Court refuses to scrutinize the 'trial penalty'

A Washington federal judge refused an opportunity to shed light on the “trial penalty”—the consequences defendants face when they choose to go to trial reported, The National Law Journal.
Attorneys sought to unseal a PowerPoint presentation that prosecutors prepared in the case against Kevin Ring, a former lobbyist convicted in the Jack Abramoff scandal.
A jury convicted Ring in late 2010 of trading things of value—including meals and trips—in exchange for favors from public officials. It was his second trial. A jury hung following his first trial in 2009. Ring is serving 20 months in prison.
Ring’s lawyers at Miller & Chevalier asked the court in December to unseal portions of a PowerPoint document the government used during a reverse proffer session—a meeting where the government tells a defendant about the case to force a decision over whether to plea or go to trial. Ring’s lawyers argued there was a strong presumption in favor of public access to judicial proceedings and court records.
The presentation, Miller & Chevalier partner Andrew Wise wrote, would educate public interest groups, academics and others “about how pleas and charging decisions can work and how prosecutors’ actions can affect the criminal justice process.”
But U.S. District Judge Ellen Segal Huvelle noted in her June 10 decision that the PowerPoint presentation was never filed with the court; it was provided to Ring and his lawyers before Ring was indicted in September 2008. As a result, the judge said, the presumptive right of public access didn’t apply.
“A document is part of the judicial record if it is filed with the court and plays a role in the adjudicatory process,” Huvelle wrote. “If a document is not filed with the court, it is not part of the judicial record and is not subject to a common law right of access.”
Wise declined to comment.
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Mangino talks OJ Simpson on WFMJ-TV

Watch my interview on WFMJ Weekend Today about the 20th anniversary of the OJ Simpson arrest and trial.  Click here to watch the interview. Then scroll through Weekend Today Videos.

Connecticut sentences man to death after repealing the death penalty

In 2006, Richard Roszkowski murdered a 9-year-old girl. He shot her three times as well as killing two adults.
Last month, a Connecticut judge sentenced Roszkowski to death for the crimes — despite the fact that the state eliminated the death penalty in 2012, reported NPR.
"This is a terrible sentence," Judge John Blawie said at the sentencing hearing. "But it is in truth, sir, a sentence you wrote for yourself on Sept. 7, 2006."
The penalty left Connecticut in an interesting situation. Three states — Connecticut, New Mexico and Maryland — have abolished the death penalty, but only for those crimes committed after the repeal was passed.
According to the Death Penalty Information Center, Connecticut is the only state to have sentenced someone to death after repealing the death penalty. The state supreme court is considering whether that is unconstitutional.
Kevin Kane, the state's top prosecutor, says "it's not really complicated." He thinks lawmakers didn't leave any room for interpretation.
"They very clearly and very recently voted that the death penalty should apply, or does apply, to any case committed before April of 2012. We can't say, 'Well, gee, they repealed it, so it must mean that it can't be sought anymore.' "
This means the death penalty could still be used for the 11 people on Connecticut's death row, as well as for anyone who may have committed a crime before the repeal in 2012.
While he says there is no ambiguity in the law, Kane originally counseled the state legislature against such a prospective repeal. He told lawmakers that he wouldn't seek the death penalty for a hypothetical crime that occurred the day before the repeal became effective. Doing so would seem arbitrary, he said, and he wouldn't feel right doing it.
But now, the law is the law. "We've taken an oath to uphold the law as the legislature passes it, and that's our obligation," Kane says.
Kane says the legislature is a direct expression of the voice of the people. Yet Connecticut's record is another expression of the state's attitude toward capital punishment. Even when it had the death penalty, Connecticut rarely executed people – putting only one person to death in more than 50 years.
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GateHouse: Prisons, America’s ‘new asylums’

Matthew T. Mangino
GateHouse News Media
June 13, 2014
A new report by the Treatment Advocacy Center, “The Treatment of Persons with Mental Illness in Prisons and Jails,” has found that the number of individuals with serious mental illness in prisons and jails now exceeds the number in state psychiatric hospitals by a factor of 10.

In 2012, there were an estimated 356,268 inmates with severe mental illnesses in U.S. prisons and jails. There were only 35,000 mentally ill individuals in state psychiatric hospitals.

The report suggests that prisons and jails have become America’s “new asylums.”

“In 44 of the 50 states and the District of Columbia, a prison or jail in that state holds more individuals with serious mental illness than the largest remaining state psychiatric hospital,” according to the report prepared by the TAC, a nonprofit organization dedicated to the timely and effective treatment of severe mental illness.

Mental health agencies are not the only entities sounding the alarm. Cook County, Illinois, Sheriff Tom Dart says that society has cast aside the mentally ill, which is the primary reason why prisons are overcrowded in his state.

According to the Chicago Defender, the Cook County Jail is currently the largest mental health facility in the U.S. with 30-35 percent of its 9,000 daily population living with a serious mental illness.

“Society doesn’t want to fund mental health [programs],” said Dart.

Bob Carolla, a spokesman for the National Alliance on Mental Illness, told the Defender that people will end up in the prison system if they don’t have access to “adequate and effective” mental health treatment.

“In [the] last few years we’ve seen massive state budget cuts in mental health services, so that makes the problem only greater, with more people being funneled into jail,” he said.

Untreated psychiatric illness often gets worse. The problems are not just inside the prison walls. Many inmates with mental health problems leave prison more unstable than when they entered. The treatment of inmates with mental illness can be very costly and is often a strain on corrections’ budgets.

Just as important, inmates who are transitioning back into the community need to have immediate and seamless mental health services. Without adequate treatment the results can be catastrophic.

Last weekend, a Brooklyn, New York, man, with a history of psychiatric commitments, was accused of stabbing two children in an elevator. Investigators indicated that he may not have connected with mental health services after being released from prison on May 23.

Brian Stettin, policy director of the TAC, told CBS News, “You can’t just drop someone with severe mental illness into the community and expect they’re going to find their way to treatment.”

Last December, President Barack Obama told an audience at the National Conference on Mental Health, “[L]ess than 40 percent of people with mental illness receive treatment … even though three-quarters of mental illnesses emerge by the age of 24, only about half of children with mental health problems receive treatment.”

Why?

It is extremely difficult to find a bed for a seriously mentally ill person who needs to be hospitalized. In 1955 there was one psychiatric bed for every 300 Americans. In 2005 there was one psychiatric bed for every 3,000 Americans.

According to the TAC’s report, “one of the driving forces behind the closure of state mental hospitals and subsequent transinstitutionalization of mentally ill individuals from hospitals to prisons and jails has been a belief that it saves money.”

Those savings may be illusory.

The TAC makes a cogent argument for unbiased cost assessments that identify the comprehensive expense of incarcerating mentally ill individuals and provide public officials with a more accurate basis for making mental illness treatment policy.

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

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SCOTUS will not hear Miller v. Alabama retroactivity issue

The U.S. Supreme Court has declined to hear an appeal by juvenile-justice advocates to revisit the sentences of juveniles sentenced to life without parole, reported the Philadelphia Inquirer. "We are obviously disappointed," said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center.  This week's developments are rooted in a complex legal history.

In June 2012, the Supreme Court ruled in Miller v. Alabama that children under 18 convicted of homicide could no longer receive mandatory sentences of life without parole. Such automatic sentences, the court found, are unconstitutional, violating the Eighth Amendment's prohibition against cruel and unusual punishment. Life sentences for juveniles committing murder are allowable; they just cannot be mandatory.
The court said children cannot be blamed the same way adults can, since juveniles do not fully weigh risks, are prone to peer pressure, and do not possess completely developed brains. The court also said juveniles have "greater prospects for reform" than adults.The ruling caused confusion, however. While it said that juveniles committing murder could not receive mandatory sentences of life without parole in 2012 and beyond, it did not address inmates already serving such sentences.
In October 2013, the Pennsylvania Supreme Court stepped into the void. In Cunningham v. Pennsylvania attorney's argued that the U.S. Supreme Court's ruling could not be applied retroactively. Anyone given a mandatory sentence of life without parole who had exhausted all appeals by 2012 would not fall under the federal ruling, the state court said. Advocates were troubled by the notion that the year a person was sentenced would determine whether he or she would face life without parole."The vagaries of timing should not determine if a juvenile should spend the rest of his or her life in prison with no possibility of parole," according to a Juvenile Law Center statement last year.
The center, along with the Defender Association of Philadelphia, appealed the Pennsylvania decision to the U.S. Supreme Court. Monday's nondecision was the result. "This is a surprise, and not a very good one," said Bradley Bridge, an assistant defender with the association. "It's puzzling. "Bridge said Pennsylvania had become the third state to say the U.S. Supreme Court ruling is not retroactive. Six states have gone the other way. Such a split cannot stand for long, said Emily Keller of the Law Center. Bridge agreed, saying it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas [one of the six states that allows the ruling to be retroactive] gets relief. That is not a just result."
At some point, Keller and Bridge said, the U.S. Supreme Court will have to make a ruling that will stand for every state.Hugh Burns, chief of the appeals unit of the Philadelphia District Attorney's Office, agreed that "it's not fair" that "those who take a life after a certain date get a break others do not." But, he added, "law is all about line drawing." More important, Burns said, he takes issue with the U.S. Supreme Court's saying that a juvenile's young brain can't determine right from wrong."The idea that a person's brain isn't developed to understand that murdering someone is wrong and subject to serious penalty is to me very odd," he said.
Pennsylvania has more than 500 people convicted as juveniles and given mandatory life sentences - 300 of them from Philadelphia, advocates say. The United States is the only country that doles out mandatory life sentences to juveniles. And Pennsylvania has 25 percent of such offenders, advocates say - more than any other state or nation.

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