Matt Mangino's new book, published in softcover by McFarland, a publisher of academic and nonfiction works, contains a detailed account of the murders, trials, appeals, and drama behind every execution that took place in 2010. The book includes gripping narratives of 63 murders, countless appeals and stays of execution, two suicide attempts, 41 last meals, 33 final statements, and 46 executions in states that include Texas, Oklahoma, Florida, Ohio, and Missouri.
The Executioner's Toll, 2010 is a unique, skillfully written, tightly organized, and thoroughly researched collection of fascinating cases featuring an extremely important and controversial subject in American life.
Mangino, a former prosecutor and an active columnist and blogger, is not only a criminal justice expert, he is a talented nonfiction author. His new book is highly recommended.
To read more Click Here
Monday, May 26, 2014
Sunday, May 18, 2014
Book: The Executioner's Toll, 2010 by Matthew T. Mangino
The Executioner's Toll, 2010
The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States
Matthew T. Mangino
Legal Executions of 2010 is a meticulous examination of every execution (and the details surrounding the execution) carried out in a single year—and a thought-provoking exploration into the minds of 46 killers as each plays the role of predator, quarry and condemned. The unsettling narratives begin with a murder on May 26, 1993, and end with an execution on December 16, 2010. The book chronicles 63 murders, 44 trials, countless appeals, two suicide attempts, 41 last meals, 33 final statements and 46 executions. Executions are rare in the United States. This book presents the compelling stories behind each of them, accounts often neglected in the mainstream media. Every person facing the executioner has a story, every killing is as unique as it is devastating. The death penalty remains in 32 states. Thinking about capital punishment is more than a philosophical debate about good and bad, right and wrong, or "just desserts." The death penalty is about human beings and the impact of their conduct against and with one another.
Like The Executioner's Toll, 2010 on Facebook
Like The Executioner's Toll, 2010 on Facebook
Sunday, June 16, 2013
Matthew T. Mangino: Kennedy assassin claims Manchurian defense
Matthew T. Mangino
GateHouse News Service
June 14, 2013
This month marks the 45th anniversary of the assassination of Robert F. Kennedy. His senseless and tragic death came about on the evening of June 5, 1968, in the kitchen of the Ambassador Hotel in Los Angeles.
Moments before entering the hotel kitchen, Kennedy had given a victory speech after winning the important California Democratic primary for president of the United States.
Kennedy was being ushered through the hotel kitchen by a group of campaign volunteers. The kitchen was crammed with supporters and well-wishers. Suddenly, Kennedy was shot by Sirhan Sirhan, a young man angered over Kennedy’s pro-Israeli position in the Middle East.
Less than five years earlier, Kennedy’s brother, President John F. Kennedy, was struck down by an assassin’s bullet, and only two months earlier civil rights leader Martin Luther King, Jr. was slain in Memphis, Tenn., by an assassin.
Sirhan was convicted ten months later and within a week of his conviction he was sentenced to death. The sentence was commuted to life in prison in 1972 after the California Supreme Court vacated all pending death sentences.
Sirhan remains in a California prison and has been denied parole 14 times, most recently in 2011. However, his lawyers have come up with a new plan for his release that reads like the plot of a Hollywood movie.
Although Sirhan’s conviction occurred more than four decades ago, he has asked the court to review his conviction through a Writ of Habeas Corpus. His direct appeal rights have long been exhausted, but habeas corpus remains a viable option.
Appeals are used to correct errors that occurred before or during trial based on evidence found on the court record. A Writ of Habeas Corpus asks the court to consider “new” evidence that the trial judge might not have heard.
In 2008, Sirhan’s lawyers hired memory expert Daniel Brown, a professor of psychology at Harvard Medical School. Brown was described by Sirhan’s lawyers as "one of the world's foremost experts in hypno programming."
Brown interviewed Sirhan for 60 hours over a three-year period. Sirhan now remembers that when he fired his shots in the hotel kitchen he believed he was at a gun range and shooting at circular targets, reported CNN.
Sirhan’s lawyers believe he was programmed to cause a distraction in the kitchen, allowing a second gunman to secretly shoot Kennedy from behind. Lawyers say that Professor Brown believes a mysterious young woman in a polka dot dress lured Sirhan into the kitchen as part of the alleged mind control plot.
The conspiracy claim is bolstered somewhat by an analysis of a recently uncovered tape recording of the shooting. The recording is the only known soundtrack of the assassination and it reveals at least 13 shot sounds over a period of less than six seconds. This appears to contravene the theory at trial that eight shots were fired by Sirhan.
Sirhan’s claims of hypno programming and assassination might make for an action-packed Hollywood thriller — if it hadn’t already been written, produced and premiered more than 50 years ago. "The Manchurian Candidate" released by MGM in 1962 starred Frank Sinatra and portrayed a supposed war hero who was brainwashed into becoming an unwitting assassin.
At times, truth is stranger than fiction. In the case of Sirhan Sirhan, fiction is being used to cobble together a cockamamie claim that is beyond strange and just downright fantastic.
Unfortunately, Sirhan’s claim can’t be completely written off — especially not in California. The Twinkie defense worked for Dan White after he assassinated San Francisco Mayor George Moscone and Supervisor Harvey Milk in 1978.
Thirty-five years later, can the Manchurian defense work for Sirhan Sirhan?
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
GateHouse News Service
June 14, 2013
This month marks the 45th anniversary of the assassination of Robert F. Kennedy. His senseless and tragic death came about on the evening of June 5, 1968, in the kitchen of the Ambassador Hotel in Los Angeles.
Moments before entering the hotel kitchen, Kennedy had given a victory speech after winning the important California Democratic primary for president of the United States.
Kennedy was being ushered through the hotel kitchen by a group of campaign volunteers. The kitchen was crammed with supporters and well-wishers. Suddenly, Kennedy was shot by Sirhan Sirhan, a young man angered over Kennedy’s pro-Israeli position in the Middle East.
Less than five years earlier, Kennedy’s brother, President John F. Kennedy, was struck down by an assassin’s bullet, and only two months earlier civil rights leader Martin Luther King, Jr. was slain in Memphis, Tenn., by an assassin.
Sirhan was convicted ten months later and within a week of his conviction he was sentenced to death. The sentence was commuted to life in prison in 1972 after the California Supreme Court vacated all pending death sentences.
Sirhan remains in a California prison and has been denied parole 14 times, most recently in 2011. However, his lawyers have come up with a new plan for his release that reads like the plot of a Hollywood movie.
Although Sirhan’s conviction occurred more than four decades ago, he has asked the court to review his conviction through a Writ of Habeas Corpus. His direct appeal rights have long been exhausted, but habeas corpus remains a viable option.
Appeals are used to correct errors that occurred before or during trial based on evidence found on the court record. A Writ of Habeas Corpus asks the court to consider “new” evidence that the trial judge might not have heard.
In 2008, Sirhan’s lawyers hired memory expert Daniel Brown, a professor of psychology at Harvard Medical School. Brown was described by Sirhan’s lawyers as "one of the world's foremost experts in hypno programming."
Brown interviewed Sirhan for 60 hours over a three-year period. Sirhan now remembers that when he fired his shots in the hotel kitchen he believed he was at a gun range and shooting at circular targets, reported CNN.
Sirhan’s lawyers believe he was programmed to cause a distraction in the kitchen, allowing a second gunman to secretly shoot Kennedy from behind. Lawyers say that Professor Brown believes a mysterious young woman in a polka dot dress lured Sirhan into the kitchen as part of the alleged mind control plot.
The conspiracy claim is bolstered somewhat by an analysis of a recently uncovered tape recording of the shooting. The recording is the only known soundtrack of the assassination and it reveals at least 13 shot sounds over a period of less than six seconds. This appears to contravene the theory at trial that eight shots were fired by Sirhan.
Sirhan’s claims of hypno programming and assassination might make for an action-packed Hollywood thriller — if it hadn’t already been written, produced and premiered more than 50 years ago. "The Manchurian Candidate" released by MGM in 1962 starred Frank Sinatra and portrayed a supposed war hero who was brainwashed into becoming an unwitting assassin.
At times, truth is stranger than fiction. In the case of Sirhan Sirhan, fiction is being used to cobble together a cockamamie claim that is beyond strange and just downright fantastic.
Unfortunately, Sirhan’s claim can’t be completely written off — especially not in California. The Twinkie defense worked for Dan White after he assassinated San Francisco Mayor George Moscone and Supervisor Harvey Milk in 1978.
Thirty-five years later, can the Manchurian defense work for Sirhan Sirhan?
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
Friday, March 15, 2013
Mangino Launches Weekly Syndicated Column with GateHouse News Service
I am very pleased to announce my new weekly column syndicated by GateHouse News Service. GateHouse serves 79 daily papers, 257 weeklies and 405 websites coast to coast.
Matthew T. Mangino: Crime and punishment - there is more to the story
GateHouse News Service
March 1, 2013
Fifteen years ago when I was elected district attorney of Lawrence County, Pa., I had just turned 35 and knew everything there was to know about seeking justice, protecting the public and locking away bad guys.
Today, things are not so obvious. Two terms as district attorney, six years on the Pennsylvania Board of Probation and Parole and two years at the University of Pennsylvania have taught me that there is a story behind every crime, every new law, every court decision and every piece of academic research.
Each week I hope to share those stories with you along with the insight that comes with more than 25 years as a criminal justice practitioner.
There are no easy answers and, at times, there is no single answer, but the issues of crime and punishment are significant enough to merit critical exploration and objective explanations.
The U.S. incarcerates more people for longer periods of time than any other nation on earth. There are 2.3 million men and women in prisons nationwide, with one in 32 American adults under some sort of correctional supervision.
Today, about 17 states are involved in justice reinvestment strategies. States as diverse as Kansas, West Virginia and Connecticut have joined with the Council of State Governments to map out individualized strategies to reduce the number of people in state prison. The savings will be distributed for initiatives in policing, drug treatment and community supervision.
These ideas were born out of necessity not enlightenment. Policymakers have come to the realization that mass incarceration is a drain on state budgets.
Finances are also driving the death penalty debate. Capital punishment is lawful in 33 states—five fewer than just a few years ago. State-sponsored death has long been attacked as brutal and unfairly administered. Today, the death penalty is attacked as being too costly.
Opponents of the death penalty point to endless and costly appeals; the increased expense of housing offenders on death row; and the financial hardship of defending challenges to every facet of execution including the origin of the execution drugs, the contents of the final meal, and even the obesity of the condemned.
The death penalty is also under scrutiny for a series of recent DNA exonerations.
According to the Innocence Project, there have been 18 men freed from death row as a result of DNA analysis. Jurors are much less likely to sentence a killer to death if they believe innocent men have been sent to their death. Last year marked the second lowest number of death sentences since the death penalty was reinstated in 1976.
The death penalty is not the only staple of the criminal justice system that has taken a hit as a result of DNA.
DNA has also uncovered wrongful convictions that were originally based on bite mark analysis; hair and fiber analysis; handwriting and even fingerprint analysis. Eyewitness identification, often the only evidence available to police, is being aggressively challenged.
Some experts suggest that such evidence is prone to error. Poor viewing conditions, limited time and fear all play a role in possible misidentification.
Regardless of your opinion of the criminal justice system, crime will continue. For every person on death row, there are one or more victims of murder. For every eyewitness identification there is a corresponding crime. For every trial, regardless of evidence, there is a victim who has been harmed.
Rather than continuing the unbridled and sometimes spurious attacks on the criminal justice system, society would do well to demand an honest dialogue that focuses on fairness, justice and accountability. I hope to contribute to that dialogue each week through this column.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
Friday, June 15, 2012
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.' "
Visit Matt 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.' "
Visit Matt Mangino
Friday, May 4, 2012
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.
Visit Matt 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.
Visit Matt Mangino
Sunday, April 29, 2012
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.
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.
Congratulations mattmangino.com!
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.
Visit Ipso Facto
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
Thursday, January 12, 2012
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.
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.
Sunday, January 8, 2012
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.
Visit the Vindicator
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.
Visit the Vindicator
Sunday, December 25, 2011
Merry Christmas!
Pope Benedict, leader of the world's 1.3 billion Roman Catholics, delivered his twice-yearly "Urbi et Orbi" (to the city and the world) message and blessing to tens of thousands of people in St Peter's Square on a crisp but clear day as millions of others watched on television around the world.
At the end of his address, the 84-year-old pope, celebrating the seventh Christmas season of his pontificate, delivered Christmas greetings in 65 languages, including Turkish, Hebrew, Arabic, Swahili, Hindi, Urdu and Chinese, reported Reuters.
"May the Lord come to the aid of our world torn by so many conflicts which even today stain the earth with blood," he said, speaking in Italian from the central balcony of St Peter's Basilica.
"May the Prince of Peace grant peace and stability to that Land where he chose to come into the world, and encourage the resumption of dialogue between Israelis and Palestinians. May he bring an end to the violence in Syria, where so much blood has already been shed," he said in a firm, steady voice.
To read more: http://www.reuters.com/article/2011/12/25/us-christmas-pope-idUSTRE7BN0GG20111225
At the end of his address, the 84-year-old pope, celebrating the seventh Christmas season of his pontificate, delivered Christmas greetings in 65 languages, including Turkish, Hebrew, Arabic, Swahili, Hindi, Urdu and Chinese, reported Reuters.
"May the Lord come to the aid of our world torn by so many conflicts which even today stain the earth with blood," he said, speaking in Italian from the central balcony of St Peter's Basilica.
"May the Prince of Peace grant peace and stability to that Land where he chose to come into the world, and encourage the resumption of dialogue between Israelis and Palestinians. May he bring an end to the violence in Syria, where so much blood has already been shed," he said in a firm, steady voice.
To read more: http://www.reuters.com/article/2011/12/25/us-christmas-pope-idUSTRE7BN0GG20111225
Wednesday, December 21, 2011
The Cautionary Instruction: Congressional Hearing Repartee Falls Flat
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
December 16, 2011
Last week, the House Committee on Oversight and Government Reform again took up the issue of the ill-fated Department of Justice (DOJ) gun trafficking operation known as “Fast & Furious.”
As the hearing came to a close, Committee Chairman Darryl Issa (R-Calif.), compared Attorney General Eric Holder’s conduct to that of Richard Nixon’s attorney general before Watergate. Holder likened the ongoing congressional inquiry to Senator Joseph McCarthy’s witch hunt for communists in the U.S. government.
Holder told the committee that he does not plan to comply with additional requests for DOJ records, including Holder’s internal emails regarding his response to the operation. “You stand in contempt of Congress unless you have a valid reason,” Issa told Holder.
Holder responded that not sharing the internal department communications with Congress is consistent with the practice of past administrations.
“John Mitchell responded that way, too,” Issa told Holder, referring to Nixon’s former attorney general, who was later convicted of conspiracy, obstruction of justice and perjury in connection with Watergate.
Holder replied, invoking his own historic allusion, “The reference to John Mitchell: Let’s think about that. … As they said in the McCarthy hearings at some point, ‘Have you no shame?’”
Congressman Issa is off-base comparing Holder to John Mitchell and his role in Watergate. Mitchell was no longer part of the Nixon administration during Watergate. He had resigned as attorney general on February 15, 1972, months before the Watergate break-in.
The Watergate Independent Prosecutor Archibald Cox requested eight recorded conversations taped in the White House, two of which included conversations with Mitchell. The request was refused by the White House. Mitchell had nothing to do with that decision.
When Mitchell testified before the senate Watergate Committee it was in his role as campaign director of Nixon’s 1972 re-election campaign. According to Carl Bernstein, certainly an authority on Watergate, "John Mitchell's testimony to the Watergate committee focused on what he called 'the White House horrors,’” crimes committed by Nixon staffers.
Congressman Issa's allusion indicated, at best, a superficial understanding of history -- or, at worst, an ill conceived attempt to lump Attorney General Holder with America's greatest scandal.
Attorney General Holder's retort was close, but also off the mark. He was referring to what had become known as the Army-McCarthy Hearings. In 1954, Senator McCarthy and his staff were accused of using influence to help a former staff member with an army assignment. The Army’s special counsel Joseph N. Welch disclosed to the New York Times that a young lawyer in his law firm was a former member of a left-wing group while in law school.
Although aware of Welch’s disclosure, McCarthy nonetheless confronted Welch about the young lawyer during the nationally televised hearings. Attorney Welch then famously took on McCarthy, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
Visit Matt Mangino
The Pittsburgh Post-Gazette/Ipso Facto
December 16, 2011
Last week, the House Committee on Oversight and Government Reform again took up the issue of the ill-fated Department of Justice (DOJ) gun trafficking operation known as “Fast & Furious.”
As the hearing came to a close, Committee Chairman Darryl Issa (R-Calif.), compared Attorney General Eric Holder’s conduct to that of Richard Nixon’s attorney general before Watergate. Holder likened the ongoing congressional inquiry to Senator Joseph McCarthy’s witch hunt for communists in the U.S. government.
Holder told the committee that he does not plan to comply with additional requests for DOJ records, including Holder’s internal emails regarding his response to the operation. “You stand in contempt of Congress unless you have a valid reason,” Issa told Holder.
Holder responded that not sharing the internal department communications with Congress is consistent with the practice of past administrations.
“John Mitchell responded that way, too,” Issa told Holder, referring to Nixon’s former attorney general, who was later convicted of conspiracy, obstruction of justice and perjury in connection with Watergate.
Holder replied, invoking his own historic allusion, “The reference to John Mitchell: Let’s think about that. … As they said in the McCarthy hearings at some point, ‘Have you no shame?’”
Congressman Issa is off-base comparing Holder to John Mitchell and his role in Watergate. Mitchell was no longer part of the Nixon administration during Watergate. He had resigned as attorney general on February 15, 1972, months before the Watergate break-in.
The Watergate Independent Prosecutor Archibald Cox requested eight recorded conversations taped in the White House, two of which included conversations with Mitchell. The request was refused by the White House. Mitchell had nothing to do with that decision.
When Mitchell testified before the senate Watergate Committee it was in his role as campaign director of Nixon’s 1972 re-election campaign. According to Carl Bernstein, certainly an authority on Watergate, "John Mitchell's testimony to the Watergate committee focused on what he called 'the White House horrors,’” crimes committed by Nixon staffers.
Congressman Issa's allusion indicated, at best, a superficial understanding of history -- or, at worst, an ill conceived attempt to lump Attorney General Holder with America's greatest scandal.
Attorney General Holder's retort was close, but also off the mark. He was referring to what had become known as the Army-McCarthy Hearings. In 1954, Senator McCarthy and his staff were accused of using influence to help a former staff member with an army assignment. The Army’s special counsel Joseph N. Welch disclosed to the New York Times that a young lawyer in his law firm was a former member of a left-wing group while in law school.
Although aware of Welch’s disclosure, McCarthy nonetheless confronted Welch about the young lawyer during the nationally televised hearings. Attorney Welch then famously took on McCarthy, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
Visit Matt Mangino
Monday, December 12, 2011
California Shifts Prisoners from State Prison to County Jails
In California the early release of inmates has become the means by which the state is complying with a U.S. Supreme Court order to lower its prison population. As the state empties its prisons county jails struggle to accommodate state prisoners flowing into their facilities.
A U.S. Supreme Court decision requires California to lower its prison population by 30,000. To meet the mandate, those convicted of certain crimes who until now served their sentences in state prison now must serve their time in a county jail. No inmates are being moved from state prisons to county jails. But as these people are sentenced, they will be sent to a county jail rather than state prison, according to the Los Angeles Times.
The L.A. County Sheriff is hoping to deal with the influx of state prisoners by developing alternatives to custody — such as electronic monitoring — for low-risk offenders awaiting trial. The Sheriff’s Department oversees the county jail. According to the Times, L.A. County's jails are expected to house as many as 8,000 state prisoners by mid-2012. Los Angeles County prosecutors said in a report that the numbers could fill up the jails as early as this month.
Some counties, including Los Angeles, are under court order to prevent jail overcrowding. So officials said that some inmates will be released to make way for the state prisoners. Some counties — including Los Angeles, Orange and San Bernardino — have also reported receiving significantly more state prisoners from courts than the state projected, reported the Times.
State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases. By doing that, the attorneys were assured that their clients would get jail time instead of prison time.
The L.A. County Sheriff is hoping to deal with the influx of state prisoners by developing alternatives to custody — such as electronic monitoring — for low-risk offenders awaiting trial. The Sheriff’s Department oversees the county jail. According to the Times, L.A. County's jails are expected to house as many as 8,000 state prisoners by mid-2012. Los Angeles County prosecutors said in a report that the numbers could fill up the jails as early as this month.
Some counties, including Los Angeles, are under court order to prevent jail overcrowding. So officials said that some inmates will be released to make way for the state prisoners. Some counties — including Los Angeles, Orange and San Bernardino — have also reported receiving significantly more state prisoners from courts than the state projected, reported the Times.
State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases. By doing that, the attorneys were assured that their clients would get jail time instead of prison time.
Sunday, December 11, 2011
Will private prisons work?
The Youngstown VindicatorDecember 11, 2011
Ohio was facing an $8 billion budget shortfall in 2010 when Gov. John Kasich took office. He proposed an ambitious and unprecedented plan to balance the corrections portion of the budget — sell five prisons to private companies.
Lake Erie Corrections Institution, located in Ashtabula County, was the only prison sold. It’s the first state prison in the nation to be sold to a private company.
Correction Corporation of America (CCA) bought the facility for $72.7 million. The state will pay CCA $44.25 per inmate per day in addition to an annual $3.8 million ownership fee.
CCA may be familiar to many because the company operates the Northeast Ohio Correctional Center in Youngstown. The state’s ability to sell only one of five prisons slated for sale was not a concern for the Department of Rehabilitation and Correction. “It’s not a disappointment at all,” Annette Chambers-Smith, deputy director of administration told the Cleveland Plain-Dealer, “... we thought we would need to sell all five of them to net $50 million.”
Major player
CCA operates 60 facilities in 19 states and the District of Columbia. Those facilities have more than 80,000 beds and currently house about 75,000 offenders. CCA owns 44 of the facilities it operates, representing more than half of all the private prison beds nationwide. According to the company website, CCA with its 17,000 employees is the fifth-largest corrections system in the nation, behind only the federal government and three states.
Privatization may seem like a promising way to generate revenue and cut costs in difficult economic times. Ohio’s prisons are over capacity. As of October, Ohio’s 30 prisons had the capacity to house 38,196 inmates, but actually confined 50,334.
There is an incarceration bubble in America. That bubble may burst as budget woes force states to reduce prison populations andthe federal government look for alternatives to an immigration policy that has been a boon to private prisons.
Prison reduction efforts are obviously not part of the package offered by corporate-run prisons. They have no incentive to explore alternatives to incarceration, such as electronic monitoring, half-way houses or other diversionary efforts to reduce the number of non-violent offenders behind bars.
Ohio, like many states, is trying to reduce its prison population. Nonviolent offenders often serve the shortest sentences. There are about 12,000 inmates in Ohio serving state sentences of less than one year. Some estimate that reducing short term sentences in state prison could trim inmate population by about 4,000 within four years.
The Texas-based criminal justice blog Grits for Breakfast recently reprinted portions of CCA’s latest annaul 10-K report filed with the U.S. Securities and Exchange Commission. CCA acknowledged that the company is “dependent upon the governmental agencies with which we have contracts to provide inmates for our managed facilities. We cannot control occupancy levels at our managed facilities ... a decrease in our occupancy rates could cause a decrease in revenues and profitability.”
The report continues, “The demand for our facilities and services could be adversely affected by…leniency in conviction or parole standards and sentencing practices.”
Federal threat
CCA is not ignoring the threat of leniency or a reduction in occupancy. According the Chattanoogan, citing a report from the National Institute on Money in State Politics, CCA hired 199 lobbyists in 32 states between 2003 and 2010. On the federal level, CCA spent more than $18 million on lobbying between 1999 and 2009.
CCA’s Ohio lobbyist, Don Thibaut, served as Gov. Kasich’s chief of staff when he was in Congress, says The Associated Press. The connections go beyond a lobbyist. Kasich’s corrections director Gary C. Mohr spent five years as a consultant for CCA.
The incarceration bubble, like the real estate bubble before it, will burst, which could mean trouble for Ohio taxpayers.
Visit the Vindicator
Ohio was facing an $8 billion budget shortfall in 2010 when Gov. John Kasich took office. He proposed an ambitious and unprecedented plan to balance the corrections portion of the budget — sell five prisons to private companies.
Lake Erie Corrections Institution, located in Ashtabula County, was the only prison sold. It’s the first state prison in the nation to be sold to a private company.
Correction Corporation of America (CCA) bought the facility for $72.7 million. The state will pay CCA $44.25 per inmate per day in addition to an annual $3.8 million ownership fee.
CCA may be familiar to many because the company operates the Northeast Ohio Correctional Center in Youngstown. The state’s ability to sell only one of five prisons slated for sale was not a concern for the Department of Rehabilitation and Correction. “It’s not a disappointment at all,” Annette Chambers-Smith, deputy director of administration told the Cleveland Plain-Dealer, “... we thought we would need to sell all five of them to net $50 million.”
Major player
CCA operates 60 facilities in 19 states and the District of Columbia. Those facilities have more than 80,000 beds and currently house about 75,000 offenders. CCA owns 44 of the facilities it operates, representing more than half of all the private prison beds nationwide. According to the company website, CCA with its 17,000 employees is the fifth-largest corrections system in the nation, behind only the federal government and three states.
Privatization may seem like a promising way to generate revenue and cut costs in difficult economic times. Ohio’s prisons are over capacity. As of October, Ohio’s 30 prisons had the capacity to house 38,196 inmates, but actually confined 50,334.
There is an incarceration bubble in America. That bubble may burst as budget woes force states to reduce prison populations andthe federal government look for alternatives to an immigration policy that has been a boon to private prisons.
Prison reduction efforts are obviously not part of the package offered by corporate-run prisons. They have no incentive to explore alternatives to incarceration, such as electronic monitoring, half-way houses or other diversionary efforts to reduce the number of non-violent offenders behind bars.
Ohio, like many states, is trying to reduce its prison population. Nonviolent offenders often serve the shortest sentences. There are about 12,000 inmates in Ohio serving state sentences of less than one year. Some estimate that reducing short term sentences in state prison could trim inmate population by about 4,000 within four years.
The Texas-based criminal justice blog Grits for Breakfast recently reprinted portions of CCA’s latest annaul 10-K report filed with the U.S. Securities and Exchange Commission. CCA acknowledged that the company is “dependent upon the governmental agencies with which we have contracts to provide inmates for our managed facilities. We cannot control occupancy levels at our managed facilities ... a decrease in our occupancy rates could cause a decrease in revenues and profitability.”
The report continues, “The demand for our facilities and services could be adversely affected by…leniency in conviction or parole standards and sentencing practices.”
Federal threat
CCA is not ignoring the threat of leniency or a reduction in occupancy. According the Chattanoogan, citing a report from the National Institute on Money in State Politics, CCA hired 199 lobbyists in 32 states between 2003 and 2010. On the federal level, CCA spent more than $18 million on lobbying between 1999 and 2009.
CCA’s Ohio lobbyist, Don Thibaut, served as Gov. Kasich’s chief of staff when he was in Congress, says The Associated Press. The connections go beyond a lobbyist. Kasich’s corrections director Gary C. Mohr spent five years as a consultant for CCA.
The incarceration bubble, like the real estate bubble before it, will burst, which could mean trouble for Ohio taxpayers.
Visit the Vindicator
Sunday, November 20, 2011
The Cautionary Instruction: Legislators race to capital to prevent PSU repeat
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 18, 2011
The Penn State sex scandal and cover-up has generated a bevy of activity at the state capital. As with other high profile criminal prosecutions legislators look to law making as a way to prevent future victimization.
Last Sunday, Governor Tom Corbett appeared on NBC's Meet the Press. Governor Corbett replied, “Absolutely,” when asked whether Pennsylvania’s Mandated Reporter Law should be changed. He added, “I wouldn’t be surprised to see a bill passed between now and the end of this year.”
However, with a flurry of bills being proposed in the state House and Senate, Governor Corbett cautioned lawmakers to move deliberately as they consider legislative fixes to the Penn State scandal. Everybody wants "to do something," Corbett said. "We should do something. But we need to do it in a very thoughtful, deliberative process."
Below is by no means an exhaustive list of pending or proposed legislation but it provides a glimpse into the bi-partisan reaction of state legislators to the scandal at Penn State.
State Sen. Kim Ward (R., Westmoreland) has authored a bill that would make it mandatory for anyone employed by a college or university to report child abuse. The bill also would require that any allegations go directly to the head of the institution and to the state Department of Public Welfare.
Rep. Kevin Boyle (D., Phila.) introduced a bill that would mandate all child abuse allegations be reported directly to the police.
A bill proposed by Rep. Mike Vereb (R., Montgomery) would create an offense of sexual assault by a sports official -- including coaches, referees, and employees of nonprofits that engage in sports activities.
State Sen. Wayne Fontana, (D., Pittsburgh), said he would ask Senate leaders to move a bill he first introduced in 2005 that would amend state law to require any professional who works with children to report suspected child abuse to police.
Rep. Louise Bishop (D., Phila.) and Rep. Todd Stephens (R., Montgomery), are proposing legislation that would make it mandatory to promptly report suspected sex crimes against minors.
State Rep. Dan Deasy, (D., Westwood), has proposed a bill that would require an individual who witnesses or an individual who is told by a direct witness about a sexual crime against a child to report it to law enforcement. Failure to report could result in a third-degree felony charge, which carries a sentence of up to seven years in prison.
State Sen. Larry Farnese, (D., Phila.), recently proposed a bill that would bar pension payments to state and city employees convicted of sex crimes against children.
Reactionary legislation has, at times, done more harm than good. The General Assembly would do well to heed Governor Corbett’s admonishment. Proceed with caution. Do not rush legislation and give due deference to the experts who regularly deal with child sex abuse. Let something positive come from this enormous human tragedy.
Visit Matt Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 18, 2011
The Penn State sex scandal and cover-up has generated a bevy of activity at the state capital. As with other high profile criminal prosecutions legislators look to law making as a way to prevent future victimization.
Last Sunday, Governor Tom Corbett appeared on NBC's Meet the Press. Governor Corbett replied, “Absolutely,” when asked whether Pennsylvania’s Mandated Reporter Law should be changed. He added, “I wouldn’t be surprised to see a bill passed between now and the end of this year.”
However, with a flurry of bills being proposed in the state House and Senate, Governor Corbett cautioned lawmakers to move deliberately as they consider legislative fixes to the Penn State scandal. Everybody wants "to do something," Corbett said. "We should do something. But we need to do it in a very thoughtful, deliberative process."
Below is by no means an exhaustive list of pending or proposed legislation but it provides a glimpse into the bi-partisan reaction of state legislators to the scandal at Penn State.
State Sen. Kim Ward (R., Westmoreland) has authored a bill that would make it mandatory for anyone employed by a college or university to report child abuse. The bill also would require that any allegations go directly to the head of the institution and to the state Department of Public Welfare.
Rep. Kevin Boyle (D., Phila.) introduced a bill that would mandate all child abuse allegations be reported directly to the police.
A bill proposed by Rep. Mike Vereb (R., Montgomery) would create an offense of sexual assault by a sports official -- including coaches, referees, and employees of nonprofits that engage in sports activities.
State Sen. Wayne Fontana, (D., Pittsburgh), said he would ask Senate leaders to move a bill he first introduced in 2005 that would amend state law to require any professional who works with children to report suspected child abuse to police.
Rep. Louise Bishop (D., Phila.) and Rep. Todd Stephens (R., Montgomery), are proposing legislation that would make it mandatory to promptly report suspected sex crimes against minors.
State Rep. Dan Deasy, (D., Westwood), has proposed a bill that would require an individual who witnesses or an individual who is told by a direct witness about a sexual crime against a child to report it to law enforcement. Failure to report could result in a third-degree felony charge, which carries a sentence of up to seven years in prison.
State Sen. Larry Farnese, (D., Phila.), recently proposed a bill that would bar pension payments to state and city employees convicted of sex crimes against children.
Reactionary legislation has, at times, done more harm than good. The General Assembly would do well to heed Governor Corbett’s admonishment. Proceed with caution. Do not rush legislation and give due deference to the experts who regularly deal with child sex abuse. Let something positive come from this enormous human tragedy.
Visit Matt Mangino
Saturday, October 29, 2011
The Cautionary Instruction: Prison reform promotes lcoal control
Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 28, 2011
On September 28, 2008, then-Governor Edward G. Rendell signed into law a series of prison reform measures, known in part as Act 81. The reforms were intended to reduce costs, ease county jail overcrowding, improve treatment services and among other things provide for the compassionate release of terminally ill inmates. Not all of the reforms have met with success.
A provision of Act 81, Place of Confinement -- 42 Pa.C.S.A. 9762, is scheduled to take effect on November 24, 2011. The new law provides that sentences with maximums between two and five years must be served in a state prison. However, under specific circumstances a judge can order the sentence to be served in a county jail. That is not entirely new. What is new is that the sentencing judge will retain jurisdiction for purposes of parole, not the Pennsylvania Board of Probation and Parole.
Act 81 provides that offenders sentenced to a term of two years or more, but less than five years may be confined in a county jail if: (1) the county prison warden certifies that the county jail is at less than 110% of capacity; (2) the district attorney has consented to the confinement; and (3) the sentencing court has approved the placement in the county jail.
According to data compiled by the Pennsylvania Commission on Sentencing, in 2009 7,860 sentences included a maximum term of two years or greater but less than five years; of these, 6,080 were committed to a state correctional facility, and 1,205 were committed to county jails. The remaining 575 sentences were state intermediate punishment.
What are the implications for offenders? Initially, an offender who has local ties to the community will be more accessible for purposes of visitation while in a county jail. That is not always the case in the state correctional system. With 28 correctional facilities across the commonwealth some state inmates find themselves far away from family and friends.
An offender serving a sentence in the county jail may also have available the privilege of work release. An offender with a family to support could continue to work while serving her sentence. This often eases a significant burden placed on the non-incarcerated parent.
Administratively the most significant change brought about by the new law is that judges will now make parole decisions, not the Parole Board; and local county probation offices will supervise those offenders after parole instead of the Parole Board.
Criminal defense practitioners should be eager to explore the benefits of Act 81. The trick may be getting a feel for the administrative aspects of the new law. A provision of the reform package provided that the Sentencing Commission would establish parole guidelines for the Parole Board and for judges who invariably will be making more parole decisions. Those guidelines have not yet been established, although the Parole Board has been utilizing internal parole guidelines since 1980.
Visit Matt Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 28, 2011
On September 28, 2008, then-Governor Edward G. Rendell signed into law a series of prison reform measures, known in part as Act 81. The reforms were intended to reduce costs, ease county jail overcrowding, improve treatment services and among other things provide for the compassionate release of terminally ill inmates. Not all of the reforms have met with success.
A provision of Act 81, Place of Confinement -- 42 Pa.C.S.A. 9762, is scheduled to take effect on November 24, 2011. The new law provides that sentences with maximums between two and five years must be served in a state prison. However, under specific circumstances a judge can order the sentence to be served in a county jail. That is not entirely new. What is new is that the sentencing judge will retain jurisdiction for purposes of parole, not the Pennsylvania Board of Probation and Parole.
Act 81 provides that offenders sentenced to a term of two years or more, but less than five years may be confined in a county jail if: (1) the county prison warden certifies that the county jail is at less than 110% of capacity; (2) the district attorney has consented to the confinement; and (3) the sentencing court has approved the placement in the county jail.
According to data compiled by the Pennsylvania Commission on Sentencing, in 2009 7,860 sentences included a maximum term of two years or greater but less than five years; of these, 6,080 were committed to a state correctional facility, and 1,205 were committed to county jails. The remaining 575 sentences were state intermediate punishment.
What are the implications for offenders? Initially, an offender who has local ties to the community will be more accessible for purposes of visitation while in a county jail. That is not always the case in the state correctional system. With 28 correctional facilities across the commonwealth some state inmates find themselves far away from family and friends.
An offender serving a sentence in the county jail may also have available the privilege of work release. An offender with a family to support could continue to work while serving her sentence. This often eases a significant burden placed on the non-incarcerated parent.
Administratively the most significant change brought about by the new law is that judges will now make parole decisions, not the Parole Board; and local county probation offices will supervise those offenders after parole instead of the Parole Board.
Criminal defense practitioners should be eager to explore the benefits of Act 81. The trick may be getting a feel for the administrative aspects of the new law. A provision of the reform package provided that the Sentencing Commission would establish parole guidelines for the Parole Board and for judges who invariably will be making more parole decisions. Those guidelines have not yet been established, although the Parole Board has been utilizing internal parole guidelines since 1980.
Visit Matt Mangino
Sunday, October 23, 2011
U.S. Supreme Court Takes Another Look at Plea Bargains
Matthew T. Mangino
Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
Visit Matt Mangino
Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
Visit Matt Mangino
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
Subscribe to:
Posts (Atom)