Leading crime academics take issue wiith Trump administration's rejection of science

In an unusual move, the American Society of Criminology (ASC), the nation’s leading academic organization in the field, has taken a shot at the administration of President Donald Trump, wrote Ted Gest for The Crime Report. The ASC’s executive board issued a statement declaring that his administration’s early actions and assertions on criminal justice “demonstrate an incongruity between administrative policy efforts and well-established science about the causes and consequences of crime.”

ASC leaders have made suggestions to previous administrations but not in recent memory has the group issued a broad criticism of a U.S. president. The group’s board said it is “concerned by the actions of the Trump administration in its dissemination of misinformation and development of uninformed policy initiatives. Not only are these initiatives unscientific, they are likely to engender further cynicism about and discontent with the criminal justice system that is harmful to citizens, to members of law enforcement, and to other sources of social control.”

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Capital punishment continues its death spiral

The use and support of the death penalty in the United States has steeply declined to levels unheard of in decades. Reported the Los Angeles Times.

Capital punishment is still legal in most states. But, while activists and experts say it is far-fetched to expect it to be banned nationwide any time soon, they say the momentum against it is strong.

“Practically speaking, the death penalty is in its last days. But like any disease that’s rendered obsolete by modern medicine, it has a few flareups before the end,” said Eric Freedman, a law professor at Hofstra University. “The long-term trend toward its extinction is pretty clear and pronounced.”

The number of annual executions in the U.S. hit a high of 98 in 1999. Last year, the number was 20. The last time it was that low was in 1991, when 14 people were executed.

If all the scheduled executions this year are carried out, 25 Americans will be put to death, according to the Death Penalty Information Center. The Washington-based nonprofit is critical of the death penalty.

Seven states have or are scheduled to carry out executions, according to the center: Texas, Virginia, Missouri, Arkansas, Ohio, Georgia and Alabama.

“It is a phenomenon now of a few counties in a few states,” said Freedman. “The vast majority of the country is living in counties where there hasn’t been an execution for decades.”

More Americans support the death penalty than those who are against it. But surveys over the years show that opposition is increasing and support is declining.

According to the most recent Pew Research Center poll, 49% of Americans support the death penalty for people found guilty of murder. At the same time, 42% of Americans are against it. The gap in part depends on political party. Only 34% of Democrats favor the death penalty, compared with 72% of Republicans.

Experts say the decline can be attributed to a variety of factors, including well-publicized cases of people who were sentenced to death and then exonerated.

One recent such case was in Delaware in January, when Isaiah McCoy, a 29-year-old on death row for murder, was released from prison after being found not guilty in a second trial.

“When people find out real people are sentenced to death even though they are not guilty, people start struggling to support executions,” said Rob Smith, director of Harvard Law School’s Fair Punishment Project, which has argued against the Arkansas executions, saying the trials of the men on death row were full of “legal deficiencies.”

It’s not just that fewer people are being executed. Generally speaking, fewer people are being sentenced to death.

Death sentences hit a high in 1996, when 315 Americans were condemned to die, according to the Death Penalty Information Center. The decline has been steady since. Last year, 30 people were sentenced to death.

“The vast majority of prosecutors these days will never even seek the death penalty,” Smith said. One reason, he said, is that jurors are less likely to be sold on it. Life sentences without parole, Smith said, are seen as better options.

Some district attorneys and state attorneys general have gone a step further, promising to not push for death sentences.

One of them is Dist. Atty. Aramis Ayala of Orlando, Fla., who vowed last month not to seek the death penalty in her cases. “I am prohibited from making the severity of my sentences the index of my effectiveness,” she said in a statement. “What has become abundantly clear through this process is while I currently do have discretion to pursue death sentences, I have determined that doing so is not in the best interests of this community, or in the best interest of justice.”

Governors of several states, including Washington, Oregon and Colorado, have also imposed moratoriums on the death penalty while they are in office.

The Republican governor of Arkansas, Asa Hutchinson, defended his state’s string of planned executions this month by saying it needed to carry them out before one of its drugs used in lethal injections expired.

“It is uncertain as to whether another drug can be obtained,” Hutchinson said in a statement.

The drug in question is midazolam, a sedative that’s part of a three-drug cocktail the state uses in lethal injections. The drug has been tied to several faulty executions, including those in Oklahoma; Arkansas’ supply expires at the end of April.

Another drug the state uses in executions is vecuronium bromide, a muscle relaxer. McKesson Corp., a medical supplier that sold the drug to Arkansas, took the state to court over it. The company says Arkansas purchased the drug, which McKesson says is intended only for medical use, under false pretenses.

The controversy over execution drugs goes beyond Arkansas and extends to the federal government.

In one example, the Texas prison system filed suit this month against the Food and Drug Administration, which seized 1,000 vials of an execution drug whose importation was banned in 2015. The state purchased the drug, sodium thiopental, from India, and the FDA wants it shipped back or destroyed. The Texas Department of Criminal Justice argues that law enforcement agencies are exempt from the ban.

Outside of Arkansas and Texas, several other court cases over the death penalty are looming.

In Cincinnati, the U.S. 6th Circuit Court of Appeals is scheduled in June to have the full court consider whether Ohio’s use of a three-drug cocktail in lethal injections is unconstitutionally cruel and unusual punishment. Earlier, a three-judge panel in the appeals court had upheld a stay that kept the state from using the procedure in executions.

In California, the Supreme Court is expected to decide this summer on challenges to a voter-approved proposition that reduces the time allowed for appeals of death sentences. The new rule was intended to speed up executions in the state, where there are nearly 750 people on death row. The state is considered a "symbolic" death penalty state because capital punishment is legal but has not been used since 2006.

States are also reconsidering their use of the death penalty.

In Oklahoma, a state commission said this week that a moratorium on the death penalty should be extended until the system for carrying out sentences is changed so that innocent people do not die.

“Ultimately we found that there are many serious systemic flaws in Oklahoma's death penalty process that obviously can and have led to innocent people being convicted and put on death row,” former Oklahoma Gov. Brad Henry, who is on the Oklahoma Death Penalty Review Commission, said in a statement. Henry, a Democrat, was governor for two terms when dozens of executions were carried out between 2003 and 2011.

The state had been under scrutiny since a series of botched executions, and it imposed a moratorium in 2015 after the wrong drug was used in one. In a high-profile 2014 execution, inmate Clayton Lockett was struggling for 43 minutes on the gurney after a lethal injection before he finally succumbed.

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Trumpcare considers rape a pre-existing condition

About 24 million Americans stand to lose their health insurance coverage if the Affordable Care Act (ACA-Obamacare) is replaced with the American Health Care Act (AHCA Trumpcare). We know that most of those 24 million people will be low-income.

We also know that groups of people who experience significant health care disparities, such as lesbian, gay, bisexual and transgender (LGBT) people, and Black and Latino people, will be among those who risk losing the most if the ACA is repealed. To that list, we must add survivors of sexual violence.

Before passage of the ACA in 2010, sexual assault survivors who had sought medical care for their injuries could be denied health insurance coverage at a later date. The reason? Health insurers often categorized rape as a pre-existing health condition. 

The National Women’s Law Center launched a campaign called “Being a Woman Is Not a Pre-Existing Condition.” It was so popular that then-House Speaker Nancy Pelosi adopted the phrase in her pro-health reform talking points with media, and the New York Times ran an explainer on the ways in which health insurers treated women as if they were just one giant pre-existing condition.

The AHCA initially retained the ACA’s ban on discrimination against people with pre-existing conditions. But an amendment to the Trumpcare bill offered last week by New Jersey Congressman Tom MacArthur and North Carolina Congressman Mark Meadows would make it easier for health insurers to deny coverage to people with pre-existing conditions.

By letting states waive the ACA prohibition on charging people with pre-existing health conditions higher premiums, protections for those who’ve previously been medically treated for sexual assault would be gutted.

Perhaps more alarming, though, is the MacArthur-Meadows amendment’s provision allowing states to also seek waivers from the ACA’s requirement that essential health benefits be covered by health insurance plans. Essential health benefits include preventive health care services that most of us take for granted. These include tests for blood pressure and cholesterol, mammograms, and vaccinations. Essential health benefits also include coverage for mental health care and substance abuse treatment.

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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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Woman convicted of "laughing" at Sessions confirmation hearing--could go to jail

A jury convicted a Virginia woman who was charged with disrupting the confirmation hearing of Jeff Sessions as attorney general after she laughed during the proceeding, reported the Boston Globe.

The woman, Desiree A. Fairooz, an activist with the group Code Pink, was found guilty of the two charges she faced: disorderly conduct and parading or demonstrating on Capitol grounds.

The jury also convicted two other activists in the group she was with, Tighe Barry and Lenny Bianchi, who were dressed as Ku Klux Klan members with white hoods and robes and stood up before the Jan. 10 hearing started. They were acquitted on a count of disorderly conduct but were convicted on two separate charges of parading or demonstrating, Barry said.

The verdicts were returned shortly after noon Wednesday. A two-day trial in US Superior Court in Washington ended Tuesday. All three face up to 12 months in prison.

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Fairooz, 61, of Bluemont, Va., said she was “really disappointed.” She said her lawyer, Samuel A. Bogash, would file post-trial motions seeking to set the verdict aside. She said it was too early to discuss an appeal.

“We’ll face that music when we get to that,” Fairooz said.

She added that she would continue to protest.

“I’m so disgusted with so many different aspects of our current government,” she said.

A spokesman for the US Attorney’s Office in Washington did not immediately return a call and e-mail seeking comment.

It was early in the hearing when Senator Richard Shelby, Republican of Alabama, said that Sessions’ record of “treating all Americans equally under the law is clear and well-documented,” Ariel Gold, the campaign director of Code Pink, said Wednesday.

Fairooz said that, on hearing that, she let out a giggle.

“I just couldn’t hold it,” she said Wednesday. “It was spontaneous. It was an immediate rejection of what I considered an outright lie or pure ignorance.”

She said when officers came over, she expected to be warned or told to shush and was surprised to be taken into custody.

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Plea bargains dominate system, beyond a reasonable doubt applies to few defendants

Ninety-seven percent of federal cases are settled the way Church’s was, by plea bargain. State-level data suggest similar numbers nationwide, reported The Atlantic. Though access to a public trial is enshrined in the Sixth Amendment, taking a plea forecloses that possibility. “This constitutional right, for most, is a myth,” U.S. District Judge John Kane wrote in 2014—one voice among a chorus of jurists, advocates, and academics all calling for reform. Some want tweaks to the regulation and oversight of pleas; others urge more ambitious overhaul of the way trials are conducted, streamlining the process to make it accessible to greater numbers of people.

Plea bargains were almost unheard of prior to the Civil War. Only in its aftermath, as waves of displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate courts start documenting exchanges that resemble the modern practice. The plea became a release valve for mounting caseloads. Appellate courts “all condemned it as shocking and terrible” at the time, said Albert Alschuler, a retired law professor who has studied plea bargains for five decades. The courts raised a range of objections to these early encounters, from the secretiveness of the process to the likeliness of coercing innocent defendants. Pleas, wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all, distinguishable in principle from a direct sale of justice.”

Ninety-seven percent of federal cases are settled the way Church’s was, by plea bargain. State-level data suggest similar numbers nationwide. Though access to a public trial is enshrined in the Sixth Amendment, taking a plea forecloses that possibility. “This constitutional right, for most, is a myth,” U.S. District Judge John Kane wrote in 2014—one voice among a chorus of jurists, advocates, and academics all calling for reform. Some want tweaks to the regulation and oversight of pleas; others urge more ambitious overhaul of the way trials are conducted, streamlining the process to make it accessible to greater numbers of people.

Plea bargains were almost unheard of prior to the Civil War. Only in its aftermath, as waves of displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate courts start documenting exchanges that resemble the modern practice. The plea became a release valve for mounting caseloads. Appellate courts “all condemned it as shocking and terrible” at the time, said Albert Alschuler, a retired law professor who has studied plea bargains for five decades. The courts raised a range of objections to these early encounters, from the secretiveness of the process to the likeliness of coercing innocent defendants. Pleas, wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all, distinguishable in principle from a direct sale of justice.”

This final rationale raises tough moral questions, which were perhaps best articulated by Chief Justice Warren Burger in 1971: “An affluent society ought not be miserly in support of justice, for economy is not an objective of the system,” he wrote. The court, in other words, should prioritize its profound responsibility to sort the guilty from the innocent over the efficient dispatch of criminal defendants. (“Miserly” may be how Church would describe the state’s dealings with him in Missouri; he’s involved in a class-action lawsuit that argues its understaffed public-defender system doesn’t provide sufficient legal

Reformers are exploring two avenues to make plea bargaining either more accountable or less common: The process could be altered to afford defendants more protection, or the jury trial could be simplified to ensure more people take advantage of this right.

“Plea bargaining in the United States is less regulated than it is in other countries,” said Jenia Turner, a law professor at Southern Methodist University who has written a book comparing plea processes in several U.S. and international jurisdictions. As a result, states are independently adopting measures to inject the process with more transparency here, more fairness there. In Connecticut, for example, judges often actively mediate plea negotiations, sometimes leaning in with personal opinion on an offer’s merit. In Texas and North Carolina, along with a few other states, both sides share evidence prior to a plea.

Turner suggests that replicating some of these practices across state lines, or standardizing the plea process nationally, could go a long way to equalizing the power between defendants and prosecutors. She also argues that agreements should be recorded in writing, and that sentencing discounts for pleading guilty should be nonnegotiable. In the United Kingdom, for instance, sentence reductions in exchange for a guilty plea follow strict schedules based on when the plea is entered.

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Houston bail system unconstitutional, punishes the poor and favors the wealthy

A federal judge has found that Houston's bail system is unconstitutional, according to the Houston Press.

U.S. District Judge Lee H. Rosenthal issued her decision in a sweeping 193-page ruling, finding that the plaintiffs had a high chance of proving at trial that the county's bail system is unconstitutional. The plaintiffs—Civil Rights Corps, Texas Fair Defense Project and Houston law firm Susman Godfrey, representing all indigent misdemeanor defendants—had charged that Harris County's bail system punishes the poor and favors the wealthy because bail hearing officers fail to consider people's ability to pay bail, as the Constitution requires. Instead, plaintiffs claimed, they set bail based on an arbitrary bail schedule and often ignored recommendations to release non-violent people on personal bonds.

"Misdemeanor arrestees are often...people 'living on the edge at the point in their lives that intersects with getting involved in an arrest,'" Judge Rosenthal wrote in closing. "In Harris County, they may be homeless. They may lack family, friends, and [people in their lives willing to bail them out]. Some are, no doubt, of bad reputation and present a risk of nonappearance or of new criminal activity. But they are not without constitutional rights to due process and the equal protection of the law."

Here's how the new system will work under the preliminary injunction: Rosenthal has ordered that Harris County will be required to interview all misdemeanor arrestees about their financial conditions at the Houston jail and Harris County Jail. At the very first probable cause and bail hearing, if the person is eligible for release (i.e., has no other holds, isn’t charged with domestic violence or needing to undergo a mental competency exam), they are required to be released on unsecured money bond if they haven’t already bailed out the normal way. The difference is, normally to bail out, people have to pay up front; now, they’ll only have to pay if they don’t show up for court.

Judges can also order supervision tools such as GPS monitoring or drug testing if necessary. If the first hearing doesn’t happen within 24 hours of arrest, then the sheriff is required to release people from jail on a personal bond without any upfront payment.

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