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.
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Saturday, October 29, 2011
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.
Visit Matt Mangino's Blog
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