Gov. Wolf signs criminal justice reform package

After three years of bipartisan compromise, Pennsylvania Gov. Tom Wolf signed into law a pair of bills that aim to cut incarceration costs and reinvest savings in county probation offices, reported the Pennsylvania Capital-Star.

The bills, known collectively as Justice Reinvestment Initiative 2, are expected to reduce state prison populations by 600 inmates over the next five years, saving taxpayers an estimated $48 million in corrections costs. 

“These important pieces of legislation will cut red tape, reduce bureaucracy and result in savings of time and money,” Wolf said at a ceremony Wednesday, where he was joined by a bipartisan cadre of lawmakers from the House and Senate. “We will reinvest those savings into criminal justice programs that reduce recidivism, increase public safety, and better serve victims of crime.”

One bill sponsored by Sen. Tom Killion, R-Delaware, amends state sentencing guidelines to make it easier for people with addiction to enter State Intermediate Punishment. The diversionary sentencing program lets people convicted of non-violent crimes that were motivated by drug or alcohol addiction serve the majority of their sentences in treatment centers and in their home communities.

Diana Woodside, policy director for the Department of Corrections, told the committee that the program is “extremely underused” but has “extraordinary outcomes.”

Between 2005 and 2006, more than 25,000 inmates in Pennsylvania “appeared eligible” for state intermediate punishment, according to a Corrections department report. But only about a quarter of all them were referred for a program evaluation.

As a result, fewer than 5,600 inmates enrolled in the program from 2005 to 2016. Each participant saved Pennsylvania more than $33,000 in corrections costs. And its graduates had lower re-arrest rates than comparable offenders in the general prison population.

Offenders sentenced to intermediate punishment serve a maximum of 24 months, seven of which are spent in prison. They must also spend time in out-patient treatment and community therapeutic centers before being released into the community, where they’re monitored by Department of Corrections staff.

Under current policy, an inmate can only enter the program if they’re referred by a judge prior to sentencing and pass a Corrections evaluation. Once that evaluation in complete, they’re referred back to a judge for sentencing.

Killion’s proposal would streamline that process. It would require sentencing judges to evaluate all offenders to see if they meet the statutory requirements for the state intermediate punishment program.

Judges would have to note the offender’s eligibility status on their sentencing orders, and all who appear eligible will undergo an enrollment evaluation once they’re in a Corrections facility. Offenders who pass the evaluation will be admitted to the intermediate punishment program as they begin to serve out their sentence.

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Mississippi man tried 6 times for same murders released on bail

Curtis Flowers was was tried six times for the 1996 murders of four people in the Tardy Furniture store in Winona, Mississippi. He was released  on bail this week after 23 years of incarceration. Flowers was the recent subject of a Supreme Court case regarding racial bias in jury selection.

While the Supreme Court overturned his latest conviction and death sentence, grand jury indictments for four charges of capital murder remain in place, reported Brianne Bell of Jurist. An anonymous donor posted 10 percent of $250,000 bail required. Flowers will be electronically home monitored and remain in his home, with an exception for medical treatment.

In the motion to set reasonable bail, Flowers said that he has endured two hung juries and the Mississippi Constitution requires bail. Flowers has filed a motion to dismiss his case and a request for the removal of Doug Evans, the recently re-elected District Attorney.

The NAACP has filed a lawsuit against Evans to enjoin him and his office from using peremptory strikes against prospective black jurors based on their race.

Flowers’ plight was brought to national attention as the subject of season two of the In the Dark podcast.

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750 historians sign statement supporting impeachment of President Trump

Sean Wilentz, a professor of American history at Princeton, working with Brenda Wineapple,

the author of a recent book on President Andrew Johnson’s impeachment, drafted a statement regarding the impeachment of President Trump and sent it to a long list of historian.

The resulting text — which they shared for the first time with this newsletter tonight — now has over 750 signatures from historians across the nation, including some of the field’s most well-known figures: Robert Caro, Ken Burns and Ron Chernow, reported the New York Times, Impeachment Briefing.

“President Trump’s numerous and flagrant abuses of power are precisely what the Framers had in mind as grounds for impeaching and removing a president,” the statement says. “The President’s offenses, including his dereliction in protecting the integrity of the 2020 election from Russian disinformation and renewed interference, arouse once again the Framers’ most profound fears that powerful members of government would become, in Hamilton’s words, ‘the mercenary instruments of foreign corruption.’”

The statement “is a form that historians and others have used over the decades to express collective opinions. It’s a kind of petition to the public,” Mr. Wilentz said. “We have a civic role, as keepers in some ways of the nation’s heritage, as people who have devoted our lives to studying this country.”

Ms. Wineapple said the text is also a reminder of how much a scholar can influence how others think about current events.

“If a historian is an educator, that person walks into a classroom and faces questions from young people. If a historian is a writer, one is talking not just to other like-minded historians, but to the public,” she said.

The idea has company: Over 850 legal scholars signed a letter earlier this month arguing that the president had engaged in “impeachable conduct.” But Mr. Wilentz said that a historian has a role at this stage of impeachment that no other figure in American life does.

“American culture is not a terribly historical culture,” he said. “We’re much more forward-looking than backward-looking."

The attention to a meaningful record, Mr. Wilentz said, “becomes deeply important when you come to this kind of crisis. That’s something that only historians can provide.” To read more CLICK HERE

PA AG Josh Shapiro on list of 15 potential Democrat vice-presidents in 2020

The Washington Post published a list of 15 potential vice-presidential nominees which include Pennsylvania's first-term Attorney General Josh Shapiro. He took office in 2017, and among other initiatives chose to move forward with the investigation of sexual abuse among Catholic priests.
In August 2018, he released the results of an extensive grand jury report. The report alleged the sexual abuse of more than 1,000 children at the hands of over 300 priests. His report prompted similar investigations in other states, an inquiry by the federal government, and proposed legislation to change the statute of limitations in Pennsylvania.
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PLW: Password Ruling and Technology: Court Looks to Protect the Innocent

Matthew T. Mangino

The Legal Intelligencer

December 12, 2019

Last month, the Pennsylvania Supreme Court ruled that it is a violation of the Fifth Amendment’s protection against self-incrimination to compel a defendant to disclose a password to allow police access to a “lawfully seized, but encrypted, computer.”

In 2015, the attorney general’s office was conducting an investigation into the use and distribution of child pornography. The attorney general sought a search warrant for Joseph J. Davis’ home after his IP address was linked to child pornography videos and a file-sharing network. Davis admitted to watching child pornography, and law enforcement officials lawfully seized his computer. However, he refused to provide the 64-character password to his computer.

According to the court record, the entire hard drive of the computer was encrypted and “there was no data that could be read without opening the TrueCrypt volume.”

Agents could only confirm that there was “Windows on the computer and the TrueCrypt,” and no knowledge of any specific files other than the operating system files.

Davis was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. Section 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. Section 7512(a).

The commonwealth sought a court order to compel Davis to reveal his password. Davis invoked his Fifth Amendment right against self-incrimination. The Fifth Amendment to the U.S. Constitution guarantees a defendant the right not to incriminate himself. That means individuals cannot be forced to make statements, or testify, against their self-interest. 

Luzerne County Court of Common Pleas Judge Tina Gartley focused on whether turning over the password would be testimonial.

The Fifth Amendment protects communication by defendants that is “testimonial.” The trial court opined that “the touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind to explicitly or implicitly communicate some statement of fact.’”

The trial court then turned to the “foregone conclusion” exception to the Fifth Amendment. In Fisher v. United States, 425 U.S. 391 (1976), the U.S. Supreme Court established the rationale underlying the foregone conclusion doctrine. The court ruled that an act of production does not involve testimonial communication if the facts conveyed are already known to the government, such that the individual “adds little or nothing to the sum total of the government’s information.” Since Davis admitted to watching child pornography videos and that he is the sole owner of the computer, the trial court held that the exception applied. The Superior Court affirmed.

The case made its way to the Pennsylvania Supreme Court in May. Prosecutors argued that, “The commonwealth does not seek the password to establish or prove a connection between Davis, his computer and its contents because it already has that information. It merely seeks surrender of the password in order to open the lock that Davis has placed on the computer to avoid a lawful search.”

The Supreme Court acknowledged that “at times, constitutional privileges are an impediment to the commonwealth—requiring the commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant’s assistance may be inconvenient and even difficult.”

That difficult burden is no reason to circumvent the rights and privileges afforded an accused by the U.S. Constitution.

The Supreme Court concluded that compelling the disclosure of a password to a computer, that is, the act of production, is testimonial. Revealing a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature. There is no physical manifestation of a password, unlike a hand writing sample, blood draw or a voice exemplar. As a password is necessarily memorized, one cannot reveal a password without revealing the contents of one’s mind.

In 1990, Justice John Paul Stevens wrote in a dissent in Doe v. United States, 487 U.S. 201 (1990), “A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens or other items of physical evidence may be extracted from a defendant against his will.” Stevens continued, “but can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed.”

In 2000, the Supreme Court decided United States v. Hubbell, 530 U.S.23 (2000) involving an issue of Fifth Amendment privilege for a defendant who became intertwined in the “Whitewater” witch hunt targeting Bill and Hillary Clinton. The court explained why a grand jury subpoena requiring a man to assemble self-incriminating documents was improper:

It was unquestionably necessary for the respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. … The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.

The Pennsylvania Supreme Court borrowed the metaphor raised in Doe and Hubbell to emphasize its holding. A footnote to the opinion contained the following passage, “Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose―keeping information contained therein confidential and insulated from discovery. Here, under U.S. Supreme Court precedent, we find that the commonwealth is seeking the electronic equivalent to a combination to a wall safe—the passcode to unlock the appellant’s computer. The commonwealth is seeking the password, not as an end, but as a pathway to the files being withheld.”

In the 27-page majority opinion, Commonwealth of Pennsylvania v. Davis, 56 MAP 2018, Nov. 20, 2019, written by Justice Deborah Todd, the high court acknowledged “the significant and ever-increasing difficulties faced by law enforcement in light of rapidly changing technology, including encryption.”

However she wrote, “This constitutional right is firmly grounded in the realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘protection to the innocent.’”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. Contact him at www.mattmangino.com, matthewmangino@aol.com and follow him on Twitter @MatthewTMangino).

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GateHouse: Life without parole under scrutiny

Matthew T. Mangino

GateHouse Media

December 13, 2019

Life without the possibility of parole (LWOP) is a growing concern in this country. According to the Sentencing Project, the number of LWOP sentences has quadrupled from about 12,500 in 1992 to more than 53,000 as of 2016.

The expansion of LWOP was the result of the confluence of two very different groups. The right-wing - tough-on-crime - hardliners who, beginning in the mid-1980s, declared war on drugs and violent crime and adopted harsher, mandatory sentences, including LWOP.

The second group includes the death penalty abolitionists, left leaning progressives, who adopted LWOP sentences as a logical alternative to the death penalty. As the death penalty wanes - only 22 executions expected in 2019, the fewest since 1991 - those opposed to the death penalty have now set their sights on LWOP.

The cost and morality of locking-up - forever - a wide swath of offenders has come into question.

A number of states are reviewing offenses that are subject to LWOP. In Pennsylvania, for instance, an individual convicted of driving the get-away car in a robbery, that ended in murder could be sentenced to mandatory LWOP. The driver could have had absolutely no intention of killing anyone, in fact the shop keeper could have killed his unarmed accomplice, and the driver could end up in prison for life.

According to the Baton Rouge Advocate, about 15% of Louisiana’s prison population consists of people serving life without parole, which is the highest percentage among all states. Those numbers are the result of sentencing laws enacted decades ago - including abolishing parole for all life sentences.

State lawmakers in Pennsylvania have moved toward changing their laws in recent months, but the latest proposal stalled in committee and did not come before the legislature for a vote. According to The Advocate, the proposal would allow lifers a chance at parole after serving 35 years on a first-degree murder conviction and 25 years on second-degree murder, which under Pennsylvania law refers exclusively to an unintentional killing during the commission of a felony.

In Massachusetts, there are more than a thousand men and women serving life without the possibility of parole. There is pending legislation that would require the possibility of parole and would allow all inmates currently serving life sentences to have the opportunity for a parole hearing after serving 25 years. Release would not be automatic but the parole board would take at least one look at the possibility of parole.

Former California Governor Jerry Brown signed into law a bill that bans sentencing juveniles to life without parole.

The U.S. Supreme Court has chipped away at LWOP parole for juveniles. First, the high court struck down mandatory life without parole for juveniles and later eliminated life without parole for juveniles who committed non-homicide offenses.

The United States is the only country that allows the sentence of life without parole for juveniles. California is one of 20 states and the District of Columbia who have outlawed life without the possibility of parole for juvenile offenders. There are another five states that do sentence juveniles to life without parole.

In 2012, there were only five states that banned life without parole for juveniles - the addition of California quadruples that number and shows momentum toward an emerging “national consensus” against sentencing juveniles to die in prison. This theory of a national consensus and “evolving standards of decency” are the same theories that resulted in the Supreme Court striking down the death penalty for juveniles.

Quinn Cozzens, staff attorney for the Abolitionist Law Center told The Advocate, “Mandatory life without parole reflects a judgement that somebody is irredeemable, essentially social refuse - something to be kept out of sight and out of mind.”

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 at @MatthewTMangino.

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Kentucky governor restores voting rights for 140,000 former offenders

Kentucky’s newly elected Democratic governor, Andy Beshear, signed an executive order on restoring the vote and the right to hold public office to more than 140,000 residents who have completed sentences for nonviolent felonies, reported the New York Times.

With that move, Kentucky joined a fast-growing movement to return voting rights to former felons, leaving Iowa as the only state that strips all former felons of the right to cast a ballot.

Since 1997, 24 states have approved some type of measure to ease voting bans, according to the Sentencing Project, a Washington group that advocates criminal justice policy changes. Kentucky joins Virginia, Florida, Nevada and other states that have extended voting rights in the last few years.

Mr. Beshear said the order would apply to more than half of the estimated 240,000 Kentuckians with felonies in their past, as well as those who complete their sentences in the future.

While he believes in justice, he said, “I also believe in second chances.”

“We’re talking about moms and dads, neighbors and friends, people who have met and taken on one of the greatest challenges anyone can face: overcoming the past,” the governor said. “It is an injustice that their ability to rejoin society by casting a vote on Election Day is automatically denied.”

Voting-rights advocates called Kentucky’s decision a significant advance in a campaign to return the vote to felons that began decades ago and has won widespread attention and support only recently.

But while the most recent changes have returned voting rights to well over 1.5 million people nationwide, it remains unclear how they will affect the political process. A handful of academic studies suggest that former prisoners register and vote at rates well below national averages.

The governor said his order did not extend to those who committed violent felonies because some offenses, such as rape and murder, were too heinous to forgive. The order also excludes those who were convicted under federal law or the laws of other states, although they would be able to apply individually for restoration of their rights.

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