Pope Benedict, leader of the world's 1.3 billion Roman Catholics, delivered his twice-yearly "Urbi et Orbi" (to the city and the world) message and blessing to tens of thousands of people in St Peter's Square on a crisp but clear day as millions of others watched on television around the world.
At the end of his address, the 84-year-old pope, celebrating the seventh Christmas season of his pontificate, delivered Christmas greetings in 65 languages, including Turkish, Hebrew, Arabic, Swahili, Hindi, Urdu and Chinese, reported Reuters.
"May the Lord come to the aid of our world torn by so many conflicts which even today stain the earth with blood," he said, speaking in Italian from the central balcony of St Peter's Basilica.
"May the Prince of Peace grant peace and stability to that Land where he chose to come into the world, and encourage the resumption of dialogue between Israelis and Palestinians. May he bring an end to the violence in Syria, where so much blood has already been shed," he said in a firm, steady voice.
To read more: http://www.reuters.com/article/2011/12/25/us-christmas-pope-idUSTRE7BN0GG20111225
Sunday, December 25, 2011
Wednesday, December 21, 2011
The Cautionary Instruction: Congressional Hearing Repartee Falls Flat
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
December 16, 2011
Last week, the House Committee on Oversight and Government Reform again took up the issue of the ill-fated Department of Justice (DOJ) gun trafficking operation known as “Fast & Furious.”
As the hearing came to a close, Committee Chairman Darryl Issa (R-Calif.), compared Attorney General Eric Holder’s conduct to that of Richard Nixon’s attorney general before Watergate. Holder likened the ongoing congressional inquiry to Senator Joseph McCarthy’s witch hunt for communists in the U.S. government.
Holder told the committee that he does not plan to comply with additional requests for DOJ records, including Holder’s internal emails regarding his response to the operation. “You stand in contempt of Congress unless you have a valid reason,” Issa told Holder.
Holder responded that not sharing the internal department communications with Congress is consistent with the practice of past administrations.
“John Mitchell responded that way, too,” Issa told Holder, referring to Nixon’s former attorney general, who was later convicted of conspiracy, obstruction of justice and perjury in connection with Watergate.
Holder replied, invoking his own historic allusion, “The reference to John Mitchell: Let’s think about that. … As they said in the McCarthy hearings at some point, ‘Have you no shame?’”
Congressman Issa is off-base comparing Holder to John Mitchell and his role in Watergate. Mitchell was no longer part of the Nixon administration during Watergate. He had resigned as attorney general on February 15, 1972, months before the Watergate break-in.
The Watergate Independent Prosecutor Archibald Cox requested eight recorded conversations taped in the White House, two of which included conversations with Mitchell. The request was refused by the White House. Mitchell had nothing to do with that decision.
When Mitchell testified before the senate Watergate Committee it was in his role as campaign director of Nixon’s 1972 re-election campaign. According to Carl Bernstein, certainly an authority on Watergate, "John Mitchell's testimony to the Watergate committee focused on what he called 'the White House horrors,’” crimes committed by Nixon staffers.
Congressman Issa's allusion indicated, at best, a superficial understanding of history -- or, at worst, an ill conceived attempt to lump Attorney General Holder with America's greatest scandal.
Attorney General Holder's retort was close, but also off the mark. He was referring to what had become known as the Army-McCarthy Hearings. In 1954, Senator McCarthy and his staff were accused of using influence to help a former staff member with an army assignment. The Army’s special counsel Joseph N. Welch disclosed to the New York Times that a young lawyer in his law firm was a former member of a left-wing group while in law school.
Although aware of Welch’s disclosure, McCarthy nonetheless confronted Welch about the young lawyer during the nationally televised hearings. Attorney Welch then famously took on McCarthy, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
Visit Matt Mangino
The Pittsburgh Post-Gazette/Ipso Facto
December 16, 2011
Last week, the House Committee on Oversight and Government Reform again took up the issue of the ill-fated Department of Justice (DOJ) gun trafficking operation known as “Fast & Furious.”
As the hearing came to a close, Committee Chairman Darryl Issa (R-Calif.), compared Attorney General Eric Holder’s conduct to that of Richard Nixon’s attorney general before Watergate. Holder likened the ongoing congressional inquiry to Senator Joseph McCarthy’s witch hunt for communists in the U.S. government.
Holder told the committee that he does not plan to comply with additional requests for DOJ records, including Holder’s internal emails regarding his response to the operation. “You stand in contempt of Congress unless you have a valid reason,” Issa told Holder.
Holder responded that not sharing the internal department communications with Congress is consistent with the practice of past administrations.
“John Mitchell responded that way, too,” Issa told Holder, referring to Nixon’s former attorney general, who was later convicted of conspiracy, obstruction of justice and perjury in connection with Watergate.
Holder replied, invoking his own historic allusion, “The reference to John Mitchell: Let’s think about that. … As they said in the McCarthy hearings at some point, ‘Have you no shame?’”
Congressman Issa is off-base comparing Holder to John Mitchell and his role in Watergate. Mitchell was no longer part of the Nixon administration during Watergate. He had resigned as attorney general on February 15, 1972, months before the Watergate break-in.
The Watergate Independent Prosecutor Archibald Cox requested eight recorded conversations taped in the White House, two of which included conversations with Mitchell. The request was refused by the White House. Mitchell had nothing to do with that decision.
When Mitchell testified before the senate Watergate Committee it was in his role as campaign director of Nixon’s 1972 re-election campaign. According to Carl Bernstein, certainly an authority on Watergate, "John Mitchell's testimony to the Watergate committee focused on what he called 'the White House horrors,’” crimes committed by Nixon staffers.
Congressman Issa's allusion indicated, at best, a superficial understanding of history -- or, at worst, an ill conceived attempt to lump Attorney General Holder with America's greatest scandal.
Attorney General Holder's retort was close, but also off the mark. He was referring to what had become known as the Army-McCarthy Hearings. In 1954, Senator McCarthy and his staff were accused of using influence to help a former staff member with an army assignment. The Army’s special counsel Joseph N. Welch disclosed to the New York Times that a young lawyer in his law firm was a former member of a left-wing group while in law school.
Although aware of Welch’s disclosure, McCarthy nonetheless confronted Welch about the young lawyer during the nationally televised hearings. Attorney Welch then famously took on McCarthy, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
Visit Matt Mangino
Monday, December 12, 2011
California Shifts Prisoners from State Prison to County Jails
In California the early release of inmates has become the means by which the state is complying with a U.S. Supreme Court order to lower its prison population. As the state empties its prisons county jails struggle to accommodate state prisoners flowing into their facilities.
A U.S. Supreme Court decision requires California to lower its prison population by 30,000. To meet the mandate, those convicted of certain crimes who until now served their sentences in state prison now must serve their time in a county jail. No inmates are being moved from state prisons to county jails. But as these people are sentenced, they will be sent to a county jail rather than state prison, according to the Los Angeles Times.
The L.A. County Sheriff is hoping to deal with the influx of state prisoners by developing alternatives to custody — such as electronic monitoring — for low-risk offenders awaiting trial. The Sheriff’s Department oversees the county jail. According to the Times, L.A. County's jails are expected to house as many as 8,000 state prisoners by mid-2012. Los Angeles County prosecutors said in a report that the numbers could fill up the jails as early as this month.
Some counties, including Los Angeles, are under court order to prevent jail overcrowding. So officials said that some inmates will be released to make way for the state prisoners. Some counties — including Los Angeles, Orange and San Bernardino — have also reported receiving significantly more state prisoners from courts than the state projected, reported the Times.
State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases. By doing that, the attorneys were assured that their clients would get jail time instead of prison time.
The L.A. County Sheriff is hoping to deal with the influx of state prisoners by developing alternatives to custody — such as electronic monitoring — for low-risk offenders awaiting trial. The Sheriff’s Department oversees the county jail. According to the Times, L.A. County's jails are expected to house as many as 8,000 state prisoners by mid-2012. Los Angeles County prosecutors said in a report that the numbers could fill up the jails as early as this month.
Some counties, including Los Angeles, are under court order to prevent jail overcrowding. So officials said that some inmates will be released to make way for the state prisoners. Some counties — including Los Angeles, Orange and San Bernardino — have also reported receiving significantly more state prisoners from courts than the state projected, reported the Times.
State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases. By doing that, the attorneys were assured that their clients would get jail time instead of prison time.
Sunday, December 11, 2011
Will private prisons work?
The Youngstown VindicatorDecember 11, 2011
Ohio was facing an $8 billion budget shortfall in 2010 when Gov. John Kasich took office. He proposed an ambitious and unprecedented plan to balance the corrections portion of the budget — sell five prisons to private companies.
Lake Erie Corrections Institution, located in Ashtabula County, was the only prison sold. It’s the first state prison in the nation to be sold to a private company.
Correction Corporation of America (CCA) bought the facility for $72.7 million. The state will pay CCA $44.25 per inmate per day in addition to an annual $3.8 million ownership fee.
CCA may be familiar to many because the company operates the Northeast Ohio Correctional Center in Youngstown. The state’s ability to sell only one of five prisons slated for sale was not a concern for the Department of Rehabilitation and Correction. “It’s not a disappointment at all,” Annette Chambers-Smith, deputy director of administration told the Cleveland Plain-Dealer, “... we thought we would need to sell all five of them to net $50 million.”
Major player
CCA operates 60 facilities in 19 states and the District of Columbia. Those facilities have more than 80,000 beds and currently house about 75,000 offenders. CCA owns 44 of the facilities it operates, representing more than half of all the private prison beds nationwide. According to the company website, CCA with its 17,000 employees is the fifth-largest corrections system in the nation, behind only the federal government and three states.
Privatization may seem like a promising way to generate revenue and cut costs in difficult economic times. Ohio’s prisons are over capacity. As of October, Ohio’s 30 prisons had the capacity to house 38,196 inmates, but actually confined 50,334.
There is an incarceration bubble in America. That bubble may burst as budget woes force states to reduce prison populations andthe federal government look for alternatives to an immigration policy that has been a boon to private prisons.
Prison reduction efforts are obviously not part of the package offered by corporate-run prisons. They have no incentive to explore alternatives to incarceration, such as electronic monitoring, half-way houses or other diversionary efforts to reduce the number of non-violent offenders behind bars.
Ohio, like many states, is trying to reduce its prison population. Nonviolent offenders often serve the shortest sentences. There are about 12,000 inmates in Ohio serving state sentences of less than one year. Some estimate that reducing short term sentences in state prison could trim inmate population by about 4,000 within four years.
The Texas-based criminal justice blog Grits for Breakfast recently reprinted portions of CCA’s latest annaul 10-K report filed with the U.S. Securities and Exchange Commission. CCA acknowledged that the company is “dependent upon the governmental agencies with which we have contracts to provide inmates for our managed facilities. We cannot control occupancy levels at our managed facilities ... a decrease in our occupancy rates could cause a decrease in revenues and profitability.”
The report continues, “The demand for our facilities and services could be adversely affected by…leniency in conviction or parole standards and sentencing practices.”
Federal threat
CCA is not ignoring the threat of leniency or a reduction in occupancy. According the Chattanoogan, citing a report from the National Institute on Money in State Politics, CCA hired 199 lobbyists in 32 states between 2003 and 2010. On the federal level, CCA spent more than $18 million on lobbying between 1999 and 2009.
CCA’s Ohio lobbyist, Don Thibaut, served as Gov. Kasich’s chief of staff when he was in Congress, says The Associated Press. The connections go beyond a lobbyist. Kasich’s corrections director Gary C. Mohr spent five years as a consultant for CCA.
The incarceration bubble, like the real estate bubble before it, will burst, which could mean trouble for Ohio taxpayers.
Visit the Vindicator
Ohio was facing an $8 billion budget shortfall in 2010 when Gov. John Kasich took office. He proposed an ambitious and unprecedented plan to balance the corrections portion of the budget — sell five prisons to private companies.
Lake Erie Corrections Institution, located in Ashtabula County, was the only prison sold. It’s the first state prison in the nation to be sold to a private company.
Correction Corporation of America (CCA) bought the facility for $72.7 million. The state will pay CCA $44.25 per inmate per day in addition to an annual $3.8 million ownership fee.
CCA may be familiar to many because the company operates the Northeast Ohio Correctional Center in Youngstown. The state’s ability to sell only one of five prisons slated for sale was not a concern for the Department of Rehabilitation and Correction. “It’s not a disappointment at all,” Annette Chambers-Smith, deputy director of administration told the Cleveland Plain-Dealer, “... we thought we would need to sell all five of them to net $50 million.”
Major player
CCA operates 60 facilities in 19 states and the District of Columbia. Those facilities have more than 80,000 beds and currently house about 75,000 offenders. CCA owns 44 of the facilities it operates, representing more than half of all the private prison beds nationwide. According to the company website, CCA with its 17,000 employees is the fifth-largest corrections system in the nation, behind only the federal government and three states.
Privatization may seem like a promising way to generate revenue and cut costs in difficult economic times. Ohio’s prisons are over capacity. As of October, Ohio’s 30 prisons had the capacity to house 38,196 inmates, but actually confined 50,334.
There is an incarceration bubble in America. That bubble may burst as budget woes force states to reduce prison populations andthe federal government look for alternatives to an immigration policy that has been a boon to private prisons.
Prison reduction efforts are obviously not part of the package offered by corporate-run prisons. They have no incentive to explore alternatives to incarceration, such as electronic monitoring, half-way houses or other diversionary efforts to reduce the number of non-violent offenders behind bars.
Ohio, like many states, is trying to reduce its prison population. Nonviolent offenders often serve the shortest sentences. There are about 12,000 inmates in Ohio serving state sentences of less than one year. Some estimate that reducing short term sentences in state prison could trim inmate population by about 4,000 within four years.
The Texas-based criminal justice blog Grits for Breakfast recently reprinted portions of CCA’s latest annaul 10-K report filed with the U.S. Securities and Exchange Commission. CCA acknowledged that the company is “dependent upon the governmental agencies with which we have contracts to provide inmates for our managed facilities. We cannot control occupancy levels at our managed facilities ... a decrease in our occupancy rates could cause a decrease in revenues and profitability.”
The report continues, “The demand for our facilities and services could be adversely affected by…leniency in conviction or parole standards and sentencing practices.”
Federal threat
CCA is not ignoring the threat of leniency or a reduction in occupancy. According the Chattanoogan, citing a report from the National Institute on Money in State Politics, CCA hired 199 lobbyists in 32 states between 2003 and 2010. On the federal level, CCA spent more than $18 million on lobbying between 1999 and 2009.
CCA’s Ohio lobbyist, Don Thibaut, served as Gov. Kasich’s chief of staff when he was in Congress, says The Associated Press. The connections go beyond a lobbyist. Kasich’s corrections director Gary C. Mohr spent five years as a consultant for CCA.
The incarceration bubble, like the real estate bubble before it, will burst, which could mean trouble for Ohio taxpayers.
Visit the Vindicator
Sunday, November 20, 2011
The Cautionary Instruction: Legislators race to capital to prevent PSU repeat
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 18, 2011
The Penn State sex scandal and cover-up has generated a bevy of activity at the state capital. As with other high profile criminal prosecutions legislators look to law making as a way to prevent future victimization.
Last Sunday, Governor Tom Corbett appeared on NBC's Meet the Press. Governor Corbett replied, “Absolutely,” when asked whether Pennsylvania’s Mandated Reporter Law should be changed. He added, “I wouldn’t be surprised to see a bill passed between now and the end of this year.”
However, with a flurry of bills being proposed in the state House and Senate, Governor Corbett cautioned lawmakers to move deliberately as they consider legislative fixes to the Penn State scandal. Everybody wants "to do something," Corbett said. "We should do something. But we need to do it in a very thoughtful, deliberative process."
Below is by no means an exhaustive list of pending or proposed legislation but it provides a glimpse into the bi-partisan reaction of state legislators to the scandal at Penn State.
State Sen. Kim Ward (R., Westmoreland) has authored a bill that would make it mandatory for anyone employed by a college or university to report child abuse. The bill also would require that any allegations go directly to the head of the institution and to the state Department of Public Welfare.
Rep. Kevin Boyle (D., Phila.) introduced a bill that would mandate all child abuse allegations be reported directly to the police.
A bill proposed by Rep. Mike Vereb (R., Montgomery) would create an offense of sexual assault by a sports official -- including coaches, referees, and employees of nonprofits that engage in sports activities.
State Sen. Wayne Fontana, (D., Pittsburgh), said he would ask Senate leaders to move a bill he first introduced in 2005 that would amend state law to require any professional who works with children to report suspected child abuse to police.
Rep. Louise Bishop (D., Phila.) and Rep. Todd Stephens (R., Montgomery), are proposing legislation that would make it mandatory to promptly report suspected sex crimes against minors.
State Rep. Dan Deasy, (D., Westwood), has proposed a bill that would require an individual who witnesses or an individual who is told by a direct witness about a sexual crime against a child to report it to law enforcement. Failure to report could result in a third-degree felony charge, which carries a sentence of up to seven years in prison.
State Sen. Larry Farnese, (D., Phila.), recently proposed a bill that would bar pension payments to state and city employees convicted of sex crimes against children.
Reactionary legislation has, at times, done more harm than good. The General Assembly would do well to heed Governor Corbett’s admonishment. Proceed with caution. Do not rush legislation and give due deference to the experts who regularly deal with child sex abuse. Let something positive come from this enormous human tragedy.
Visit Matt Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 18, 2011
The Penn State sex scandal and cover-up has generated a bevy of activity at the state capital. As with other high profile criminal prosecutions legislators look to law making as a way to prevent future victimization.
Last Sunday, Governor Tom Corbett appeared on NBC's Meet the Press. Governor Corbett replied, “Absolutely,” when asked whether Pennsylvania’s Mandated Reporter Law should be changed. He added, “I wouldn’t be surprised to see a bill passed between now and the end of this year.”
However, with a flurry of bills being proposed in the state House and Senate, Governor Corbett cautioned lawmakers to move deliberately as they consider legislative fixes to the Penn State scandal. Everybody wants "to do something," Corbett said. "We should do something. But we need to do it in a very thoughtful, deliberative process."
Below is by no means an exhaustive list of pending or proposed legislation but it provides a glimpse into the bi-partisan reaction of state legislators to the scandal at Penn State.
State Sen. Kim Ward (R., Westmoreland) has authored a bill that would make it mandatory for anyone employed by a college or university to report child abuse. The bill also would require that any allegations go directly to the head of the institution and to the state Department of Public Welfare.
Rep. Kevin Boyle (D., Phila.) introduced a bill that would mandate all child abuse allegations be reported directly to the police.
A bill proposed by Rep. Mike Vereb (R., Montgomery) would create an offense of sexual assault by a sports official -- including coaches, referees, and employees of nonprofits that engage in sports activities.
State Sen. Wayne Fontana, (D., Pittsburgh), said he would ask Senate leaders to move a bill he first introduced in 2005 that would amend state law to require any professional who works with children to report suspected child abuse to police.
Rep. Louise Bishop (D., Phila.) and Rep. Todd Stephens (R., Montgomery), are proposing legislation that would make it mandatory to promptly report suspected sex crimes against minors.
State Rep. Dan Deasy, (D., Westwood), has proposed a bill that would require an individual who witnesses or an individual who is told by a direct witness about a sexual crime against a child to report it to law enforcement. Failure to report could result in a third-degree felony charge, which carries a sentence of up to seven years in prison.
State Sen. Larry Farnese, (D., Phila.), recently proposed a bill that would bar pension payments to state and city employees convicted of sex crimes against children.
Reactionary legislation has, at times, done more harm than good. The General Assembly would do well to heed Governor Corbett’s admonishment. Proceed with caution. Do not rush legislation and give due deference to the experts who regularly deal with child sex abuse. Let something positive come from this enormous human tragedy.
Visit Matt Mangino
Saturday, October 29, 2011
The Cautionary Instruction: Prison reform promotes lcoal control
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 28, 2011
On September 28, 2008, then-Governor Edward G. Rendell signed into law a series of prison reform measures, known in part as Act 81. The reforms were intended to reduce costs, ease county jail overcrowding, improve treatment services and among other things provide for the compassionate release of terminally ill inmates. Not all of the reforms have met with success.
A provision of Act 81, Place of Confinement -- 42 Pa.C.S.A. 9762, is scheduled to take effect on November 24, 2011. The new law provides that sentences with maximums between two and five years must be served in a state prison. However, under specific circumstances a judge can order the sentence to be served in a county jail. That is not entirely new. What is new is that the sentencing judge will retain jurisdiction for purposes of parole, not the Pennsylvania Board of Probation and Parole.
Act 81 provides that offenders sentenced to a term of two years or more, but less than five years may be confined in a county jail if: (1) the county prison warden certifies that the county jail is at less than 110% of capacity; (2) the district attorney has consented to the confinement; and (3) the sentencing court has approved the placement in the county jail.
According to data compiled by the Pennsylvania Commission on Sentencing, in 2009 7,860 sentences included a maximum term of two years or greater but less than five years; of these, 6,080 were committed to a state correctional facility, and 1,205 were committed to county jails. The remaining 575 sentences were state intermediate punishment.
What are the implications for offenders? Initially, an offender who has local ties to the community will be more accessible for purposes of visitation while in a county jail. That is not always the case in the state correctional system. With 28 correctional facilities across the commonwealth some state inmates find themselves far away from family and friends.
An offender serving a sentence in the county jail may also have available the privilege of work release. An offender with a family to support could continue to work while serving her sentence. This often eases a significant burden placed on the non-incarcerated parent.
Administratively the most significant change brought about by the new law is that judges will now make parole decisions, not the Parole Board; and local county probation offices will supervise those offenders after parole instead of the Parole Board.
Criminal defense practitioners should be eager to explore the benefits of Act 81. The trick may be getting a feel for the administrative aspects of the new law. A provision of the reform package provided that the Sentencing Commission would establish parole guidelines for the Parole Board and for judges who invariably will be making more parole decisions. Those guidelines have not yet been established, although the Parole Board has been utilizing internal parole guidelines since 1980.
Visit Matt Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 28, 2011
On September 28, 2008, then-Governor Edward G. Rendell signed into law a series of prison reform measures, known in part as Act 81. The reforms were intended to reduce costs, ease county jail overcrowding, improve treatment services and among other things provide for the compassionate release of terminally ill inmates. Not all of the reforms have met with success.
A provision of Act 81, Place of Confinement -- 42 Pa.C.S.A. 9762, is scheduled to take effect on November 24, 2011. The new law provides that sentences with maximums between two and five years must be served in a state prison. However, under specific circumstances a judge can order the sentence to be served in a county jail. That is not entirely new. What is new is that the sentencing judge will retain jurisdiction for purposes of parole, not the Pennsylvania Board of Probation and Parole.
Act 81 provides that offenders sentenced to a term of two years or more, but less than five years may be confined in a county jail if: (1) the county prison warden certifies that the county jail is at less than 110% of capacity; (2) the district attorney has consented to the confinement; and (3) the sentencing court has approved the placement in the county jail.
According to data compiled by the Pennsylvania Commission on Sentencing, in 2009 7,860 sentences included a maximum term of two years or greater but less than five years; of these, 6,080 were committed to a state correctional facility, and 1,205 were committed to county jails. The remaining 575 sentences were state intermediate punishment.
What are the implications for offenders? Initially, an offender who has local ties to the community will be more accessible for purposes of visitation while in a county jail. That is not always the case in the state correctional system. With 28 correctional facilities across the commonwealth some state inmates find themselves far away from family and friends.
An offender serving a sentence in the county jail may also have available the privilege of work release. An offender with a family to support could continue to work while serving her sentence. This often eases a significant burden placed on the non-incarcerated parent.
Administratively the most significant change brought about by the new law is that judges will now make parole decisions, not the Parole Board; and local county probation offices will supervise those offenders after parole instead of the Parole Board.
Criminal defense practitioners should be eager to explore the benefits of Act 81. The trick may be getting a feel for the administrative aspects of the new law. A provision of the reform package provided that the Sentencing Commission would establish parole guidelines for the Parole Board and for judges who invariably will be making more parole decisions. Those guidelines have not yet been established, although the Parole Board has been utilizing internal parole guidelines since 1980.
Visit Matt Mangino
Sunday, October 23, 2011
U.S. Supreme Court Takes Another Look at Plea Bargains
Matthew T. Mangino
Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
Visit Matt Mangino
Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
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The Cautionary Instruction: U.S. Supreme Court hears arguments in case with local twist
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 21, 2011
Last week, the U.S. Supreme Court listened to arguments in the case of Florence v. Board of Freeholders. Albert Florence was picked up in New Jersey on a warrant for an unpaid fine and lodged in two different county jails where, in each, he was strip-searched as part of routine jail policy.
After it was determined that the warrant had been issued in error, Florence was released. He filed suit claiming his Fourth Amendment right against unreasonable searches was violated. A federal district court judge sided with Florence, but the Third Circuit Court of Appeals reversed, saying routine strip-searches during intake are justified based on the prison’s concern that weapons and other contraband might be smuggled into the prison.
There is a local parallel to this case. In 2006, Allegheny County was sued for blanket strip-searches of all detainees that were “intermingled” with other county jail inmates. According to depositions taken during the suit, the searches largely included a visual examination of the genitals, as well as requesting detainees to bend at the waist and manipulate the buttocks, breasts and genitals to allow for a visual inspection of their body cavities and skin folds. Female detainees were required to “squat and cough” to see if any contraband dislodged from the vagina.
The class action law suit was settled for $3 million. However, Judge Terrence F. McVerry made reference, in his Settlement Opinion, to the lower court decision in Florence v. Board of Freeholders. Judge McVerry wrote that the Third Circuit in Florence held that conducting strip-searches did not require a showing of attempted smuggling or discovered contraband as a justification for the policy.
Allegheny County settled six days before Florence was decided. Florence ultimately made its way to the U.S. Supreme Court and was the subject of last week’s argument.
Assistant Solicitor General Nicole Saharsky argued last week before the Supreme Court that corrections officials should be able to set search policies for their jails. "You cannot say that there are some minor offenders that don't pose a contraband risk.” Saharsky added that guards who screen arrestees are, “Individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly."
Florence’s attorney, Thomas C. Goldstein, argued that such a “significant intrusion on individual privacy and individual dignity” requires a reason to believe that the arrested person poses a danger.
During the 12 months ending June 30, 2010, local jails admitted an estimated 12.9 million prisoners. While not every jail has a blanket strip-search policy -- the High Court would do well to debunk the near universally accepted idea that the U.S Constitution is of limited application behind the jail house walls.
Visit Matt Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 21, 2011
Last week, the U.S. Supreme Court listened to arguments in the case of Florence v. Board of Freeholders. Albert Florence was picked up in New Jersey on a warrant for an unpaid fine and lodged in two different county jails where, in each, he was strip-searched as part of routine jail policy.
After it was determined that the warrant had been issued in error, Florence was released. He filed suit claiming his Fourth Amendment right against unreasonable searches was violated. A federal district court judge sided with Florence, but the Third Circuit Court of Appeals reversed, saying routine strip-searches during intake are justified based on the prison’s concern that weapons and other contraband might be smuggled into the prison.
There is a local parallel to this case. In 2006, Allegheny County was sued for blanket strip-searches of all detainees that were “intermingled” with other county jail inmates. According to depositions taken during the suit, the searches largely included a visual examination of the genitals, as well as requesting detainees to bend at the waist and manipulate the buttocks, breasts and genitals to allow for a visual inspection of their body cavities and skin folds. Female detainees were required to “squat and cough” to see if any contraband dislodged from the vagina.
The class action law suit was settled for $3 million. However, Judge Terrence F. McVerry made reference, in his Settlement Opinion, to the lower court decision in Florence v. Board of Freeholders. Judge McVerry wrote that the Third Circuit in Florence held that conducting strip-searches did not require a showing of attempted smuggling or discovered contraband as a justification for the policy.
Allegheny County settled six days before Florence was decided. Florence ultimately made its way to the U.S. Supreme Court and was the subject of last week’s argument.
Assistant Solicitor General Nicole Saharsky argued last week before the Supreme Court that corrections officials should be able to set search policies for their jails. "You cannot say that there are some minor offenders that don't pose a contraband risk.” Saharsky added that guards who screen arrestees are, “Individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly."
Florence’s attorney, Thomas C. Goldstein, argued that such a “significant intrusion on individual privacy and individual dignity” requires a reason to believe that the arrested person poses a danger.
During the 12 months ending June 30, 2010, local jails admitted an estimated 12.9 million prisoners. While not every jail has a blanket strip-search policy -- the High Court would do well to debunk the near universally accepted idea that the U.S Constitution is of limited application behind the jail house walls.
Visit Matt Mangino
Saturday, October 15, 2011
Capital punishment is the least of the justice system's problems
Matthew T. Mangino
The Philadelphia Inquirer
October 14, 2011
Pennsylvania has carried out only three executions since it reinstated the death penalty in 1976. All three were of men who volunteered to be executed.
The state's dormant death penalty contrasts starkly with the 236 executions presided over by Texas Gov. Rick Perry, and also with the death chamber at the Georgia Diagnostic and Classification Center in Butts County, where the execution of convicted killer Troy Davis caused a media frenzy last month.
By midnight on Sept. 21, despite the notoriety, Davis was dead. So was his victim, Michael Allen MacPhail, along with about 675,000 others who have been murdered in this country since the death penalty was reinstated.
Only a tiny fraction of those who kill ultimately pay with their lives. Since 1976, 1,271 men and women have been executed in the United States. More important, a much greater number of those responsible for murder have never even been arrested. A killer is 200 times more likely to get away with murder than to be executed for it.
That number has not improved. In 1961, 91 percent of killings were "cleared" - the term used by police to indicate an arrest has been made. In 2010, only 64 percent were. That means the killers of more than 5,000 people in 2010 alone could be at large, including the killers of more than 150 in Pennsylvania.
Where's the outrage over that? Why haven't the media lamented those 5,000 families who lost a loved one by the hand of someone who has never been identified?
The sorrow that envelops the family of a murder victim, particularly when the murder is unsolved, permeates entire communities. Unsolved homicides also hurt public confidence in the police and diminish police productivity, according to the Police Executive Research Forum. And, to the extent that offenders literally "get away with murder" and the public knows it, deterrence becomes more difficult.
Officer MacPhail's murder was solved, but his killer became the subject of considerable attention and speculation. Nevertheless, death penalty opponents cannot point to a single case in which an innocent person has been executed in the past 35 years - although they have certainly tried. One of their favorite cases was that of Roger Coleman, who was convicted of the rape and murder of his sister-in-law in Virginia. Before he became a suspect, Coleman had the audacity to serve as one of the victim's pallbearers.
Coleman's protestations of innocence became a cause célèbre, landing him on the cover of Time magazine and gaining the badly misplaced trust of many in the anti-death penalty movement. As he was strapped into the electric chair in May 1992, he said, "An innocent man is going to be murdered tonight." Sixteen years after his execution, the governor of Virginia ordered posthumous DNA testing that confirmed Coleman's guilt.
The U.S. Supreme Court ordered an evidentiary hearing in the Troy Davis case in June 2010. Two months later, a U.S. District Court in Georgia ruled: "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. . . . After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence. ..." Davis was finally executed 22 years after the killing of MacPhail.
An estimated 230,000 killings remain unsolved since the reinstatement of capital punishment. Yet more time, attention, and resources continue to be focused on the rare challenge to an execution that somehow captures the morbid curiosity of the public. Whether a condemned killer lives or dies strikes me as far less important than the literally thousands of killers who are walking America's streets.
Visit: http://articles.philly.com/2011-10-14/news/30279589_1_death-penalty-three-executions-murder-victim
The Philadelphia Inquirer
October 14, 2011
Pennsylvania has carried out only three executions since it reinstated the death penalty in 1976. All three were of men who volunteered to be executed.
The state's dormant death penalty contrasts starkly with the 236 executions presided over by Texas Gov. Rick Perry, and also with the death chamber at the Georgia Diagnostic and Classification Center in Butts County, where the execution of convicted killer Troy Davis caused a media frenzy last month.
By midnight on Sept. 21, despite the notoriety, Davis was dead. So was his victim, Michael Allen MacPhail, along with about 675,000 others who have been murdered in this country since the death penalty was reinstated.
Only a tiny fraction of those who kill ultimately pay with their lives. Since 1976, 1,271 men and women have been executed in the United States. More important, a much greater number of those responsible for murder have never even been arrested. A killer is 200 times more likely to get away with murder than to be executed for it.
That number has not improved. In 1961, 91 percent of killings were "cleared" - the term used by police to indicate an arrest has been made. In 2010, only 64 percent were. That means the killers of more than 5,000 people in 2010 alone could be at large, including the killers of more than 150 in Pennsylvania.
Where's the outrage over that? Why haven't the media lamented those 5,000 families who lost a loved one by the hand of someone who has never been identified?
The sorrow that envelops the family of a murder victim, particularly when the murder is unsolved, permeates entire communities. Unsolved homicides also hurt public confidence in the police and diminish police productivity, according to the Police Executive Research Forum. And, to the extent that offenders literally "get away with murder" and the public knows it, deterrence becomes more difficult.
Officer MacPhail's murder was solved, but his killer became the subject of considerable attention and speculation. Nevertheless, death penalty opponents cannot point to a single case in which an innocent person has been executed in the past 35 years - although they have certainly tried. One of their favorite cases was that of Roger Coleman, who was convicted of the rape and murder of his sister-in-law in Virginia. Before he became a suspect, Coleman had the audacity to serve as one of the victim's pallbearers.
Coleman's protestations of innocence became a cause célèbre, landing him on the cover of Time magazine and gaining the badly misplaced trust of many in the anti-death penalty movement. As he was strapped into the electric chair in May 1992, he said, "An innocent man is going to be murdered tonight." Sixteen years after his execution, the governor of Virginia ordered posthumous DNA testing that confirmed Coleman's guilt.
The U.S. Supreme Court ordered an evidentiary hearing in the Troy Davis case in June 2010. Two months later, a U.S. District Court in Georgia ruled: "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. . . . After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence. ..." Davis was finally executed 22 years after the killing of MacPhail.
An estimated 230,000 killings remain unsolved since the reinstatement of capital punishment. Yet more time, attention, and resources continue to be focused on the rare challenge to an execution that somehow captures the morbid curiosity of the public. Whether a condemned killer lives or dies strikes me as far less important than the literally thousands of killers who are walking America's streets.
Visit: http://articles.philly.com/2011-10-14/news/30279589_1_death-penalty-three-executions-murder-victim
Sunday, October 2, 2011
Statements Opposed to the Death Penalty
Jeanne Woodford a former warden of San Quentin State Prison said about the death penalty,"The death penalty serves no one." She added, "It doesn't serve the victims. It doesn't serve prevention. It's truly
all about retribution."
According to Tom Hennessy of the Long Beach Star-Telegraph, she is not alone. In provided 25 other notable people, widely quoted on a variety of websites, express their views on capital punishment.
A justice's view
1. "... the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent."
Supreme Court Justice William Brennan Jr.
2. "I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder ... But even as a child, one thing was clear to me: I didn't want the killer, in turn, to be killed. I remember lying in bed and praying, `Please, God. Please don't take his life, too.' I saw nothing that could be accomplished in the loss of one life being answered with the loss of another."
Kerry Kennedy, daughter of the late Sen. Bobby Kennedy.
3. "If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue."
Justice Thurgood Marshall, 1990.
4. "You believe an eye for an eye until you are put in that situation. If they kill those guys, it really doesn't mean much to me. My father is gone."
Basketball player Michael Jordan on the murderers of his father, James.
5. "Government ... can't be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill."
Sister Helen Prejean, author of "Dead Man Walking."
6. "Loyalty to petrified opinion never yet broke a chain or freed a human soul."
Mark Twain.
Primitive nation?
7. "It's just really tragic after all the horrors of the last 1,000 years we can't leave behind something as primitive as government-sponsored execution."
Sen. Russ Feingold.
8. "To top it off, for those of you who are interested in the economics, it costs more to pursue a capital case toward execution than it does to have full life imprisonment without parole."
Ralph Nader.
9. "Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order."
George Will.
10. "A humane and generous concern for every individual, his health and his fulfillment, will do more to soothe the savage heart than the fear of state-inflicted death, which chiefly serves to remind us how close we remain to the jungle."
U.S. Attorney General Ramsey Clark.
11. "When you execute a man who has been on death row seven, eight, 10 or 12 years, you are not executing the same man that came in."
Don Cabana, former warden of Mississippi's Parchman Penitentiary.
12. "Here I want to say that one must be careful in searching his soul ... one may just find that God is there and that he does not support the barbaric idea that man should execute man."
Ron McAndrew, former warden of Florida State Prison.
13. "To me the death penalty is vengeance, and vengeance doesn't really help anyone in the healing process."
Bud Welch, board president, Murder Victims' Families for Human Rights. His daughter, Julie, was killed in the Oklahoma City bombing.
14. "No man has the right to take God's place and say another man should die. It destroyed my life."
Perry Cobb, who spent eight years on Illinois' death row for a crime he did not commit. He was exonerated in 1987.
District attorney's view
15. "California's death penalty is ... an incredibly costly penalty, and the money would be better spent keeping kids in school, keeping teachers and counselors in their schools and giving the juvenile justice system the resources it needs."
Former Los Angeles County District Attorney Gil Garcetti.
16. "Capital punishment is the most premeditated of murders."
French philosopher Albert Camus.
17. "My overriding belief is that it is always possible for criminals to improve and that by its very finality the death penalty contradicts this."
The Dalai Lama.
18. "People who are well represented at trial do not get the death penalty."
Supreme Court Justice Ruth Bader Ginsburg.
19. "To say that the death of any other person would be just retribution is to insult the immeasurable worth of our loved ones who are victims."
Marietta Jaeger. Her daughter, Susie, age 7, was kidnapped and murdered in 1973.
20. "I do not think that God approved the death penalty for any crime, rape and murdered included. Capital punishment is against the best judgment of modern criminology and, above all, against the highest expression of love in the nature of God."
Martin Luther King Jr.
21. "I do not believe any civilized society should be at the service of death. I don't think it's human to become an Angel of Death."
Nobel laureate, Holocaust survivor Elie Wiesel.
22. "The reality is that capital punishment in America is a lottery. It is a punishment that is shaped by the constraints of poverty, race, geography and local politics."
Bryan Stevenson, death row lawyer.
23. "Most people approve of capital punishment, but most people wouldn't do the hangman's job."
George Orwell.
24. "I believe that no one should be executed, guilty or innocent. There are appropriate sanctions that protect society and punish wrongdoers without forcing us to stoop to the level of the least among us at his or her worst moment."
Actor and activist Mike Farrell.
25. "I have come to think that capital punishment should be abolished."
Jack Kemp, Republican vice presidential candidate, 1996.
To read more: http://www.presstelegram.com/news/ci_19022545
all about retribution."
According to Tom Hennessy of the Long Beach Star-Telegraph, she is not alone. In provided 25 other notable people, widely quoted on a variety of websites, express their views on capital punishment.
A justice's view
1. "... the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent."
Supreme Court Justice William Brennan Jr.
2. "I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder ... But even as a child, one thing was clear to me: I didn't want the killer, in turn, to be killed. I remember lying in bed and praying, `Please, God. Please don't take his life, too.' I saw nothing that could be accomplished in the loss of one life being answered with the loss of another."
Kerry Kennedy, daughter of the late Sen. Bobby Kennedy.
3. "If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue."
Justice Thurgood Marshall, 1990.
4. "You believe an eye for an eye until you are put in that situation. If they kill those guys, it really doesn't mean much to me. My father is gone."
Basketball player Michael Jordan on the murderers of his father, James.
5. "Government ... can't be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill."
Sister Helen Prejean, author of "Dead Man Walking."
6. "Loyalty to petrified opinion never yet broke a chain or freed a human soul."
Mark Twain.
Primitive nation?
7. "It's just really tragic after all the horrors of the last 1,000 years we can't leave behind something as primitive as government-sponsored execution."
Sen. Russ Feingold.
8. "To top it off, for those of you who are interested in the economics, it costs more to pursue a capital case toward execution than it does to have full life imprisonment without parole."
Ralph Nader.
9. "Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order."
George Will.
10. "A humane and generous concern for every individual, his health and his fulfillment, will do more to soothe the savage heart than the fear of state-inflicted death, which chiefly serves to remind us how close we remain to the jungle."
U.S. Attorney General Ramsey Clark.
11. "When you execute a man who has been on death row seven, eight, 10 or 12 years, you are not executing the same man that came in."
Don Cabana, former warden of Mississippi's Parchman Penitentiary.
12. "Here I want to say that one must be careful in searching his soul ... one may just find that God is there and that he does not support the barbaric idea that man should execute man."
Ron McAndrew, former warden of Florida State Prison.
13. "To me the death penalty is vengeance, and vengeance doesn't really help anyone in the healing process."
Bud Welch, board president, Murder Victims' Families for Human Rights. His daughter, Julie, was killed in the Oklahoma City bombing.
14. "No man has the right to take God's place and say another man should die. It destroyed my life."
Perry Cobb, who spent eight years on Illinois' death row for a crime he did not commit. He was exonerated in 1987.
District attorney's view
15. "California's death penalty is ... an incredibly costly penalty, and the money would be better spent keeping kids in school, keeping teachers and counselors in their schools and giving the juvenile justice system the resources it needs."
Former Los Angeles County District Attorney Gil Garcetti.
16. "Capital punishment is the most premeditated of murders."
French philosopher Albert Camus.
17. "My overriding belief is that it is always possible for criminals to improve and that by its very finality the death penalty contradicts this."
The Dalai Lama.
18. "People who are well represented at trial do not get the death penalty."
Supreme Court Justice Ruth Bader Ginsburg.
19. "To say that the death of any other person would be just retribution is to insult the immeasurable worth of our loved ones who are victims."
Marietta Jaeger. Her daughter, Susie, age 7, was kidnapped and murdered in 1973.
20. "I do not think that God approved the death penalty for any crime, rape and murdered included. Capital punishment is against the best judgment of modern criminology and, above all, against the highest expression of love in the nature of God."
Martin Luther King Jr.
21. "I do not believe any civilized society should be at the service of death. I don't think it's human to become an Angel of Death."
Nobel laureate, Holocaust survivor Elie Wiesel.
22. "The reality is that capital punishment in America is a lottery. It is a punishment that is shaped by the constraints of poverty, race, geography and local politics."
Bryan Stevenson, death row lawyer.
23. "Most people approve of capital punishment, but most people wouldn't do the hangman's job."
George Orwell.
24. "I believe that no one should be executed, guilty or innocent. There are appropriate sanctions that protect society and punish wrongdoers without forcing us to stoop to the level of the least among us at his or her worst moment."
Actor and activist Mike Farrell.
25. "I have come to think that capital punishment should be abolished."
Jack Kemp, Republican vice presidential candidate, 1996.
To read more: http://www.presstelegram.com/news/ci_19022545
Saturday, October 1, 2011
The Cautionary Instruction: Dueling reports on wrongful convictions
Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
September 30, 2011
Last week the long awaited Report of the Advisory Committee on Wrongful Convictions was issued by the Joint State Government Commission. The very first page of the report contains a telling caveat, “The release of this report should not be interpreted as an endorsement by members of the Executive Committee of the… [Report’s] conclusions.”
The caveat was an understatement. The law enforcement and victim representation members of the Commission issued their own Independent Report included in the advisory committtee's overall document starting at Page 309.
The Advisory Committee Report and the Independent Report both agree that the primary purpose of the committee was to review cases in which an innocent person was wrongfully convicted and subsequently exonerated and offer recommendations to reduce the possibility of future wrongful convictions.
That appears to be one of the last points of agreement between the competing reports. Initially the two groups disagreed as to the definition of “wrongfully convicted.” The Committee suggested, in a footnote, the official acts which could result in exoneration: “pardons based on innocence, judicial dismissals of criminal charges after evidence of innocence emerged and acquittals on retrial based upon evidence of no involvement in the crimes.”
The Independent Report took issue with that definition, arguing that the U.S. Supreme Court held that an acquittal “does not prove that the defendant is innocent.” The Independent Report succinctly pointed out that the burden of proof in criminal cases requires proving guilt beyond a reasonable doubt. The Supreme Court has made it clear that a jury must acquit “someone who is probably guilty but whose guilt has not been established beyond a reasonable doubt.”
The fundamental disagreement between the two reports -- did the Committee review only innocent persons wrongfully convicted. The Committee Report suggested that 11 people in Pennsylvania have been exonerated “partly or totally on the basis of DNA.” The Independent Report acknowledged that in one of the 11 cases cited by the Committee, “it is clear that and individual was wrongfully convicted.” However, considerable space in the Independent Report is dedicated to arguing that the remaining 10 individuals are not factually innocent.
Why is the definition of “wrongfully convicted” so important to the authors of the Independent Report? The Independent Report suggested, “The mis-definition of 'innocent' persons to include scores of guilty defendants means that the 'reforms' based on the mis-definition are likely to reward the guilty and make their convictions less likely in the future.” The Committee Report contended, “These exonerations challenge long-accepted assumptions in the soundness of certain practices of the criminal justice system.” The Committee Chairman, Duquesne University law professor John Rago, said "Mistakes happen—the question becomes how do we respond to our mistakes.”
Over the next couple of weeks The Cautionary Instruction will examine the recommendations put forth in the Advisory Committee Report and the Independent Report.
Visit Matt Mangino's Blog
Pittsburgh Post-Gazette/Ipso Facto
September 30, 2011
Last week the long awaited Report of the Advisory Committee on Wrongful Convictions was issued by the Joint State Government Commission. The very first page of the report contains a telling caveat, “The release of this report should not be interpreted as an endorsement by members of the Executive Committee of the… [Report’s] conclusions.”
The caveat was an understatement. The law enforcement and victim representation members of the Commission issued their own Independent Report included in the advisory committtee's overall document starting at Page 309.
The Advisory Committee Report and the Independent Report both agree that the primary purpose of the committee was to review cases in which an innocent person was wrongfully convicted and subsequently exonerated and offer recommendations to reduce the possibility of future wrongful convictions.
That appears to be one of the last points of agreement between the competing reports. Initially the two groups disagreed as to the definition of “wrongfully convicted.” The Committee suggested, in a footnote, the official acts which could result in exoneration: “pardons based on innocence, judicial dismissals of criminal charges after evidence of innocence emerged and acquittals on retrial based upon evidence of no involvement in the crimes.”
The Independent Report took issue with that definition, arguing that the U.S. Supreme Court held that an acquittal “does not prove that the defendant is innocent.” The Independent Report succinctly pointed out that the burden of proof in criminal cases requires proving guilt beyond a reasonable doubt. The Supreme Court has made it clear that a jury must acquit “someone who is probably guilty but whose guilt has not been established beyond a reasonable doubt.”
The fundamental disagreement between the two reports -- did the Committee review only innocent persons wrongfully convicted. The Committee Report suggested that 11 people in Pennsylvania have been exonerated “partly or totally on the basis of DNA.” The Independent Report acknowledged that in one of the 11 cases cited by the Committee, “it is clear that and individual was wrongfully convicted.” However, considerable space in the Independent Report is dedicated to arguing that the remaining 10 individuals are not factually innocent.
Why is the definition of “wrongfully convicted” so important to the authors of the Independent Report? The Independent Report suggested, “The mis-definition of 'innocent' persons to include scores of guilty defendants means that the 'reforms' based on the mis-definition are likely to reward the guilty and make their convictions less likely in the future.” The Committee Report contended, “These exonerations challenge long-accepted assumptions in the soundness of certain practices of the criminal justice system.” The Committee Chairman, Duquesne University law professor John Rago, said "Mistakes happen—the question becomes how do we respond to our mistakes.”
Over the next couple of weeks The Cautionary Instruction will examine the recommendations put forth in the Advisory Committee Report and the Independent Report.
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Tuesday, September 20, 2011
Eyewitness Identification Comes to the Forefront
Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial
According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.
Matthew T. Mangino is the former district attorney of Lawrence County, Pa. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com.
Visit Pennsylvania Law Weekly
September 20, 2011
Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial. Thirty years ago, Supreme Court Justice William J. Brennan Jr. wrote: "There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, 'That's the one!'"
However, following the publication of hundreds of scholarly studies examining eyewitness identification this widely accepted form of evidence is being called into question.According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.
Matthew T. Mangino is the former district attorney of Lawrence County, Pa. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com.
Visit Pennsylvania Law Weekly
Sunday, September 18, 2011
The Cautionary Instruction: Orwell, Global Positioning Systems and the U.S Supreme Court
The Pittsburgh Post-Gazette/Ipso Facto
September 16, 2011
In 1949, George Orwell published Nineteen Eighty-Four, a novel. Orwell describes a futuristic state, its leader Big Brother and the constant use of surveillance to maintain order. More than half-a-century later, Orwell’s book is drawing a lot of comparisons to global positioning system (GPS) technology used in modern law enforcement investigations.
GPS, in development since as early as 1959, came into its own during the first gulf war. The desert-based war was the first combat use of GPS, and it was hugely successful. Law enforcement quickly realized the potential for GPS and many civil libertarians were quick to realize the technology’s impact on civil liberties.
The U.S. Supreme Court will hear a case this fall that will try to reconcile what was once considered science fiction with the reality of everyday life. At stake are the fundamental protections of the Fourth Amendment, freedom from “unreasonable search and seizure.”
In United States v. Jones, the Supreme Court will hear arguments regarding what some consider to be the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?
In 2005, police investigating alleged drug activity secured a warrant, valid for 10 days, from a federal judge who authorized the attachment of a GPS device to a vehicle registered to the wife of Antoine Jones. The attachment of the device was authorized to occur in Washington, D.C. Instead, investigators attached the device while the car was parked in Maryland. The GPS device was used to record Jones’ movements around-the-clock for four weeks -- without seeking a time extension from the court.
In overturning Jones’ conviction, Federal Judge Douglas H. Ginsburg wrote, “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.”
In the Jones case, the Government is arguing that GPS devices can be especially helpful in the early stages of an investigation as the police gather evidence. Requiring a warrant could hurt the government's ability to investigate drug trafficking, terrorism and other crimes.
Jones’ attorneys argued, "The advent of satellite-based tracking technology has enabled the government to engage in 24-hour tracking of the movements of any private citizen for extended -- indeed unlimited -- periods of time.”
Visit Matt Mangino
September 16, 2011
In 1949, George Orwell published Nineteen Eighty-Four, a novel. Orwell describes a futuristic state, its leader Big Brother and the constant use of surveillance to maintain order. More than half-a-century later, Orwell’s book is drawing a lot of comparisons to global positioning system (GPS) technology used in modern law enforcement investigations.
GPS, in development since as early as 1959, came into its own during the first gulf war. The desert-based war was the first combat use of GPS, and it was hugely successful. Law enforcement quickly realized the potential for GPS and many civil libertarians were quick to realize the technology’s impact on civil liberties.
The U.S. Supreme Court will hear a case this fall that will try to reconcile what was once considered science fiction with the reality of everyday life. At stake are the fundamental protections of the Fourth Amendment, freedom from “unreasonable search and seizure.”
In United States v. Jones, the Supreme Court will hear arguments regarding what some consider to be the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?
In 2005, police investigating alleged drug activity secured a warrant, valid for 10 days, from a federal judge who authorized the attachment of a GPS device to a vehicle registered to the wife of Antoine Jones. The attachment of the device was authorized to occur in Washington, D.C. Instead, investigators attached the device while the car was parked in Maryland. The GPS device was used to record Jones’ movements around-the-clock for four weeks -- without seeking a time extension from the court.
In overturning Jones’ conviction, Federal Judge Douglas H. Ginsburg wrote, “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.”
In the Jones case, the Government is arguing that GPS devices can be especially helpful in the early stages of an investigation as the police gather evidence. Requiring a warrant could hurt the government's ability to investigate drug trafficking, terrorism and other crimes.
Jones’ attorneys argued, "The advent of satellite-based tracking technology has enabled the government to engage in 24-hour tracking of the movements of any private citizen for extended -- indeed unlimited -- periods of time.”
Visit Matt Mangino
Monday, September 12, 2011
Death Penalty in Ohio to be Reviewed by State Supreme Court
Ohio Supreme Court Chief Justice Maureen O'Connor announced a committee will review the state's death penalty law and determine if changes should be made to the 30 year old law, according to the Associated Press.
The review will make sure the current system is administered fairly, efficiently and in the most "judicious manner possible,” said Judge O’Connor. "Is the system we have the best we can do?" said O'Connor told the Associated Press. She added "Convening persons with broad experience on this subject will produce a fair, impartial, and balanced analysis."
The 20-member committee, convened by the Supreme Court and the Ohio State Bar Association, will consist of judges, prosecuting attorneys, criminal defense lawyers, lawmakers and academic experts.
O'Connor made it clear in the annual speech given by chief justices that the review won't debate the law itself, reported the Associated Press.
A 2005 review of 20 years of capital punishment data by the Associated Press concluded that death sentences varied widely depending on where in the state charges were brought. The AP review also found people convicted of killing a white victim were twice as likely to receive a death sentence as those whose victim was black.
As it stands, the state is the midst of an unofficial death penalty moratorium while a federal judge decides whether the policies Ohio follows for carrying out executions are constitutional. Three executions have already been postponed and on Thursday defense attorneys filed a motion to delay an execution scheduled for next month.
Sunday, September 11, 2011
Ohio's death penalty derailed
Youngstown Vindicator
Matthew T. Mangino
Sunday, September 11, 2011
Has the tide turned in Ohio? At one point, several months ago, Ohio had executed more prisoners in 2011 than any other state. In 2010, Ohio was behind only Texas in the number of executions carried out. Texas has been the most prolific purvey of state-sponsored death since the death penalty was reinstated in 1976.
Ohio was literally setting the standard for executions nationwide. In 2009, after a brief moratorium following the botched execution of Romel Broom, Ohio was the first state to move from the standard three-drug execution protocol to a single-drug protocol.
Ohio was the second state to replace the sedative sodium thiopental used as an execution drug, currently in short supply, with pentobarbital. Ohio is the only state with a single-drug protocol using only pentobarbital.
Inconsistencies
That all changed in early July, when U.S. District Court Judge Gregory L. Frost delayed the scheduled execution of death row inmate Kenneth Wayne Smith after finding Ohio enforces some of its execution policies inconsistently.
Judge Frost wrote, “It is the policy of the State of Ohio that the state follows its written execution protocol, except when it does not.” Judge Frost continued, “Sometimes with no physical ramification and sometimes with what has been described as messy if not botched executions.”
The court found that the state failed to have the required medical personnel available, failed to properly document preparation of the execution drugs, or to prepare inmates for lethal injection.
Since then, the Ohio Supreme Court has scheduled two executions for well into 2013 providing additional time to address the concerns with Ohio’s execution protocol. Gov. John Kasich postponed a second execution, this one scheduled for August 16, 2011. The New York Times has suggested that Gov. Kasich’s action “is an admission that Ohio’s management of the death penalty is broken and further proof that the machinery of death cannot be operated responsibly anywhere.”
Ohio is front and center in America’s death penalty debate. The state is a hotbed of prominent politicos who have turned their back on capital punishment. Recently, a number of prominent Ohioans came out publicly in opposition to the death penalty. Earlier this year, Ohio Supreme Court Justice Paul E. Pfeiffer declared his opposition to the death penalty in an op-ed published in the Cleveland Plain Dealer.
Former Ohio Attorney General Jim Petro recently told the Cincinnati Enquirer, “I used to believe that the death penalty was a crime deterrent and cost less than incarcerating someone for 40 years. I know now it does not save money and is not a deterrent to crime.” Petro and Pfeiffer were both members of the legislature in 1981 when Ohio’s death penalty statute was passed.
Death row
Last year, Ohio moved more offenders off of death row than were placed on death row. There were eight executions and three commutations. Only seven offenders were sentenced to death statewide. At the current rate it would take 38 years to clear Ohio’s death row. Nationwide the numbers are even more abysmal. There are about 3,400 offenders on death row. It would take 73 years to execute everyone on death row at last year’s execution rate — even without adding another person to death row.
The death penalty is in question, not because some killers do not deserve themselves to die, but rather because the act of execution has become so rare as to indicate the presence of caprice if an offender is executed or fortuity if an offender is not. Neither caprice nor fortuity has a place in the criminal justice system.
Saturday, September 10, 2011
The Cautionary Instruction: How much would you pay for...
The Pittsburgh Post-Gazette/Ipso Facto
Matthew T. Mangino
September 9, 2011
There has not been a significant terrorist attack in the United States since 9/11. There have been a number of terrorist acts thwarted by intelligence agencies, law enforcement efforts and probably a little luck -- like the shoe bomber, Richard Reid in 2002; the 2006 liquid explosives plot targeting airliners, which resulted in a boon for the travel size shampoo manufacturers; the 2009 Detroit bound airliner plot; and last year’s car bomb in Times Square.
A decade after the horrendous September 11, 2001 attacks on the World Trade Center and the Pentagon, the Los Angeles Times reported that federal and state governments are spending about $75 billion a year on domestic security, setting up sophisticated radio networks, upgrading emergency medical response equipment, installing surveillance cameras and bombproof walls, and outfitting airport screeners to detect an ever-evolving list of mobile explosives.
“The number of people worldwide who are killed by Muslim-type terrorists, al Qaeda wannabes, is maybe a few hundred outside of war zones. It's basically the same number of people who die drowning in the bathtub each year," said John Mueller, an Ohio State University professor.
Professor Mueller asks, "So if your chance of being killed by a terrorist in the United States is 1 in 3.5 million, the question is, how much do you want to spend to get that down to 1 in 4.5 million?"
Your chance of being killed by a run-of-the-mill domestic murderer is at least 175 times greater than being killed by a terrorist. In 2009, there were 15,214 murders in the U.S., about 5.4 murders for every 100,000 people. The number of murders per capita is down considerably from the mid-1990s, but substantially higher than the death by terrorism threat.
Knowing that, how much would you pay for more police protection?
Congress doesn’t believe you’d pay anything more for police protection -- in fact congress is paying less. The Justice Department’s 2011 budget was slashed by nearly $1 billion -- a 2.9 percent decrease from last year. Local police departments, many of which are already reeling from the economic downturn, are going to feel the pinch.
The cuts represent about a 17 percent across the board reduction for a variety of law enforcement grant programs, and about $296 million less for the Community Oriented Policing Services program that covers the salaries and benefits of newly hired police officers for three years.
Pennsylvania U.S. Senator Bob Casey said cuts to state and local law enforcement and the COPS program, “will negatively impact the safety of my constituents and citizens across the country.”
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Matthew T. Mangino
September 9, 2011
There has not been a significant terrorist attack in the United States since 9/11. There have been a number of terrorist acts thwarted by intelligence agencies, law enforcement efforts and probably a little luck -- like the shoe bomber, Richard Reid in 2002; the 2006 liquid explosives plot targeting airliners, which resulted in a boon for the travel size shampoo manufacturers; the 2009 Detroit bound airliner plot; and last year’s car bomb in Times Square.
A decade after the horrendous September 11, 2001 attacks on the World Trade Center and the Pentagon, the Los Angeles Times reported that federal and state governments are spending about $75 billion a year on domestic security, setting up sophisticated radio networks, upgrading emergency medical response equipment, installing surveillance cameras and bombproof walls, and outfitting airport screeners to detect an ever-evolving list of mobile explosives.
“The number of people worldwide who are killed by Muslim-type terrorists, al Qaeda wannabes, is maybe a few hundred outside of war zones. It's basically the same number of people who die drowning in the bathtub each year," said John Mueller, an Ohio State University professor.
Professor Mueller asks, "So if your chance of being killed by a terrorist in the United States is 1 in 3.5 million, the question is, how much do you want to spend to get that down to 1 in 4.5 million?"
Your chance of being killed by a run-of-the-mill domestic murderer is at least 175 times greater than being killed by a terrorist. In 2009, there were 15,214 murders in the U.S., about 5.4 murders for every 100,000 people. The number of murders per capita is down considerably from the mid-1990s, but substantially higher than the death by terrorism threat.
Knowing that, how much would you pay for more police protection?
Congress doesn’t believe you’d pay anything more for police protection -- in fact congress is paying less. The Justice Department’s 2011 budget was slashed by nearly $1 billion -- a 2.9 percent decrease from last year. Local police departments, many of which are already reeling from the economic downturn, are going to feel the pinch.
The cuts represent about a 17 percent across the board reduction for a variety of law enforcement grant programs, and about $296 million less for the Community Oriented Policing Services program that covers the salaries and benefits of newly hired police officers for three years.
Pennsylvania U.S. Senator Bob Casey said cuts to state and local law enforcement and the COPS program, “will negatively impact the safety of my constituents and citizens across the country.”
Visit Matt Mangino
Tuesday, August 23, 2011
It's Time for Pennsylvania to Get Moving Against Wrongful Convictions
Matthew T. Mangino
The Pennsylvania Law Weekly
August 23, 2011
In November 2006, Sen. Stewart J. Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, sponsored a resolution passed by the Pennsylvania Senate that created an Advisory Committee on Wrongful Conviction. Senate Resolution 381 directed that the joint state government committee, which is responsible for performing research for both houses and both parties of the General Assembly, establish the advisory committee.
The Senate resolution provided that the advisory committee on wrongful conviction shall, "Study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future innocent persons will be wrongfully convicted."
The resolution further directed the committee to, "review cases in which an innocent person was wrongfully convicted and subsequently exonerated, review any other relevant materials, identify the most common causes of wrongful convictions." Finally the committee must "consider potential implementation plans, cost implications, including possible savings, and the impact on the criminal justice system for each potential solution."
Nearly five years have passed without the committee issuing a report. Greenleaf's office has said it will be released next month. Meanwhile, several other states have been leading the charge in implementing means of evaluating possible wrongful convictions.
North Carolina is leading the way in government sponsored post-conviction review of innocence claims. In 2006, North Carolina established the Innocence Inquiry Commission, a state agency that investigates and evaluates post-conviction claims of factual innocence. The commission is made up of eight members selected by the chief justice of the North Carolina Supreme Court and the chief judge of the North Carolina Court of Appeals. The members include a Superior Court judge, a prosecuting attorney, a defense attorney, a victim advocate, a member of the public and two discretionary members.
The North Carolina commission has received 850 claims, conducted three hearings and issued one exoneration order.
Until recently, innocence claims were pursued by privately funded organizations.
According to USA Today , in Texas, state leaders are awaiting a commission study on the effects of innocence-related laws on eyewitness identification, the videotaping of interrogations and post-conviction DNA testing. In Florida, a commission created to examine the causes of wrongful convictions delivered a report to the state Supreme Court calling for police to follow state-issued guidelines on photo and live suspect lineups. USA Today , citing the Innocence Project, reported that five states in addition to Pennsylvania — California, Connecticut, Illinois, New York and Wisconsin — have established commissions to study the causes of wrongful convictions and make recommendations to lawmakers, police and the courts.
The state's advisory committee on wrongful conviction consists of judges, prosecutors, defense lawyers, law enforcement officers and victims' advocates. The project is chaired by John T. Rago, a Duquesne University law professor and director of the Cyril H. Wecht Institute of Forensic Science and Law, who, according to the Pittsburgh Post-Gazette , proposed the study to Greenleaf.
The advisory committee has yet to issue its findings. Originally it was reported that a final advisory committee report would be issued in late 2008. In June of 2009, the Pittsburgh Tribune-Review reported that, "The Senate-commissioned Committee on Wrongful Convictions is due to release a report by summer's end that could recommend changes in state law."
Summer came and went in 2009 without a report. At least one of the advisory committee's four subcommittees provided some public feedback. The science subcommittee made four recommendations. First, the science subcommittee called for a regulation mandating the preservation of biological evidence, as well as the creation of a forensic advisory board and implementation guidelines for lab accreditation and training.
In July 2010, the Innocence Project posted on its website: "With the upcoming release of a final report from Pennsylvania's Advisory Committee on Wrongful Convictions, the Pennsylvania Innocence Project is hopeful that Pennsylvania will join the growing number of states that require law enforcement officials to videotape all confessions from start to finish."
Obviously, the "upcoming release" of the report has not happened. However, videotaping confessions is indeed an issue that the advisory committee is considering. While a number of law enforcement agencies across the country have adopted some form of videotaping, Pennsylvania has not mandated videotaping of confessions by law enforcement agencies.
The purpose of videotaping is to ensure that confessions are free and voluntary and that the accused is not laboring under some defect that would render her confession involuntary. The subcommittee charged with evaluating this issue has sought public comment and the committee members are apparently hung up on when the videotaping should begin. Some members suggest that the videotape should not start rolling until the accused has been provided her Miranda rights, while others believe that the videotape should roll as soon as the interview begins.
Judging by the work in other states, the advisory committee should also address the use of informants and eyewitness misidentification. Professor Alexandra Natapoff recently wrote for Reason Magazine that a 2004 study by researchers at Northwestern University Law School found that "more than 45 percent of wrongful convictions in death penalty cases were due to false informant testimony; making snitches 'the leading cause of wrongful convictions in U.S. capital cases.'"
According to the Innocence Project, eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of all wrongful convictions.
Greenleaf's office said that the report is now scheduled for release on Sept. 16 to correspond with the fall legislative session. Only time will tell, as more than four years have passed since the advisory committee on wrongful convictions was established. At the time there were 198 DNA exonerations nationwide and nine in Pennsylvania. Today, according to the Innocence Project there are 273 DNA exonerations nationwide and 11 in Pennsylvania.
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The Pennsylvania Law Weekly
August 23, 2011
In November 2006, Sen. Stewart J. Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, sponsored a resolution passed by the Pennsylvania Senate that created an Advisory Committee on Wrongful Conviction. Senate Resolution 381 directed that the joint state government committee, which is responsible for performing research for both houses and both parties of the General Assembly, establish the advisory committee.
The Senate resolution provided that the advisory committee on wrongful conviction shall, "Study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future innocent persons will be wrongfully convicted."
The resolution further directed the committee to, "review cases in which an innocent person was wrongfully convicted and subsequently exonerated, review any other relevant materials, identify the most common causes of wrongful convictions." Finally the committee must "consider potential implementation plans, cost implications, including possible savings, and the impact on the criminal justice system for each potential solution."
Nearly five years have passed without the committee issuing a report. Greenleaf's office has said it will be released next month. Meanwhile, several other states have been leading the charge in implementing means of evaluating possible wrongful convictions.
North Carolina is leading the way in government sponsored post-conviction review of innocence claims. In 2006, North Carolina established the Innocence Inquiry Commission, a state agency that investigates and evaluates post-conviction claims of factual innocence. The commission is made up of eight members selected by the chief justice of the North Carolina Supreme Court and the chief judge of the North Carolina Court of Appeals. The members include a Superior Court judge, a prosecuting attorney, a defense attorney, a victim advocate, a member of the public and two discretionary members.
The North Carolina commission has received 850 claims, conducted three hearings and issued one exoneration order.
Until recently, innocence claims were pursued by privately funded organizations.
According to USA Today , in Texas, state leaders are awaiting a commission study on the effects of innocence-related laws on eyewitness identification, the videotaping of interrogations and post-conviction DNA testing. In Florida, a commission created to examine the causes of wrongful convictions delivered a report to the state Supreme Court calling for police to follow state-issued guidelines on photo and live suspect lineups. USA Today , citing the Innocence Project, reported that five states in addition to Pennsylvania — California, Connecticut, Illinois, New York and Wisconsin — have established commissions to study the causes of wrongful convictions and make recommendations to lawmakers, police and the courts.
The state's advisory committee on wrongful conviction consists of judges, prosecutors, defense lawyers, law enforcement officers and victims' advocates. The project is chaired by John T. Rago, a Duquesne University law professor and director of the Cyril H. Wecht Institute of Forensic Science and Law, who, according to the Pittsburgh Post-Gazette , proposed the study to Greenleaf.
The advisory committee has yet to issue its findings. Originally it was reported that a final advisory committee report would be issued in late 2008. In June of 2009, the Pittsburgh Tribune-Review reported that, "The Senate-commissioned Committee on Wrongful Convictions is due to release a report by summer's end that could recommend changes in state law."
Summer came and went in 2009 without a report. At least one of the advisory committee's four subcommittees provided some public feedback. The science subcommittee made four recommendations. First, the science subcommittee called for a regulation mandating the preservation of biological evidence, as well as the creation of a forensic advisory board and implementation guidelines for lab accreditation and training.
In July 2010, the Innocence Project posted on its website: "With the upcoming release of a final report from Pennsylvania's Advisory Committee on Wrongful Convictions, the Pennsylvania Innocence Project is hopeful that Pennsylvania will join the growing number of states that require law enforcement officials to videotape all confessions from start to finish."
Obviously, the "upcoming release" of the report has not happened. However, videotaping confessions is indeed an issue that the advisory committee is considering. While a number of law enforcement agencies across the country have adopted some form of videotaping, Pennsylvania has not mandated videotaping of confessions by law enforcement agencies.
The purpose of videotaping is to ensure that confessions are free and voluntary and that the accused is not laboring under some defect that would render her confession involuntary. The subcommittee charged with evaluating this issue has sought public comment and the committee members are apparently hung up on when the videotaping should begin. Some members suggest that the videotape should not start rolling until the accused has been provided her Miranda rights, while others believe that the videotape should roll as soon as the interview begins.
Judging by the work in other states, the advisory committee should also address the use of informants and eyewitness misidentification. Professor Alexandra Natapoff recently wrote for Reason Magazine that a 2004 study by researchers at Northwestern University Law School found that "more than 45 percent of wrongful convictions in death penalty cases were due to false informant testimony; making snitches 'the leading cause of wrongful convictions in U.S. capital cases.'"
According to the Innocence Project, eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of all wrongful convictions.
Greenleaf's office said that the report is now scheduled for release on Sept. 16 to correspond with the fall legislative session. Only time will tell, as more than four years have passed since the advisory committee on wrongful convictions was established. At the time there were 198 DNA exonerations nationwide and nine in Pennsylvania. Today, according to the Innocence Project there are 273 DNA exonerations nationwide and 11 in Pennsylvania.
Visit Matt Mangino's Blog
Friday, July 22, 2011
Offenders to Get Review in Light of New Sentencing Guidelines
The Pennsylvania Law Weekly
July 19, 2011
By: Matthew T. Mangino
Federal judges will be pounding the Federal Sentence Guidelines as the result of two significant decisions in the last couple of weeks. Why? Two reasons. The first is the U.S. Supreme Court decision in Freeman v. United States , and the second is the decision by the U.S. Sentencing Commission regarding retroactivity of the sentence guideline amendment related to the crack/powder cocaine sentencing disparity.
In 2005, William Freeman pled guilty to a federal drug offense and was sentenced to 106 months in prison based on a plea agreement that referred to, and was consistent with, the federal sentence guideline of 46 to 57 months plus a 60-month gun enhancement.
Two years later, the U.S. Sentencing Commission amended the guideline to reduce the crack/powdered cocaine sentencing disparity. The guidelines were changed after criticism that harsher sentences for crack disproportionately punished African-Americans. The amendment changed the range of Freeman's sentence from 46 to 57 months to 37 to 46 months.
A federal judge refused Freeman's motion for a sentence reduction of about nine-months, and the 6th U.S. Circuit Court of Appeals affirmed. The Federal District Court and the 6th Circuit had ruled that offenders such as Freeman, who had entered into plea bargains in which the proposed sentence was binding on a judge, could not take advantage of the new guidelines because their sentences were not based on the guidelines.
However, the U.S. Supreme Court disagreed.
According to Justice Anthony Kennedy writing for the majority, "there is no reason to deny" Freeman a sentence reduction since federal law allows judges to correct sentences that were based on a guideline provision that was later adjusted, amended or ruled invalid.
In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the U.S. Sentencing Commission to create, and to retroactively amend, sentencing guidelines to enhance judicial discretion. According to the U.S. Supreme Court in Freeman , "Title 18 U. S. C. §3582(c)(2) permits an offender who was sentenced to a term of imprisonment "based on" a guidelines sentencing range that has subsequently been lowered by retroactive amendment to move for a sentence reduction.
"In every case the judge must exercise discretion to impose an appropriate sentence," Kennedy wrote. "This discretion, in turn, is framed by the guidelines. And the guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence."
Chief Justice John Roberts wrote a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Roberts wrote that a plea bargain, like any agreement, has its bitter and sweet parts. "Because of today's decision, however, Freeman gets more sweet and the government more bitter than either side bargained for," wrote Chief Justice Roberts.
The precise impact of the Freeman decision is unclear because Justice Sonia Sotomayor joined in the majority, but concluded that a convicted offender is eligible for a reduction only if the plea agreement was specifically based on a recommended sentence that was tied to the guidelines.
This past week's other big news regarding the Federal Sentence Guidelines also had to do with the crack/powder sentencing disparity. The U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010.
The Fair Sentencing Act of 2010 reduced the crack/powder cocaine sentence disparity from 100 to 1 down to 18 to 1. According to The Washington Post , an offender would have to be convicted of selling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. The legislation also eliminated a mandatory minimum sentence for simple possession.
The Federal Sentence Guidelines were at one time binding on federal judges. A federal judge had discretion to sentence a defendant, but only within the narrow sentencing range provided by the guidelines, according to the Congressional Research Service. In United States v. Booker (2005), the U.S. Supreme Court declared that the guidelines must be considered advisory rather than mandatory, in order to comply with the Constitution. Instead of being bound by the guidelines, sentencing courts must treat the federal guidelines as just one of a number of sentencing factors. After Booker , some judges imposed lower sentences on crack cocaine offenders than the sentences recommended by the guidelines. In 2007, the Supreme Court in Kimbrough v. United States , ruled that a court may impose a below-the-guidelines sentence based on its conclusion that the 100:1 crack/powder cocaine ratio created an unnecessary disparity.
A U.S. Sentencing Commission press release estimated, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of more than $200 million within the first five years after retroactivity takes effect.
The chairwoman of the commission, Federal District Court Judge Patti B. Saris acknowledged that early release "may negatively impact public safety." She said that "careful thought given to the offender's potential risk to public safety" would be part of the judicial review called for in the new policy, reported The New York Times .
Federal judges will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction provided by the Sentencing Commission. Those instructions will include specific consideration of whether reducing an offender's sentence would pose a risk to public safety.
Matthew T. Mangino is the former district attorney of Lawrence County. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com
July 19, 2011
By: Matthew T. Mangino
Federal judges will be pounding the Federal Sentence Guidelines as the result of two significant decisions in the last couple of weeks. Why? Two reasons. The first is the U.S. Supreme Court decision in Freeman v. United States , and the second is the decision by the U.S. Sentencing Commission regarding retroactivity of the sentence guideline amendment related to the crack/powder cocaine sentencing disparity.
In 2005, William Freeman pled guilty to a federal drug offense and was sentenced to 106 months in prison based on a plea agreement that referred to, and was consistent with, the federal sentence guideline of 46 to 57 months plus a 60-month gun enhancement.
Two years later, the U.S. Sentencing Commission amended the guideline to reduce the crack/powdered cocaine sentencing disparity. The guidelines were changed after criticism that harsher sentences for crack disproportionately punished African-Americans. The amendment changed the range of Freeman's sentence from 46 to 57 months to 37 to 46 months.
A federal judge refused Freeman's motion for a sentence reduction of about nine-months, and the 6th U.S. Circuit Court of Appeals affirmed. The Federal District Court and the 6th Circuit had ruled that offenders such as Freeman, who had entered into plea bargains in which the proposed sentence was binding on a judge, could not take advantage of the new guidelines because their sentences were not based on the guidelines.
However, the U.S. Supreme Court disagreed.
According to Justice Anthony Kennedy writing for the majority, "there is no reason to deny" Freeman a sentence reduction since federal law allows judges to correct sentences that were based on a guideline provision that was later adjusted, amended or ruled invalid.
In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the U.S. Sentencing Commission to create, and to retroactively amend, sentencing guidelines to enhance judicial discretion. According to the U.S. Supreme Court in Freeman , "Title 18 U. S. C. §3582(c)(2) permits an offender who was sentenced to a term of imprisonment "based on" a guidelines sentencing range that has subsequently been lowered by retroactive amendment to move for a sentence reduction.
"In every case the judge must exercise discretion to impose an appropriate sentence," Kennedy wrote. "This discretion, in turn, is framed by the guidelines. And the guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence."
Chief Justice John Roberts wrote a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Roberts wrote that a plea bargain, like any agreement, has its bitter and sweet parts. "Because of today's decision, however, Freeman gets more sweet and the government more bitter than either side bargained for," wrote Chief Justice Roberts.
The precise impact of the Freeman decision is unclear because Justice Sonia Sotomayor joined in the majority, but concluded that a convicted offender is eligible for a reduction only if the plea agreement was specifically based on a recommended sentence that was tied to the guidelines.
This past week's other big news regarding the Federal Sentence Guidelines also had to do with the crack/powder sentencing disparity. The U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010.
The Fair Sentencing Act of 2010 reduced the crack/powder cocaine sentence disparity from 100 to 1 down to 18 to 1. According to The Washington Post , an offender would have to be convicted of selling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. The legislation also eliminated a mandatory minimum sentence for simple possession.
The Federal Sentence Guidelines were at one time binding on federal judges. A federal judge had discretion to sentence a defendant, but only within the narrow sentencing range provided by the guidelines, according to the Congressional Research Service. In United States v. Booker (2005), the U.S. Supreme Court declared that the guidelines must be considered advisory rather than mandatory, in order to comply with the Constitution. Instead of being bound by the guidelines, sentencing courts must treat the federal guidelines as just one of a number of sentencing factors. After Booker , some judges imposed lower sentences on crack cocaine offenders than the sentences recommended by the guidelines. In 2007, the Supreme Court in Kimbrough v. United States , ruled that a court may impose a below-the-guidelines sentence based on its conclusion that the 100:1 crack/powder cocaine ratio created an unnecessary disparity.
A U.S. Sentencing Commission press release estimated, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of more than $200 million within the first five years after retroactivity takes effect.
The chairwoman of the commission, Federal District Court Judge Patti B. Saris acknowledged that early release "may negatively impact public safety." She said that "careful thought given to the offender's potential risk to public safety" would be part of the judicial review called for in the new policy, reported The New York Times .
Federal judges will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction provided by the Sentencing Commission. Those instructions will include specific consideration of whether reducing an offender's sentence would pose a risk to public safety.
Matthew T. Mangino is the former district attorney of Lawrence County. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com
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