Will private prisons work?
The Youngstown Vindicator
December 11, 2011
Ohio was facing an $8 billion budget shortfall in 2010 when Gov. John Kasich took office. He proposed an ambitious and unprecedented plan to balance the corrections portion of the budget — sell five prisons to private companies.
Lake Erie Corrections Institution, located in Ashtabula County, was the only prison sold. It’s the first state prison in the nation to be sold to a private company.
Correction Corporation of America (CCA) bought the facility for $72.7 million. The state will pay CCA $44.25 per inmate per day in addition to an annual $3.8 million ownership fee.
CCA may be familiar to many because the company operates the Northeast Ohio Correctional Center in Youngstown. The state’s ability to sell only one of five prisons slated for sale was not a concern for the Department of Rehabilitation and Correction. “It’s not a disappointment at all,” Annette Chambers-Smith, deputy director of administration told the Cleveland Plain-Dealer, “... we thought we would need to sell all five of them to net $50 million.”
Major player
CCA operates 60 facilities in 19 states and the District of Columbia. Those facilities have more than 80,000 beds and currently house about 75,000 offenders. CCA owns 44 of the facilities it operates, representing more than half of all the private prison beds nationwide. According to the company website, CCA with its 17,000 employees is the fifth-largest corrections system in the nation, behind only the federal government and three states.
Privatization may seem like a promising way to generate revenue and cut costs in difficult economic times. Ohio’s prisons are over capacity. As of October, Ohio’s 30 prisons had the capacity to house 38,196 inmates, but actually confined 50,334.
There is an incarceration bubble in America. That bubble may burst as budget woes force states to reduce prison populations andthe federal government look for alternatives to an immigration policy that has been a boon to private prisons.
Prison reduction efforts are obviously not part of the package offered by corporate-run prisons. They have no incentive to explore alternatives to incarceration, such as electronic monitoring, half-way houses or other diversionary efforts to reduce the number of non-violent offenders behind bars.
Ohio, like many states, is trying to reduce its prison population. Nonviolent offenders often serve the shortest sentences. There are about 12,000 inmates in Ohio serving state sentences of less than one year. Some estimate that reducing short term sentences in state prison could trim inmate population by about 4,000 within four years.
The Texas-based criminal justice blog Grits for Breakfast recently reprinted portions of CCA’s latest annaul 10-K report filed with the U.S. Securities and Exchange Commission. CCA acknowledged that the company is “dependent upon the governmental agencies with which we have contracts to provide inmates for our managed facilities. We cannot control occupancy levels at our managed facilities ... a decrease in our occupancy rates could cause a decrease in revenues and profitability.”
The report continues, “The demand for our facilities and services could be adversely affected by…leniency in conviction or parole standards and sentencing practices.”
Federal threat
CCA is not ignoring the threat of leniency or a reduction in occupancy. According the Chattanoogan, citing a report from the National Institute on Money in State Politics, CCA hired 199 lobbyists in 32 states between 2003 and 2010. On the federal level, CCA spent more than $18 million on lobbying between 1999 and 2009.
CCA’s Ohio lobbyist, Don Thibaut, served as Gov. Kasich’s chief of staff when he was in Congress, says The Associated Press. The connections go beyond a lobbyist. Kasich’s corrections director Gary C. Mohr spent five years as a consultant for CCA.
The incarceration bubble, like the real estate bubble before it, will burst, which could mean trouble for Ohio taxpayers.
Complying with Walsh Act cost Ohio $10 million
The Youngstown Vindicator
November 13, 2011
Four years ago, Ohio became the first state to comply with the Adam Walsh Child Protection and Safety Act of 2006 (AWA) which mandated a more comprehensive, nationwide system to track sex offenders. The intent of the AWA was to standardize sex offender laws across the country. The AWA established minimum national standards and provided some consistency with regard to sex offender legislation.The AWA gave states five years to bring their laws into conformity with the new federal guidelines. The federal government had some leverage when it came to convincing state legislatures to comply. Every state was mandated to comply with the public registry provisions of the AWA or lose 10 percent of their allotted Byrne Justice Assistance law enforcement grants.
The deadline was extended twice, first to July 2010 then to July 27, 2011. Have state lawmakers crumbled in the face of federal cuts, not exactly. Only Ohio and 13 other states met the deadline.
10 percent penalty
According to the Harrisburg Patriot News, New York and Texas have informed the Department of Justice that their respective states will not comply with the AWA and will voluntarily submit to the10 percent penalty.
Texas called the AWA “one-size-fits-all” legislation that would cost 30 times the amount of federal funds that will be withheld if the state does not comply. Texas has estimated the federal funding penalty at $1.4 million, compared to an implementation cost of $38.7 million.
In California, the state’s sex-offender management board recommended that the legislature reject the AWA. “California should absorb the comparatively small loss of federal funds that would result from not accepting the very costly and ill-advised changes to state law and policy required by the Act.”
A National Conference of State Legislatures’ database revealed that 48 states have enacted nearly 350 laws related to residency restrictions, sentencing and monitoring sex offenders since 2008.
The AWA mandate seeks to undo most of the independent sex offender legislation. The AWA will expand the categories of crimes eligible for registration and increase the period and frequency of registration for certain adults and juveniles, effectively growing registries by as much 500% in some states, reported CNN.
This summer an Ohio Supreme Court decision exposed the vulnerability of the more onerous requirement of the AWA. For the second time the Court found a portion of the AWA mandated legislation unconstitutional.
In State v. Williams, the Ohio Supreme Court held, “All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment.” Justice Paul E. Pfeiffer went on to write, “These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender’s actions.”
Retroactive laws
Justice Pfeiffer continued, “The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders. It may not, however, consistent with the Ohio Constitution, ‘impose new or additional burdens, duties, obligations, or liabilities ...’ We conclude ... S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.”
As the first state to comply with the AWA, Ohio’s problems with constitutionality are an ominous sign for other states. Amy Borror, spokeswoman for the Ohio Public Defenders Office, told the Pittsburgh Tribune-Review that complying with the AWA spawned more than 7,000 lawsuits and increased the workload on sheriff’s offices by about 60 percent. Her office estimates that Ohio has spent at least $10 million just on legal costs defending the AWA.
If Ohio had chosen not to comply with AWA, the state would have lost about $935,000 in federal grant money.
Prosecutors overtake the authority of judges
Youngstown Vindicator
October 9, 2011
Prosecutors are the most powerful figures in the criminal justice system. The proliferation of criminal statutes along with sentence enhancements and mandatory minimum sentencing have constricted the discretion and authority of judges and expanded the power of prosecutors.
The shift in power is no more evident than in the transition from a trial-dominated system to one dependent on the negotiated plea. Recently, the New York Times provided a host of statistics that underscored this shift. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from 8 percent in 1976. That is fewer than one in 40 felony cases—35 years ago the ratio was about 1 in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal- trial verdicts in federal district courts was a little more than 4 to 1; by last year, it was almost 32 to one.
PROSECUTORS’ IMPACT
How do prosecutors influence the plea-bargaining process? Take a defendant arrested within 1,000 feet of a school with a sizable amount of heroin and a gun. With mandatory sentencing for a large about of heroin, enhancements for having a gun and being near a school, the defendant could theoretically face up to 12 years in prison. The defendant is offered a plea of five years or the option of trial with12 years on the line. The judge has little leverage as she is bound by law to impose the mandatory penalties as well as the enhancements.
“We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant U.S. attorney and a professor at the University of North Carolina told the Times. He reported that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
This is not to suggest that all of that power is in the wrong hands. No other individual is better positioned to wield that power than a prosecutor. A prosecutor is keenly aware of the strengths and weaknesses of the state’s case. The prosecutor has interviewed witnesses and thoroughly examined evidence. No figure in the justice system is in a better position to evaluate a case and decide what is fair.
The U.S. Supreme Court has held that plea-bargaining is not a right protected by the Constitution. There is no substantive or procedural right to engage in plea negotiations. Even if a defendant accepted a plea offer, there is no legal entitlement to be sentenced in accordance with the agreement. A judge can reject a plea, or in some jurisdictions, impose a sentence that is not in accordance with the negotiated plea.
SUPREME COURT KEEPS MUM
The U.S Supreme Court has been reluctant to take on the plea-bargaining process. “It is a very hard question why the Supreme Court is so sensitive to creating trial rights which make trial ever more complicated and therefore unworkable on the one hand, and on the other hand so insensitive to the resulting evasion which dominates the system,” John Langben, a Yale Law Professor, told National Public Radio.
Trial has become so complicated and time-consuming that the criminal justice system would grind to a halt if every case went to trial. The plea- bargain process provides a benefit to the defendant in a more lenient sentence in exchange for a plea and prevents the collapse of an overburdened system.
The U.S. Supreme Court has, at long last, agreed to hear two cases this fall that may have an impact on plea bargaining. In Lafler v. Cooper, and Missouri v. Frye, the High Court will consider whether defendants who were not told of favorable plea offers, or were advised to reject them, may pursue claims pursuant to the Sixth Amendment for ineffective assistance of counsel.
Ohio’s death penalty derailedYoungstown Vindicator
September 11, 2011
Has the tide turned in Ohio? At one point, several months ago, Ohio had executed more prisoners in 2011 than any other state. In 2010, Ohio was behind only Texas in the number of executions carried out. Texas has been the most prolific purvey of state-sponsored death since the death penalty was reinstated in 1976.
Ohio was literally setting the standard for executions nationwide. In 2009, after a brief moratorium following the botched execution of Romel Broom, Ohio was the first state to move from the standard three-drug execution protocol to a single-drug protocol.
Ohio was the second state to replace the sedative sodium thiopental used as an execution drug, currently in short supply, with pentobarbital. Ohio is the only state with a single-drug protocol using only pentobarbital.
Inconsistencies
That all changed in early July, when U.S. District Court Judge Gregory L. Frost delayed the scheduled execution of death row inmate Kenneth Wayne Smith after finding Ohio enforces some of its execution policies inconsistently.
Judge Frost wrote, “It is the policy of the State of Ohio that the state follows its written execution protocol, except when it does not.” Judge Frost continued, “Sometimes with no physical ramification and sometimes with what has been described as messy if not botched executions.”
The court found that the state failed to have the required medical personnel available, failed to properly document preparation of the execution drugs, or to prepare inmates for lethal injection.
Since then, the Ohio Supreme Court has scheduled two executions for well into 2013 providing additional time to address the concerns with Ohio’s execution protocol. Gov. John Kasich postponed a second execution, this one scheduled for August 16, 2011. The New York Times has suggested that Gov. Kasich’s action “is an admission that Ohio’s management of the death penalty is broken and further proof that the machinery of death cannot be operated responsibly anywhere.”
Ohio is front and center in America’s death penalty debate. The state is a hotbed of prominent politicos who have turned their back on capital punishment. Recently, a number of prominent Ohioans came out publicly in opposition to the death penalty. Earlier this year, Ohio Supreme Court Justice Paul E. Pfeiffer declared his opposition to the death penalty in an op-ed published in the Cleveland Plain Dealer.
Former Ohio Attorney General Jim Petro recently told the Cincinnati Enquirer, “I used to believe that the death penalty was a crime deterrent and cost less than incarcerating someone for 40 years. I know now it does not save money and is not a deterrent to crime.” Petro and Pfeiffer were both members of the legislature in 1981 when Ohio’s death penalty statute was passed.
Death row
Last year, Ohio moved more offenders off of death row than were placed on death row. There were eight executions and three commutations. Only seven offenders were sentenced to death statewide. At the current rate it would take 38 years to clear Ohio’s death row. Nationwide the numbers are even more abysmal. There are about 3,400 offenders on death row. It would take 73 years to execute everyone on death row at last year’s execution rate — even without adding another person to death row.
The death penalty is in question, not because some killers do not deserve themselves to die, but rather because the act of execution has become so rare as to indicate the presence of caprice if an offender is executed or fortuity if an offender is not. Neither caprice nor fortuity has a place in the criminal justice system.
Do snitches serve justice?
The Youngstown Vindicator
August 7, 2011
The ill-fated use of a jailhouse informant was chronicled in John Grisham’s first non-fiction book, “The Innocent Man.” Grisham examined the trial, conviction and exoneration of Ron Williamson. The key prosecution witness told authorities she overheard Williamson make incriminating remarks while she awaited her own trial. She had prior felony convictions and this was not her first appearance as a jailhouse informant in a murder trial. At one point, Williamson was five days from execution before he was ultimately exonerated.
Several years ago in Lawrence County, Pa., Thomas Kimbell was prosecuted by the attorney general’s office and convicted of quadruple homicide, in part through the use of a jailhouse informant. Kimbell was later awarded a new trial and found not guilty.
In Greensburg, Pa., Kevin Murphy is being tried for the murder of his mother, sister and aunt. The lead witness is Murphy’s former cellmate. District Attorney John Peck defended the use of jailhouse informants. Peck said he cannot pick and choose which inmates come forward with information. He told the Pittsburgh Tribune-Review, “We very closely scrutinize the information they bring forward.”
‘Confession’
Jailhouse informants are nothing new. In 1819, Vermont authorities could not solve an alleged homicide. The victim was missing, and the authorities sought the help of a jailhouse informant who received a “confession” from a suspect, who was ultimately sentenced to death. Only days before the scheduled execution, the “murder victim” strolled back into town very much alive.
A jailhouse informant is an inmate who contacts law enforcement authorities with information about another defendant facing trial. In exchange for helpful information the government provides a benefit to the informant such as a sentence reduction, reduction in charges or some special privilege.
The incentive to come forward with information has been codified on a federal level. Federal Sentence Guidelines permit a judge to impose a sentence significantly below the sentence required by the guidelines if the offender being sentenced has provided “substantial assistance” in the prosecution of some other defendant. While prosecutors say jailhouse informants can provide important — and truthful — testimony, informants have little to lose by lying on the witness stand. Rarely are they charged with perjury, according to the Chicago Tribune. It is not difficult for an informant to piece together the details of a crime from newspapers or legal documents and fabricate a cellmate’s “confession.”
Some jailhouse informants provide useful information that is, at times, essential in the search for truth. However, what are policymakers doing to insure fairness and to prohibit unscrupulous inmates from benefiting by their continuing misdeeds?
Connecticut has adopted a specific informant jury instruction that includes the following language, “You must look with particular care at the testimony of an informant and scrutinize it very carefully before you accept it.” Jury instructions are the rules that juries are bound by as they make a decision. The instructions are provided to the jury by a judge immediately before they begin to deliberate.
Last month California took it a step further. The legislature passed a bill prohibiting future convictions based solely on the testimony of jailhouse informants. The California District Attorneys Association and other law enforcement groups were opposed to the bill. The law would block convictions in cases without corroborating testimony of witnesses or forensic evidence.
Jury instructions
Pennsylvania and Ohio are lagging behind in this area of the law. There are general jury instructions, in both states, regarding the credibility of a witness, whether the witness is an eyewitness or an informant.
In Pennsylvania, there is a specific instruction available when a witness has a penal interest in providing testimony, such as a witness who has been promised a more lenient sentence in exchange for testifying. In Ohio, there is an instruction for uncorroborated accomplice testimony, “use it with great caution and view it with grave suspicion.” Ohio does not have a similar instruction for informant testimony.
When a witness is a jailhouse informant her testimony needs to be judged by special precautionary rules. Justice demands those rules be codified in a concise and understandable manner.
Is the Rule Obsolete?
The Youngstown Vindicator
July 3, 2011
This summer marks the 50th anniversary of the landmark U.S. Supreme Court decision Mapp v. Ohio. The case originated out of Cleveland, where police were looking for a fugitive and forced their way into Dollree Mapp’s apartment without her consent. While in the apartment the police confiscated illegal material and arrested Mapp.
Forty-seven years before Mapp the U.S. Supreme Court ruled that evidence collected in federal prosecutions that violated the Fourth Amendment ban against illegal search and seizures would be excluded from trial. The exclusionary rule, as it became known, was available to all defendants in federal court. However, the rule had not been recognized or applied by all states. Ohio was one of those states that did not recognize the exclusionary rule.
Mapp v. Ohio changed the nation’s jurisprudential landscape. Mapp explicitly held that the exclusionary rule applies to the states and as a result state prosecutors could not use evidence gained by illegal or improper means to obtain a conviction.
The rationale behind the exclusionary rule was to deter police misconduct. If the police intentionally circumvented their obligation to get a search warrant or if the police were just inept, the penalty would be significant — the inability to use the evidence illegally obtained.
Target of assault
Many Supreme Court observers suggested that the Mapp decision would be detrimental to law enforcement. The courts would be inundated with challenges and the guilty would go free in droves. The exclusionary rule has been the target of a 50-year assault by conservatives who contend the rule is a boondoggle for criminals.
What the exclusionary rule actually produced was improved police work. The law enforcement training that grew out of the Mapp decision has enhanced the quality of police investigations and protected the rights of individual citizens. In 2005, Justice Antonin Scalia cited “increasing professionalism of police” as a reason for the exclusionary rule’s obsolescence.
In 2009, the assault on the exclusionary rule continued. The Supreme Court found that evidence confiscated as the result of an arrest that was the product of an expired warrant was not subject to exclusion. The Court found that negligence by one police department in failing to remove a warrant did not contaminate evidence obtained by a different police department that was unaware the arrest warrant was invalid.
Narrowing the rule
Last month, almost 50 years to the day that Mapp was decided, the U.S. Supreme further narrowed the exclusionary rule. Police in Alabama arrested Willie Davis. After he was handcuffed and placed in the backseat of a police cruiser Davis’ car was searched. The police found a gun. The police were in conformity with the law as it existed at the time the warrantless search of Davis’ car was conducted.
Subsequently, the law changed and Davis sought to have the evidence excluded. The Supreme Court refused to exclude the evidence. Justice Samuel Alito concluded that suppression of evidence as the result of a change in the law, a change that came after a lawful search, “would do nothing to deter police misconduct.”
For those who believe that the exclusionary rule is an important tool for preserving some of the U.S. Constitution’s most fundamental rights, the Davis v. United States decision is alarming. The decision itself is narrow; the real concern lies in the fact that the Court’s newest members, Justice Sonia Sotomayor and Justice Elena Kagan joined with the conservative faction of the Court in finding the exclusionary rule did not apply in Davis.
If Davis is indicative of the direction the newly reconfigured U.S. Supreme Court is headed with regard to the exclusionary rule — the idea of penalizing police misconduct may soon be a thing of the past.
America safer today than it has been for past 40 years
Youngstown Vindicator
June 5, 2011
Violent crime has fallen to its lowest level in 40 years. America is a safer place. According to The New York Times, “the odds of being murdered or robbed [in the United States] are now less than half of what they were in the early 1990s.”
The FBI’s Preliminary Annual Uniform Crime Report for 2010 is based on data collected from more than 13,000 law-enforcement agencies nationwide. The report found a significant 5.5 percent decline in violent crime.
The continued decline in crime seems to fly in the face of accepted theories of criminality. Many legal observers suggested that the recession and high unemployment would usher in higher crime rates — that did not happen. Some suggested that lowering the incarceration rate (in 2010 the number of people in prison fell for the first time in 38 years) would impact crime — it did not. Some said that police lay-offs and law enforcement cut backs would increase crime rates — it has not.
There is one constant, the fear of crime and the lengths that citizens will go to avoid being victimized. According to Gallup, nearly 4 in 10 Americans say they are afraid to walk alone at night within a mile of their home.
Fear persists
The number of Americans afraid to venture out alone at night is lower today than when crime rates were soaring in the 1990s. However, fear has not decreased as sharply as the drop in violent crime. In fact, while violent crime is at a record low, the percentage afraid to walk alone at night has crept up; suggesting the fear of crime is not always dictated by reality.
Ironically, the unrealistic fear of crime has had an enormous impact on crime. Experts may not say it and the average American may not admit it, but decreasing crime rates have come at a precious cost — the sacrifice of personal liberty. John Q. Wilson, a renowned criminologist at Boston College recently wrote in The Wall Street Journal, “Another possible reason for reduced crime is that potential victims may have become better at protecting themselves by equipping their homes with burglar alarms, putting extra locks on their cars and moving into safer buildings or even safer neighborhoods.”
Homes and businesses across the country have taken measures to become more secure. What was once considered extreme is now common place — security systems, spot lights, motion detectors, metal gates over front doors, video surveillance, car alarms, mace, pepper spray, stun guns, hand guns, personal self-defense training, even architectural design with crime prevention in mind.
Window shopping
Driving around rather than through some neighborhoods, avoiding a dimly lit parking lot or spacious parking garage may be accepted as prudent. But it has nonetheless altered the freedom to live and travel as one chooses. A stroll through the park, window shopping or a trip to the ball park involve not only the thought of being entertained but also being safe. Subconsciously most Americans use a mental “safety” check list everyday to keep themselves out of harm’s way.
Most citizens are not even aware that some fundamental constitutional rights have begun to erode in the name of crime fighting. The Supreme Court of the United States has chiseled away at the Sixth Amendment guarantee of “effective” counsel. The High Court recently ruled that a suspect’s request for an attorney does not go on indefinitely and that a police officer does not need to use specific language to inform a suspect of his Miranda rights. In 2009, the court restricted the use of the exclusionary rule as a remedy for state conduct violating the Fourth Amendment. Last month, it narrowed the Fourth Amendment’s protection against unreasonable searches and seizures — making it easier for police to barge into a home without a warrant.
Way of life
Americans have slowly reinvented their way of life to protect themselves from the threat of violence and that evolution may be driving down crime rates in the process. More research is warranted, but it appears that the key to falling crime rates is not so much a matter of what we do, but rather what we don’t do.
Ohio House of Representatives passes prison reform bill
Youngstown Vindicator
May 8, 2011
This past week the Ohio House of Representatives passed a measure to reduce the size of the state’s prison population and the enormous cost of running America’s sixth largest prison system.
The state currently houses approximately 51,000 offenders with capacity for only 38,389 inmates. Those numbers only scratch the surface in terms of the magnitude of Ohio’s prison problem. One in 25 adults in Ohio is either in prison or under community supervision.
The Department of Corrections and Rehabilitation’s (DRC) budget has increased by 246 percent since 1990. The corrections budget has gone from $432 million to $1.58 billion during the last 21 years. Prison personnel costs alone represent 25 percent of the state’s government employment expenditures.
House Bill 86 passed by a vote of 95-2. The bill mirrors Senate Bill 10 which has strong support from the new director of the DRC, Gary C. Mohr. During a recent Senate Judiciary Criminal Justice Committee hearing Mohr said, “I believe that they [Senate Bill 10] are critical to not only stabilizing Ohio’s prison population, but also to ensure that we are housing the right people in prison.”
GOP retribution
SB 10 lost some of its luster when the bill’s chief sponsor, Sen. Bill Seitz, fell out of favor with the GOP leadership in the state Senate. Seitz has referred to Gov. John Kasich’s governing style as a “Dirty Harry” routine. He was recently stripped of his committee chairmanship.
According to the Ohio Legislative Service Commission, House Bill 86 provides for, among other things, the release of inmates who have served at least 85 percent of new sentences. This provision does not apply to any inmate serving a life sentence or any of a number of enumerated crimes of violence. The bill provides that an offender, serving a sentence for a first or second degree felony, may be placed under parole supervision with GPS monitoring.
The bill eliminates the sentencing disparities that exist for drug offenses involving crack cocaine and powder cocaine. The bill provides a penalty that splits the difference between existing crack and powder cocaine penalties.
The reforms would include creating a new category for offenses involving trafficking in marijuana. The bill provides for potentially shorter mandatory prison terms for marijuana offenses. Under specifically defined circumstances, an offender who is guilty of marijuana trafficking may be sentenced to a prison term as provided for by the sentence guidelines.
The bill also provides that Intervention in Lieu of Conviction (ILC) be available to persons charged with certain theft or nonsupport offenses. ILC is a sentence diversion program available to offenders whose drug or alcohol usage was a factor leading to their criminal offense. Offenders alleging that drug or alcohol use contributed to the offense must be assessed by a certified program administrator in order to be eligible for ILC. The bill also authorizes ILC for an offender whose mental illness or retardation contributed to the criminal behavior.
Post-release control
Finally, the bill requires that a prisoner who is placed on post-release control from prison, by reason of earning 60 or more days of credit for participation in prison programming, shall be subject to GPS supervision by parole authorities for the first 14 days after release.
Gov. Kasich said that reforms contained in HB 86, “[A]re common sense improvements that are badly needed and I look forward to their quick passage in the Senate so I can sign them into law.” The Columbus Dispatch reported the legislation could save up to $78 million a year.
HB 86 does not address Ohio’s efforts to curtail corrections costs by selling off prisons. Kasich announced that the sale of five prisons to a private corrections company would put about $200 million in state coffers. The privatization of prisons appears to be inevitable in Ohio. Kasich’s choice to run DRC, Director Mohr, is a former state prison official and employee of a company that operates private prisons.
Ohio must correct ‘crack cocaine’ sentencing disparity
The Youngstown Vindicator
Sunday, April 3, 2011
Ohio continues to use an unfair sentencing law that is a relic of a more violent era. There was a dramatic surge in violent crime in America between 1980 and 1995. In 1991, there were 783 murders in Ohio. By 2009 that number had decreased by 34 percent to 519 murders. Many attributed the surge in violence to the introduction of crack cocaine into many communities.
In response, draconian drug laws were enacted to combat the hysteria surrounding the “crack epidemic.” The penalties were significant and far reaching. The Sentencing Project reported that Americans incarcerated for drug offenses in state prisons went from 19,000 in 1980 to 265,000 by 2008.
In 1986, the federal government enacted the Anti-Drug Abuse Act. Under the law, a person convicted of crack cocaine possession got the same mandatory prison term as someone with 100 times the same amount of powder cocaine. The result of the 100:1 ratio is that sentences for crack cocaine offenders were often much longer than those for powder cocaine offenders.
Ohio lawmakers adopted penalties for crack cocaine in the mid-1990s and established a ratio that fluctuated between 10:1 and 2:1 for low-level crack and powder offenses, according to a report by the Sentencing Project.
Harsher sentences
The chief complaint with the Anti-Drug Abuse Act was that the harsher drug sentences for crack cocaine possession disproportionately affected African-Americans. A 2006 U.S. Sentencing Commission Report found that 82 percent of those sentenced under federal crack cocaine laws were black and only 8.8 percent were white — even though more than two-thirds of people who used crack cocaine were white.
It’s not as though the racial issue had just come to the nation’s attention. In 1991, the Minnesota Supreme Court struck down its state crack/powder cocaine statute because it was “racially discriminatory in its impact.” In fact, 11 years before the Sentencing Commission’s 2006 findings, the Commission recommended to Congress that the 100:1 ratio be reduced to a 1:1 ration. Congress rejected the recommendation.
Fifteen years passed before President Barack Obama signed the Fair Sentencing Act of 2010. The new legislation reduced the ratio to about 18:1. The new law also eliminated the five-year mandatory minimum for first-time possession of crack.
Last month, the Sentencing Project released a report, Cracked Justice. The report found that 13 states maintain sentencing disparities between crack and powder cocaine offenses. Ohio is one of those states. The report found that penalties for crack cocaine are far harsher than those for powder cocaine. For example, a person caught with only 25 grams of crack can be convicted of a first-degree felony, while it requires at least 500 grams of powder cocaine to face the same sanctions.
Equalizing sentences
The Cracked Justice report suggests that attempts to reduce penalties for crack failed in Ohio because lawmakers did not want to be perceived as being soft on crime. During the 2007 legislative session, Ohio lawmakers considered a bill that would have equalized crack and powder sentences by enhancing penalties for powder cocaine while leaving crack penalties the same.
“We’ve got a growing problem in our rural areas of the state, and many of these members are well aware of the problem,” State Sen. Ray Miller told the Cleveland Plain Dealer at the time. “Fundamentally, equalizing the penalties at a higher level as opposed to bringing them down was key to passage.” The measure did not make it out of committee in the state House.
In 2010, Ohio policymakers attempted to reform the state criminal justice system through a comprehensive package of bills that included eliminating the sentencing disparity between powder and crack cocaine. The package included measures to remove any definitions that distinguished crack cocaine from powder cocaine. While the measure garnered bipartisan support, it did not pass.
‘Gate pay’
Ohio has an $8 billion revenue shortfall. The state’s austerity plan needs to look beyond the elimination of expenditures like the $75 “gate pay” given to inmates when they are released from prison. The $374,000 saved over two years on gate pay would pale in comparison to savings from restructured sentencing policies.
An 'emergency' exception to the Sixth Amendment
Youngstown Vindicator
March 6, 2011
The U.S. Constitution guarantees those accused of a crime the right to face their accusers in court. A decision last week by the U.S. Supreme Court created an exception to that basic right when the court ruled that prosecutors may use victim statements given at a crime scene even if the victim dies before testifying at trial.
The decision is a step back from a recent series of high court decisions that the Sixth Amendment demands witnesses be subject to cross-examination. In last week’s decision, the court drew a distinction between statements made during an emergency and statements made when police are investigating a crime.
The Confrontation Clause of the Sixth Amendment includes the following, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Those words are as well known as any in the U.S. Constitution and they provide the most basic safeguards that exist in American jurisprudence.
Statements made out-of-court, often referred to as hearsay, may not be used to convict someone accused of a crime unless the accused has an opportunity to confront and cross examine the person who made the out-of-court statement. Cross examination insures that the trier of fact has adequate information to judge the reliability and the believability of the witness’ testimony.
Exceptions
There are exceptions to this very fundamental right. A 1980 Ohio decision played a prominent role in carving out exceptions. In Ohio v. Roberts, the U.S. Supreme Court found when a witness was unavailable, that witnesses’ testimony could be admitted through a third person if the testimony was reliable or had “particularized guarantees of trustworthiness.”
In 2004, the U.S. Supreme Court tightened the tenets of the Confrontation Clause. In Crawford v. Washington, the court ruled that an out-of-court statement made by the wife of the accused, who refused to testify against her husband at trial, could not be used at trial.
Justice Antonin Scalia wrote in Crawford, “the only [indicia] of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Justice Scalia believed nothing short of appearing in court and being cross examined was sufficient to pass constitutional muster.
In 2008, the Supreme Court confirmed continued strict adherence to the Sixth Amendment. The Supreme Court would not admit an out-of-court statement of prior domestic violence, from a deceased victim of murder, at the murder trial.
The Supreme Court’s decision last week in Michigan v. Bryant provides an interpretation of the Confrontation Clause that seems to run contrary to the Court’s recent string of decisions.
In 2001, Detroit police were called to a gas station where a man lay bleeding with a gunshot wound. According to the Washington Post, when asked what had happened, he told police, “Rick shot me.” Within minutes, police determined that Richard Bryant had shot the victim and the victim drove to the gas station for help.
Justice Sonia Sotomayor, writing for the majority found an exception to the Confrontation Clause for statements made while police are involved in an “ongoing emergency” in which there is a “potential threat to the responding police and the public at large.”
‘Primary objective’
The victim’s statement was made to police while their “primary objective” was looking for a gunman, not trying to solve a crime, Justice Sotomayor wrote. Judges may use their discretion to determine when such statements are admissible at trial.
Justice Scalia suggested that the majority had left the court’s Confrontation Clause jurisprudence “in shambles” and that instead of clarifying the law, the court has made the law more confusing by giving trial judges discretion on a case-by-case basis. Justice Scalia wrote, “The guarantee of confrontation is no guarantee at all.”
Justice Sotomayor seems to have carved out a new exception to the admission of out-of-court statements. The “ongoing emergency” exception will soon be added to the list of hearsay exceptions that exist in the rules of evidence adopted by the various states.
Ohio death penalty is under attack
Youngstown Vindicator
Sunday, February 6, 2011
Ohio Supreme Court Justice Paul Pfeifer wants Gov. John Kasich and the Ohio Legislature to end capital punishment. As a state senator in 1981, Justice Pfeifer helped draft Ohio’s death penalty statute.
Justice Pfeifer recently wrote in the Cleveland Plain Dealer, “We set out to enact a law that would give prosecutors the capability to seek capital punishment for the absolute worst offenders.” Justice Pfeifer went on to write, “The law was meant to be employed only when a certain set of aggravating circumstances warranted execution. But over the years, the death penalty has come to be applied more pervasively than we ever intended.”
Review of verdicts
After years of reviewing death penalty verdicts rendered through a statute he helped write, Justice Pfeifer wrote, “I have come to the conclusion that we are not well served by our ongoing attachment to capital punishment.”
Justice Pfeifer’s position is reminiscent of U.S. Supreme Court Justices Harry Blackmun and John Paul Stevens. Justice Blackmun wrote before his retirement in 1994, renouncing his career-long acceptance of capital punishment, “The death-penalty experiment has failed. I no longer shall tinker with the machinery of death.”
Justice Stevens was one of the co-authors of Gregg v. Georgia, the U.S. Supreme Court’s 1976 decision that reinstated the death penalty. However, in 2008, Justice Stevens wrote, “The imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”
Justice Pfeifer’s about-face comes at a time when Ohio is literally setting the standard for capital punishment nationwide. First, Ohio took the bold step of changing its execution protocol. All 35 states with capital punishment used a three drug protocol. In 2008, after a contentious debate, the U.S. Supreme Court found that the three-drug protocol did not violate the Eighth Amendment ban against cruel and unusual punishment.
A year later, Ohio moved to a single drug protocol. Ohio began using a single lethal dose of sodium thiopental for executions. Washington has since adopted the protocol and other states are considering the single-drug method as well.
Large numbers
Last year, Ohio carried out more executions than any other state, with the exception of Texas. The eight executions in 2010 were the most in any year since Ohio reinstated the death penalty in 1999. Ohio has executed 41 prisoners since that time, with 157 still on death row.
Last month, the Ohio Department of Rehabilitation and Corrections announced that the state will substitute pentobarbital for sodium thiopental in its execution protocol. Sodium thiopental’s only U.S. manufacturer will stop producing the drug.
Some states have postponed executions due to the shortage. Not Ohio. The state looked to Oklahoma which has carried out two executions with pentobarbital. The difference is that Oklahoma used the drug as part of a three drug protocol, Ohio will use a single lethal dose of pentobarbital to carry out executions beginning in April.
Justice Pfeifer premises his new opposition to capital punishment on the idea that life without parole is a suitable alternative sentence. In 2005, the Ohio legislature authorized prosecutors to seek the penalty of life without the possibility of parole as an alternative to the death penalty.
Justice Pfeifer argued as a result of the new law, “We have seen the number of death sentences drop precipitously. Prosecutors and jurors have told us—by their actions—that life without the possibility of parole is a more desirable outcome to a murder trial than a death sentence.”
During Justice Pfeifer’s swearing-in last month, he urged Gov. Kasich to commute all death row sentences to life without parole. There is little chance of that happening. Gov. Kasich has made clear his support for the death penalty.
It is worth noting that repeal doesn’t always mean forever; sometimes it doesn’t even mean a few years. Two states that recently repealed the death penalty, New Mexico and New Jersey, are considering reinstating it.
The death penalty is a politically charged issue. Left to the design of elected policymakers, capital punishment is more a campaign prop than a meaningful tool of the criminal justice system.
Don't be reckless
Youngstown Vindicator
Sunday, January 2, 2011
Ohio is facing an $8 billion budget shortfall in the next biennial budget to commence July 1, 2011. Gov.-elect John Kasich must present his budget for FY2012-2013 to the Ohio General Assembly by March 15.
Earlier this month Kasich said everything is on the table when it comes to closing the budget gap, everything but raising taxes. Kasich told The Columbus Dispatch, “Corrections reform is critical. It’s one of the big cost sinks that we have.”
Ohio prisons are housing approximately 51,000 inmates in facilities that were built for 38,389 inmates. The Department of Rehabilitation and Corrections employs more than 13,000 men and women. The prison system accounts for one of the largest single state expenditures, representing roughly 7 percent of the state’s $54 billion budget.
Kasich has said that Ohio has too many people in prison. “We have a system in Ohio where I think [a little] less than half of the people in our prisons are in there for less than a year. We have people who are check kiters and don’t pay child support and we are locking them up in the state pen,” Kasich said at a press conference in early December.
Cost reduction
He said prison costs could be drastically reduced by rethinking whether non-violent offenders, including those who commit drug-related offenses, should be sent for short stays in state prison. According to the Toledo Blade, Kasich said people who commit such crimes are not a public threat and shouldn’t be imprisoned at high cost to taxpayers alongside murderers. “Why do I want to put somebody that doesn’t pay child support in a state prison ... instead of putting them somewhere and forcing them on a work detail or home confinement or county jail, in a place where the public is safe and yet we can get our costs?” he said. “To me, that’s low-hanging fruit.”
Kasich was right about the large number of offenders serving less than a year prison. The reference to check kiters and deadbeat dads was more political rhetoric than substance. The Dispatch reported that the state prison census showed there were 51 offenders behind bars for writing bad checks and 372 for failure to pay child support, less than 1 percent of the prison population.
How does Kasich get to the low-hanging fruit? It won’t be easy. The state Department of Rehabilitation and Corrections said that even if funding were maintained at 100 percent of current levels, it would have to cut 339 corrections positions and close prisons. According to The Dispatch, a 10 percent budget cut would mean the layoff of more than 2,500 employees and prison closings. It could mean eliminating funding for 972 halfway-house beds, 1,547 community-diversion offenders and 2,200 offenders in city and county jail programs funded by the state. Cuts like that would impact public safety.
How have other states dealt with the issue of growing prisons and shrinking budgets?
California’s example
According to Governing Magazine, California has reduced the number of parole violations for low-risk parolees. Troubled parolees are diverted to community sanctions instead of prison. California has reduced its prison population by several thousand inmates. Texas took money earmarked for new prisons and invested in treatment programs and diversionary sentences that kept low-risk offenders out of prison.
Nearly two decades ago, Virginia began using risk assessments at the time of sentencing to divert low-level, non-violent offenders to community programs as opposed to state prison. The result has been closed prisons and reduced violent crime rates. Michigan reduced its state inmate population by more than 10 percent through the reduction of prison stays for good inmates, reducing parole violations and comprehensive re-entry services.
None of these promising prison reduction programs came as the result of arbitrarily slashing correction budgets. Corrections reform is critical, but the reform must be well thought out and supported by evidence-based practices
Fiscal and civic responsibility must be balanced
Youngstown Vindicator
December 5, 2010
How do state and local governments get a handle on spending without sacrificing public safety? As the economy continues to sputter, there are ominous signs that the era of declining crime rates is about to come to an end.
The new year will bring with it new leadership in 26 states, including Ohio and Pennsylvania. With much of the new leadership there is a pledge to balance the budget without raising taxes — a laudable goal — but one that brings with it many implications.
There are concerns about education, infrastructure, entitlements and public safety. Without addressing the impact that educational failure and the loss of basic subsistence have on crime rates, the bigger concern is that staples of public safety like the police, the courts and prisons may be at risk.
Right now, in nearly every state, inmates who years ago received long sentences, often the result of draconian mandatory drug laws, are being released. Enormous state correction budgets are being slashed. Policymakers in many states are looking at early release programs. Lawmakers are experimenting with diversion programs to put less people in prison. What does it all mean? Offenders who were or would have been in prison, even as recently as 24 months ago, are walking the street.
Police officers
Local governments cannot afford to maintain their current compliment of police officers. There are layoffs as state and federal funding dry-up. For instance, Newark, N.J., has a violent crime rate eight times the rest of the state, yet Newark is in the process of reducing its police force by 13 percent.
New Jersey Gov. Chris Christie has been touted by some incoming state leaders as a shining example that budgets can be balanced without raising taxes. Newark is the collateral damage that comes with a daring new political philosophy. Can Youngstown be far behind? Mahoning County Sheriff Randall Wellington may lay-off as many as 14 more deputies after Christmas. In spite of major concessions, 80 deputies have already been laid-off and substantial portions of the county jail have been moth-balled.
Prosecutors and public defenders have been laid-off around the country. In Lawrence County, the commissioners closed the court house last year to save money. Local service agencies that provide mental health and drug and alcohol treatment will also feel the pinch. Services for offenders struggling to transition back into the community will no doubt begin to disappear.
The recipe for community tumult is plain to see. Fewer offenders in prison, less opportunity for treatment and smaller police forces inevitably means higher violent crime rates. State taxes may not increase, but what will be the cost to cities and towns across the country.
Soaring violent crime in places like New York City, Orlando and Austin, Texas may be a harbinger of things to come.
According to the Wall Street Journal, New York City recently reported an overall drop in crime. The drop was attributed to the city’s re-classification of theft. Hidden in the “drop” was the fact that all four violent crime categories are projected to increase by the end of the year, including 15 percent increases in both murder and rape.
Homicides
The number of homicides in Orlando this year has already surpassed the total number for 2009, according to the Orlando Sentinel. The first week of November marked the 45th killing of the year, compared with 33 last year. University of Central Florida sociology professor Jay Corzine told the Sentinel, “The poor economic conditions are affecting families.”
As of the end of November, there were already 35 homicides in Austin so far this year — a 13-year high. According to the Austin American-Statesman, there were only 75 homicides committed in Austin between 2007 and 2009.
No one wants to pay more taxes. Then again no one wants to be mugged, robbed, raped or murdered. There has to be a balance between fiscal responsibility and civic responsibility — let’s hope that policymakers around the country can strike that balance in 2011.
When does Miranda apply?
Youngstown Vindicator
Sunday, November 7, 2010
In 2005, a 13-year-old seventh grade special education student from North Carolina was suspected of a crime. The police went to his school to question him about a string of neighborhood burglaries. The police were informed that the student had a digital camera that had been removed from one of the homes.
The student was escorted from his class into a conference room, where he was interrogated by a police investigator in the presence of the school security officer, the assistant principal, and a school intern. His parents were not contacted, and he was not given any warnings about his constitutional rights, such as the right to remain silent or to have an attorney present during questioning.
Custodial interrogation
The student confessed to the burglaries and was arrested. Attorneys for the student sought to throw his confession out, suggesting that the “schoolhouse” interview was really a custodial interrogation.
The 1966 landmark U.S. Supreme Court decision of Miranda v. Arizona held that statements made in response to questioning while in police custody will be admissible at trial only if the prosecution can show that the suspect was informed of the right to consult with or have an attorney present during questioning and the suspect was informed of the right to remain silent prior to questioning. The prosecution must also show that the suspect not only understood the rights, but voluntarily waived those rights.
The North Carolina juvenile court ruled that Miranda did not apply. The student was not in police custody. The North Carolina Supreme Court agreed, “This court adheres to the view that the custody inquiry states an objective rule designed to give clear guidance to the police."
An adult accused of a crime who is invited to the police department for questioning and who at some point is detained by police must be Mirandized, read his rights, prior to continued questioning. The North Carolina Supreme Court does not think that a learning disabled, 13-year-old is entitled to the same protections.
The U.S. Supreme Court has agreed to hear the student’s appeal. Although this case seems to beg for correction, don’t expect the high court to jump in and change the law in favor of an accused. The court has decided three Miranda cases in the last year, and none has favored those accused of crimes.
The U.S. Supreme Court decided Florida v. Powell, wherein the court found that ambiguous warnings were sufficient. In Maryland v. Shatzer, the court ruled that even after a suspect invoked her right to counsel, investigators could, after a 14-day hiatus, re-establish contact to further pursue interrogation. In Berghuis v. Thompkins, the court ruled that a suspect must specifically and unambiguously invoke his to right to remain silent; silence itself is not sufficient.
High Court decisions
Anthony J. Franze, co-counsel for the defendant in Florida v. Powell, examined the three Supreme Court decisions in a recent article for the Harvard Law & Policy Review. Franze suggested the following to emphasize how Miranda is evolving: The police can take an individual into custody, read him an ambiguous Miranda warning (Powell), and then question him for hours without a lawyer present. If the suspect does not speak up and unambiguously invoke his right to counsel or right to remain silent, police can persistently question him and use even a single, terse, one-word response after hours of questioning as an implicit knowing and voluntary waiver of his rights (Berghuis). If, by chance, the suspect does unambiguously invoke his rights, the police can release him for 14 days and then pick him up on day 15 to begin the entire interrogation process anew (Shatzer).
The U.S. Supreme Court has clearly moved to the right on the issue of Miranda. It will be interesting to see how the court rules on the North Carolina case. Parents entrust their children’s safety and well being to the administration and staff of their respective schools. Is it unreasonable for parents to expect that their children’s fundamental constitutional rights will also be protected?
Reform Sentencing and Save
Youngstown Vindicator
Sunday, October 3, 2010
The Ohio Department of Rehabilitation and Corrections’ budget for 2011 is $1.7 billion. The ODRC pays $66.31 per day per inmate. With more than 51,000 inmates in Ohio prisons, the state pays about $3.8 million a day to house offenders. To put that in perspective, in 2009, Boardman Township spent approximately $12 million in operating costs — a little more than three days worth of state incarceration costs.
In August, the American Civil Liberties Union issued a report, Reform Cannot Wait: A Comprehensive Examination of the Cost of Incarceration in Ohio from 1991-2010. The report is alarming. Ohio’s prison population has quintupled since 1975. Ohio is operating its prisons at 133-percent of capacity and projections indicate that the prison system will be at 141-percent capacity by 2018.
Ohio actually experienced a very modest decline in prison population last year; however, the current rate of incarceration is not sustainable. The state will be forced to build new prisons at the cost of hundreds of millions of dollars. The personnel costs to maintain, manage and supervise additional facilities would surely push the corrections budget over $2 billion a year.
Criminal reform
The ACLU report touts Ohio Senate Bill 22 as a “clear first step towards criminal reform in Ohio.” The bill, written by State Sen, Bill Seitz, R-Cincinnati, is estimated to save $13.7 million by: increasing earned credit which could reduce the amount of time an offender stays in prison; increased use of community based corrections; an overhaul of Ohio’s drug laws; expanding diversion programs which keep people out of prison; reform medical release procedures for inmates with health problems, and implement inmate re-entry programs.
Seitz was sure to point out that his legislation is for lower level offenders. Violent gun-toting offenders will not benefit from Seitz’s legislation. Does that mean that any offender who has ever committed a violent crime will not be entitled to early release?
Most offenders who are in Ohio prisons have committed multiple offenses and have violent offenses in their past even if the offense that landed them in prison is not necessarily violent. Offenders serving non-violent state prison sentences have usually earned their way to state prison by having a history of offending.
Does Seitz’s legislation eliminate offenders who used a weapon or possessed a weapon? Does the legislation consider large quantity drug dealing a non-violent offense?
Most efforts to deal with prison crowding on the back-end, after sentencing, have had little impact on prison crowding. Those efforts have been more about political posturing than meaningful reform. After the violent offenders, sex offenders, gun offenders, and high risk offenders have been eliminated the “reform” legislation applies to very few offenders, normally the offenders who are already getting out of prison in an expedited manner.
There is no question that prison overcrowding is one of the most significant problems in Ohio and nearly every other state in America. Meaningful reform must come at the front-end, prior to sentencing. The ACLU report alludes to sorting offenders by their risk to public safety. That sorting process should happen prior to sentencing. Judges should have at their disposal evidence-based assessment tools that can help determine an offender’s risk of reoffending.
Sentencing guidelines
Those assessment scores could be factored into sentencing guidelines. An offender’s crime, her history of offending and her risk to the community could be utilized to mold a sentence that would insure the most dangerous offenders spend the most time in prison.
This concept is not new. The Commonwealth of Virginia has used risk assessment in sentencing for 15 years. The higher the assessment score, the less likely the offender will be diverted from prison. In the last dozen years, the United States has witnessed a 26-percent increase in incarceration rates, while Virginia has realized an increase of only 6 percent. During the same time period crime has dropped by an impressive 24-percent nationwide. Virginia, with its spiraling prison population has experienced and even better 26-percent dip in crime.
So why haven’t other states replicated Virginia’s model? Politics. It is difficult to get elected or re-elected by talking about shortening prison sentences. Tinkering with earned time, or re-entry or even parole can provide some political cover. Tinkering with sentencing is too risky for most policymakers.
Pennsylvania, Ohio approach death penalty differently
Youngstown Vindicator
Sunday, September 12, 2010
An overwhelming majority of Americans support the death penalty. Polling conducted by Gallup over the course of 20 years has consistently found that at least two-thirds of American’s support the death penalty for those convicted of first degree murder.
The high-water mark was 1994, when 80 percent of Americans supported capital punishment. Homicide rates were alarmingly high in the mid-1990’s. However, today with crime rates at, or near, their lowest point in nearly a half-century, support for the death penalty is not only stable but increasing.
A Pennsylvania poll conducted in 2009 by Susquehanna Polling and Research on behalf of the Pittsburgh Tribune-Review found that 67 percent of Pennsylvanians supported the death penalty. Looking at it from a different perspective, the Ohio Poll conducted last year by the University of Cincinnati, Institute for Policy Research found that 70 percent of Ohioans were opposed to abolishing the death penalty.
Different approaches
Pennsylvania and Ohio share a border — they share similar sentiments regarding the death penalty — but each state could not be more different in its respective approaches to capital punishment. Ohio has executed seven killers this year, more than every other state but Texas. Pennsylvania has not carried out an execution since 1999.
Pennsylvania has executed three men since the death penalty was reinstated in 1976. All three men waived their appeal rights and asked to be executed. There is a de facto moratorium on the death penalty in Pennsylvania. It has been nearly 50 years since a contested execution was carried out in Pennsylvania.
Pennsylvania Gov. Ed Rendell continues to sign death warrants. He has signed 113 in his nearly eight years as governor. He recently signed three of those death warrants. One of the warrants is for the killer of a Reading police officer. Gov. Rendell said at a recent press conference, “It’s very frustrating — it’s frustrating to the families, it’s frustrating to the police. You can build anything in the world in three years. You should be able to have all appeals exhausted in three years.”
In January of 2007, the Cincinnati Enquirer posited, “Less than a month since (Gov. Ted) Strickland was sworn into office, the new governor’s actions are raising questions about whether he will curtail or even halt executions.” Gov. Strickland decided that carrying out executions was in Ohio’s best interest and he has not looked back.
Slow pace
Nothing seems to slow the pace of executions in Ohio. On Sept. 15, 2009, Romell Broom was scheduled to be executed. On that day, personnel in the death chamber of Lucasville State Prison were unable access a suitable vein for the injection of the lethal three-drug cocktail that would bring about his death. Over several hours, prison staff probed for a vein approximately 18 times before Gov. Strickland stepped in to suspend the execution.
Ohio put executions on hold for three months while it studied options for establishing a back-up or alternative lethal injection protocol. The state came back and took the unprecedented step of moving from a three-drug protocol to a single drug protocol. The single drug method has since been adopted by the state of Washington and is being considered by a number of other states. Ohio has executed eight inmates using the single drug method in spite of ongoing objections to the constitutionality of the procedure.
Has the decision to carry out executions at a record pace had an impact on crime in Ohio? The Crime State Rankings 2009 released by CQ Press compared all 50 states in more than 500 crime-related categories. Pennsylvania is listed as the 25th safest state, down from 24, and Ohio is listed as the 28th safest state, up from 29.
Murders
In 2008, Ohio had 460 murders, Pennsylvania had 700. Ohio has 10 percent less people than Pennsylvania, yet its murder rate, 4 killings per 100,000 people, is 29 percent lower than neighboring Pennsylvania.
Gov. Rendell recently told the Associated Press that he “considers the death penalty a deterrent, but only when executions are carried out relatively quickly.” Ohio, his neighbor to the west, may ultimately be the testing ground for his theory
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'Mockingbird' turns 50
Youngstown Vindicator
Sunday, August 1, 2010
This year marks the 50th anniversary of Harper Lee’s “To Kill a Mockingbird.” Published in 1960, the book is a literary classic that won Lee a Pulitzer Prize. The film adaptation earned Gregory Peck an Academy Award.
The story takes place during the Depression in the fictional town of Maycomb, Ala. The narrator’s father Atticus Finch, a lawyer and state legislator, is appointed to represent Tom Robinson, a black man accused of raping a white woman.
The narrator is Atticus’s daughter, Scout, who with her brother and a friend, watched the trial from the courthouse balcony. Although Atticus represented Robinson deftly and the evidence weighed heavily in Robinson’s favor, he was convicted and sentenced to death.
Implications
Many scholars have studied the implications of Lee’s work. “To Kill a Mockingbird” is one of the most read literary works in American history with over 30 million copies sold. The book has been cited for its influence on the civil rights movement and the character of Atticus Finch has been lauded as the model father, as well as possessing the integrity and temperament for which all lawyers should aspire. In 1997, the Alabama State Bar erected a monument to Atticus Finch in Monroeville, the hometown of Harper Lee, marking the “first commemorative milestone in the state’s judicial history.”
“To Kill a Mockingbird” examines a number of significant issues (race, gender, poverty, domestic violence, courage and cowardice) through the lens of a rural southern criminal justice system. The legal system of Finch’s mid-1930s and even Lee’s of 1960 are, in some ways, very different than today’s.
After Robinson’s conviction, Atticus and his son, Jem, discussed the real or perceived flaws of the criminal justice system. Jem told Atticus, “Lots of folks have been hung — hanged — on circumstantial evidence.”
Atticus responded, “I know, and lots of ‘em probably deserved it, too — but in the absence of eyewitnesses there’s always a doubt, sometimes only the shadow of a doubt. The law says ‘reasonable doubt,’ but I think a defendant’s entitled to the shadow of a doubt. There is always the possibility, no matter how improbable, that he’s innocent”
Jem then suggested, “We ought to do away with the juries.” Atticus replied, “You’re rather hard on us, son. I think maybe there might be a better way. Change the law. Change it so that only judges have the power of fixing the penalty in capital cases.”
Innocence Project
Some 50 years after Lee wrote those words the criminal justice system has gone, and continues to go, in different directions. For instance, eyewitness evidence is under attack. Many observers of the court system suggest, not as Atticus Finch that you need eyewitnesses to confirm guilt, but rather that eyewitness evidence in not always the most reliable evidence. The Innocence Project contends that eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of wrongful convictions.
Atticus’ suggestion that judges make decisions of life and death was dismissed by the U.S. Supreme Court decision in Furman v. Georgia. The Court ruled, that the death penalty as it was being imposed at the time, was an arbitrary punishment and therefore unconstitutional. When the death penalty resurfaced in 1976, juries were the primary arbiter of life and death.
However, Atticus’ comment that there is “always the possibility, no matter how improbable, that he’s [the accused is] innocent” remains the rallying cry of death penalty opponents. Although no one can point unequivocally to a single innocent person who has been executed in the modern era of the death penalty, many abolitionists argue that the risk of executing an innocent person far out-weighs any benefit derived from the death penalty.
“To Kill a Mockingbird” is a timeless classic that with every reading provides new insight into an America struggling to reinvent itself in the 1930s, and how many of those struggles continue today.
Predictive analysis emerges as promising crime fighter
Youngstown Vindicator
Sunday, July 4, 2010
As many states face a third consecutive year of budget deficits, an increasing number of state employees face layoff or even job loss, which not so long ago would have seemed as unlikely as a 138 game set at Wimbledon.
Included in those quickly vanishing state jobs are police officers. Pennsylvania Gov. Ed Rendell is set to leave office with fewer troopers on the payroll than when he took office. The Ohio State Highway Patrol Mission Review Task Force is looking at options, including staff reductions, to reduce the $319 million highway patrol budget. The problem is dire in other states. Illinois will lay off 460 state troopers. Michigan has eliminated 100 state police jobs. Tennessee has fewer troopers than in 1977.
Most police departments tout their clearance rates—the percentage of crimes solved by the department. The ability to predict crime brings law enforcement to a whole new level—stopping the potential criminal before he commits a crime. To carry out that mission, the police must have an idea when, where, and by whom a crime may be committed.
The concept of predictive analysis derives from sophisticated computer models that sort historical data, identify trends, make correlations, and fuse all the information together. Some agencies are cooperating with the private sector and academia to establish systems to support effective predictive analysis.
HOW IT IS USED
The Florida Department of Juvenile Justice is using predictive analysis to improve its screening and placement process. Using an analytics system developed by IBM, FDJJ will analyze key predictors such as past offense history, home life environment, gang affiliation and peer associations to better predict which young offenders are at a higher risk to re-offend.
With that information, FDJJ can more effectively place specific segments of juveniles into the best programs for rehabilitation. For example, juveniles identified as having a high risk to re-offend can be placed in a more restrictive environment where treatment can be intense. Young offenders with a low risk of re-offending can be assigned to less restrictive supervision.
Researchers at UCLA believe they have developed a math model to help police predict and eliminate emerging crime hot spots—areas that have an increasing likelihood for criminal activity. “We can actually define where you get hot spots and where you won’t,” Jeffrey Brantingham, a UCLA associate professor of anthropology who has been working to define crime patterns,said. The Los Angeles and Long Beach police departments have used UCLA’s work in predictive analysis.
The Philadelphia Adult Probation and Parole Department collaborated with the University of Pennsylvania to establish a predictive tool for murder. Professor Richard Berk has focused on ways to distinguish probationers most likely to be charged with murder. According to Penn Professor Lawrence Sherman, Berk’s analysis can identify APPD probationers who are up to 42 times more likely, on average, to be charged with murder than other probationers. The model created by Penn forecasts homicide risk among individual probationers and parolees using statistical methods similar to those employed in hurricane forecasting.
Predictive analysis is no longer science fiction. The ability to predict crime hot spots and identify offenders with a high risk of re-offending has the potential to reduce crime, make neighborhoods safer and citizens less prone to victimization.
Supreme Court rolls out rulings that favor police
Youngstown Vindicator
Sunday, June 6, 2010
In 1966, the Supreme Court of the United States decided Miranda v. Arizona. The Court ruled that all persons held by the police for purposes of interrogation must be informed of certain rights. Those rights, now simply referred to as Miranda, are arguably the best known words from any court case in American history, “You have the right to remain silent, anything you say can and will be used against you, you have the right to an attorney, if you can’t afford one, one will be appointed for you.”
Last week, the Supreme Court handed down its third ruling this year interpreting the nuances of Miranda. Last week’s opinion, Berghuis v. Thompkins, held that, “A suspect who has received and understood the Miranda warnings, and has not invoked the Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.”
Van Chester Thompkins was a suspect in a murder that occurred outside a Southfield, Mich., strip mall. When the police brought him in for questioning he was advised of his right to remain silent and his right to legal counsel. He remained mostly silent for nearly three hours. As a result he failed to articulate with precision that he did not want to talk to the police.
The police continued to question Thompkins. After three hours he was asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered, “Yes.” The statement was used against him at trial.
Justice Anthony M. Kennedy wrote on behalf of a 5 to 4 majority, “If Thompkins wanted to remain silent, he could have said nothing in response to [the] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation.”
The Court made it clear that anything short of an unequivocal response either waiving or invoking the right to silence, or counsel, will not be sufficient. Silence itself is not enough to claim the right to remain silent.
Justice Sonia Sotomayor, wrote a dissenting opinion taking issue with the majority, “Criminal suspects must now unambiguously invoke their right to remain silent, which, counterintuitively, requires them to speak.”
Confession
Thompkins is the third government-friendly Miranda decision by the Supreme Court in 2010. In Florida v. Powell, decided in February, Kevin Powell was taken into custody during a robbery investigation. A gun was later found in his girlfriend’s apartment. Powell was prohibited from possessing a firearm due to his history of felony convictions. After he was told by police that he had, “The right to a lawyer before answering any of our questions,” he confessed, without counsel, to having the gun.
Powell’s confession was suppressed by the trial court because the police were not precise in administering the Miranda warnings. The appellant court agreed. The U.S. Supreme Court disagreed. In an opinion written for a 7-2 majority, Justice Ruth Bader Ginsburg wrote, “The four warnings Miranda requires are invariable, but this court has not dictated the words in which the essential information must be conveyed.” Essentially, Miranda warnings need not be precise.
In Maryland v. Shatzer, decided a day before Powell, Michael Shatzer was in prison when the police questioned him about the sexual assault of his son. After being read his Miranda warnings he invoked his right to legal counsel and the interrogation was terminated. Thirty-months later the police returned to interview him. Shatzer was, again, Mirandized and confessed to assaulting his son. Shatzer’s confession was used to convict him of sexual assault.
Justice Antonin Scalia wrote in Shatzer, there should not be an “eternal” bar against further police questioning after a suspect requested an attorney. The 30-month break in custody was enough. However, Scalia went further. Those suspects, who have been released from custodial interrogation for at least 14 days, could be returned to custody and if they did not again invoke counsel, could be interrogated and any incriminating statement could be used at trial.
In four months, the U.S. Supreme Court has held that an accused must be precise; the police need not use precision and an accused, once precise, may indeed need to be precise once more. Police officers and prosecutors must be tickled by the evolution of a 45-year-old ruling touted as one of the 20th century’s most significant criminal justice decisions.
Was the judge a rogue?
Youngstown Vindicator
Sunday, May 2, 2010
Cuyahoga County Common Pleas Judge Shirley Strickland Saffold has been disqualified from presiding over the trial of alleged serial killer Anthony Sowell. The disqualification was recently handed down by Acting Ohio Supreme Court Chief Justice Paul Pfeiffer.
Why didn’t Judge Saffold remove herself from the case? Ohio law provides for a judge’s removal where “the judge’s impartiality might reasonably be questioned.” A closer look at this case provides a disturbing glimpse into either a rogue judge or a system run amok.
Judge Saffold became embroiled in a controversy regarding some comments posted on a newspaper website from an account registered by the judge. The comments related to Sowell’s case and one of the lawyers representing Sowell.
Sensational
The pending trial of Sowell was sensational enough. He was charged with multiple counts of murder, rape and kidnapping after human remains were found in his Cleveland home last fall. There have been additional charges filed as recently as last month. There are 11 women dead and another five that were allegedly abducted and assaulted. Sowell entered a plea of not guilty by reason of insanity.
In late March, the Cleveland Plain Dealer published an article suggesting that about 80 comments made on the paper’s Web site concerning the Sowell case originated from an account used by Judge Saffold. The comments were under the username “lawmiss” a name that Judge Saffold used in the past.
Judge Saffold denied posting the comments, some of which were disparaging to one of Sowell’s attorneys Rufus Sims. Her daughter a 23-year-old former law student took responsibility for posting the comments. Judge Saffold and her daughter filed a $50 million lawsuit against the Plain Dealer alleging a breach of privacy.
Sowell’s attorneys filed legal papers on three separate occasions requesting that Judge Saffold disqualify or recuse herself from presiding over the case. Sowell’s attorneys raised the following three issues. First, the posted comments showed bias on the part of the judge; second, there were ex parte, out of court, communications between the Judge Saffold and Judge Timothy McGinty, who had previously presided over the Sowell case; and third, the judge had a financial interest in the case due to the $50 million lawsuit. Judge Saffold refused all three requests.
Four canons
The Ohio Code of Judicial Conduct consists of four canons, a numbered set of rules and comments establishing standards for the ethical conduct of judges. The canons are clear and Judge Saffold should have removed herself before the intervention of the Ohio Supreme Court.
Rule 2.3 provides that a judge should perform her duty impartially and without bias that “impairs the fairness of the proceeding and brings the judiciary into disrepute.” With regard to ex parte contact, Rule 2.9 specifically prohibits contact with a judge who had previously been
removed from a case as was Judge McGinty. Rule 3.1 prohibits expressions of bias, even outside of judicial action; if they are likely to call into question a judge’s integrity or impartiality.
Sowell’s attorneys raised the issue of disqualification with the Ohio Supreme Court. The Supreme Court wasted no time in issuing its order of disqualification. Within three days, Judge Saffold was removed and Judge Dick Ambrose, a former Cleveland Brown linebacker, was appointed.
Judge Saffold’s arrogance and defiance in the face of clear ethical canons is troubling. Her claim that her daughter used her account to make untoward comments is only part of the problem. How could she ignore that the controversy might cause some to question her impartiality, or that her ex parte communications with Judge McGinty violated clear ethical standards?
Even her lawsuit appears to conflict with the common sense of the Code of Judicial Conduct, “A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens.”
Is this conduct pervasive? Would we have known about Judge Saffold’s conduct if it did not involve a high profile case? The rules of conduct are enforceable and discipline is an option. The Ohio Supreme Court should closely evaluate its options or the entire system may be tainted.
http://www.vindy.com/news/2010/may/02/was-the-judge-a-rogue/?print
Texting ban is just a trend
Youngstown Vindicator
Sunday, April 4, 2010
The Ohio Senate will soon be considering a bill to ban texting while driving. The Ohio House of Representatives recently passed its version of a texting ban by a vote of 86-12. Some cities in Ohio, including Cleveland and Toledo, have already enacted anti-texting laws.
Ohio is not alone in its zeal to outlaw texting. There are 21 states that have enacted a ban prohibiting drivers from texting while behind the wheel. There are many more states in various stages of considering anti-texting legislation. The National Highway Traffic Safety Administration created model legislation which has been used in a number of states. Earlier this year the U.S. Department of Transportation banned texting and the use of hand-held cell phones by commercial truck and bus drivers.
Is the rush by legislators nationwide to pass some sort of ban on texting or cell phone use while driving going to make a significant impact on highway fatalities? A look at the numbers indicates that texting and cell phone use are only a small subsection of a bigger problem — distracted driving.
In 2008, 37,261 people died on America’s highways. A closer look at the numbers suggests that 5,870 of those fatalities were attributed to distracted driving, that is about 16-percent of all fatalities. Cell phone use, which includes texting, represents only a small portion of distracted driving fatalities.
In Pennsylvania in 2008, there were 1,468 traffic fatalities. According to the 2008 Pennsylvania Crash Facts & Statistics compiled by the Department of Transportation, 53 deaths were attributed to distracted driving and only a portion of those relate to cell phone use.
There are many other causes of distracted driving besides texting. The U.S. Department of Transportation has a web site www.distraction.gov. The site lists causes of distracted driving, in addition to cell phone use and texting. Included on the list are eating and drinking, putting on makeup, talking to passengers, reading, using navigation systems, changing the radio stations, CD’s, mp3’s and i-pods. Where is the call for a Big Mac ban or a Maybelline ban?
Trendy cause
Texting is only the most recent and trendy cause of distracted driving. This is not to suggest that texting is not a serious problem. A University of Utah study found that cell phone use slows reaction time to about the same as someone driving with a .08 blood-alcohol limit or legally drunk.
Do we know the reaction time of driving with a hamburger in one hand, while reaching for coca-cola with the other hand? How about the reaction time while putting on eye-liner looking in the rearview mirror?
The point is, texting is dangerous but is only one of a number of problematic activities that go on inside a vehicle as it travels down the road. There are countless news stories like the 21-year-old Westport, Massachusetts man who was killed while texting and driving only minutes from his home; or the Florida cyclist who was killed by a driver who was texting while driving.
When the police find a cell phone at an accident scene they examine the phone, as they should, and it is fairly easy to determine if a call or text message was in progress at the time of the accident. However, if there was a Big Mac splattered on the windshield or mascara lying on the floor does that information make it into the police report? Does it make its way into the newspaper?
Is the frenzy to ban texting sending the wrong message? Should the effort be to raise awareness about distracted driving generally, and not focusing on only one aspect of this serious problem? Ohio already has a law which prohibits, “operation (of a vehicle) in willful or wanton disregard of the safety of persons or property.” Would Ohioans be better served if the police enforced the existing law against those who text, eat, groom and talk their way into being a threat on Ohio’s highways?
Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. Visit his blog at http://www.mattmangino.com/.
http://www.vindy.com/news/2010/apr/04/texting-ban-is-just-a-trend/?print
Victims of crime forgotten
Youngstown Vindicator
Sunday, March 14, 2010The Ministry of Justice in the United Kingdom uses predictive analytics developed by IBM to assess the likelihood of prisoners re-offending upon their release to help improve public safety. With predictive technology, the Ministry of Justice is analyzing hidden trends and patterns within the data. Predictive analysis has helped identify whether offenders with specific problems such as drug and alcohol abuse are more likely to reoffend than other prisoners.
Law enforcement agencies are looking for means, other than boots on the ground, to keep a handle on a crime rate that is at its lowest point in nearly 45 years. An area that is generating some attention is the development of cutting-edge crime prediction analysis.
Dwayne Carter a.k.a. Lil Wayne, a rap star, was scheduled for sentencing last week in a New York courtroom. He had pled guilty to attempted criminal possession of a weapon. Although his sentence hearing was postponed, Carter is expected to receive a one-year sentence to be served at Riker’s Island Prison.
As the New York prison system gets ready to house yet another celebrity prisoner—recent celebrities included ex-New York Giant Plaxico Burress, Soprano’s star Lillo Brancato, Jr. and female rapper Foxy Brown—everyone’s focused on how to best accommodate high profile inmates. ''It's a challenge,'' said Martin Horn, a former commissioner of corrections in New York City. Horn told the New York Times, ''It's not about setting (a celebrity) on a bed of roses, but it is about an obligation to every inmate to keep him safe.''
Forgotten in all of this is the safety, security, and well being of the victims. Some might say that Carter and Burress committed victimless crimes. After all, Burress shot himself and Carter did not discharge his .40- caliber handgun he merely had it on his tour bus. However, in the wake of this conduct, and most criminal activity, are the children of the offenders. They are victims too. Carter has four children, three born within the last 16 months. Burress has two children.
Children of incarcerated parents are growing at a faster rate than the nation’s prison population. In 2008, the Pew Charitable Trust released a report that found 1 in every 100 adults in America are in prison or jail. The report generated a great deal of attention.
The Pew report overshadowed a report by the U.S. Department of Justice (DOJ) that was released about the same time. The DOJ report, Parents in Prison and Their Minor Children, found that more than 1.7 million minor children, or about 1 in 43, have one or both parents behind bars.
The rate of children with an incarcerated parent has soared. Between 1991 and 2007, children with a parent in jail or prison have increased by 82-percent. The average age of a child with an incarcerated parent is 8 years-old.
The impact of incarceration on children is usually first observed in school. In a 2006 report, Effects of Parental Incarceration on Young Children, 50-percent of children of incarcerated parents had school problems. These problems manifested themselves in poor grades and aggression. Middle school and high school aged children received more suspensions and ultimately dropped out of school at higher rates than their contemporaries.
Why should policymakers be concerned about children of incarcerated parents? Educational failure is a precursor to criminal activity. According to a 2006 study, Saving the Children of Prisoners, children of incarcerated parents are 6 to 10 times more likely to end up in prison than the average young person.
There is also growing concern over the increase in mothers facing incarceration. The number of incarcerated mothers has increased by 122-percent since 1991. The hardships that befall single mothers facing incarceration, and their children, are particularly alarming.
A 2008 report released by the Sentencing Project, Incarcerated Parents and Their Children, presented the plight of incarcerated mothers in a compelling manner. The Adoption and Safe Families Act, passed in 1997 provides for the termination of parental rights if a child has been in foster care 15 of the previous 22 months. Since most prison sentences exceed that time, incarcerated mothers risk losing custody of their children permanently. Not surprisingly, women inmates report having children in foster care five times as often as male inmates.
Not every child of an incarcerated parent had a parent removed from an intact family and sent off to jail. In fact, according to the DOJ, fewer than half of parents in state prison lived with their minor children before coming to prison. However, for those children who lose a custodial parent, even temporarily, the results can be devastating for the child and down the road a potential threat to public safety.
Long arm of the law too long?
Youngstown Vindicator
Sunday, February 7, 2010
Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are sex offenders. They are sexually violent predators, as determined by a civil court, and are being detained indefinitely.
Pennsylvania is one of 20 states that provide for the civil commitment of sexually dangerous offenders. There are more than 3,600 men, and some women, committed or detained across the country. Ohio does not have a civil commitment statute for sex offenders.
Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality and a likelihood to re-offend.
In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, the high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.
In 2006, the federal government got into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status.
Clear evidence
To secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.
Last month, the U.S. Supreme Court heard arguments on a challenge to the federal government’s authority to impose civil commitments. In U.S. v. Comstock, the high court must decide if the federal government usurped the power of the states through the Adam Walsh Act. Graydon Comstock was sentenced to three years in prison for possession of child pornography. Just days before the end of his sentence he was designated “sexually dangerous,” was civilly committed, and has been kept in a North Carolina institution for the last two years along with 105 other similarly situated men.
There are some striking differences in the Kansas statute and the federal statute. First, in Kansas an offender is entitled to a jury trial, a federal detainee is not. In Kansas, the state must prove the mental abnormality beyond a reasonable doubt. In federal court the burden of proof is a less stringent — clear and convincing evidence.
According to the Washington Post, a majority of the court seemed inclined to side with the government during the Comstock argument. Justice Ruth Bader Ginsburg said, “You are talking about endangering the health and safety of people. The government has some responsibility.”
A greater concern may be how far does the concept of protecting the health and safety of the public reach?
The state of Virginia uses risk assessment to determine the duration of sentences. The City of Philadelphia uses risk assessment to determine appropriate supervision of probationers. Couple a high risk for violent re-offending with a mental abnormality and could the civil commitment of extremely violent predators be far off?
Stephen McCallister, the Kansas solicitor general does not think it implausible. He told NPR, “Constitutionally, it might be possible,” to extend the rationale for civil commitment to other kinds of crimes. “I don’t have a constitutionally limiting line for what kinds of mental disorders might be permissible and what [might] not. If they lead to danger to others, potentially, they could be covered under such a law.”
Biros: Today's spectacle of capital punishment
Youngstown Vindicator
Wednesday, December 9, 2009
During the 19th century executions were public spectacles. Hangings were often witnessed by large crowds. Children propped on their parent’s shoulders to see the last bit of life strangled out a convicted criminal. The last public execution in the United States was carried out on August 14, 1936 in Owensboro, Kentucky. It was reported that nearly 20,000 people crowded around the gallows to witness the execution of Rainey Bethea. He was convicted of the rape and murder of a 70-year-old woman.
The murder was committed on June 7, 1936. Bethea pled guilty, was sentenced and his state and federal appeals were disposed of by August 5, 1936. He was executed a little more than a week later. The state of Kentucky was portrayed in a less than favorable light by the throng of media that descended on Owensboro for the hanging. The Kentucky legislature, embarrassed by the unfavorable attention, moved to abolish public executions.
In the years leading up to Owensboro, in many towns across America, the actual execution was the jaw-dropping spectacle that attached itself to the ultimate punishment meted out by the criminal justice system. In modern America, the spectacle is not the execution, those are conducted behind prison walls, but rather the incongruous legal maneuvering that results in endless delays and intense pain for the family and friends of victims.
Kenneth Biros may be the nation’s best example of the modern spectacle of capital punishment. Biros admitted to killing Tami Engstrom. He contended that the murder occurred as a result of a drunken rage. The facts indicated that Biros had inflicted 91 injuries upon Engstrom prior to her death by strangulation. Her body was dismembered and buried in several places across two states. Biros was convicted of first-degree murder by a Trumbull County jury. Eighteen-years later he remains alive in an Ohio prison. Rainey Bethea was executed 68 days after his crime.
Biros was originally scheduled to die on March 20, 2007. The witnesses were notified. Transferred to Lucasville Prison, the site of Ohio’s death chamber, Biros even had his last specially requested meal right down to the blueberry ice cream.
The governor refused his clemency request and the Federal 6th Circuit Court of Appeals dismissed Biros’, and eight other inmates, law suit challenging the constitutionality of lethal injection. They suggested that the three-drug cocktail that anesthetizes, paralyzes and ultimately stops the heart were volatile of the Eighth Amendment ban against cruel and unusual punishment.
The Ohio Attorney General asked the court to permit the state to execute Biros even though he had an appeal pending. The 6th Circuit, the same court that tossed out Biros’ claim, also tossed out the Attorney General’s request to lift the stay of execution. A desperate appeal by the Attorney General to the United States Supreme Court was denied in a one line order hours after the scheduled time for Biros’ execution.
While Biros continued to sit on death row, the U.S. Supreme Court, in the case of Baze v. Rees, rejected a challenge to Kentucky's method of lethal injection. The court held that lethal injection did not violate the Eighth Amendment.
In the wake of a botched execution in September, Ohio became the first state in the nation to adopt a single-injection method for executing condemned inmates; a process that state officials believe will avoid violating the constitutional ban on cruel and unusual punishment and prevent any further embarrassing execution malfunctions. The single large dose of anesthetic is similar to the method used by veterinarians to euthanize pets and livestock.
So who do you think Ohio scheduled to be the first person executed under this new method of execution? Kenneth Biros, he is scheduled for execution on December 8, 2009. Biros previously challenged the three-drug cocktail as cruel and unusual punishment. Now he is challenging the constitutionality of the single drug injection. Biros’ attorney said, “The state should not make his client a guinea pig.”
Just as reasonable people in Kentucky were dismayed by the spectacle of a public execution, so too are reasonable people today dismayed by a death penalty that been eviscerated by vexatious claims and dilatory practices.
New York crime stats impressive
Youngstown Vindicator
January 3, 2010
New York City is only 93 miles north of Philadelphia. In terms of crime, they are worlds apart. New York is preparing to celebrate its lowest number of homicides since the city starting keeping track in 1962. On the other hand, Philadelphia currently holds the distinction of being the most violent of the 10 largest cities in America.
In 2008, Philadelphia’s murder rate was 23 killings per 100,000 residents. New York’s murder rate was six per 100,000. During the first half of 2009, the murder rate dipped 10-percent nationwide and to Philadelphia’s credit the murder rate dipped a little better at 11-percent. Yet, Philadelphia’s rate of homicide, rape, robbery and aggravated assault continued to outpace every other major U.S. city.
Can Philadelphia look to New York’s model as an inspiration for reform? Philadelphia needs to look somewhere for help—there is much that needs fixed. Last week, the Philadelphia Inquirer published a four-part series providing a stunning exposé of Philadelphia’s criminal justice system. Some of the most disturbing findings were:
• Only one in 10 people charged with gun assaults are convicted of that charge;
• Nationally, big city prosecutors win felony convictions in 50-percent of violent cases. In Philadelphia, prosecutors win 20-percent;
• Philadelphia has about 47,000 fugitives walking the streets who have jumped bail.
Most startling is that for a quarter-century the Inquirer has been sounding the alarm about Philadelphia's criminal justice system. In 1973, the Inquirer reported, "It is a system that really is no system at all and it has very little to do with justice." In 1986, they reported, "In a two-year investigation of Philadelphia's courts, the Inquirer has found a system that often delivers anything but justice." Recently, the Inquirer reported, "It is a system that all too often fails to punish violent criminals, fails to protect witnesses, fails to catch thousands of fugitives, fails to decide cases on their merits-fails to provide justice."
Philadelphia’s soon-to-be district attorney, Seth Williams, thinks that New York can be a model for change. The Inquirer recently reported that Williams talked admiringly of the Brooklyn District Attorney's Office, which has an entire unit dedicated to crime prevention. Williams said, "There has to be new ways to figure out what it means to be a D.A." He discussed the nontraditional ways of attacking crime, such as reaching out to community groups and schools.
New York Mayor Michael R. Bloomberg told the New York Times that he attributes declining crime rates to better race relations. He said, “Today, people understand that crime is a bad thing, but it is not an ethnic thing or race-based thing or a religious thing.”
That culture doesn’t seem to exist in Philadelphia. The system is rife with witness intimidation. Over 300 people a year are charged with witness intimidation and 13 witnesses, or their family members, have been murdered in the last decade.
New York’s success can also be attributed to efficiency and innovation. The Times reported that Police Commissioner Raymond M. Kelly said, “success can be traced to eight years of programs like Operation Impact, which attacks stubborn crime plateaus, and the Real Time Crime Center, which feeds detectives instant intelligence.”
There again, efficiency appears to be sorely lacking in Philadelphia. There is the embarrassing "bring-down problem." Until some recent changes, county officials had failed to bring defendants from county lock-up to the courtroom in one in four cases, often resulting in dismissal of the charges. Philadelphia has nearly 47,000 fugitive bail-jumpers. According to the Inquirer, the bail jumpers owe Philadelphia $1 billion. The clerk of courts acknowledged that there are no computerized records of the debts, only a notation in 47,000 different files.
Just 93 miles up the road there are promising practices that could help Philadelphia reinvent its criminal justice system. However, is there the will to implement meaningful reform? The new D.A. told the Inquirer, "We have to change this.” That much is obvious; yet the ability to achieve substantive change in Philadelphia has been elusive.
New York crime stats impressive
Youngstown Vindicator
January 3, 2010
New York City is only 93 miles north of Philadelphia. In terms of crime, they are worlds apart. New York is preparing to celebrate its lowest number of homicides since the city starting keeping track in 1962. On the other hand, Philadelphia currently holds the distinction of being the most violent of the 10 largest cities in America.
In 2008, Philadelphia’s murder rate was 23 killings per 100,000 residents. New York’s murder rate was six per 100,000. During the first half of 2009, the murder rate dipped 10-percent nationwide and to Philadelphia’s credit the murder rate dipped a little better at 11-percent. Yet, Philadelphia’s rate of homicide, rape, robbery and aggravated assault continued to outpace every other major U.S. city.
Can Philadelphia look to New York’s model as an inspiration for reform? Philadelphia needs to look somewhere for help—there is much that needs fixed. Last week, the Philadelphia Inquirer published a four-part series providing a stunning exposé of Philadelphia’s criminal justice system. Some of the most disturbing findings were:
• Only one in 10 people charged with gun assaults are convicted of that charge;
• Nationally, big city prosecutors win felony convictions in 50-percent of violent cases. In Philadelphia, prosecutors win 20-percent;
• Philadelphia has about 47,000 fugitives walking the streets who have jumped bail.
Most startling is that for a quarter-century the Inquirer has been sounding the alarm about Philadelphia's criminal justice system. In 1973, the Inquirer reported, "It is a system that really is no system at all and it has very little to do with justice." In 1986, they reported, "In a two-year investigation of Philadelphia's courts, the Inquirer has found a system that often delivers anything but justice." Recently, the Inquirer reported, "It is a system that all too often fails to punish violent criminals, fails to protect witnesses, fails to catch thousands of fugitives, fails to decide cases on their merits-fails to provide justice."
Philadelphia’s soon-to-be district attorney, Seth Williams, thinks that New York can be a model for change. The Inquirer recently reported that Williams talked admiringly of the Brooklyn District Attorney's Office, which has an entire unit dedicated to crime prevention. Williams said, "There has to be new ways to figure out what it means to be a D.A." He discussed the nontraditional ways of attacking crime, such as reaching out to community groups and schools.
New York Mayor Michael R. Bloomberg told the New York Times that he attributes declining crime rates to better race relations. He said, “Today, people understand that crime is a bad thing, but it is not an ethnic thing or race-based thing or a religious thing.”
That culture doesn’t seem to exist in Philadelphia. The system is rife with witness intimidation. Over 300 people a year are charged with witness intimidation and 13 witnesses, or their family members, have been murdered in the last decade.
New York’s success can also be attributed to efficiency and innovation. The Times reported that Police Commissioner Raymond M. Kelly said, “success can be traced to eight years of programs like Operation Impact, which attacks stubborn crime plateaus, and the Real Time Crime Center, which feeds detectives instant intelligence.”
There again, efficiency appears to be sorely lacking in Philadelphia. There is the embarrassing "bring-down problem." Until some recent changes, county officials had failed to bring defendants from county lock-up to the courtroom in one in four cases, often resulting in dismissal of the charges. Philadelphia has nearly 47,000 fugitive bail-jumpers. According to the Inquirer, the bail jumpers owe Philadelphia $1 billion. The clerk of courts acknowledged that there are no computerized records of the debts, only a notation in 47,000 different files.
Just 93 miles up the road there are promising practices that could help Philadelphia reinvent its criminal justice system. However, is there the will to implement meaningful reform? The new D.A. told the Inquirer, "We have to change this.” That much is obvious; yet the ability to achieve substantive change in Philadelphia has been elusive.
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