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

 The Marshall Project expands on castration as punishment:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Law & Crime:‘Beginning to assert their constitutional authority’: Federal judiciary may be gearing up for a face-off with Trump administration

Matthew T. Mangino
LAW & CRIME NEWS
April 10, 2025

President Donald Trump’s administration apparently believes the Alien Enemies Act of 1798 can be used to address unlawful migration and drug trafficking — but so far, federal courts have pushed back on that notion.

A March 15 executive order issued by President Donald Trump suggested a Venezuelan gang known as Tren de Aragua was behind “an invasion of and predatory incursion into” the United States.

The Alien Enemies Act has only been used three times, during the War of 1812, World War I and World War II, when it was used to justify the mass internment of people of Japanese heritage while the U.S. was at war with Japan.

The United States is not at war with Venezuela. However, based on the government’s interpretation of the Alien Enemies Act, the Trump administration forcibly deported 238 alleged Venezuelan gang members without due process. Included with those summarily deported was Kilmar Abrego Garcia, a man with a work permit, married to an American citizen, and raising an American-born child. Abrego Garcia was sent to El Salvador in spite of a 2019 protection order prohibiting his deportation to El Salvador.

In late March, Chief U.S. District Judge James Boasberg temporarily blocked any deportations under the Alien Enemies Act, writing that the law refers to hostile acts perpetrated by another nation. On appeal, 4th U.S. Circuit Court of Appeals sided with Boasberg.

In the neighboring jurisdiction of the District of Maryland, U.S. District Judge Paula Xinis found that the government had no lawful authority to detain and deport Abrego Garcia. She ordered his return. The Justice Department in a Supreme Court filing stated that Abrego Garcia was removed to El Salvador through an “administrative error,” but the government had no authority to effectuate his return.

Just this week, the Supreme Court lifted Boasberg’s order that had barred the government from removing noncitizens who are designated as members of a Tren de Aragua. By a vote of 5-4, the justices declined to address the challengers’ contention that they are not covered by the Alien Enemies Act of 1798 on which Trump relied in issuing the order. Instead, the high court found, the challengers’ lawsuit must be brought in Texas, where they are being held, rather than in Boasberg’s Washington, D.C., court.

However, Justice Brett Kavanaugh wrote a brief concurring opinion that “the Court’s disagreement is not over whether the detainees receive judicial review of their transfers — all nine Members of the Court agree that judicial review is available. The only question,” he concluded “is where that judicial review should occur.”

As the Trump administration celebrated its “victory,” judges in Texas and New York said “not so fast.” Judges in both states temporarily barred the government from deporting Venezuelans jailed in parts of those two states while lawyers challenge the Trump administration’s use of Alien Enemies Act of 1798.

The orders were the first to occur following the Supreme Court’s ruling that the administration can resume deportations under the act.

The broader decision was handed down by U.S. District Judge Fernando Rodriguez Jr., appointed by Trump and sitting in the Southern District of Texas. He said that the administration cannot use the Alien Enemies Act to remove any Venezuelans being held at the El Valle Detention Center, in Raymondville, Texas, near the southern border, until at least April 23, giving lawyers for the detainees an opportunity to argue that the Alien Enemies Act is only applicable to enemy nations in times of war.

The Trump administration received further bad news from the U.S. Supreme Court. In what appeared to be a unanimous decision, the high court affirmed on Thursday Xinis’ order requiring “the government to facilitate Abrego Garcia’s release from custody in El Salvador” and to be prepared to share what steps it has taken to bring Abrego Garcia home. She set a hearing for Friday, and — when DOJ lawyers asked for more time to evaluate the Supreme Court’s ruling — excoriated the government attorneys.

“[T]he Defendants’ act of sending Abrego Garcia to El Salvador was wholly illegal from the moment it happened, and Defendants have been on notice of the same,” Xinis wrote Friday in response to the government’s request. “Indeed, as the Supreme Court credits, ‘the United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal.’ Second, the Defendants’ suggestion that they need time to meaningfully review a four-page Order that reaffirms this basic principle blinks at reality.”

As the hearing went forward on Friday, Xinis lashed out at the Trump administration after DOJ lawyers said that the government was “not yet prepared to share” information as to what efforts have been made to “facilitate” Abrego Garcia’s release.

“That means they’ve done nothing,” Xinis said in retort.

The decisions in the deportations cases are coming fast and furious, and with each ruling, courts are beginning to assert their constitutional authority to hold in check an overreaching executive branch.

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

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Louisiana seeks constitutional amendment to draw more juveniles into adult court

When Louisiana reversed its “Raise the Age” law in early 2024, moving all 17-year-olds back into the adult criminal system, it became the first and only state in the nation to enact such a reform, intended to shield youth from adult prisons, only to then repeal it. Since then, sheriffs of some of the biggest parishes in the state have struggled to accommodate the influx of minors into their jails. Now, Louisiana lawmakers are seeking to go a step further: They’ve proposed an amendment to the state constitution that would give themselves more leeway to decide what crimes can send children even younger than 17 into adult court—and potentially adult prison, reported Bolt. 

On March 29, Louisianans will vote on Amendment 3, a constitutional amendment that would hand legislators the power to add, with a two-thirds majority vote, any felony to the list of charges that would qualify a child to be treated like an adult in the eyes of the law. In Louisiana, this includes crimes like making a fake ID or stealing a phone. The state constitution currently restricts the crimes for which minors aged 14 and up can be charged as adults to a list of 16 serious felonies including murder, rape, and armed robbery. 

The amendment’s sponsor, Republican state senator Heather Cloud, says the limits on charging children as adults have “hamstringed” Louisiana from being able to address juvenile crime. Some of the bill’s supporters have expressed a deeply pessimistic view of Louisiana’s youth population; in a House committee hearing last fall, Republican lawmaker Tony Bacala told his colleagues, “Some of these kids are already lost when they’re two years old.” 

The move has alarmed advocates across the state, who are urging a no vote. “This is just casting the net wider to get young people inside the system,” Antonio Travis, the youth organizer for the group Families and Friends of Louisiana’s Incarcerated Children, told Bolts.

“These are grasps for more power,” said Sarah Omojola, the executive director of Vera Institute New Orleans. “We’re really trying to cage up and defund Louisiana’s future.”

Louisiana Governor Jeff Landry sat in chambers during the House’s debate and vote on the amendment in November, a signal of his support. Its content is consistent with a broader effort by Landry and his allies in the legislature to establish more serious and lasting consequences for young people accused of crimes. In 2023, as attorney general, Landry campaigned for a bill that would have made young people’s criminal records public—but only for residents of the state’s three most populous parishes, which are all majority-Black. The bill was sponsored by state representative Debbie Villio, a former prosecutor and ally of Landry’s who brought the constitutional amendment alongside Cloud. 

Both Landry and Villio insisted at the time that this targeting was about crime rates, not race, but organizers were appalled. “How could a person not look at the evidence and see that this is an intentional attack on certain communities?” Travis asked. The bill died in the senate amidst widespread accusations of racism. But in 2024, during a special session on crime that Landry called as his first official act as governor, Bacala brought back a new version that applied equally to every parish, which passed. Landry promptly signed it into law. 

Before 2017, the year Louisiana’s “Raise the Age” law took effect, “the education system was definitely, definitely feeding our youth justice system,” Travis told Bolts. “Kids were getting incarcerated from truancy. Kids were getting incarcerated from being suspended too much.” 

The reform moved 17-year-olds into the juvenile justice system as a default, though those accused of serious crimes could still be transferred to adult court. “This narrative of these hard criminals … that narrative was slowly being done away with,” Travis said. “The general public was recognizing that these are kids and they deserve resources.”

But this new day in Louisiana wouldn’t last long. There were a few abortive efforts to overturn “Raise the Age”: one bill that Landry, then attorney general, supported died in 2022; another was vetoed by then-Governor John Bel Edwards, a Democrat, in 2023. But this year, with Landry as governor, the legislation passed and became law last April. Landry feted the change on X, writing: “No more will 17-year-olds who commit home invasions, carjack, and rob the great people of our State be treated as children in court. These are criminals and today, they will finally be treated as such.”

The fallout was immediate: Any 17-year-olds already in custody were transferred to adult facilities, and all 17-year-olds arrested from then on were processed and treated as adults, meaning that their criminal history also becomes public record. The vast majority of these young people were not accused of home invasions, carjacking, or robbery, it turns out. Of the 203 17-year-olds arrested in the state’s three largest parishes during the first five months under the new law, ProPublica found that nearly 70 percent were charged with nonviolent crimes, like trespassing or marijuana possession. Only 13 percent were charged with serious felonies—and prosecutors already had the discretion to send young people accused of these crimes into adult court. 

Erika Jupiter, statewide organizing manager for Families and Friends of Louisiana’s Incarcerated Children’s, told Bolts that the change has had the effect of separating young people from their families and communities. ”Parents are very worried about the experience their children are having, and also it’s harder for them to communicate with their children,” she told Bolts. “If your child is in that adult facility, you may go weeks without knowing a status on what’s happening with them.” 

Recognizing that minors are at increased risk of physical and sexual assault in prison, the federal Prison Rape Elimination Act requires them to be “sight and sound” separated from adult prisoners. This has resulted in adult prisons placing young people in solitary confinement or in “pods,” which Jupiter described as “windowless shipping containers.” “It’s still inhumane,” she said. Officials have also shipped kids to prisons over 150 miles away from their original facility since the law took effect. “You have children going so far away from home, and their parents can’t visit,” Jupiter said.

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Kansas public defenders: Huge caseloads, lower pay and now less funding

Public defenders in Kansas face borderline unethical caseloads, lower pay rates than peers and now the possibility of even less funding to address attorney shortages, reported News from the States.

Heather Cessna, executive director of the Kansas Board of Indigents’ Defense Services, or BIDS, painted a picture for the Senate Judiciary Committee at its first meeting Tuesday of a state struggling to keep up with high case volumes, an aging workforce and economic pressures. 

BIDS requested an additional $10 million from the Legislature this year to adequately compensate public defenders to avoid turnover and hire more lawyers to allow for ethical caseloads. 

Instead, the special legislative budget committee wants to cut $7 million from the BIDS budget, according to House Bill 2007, which was introduced Monday and sponsored by committee chairman Rep. Troy Waymaster, R-Bunker Hill. 

Ultimately, Kansas does not have enough “experienced, qualified and available” attorneys willing to take on BIDS cases, Cessna told lawmakers. About 84% of adult criminal cases in Kansas are BIDS cases.

Clients and lawyers alike are frustrated, Cessna said, “and I field those phone calls daily.”

In Sedgwick County, home to Wichita, attorneys from outside the county are called to travel in to represent indigent defendants. In Shawnee County, where BIDS has two offices, attorneys spent 2024 refusing to take on more cases to maintain professional and ethical caseload levels. In Johnson County, public defenders are inundated with cases, even with a fully staffed public defender’s office and a back-up cache of private attorneys, Cessna said.

“In counties with fewer attorneys, that only gets worse,” she said.

A judge appoints a public defender to a criminal case when a defendant cannot afford representation. It’s a right embedded in the U.S. Constitution, and when that right is in jeopardy due to attorney shortages, like those in Kansas and jurisdictions across the country, the consequences are serious, Cessna said.

Without an attorney, cases are delayed. Evidence can be lost.

“If you have a constitutional requirement to have an attorney representing these people, and you don’t have an attorney standing in that courtroom next to that person, then that case has to get dismissed,” Cessna said.

More than half of Kansas counties have 10 or fewer lawyers and even fewer who specialize in criminal defense. One-third of lawyers in Kansas are over the older than 60, signaling a swath of soon-to-be retirees. 

Freshman Republican Sen. TJ Rose, an insurance agent from Olathe, wondered if compensating private attorneys who take on public defense cases at a rate of $250 an hour instead of $120 an hour would alleviate the shortage. 

Steve Leben, a retired Kansas Court of Appeals judge and a University of Missouri-Kansas City School of Law professor, wrote Monday on social media platform X that higher compensation rates for private attorneys could “lessen or eliminate” the shortage.

“But the most effective solution economically and for professional representation is properly funding public defenders,” he said.

Cessna said private attorneys are also subject to the same ethical caseload standards as public defenders, and there isn’t the same oversight and quality control capabilities as with direct employees.

Kansas remains in a better position than some other states, which have seen courts forced to dismiss criminal cases due to a lack of attorneys and, therefore, an inability to fulfill constitutional obligations. 

Still, challenges persist.

“There is no question” cutting BIDS’ funding will escalate a situation that has already reached a crisis point, Cessna told Kansas Reflector.

“I think we’re going to have difficulty paying bills,” she said.

Kansas Supreme Court Chief Justice Luckert told reporters Wednesday that the proposed $7 million budget cut would be “amazingly significant.”

“The result of that is that it slows processing cases,” Luckert said. “Basically, what we have to do is wait. There are caps on the number of cases that an attorney can take to be able to be effective in those cases. If they’ve reached those caps, the court just has to wait until the attorneys are able to help with that.

“And that means, oftentimes, people sitting in jail for undue amounts of time.”

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New Jersey Governor wants to reduce locking up technical parole violators

New Jersey officials would return potentially hundreds fewer parole violators to prison and cap how long they could be held under changes Gov. Phil Murphy will announce in his annual state of the state address next week, reported the New Jersey Monitor.

Murphy will urge lawmakers to pass legislation that would reduce how many people get hauled back to prison for technical parole violations, which is when someone violates the conditions of their parole rather than commits a new crime. Between 1,100 and 1,200 parolees are in state custody on any given day for technical parole violations.

“Right now, roughly 10% of our state’s entire prison population consists of people who are being held behind bars for committing a technical parole violation, like missing a scheduled meeting or forgetting to report a move to a new town,” Murphy is expected to say in his speech Tuesday afternoon at the Statehouse in Trenton. “Nobody should lose their freedom because of a technicality.”

The state Parole Board decides who is granted parole, under what conditions, and when, as well as whether to charge someone with a parole violation that will land them back in prison. Murphy included $1 million in the current state budget — which runs through June — for a consultant to examine how those decisions get made, although that work hasn’t yet started.

New Jersey law gives the parole board little discretion.

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Fire science under scrutiny in review of 40 year old conviction

The  man who has been serving consecutive life sentences for the 1984 rooming house fire in Beverly has the opportunity for a new trial, according to WBGH in Boston.

Last week, Essex County Superior Court Judge Jeffrey Karp overturned James Carver’s convictions for second-degree murder and arson. In the decision, Karp wrote a new trial was necessary because advances in fire science and eyewitness testimony “cast real doubt on the justice of his convictions.”

The fire killed 15 people. During the trial in 1989, prosecutors claimed Carver acted out of jealousy when he discovered a tenant of the rooming house was dating his ex-girlfriend. An investigator said the fire started from a stack of gasoline-soaked newspapers aflame in the only exit of the building. Witnesses said they saw Carver by the newspapers before the blaze.

Carver, 60, has maintained innocence and appealed, claiming new evidence would prove that other people set the fire. He has multiple chronic conditions and has used a wheelchair since 2006. He sought medical parole in 2021 but was denied.

This year, the court heard testimony from fire science and memory experts.

Karp’s decision mentions the fire marshal failed to “adequately rule out an electrical source.” On eyewitness memory, he noted experts revealed “the risk of misidentification significantly increases each time a witness is exposed to a suspect or the suspect’s photograph.” His decision mentions one witness was shown Carver’s photo three times before identifying him in a lineup.

Attorney Charlotte Whitmore of the Boston College Innocence Program said over 25 students have worked on Carver’s case in the past nine years.

“A lot of the evidence that the prosecution used in the 1980s to attempt to prove that this fire was an arson are now outdated, you know, sort of myths that fire scientists no longer rely on,” said Whitmore.

She and attorneys Lisa Kavanaugh, director of the Innocence Program at Committee for Public Counsel Services drove to Old Colony — where Carver is currently housed at — on Christmas Eve to let him know of Karp’s decision.

“Charlotte and I each took one of his hands and told him, 'we’re here with really good news,'” said Kavanaugh. “His face sort of lit up and he was like, 'Really?’ Then we told him 'the judge allowed your motion for new trial.’ It was a very emotional moment. He started crying. He was really just completely overwhelmed.”.

Essex County District Attorney Paul Tucker has 30 days to decide whether to retry the case. In a statement, he said his office has received the court’s decision allowing Carver’s motion for a new trial.

“This was the defendant’s fifth such motion,” Tucker wrote. “His four prior motions were denied. We are carefully reviewing the ruling and exploring options. We are also attempting to locate and notify the families of the fifteen victims who were killed in the fire.”

A CVS and memorial stand at the rooming house site. Amanda Mazzaglia of the Elliott Chambers Fire Memorial Foundation said the foundation has “always been about the victims and never served as an interest in the legalities of the crime,” but declined further comment.

Within the next few weeks the court will also likely hear “the issue of his release conditions,” said Kavanaugh, who said they’re working on a release plan for Carver, in hopes that can occur during the time the commonwealth decides whether the case can be tried.

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Fourth Amendment victory at the border

A federal court has held that the government must obtain a warrant based on probable cause before searching travelers’ electronic devices at the border, according to the Knight First Amendment Institute at Columbia University. The ruling came in a case in which a criminal defendant, Kurbonali Sultanov, moved to suppress evidence obtained from a search of his cellphone when he entered the U.S. at John F. Kennedy Airport in New York. In October 2023, the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press filed an amicus brief in the case, arguing that warrantless searches of travelers' phones violate the First Amendment’s protection of the freedoms of the press, speech, and association, as well as the Fourth Amendment’s protection against unreasonable searches and seizures. The judge relied heavily on the amicus brief in issuing her ruling.

“As the court recognizes, warrantless searches of electronic devices at the border are an unjustified intrusion into travelers’ private expressions, personal associations, and journalistic endeavors—activities the First and Fourth Amendments were designed to protect,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “The ruling makes clear that border agents need a warrant before they can access what the Supreme Court has called ‘a window onto a person’s life.”

Sultanov was stopped for questioning at John F. Kennedy Airport in March 2022. He initially refused to provide the password to his cellphone but complied when officers told him he had no choice. The officers searched the cellphone manually at JFK, and subsequently searched the phone forensically after obtaining a warrant. In a subsequent criminal case in the Eastern District of New York, Sultanov filed a motion to suppress the evidence obtained from his phone, arguing that the warrantless search of the device at JFK, and the later forensic search, violated his Fourth Amendment rights. 

The court held that the warrantless search of Sultanov’s cell phone at JFK violated the Fourth Amendment, but ultimately denied his motion to suppress because the court concluded that the government acted in good faith.

The court also held that border searches of electronic devices burden core First Amendment rights, including freedom of speech, freedom of religion, freedom of association, and freedom of the press. In reaching this conclusion, the court relied on records obtained by the Knight Institute through a Freedom of Information Act (FOIA) lawsuit, which describe travelers’ experiences with electronic device searches at the border. Read more about that lawsuit here.

The court also explained that these searches chill communications between reporters and their sources, again pointing to the amicus brief filed by the Knight Institute and Reporters Committee for Freedom of the Press, which detailed the experiences of numerous journalists who when entering the U.S. were flagged for secondary inspection and were required to surrender their electronic devices for warrantless searches.

“As the court recognized, letting border agents freely rifle through journalists' work product and communications whenever they cross the border would pose an intolerable risk to press freedom,” said Grayson Clary, staff attorney at the Reporters Committee for Freedom of the Press. “This thorough opinion provides powerful guidance for other courts grappling with this issue, and makes clear that the Constitution would require a warrant before searching a reporter's electronic devices.”

Read the ruling here.

California takes on homelessness and mental illness

A new initiative, called CARE Court — for Community Assistance, Recovery and Empowerment — is a cornerstone of California’s latest campaign to address the intertwined crises of mental illness and homelessness on the streets of communities up and down the state, reported The New York Times.

Another piece of the effort is Proposition 1, a ballot measure championed by Gov. Gavin Newsom and narrowly approved by California voters this month. It authorizes $6.4 billion in bonds to pay for thousands of treatment beds and for more housing for the homeless — resources that could help pay for treatment plans put in place by CARE Court judges. 

And Mr. Newsom, a Democrat in his second term, has not only promised more resources for treatment but has pledged to make it easier to compel treatment, arguing that civil liberties concerns have left far too many people without the care they need.

So when Ms. Collette went to court, she was surprised, and disappointed, to learn that the judge would not be able to mandate treatment for Tamra.

Instead, it is the treatment providers who would be under court order — to ensure that medication, therapy and housing are available in a system that has long struggled to reliably provide such services.

“I was hoping it would have a little more punch to it,” Ms. Collette said. “I thought it would have a little more power to order them into some kind of care.” 

Yet it seemed like her only option, so she made the petition and hoped.

CARE Court is Mr. Newsom’s bid to balance the very public and very political problem of homelessness with profound questions about individual rights in a country that for generations forced people with severe mental illness into dangerous, dysfunctional institutions.

Under Gov. Ronald Reagan, California led the country in a national movement to end widespread practice of committing the mentally ill to state institutions. But like the rest of the country, the state didn’t ensure that adequate resources were shifted to community services.

Mr. Newsom, in signing the legislation that set up the new courts, nodded to this history, calling it California’s “original sin.”

That failure helped seed the crisis that plays out in city after city.

The state’s growing homeless population — just over 180,000 people, according to federal statistics, more than a quarter of the nation’s homeless — has city parks and spaces underneath freeway overpasses bulging with encampments, and those clearly in mental distress are a common sight in communities up and down the state.

“Continue to do what you’ve done, and you’ll get what you’ve got,” Mr. Newsom said when he signed the CARE Court legislation. “And look what we’ve got. It’s unacceptable.”

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Israel passes law limiting the Supreme Court’s ability to overturn government decisions

The Israeli Parliament passed a law that limits the Supreme Court’s ability to overturn decisions made by government ministers, completing the first stage of a wider and deeply contentious effort to curb the influence of the judiciary.

The court is now barred from overruling the national government using the legal standard of “reasonableness,” a concept that judges previously used to block ministerial appointments and contest planning decisions, among other government measures.

The enactment of the law is the government’s first victory in a seven-month effort to reduce the court’s power. Previous plans that would have allowed Parliament to overrule the court’s decisions and give the government more sway over who gets to be a Supreme Court justice were suspended by the government in March, after an eruption of street protests, labor strikes and disquiet in the military.

Right-wing ministers and lawmakers took selfies in the parliamentary plenum rule to celebrate their victory. The vote was 64 in favor and zero against, after members of the opposition left the chamber, boycotting the vote they had no chance of winning.

The new law passed despite a similar level of opposition, as well as criticism from the Biden administration. Large parts of the country fear that the legislation undermines the quality of Israel’s democracy and will allow the government — the most ultranationalist and ultraconservative in Israeli history — to build a less pluralist society.

The government and its supporters say that the legislation will in fact improve democracy by giving elected lawmakers greater autonomy over unelected judges, allowing them to more easily carry out the policies that they were elected to enact. The court can still overrule the government using other legal measures.

This disagreement is part of a much wider and long-running social dispute about the nature and future of Israeli society. The ruling coalition and its base generally have a more religious and conservative vision, and see the court as an obstacle to that goal. The opposition tends to have a more secular and diverse vision, and consider the court as a standard-bearer for their cause.

Right-wing ministers and lawmakers took selfies in the parliamentary plenum rule to celebrate their victory. The vote was 64 in favor and zero against, after members of the opposition left the chamber, boycotting the vote they had no chance of winning.

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Virginia court strikes down law prohibiting the sell of handguns to teenagers

A federal judge in Virginia has declared unconstitutional a set of laws and regulations that prohibit federally licensed firearms dealers from selling handguns to 18-to-20-year-olds, finding that the measures violated the Second Amendment, according to the Washington Post.

“Because the statutes and regulations in question are not consistent with our Nation’s history and tradition, they, therefore, cannot stand,” U.S. District Judge Robert E. Payne, who sits in Richmond, concluded in a 71-page opinion.

Gun-control advocates say the decision, if allowed to stand, would significantly increase gun access for a population that research shows is more impulsive and responsible for a disproportionate number of fatal shootings. But attorneys on both sides of the case said they expected the Justice Department to appeal and request a stay, which would prevent Payne’s ruling from taking effect while higher courts weigh the case.

Elliott M. Harding, the attorney who argued to nullify the laws and regulations, said people under 21 years old are, for the moment, not allowed to purchase handguns from licensed dealers because a final order had not been entered. The judge set a May 18 deadline for attorneys to submit recommendations “for future proceedings in this matter.”

Although 18-to-20-year-olds previously could buy handguns in private sales — or have a parent purchase a weapon for them — the decision issued in this case would dismantle a legal framework that for decades has prevented licensed dealers from selling handguns “to teenagers,” said William T. Clark, an attorney with the Giffords Law Center to Prevent Gun Violence, which filed an amicus brief in the case calling for the laws at issue to be upheld.

“It’s a significant decision — we disagree with the outcome,” Clark said, adding that “there is compelling scientific evidence showing that teenagers are more impulsive and face unique elevated dangers from firearms.”

Attorneys in the case noted that 18-year-olds already were allowed to purchase some firearms such as shotguns and rifles — but not handguns sold by the nation’s nearly 53,000 licensed dealers, as tallied by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Payne, who was nominated to the bench by President George H.W. Bush, repeatedly cited the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen, a ruling from the high court’s conservative majority that expanded the right to bear arms last year.

The plaintiff in the Virginia case, John Corey Fraser, was 20 years old when he attempted to buy a Glock 19x handgun from a federally licensed dealer in May 2022 and was turned away, according to the lawsuit he filed last year. He challenged the constitutionality of the Gun Control Act of 1968 and federal regulations from ATF that limit the sale of handguns to adults 21 years and older.

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North Carolina appeals court overrules felony disenfranchisement

Judges have restored voting rights to an estimated 55,000 North Carolinians on parole or probation for a felony, reported The News & Observer.

GOP state lawmakers, who were defending the law in court, plan to appeal the ruling to a higher court. But if the ruling is upheld on appeal, then people convicted of felonies in North Carolina will regain their right to vote once they leave prison.

“Everyone on felony probation, parole or post-supervision release can now register and vote, starting today,” the challengers’ lawyer, Stanton Jones, said in a text message after the ruling came down.

Most U.S. states allow people with felony records to regain their voting rights at some point after leaving prison, according to the National Conference of State Legislatures. Some have the same rules North Carolina had until Monday’s ruling, requiring people to first finish their probation or parole. But a larger number have the rules that the judges have now switched North Carolina to, with people regaining their rights as soon as they leave prison.

It’s the biggest expansion of voting rights in North Carolina since the 1960s, said Daryl Atkinson, co-director of Durham civil rights group Forward Justice and a lawyer for the challengers in this case.

“Our biggest quarrels in this state have been over what groups of people have a voice at the ballot box to be included in ‘We the People,’” Atkinson said at a press conference Monday, later adding: “Today, we enlarged the ‘we’ in ‘We the people’.”

The law’s challengers argued that felon disenfranchisement laws were explicitly created to stop Black people from voting in the years after the Civil War and coincided with a widespread campaign to accuse newly freed Black people of felonies — troubling trends, they said, which have continued into the current day.

Jones said in his opening arguments in the trial last week, The News & Observer reported, that while Black people make up 21% of North Carolina’s voting-age population, they are 42% of the people whose voting rights have been taken away because of this law — “which is no surprise because that’s exactly what it was designed to do,” he said.

If the  ruling survives on appeal, North Carolina will be the only state in the South to automatically restore voting rights to people after they leave prison.

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GOP leaders said Monday that in addition to appealing the ruling, they will also ask for the ruling to be blocked until the appeal is done.

In the meantime, however, the N.C. State Board of Elections said Monday that it would immediately begin updating its website, voter registration forms and other materials to reflect the ruling.

And some advocacy groups are already planning to start educating people with criminal records about the ruling.

“Starting tomorrow, we plan to start a voter registration drive across the state,” said Dennis Gaddy, who founded Community Success Initiative, a Raleigh group that helps former prison inmates rejoin society.

Gaddy’s group was one of several challengers to the law, who said that once people are out of prison, they’ve rejoined society and should have a say in how it’s run. Even if they’re on probation they still can pay taxes and send their kids to school — and thus should be able to vote on the people in charge of spending their taxes or running the schools, they said.

“They can’t advocate for themselves” without being able to vote, Gaddy said. “They can’t advocate for their communities. They can’t advocate for their families.”

In addition to Gaddy’s group, the other challengers in the lawsuit included several individuals on probation or parole and the North Carolina NAACP.

NC NAACP President T. Anthony Spearman said Monday that North Carolina should still go a step further and let all adult citizens vote, even if they’re in prison. Two states, Maine and Vermont, already do that.

“I believe it is immoral to disenfranchise any individual, who is a citizen, the right to vote,” Spearman said. “The states of Maine and Vermont got it right.”

Some other western democracies do allow prisoners to vote as long as they’re citizens, including Israel, Canada and Germany.

GOP DEFENSE OF THE LAW

In court last week the lawyer for the GOP lawmakers defending the law, Orlando Rodriguez, said they agreed with the challengers that the law was rooted in racism when first passed in the 1870s. But state lawmakers substantially updated the rules in the 1970s, he said, to make improvements following the civil rights movement.

“This newer history clearly indicates a trajectory toward improving the ability to have the right to vote,” Rodriguez said, noting that some of the changes made in the 1970s had been proposed by Mickey Michaux, a longtime Durham politician and civil rights leader.

After the ruling Monday, Republican Sen. Warren Daniel of Morganton said he didn’t believe the judges had the authority to issue the decision they did. Daniel, who co-chairs the Senate’s committee on election law issues, said the issue of when felons should regain the right to vote is simply a policy debate that shouldn’t be settled in court.

“If a judge prefers a different path to regaining those rights, then he or she should run for the General Assembly and propose that path,” he said in a written statement to The N&O.

He called the decision a “power grab” and added: “Judges aren’t supposed to be oligarchs who issue whatever decrees they think best.”

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Former Trump attorney Sidney Powell has problems

Sidney Powell is fending off dueling legal fights over her false claims the 2020 election was rigged against President Donald Trump, a balancing act that legal ethics say could put her in a bind, reported The National Law Journal.

In the Eastern District of Michigan, Powell is facing motions for sanctions over a lawsuit she filed seeking to overturn the election results. Separately, Powell is fighting a federal defamation lawsuit from Dominion Voting Systems in Washington, D.C., over statements she made alleging the voting company played a role in causing Trump’s election loss.

On Monday, Powell’s legal team claimed her comments about Dominion are protected because it was political speech and made in furtherance of her “Kraken” lawsuits challenging the election results. All of those lawsuits were thrown out of federal court. 

“Analyzed under these factors, and even assuming, arguendo, that each of the statements alleged in the complaint could be proved true or false, no reasonable person would conclude that the statements were truly statements of fact,” Powell’s attorneys wrote in the motion to dismiss. 

While her attorneys argue the comments were simply legal theories and political commentary, some legal ethics experts say it looks like Powell is trying to have it both ways.

“Ethics rules permit a lawyer to take inconsistent legal positions in different courts at different times on behalf of different clients. But that’s not what we have here,” Renee Knake Jefferson, a law professor with the University of Houston, said in an email. 

“Powell’s defense in the defamation lawsuit undermines her defense in the disciplinary proceeding,” Jefferson said.

Stephen Gillers, a law professor with New York University who studies legal ethics, concurred. “Powell is in a bind,” he said in an email. “If she claims that her statements, though false, could not reasonably be believed and therefore not defamatory, she will risk discipline if she said the same things to a court. There is no ‘political hyperbole’ defense to lying to the court.”

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Court allows bombshell book by President's niece to be published

A New York court lifted a temporary restraining order against the publication of a book by President Trump’s niece, Too Much and Never Enough, enabling publisher Simon & Schuster to continue printing and distributing the explosive insider account by Mary L. Trump, reported The Washington Post.

President Trump’s brother, Robert, filed a petition last week asking that Mary Trump and the publisher be prevented from publishing the book, citing a confidentiality agreement signed by Mary Trump two decades ago as part of a settlement in an inheritance dispute.

A state Supreme Court judge agreed to impose the restraining order to allow the parties to present their arguments next week, raising doubts about whether it would be published.

However, the Supreme Court’s appellate division lifted the restraining order that had been imposed on Simon & Schuster, while leaving in place the one regarding Mary Trump. That effectively enables the publisher to continue distributing copies of the book in preparation for the planned July 28 publication, even as the overall merits of the case are argued.

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Courts postpone majority of operations in Cook County, Illinois

The vast majority of Cook County court operations, both criminal and civil, will be postponed for nearly a month beginning Tuesday as a precaution against coronavirus, the chief judge’s office confirmed, reported the Chicago Tribune.

Courthouses across the county will remain open “though there will be fewer cases,” according to a statement from the office. Regular operations are expected to resume April 15 at the earliest, according to a statement from Chief Judge Timothy Evans’ office.

Attorneys and other court personnel now face the prospect of shuffling around thousands and thousands of criminal cases, from murders to drug possession.

The county court system is not known for its efficiency even in the best of circumstances, and such a delay has the potential to create chaos. Even brief closures last year due to extreme cold weather threw schedules off balance for weeks.

The courts, by design, keep people from all over Cook County in close quarters — in jury rooms, holding cells and courtroom galleries. And such close contact would be expected to accelerate the spread of the disease, officials said.

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Indigent defendants crushed by court costs

Though poor defendants are entitled to be provided legal representation, that does not mean access to the justice system is free, reported the Philadelphia Inquirer.

Court fees — even for indigent defendants — average more than $1,000 per case across Pennsylvania. The median court costs imposed on indigent defendants in the region range from $537 in Philadelphia County to $1,652 in Delaware County, an ACLU of Pennsylvania analysis found. That’s in addition to fines and restitution the court may impose.

For those who spend years on probation or parole, as Hudson did, costs can pile much higher. In addition to assorted fees — $250 for a DNA detection fund, $50 toward the cost of prosecution, $8 for a judicial computer project, $5 for a firearm training fund — he was assessed almost $800 in supervision fees.

In many cases, these costs appear uncollectible: The ACLU found that among defendants poor enough to be assigned public defenders, court costs were paid in full in just 24% of cases over 10 years. Among non-public-defender cases, 54% had paid in full.

“It tends to be the people who are not paying are the ones who have no ability to pay,” Christy said.

In Philadelphia and other counties, public defenders have been campaigning over the last year for judges to waive court costs for indigent defendants, arguing they are obligated to take defendants’ means into account. That question is now before the state Superior Court, which ruled in September that judges did not have to do so — but recently, unprompted, withdrew that opinion, opting to put the question before a judicial panel for further review.

But costs and fines across Philadelphia and its four suburban counties brought in $273 million over the last 10 years, according to the Administrative Office of Pennsylvania Courts — making them a critical part of courts’ budgets.

And, in some local counties, judges routinely impose punishments on people who can’t or won’t pay, generally without distinguishing between the two.

In Delaware County, dockets show some people have been sentenced 10 times or more on a single case, with sentence conditions emphasizing paying fines, court fees, or restitution. In some cases, the judge threatened detention in the event of a single missed payment. In others, judges promised early termination once costs were paid.

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GateHouse: Congress’ unprecedented reliance on the courts

Matthew T. Mangino

GateHouse Media

October 4, 2019

For years Congress and state legislatures across the country have complained about litigiousness. Blasting lawyers for filing lawsuits on a whim just to generate a fee. Legislators on a state and federal level have sought to limit lawsuits alleging personal injury, medical malpractice and products liability.

Lawmakers lament questionable lawsuits that “compromise access to affordable health care, punish consumers by raising the cost of goods and services, chill innovation, and undermine the notion of personal responsibility.”

Yet, the House of Representatives has already become a party to nine separate lawsuits this year, while also filing briefs in support of a handful of other suits. More lawsuits are sure to come as the White House vows not to cooperate with the impeachment inquiry.

According to the New York Times, eight months into the 116th Congress, “the Democrat controlled House is going to court at a tempo never seen before.”

The increase in the litigiousness of Congress is not just a Democrat problem. In 2011, a Republican-led House filed suit to uphold the Defense of Marriage Act, that banned federal recognition of same-sex marriage.

Republican leaders had the opportunity to bring the issue straight to the American people by introducing a resolution on the House floor and allowing members to articulate their support for the Act. Instead they filed suit.

In 2014, the Republican controlled House filed suit over how the Obama administration was implementing the Affordable Care Act. This year, the Trump Administration has refused to defend the Affordable Care Act. In its place, the House has intervened and provided lawyers to argue against the challenge.

Where do the House lawyers come from?

In 1976, House Speaker Tip O’Neill sought to create a House counsel’s office. With O’Neill’s support the office became, as suggested by Tara Leigh Grove in the William & Mary Law Review, “in effect, ... the attorney general of the House.” Grove went on to write, “although the rule states that the House counsel should act ‘without regard to political affiliation,’ and that the Speaker ‘shall consult’ with both the majority and the minority party leaders the counsel’s role has largely been defined by the Speaker.’”

The partisan nature of the House Counsel’s Office explains how Congress, on one hand, could object to the implementation of the Affordable Care Act and, five years later, defended the Act against a legal challenge.

While this unprecedented wave of litigiousness preoccupies House members - right and left - Congress has the audacity to continue to consider legislation to curtail the ability of injured and mistreated individuals from seeking redress.

The House is considering legislation to cap noneconomic damages from a lawsuit at $250,000 and place limits on contingency fees that lawyers can charge in medical malpractice cases.

Federal lawmakers are also considering a measure that would require judges to impose monetary sanctions to reimburse the winning party for reasonable attorney fees and litigation costs attributable to a “frivolous” claim. Both bills will have a chilling effect on individuals pursuing potential claims.

What happens if the White House or other member of the president’s cabinet defy congressional subpoenas? The body that abhors abuse of litigation will, of course, file a lawsuit. Where will that litigation lead?

Charlie Savage, who has written about issues of congressional litigation for the New York Times, said recently, “If the House filed a lawsuit for the (subpoenaed) documents, it will join a long list of disputes that are slowly winding their way through the judicial system. It is not likely, therefore, that Congress will obtain these files anytime soon, if ever.”

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

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'Shooting the bird' at police officer protected speech

If you've ever been tempted to make a rude gesture at a police officer, you can rest assured that the Constitution protects your right to do so, a federal appeals court says, reported NPR.

In the sequence of events described by the court, a woman in Michigan, Debra Cruise-Gulyas, was pulled over in 2017 for speeding. The officer showed leniency, writing her up for a lesser violation known as a nonmoving violation. As she drove away, apparently insufficiently appreciative of the officer's gesture, Cruise-Gulyas made a certain gesture of her own. Or as the court put it, "she made an all-too-familiar gesture at [Officer Matthew] Minard with her hand and without four of her fingers showing."

Minard was not amused. He pulled her over again and rewrote the ticket for speeding. Cruise-Gulyas sued, arguing she had a First Amendment right to wiggle whatever finger she wanted at the police.

In a ruling this week, the U.S. Court of Appeals for the 6th Circuit agreed. "Fits of rudeness or lack of gratitude may violate the Golden Rule," wrote Judge Jeffrey Sutton for the 3-0 panel. "But that doesn't make them illegal or for that matter punishable."

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ICE officers stalking Pennsylvania courthouses

The Philadelphia the United States, Immigrations and Customs Enforcement  (ICE) office is the most aggressive in the country, seizing more undocumented immigrants with no criminal convictions than any other. Courthouse arrests are a key part of its strategy, reported Slate. ICE agents stake out Pennsylvania courts and persuade personnel to reveal the immigration status of plaintiffs, defendants, parolees—anyone with business before a judge. Then they arrest these immigrants, either in the courthouse or just outside it, placing them in detention and thwarting their access to justice.

The Pennsylvania judiciary does not have to be complicit in ICE’s assault on the integrity of its justice system. On Wednesday, the Sheller Center for Social Justice at Temple University Beasley School of Law released a new report detailing the devastating impact of ICE’s tactics on Pennsylvania’s immigrants—and urged the Pennsylvania Supreme Court to halt state courts’ collusion with the agency. Its findings bolsters proposals put forth by the ICE Out of Courts Coalition, a collection of public defenders and immigrant advocates led by Community Legal Services. The Pennsylvania Supreme Court can’t stop ICE from snatching immigrants in their homes, schools, and offices. But it can keep ICE agents out of the courthouses where immigrants have a constitutional right to be.

Unsurprisingly, the Temple report notes that ICE activity in Pennsylvania surged after Trump’s election, partly because the president encouraged officers to target individuals without criminal records. ICE conducted courthouse arrests in at least 13 Pennsylvania counties, most of which have large immigrant populations. Probation officials, meanwhile, regularly collaborate with the agency, telling ICE agents which probationers are undocumented. Some probation officers inform ICE when probationers are scheduled for a check-in—allowing ICE to wait at the courthouse and arrest them when they arrive. Others share probationers’ personal information with ICE so agents can seize them at their homes.

Judges, too, help ICE identify undocumented individuals whose immigration status has nothing to do with their claims before the court. A Cumberland County judge called ICE on a couple seeking to get married because she suspected the groom, who is Hispanic, was undocumented. (He wasn’t, but ICE came to the courtroom and fingerprinted him just to make sure.) A Lancaster County judge pressed a defendant about his immigration status during a traffic hearing; when he acknowledged that he was undocumented, the judge had him jailed and asked a police officer to notify ICE. Chester County judges have asked individuals with “Spanish surnames” about their immigration status in an effort to identify undocumented immigrants to report.

The Temple study’s authors implore the Pennsylvania Supreme Court—which promulgates rules for the state judiciary—to convene a task force to craft a response to ICE’s assault on courthouses. Luckily, the ICE Out of Courts Coalition has already proposed a number of sensible policies for the courts to adopt. Among other things, the coalition has called on the courts to prohibit immigration arrests at courthouses, including their “outlying premises”; to prohibit collusion between ICE and court personnel; and to compel ICE officers to identify themselves upon entering a state courthouse.

In 2018, the Pennsylvania Supreme Court proved it was not afraid to take bold action to safeguard individuals’ rights under the state constitution, striking down a GOP gerrymanderdespite a relentless assault by Republican lawmakers. Its progressive majority should not back down from a fight with Trump’s deportation machine. The justices do not have to stand idly by as the Pennsylvania judiciary becomes a stalking ground for ICE agents. They have the power to stop ICE’s immigrations arrests at state courthouses. And Pennsylvania’s victimized, vilified immigrants have nowhere else to turn. 

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Courtroom ID's, the 'Perry Mason Moment' losing steam

It’s one of the oldest courtroom gambits in America, the Perry Mason moment: a prosecutor in a criminal trial asks a key witness if he sees the person who committed the crime anywhere in the room. Pause. The witness turns and points to the defendant, as the jurors take it all in. 

But this enduring practice, dating back to colonial courthouses, has come under fire in the last few years as an often unreliable tool that has no place in a 21st century trial, reported The Marshall Project.

Citing a vast body of research on the fallibility of eyewitness testimony in general, questions are now being raised specifically about in-court identification. Some experts say the tactic is unduly suggestive, ineffectively tests a witness’s memory, and provides more theatrical flourish than probative evidence. They also say that the process leaves room for error.

Massachusetts and Connecticut have already limited the use of this approach. In both states, the main concern was that the witness in the courtroom was making the identification for the first time, and had not previously picked the defendant out of a standard lineup or photo array. In some cases, the witness may be making the courtroom identification weeks—or even years—after the crime took place.

A 2016 state supreme court decision in Connecticut held that witnesses cannot be asked for an in-court identification unless they knew the defendant before witnessing the crime or have already successfully identified the defendant in an out-of-court procedure, or the perpetrator’s identity is not contested.

In Massachusetts in 2014, the state’s top court largely banned the practice for cases in which witnesses had been anything short of unequivocal in identifying the defendant before the trial. It’s possible that Colorado will soon be joining them.

The push to restrict in-court identification began roughly five years ago with efforts by The Innocence Project, a nonprofit legal organization that seeks to exonerate the wrongly convicted. The group, which hopes to continue its efforts around the country, has kept data on DNA exonerations in the U.S. since 1989. It reported that 71 percent of those wrongful convictions have involved some kind of mistaken eyewitness identification, both in and out of court. Of that 71 percent, more than half involved an incorrect in-court identification.

Innocence Project lawyers contend that first-time in-court identification increases the risk of wrongful conviction. They argue that the powerful theatrics of pointing to the defendant can sometimes overcome the shortcomings of a weak case.

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GateHouse: Punishment for punishment’s sake won’t solve problems

Matthew T. Mangino |

GateHouse Media

May 5, 2017

America incarcerates more people for longer periods of time than any other country in the world.

Why?

To answer that question it is imperative to determine how men and women end up in jail and prison. Generally, judges sentence individuals convicted of a crime to a period of incarceration. The time spent behind bars is punishment.

Any meaningful effort to address the nearly 2.2 million people incarcerated in this country would need to examine the reasons why judges sentence people to jail and prison.

The theory behind punishment is supposed to be more than an “eye for an eye.” Most sentencing schemes across the country incorporate four theories into sentencing — incapacitation, deterrence, retribution and rehabilitation.

Incapacitation is the simplest and maybe the most sinister theory of punishment. If an offender is incarcerated he or she cannot commit more crimes while locked up. If we took everyone inclined to commit a crime off the street we would have fewer crimes and fewer people on the street.

There is no question that incapacitation reduces crime rates by some unknown number. The problem is that it is very expensive. Incapacitation carries high costs not only in terms of building and operating prisons, but also in terms of disrupting families and diminishing communities and neighborhoods — continuing the cycle of crime.

Is incapacitation worth the cost? Sure, a violent offender who has multiple offenses should be incapacitated. Should a chronic shoplifter or drug user be incarcerated? They may be a nuisance, but are they a danger?

Does punishment deter crime? Those opposed to the death penalty say absolutely not. A number of states with the death penalty have higher homicide rates than states without the death penalty. If the harshest penalty imaginable does not deter crime, how can a period of incarceration?

Generally, supporters of deterrence suggest that punishment deters crime if it is swift and certain. They also point to the distinction between general deterrence and specific deterrence. General deterrence uses the person sentenced for a crime as an example to induce others to refrain from crime, while specific deterrence punishes an offender to dissuade that offender from committing crimes in the future.

Recidivism rates of former prisoners seems to challenge the effectiveness of specific deterrence. There are limits to the impact of general deterrence as well.

Do offenders think about the consequences of their conduct? General deterrence would make sense if an individual did a cost benefit analysis before committing a crime. Something like this, “If I rob the mini-mart I could go to prison for 5 years — but if I get away I could make $5,000.” That scenario is unlikely. Most crimes are impulsive, such as crimes of passion and crimes committed while under the influence of drugs or alcohol. Those crimes cannot be deterred.

The theory of retribution suggests that the severity of punishment should be proportionate to the seriousness of a crime. Retribution is a subjective, backward-looking theory of punishment. The criminal justice system has a difficult time in matching punishments and crimes. How does a court uniformly determine the moral depravity of a crime or the impact of a specific punishment on a specific offender?

Finally, and often overlooked or minimized, is rehabilitation. Correctional interventions — such as drug-treatment or cognitive restructuring — seek to change the conduct and thinking of offenders. Rehabilitation is a forward looking theory of punishment.

Unfortunately, the cost of rehabilitation, inside and outside of prison, is a hard sell. With inadequate funding, correction officials, prosecutors, judges and legislators never get to see the full potential of rehabilitation.

Does society have another viable option? Punishment for punishment’s sake is costly and all but a small percentage of inmates will get out of prison someday. Society would benefit immensely if those inmates were prepared to reenter society as productive, law-abiding citizens and only rehabilitation has the promise to make that happen.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C.

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