The Cautionary Instruction: The economy’s impact on crime has yet to play out

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 15, 2012

Many experts predicted that a sour economy would usher in an increase in crime. Yet the recession did not result in out-of-work, law abiding citizens desperately resorting to crime to make ends meet. Crime continued to fall. 

However, the economy’s impact on crime has not yet played itself out. State and local governments are still in decline -- government budgets have been adjusted with policing, corrections and the courts taking a hit.

The effect of the economic downturn on law enforcement agencies may be felt for years to come, or worse, permanently. The permanence of this change will be driven not just by the economy, but by the realization that it is no longer feasible for local government officials to allocate a significant portion of the general fund budgets for public safety.

More than 50 percent of police departments nationwide have reported personnel layoffs. Communities across the country are beginning to feel it. No more so than in New Jersey.

Police layoffs in Newark, which took effect December 1, 2010, seemed to have had an immediate effect on arrests. Between January and June of 2011, police recorded nearly 4,000 fewer arrests than they did during the same period in 2010. 

The Economic Policy Institute reported there is more to cost-cutting than meets the eye. Cuts to the police force of five high-crime cities in New Jersey, including Newark, actually cost 12.9 times more than the budgetary savings of eliminating the officers, when the cost of rising crime was factored into the equation. Public safety cuts are not only dangerous, they’re bad business.

The reality of fewer policing resources has caused police departments to re-evaluate priorities. Although, cash strapped departments have pledged that emergency response will not be diminished -- there will inevitably be a change in the way police departments handle non-emergencies. The response time, if there is a response, for crimes like burglary, theft and vandalism -- quality of life crimes -- will be impacted. 


That might not seem like a big deal, but New York City, the shining example of crime control, began their crusade against crime in the early 1990s by following James Q. Wilson’s Broken Windows theory. Wilson suggested vigorously cracking down on nuisance crimes and violent crime rates will drop. In 1990 there were 2,245 murders in NYC -- in 2011 there were 515.

The new economic reality may limit resource-driven crime control efforts like NYC’s, and that portends disaster. Professor James Alan Fox recently sounded the alarm. From July through December 2011 several crime categories showed an increase, including a 1.9 percent increase in murder.

Fox wrote in the Boston Globe, "Whatever the final data show, it would seem that the long-term downturn in crime has slowed, and may even have bottomed out … If we fail to invest sufficiently in crime prevention and crime control -- both personnel and programs, we may someday look back at 2011 and consider them the 'good old days.' "

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The Cautionary Instruction: Using the medical model in the criminal justice realm

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 4, 2012

Anyone who has had a recent medical procedure knows that insurance companies are tightening the purse strings. Insurers are not paying for needless, unproven procedures -- treatment not supported by medical research.

The criminal justice system is experiencing the same phenomenon. The government controls the purse strings. Tough economic times are prompting a new look at spending priorities at all government levels, and scientific evidence of a program’s success or failure may play a part in whether it survives a budget cut.
The difference between medicine and criminal justice is that medical practitioners know what works -- criminal justice practitioners don’t.

A doctor in Georgia will treat the symptoms of acute myocardial infarction (AMI), or heart attack, with the same general protocol as doctors in Oregon or Kansas. The current protocol for treating patients with AMI is either pharmacological (clot-dissolving therapy) or mechanical (coronary angioplasty).

Criminal justice is different. Although criminal justice practitioners boast of using evidence-based practices there are no standard best practices accepted by all criminal justice practitioners.

A review of efforts across the nation to deal with prison overcrowding is instructive:

Pennsylvania plans on reducing inmates and costs by weeding out inefficiencies. The Department of Corrections suggests that slow processing keeps about 1,900 inmates per year in prison when they could safely be released on parole. Better processing alone could save nearly $61 million a year.

New Hampshire is considering privatizing its prison system. The state's prison population climbed 31 percent between 2000 and 2010 despite a stable crime rate. Half of that increase was attributed to inmates who leave prison and return for a parole violation or a new offense.

California has gone through an unprecedented realignment of its prison system shifting responsibility for a significant number of prisoners from state prisons to local county jails. This realignment has also shifted responsibility from the courts to the sheriff to release individuals who are in jail on bond pretrial, a significant portion of the county jail population.

Mississippi is testing a global-positioning device that costs about $13 a day per convict to keep tabs on individuals — far less than the $41.74 cost to house and feed a prisoner. Elderly and terminally ill inmates are being released to their families, or hospices, saving nearly $5 million.

Alabama, Colorado, Kentucky, and Rhode Island have reduced or eliminated jail or prison time for parole and probation violations, opting instead for stricter supervision and alternative sentences like community service.

Arkansas, Louisiana and Texas have attempted to reduce recidivism by stronger emphasis on reentry planning that is tailored to meet individuals' needs.

Florida and South Carolina have created alternative sentencing options for low-level, low-risk offenders, such as probation instead of jail time.

Tennessee and Virginia have removed minimum sentencing requirements for certain drug-related violations.

Above are 16 different approaches to the same problem. Why can’t prison wardens and corrections officials agree on a best practice to reduce prison crowding? Imagine a different treatment protocol in every state for AMI.

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mattmangino.com reaches 1,000 post milestone

 'Texas executes man for 'execution' style killing' at mattmangino.com was the sites 1,000th post.  The first post was an op-ed written my Matt Mangino for the Cleveland Plain-Dealer on November 9, 2009.  Between the those two posts the site included 57 blogs, The Cautionary Instruction, for the Pittsburgh Post-Gazette legal page Ipso Facto, 28 articles written for the Pennsylvania Law Weekly and 27 columns written for the Youngstown Vindicator.

Mattmangino.com has chronicled every execution in 2010, 2011 and 2012.  The site has offered the occasional book review and has extensively explored crime, prison overcrowding, sex offender legislation, evidence-based practices, police procedures, the U.S. Supreme Court, the Castle Doctrine, the Constitution and much, much more. 

Mattmangino.com often utilizes the news of the day to point out certain oddities, absurdities and inconsistencies in the criminal justice system.  The site strives to provide some insight into the workings or failings of the system through the musings of a former prosecutor.

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The Cautionary Instruction: Legislation seeks to make jury duty more manageable

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
April 13, 2012

Jury duty can be a burden, but then so can going to work, paying taxes and taking out the garbage. The burden of jury duty goes beyond the inconvenience. Sitting in judgment of a fellow citizen is not something that most people relish.

Maybe that is why, nationally, about 46 percent of people summoned for jury duty actually show up, according to a 2007 survey conducted by the National Center for State Courts.
The “no shows” are excused or disqualified for a variety of reasons, including medical or financial hardship, employment in a job exempt from jury service, dire family circumstances or inaccurate notice -- and, yes, some people just blow-off jury duty.

As a result of the declining numbers, Pennsylvania enacted legislation enabling counties to expand the lists from which they draw potential jurors. Current law permits counties to use state income tax and welfare lists in addition to the voter registration and driver license lists that traditionally have been used to summon jurors.

How can the commonwealth make jury duty more palatable? How about reconsidering pay for jurors. Under current law, jurors are paid $9 a day for the first three days of service and $25 a day for each day thereafter.

State Representative Robert F. Matzie (D-Allegheny/Beaver) said the current payment scheme creates a hardship for many residents who are summoned to jury duty.

In theory more people would do their civic duty if it did not mean money out of their pocket.

Matzie’s bill would require employers to pay a juror's ordinary wage or salary each day that the employee is required to report for service and also require the commonwealth to grant a tax credit to the employer for the amount expended.

"It is important that Pennsylvania law supports citizens in the performance of their civic duty to serve on a jury if summoned," Matzie said in a press release. The bill also addresses related expenses like parking and travel costs.

Matzie’s jury reform effort does not stop at compensation. He has also introduced legislation to exempt the following individuals from jury duty:

        • Parents or guardians who have custody of a child younger than seven and who are the caregivers.

• Parents or guardians who have custody of a school-age child who has been excused from compulsory attendance at school or special education program and provide instruction for the child.

• Primary caregivers of an elderly or disabled family member.

Some other states have addressed juror compensation. For instance, Texas increased its juror compensation from $6 per day to $6 for the first day and $40 per day thereafter. The Texas compensation is paid exclusively by the state. The Pennsylvania measure is asking private employers to flip the tab in exchange for a tax credit. That may be a more difficult sell.

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The Cautionary Instruction: Plea bargaining afforded Constitutional protections

The Pittsburgh Post-Gazette/Ipso Facto
March 30, 2012

Plea bargaining is an integral part of the criminal justice system. Last week, Justice Antonin Scalia said, with apparent surprise, that plea bargaining “is no longer a somewhat embarrassing adjunct to our criminal justice system.”

Justice Scalia should not be surprised, 97 percent of federal cases and 94 percent of state cases end in plea bargains. The reality is that criminal justice today is "a system of pleas," wrote Justice Anthony M. Kennedy. In two U.S. Supreme Court decisions last week, the court ruled that the Constitutional guarantee of adequate assistance of counsel cannot exclude the "central role plea bargaining plays." For the most part, plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

The plea bargain, however unpopular or unseemly, plays a central role in the administration of justice.

Setting aside the fact that trying every criminal case is impossible, there are other compelling reasons to plea bargain. Prosecutors are intimately familiar with the strengths and weaknesses of every case. There are situations where a plea to a lesser offense is better than a not guilty verdict. A reluctant witness or a poor witness will influence plea negotiations.

Witnesses often have to deal with their own demons, such as criminal records and substance abuse—such witnesses do not impress juries. In those cases, a plea bargain may not be palatable, but is better than the alternative.

Last week, in Lafler v.Cooper, the court ruled that an attorney's advice to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Frye, the court found that counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.

Justice Kennedy wrote in Frye, “In today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

What will a defendant claiming ineffective assistance of counsel during plea negotiations have to prove? The court has established a three prong analysis. First, a defendant must prove he would have accepted the plea bargain if not for bad legal advice; that there was a reasonable probability that prosecutors would not have withdrawn the offer before trial; and a judge would have accepted the plea.

Justice Scalia calls it “crystal-ball gazing posing as legal analysis.”

Stephanos Bibas, a law professor at the University of Pennsylvania, told the New York Times the decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship. “It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”

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No tweets, no blogs, no posts, oh my

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
February 10, 2012

This week the Pittsburgh Post-Gazette suggested that readers take action to protect their rights to real-time updates from Pennsylvania’s courtrooms.

The Pennsylvania Supreme Court’s Criminal Procedure Rules Committee has proposed prohibiting the use of electronic communication devices in courtrooms. Specifically, the proposed rule would prohibit “transmission by cellular phone, personal communications device, computer, or any other electronic device that has communications capabilities or internet connectivity.”

Pennsylvania has trailed far behind other states in terms of making courtrooms accessible to a wider audience. Although, the Supreme Court let cameras in for some of their arguments, Pennsylvania remains one of only nine states with an outright ban on recording criminal proceedings.

Chief Justice Ronald D. Castille has made it clear that the commonwealth does not intend to make a dramatic shift in terms of opening Pennsylvania’s courtrooms. The Chief Justice recently acknowledged that opening the Supreme Court to cameras would, in turn, raise the question of whether trial courts should also be opened.

While the Supreme Court has the power to change the rules that bar recording, broadcasting and photography, Castille told the Allentown Moring Call the court has little interest in taking that step. "It's probably not going to be in the near future," he said.

The federal government bans cameras in the courtroom. Rule 53 of the Federal Rules of Criminal Procedure bars the taking of photographs in the courtroom or the broadcasting of criminal proceedings. The national policy-making body for the federal courts, the Judicial Conference of the United States, provides that courtroom proceedings may not be broadcast, televised, recorded, or photographed for the purpose of public dissemination.

Judge Mark Bennet of the United States District Court for the Northern District of Iowa recently permitted real-time electronic communication from his courtroom during a trial. He told the ABA Journal, "I thought the public's right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant. . . . I allowed it because of my belief that we are the most mysterious branch of federal government and we need to find ways to be more transparent."

In New York, where cameras are also barred from the courtroom, a state court judge recently allowed a local newspaper to post live Twitter updates from inside the courtroom during a murder trial. Court administrator David Bookstaver noted that judges are often more distracted by reporters “coming and going” as they leave the courtroom to make phone calls, permitting the use of portable electronic devices keep reporters in their seats.

A ban on electronic communications is appropriate for jurors. In Pennsylvania, jury instructions have long admonished jurors to refrain from getting information from any outside sources including the internet.

Preventing the media from reporting on trials in real-time, essentially imposing a judicial “broadcast delay,” is an unnecessary suppression of public access.

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America's "Mental Health Gulag"

Matthew T. Mangino
The Crime ReportJanuary 10, 2012

They say justice is blind. It must be to ignore the plight of the mentally ill in America’s prisons.

The Milwaukee Journal Sentinel’s recent two-part series on serious mental illness highlights the shortcoming inherent in a failed system. Wisconsin is far from the only state to push the mentally ill off on the criminal justice system.

An internal review of conditions inside a North Carolina prison, recently obtained by the Associated Press, found that inmates held in solitary confinement were often locked in cells for extended periods without being let out for meals, recreation time or even showers.

This past February, a North Carolina inmate being secured in solitary confinement had a doctor’s order requiring one hour of exercise per day in the prison’s day room. A review of prison records found that the inmate had not left his cell for 78 days consecutive days.

This is not an isolated case.

According to research published in the Harvard University Civil Rights-Civil Liberties Law Review, the mentally ill typically account for as much as one-half of the population in solitary confinement. In Wisconsin, a 2010 audit of three state prisons reported that “between 55 percent and 76 percent of inmates in segregation [solitary confinement] are mentally ill,” according to a report published in The Crime Report.

Last year, a Utah prisoner suffering from schizophrenia and bipolar disorder died of starvation and dehydration after spending four months in the Salt Lake County Jail. A significant period of his incarceration was spent in solitary confinement. Twenty-year-old Carlos Umana weighed approximately 180 pounds when he entered the jail; when he died, he weighed just 77 pounds.

Why would a young man suffering from mental illness, to the point that he would starve himself to death, be in prison?

According to National Public Radio, the answer is simple; the three largest inpatient psychiatric facilities in the country are the Los Angeles County Jail, Rikers Island in New York City and Cook County Jail in Illinois.

Jails and prisons are America's de facto psychiatric hospitals.

As a member of the Pennsylvania Board of Probation and Parole, my number-one priority is public safety. There are, at times, inmates with severe mental illness who might not be suited for prison. Nonetheless, many are also too dangerous to be released directly to the street.

During the 1960s, policymakers across the country decided to close mental health institutions in favor of community treatment. In 1955, there was one psychiatric hospital bed for every 300 Americans.

Today, according to the Treatment Advocacy Center, a Virginia-based non-profit dedicated to the treatment of severe mental illness, there is one psychiatric hospital bed for every 3,000 Americans. As the Journal Sentinel reported, there are 20 times as many people with mental illness in jails and prisons as there are in psychiatric hospitals.

As it became obvious that the community treatment experiment was not working, some policymakers found it easier and less expensive to stigmatize mentally ill persons as criminals and send them to prison, rather than to treat them with the attention and compassion that is required for those suffering from a debilitating disease.

Once in prison, mentally ill inmates have a difficult time getting out. Prison rules are often violated by offenders who believe cellmates, guards and even family at home are out to harm them.

The mentally ill are often targeted by fellow inmates who are aggravated by the strange manifestations brought on by their illness. Mentally diseased inmates may have a problem concentrating in programming and therefore fail to complete required treatment programs.

Prisons are not completely to blame.

Prison medical systems were not designed nor equipped to provide quality mental health services to prisoners in need. Seriously mentally ill inmates often face overworked or undermanned staff overwhelmed with the need to evaluate and implement treatment plans for an ever growing population of ill inmates.

Our board and the Pennsylvania Department of Corrections work extremely hard to assist inmates with mental illness transition back into the community. Some of my colleagues have committed considerable time and energy to this process.

Such efforts do not eliminate the fact that an absence of available psychiatric hospital bed space makes it extremely difficult to place those inmates with violent criminal histories and intensive treatment needs.

Until we are willing to acknowledge that our prisons have become de facto mental hospitals— and unless we are willing to make the hard and costly decisions that both protect the public and humanely treat those inflicted with disease— I believe the American mental health gulag will continue to indelibly blur the line between justice and expediency.

Trial selection is on trial

Matthew T. Mangino
Youngstown Vindicator
January 8, 2012


The Sixth Amendment to the U.S. Constitution guarantees, to every person accused of a crime, the right to a trial by jury. That right is also ingrained in Article I of the Ohio Constitution. In fact, Ohio is one of only 21 states that continue to leave the request for a jury trial exclusively in the hands of the defendant. However, not every defendant wants to face a jury.

There are a number of tactical reasons that would require a defendant to request a trial in front of a judge as opposed to a jury. A defendant raising technical legal claims may prefer a learned judge over a group of laymen unfamiliar with the nuances of the law.

A defendant with a lengthy criminal record may prefer a judge who has seen many defendants with checkered pasts as opposed to jurors new to the realities of the criminal justice system.

Unfair bias

At times, a crime is so heinous that a jury may be repulsed by the facts. A defendant may choose to take her chances with a judge and avoid the unfair bias that comes with the appalling circumstances of some crimes.
Finally, some defense attorneys judge shop. If the case is assigned to a judge who has been known to be lenient in certain circumstances, the defense will seek a trial in front of that judge without a jury.

Therein lays the concern, for some, with Ohio’s law. While the law is clear that a defendant is entitled to a trial by jury, there is no corresponding “right” for a defendant to demand a trial in front of a judge. Nearly a half century ago, the U.S. Supreme Court held that there is no constitutional right to a criminal trial in front of a judge. Yet that is precisely what happens in Ohio. The prosecution has no options once a defendant waives a trial by jury. That may soon change.

The Legislature is considering H.B. 265. The bill seeks to condition the defendant’s ability to waive a jury trial on the consent of the prosecutor and court. Essentially the bill would empower prosecutors to demand a jury trial, thus giving them veto power over a defendant’s attempt to waive the right.

Although the District of Columbia, the federal government and most states have similar laws that limit a defendant’s exclusive right to select the form of trial, this bill is not without its detractors.

Some suggest that H.B. 265 would supersede the authority of the Supreme Court Commission on the Rules of Practice and Procedure. A Judicial Impact Statement prepared by the Ohio Judicial Conference suggested, “Although the General Assembly may desire to express its will that prosecutors also be able to demand a trial by jury, the General Assembly does not have the authority to establish court procedures in conflict with an existing Ohio Rule of Criminal Procedure.”

The Supreme Court Commission overwhelmingly refused to provide prosecutors the right to demand a jury trial over the objection of defendants, finding that to do so would be “patently unfair to defendants.” The position of the Judicial Conference is that the H.B. 265 cannot be implemented because the Ohio Constitution expressly granted the authority to oversee the courts to the Ohio Supreme Court.

Ballot-box issue

There may be another way to get this done. In 1998 Pennsylvania voters approved a constitutional amendment. The question presented to the voters was simple: “Shall the Pennsylvania Constitution be amended to provide that the Commonwealth shall have the same right to a trial by jury in criminal case as does the accused?”

A constitutional amendment may be the only way to provide Ohio prosecutors with the same authority.

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