The Cautionary Instruction: Texas takes action to stem the flow of the school-to-prison pipeline

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 10, 2014
As more and more school districts add police officers or armed security guards to their list of employees the number of students who are arrested as a form of discipline soars.
The most striking impact of school police officers so far, critics say, has been a surge in arrests or misdemeanor charges for essentially nonviolent behavior — including scuffles, truancy and cursing at teachers — that sends children into the criminal courts. The phenomenon has been referred to as the school-to-prison pipeline.
“There is no evidence that placing officers in the schools improves safety,” Denise C. Gottfredson, a criminologist at the University of Maryland told the New York Times. “And it increases the number of minor behavior problems that are referred to the police, pushing kids into the criminal system.”
Melodee Hanes, of the U.S. Justice Department’s Office of Juvenile Justice and Delinquency Prevention, describes the school-to-prison pipeline as “the pervasive use of court referrals as a means of disciplining kids in school."
More than 2 million students each year are suspended or expelled from school across the United States. Federal data, though limited, show that more than 240,000 students were referred to law enforcement.
The school-to-prison pipeline is being fueled by “zero-tolerance” policies that accelerate the involvement of the criminal justice system in routine school disciplinary practices. “Too often, so-called zero-tolerance policies, however well-intentioned they might be, make students feel unwelcome in their own schools; they disrupt the learning process,” U.S. Attorney General Eric Holder said. “And they can have significant and lasting negative effects on the long-term well-being of our young people, increasing their likelihood of future contact with the juvenile and criminal justice systems.”
In 2013, Texas took action to stem the flow of the school-to-prison pipeline. The laws, known as Senate Bills 393 and 1114, barred police officers from writing tickets for misdemeanors that occur on school grounds, though traffic violations are exempt from the ban. Officers also cannot issue citations for school offenses such as causing disruptions in class or on a school bus.
Working as intended, the laws have fueled a larger-than-anticipated 83 percent decline in the number of Texas schoolchildren prosecuted in adult court for infractions such as disrupting a classroom, court figures show.
Almost 90,000 juvenile cases were kept out of adult court by the new laws, which were written to encourage schools to handle most behavior problems internally instead of relying on police or the courts. “We were expecting a drop. I don’t think we were expecting that significant a drop in the first year,” said David Slayton, director of the Texas Office of Court Administration.
(Image: wildpixel/Thinkstock)

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: Judicial ethics and discipline questions make headlines

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 3, 2014
The American Judicature Society, a powerful advocate for judicial reform, ethics and research, is shutting its doors after 101 years in existence.
The society was founded in 1913 as part of the progressive movement, in response to demands for legal reform. The Society has long pushed for merit selection of judges and has also championed ethical conduct for judges and discipline for that skirt their oath.
The demise of the American Judicature Society doesn’t mean that ethics enforcement will be relaxed. The Pennsylvania Supreme Court recently issued a ruling determining the high court has the power to suspend judges.
Chief Justice Ronald D. Castille wrote in the court's opinion, "The Supreme Court has the supervisory power, an aspect of its authority at King's Bench, to order the interim suspension without pay of sitting jurists."
The Judicial Conduct Board had argued that 1993 amendments to the state constitution creating the board stripped from the Supreme Court its ability to discipline judges.
"Acting within their respective authorities and jurisdictions, both the Supreme Court and the Court of Judicial Discipline have authority to issue orders of interim suspension and to impose sanctions upon jurists. To the extent that any such orders ultimately or necessarily conflict, the order of the Supreme Court is 'supreme' and controlling," Castille wrote.
Not every judge accused of an ethics violation is removed from the bench. The Judicial Conduct Board filed ethics charges against Erie Judge Stephanie Domitrovich in July. The complaint states that Domitrovich was critical, impatient and disrespectful in the courtroom. She is charged with six counts of judicial misconduct.
The Judicial Conduct Board asked the court to suspend Domitrovich with or without pay while the disciplinary proceedings proceeded. The Court of Judicial Discipline has determined not to suspend Domitrovich. An ethics trial has not yet been scheduled.
All judges are vulnerable when it comes to ethics complaints. A conservative legal firm is accusing Supreme Court Justice Ruth Bader Ginsburg of violating the Judicial Code of Conduct.
At the heart of the claim are recent comments made by Ginsburg about impending gay marriage battles that could come before the Sixth District Court of Appeals, which governs Kentucky, Michigan, Ohio and Tennessee.
Ginsburg told an audience at the University of Minnesota Law School recently that “there will be some urgency” if the appeals court backs bans on gay marriage, forcing the Supreme Court to act more promptly.
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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

The Cautionary Instruction:'Ban the Box' a second chance for ex-offenders

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
September 26, 2014

Former offenders are saddled for life with criminal records that make employment, education and public benefits difficult, if not impossible, to obtain. A prison term should not mean a lifetime of misfortune for a former offender. Yet, that is what the criminal justice system produces every day.
Job seekers with criminal records have always struggled to find work. It is not just violent offenders and felons who are rejected by employers. A misdemeanor or an old conviction can be enough to cost a person a chance at a job. About 70 million people in the U.S. have been convicted of a crime.
A conviction has real and lasting consequences. Forbes Magazine reported that a survey by the Society for Human Resources Management, found that 96 percent of human resource professionals say their companies perform criminal background checks on applicants.
Many criminal justice practitioners point to the lack of employment opportunities for returning prisoners as the most important obstacle to a successful reentry. A failed reentry means a return to prison; soaring taxpayer funded corrections costs; and increased victimization.
Some states, and cities, are trying to do something to eliminate barriers for former offenders seeking employment.
There is a growing movement called Ban the Box, a reference to the check box on a job application that asks, "Have you ever been convicted of a crime?" Having the check box may prevent many ex-offenders from getting a fair shot at a job.
Some employers immediately set aside an applicant who checks the box. This prevents perspective employees from having an opportunity to sell themselves in an interview and it prevents perspective employers from evaluating an applicant on the merits.
Ban the Box will not prevent employers from checking an applicant's criminal record. The measure merely postpones the review to later in the assessment process to give former offenders a chance at getting a job.
Four states -- Hawaii, Massachusetts, Minnesota and Rhode Island -- have passed laws that force private employers to remove the question regarding conviction history from job applications, according to National Employment Law Project (NELP).
Eight more states -- California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nebraska, New Mexico -- have removed the question from applications for public or state jobs.
In addition, more than 60 cities have banned the box, including Baltimore, Louisville and Indianapolis. According NELP, New York City is considering its own version, called the NYC Fair Chance Act.
Is America a country where people get second chances or a country where a single mistake follows a person for life?
There is a lot of work to be done to provide former offenders with a meaningful opportunity to earning a living wage. Progress is being made. This week, Washington D.C. banned the box, Illinois’ governor signed a similar law and, according to National Public Radio, Wal-Mart and Target have eliminated the criminal history question from their employment applications.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: The paradox of falling crime and crowded prisons

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
September 19, 2014
The U.S. Department of Justice, Bureau of Justice Statistics (BJS) released two reports this week that appear to be in conflict with one another. Crime rates are down for 2013, but incarceration rates are up. Locking up a few thousand more people is not going to make crime rates fall, but it begs the question -- if there are fewer crimes shouldn’t there be less people in jail?
The nation's violent crime rate declined slightly last year after two years of increases according to BJS.
BJS’s National Crime Victimization Survey found the overall violent crime rate -- which includes rape or sexual assault, robbery, aggravated assault, and simple assault -- declined from 26.1 victimizations per 1,000 people in 2012 to 23.2 per 1,000 in 2013.
The rate of violent crime in 2013 was similar to the rate in 2011 -- 22.6 per 1,000. Since 1993, the rate of violent crime has declined from 79.8 to 23.2 victimizations per 1,000 persons age 12 or older.
The victimization report is based on an annual scientific survey of Americans on whether they had been victimized in the previous year. The interviews included about 90,630 households and 160,040 persons last year.
It differs from the FBI's Uniform Crime Report, which is based on voluntary submissions from local police departments of crimes reported to them. Many criminologists consider the victimization survey a more accurate picture of the nation's crime, because the FBI's data are incomplete.
At the same time, the incarceration rate has increased. At the end of 2013, the U.S. held an estimated 1,574,700 people in state and federal prisons, an increase of approximately 4,300 prisoners, about a three percent increase from 2012. This was the first increase reported since the peak of 1,615,500 prisoners in 2009.
The incarceration totals rose in 27 states. With at least 700,000 in local jails, not included in the BJS report, the national total behind bars remains well over 2 million. Only six states had fewer prisoners at the end of 2013 as compared to 2000.
Critics question why more people should be behind bars while crime is dropping.
Ted Gest, president of Criminal Justice Journalists and Washington bureau chief of The Crime Report, suggests that the basic answer is that there is not necessarily a connection between the two sets of numbers.
Gest wrote, “About 450,000 people entered prison last year as a result of a court sentence. That is only a small fraction of the 6.1 million violent crimes. Most crimes don't lead to arrests or prosecutions, and only some of those cases result in an offender going to prison. So it is very possible for the crime rate to be going slightly in one direction and the imprisonment rate slightly in the other, as was the case in 2013.”


(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: The efforts to decrease domestic violence are working

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
September 12, 2014
Domestic violence impacts literally millions of women each year. The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report prepared by the National Center for Injury Prevention and Control at the Center for Disease Control found that nearly one in three women in the United States have been slapped, pushed, or shoved by an intimate partner in their lifetime.
With that grim statistic in mind and the alarming nature of professional football player Ray Rice’s case it may be surprising to know that domestic violence has dropped precipitously since the mid-1990s.
The rate of domestic violence in U.S. households declined 63 percent, from 13.5 victimizations per 1,000 persons age 12 or older in 1994 to 5.0 per 1,000 in 2012. Both serious domestic violence (rape, sexual assault, robbery and aggravated assault) and simple assault (push, shove, slap, threaten) decreased.
Why the long and sustained drop in domestic violence?
Steven Pinker in The Better Angels of Our Nature: Why Violence has Declined suggested, “Those countries in which women are better represented in government and in the professions, and in which they earn a larger proportion of earned income, are less likely to have women at the receiving end of spousal abuse.”
Researchers at Carnegie Mellon University found access to protective orders, assistance with child custody and support, divorce and property distribution and domestic legal disputes around immigration, housing and public benefits help alleviate the burdens of domestic violence.
Lonnie A. Powers, Executive Director of the Massachusetts Legal Assistance Corporation wrote recently that these services "appear to actually present women with real, long-term alternatives to their relationships."
Criminal justice practitioners have focused a lot of attention -- with considerable success -- on enhanced sentences, emergency shelters, counselors and hotlines. Those efforts are priceless after an assault has occurred. However, such efforts do not prevent the pervasiveness of violence.
Domestic violence includes rape, sexual assault, robbery, aggravated and simple assault committed by intimate partners -- current or former spouses, boyfriends and immediate family members.
I recently wrote in a column for GateHouse Media, “The greatest impact on violence against women in America and around the world is to empower women. In this country, women have excelled at every level. That kind of transformation is underway in many countries around the globe. However, until full equality is achieved professionally and personally, here and abroad, the scourge of domestic violence will continue.”

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: New school year brings new security measures

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
September 5, 2014
As the new school year begins many school districts are heightening security.
Security measures continue to evolve 20 months after the mass shooting at Sandy Hook Elementary School in Newtown, Conn., which left 20 students and six staff members dead following a rampage by a 20-year-old gunman.
The massacre at Sandy Hook brought about new procedures, cutting-edge equipment and security personnel.
This school year extends many of those efforts, some partly funded by state or federal grants. Experts point out that schools are one of the safest places for children and say security upgrades should be driven by factual assessments, not fear.
At Franklin Regional High School a student stabbed 21 students last spring. The western Pennsylvania school district received a Safe Schools Initiative Competitive Targeted Grant to improve security. The grant money will be used to upgrade building locks, improve communications throughout the school, improve response plans and train district staff members.
In Connecticut, police will be making more frequent visits to school buildings and doing periodic checks of buildings throughout the year, making sure students are aware of their presence.
"I've heard new alarms, new security with the doors, new cameras in the hallways which is reassuring," said Cindy Ramadanov, the parent of a school aged child.
The school also installed a box in the main office where students or anyone else can anonymously drop a note to report any situation.
"It makes me feel better. We weren't really aware last year, but we know the kids are safe," Ramadanov added.
Some school districts are only beginning to implement security measures that have become routine in other parts of the country. In Georgia, once the school day begins in some districts, the doors to the schools will be locked and visitors will need to press a button on a control panel to get in.
The control panel includes a video camera that allows staff inside the school to see who is at the door. Upon entering the school, visitors will follow the normal visitor procedures, signing in and showing identification to receive a visitor’s badge.
When visitors are ready to leave, they must exit the building through the main entrance and officially check out.
In Minnesota, some school districts installed "school safe activation buttons", commonly called panic buttons. The buttons can lock school entrances and trigger a school lockdown. Staff say the measures save precious time.
Other new security measures include flashing lights in hallways and outside of buildings that can alert students and staff to a lockdown. Students will soon undergo drills to better understand the new system, which is designed to create barriers in the threat of an intruder, allowing law enforcement more time to respond.
In the 21st century, unfortunately, returning to schools is about more than new books, old friends and the optimism of a new year.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.


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The Cautionary Instruction: This week marks the 90th anniversary of the Leopold and Loeb case

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 29, 2014
Ninety years ago this this week, Clarence Darrow gave a 12-hour summation in the sentencing hearing for Richard Loeb and Nathan Leopold.
The case known as Leopold and Loeb was heralded as the “trial of the century.” The case was not really a trial at all. Darrow had changed the young men’s pleas from not guilty to guilty and focused his efforts on preventing a death sentence.
On May 21, 1924, Leopold and Loeb rented a car and stocked it with tools to commit the “perfect crime.” Then they drove to a park near a local prep school to wait for the perfect victim. They found Bobby Franks.
The two wealthy University of Chicago students lured the 14-year-old Franks into the car. The two men murdered Franks for the thrill of the kill.
The next morning, a man on his way to work found Frank’s naked body, his face and genitals burned with acid, in a culvert in an isolated field outside of Chicago.
Darrow’s change of plea had turned the case on its head. Darrow, a graduate of Allegheny College in Meadville, Pennsylvania, needed only a reduction from death by hanging to life in prison to win the case.
Darrow’s summation has been characterized as one of the greatest orations ever presented in opposition to the death penalty.
Darrow asked the judge, “Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way.”
He continued to argue, “Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!”
Darrow pleaded, "If the state in which I live is not kinder, more humane, and more considerate than the mad act of these two boys, I am sorry I have lived so long."
He concluded “Your Honor, what excuse could you possibly have for putting these boys to death? You would have to turn your back on every precedent of the past. You would have to turn your back on the progress of the world. You would have to ignore all human sentiment and feeling …You would have to do all this if you would hang boys of eighteen and nineteen years of age who have come into this court and thrown themselves upon your mercy.”
Cook County Circuit Court Judge John R. Caverly was impressed. He imposed a sentence of life in prison for both men.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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The Cautionary Instruction: Predicting crime is fine, predicting criminals … not so fast

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 22, 2014
Predictive analytics has made its way into the criminal justice system through the use of assessments to predict future risk. U.S. Attorney General Eric Holder doesn’t think it’s a good idea.
Predictive analytics is the process by which analysts are able extract information from a huge amount of data in order to reveal patterns and make predictions about what might happen in the future. Predictive analytics is not a crystal ball, but it is a tool that looks into the future with an acceptable level of reliability.
Holder cautioned against the use of data in sentencing criminal defendants, saying judges should base punishment on the facts of a crime rather than on statistical predictions of future behavior that can be unfair to minorities.
"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place," Holder said.
The 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. The result has been fewer people in prison and a crime rate lower than the national average.
Risk forecasting is not just relegated to the courtroom. Police departments have been refining forecasting over the last two decades.
Five years ago, Holder’s justice department sponsored a National Institute of Justice Symposium on Predictive Policing. Then Assistant Attorney General Laurie O. Robinson told the conference attendees, “Eric Holder is thinking a great deal about where we are in the evolution of law enforcement. He knows, as all of you do, that we’re at a point where some very strategic, and collaborative, thinking is in order.”
Predictive policing is the use of analytical techniques to identify promising targets for police intervention with the goal of preventing crime, solving past crimes, and identifying potential offenders and victims. These techniques can help departments address crime problems more effectively and efficiently.
Jeremy Heffner of Azavea, a firm specializing in geographic information system mapping said, “You can kind of think of crime as a disease. If a crime happens, we can see how it affects the likelihood that another incident is going to happen within a certain area in a certain amount of time after that.”

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: U.S. Sentencing Commission reviews white-collar crime guidelines

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 15, 2014
Judge Terrence Boyle of the U.S. District Court for the Eastern District of North Carolina presided over the government’s prosecution of Wakemed Health and Hospitals in 2013, a company accused of pervasive Medicare fraud. He rejected a plea agreement, lamenting the skyrocketing number of healthcare fraud cases across the country and their impact on “every American wage earner and every American citizen.”
Judge Boyle noted the difficulty “for society and the court to differentiate between the everyday working Joe or Jane who goes to prison and the nonprofit corporate giant who doesn’t.” He complained that deferred prosecution agreements like the one he rejected are supposed to be for marijuana-smoking teenagers, not corporations accused of financial crimes.
Boyle’s complaint seemed to be directed at the U.S. Commission on Sentencing. The Commission, which yesterday voted on priorities for the coming year, has expressed interest in examining punishments for white-collar crime. Not to make them stiffer, but to be more lenient.
The timing of the Commission’s action seem a bit peculiar given the public outrage at those recently convicted of massive fraud—stealing the life savings of their clients; the lingering anger over the damage inflicted by the 2008 financial meltdown; and situations described by Judge Boyle.
Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them. Advocates argue that white-collar sentencing guidelines are "mixed up and crazy" and could weaken support for keeping them in place, said Ohio State University law professor Douglas Berman, a sentencing law expert.
Critics of the guidelines in white-collar cases contend that they have come to rely too heavily on financial-loss calculations, which can quickly mushroom when the crime involves a public company. In certain cases, a public-company executive could face life in prison, said James Felman, a Tampa, FL defense attorney and member of an American Bar Association Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes looking at proposing revisions in the guidelines for economic crimes.
The commission's action to soften drug-crime guidelines is a signal that the time is ripe, to soften the impact on white-collar crime sentencing. Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.
A 2013 proposal from an American Bar Association task force proposed that very thing in 2013. The task force encouraged judges to place less emphasis on how much money was lost and more on a defendant's culpability.
Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually financially benefited. Essentially, the Commission would give judges a little more discretion.
I’m sure Judge Boyle would be pleased with a little more discretion, but those brought before him might not be as pleased with the result.
(Image: John Lund/Sam Diephuis/Blend Images)

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: Communicable disease and quarantine in Pennsylvania

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 8, 2014
The U.S. Centers for Disease Control and Prevention has issued its highest-level alert in response to the Ebola crisis in West Africa.
Two Americans, Kent Brantly and Nancy Writebol, have been returned to the U.S. from Liberia and are being treated for Ebola at the Emory University Hospital in Atlanta.
Could a patient with a communicable disease, or merely exposed to a communicable disease, be isolated or quarantined in Pennsylvania?
In 2007, I wrote a column for the Pennsylvania Law Weekly on the issue of quarantine -- in light of the Ebola scare the law in Pennsylvania is worth revisiting.
The United States Constitution prohibits the federal government as well as state governments from depriving individuals of specifically protected liberty rights. There are exceptions. In Pennsylvania the health and well-being of the community at large may supersede individual rights of freedom and liberty.
Although matters relating to public health have been left largely to individual states to manage, the federal government does have jurisdiction over cases where communicable disease is introduced into this country from a foreign source or to prevent or curtail the interstate movement of communicable disease.
In Pennsylvania the Disease Prevention and Control Law (DPCL) provides that the state department of health, county/municipal health departments or a local heath authority may, without court intervention, order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and no lesser restrictive means is warranted. The court may be asked to review the order within 24 hours of service upon the individual being detained.
The DPCL defines quarantine as the “limitation of freedom of movement of persons . . . who have been exposed to a communicable disease.” The limitations may continue for a period of time equal to the incubation period of the disease. Isolation is the separation of persons already infected, from other people to prevent direct transmission of disease.
As far back as 1902 the U.S. Supreme Court recognized isolation and quarantine as legitimate public health techniques to contain the spread of infectious disease.
In the months following the September 11th attack, the Pennsylvania legislature went even further by enacting the Counterterrorism Planning, Preparedness and Response Act (Act). The Act provides the governor with authority to order the temporary isolation or quarantine of individuals or groups. The Act, although not clear, was intended for use following a suspected act of bioterrorism. The statute does not specifically preclude the Act from being utilized during a pandemic.
The governor has also been empowered to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such an order from the governor is subject to judicial review.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: A rocky start -- Public safety director takes on the DA

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 1, 2014
Last week, I wrote about Pittsburgh Public Safety director Stephen A. Bucar’s charge: Lead by example. He said after his confirmation hearing “the way forward is to build leadership that instills respect in the rank and file… [and] reach out to communities that have seen a deteriorating relationship with the department.”
Then his first step as public safety director was to make a questionable challenge to the authority of the district attorney. That won’t do much to boost confidence in the police and criminal justice system. He issued a statement saying that the city police bureau will not adopt practices on eyewitness identification implemented by Allegheny County District Attorney Stephen A. Zappala Jr.
“Although the model is endorsed by certain academic and research facilities, there is dissenting opinion in those same communities that disputes the conclusion that the best practice for eyewitness identification procedure lies with a sequential process rather than a simultaneous process,” Mr. Bucar said.
United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty years ago, “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”
More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous.  One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.
Even U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness identification. She wrote, "eyewitness identifications' unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial."
According to the Post-Gazette, Bucar cited debate in the scientific community over the most effective means to utilize eyewitness identification. Nancy Steblay, a leading eyewitness scientist from Augsburg College in Minneapolis, said that’s not the case anymore.
A 2011 review she co-authored reported that the sequential process is superior.
“We have over 70 studies we’ve reviewed and verified, and you see the pattern over and over again for sequential,” Ms. Steblay said. “In an enormous set of studies, you’re always going to find some outliers. But that’s what science does — look for the pattern.”
Zappala is advocating for the sequential process. “Although it’s not perfect, it’s far superior — significantly superior — to the simultaneous procedure,” said Steblay.
In fact, this area of the law is rapidly changing. The Pennsylvania Supreme Court ruled recently that criminal defendants have the right to offer expert testimony about the reliability of eyewitness identification. The decision overturned a 20-year prohibition against using such experts in Pennsylvania.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: Pittsburgh Police Department's morale problem

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
July 25, 2014
"What's going on in Pittsburgh is a crisis in confidence," said Councilman Rev. Ricky Burgess during acting Public Safety Director Stephen Bucar's confirmation hearing this week.
"I absolutely agree with you that there's a confidence problem in some parts of the city," responded Bucar. "In attending these police chief meetings, I can see some of the anger and frustration in some areas of the city."
Bucar acknowledged low morale at the police bureau, but he was quick to mention that the department is a “very professional organization.”
Bucar should be applauded for acknowledging the problem, but the mere fact that he brought it up points to the work needed to rectify the problem. President Dwight D. Eisenhower, when he was General Eisenhower was constantly concerned with troop morale. He once said, "The best morale exists when you never hear the word mentioned. When you hear a lot of talk about it, it's usually lousy."
What Eisenhower meant was you cannot just talk about improving morale you’ve got to do something about it.
Bucar went on to say, the department has a “small number of bad seeds” and they get all the publicity. “It taints and paints with a broad brush,” he said, adding that public perception of officers affects their work.
Although research on police morale has evolved significantly over the years, almost all of the early research in this field focused on operational stress that officers face. The source of low morale was based on the premise that law enforcement professionals are placed in continuously difficult situations and are required to deal with these situations in the course of their duties.
What has evolved recently is the theory of organizational stress. A study of more than 2,500 officers indicated that “the findings reveal the majority of the 10 greatest sources of anger and frustration among officers have a crucial common denominator, their administrators.”
Low morale, whether operation or organizational, has consequences. A morale problem can increase turnover, absenteeism and low productivity — all of which make neighborhoods more vulnerable. Low morale can also spur civil liability which depletes resources and drives up taxpayer costs. Finally, and most tragic, low morale drives up officer suicide.
Bucar says the way forward is to build leadership that instills respect in the rank and file, and hire a new chief who not only can inspire officers but successfully reach out to communities that have seen a deteriorating relationship with the department.
“It can’t be somebody who hasn’t earned that respect by being in law enforcement for a number of years,” he said. “I have to build that trust and I have to be confident that my police chief shares that interest in drilling down in those communities that don’t trust the police.”

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: California death penalty struck down

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 18, 2014
A Federal Judge struck down California's death penalty. US District Judge Cormac Carney found that lengthy delays in carrying out the death penalty amounted to a violation of the Eight Amendment’s ban on cruel and unusual punishment.
Judge Carney wrote:

Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed.

My book The Executioner's Toll, 2010, released in April made those very arguments:

Let's say that death penalty verdicts continue at 2010's pace of 112 per year for the next ten years. There would be approximately 4,500 men and women on death row. Let's say that all 32 states with the death penalty executed one offender a month for the next ten years; these occurrences are not completely realistic since only eight states have more than 120 offenders on death row. After ten years at that frantic, and frankly impossible, pace, there would be 4,300 executions, still leaving about 200 people on death row. Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972. If you are one of 697 inmates on California’s death row, a state that has not carried out an execution in five years, and suddenly you are scheduled for execution — that is a lot like being struck by lightning.

The death penalty has been a permissible form of punishment for certain crimes in the United States throughout the nation's history, with the first recorded case occurring in 1608, according to Jurist at the University of Pittsburgh School of Law.
The Supreme Court has held on numerous occasions that state proscription of the death penalty is not a violation of the Eighth Amendment's ban on cruel and unusual punishment. The court has also held, however, that the Eighth Amendment does impose limitations on when and how states may use the death penalty.
The most recent Gallup Poll on the death penalty has support at about 60 percent, down from a high in 1994 of 80 percent. That’s not to say that 60 percent is not a significant number or that 32 of 50 states with the death penalty is not a substantial majority. But, unequivocally the death penalty is trending downward.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: Pennsylvania’s 'Revenge-Porn' bill awaits governor’s signature

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 11, 2014
As part of a flurry of last-minute activity, state lawmakers have sent Governor Tom Corbett a bill that would outlaw so-called "revenge porn" in Pennsylvania.
On revenge porn sites, users upload X-rated photos of ex-lovers. I’m going to refer to the victims as women — occasionally men are victimized — but the victims are predominately women. The X-rated material is posted without the woman's permission. A woman sends a personal, intimate photograph to her boyfriend and when the relationship ends; her image is all over the internet, often with a name, location and links to her social media accounts.
Basically, revenge porn works like this:

1. Person A and Person B get married, date or hook up. They exchange or make intimate photographs and/or videos.

2. Person A and Person B stop getting along, and Person A gets angry.

3. Person A disseminates Person B’s private photographs or videos without consent — either to humiliate person B, or for profit, or both.

State Senator Judy Schwank a Democrat from Berks County, proposed the Senate’s version of the bill, saying that when it becomes law upon receiving Governor Corbett’s signature as expected, "persons who publicly post sexual images of their partners in order to annoy them or harm them will commit a crime that will have significant consequences."
She's not kidding: Violations of Pennsylvania's revenge-porn law will carry up to two years in state prison — or five years if the victim is a minor, which means that teenagers will need to be real clear about this law when they go through the emotional turmoil of their first break-up — and, like many crimes, will also come with the potential for financial damages in civil court.
According to the National Conference of State Legislatures, laws have been enacted in 10 states including Arizona, Idaho, Utah, Virginia and Wisconsin. At least 27 other state legislatures are considering some measure to outlaw similar conduct. In New Jersey, legislation was passed in the wake of the tragic suicide of 18-year-old Rutgers University student Tyler Clementi who was videotaped without his consent during a sexual encounter with another male.
California was ahead of the curve, passing a law in the fall of 2013 to prohibit the distribution of "intimate" images taken "with the intent to cause serious emotional distress." But some argue the law — which protects any images that were taken with the subject's consent if the distributor of the image is also the photographer — doesn’t go far enough.
(Image: matto353/iStock)

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: Oscar Pistorius strikes out with mental illness defense

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
July 3, 2014
Olympic star and double-amputee Oscar Pistorius shot and killed his girlfriend in 2013. Pistorius is on trial in South Africa for her murder. He acknowledges that he shot Reeva Steenkamp when he mistook her for an intruder.
In May, Pistorius was ordered by a judge to undergo psychiatric tests at the request of the chief prosecutor, Gerrie Nel. The prosecutor said he had no option but to ask for it after an expert witness for the defense testified that Pistorius had an anxiety disorder since childhood that may have influenced his judgment when he fatally shot Steenkamp.
Under South African law Pistorius could be acquitted if it’s found that he was not criminally responsible for Steenkamp’s shooting because of a mental illness.
Under South African law a defendant may lack the capacity to knowingly commit a crime because of mental illness. This was previously referred to as an “insanity” defense — South African law now refers to it as pathological incapacity.
By law the defense of pathological incapacity provides:

“A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable —

(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission.”

In the United States a majority of states, including Pennsylvania, apply the M’Naughten Rule when evaluating insanity.
Under the law, a person is legally insane only if, at the time of the act, he was laboring "under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.''
The rule sets a very high standard. The insanity defense is sought in few cases and proving it is extremely rare.
"You can be severely mentally ill but not qualify as legally insane,'' said Thomas P. Rogers, a lawyer from eastern Pennsylvania.
The hurdle is such, said Rogers, that a defendant has to "believe he's shooting Martians, not his wife, because voices are telling him they're Martians, and that he's supposed to shoot them.''
After a month long break in the trial, a panel of mental health experts concluded that Pistorius was not suffering from a mental illness when he killed his girlfriend. The experts reported to the court that Pistorius was "capable of appreciating the wrongfulness of his act" when he killed Steenkamp.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: High Court rules cellphone contents protected

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 27, 2014
The U.S. Supreme just made it more difficult to continue an investigation of criminal conduct incident to the arrest of a suspect.
In Riley v. California and United States v. Wurie, the court said that with rare exceptions, the Fourth Amendment requires that police obtain a search warrant to probe the contents of cellphones in the possession of arrestees. Rejecting government assertions of the need for quick access to the contents of cellphones, the court stressed the damage to personal privacy that would result from police seizure of devices that “place vast quantities of personal information literally in the hands of individuals.”
The law prior to these decisions provided that an arresting officer may search an arrestee to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Included in virtually every search is a cellphone.
“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ ” Chief Justice John Roberts Jr. wrote for the court. He added that cellphones and smartphones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies, wrote Adam Liptak of the New York Times.
“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”
The court also held that while the police may not search the cellphone data, they may search the cellphone itself to make sure it cannot be used as a weapon. Justice Samuel Alito filed a concurring opinion, noting that he was not convinced that the rule on searches incident to arrest is based on the need to protect the safety of the arresting officers and the need to prevent the destruction of evidence.
The justices said the police are not “without specific means” to address their concern about the remote wiping of a cellphone to remove evidence. “Remote wiping can be fully prevented by disconnecting a phone from the network,” Roberts wrote. The authorities, he said, can turn the phone off or remove its battery.
(Image: Evan Vucci/Associated Press)

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: Supreme Court takes up Facebook threats

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 20, 2014
The U.S. Supreme Court has agreed to hear the case of Anthony D. Elonis of Berks County, Pennsylvania who was sentenced to nearly four years in federal prison for posting ominous photos and making violent rants on his Facebook page against former co-workers, law enforcement officials and his estranged wife.
The case dates back to 2010, when Elonis' wife left him after a seven-year marriage and took their two children. Apparently despondent , he lost his job at an Allentown amusement park and began a series of dark postings, often in the form of rap lyrics. In his Facebook profile, he said the rants were therapeutic and disclaimed any "true threat."
Columnist Dahlia Lithwick wrote this week, “This case is not only crucially important in that it will force the court to clarify its own "true threats" doctrine and finally apply it to social media to determine whether -- as Justice Stephen Breyer has suggested -- the whole world is a crowded theater. Breyer was referring to Justice Oliver Wendell Holmes’ First Amendment decision in Schenck v. United States.
For more than 40 years, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has cautioned that laws prohibiting threats must not infringe on constitutionally protected speech. That includes "political hyperbole" or "unpleasantly sharp attacks" that fall shy of true threats.
The federal statute targeting threats of violence is likely to be used more often in the coming years "as our speech increasingly migrates from in-person and traditional handwritten communication to digital devices and the Internet," said Clay Calvert, a law professor at the University of Florida.
The court's precedent for such cases is now 11 years old. In 2003, the Supreme Court ruled in Virginia v. Black [http://www.oyez.org/cases/2000-2009/2002/2002_01_1107] that a state law equating cross-burning with intimidation went too far, reasoning that not all cross-burning was meant as a threat. Since then, lower state and federal courts have split on what constitutes a threat -- the perpetrator's subjective intent to threaten, or anyone else's objective interpretation.
"There is a lot of fear right now about threats made online,” says Hanni Fakhoury, a lawyer at the Electronic Frontier Foundation, a digital civil liberties non-profit. “But it seems like we’ve elevated the Second Amendment above the First Amendment." "We’ve tolerated stupid speech a long time in this country, and we shouldn’t let the Internet shake that balance,” says Fakhoury. “We need a holistic approach to problems, not just, ‘If you say a threat on the Internet, you’re going to jail.'"

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

The Cautionary Instruction: America’s ‘punishment tax’

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 13, 2014
Fifty-five-year-old Eileen DiNino died in a Berks County jail last weekend. DiNino’s crime -- failure to pay fines racked up by her son’s truancy. She was in jail because her son didn’t go to school.
The guy that threw her in jail, District Judge Dean R. Patton, told the Reading Eagle, “This woman should not have died alone in prison … Our ultimate goal is not to fine people or put them in jail, but that is the only tool the Legislature has given us when people can’t afford to pay.”
Hundreds of parents, some impoverished and overwhelmed, have been jailed in Pennsylvania for failing to pay court fines that arise from truancy hearings after their children skip school, creating what some call a “debtor’s prison.”
Nationwide, indigent offenders are being jailed if they don’t pay fines and what amount to revenue-producing court costs. In 2010, the Brennan Center for Justice issued a report on Florida’s reliance on fees to fund its courts.

Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash register justice.”
In fact, some states apply "poverty penalties," such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News Moneywatch.
Alabama charges a 30 percent collection fee, for instance, while Florida allows private debt collectors to add a 40 percent surcharge on the original debt. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel.
According to a 2013 report prepared by the ACLU, The Outskirts of Hope, the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”
In some Ohio counties offenders are being jailed because they are too poor to pay fines. That is a violation of federal and state law and the perpetuation of “debtors’ prison.”
All of this, in spite of a 30-year-old U.S. Supreme Court ruling that courts cannot properly revoke a defendant's probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay.
Like Eileen DeNino, men and women, across the country are being sent to jail simply because they don’t have money. The ever-increasing court fees and costs are not about deterrence, retribution or rehabilitation -- they’re about creating revenue. America has created the “punishment tax” -- and jail cells are routinely being used to collect it.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: Lawmakers more ambitious with government reduction bill

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 6, 2014
Pennsylvania has one of the largest and most expensive legislatures in the country. The General Assembly’s annual budget exceeds a quarter of a billion dollars. Those dollars go to pay the salary of 253 legislators and about 2,600 staffers.
New Hampshire has the largest legislature in the country with 424 members, but they are part-timers who make about $100 a year, compared with the $84,000 base salary for Pennsylvania lawmakers.
Proposals to reduce the size of the legislature come up in nearly every legislative session. In 2011, there was a proposal to reduce the House from 203 members to 121 and the Senate from 50 to 30 members.
However, this year some senators were not satisfied with just reducing the number of lawmakers.
“There’s also two other branches of government that need to be reduced also, in my opinion,” said Senate President Pro Tempore Joe Scarnati.

This week, a Senate committee passed resolutions to eliminate 55 legislative seats and several appellate judgeships. Even the executive branch of government was not exempt. The proposed legislation would eliminate the position of Lt. Governor. Proposed constitutional amendments to shrink the size of government across the three branches have been sent to the full Senate for consideration.
Scarnati’s plan would reduce the state Supreme Court from seven to five seats and cap the Superior Court at 11 members. Without a Lt. Governor, Scarnati’s plan provides for a special election to replace a governor who leaves office, with the Senate President Pro Tempore filling in.
Scarnati currently holds that position in the senate and filled the Lt. Governor’s office after Lt. Governor Catherine Baker Knoll died in 2008.
Pennsylvania attorneys and political observers expressed shock and disapproval over Senate bills. “I think it caught a lot of us by surprise that the judiciary was included in that mix,” John J. Hare, chair of the appellate advocacy and post-trial practice group at Marshall Dennehey Warner Coleman & Goggin in Philadelphia told The Legal Intelligencer. “I had no idea that they were going to bring the judiciary into this and I think [cutting judgeships] would be really unfortunate.”
Both reduction measures passed unanimously out of committee -- one bill addressed the House, the other addressed the Senate, judiciary, and lieutenant governor.
Senators said their concerns could be debated without slowing down the lengthy process ahead. A constitutional amendment must first pass the General Assembly in two consecutive legislative sessions, and then clear a voter referendum.
Not everyone is enamored with idea of reducing the size of the legislature. Opponents say the dangers include moving access to state lawmakers farther away from constituents, diluting the representation of rural areas, and the overstated cost savings projections.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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The Cautionary Instruction: The Eighth Amendment — a matter of human dignity

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 30, 2014
This week the U.S. Supreme Court struck down Florida’s strict IQ cutoff for determining intellectual disability and in turn eligibility for the death penalty.
In a 5-4 ruling in Hall v. Florida the court concluded that Florida’s rigid IQ threshold of 70 “disregards established medical practice” and creates the “unacceptable risk” that an inmate with intellectual disabilities might be executed, in violation of the Constitution.
“Our society does not consider this strict cutoff as proper or humane,” Justice Anthony Kennedy wrote.
“No legitimate penological purpose is served by executing a person with intellectual disability,” Kennedy wrote. “To impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.”
It is interesting that Kennedy would refer to the petitioner’s inherent right of “dignity.” The term is not frequently used in American jurisprudence and the term is even more difficult to find in Supreme Court opinions.

In fact, in Atkins v. Virginia the decision that banned the death penalty for the intellectually disabled, the only reference to dignity is the reference to a passage in Chief Justice Earl Warren’s 1958 opinion in Trop v. Dulles, “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”
In “Dignity Rights: Courts, Constitutions, and the Worth of the Human Person,” Erin Daly, a professor at Widener University Law School, wrote that the U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent, Justice Frank Murphy wrote, “The right was his … because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”
In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles. The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”
The reason the Supreme Court was forced to entertain another case dealing with intellectual disability resulted from the Court’s failure to outline a method for determining intellectual disability in the Court’s 2002 decision in Atkins. In Atkins the court left it to the states to define the parameters of who qualifies as mentally disabled for purpose of capital punishment.
Ultimately the question is whether a defendant’s mental deficiency is so significant that he is unable to appreciate the wrongfulness of his conduct. If so, his execution would violate the Eighth Amendment ban on cruel and unusual punishment and violate his inherent dignity as a human being.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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