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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Showing posts with label Ipso Facto. Show all posts
Showing posts with label Ipso Facto. Show all posts
Friday, May 4, 2012
Friday, April 13, 2012
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.
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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.Visit Ipso Facto
Saturday, March 31, 2012
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.”
Visit Matt Mangino
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.”
Visit Matt Mangino
Sunday, February 12, 2012
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.
Visit Matt 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.
Visit Matt Mangino
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
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
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.
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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
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
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.”
Visit Matt Mangino
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
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