex offender registries, she believes society would be safer if lawmakers “actually created spaces for people who may have attraction to children to go seek help without fear.”

While a castration bill in South Carolina is still working its way through the legislature, and one in Oklahoma was withdrawn from an appropriation committee, the bills proposed earlier this year in New Mexico, Iowa and Mississippi have died. Rozek takes no solace in this. “The first year out, most of the bills won't pass,” she said. “But this is just the first phase. They will come back.”

Similarly, Budd believes that with the bipartisan passing of the surgical castration law in Louisiana, we could see this punishment be adopted for other crimes. “It happened with sex offense registries,” she said. “Now you have violent offender registries in states like Ohio and Oklahoma that list people’s home address and their vehicle information once they're released from prison.”

While these punitive bills can boost legislators on both sides of the aisle hoping to look tough on crime, Budd warns that they can doom the formerly incarcerated looking for a clean start. “These laws take away hope, chance for change, and human dignity.”

To visit The Marshall Project CLICK HERE

President Teddy Roosevelt's thoughts on dissent

 "To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public." 

-Theodore Roosevelt

Trump nominates Fox News host Jeanine Pirro for full-time U.S. Attorney position

President Donald Trump is nominating former Fox News host and interim US Attorney Jeanine Pirro to a full term as the top federal prosecutor in Washington, DC, according to a White House news release, according to CNN.

Her nomination for a four-year term has been sent to the Senate, the release says.

She was named to the position on an interim basis last month after Trump’s first pick, Ed Martin, faced what appeared to be insurmountable pushback from Republicans on Capitol Hill.

Pirro, a longtime Trump ally, is a former judge and district attorney for Westchester County in New York. Until being tapped by Trump, she had not held a position in the justice system since 2005, when she left the district attorney’s office and began her career on television.

CNN’s KFile on Monday reviewed Pirro’s radio shows and found that she has repeatedly endorsed criminal investigations into Trump’s perceived political enemies, including federal prosecutors, local officials and judges involved in his various legal cases.

In addition to her attacks on federal law enforcement and the judiciary, Pirro has spent years promoting false and inflammatory claims. She downplayed the January 6 violence as a political “narrative,” calling for a Capitol Police officer and DOJ officials to be investigated.

Pirro also boosted unfounded claims that the 2020 election was stolen and was one of several hosts named in the Dominion Voting Systems defamation lawsuit against Fox News. The lawsuit was later settled by Fox News for more than $787 million.

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Mangino talks Sean 'Diddy' Comb's trial on Law and Crime's Scandal

Watch my interview with Sierra Gillespie on Law and Crime Network's Scandal discussing the Sean Combs trial in federal court.

To watch the interview CLICK HERE

The President's power to activate troops can be limited by the courts

 A Federal Appeals Court denied California Gov. Gavin Newsome's action to take control of National Guard from the Trump administration, according to The New York Times.

The Court did say the President's power to activate troops can be limited by the courts. The Trump administration had urged the appeals court to find that the judiciary could not review Mr. Trump’s decision to take control of a state’s National Guard under the statute he invoked, which sets conditions like if there is a rebellion against governmental authority that impedes the enforcement of federal law.

The appeals court declined to go that far.

Supreme Court precedent “does not compel us to accept the federal government’s position that the president could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith,” the appeals court wrote.

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Mangino discusses development in Bryan Kohberger with Jesse Weber on Law and Crime Network's Sidebar

My my interview with Jesse Weber on Law and Crime Network's Sidebar.

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More American children and teens die from firearms than any other cause

More American children and teens die from firearms than any other cause, but there are more deaths — and wider racial disparities — in states with more permissive gun policies, according to a new study, reported by Nada Hassanein of Stateline.

The study, published in the medical journal JAMA Pediatrics last week, analyzes trends in state firearm policies and kids’ deaths since 2010, after the landmark U.S. Supreme Court decision in McDonald v. City of Chicago. The ruling struck down the city’s handgun ban, clearing the way for many states to make it easier for people to buy and carry guns.

The study authors split states into three groups: “most permissive,” “permissive” and “strict,” based on the stringency of their firearm policies. Those policies include safe storage laws, background checks and so-called Stand Your Ground laws. The researchers analyzed homicide and suicide rates and the children’s race.

Using statistical methods, the researchers calculated 6,029 excess deaths in the most permissive states between 2011 and 2023, compared with the number of deaths that would have been expected under the states’ pre-McDonald rules. There were 1,424 excess deaths in the states in the middle category.

In total, about 17,000 deaths were expected in the post-decision period, but 23,000 occurred, said lead author Dr. Jeremy Faust, an emergency physician at Brigham and Women’s Hospital in Boston, in an interview.

Among the eight states with the strictest laws, four — California, Maryland, New York and Rhode Island — saw statistically significant decreases in their pediatric firearm death rates. Illinois, which was directly affected by the court’s decision in the McDonald case, and Connecticut saw increases in their rates. In Massachusetts and New Jersey, the changes were not statistically significant.

The rate increased in all but four (Alaska, Arizona, Nebraska and South Dakota) of the 41 states in the two permissive categories. (Hawaii was not included in the study due its low rates of firearm deaths.)

Non-Hispanic Black children and teens saw the largest increase in firearm deaths in the 41 states with looser gun laws. Those youths’ mortality rates increased, but by a much smaller amount, in the states with strict laws.

Experts say the study underscores the power of policy to help prevent firearm deaths among children and teens. The analysis comes less than a month after the release of a federal report on children’s health that purported to highlight the drivers of poor health in America’s children but failed to include anything on firearm injuries — the leading cause of death for children and teens in 2020 and 2021, according to the federal Centers for Disease Control and Prevention.

Trauma surgeon Dr. Marie Crandall, chair of surgery at MetroHealth medical center and a professor at Case Western Reserve University School of Medicine in Cleveland, researches gun violence. She previously practiced at a Jacksonville, Florida, urban trauma unit, where she frequently saw children and teens caught in gun violence.

“When I see children come in with 10 holes in them that I can’t save — that is a loss. That is a completely preventable death, and it is deeply emotionally scarring to have to have those conversations with families when we know, as a society, there are things we could do to de-escalate,” said Crandall, who wasn’t involved in the new study.

When I see children come in with 10 holes in them that I can't save — that is a loss. That is a completely preventable death.

– Dr. Marie Crandall, chair of surgery, MetroHealth medical center, Cleveland

In her state of Ohio, firearm death rates among children and teens increased from 1.6 per 100,000 kids in the decade before the McDonald decision to 2.8 after it, according to the study. Ohio was categorized in the group with the most permissive laws.

The study adds to previous research that shows state laws around child access to firearms, such as safe storage and background checks, tend to be associated with fewer child firearm deaths.

“We know that child access prevention decreases unintentional injuries and suicides of children. So having your firearms locked, unloaded, stored separately from ammunition, decreases the likelihood of childhood injuries,” Crandall said. “More stringent regulation of those things also decreases childhood injuries.”

But she said it’s hard to be optimistic about more stringent regulation when the current administration dismisses gun violence as a public health emergency. The Trump administration earlier this year took down an advisory from the former U.S. surgeon general, issued last year, that emphasized gun violence as a public health crisis.

Faust, the lead author of the new study, stressed that firearm injuries and deaths were notably missing from the Make America Healthy Again Commission report on children’s health. He said the failure to include them illustrates the politicization of a major public health emergency for America’s kids.

“It’s hard to take them seriously if they’re omitting the leading cause of death,” Faust said. “They’re whiffing, they’re shanking. They’re deciding on a political basis not to do it. I would say by omitting it, they’re politicizing it.”

Faust and pediatric trauma surgeon Dr. Chethan Sathya, who directs the Center for Gun Violence Prevention at the Northwell Health system in New York, each pointed to the development of car seat laws and public health education, as examples of preventive strategies that helped reduce childhood fatalities. They support a similar approach to curbing youth gun deaths.

“We really have to apply a public health framework to this issue, not a political one, and we’ve done that with other issues in the past,” said Sathya, who wasn’t involved in the study and oversees his hospital’s firearm injury prevention programs. “There’s no question that this is a public health issue.”

In Louisiana, which the study categorized as one of the 30 most permissive states, the child firearm mortality rate increased from 4.1 per 100,000 kids in the pre-McDonald period to 5.7 after it — the nation’s highest rate. The study period only goes to 2023, but the state last year enacted a permitless carry law, allowing people to carry guns in public without undergoing background checks. And just last month, Louisiana legislators defeated a bill that would have created the crime of improper firearm storage.

Louisiana Democratic state Rep. Matthew Willard, who sponsored the safe storage legislation, said during the floor debate that its purpose was to protect children. Louisiana had the highest rate of unintentional shootings by children between 2015 to 2022, according to the research arm of Everytown for Gun Safety, which advocates for stricter gun access. Willard cited that statistic on the floor.

But Republican opponents said Willard’s proposal would infringe on residents’ gun rights and make it more difficult for them to use guns in self-defense.

“Nobody needs to come in our houses and tell us what to do with our guns. I think this is ridiculous,” Republican Rep. R. Dewith Carrier said during the debate.

Another Republican opponent, state Rep. Troy Romero, said he was concerned that having a firearm locked away would make it harder for an adult to quickly access it.

“If it’s behind a locked drawer, how in the world are you going, at 2 or 3 in the morning, going to be able to protect your family if somebody intrudes or comes into your home?” Romero said.

Gun violence researcher Julia Fleckman, an assistant professor, and her team at Tulane University in New Orleans have started to collect data on the impact of the state’s permitless carry law.

“It places a disproportionate impact on really vulnerable people, really, our most vulnerable people,” Fleckman said, noting kids bear the brunt of legislators’ decisions. “They don’t have a lot of control over this or the decisions we’re making.”

In South Carolina, another one of the most permissive states, the mortality rate increased from 2.3 to 3.9 per 100,000 kids in the time before and after the McDonald decision. South Carolina Democratic state Rep. JA Moore, who lost his adult sister 10 years ago today in the 2015 racist shooting that killed nine at a Charleston church, said state policy alone isn’t enough. He implored his colleagues to also examine their perception of guns.

“We have a culture here in South Carolina that doesn’t lend itself to a more safe South Carolina,” said Moore, who added he’s been advocating for background checks and stricter carry laws. “There is a need for a culture change in our state, in our country, when it comes to guns and our relationships with guns as Americans, realizing that these are deadly weapons.”

And investing in safer neighborhoods is crucial, he said.

“People are hurt by guns in places that they’re more comfortable, like their homes in their own neighborhoods,” he said.

Community-based interventions are important to stemming violence, experts said. Crandall, the Cleveland surgeon, said there’s emerging evidence that hospital-based and community-based violence prevention programs decrease the likelihood of violent and firearm-related injury.

Such programs aim to break cycles of violence by connecting injured patients with community engagement services. After New York City implemented its hospital-based violence interruption program, two-thirds of 3,500 violent trauma patients treated at five hospitals received community prevention services.

After her 33-year-old son was killed in her neighborhood in 2019, Michelle Bell started M-PAC Cleveland — “More Prayer, Activity & Conversation” — a nonprofit collaborative of people who’ve lost loved ones to violent crime. She’s encountered many grieving parents who lost their children to gunfire. The group advocates and educates for safe storage laws and holds peer grief support groups.

She also partners with the school district in a program that shares stories of gun violence’s long-lasting impact on surviving children, families and communities and non-violent interpersonal conflict resolution.

“Oftentimes, the family that has lost the child, the child’s life has been taken by gun violence, there are other children in the home,” she said.

“It’s so devastating. It’s just so tragic that the No. 1 cause of death for children 18 and under is gun violence,” Bell continued.

The decision to “pull a trigger,” she said, changes a “lifetime of not only yours, but so many other people.”

To read more CLICK HERE

CREATORS: The Obsolescence of Proof Beyond a Reasonable Doubt

Matthew T. Mangino
CREATORS
June 17, 2025

Former Supreme Court Justice Anthony M. Kennedy acknowledged in 2012 — when writing an opinion to establish the right to competent counsel for defendants negotiating a plea — that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."

In 2022, a little more than 1 in 100 federal defendants and 1 in 20 state defendants went to trial. A significant majority of criminal cases are resolved by plea bargaining.

A plea bargain is a negotiated agreement between the government and a person accused of a crime. The accused agrees to accept responsibility in exchange for reduced charges or a more lenient sentence.

Many of those who choose to plead guilty serve their jail time before they are sentenced. How can an inmate serve his sentence before he is determined to be guilty?

The American criminal justice system has prided itself on the heavy burden placed on the government to prove those accused of a crime guilty beyond a reasonable doubt — yet very few are actually subject to that burden.

One of the most significant factors in resolving criminal cases is poverty. An accused is arrested on a felony. The defendant does not have the wherewithal to make bond. She sits in jail. The state realizes their case isn't great — witnesses disappear, evidence is weaker than first thought, the defendant has an alibi — the prosecutor offers a plea to a lesser charge and time already served in jail.

The defendant could refuse to plead guilty and go to trial. That might mean sitting in jail for months while the case is prepared and scheduled for trial.

Here is what the scales of justice are weighing in many cases. Liberty right now or further incarceration with the risk of conviction at trial, along with a harsh sentence.

There seems to be something inherently wrong with locking up poor people who can't afford a bond and then offering the time they already served as the penalty. In America, it is not just the poor who negotiate their way through the system.

Most defendants who pass through the criminal justice system waive the right to a trial and the panoply of constitutional protections that come with being charged. Those rights are some of the most fundamental rights afforded a person by the U.S. Constitution. For one, the right to confront witnesses. The Sixth Amendment provides that a person accused of a crime can cross-examine witnesses to determine if they are biased or their memory is faulty or unclear. A defendant can't do that at a plea hearing.

At trial, a defendant has the Fifth Amendment right to remain silent. No one can be forced to be a witness against oneself. That right doesn't exist at a plea hearing. The defendant is often the only witness and must acknowledge guilt.

A defendant has the right to pick an impartial jury of his or her peers, but not when pleading guilty. A defendant has the right to a speedy trial ... that right must be waived to enter a guilty plea.

The defendant may have a basis to challenge a search or arrest under the protections provided by the Fourth Amendment's prohibition against unlawful search and seizure. However, if the defendant wants a favorable plea bargain, those rights must be waived.

For those without the ability to post bail, plea bargaining is often the only avenue to freedom. Two defendants charged with the same exact crime in the same jurisdiction — one has money, he can post a monetary bond and walk the streets until trial, just like any law-abiding citizen.

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

To visit Creators CLICK HERE

Mangino discusses Purdue Pharma's proposed bankruptcy settlement on WFMJ-TV

Watch my interview with Kaitlyn McCarthy on WFMJ-TV21.

To watch CLICK HERE

South Carolina killer eats fried fish, fried shrimp, crab cakes, a baked potato, carrots, fried okra, cherry pie, banana pudding and sweet tea before execution

 The 23rd Execution of 2025

Stephen Stanko, a South Carolina man sent to death row twice for separate murders was put to death June 13, 2025 by lethal injection in the state’s sixth execution in nine months, reported The Associated Press.

Stanko, 57, was pronounced dead at 6:34 p.m.

He was executed for shooting a friend and then cleaning out his bank account in Horry County in 2005.

Stanko also was serving a death sentence for killing his live-in girlfriend in her Georgetown County home hours earlier, strangling her as he raped her teenage daughter. Stanko slit the teen’s throat, but she survived.

The execution began after a 3 1/2 minute final statement where Stanko apologized to his victims and asked not to be judged by the worst day of his life. Witnesses could hear prison officials asking for the first dose of the powerful sedative pentobarbital which was different from previous executions.

Stanko appeared to be saying words, turned toward the families of the victims and then let out several quick breaths as his lips quivered.

Stanko appeared to stop breathing after a minute. His ruddy complexion quickly disappeared and the color drained from his face and hands. A prison employee asked for a second dose of pentobarbital about 13 minutes later. He was announced dead about 28 minutes after the execution started.

Three family members of his victims stared at Stanko and didn’t look away until well after he stopped breathing. Stanko’s brother and his lawyer also watched. Attorney Lindsey Vann, who watched her second inmate client die in seven months rubbed rosary beads in her hands.

Stanko was leaning toward dying by South Carolina’s new firing squad, like the past two inmates before him. But after autopsy results from the last inmate killed by that method showed the bullets from the three volunteers nearly missed his heart, Stanko went with lethal injection.

Stanko was the last of four executions scheduled around the country this week. Florida and Alabama each put an inmate to death on Tuesday. On Wednesday, Oklahoma executed a man transferred from federal to state custody to allow his death

The federal courts rejected Stanko’s last-ditch effort to spare his life as his lawyers argued the state isn’t carrying out lethal injection properly after autopsy results found fluid in the lungs of other inmates killed that way.

Also South Carolina Gov. Henry McMaster refused clemency in a phone call to prison officials minutes before the execution began.

A governor has not spared a death row inmate’s life in the previous 48 executions since South Carolina reinstated the death penalty about 50 years ago.

Stanko is the sixth inmate executed in South Carolina in nine months after the state went 13 years without putting an inmate to death because it could not obtain lethal injection drugs. The South Carolina General Assembly approved a firing squad and passed a shield law bill which allowed the suppliers of the drugs to stay secret.

In his final statement, Stanko talked about how he was an honor student and athlete and a volunteers and asked several times not to be judged by the night he killed two people.

“I have live for approximately 20,973 days, but I am judged solely for one,” Stanko said in his final statement read by his lawyer.

Stanko apologized several times to his victims and their families.

“Once I am gone, I hope that Christina, Laura’s family and Henry’s family can all forgive me. The execution may help them. Forgiveness will heal them.”

Stanko ate his last meal on Wednesday as prison officials give inmates a chance to enjoy their special food before their execution day. He ate fried fish, fried shrimp, crab cakes, a baked potato, carrots, fried okra, cherry pie, banana pudding and sweet tea.

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