MCN/USATODAY NETWORK: ‘Goodbye and good luck’

Matthew T. Mangino
MCN/USATODAY NETWORK
May 24, 2021

Eight years ago I wrote my first column for what was GateHouse Media. Over those years, GateHouse expanded to include More Content Now and many more local newspapers. I have had the pleasure of writing 406 columns.

This is the end of the line - More Content Now ends its run this weekend. In this final column, I’d like to share with you what I’ve learned observing the criminal justice system over the years.

First, the criminal justice system is nuanced and complicated. It is also overused - from our schools to our homes and criminal statutes that don’t even require intent to get a conviction - people today are at the greatest risk in the history of this country to encounter the criminal justice system.

Unfortunately, there is little consistency in policy and lawmaking from jurisdiction to jurisdiction. Unlike the medical profession where diagnostic and treatment procedures are very similar nationwide, no such national consensus exists in the criminal justice system.

This hodge-podge of lawmaking may be best exemplified by the death penalty. More than 23 states have abandoned the death penalty. Ten states never adopted state-sponsored death after 1976 in what has become known as the modern era of the death penalty. Since then, 13 more states have outlawed the death penalty and three states have in place moratoriums on executions.

Yet, the federal government which has the death penalty on the books, and hadn’t carried out and execution in 17 years prior to July 2020, executed 10 people right up to end of President Donald Trump’s term.

There are roughly 2,553 men and women on death row. In the last five years 91 people have been executed. The death penalty has become arbitrary in the way executions are carried out.

The militarization of the police has exploded into a serious problem in the United States. During the process of creating quasi-military police units, law enforcement officers have evolved from peacekeepers to warriors.

The mentality of “us vs. them” has created police officers who believe the end justifies the means. Claims of excessive force continue to rise; racial profiling is a statistical reality and police officers kill on average 1,000 civilians per year.

The murder of George Floyd by a Minneapolis police office ignited the nation, and world for that matter, in a movement to hold bad cops accountable. There are efforts underway in countless states to reform things like limited immunity, monetary bail and mandatory minimum sentences.

Qualified immunity provides the often ridiculous barriers that litigants must get through to bring a civil rights action against a police officer. Monetary bail is a growing problem. Many men and women sit in jail awaiting trial simply because they cannot afford bond. This scenario often puts defendants in the unenviable position of taking a plea or continuing to sit in jail. Finally, mandatory minimum sentences, relics from the “tough on crime” era, don’t reduce recidivism and precludes judges from imposing mitigating sentences based on individual facts and circumstances.

We all need to be vigilant in the fight to abandon the policies of a generation of “lock’em up” politicos whose agenda has had a horrific impact on juveniles - often, underprivileged juveniles of color.

The “lock’em up” crusade of the 1990s has been slowly unraveling. Dating back to 2005, the U.S. Supreme Court decided Roper v. Simmons, outlawing the death penalty for juveniles, the Supreme Court has offered up a series of decisions limiting juvenile culpability. In Graham v. Florida, the court ruled that life without parole can only be imposed for a juvenile convicted of murder.

In Miller v. Alabama, the high court ruled states cannot sentence a juvenile to mandatory life without parole. In Montgomery v. Alabama the court went further and found that a trial judge may not sentence a juvenile to life without parole without a find of “incorrigibility.”

However, this past month, for the first time in 16 years the newly realigned U.S Supreme Court took a step backward on juvenile culpability. The court essentially reversed its finding in Montgomery and ruled that a judge need not find incorrigibility for a life sentence, the court judge need only consider sentences other than life without parole.

My admonishment to you: pay close attention. The tide may be turning in the judiciaries’ view of reform. Emphasizing punishment over rehabilitation will be bad news for those caught up in the criminal justice system and those who have to flip the tab - taxpayers.

Thanks for reading.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

MCN/USA TODAY NETWORK: Is your car spying on you?

Matthew T. Mangino
MCN/USA TODAY NETWORK
May 14, 2021

Your car is spying on you. Most late model vehicles have the ability to log speed, when and where a vehicle’s lights are turned on, which doors are opened and closed at specific locations as well as gear shifts, odometer readings, ignition cycles - and that is only the tip of the iceberg.

As the U.S. Supreme Court has extended protections to the privacy of your smartphone, your car has unexpectedly become a safe haven for law enforcement to access your personal information without a warrant.

In 2018, the Supreme Court ruled in Carpenter v. United States, that the Fourth Amendment, which prohibits unreasonable searches and seizures, protects cell phone location information. In an opinion by Chief Justice John Roberts, the court recognized that location information - collected by cell providers creates a “detailed chronicle of a person’s physical presence compiled every day, every moment over years.”

According to the Electronic Frontier Foundation, perhaps the most significant part of the ruling is its explicit recognition that individuals can maintain an expectation of privacy in information that they provide to third parties. As a result of what has become a landmark decision the police must now get a warrant before obtaining cell phone data.

However, when a smartphone is plugged into a vehicle’s USB port to make a call or listen to music all that precious personal data is downloaded into the vehicle.

The Intercept recently reported on a 2015 podcast of “The Forensic Lunch,” wherein Ben LeMere the founder of Berla, a company that manufactures vehicle forensic kits, talked about the accidental data transfer unbeknownst to the vehicle owner or operator.

“Your phone died, you’re gonna get in the car, plug it in, and there’s going to be this nice convenient USB port for you,” LeMere said. “When you plug it into this USB port, it’s going to charge your phone, absolutely. And as soon as it powers up, it’s going to start sucking all your data down into the car.”

The Fourth Amendment may afford individuals some protection from invasive searches of a personal vehicle. However, that may not protect you while on vacation or traveling for business.

In the same podcast, as reported by The Intercept, LeMere discussed pulling data from a rental car, “We had a Ford Explorer ... we pulled the system out, and we recovered 70 phones that had been connected to it. All of their call logs, their contacts and their SMS history, as well as their music preferences, songs that were on their device, and some of their Facebook and Twitter things as well.”

The individuals who rented that vehicle unwittingly left their personal information in the vehicle. As a result, law enforcement can access a lot of personal information - embarrassing, and maybe even incriminating, information without a warrant.

Plugging into your vehicle is the same as throwing your personal information in the garbage and putting it out on the curb. In 1988, the U.S. Supreme Court ruled in a California case that the Fourth Amendment does not require that police obtain a warrant before searching trash containers placed on the curb.

No person has a reasonable expectation of privacy in items left in a public place. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” said the justices. That goes for personal information dumped into a vehicle’s data system.

The courts have yet to catch up with this new form of invasive surveillance technology. In the meantime, the willy-nilly exposure of personal data may come at a cost.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

 

MCN/USA TODAY Network: Eyewitness identification is convincing, is it reliable?

Matthew T. Mangino
MCN/USA TODAY Network
May 7, 2021

For decades eyewitness identification was considered the gold standard when it came to evidence used to gain a conviction.

In the famous courtroom drama “12 Angry Men,” rated by the American Bar Association as one of the 25 greatest legal movies of all time, juror No. 8, played by Henry Fonda, earnestly advocated for a not-guilty verdict.

Fonda started out as the only not-guilty vote. The turning point of the deliberations occurred when an older juror recalled that the state’s prized eyewitness, who had observed the murder through her window as she laid in bed, had red marks on her nose left from wearing eyeglasses. The older juror asked a reserved bespectacled juror, “Do you wear your glasses when you go to bed?” The bespectacled juror responded, “No, I don’t. No one wears eyeglasses to bed.”

Stephen Handelman, editor-in-chief of The Crime Report, an online news service, wrote recently, eyewitness identification is “often the most dramatic moment in a TV crime procedural: An eyewitness is brought into the station house to identify a crime suspect from a lineup. Tension builds as detectives await the definitive truth that will lead to a conviction.”

Eyewitness identification can be convincing, but is it reliable?

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. Advances in the social sciences and technology have cast a new light on eyewitness identification.

Hundreds of studies on eyewitness identification have been published in professional and academic journals. One study by University of Virginia Law School professor Brandon L. Garrett, found that eyewitness misidentifications contributed to wrongful convictions in 76% of the cases overturned by DNA evidence.

U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness testimony. She wrote, “eyewitness identifications’ unique confluence of features - their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process - can undermine the fairness of a trial.”

What can cause an eyewitness to misidentify a suspect? There are a number of factors: Poor lighting, the crime occurred quickly, the presence of a gun, and the fact that the perpetrator is a different race than the witness. The police can, as well, intentionally or unintentionally influence an eyewitness’ identification.

A number of states have put in place a process to review and revise state rules for how judges and jurors treat evidence from police lineups and photo arrays. States are utilizing practices supported by years of research.

A recent research paper published in the Journal of Research in Memory and Cognition argues it’s long overdue to replace the current “antiquated” approach to eyewitness identification as it relates to lineups and photo arrays.

The authors, Neil Brewer of Founders University in Australia and James Doyle, a Boston based criminal defense attorney propose a “screening” method in which eyewitnesses are asked to grade the probability that one of an array of persons presented to them in a lineup matches the perpetrator of a crime.

According to Handelman, the alternative approach replaces the “categorical traditional identification decision with a procedure whereby the witness simply rates how confident they are that each person in the lineup is the culprit.”

“The confidence ratings ... provide a probabilistic guide as to whether the culprit is in the lineup,” wrote Handelman quoting the report. “And this, of course is the fundamental question being asked.”

Former U.S. Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion nearly 35 years ago, “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”

No one can challenge that impact of eyewitness identification. However, it is clear from the research and the growing number of exonerations that the reliability of eyewitness identification falls far below its impact. Without meaningful reform the threat of convicting the innocent continues.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

 To visit the column CLICK HERE

MCN/USA TODAY Network: Juvenile life without parole both a tragedy and calamity

Matthew T. Mangino
MCN/USA TODAY Network
April 30, 2021

In July 2003, 52-year-old Cole Cannon was beaten with a baseball bat and left to die in his Lawrence County, Alabama mobile home set on fire by his killers.

Evan Miller, a 14-year-old, along with an accomplice, was charged. Miller went to trial and was convicted of murder and sentenced to a mandatory term of life imprison without the possibility of parole.

Miller filed an appeal, arguing that sentencing a 14-year-old to life without the possibility of parole constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

In 2012, the U.S. Supreme Court agreed. Justice Elena Kagan, writing for the majority in Miller v. Alabama in what would become a landmark decision wrote, “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him - and from which he cannot usually extricate himself - no matter how brutal or dysfunctional.”

Miller’s name became synonymous with “getting a second chance.” In 2016, the Supreme Court determined that Miller v. Alabama must be applied retroactively. The decision, a nationwide precedent-setting ruling, affected about 2,100 inmates nationwide who were juveniles when they killed.

Evan Miller will not be one of the inmates given a second chance from the decision bearing his name. This week, Lawrence County Circuit Judge Mark Craig resentenced Miller to life without parole.

According to AL.com, Judge Craig said he considered Miller’s “past exposure to violence; a history that he and two siblings were abused, beaten, and whipped; his use of drugs; and his mental health history, that included multiple suicide attempts - one attempt as early as age of 5 or 6 years old.”

The judge continued, “The crime is why we are here. We’re not here because Mr. Miller suffered abuse at the hands of his father.”

Ironically, Miller’s fate is very similar to a defendant in another 21st-century landmark criminal decision handed down by the U.S. Supreme Court.

In 2002, the U.S. Supreme Court, in a decision that bears the name Atkins v. Virginia, banned the execution of the mentally disabled. In Atkins the Supreme Court failed to define mental disability. That decision was left to individual states.

As a result of the Atkins decision, states went about drafting legislation and courts began crafting individualized methods for determining mental disability. Some states decided the issue after conviction; some states made the determination before trial - but more importantly, states employed different methods for defining the same thing. Daryl Atkins’ case was sent back to Virginia to determine if he was mentally disabled. Like Evan Miller, the case named for Daryl Atkins did not result in him getting a second chance. He was resentenced to death. Atkins was later removed from death row for completely unrelated reasons and is now serving a life sentence.

In 2016, when the high court made the Miller decision retroactive the court also ruled that the severest punishment must be reserved “for the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

Prosecutors had argued that Miller’s crime revealed he is “incorrigible and deserving of a sentence of life without the possibility of parole.”

Just five days before Evan Miller was resentenced, the U.S. Supreme Court, in an opinion written by Justice Brett Kavanaugh, ruled 6-3 that judges did not have to make a separate factual finding of permanent “incorrigibility” before resentencing a juvenile killer to life without parole. Effectively overruling a precedent set only five years ago.

To paraphrase 19th-century British Prime Minister Benjamin Disraeli, the decision to resentence Miller to life without parole is a tragedy; overruling a five-year-old precedent requiring a finding of incorrigibility is a calamity.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

MCN/USA TODAY Network: Stoking expectations for a lengthy Chauvin’s sentence

Matthew T. Mangino
MCN/USA TODAY Network
April 24, 2021

Jurors in Minnesota took little more than 10 hours to convict Derek Chauvin of killing George Floyd. Guilty on all counts, offering a quick and decisive verdict in a case that riveted the nation.

The speedy result, announced in that Minneapolis courtroom, further highlights the unusual nature of Derek Chauvin’s prosecution and the exceedingly rare instance of a police officer on trial. The activation of National Guard troops and big city police on high alert intensified the fear—in the face of overwhelming evidence—the public had that Chauvin would be found not guilty.

Floyd’s death was depressingly familiar—the latest in a string of deaths at the hands of police—yet it was also an exceptional case. Brave onlookers knowing what they were seeing was a crime, videotaped the incident, showing Chauvin’s apparent “calm indifference” as he slowly squeezed the life out of Floyd, wrote David A. Graham of The Atlantic. “Condemnation came quickly—not only from many longtime critics of police violence and from ordinary citizens, but also from law-enforcement officers of all ranks around the country,” wrote Graham.

Law enforcement officers kill about 1,000 people a year across the United States. Since the beginning of 2005, 121 officers have been arrested on charges of murder or manslaughter in on-duty killings, according to data compiled by Philip M. Stinson, a criminal justice professor at Bowling Green State University in Ohio. Of the 95 officers whose cases have concluded, 44 were convicted, but often of a lesser charge, Stinson told the New York Times.

In this rare instance a police officer has been convicted of murder while on duty.  The conviction resulted in a collective sigh of relief from big cities to tiny hamlets across the country. There were no violent protests, no riots, violence or unrest.  Americans, from the President to John Q. Public, thought the jury’s verdict was correct and justice was served.

In the aftermath of this historic verdict, it would be smart to pause and consider what would be the prudent way forward.  The verdict may be the impetus for meaningful reform. That momentum may be thwarted by the perception of a “lenient” sentence for Derek Chauvin. His sentence is scheduled for about eight weeks and already the media and talking-heads keep promoting the idea that Derek Chauvin could face 40 years in prison.  Forty years in prison is unlikely and here is why.

A 2019 Prison Policy Institute report indicated that Minnesota has consistently ranked in the top five of American states with the lowest imprisonment rate. Minnesota has been ranked in the top five every year but one between 1980 and 2016.

The reason for the consistent low terms of imprisonment is, in part, because Minnesota, like a majority of states, has sentencing guidelines.  That means a sentence imposed by a judge is not solely within the discretion of the judge.

The guidelines consist of a grid with two values, the prior history score and severity score.  A defendant with a history of criminal convictions will receive a score from one to six.  Every crime in Minnesota receives a severity score from one to eleven. The presumptive range of sentence is determined by where the two values meet on the grid.

Derek Chauvin has no prior record.  Second degree murder scores a 10 on the severity scale.  The range of sentences would be a minimum of 73 months to 103 months.

According to the Minnesota Sentencing Guidelines, judges are required to comply with the presumptive sentencing ranges.

However, the rules define a process through which a court may deviate from the guidelines known as a “departure.” If there’s a compelling reason to support a departure, the judge may impose a sentence higher or lower than the presumptive range.

A sentence may be increased if the court finds the presence of aggravating circumstances. Conversely, the judge may reduce a sentence based on mitigating circumstances. Based on the guideline, getting anywhere near 40 years seems unlikely.

Chauvin’s conviction can be a watershed moment in policing reform, but unrealistic expectations regarding sentencing could lead to disappointment, distrust, or worse, unrest.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

 

 

MCN/USA TODAY Network: Court packing or court persuasion

Matthew T. Mangino
MCN/USA TODAY Network
April 16, 2021

Recently President Joe Biden issued an executive order creating the Presidential Commission on the Supreme Court of the United States.  The President characterized it as a bipartisan group of experts on Court reform.

A White House press release suggested the Commission’s “purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform… including the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

The phrase that got everyone’s attention was the “size of the court.”  It is no secret that Democrats want to pack the Supreme Court.  The term “packing” comes from the late 1930s, when President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age.

The Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.

According to History.com, Roosevelt’s plan was seen as a political ploy to change the court for favorable rulings on his New Deal legislation.

Roosevelt’s court packing plan failed. According to Reuters, the Supreme court has nine justices and that has not changed since 1869.

As with Roosevelt, President Biden faces a similarly unsympathetic Court.  With Justice Amy Coney Barrett’s rushed confirmation only weeks before the election the Court has a decidedly right-leaning bent with six conservatives and three progressives.

Democrats in the House of Representatives and Senate have proposed legislation to expand the court.  The sponsors of the bill suggest in a press release, “Nine justices may have made sense in the 19th century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration and white-collar crime—simply did not exist and did not require adjudication by the Supreme Court … having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for 13 circuits is a sensible progression.”

For his part, President Biden has previously indicated that he is leery of expanding the court. Justice Stephen G. Breyer, one of the three progressive judges on the court, said this week that packing the court would make the court appear political and erode public confidence.

Speaking recently as Harvard Law School, Breyer said that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

Most Americans are against court packing, the Senate is split 50/50 and Joe Biden is skeptical—so why create a commission to study expanding the court?

A closer look at Roosevelt’s court packing plan may provide some insight.  FDR’s plan to add more justices never came to fruition, but according to The Hill, the court packing plan succeeded in intimidating the Supreme Court into a retreat from its protection of economic liberty against progressive aspirations to regulate American industry.

The Court, following Roosevelt’s “failed” court packing plan, began to act more favorably with regard regulation, public works programs and other Roosevelt initiatives. As the high Court lessened the pressure on FDR the country began to lift itself from the woes of economic decline.

Could President Biden be sending a message to the Court?  Chief Justice John Roberts has not shied away from voting with his progressive colleagues and he has been an ardent supporter of the Court’s reputation.  Perhaps the President’s maneuvering on court reform is a shot across the bow to get the Court’s attention.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

 

MCN/USA TODAY Network: Reconsidering qualified immunity in the wake of George Floyd

Matthew T. Mangino
MCN/USA TODAY Network
April 9, 2021

Derek Chauvin is on trial in Minnesota for murder.  The former Minneapolis police officer was video-taped with his knees on the neck and back of George Floyd as he laid face down on a city street with his hands cuffed behind his back.

In the wake of nationwide protests after Floyd’s at the hands of the police, the doctrine of qualified immunity has come under increasing scrutiny. Qualified immunity shields government officials from liability for their conduct.

According to the American Bar Association, Floyd’s death, and the national turmoil that followed, made qualified immunity—a relatively unknown concept—an issue of national importance.

This obscure legal doctrine, once known only to civil-rights lawyers and legal scholars, is seen on signs at protest and on newspaper headlines across the country.

A federal lawsuit against police misconduct known as a “1983” action (named for the section of the Civil Rights Act 42 U.S.C. 1983), grants civilians the ability to sue state and local police for violating their constitutional rights. Interestingly, the statute does not mention qualified immunity.

Qualified immunity came about in a series of Supreme Court decisions finding that government officials will afraid to do there job if they are worried about getting sued.

Starting in 1967, the Supreme Court carved out a “qualified immunity” exception that provided police officers could not be sued if they were acting in good faith and didn’t know what they were doing was illegal.

Over the years, the court expanded the doctrine to the point that even police officers who knowingly violate someone’s constitutional rights are protected—unless a court has, in a previous case, ruled that the behavior was unconstitutional.

According to Vox, the Supreme Court justified qualified immunity by finding it ensures that the stresses of litigation won’t divert “official energy from pressing public issues,” and that concerns about being sued won’t deter “able citizens from acceptance of public office.”

Last summer, Colorado established a litany of policing reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses.  The Enhance Law Enforcement Integrity Act also eliminates qualified immunity. 

Now police officers in Colorado who violate a person’s civil rights can be held personally responsible in state court.

 “Colorado has passed what is, for the moment, the gold-standard reform,” Robert McNamara, a senior attorney at the Institute for Justice, a libertarian non-profit, told Forbes. “These laws are changing the status quo as to when there are consequences for bad behavior.”

The New Mexico Civil Rights Act, recently signed into law, eliminated qualified immunity. The law is a product of the New Mexico Civil Rights Commission, authorized by Gov. Lujan Grisham in the summer 2020 special session to evaluate potential statutory changes or policy recommendations, again, in the wake George Floyd’s death.

The George Floyd Justice in Policing Act of 2021 is a civil rights and police reform bill passed by Democrats in the U.S. House of Representatives on February 24, 2021. The bill passed the House on a mostly party-line vote of 220–212, and has been sent to the Senate.

The legislation aims to, among other things, enhance accountability for police officers who commit misconduct, by restricting the application of the qualified immunity doctrine for local and state officers.

In Maine, Bill 214, “An Act to Eliminate Qualified Immunity for Police Officers,” is modeled after the Colorado law. The bill would eliminate qualified immunity in the state. A number of other states are taking a close look at qualified immunity. Finally, the time has come to right a wrong.

To visit the column CLICK HERE

MCN/USA TODAY NETWORK: A promising sign in the fight against gun violence

Matthew T. Mangino
MCN/USA TODAY NETWORK
April 2, 2021

Within the last week, four people, including a 9-year-old boy, were gunned down at a business complex in Orange, California. This was the third mass shooting in United States in a span of several weeks.

These killings come as the nation was mourning the killing of 18 others in mass shootings in Colorado and Georgia. Eight people, including six women of Asian descent, were killed in three Atlanta-area spas. A week later, ten people died when a gunman opened fire at a Boulder, Colorado grocery store.

In the wake of the violence, politicians provided their, all too familiar, “stop the needless violence” speeches, and then began to posture to protect their political interests.

Republicans will lament that the Second Amendment is sacrosanct and beyond the limits of mere mortals to contest.  Democrats will nibble around the edges of gun regulation—trying to avoid getting constituents in right-leaning districts too excited. 

This scenario has been repeated after mass shootings in Las Vegas, Orlando, Sandy Hook, Charleston and Pittsburgh—a frenzy of rhetoric after each shooting, but nothing meaningful in terms of reform.

The Democrats in the U.S. House of Representatives have recently passed a bill aimed at addressing gaps in existing gun laws. The bill would extend, by an additional week, the amount of time the F.B.I. has to complete background checks.

A second measure would require those buying firearms from private sellers online or purchasing them at gun shows to have their backgrounds vetted before they could receive the weapon. The gun show loophole lets private sellers avoid the background checks that would be required by an in-person purchase at a retail store.

While Democratic-backed gun regulation legislation faces an uphill battle in the U.S. Senate because of Republican opposition, President Joe Biden is apparently weighing whether he has the authority to issue executive orders aimed at guns made by 3D printers and stemming the flow of international firearms into the country.

The most promising initiative with regard to gun violence was put in place in December, before the recent string of mass shootings. With the National Rifle Associated weakened by in-fighting and allegations of fraud and waste, Congress approved $25 million in federal funding to study gun safety.  According to the USA Today, the money will be split evenly between the National Institutes of Health and Centers for Disease Control and Prevention (CDC), and used to examine gun violence from a public health perspective.

Federal money for gun research disappeared twenty-five years ago after Congress adopted the Dickey Amendment, which barred the CDC from spending money to “advocate or promote gun control.” It was named for Jay Dickey, a former Republican Congressman from Arkansas, who proudly proclaimed himself the National Rifle Association’s “point man” in Washington.

Robust gun violence research can set this country on a track to reducing gun violence in the same way the country reduced traffic fatalities.

Scientists and engineers were able to identify risk factors for motor vehicle accidents after significant and sustained research. In response to the findings of researchers, automakers introduced new safety features and Congress passed the Highway Safety Act in 1966.

In the last 55 years, accounting for significantly more cars on the road each driving many more miles on average, Harvard Professor David Hemenway found that, “motor vehicle deaths per vehicle mile have fallen over 85 percent.”

Just as the Highway Safety Act brought about the National Highway Traffic Safety Administration, this new gun research must result in a National Gun Safety Administration.

The money allotted for gun research pales in comparison with the $500 million the NHTSA has just for grant awards to all 50 States, the District of Columbia, Puerto Rico, the U.S. Territories and the Bureau of Indian Affairs. Yet, the new funding is an encouraging sign.

There is no one answer to gun violence. Just like automobile researchers introduced airbags and promoted safety measure like seatbelts and a nationwide crackdown on driving under the influence—gun violence researchers need to coordinate efforts and have a clearinghouse for implementation and enforcement.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

 

MCN/USA TODAY NETWORK: Commonwealths unite in disdain for capital punishment

 Matthew T. Mangino
MCN/USA TODAY NETWORK
March 26, 2021

This week, the Commonwealth of Virginia officially abolished the death penalty, making it the first Southern state to ban capital punishment.

“Justice and punishment are not always the same thing, that is too clearly evident in 400 years of the death penalty in Virginia,” Gov. Ralph Northam said during remarks ahead of signing the legislation, saying that it is both the right and the moral thing to do.

While Virginia has now become the first state of the former Confederacy to ban the death penalty, it is the 23rd state overall, following Colorado last year.

A total of 1,390 people have been put to death in Virginia, with the first documented execution being a Spanish spy in the Jamestown colony in 1608, according to NBC News. Since the U.S. Supreme Court reinstated the death penalty in 1976, Virginia has executed 113 people, second only to Texas. However, Virginia has only two men on death row and not a single jury in Virginia has imposed a death sentence since 2011.

Virginia is one of four commonwealths in the United States—the other three are Massachusetts, Kentucky and Pennsylvania. What is the difference between a state and a commonwealth? Nothing, according Merriam-Webster Dictionary the term commonwealth was preferred over state by a number of political writers in the years leading up to 1780.

Regardless of their designation, the four commonwealths seem to be in step when it comes to disdain for capital punishment.

The last public execution in the United States was carried out in the Commonwealth of Kentucky. On August 14, 1936, it was reported that nearly 20,000 people crowded around the gallows in Owensboro to witness the execution of Rainey Bethea. He was convicted of the rape and murder of a 70-year-old woman.
            The murder was committed on June 7, 1936. Bethea pleaded guilty, was sentenced and his appeals were disposed of by August 5, 1936. He was executed a little more than a week later.    The Commonwealth was portrayed in a less than favorable light by the throng of media that descended on Owensboro for the hanging. The Kentucky legislature, embarrassed by the unfavorable attention, moved to abolish public executions.

            Today in Kentucky the death penalty is rarely imposed and only one person has been executed in the commonwealth in the 21st century.

The last executions in the Commonwealth of Massachusetts were gangsters Philip Belino and Edward Gertson on May 9, 1947.

After going 35 years without an execution, Massachusetts voters approved, by a whopping majority, a constitutional amendment providing that no constitutional provision shall be construed as prohibiting the death penalty.

Nevertheless, the commonwealth’s capital punishment statute was struck down in 1984 as a violation of due process. The state legislature passed a statute to reinstate capital punishment in 1986 but it was vetoed by then-governor Michael Dukakis, who became the Democratic nominee for president in 1988.

Since 1999, the governors of the Commonwealth of Pennsylvania have signed approximately 205 execution warrants without a single execution, according to The Philadelphia Inquirer.

There have been three executions in Pennsylvania since 1978. All three—Keith Zettlemoyer and Leon Moser in 1995; and Gary Heidnik in 1999—waived their appeal rights and volunteered to be executed.
            Three-hundred forty-eight men and two women were executed in the state's electric chair between 1915 and April 2, 1962, when Elmo Smith was executed for the rape and murder of a young girl. Smith was also the last person involuntarily executed in Pennsylvania.

The current governor of the Commonwealth of Pennsylvania, Tom Wolf, has imposed a moratorium on executions. Although there are approximately 142 inmates on death row, don’t expect an execution in Pennsylvania any time soon.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

 

MCN/USA TODAY NETWORK: Kentucky wants to criminalize free speech

Matthew T. Mangino
MCN/USA TODAY NETWORK
March 19, 2021

In 1987, U.S. Supreme Court Justice William J. Brennan Jr. wrote in a ruling striking down a Houston ordinance that made it unlawful to oppose or interrupt a police officer, "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."

In spite of Justice Brennan’s admonishment, 34 years after the decision the Kentucky Senate approved a measure that would make it a crime to insult or taunt a police officer.

Senate Bill 211 would make it a misdemeanor offense for someone to taunt "a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person."

The ACLU called the legislation "an extreme bill to stifle dissent."

Kentucky is part of the Federal 6th Circuit Court of Appeals.  The 6th Circuit has jurisdiction over federal appeals arising from Kentucky, Michigan, Ohio and Tennessee. 

In 2017, a Taylor, Michigan police officer pulled over a woman for speeding but gave her a ticket for a lesser violation. As the woman drove off, she flashed the officer her middle finger—"flipped him the bird”, i.e., “shot him the finger.” The officer pulled her over a second time and amended the ticket to the more serious speeding offense, reported the Detroit News.

“Fits of rudeness or lack of gratitude may violate the golden rule,” Judge Jeffrey Sutton wrote. “But that doesn’t make them illegal or for that matter punishable or for that matter grounds for a seizure.”

According to the ABA Journal, Judge Sutton said that, if the allegations are true, the officer violated her right to be free from an unreasonable seizure under the Fourth Amendment, as well as her free speech rights under the First Amendment.

“Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment,” the court said.

Not that the Kentucky Senate cares—there are a series of cases over the last half-century that have found that insulting police officers is protected speech.

The 6th Circuit also found, in 1997, that an individual has a First Amendment right to shout "f--- you" and “flip off” a police officer from a moving vehicle. The court relied on a 1971 landmark Supreme Court decision that upheld the right of a man to wear a jacket into the courthouse that said "f--- the draft."

In 2012, the U.S. Court of Appeals for the 2nd Circuit ruled in favor of a New York man who sued after he was arrested for disorderly conduct after making an obscene gesture to a police officer. The court held that the "ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity."

Even without a statute prohibiting the insult of police officers, more and more law enforcement agencies are getting creative. In Pennsylvania, the police are using the state’s hate crime statute “ethnic intimidation”—defined as “malicious intention toward the race, color, religion or national origin of another individual or group of individuals”—against people who direct insults towards the police.

According to The Appeal, a Pittsburgh man being arrested called police “Nazis,” “skinheads” and “Gestapo.” The police charged him with a hate crime.

“This is completely ridiculous,” Mary Catherine Roper, deputy legal director for the ACLU of Pennsylvania, told The Appeal in 2018. “This is not what the hate crime statute was for. This is criminalizing pure speech and that violates the First Amendment.”

In deference to Kentuckians, not everyone is on board in the state Senate. Minority Leader Morgan McGarvey told the Lexington Herald-Leader, “We are criminalizing speech.”

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

MCN/USA TODAY NETWORK: The passing of the ‘Matriarch’ of the families of fallen officers

Mathew T. Mangino
MCN/USA TODAY NETWORK
March 12, 2021

            One of the few living people with a direct connection to the tragic assassination of President John F. Kennedy has died. Marie Tippit, the widow of Dallas Police Officer J.D. Tippit, who was shot to death by Lee Harvey Oswald 45 minutes after Kennedy was assassinated, died on March 5, 2021.

            On the morning of Nov. 22, 1963, Tippit made breakfast for her husband.  J.D. Tippit would leave early in the morning to begin his shift as a Dallas patrolman. He patrolled the Oak Cliff neighborhood of Dallas.  November 22 was a hectic day in Dallas. President Kennedy and his wife Jacqueline were visiting along with Texas native, Vice-President Lyndon Johnson and his wife Lady Bird. 

            J.D. returned home for lunch as well that day.  Within minutes of her husband leaving, Marie learned that the president had been shot.  According to eyewitnesses, within minutes of the president being shot, Oswald had hurriedly left the Texas School Book Depository, the building from where the deadly shots were fired.

            About 18 minutes before Tippit’s murder, Oswald returned to his Oak Cliff rooming house where the housekeeper said he briskly walked in and left within minutes without speaking. He left an empty holster on his bed in his room.

            A witness to Tippit’s murder, Helen Markham, told Marie, “J.D. stopped him, and Oswald walked over and put his hands on the side of the car . . . He looked in the window and spoke with J.D., who got out of the car. When J.D. was even with the front wheel of his car Oswald shot him.” He was shot four times with a handgun.

            The Warren Commission concluded that Oswald killed the president in Dealey Plaza and then, 45 minutes later, gunned down Tippit at the corner of 10th Street and Patton Avenue in Oak Cliff.

            Marie Tippit was referred to as the “Matriarch” of all widows of all fallen officers. The carnage never ends. As of the end of 2020, across the country there were 264 officers killed—federal, state, local, tribal, and territorial—in the line of duty.  Many of those officers, like J.D. Tippit, left for work and never returned. However, none of the widows and widowers received the notoriety that Marie Tippet received after the death of her police officer husband.

            Marie received over the 40,000 letters, including more than $600,000 in donations from around the world. She even got a letter from the president’s widow, Jacqueline, expressing sorrow for the bond they shared.

            The president’s brother, Attorney General Robert F. Kennedy, called her and lamented that if the president had not come to Dallas, her husband would still be alive.

            According to the Morning News, Tippit told Kennedy, “But you know they were both doing their jobs. They got killed doing their jobs. He was being the president, and J.D. was being the policeman he was supposed to be.”

            Rick Janich, a retired Dallas police detective and family friend recently told the Morning News, “She really was an ambassador for all the widows . . .  of fallen officers.” He went on to say, “You and I have no idea what these ladies and gentlemen go through. They have a special bond. She was always the one who told them, ‘The way to survive this is baby steps. Think of your family. Survive with your family. You will never get over it, but you have to do the best you can for your family.’ ”

            Nearly sixty years have passed since that fateful day in Dallas.  Although Marie Tippit is gone she left an indelible mark on the people she touched.  She never stopped working for the families of fallen officers. Her obituary suggested that “[m]emorials can be made to the Dallas Assist the Officers Foundation.”

She told the Morning News in 2003, “I knew I was loved. You know, that is the most important thing in your life. To be loved. And to be able to express that love to others.” In the face of tragedy, anguish and despair, Marie loved.  

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

 

MCN/USA TODAY NETWORK: A landmark decision marks its 60th anniversary

Matthew T. Mangino
More Content Now/USA TODAY NETWORK
March 5, 2021

This year marks the 60th anniversary of the landmark U.S. Supreme Court decision in Mapp v. Ohio. In 1957, Cleveland, Ohio police officers went to the home of Dollree Mapp looking for a suspect in a criminal investigation.  She refused to let the police in without a warrant.

The police left, and when they returned, they were armed with a “fake” warrant. Chicanery took the place of real police work. Instead of going to a judge to get a warrant, the police drew up their own. After entering Mapp’s home, police conducted a search and confiscated obscene material resulting in Mapp’s arrest.

As a result of the police misconduct the Supreme Court provided a remedy—the exclusion of illegally obtained evidence from admission in a criminal prosecution—resulting in a dismissal of the charges.  

 Forty-seven years before Mapp, the U.S. Supreme Court ruled that evidence collected in federal prosecutions that violated the Fourth Amendment ban against illegal search and seizures would be excluded from trial. The exclusionary rule, as it became known, was only available to defendants in federal court. Mapp v. Ohio changed that and altered the nation’s jurisprudential landscape. As a result, state prosecutors were also banned from using evidence gained by illegal or improper means.            The rationale behind the exclusionary rule was to deter police misconduct. If police intentionally circumvented their obligation to get a search warrant or if the police were just inept, the penalty would be significant—the inability to use the evidence illegally obtained.            

Many Supreme Court observers suggested that the Mapp decision would be detrimental to law enforcement. The courts would be inundated with challenges and the guilty would go free in droves. The exclusionary rule has been the target of a 60-year assault by conservatives that contend the rule is a boondoggle for criminals.           

Over the last 60 years, the Supreme Court has whittled away at the exclusionary rule. The court has ruled that the exclusionary rule does not apply if the police obtained no advantage by their unlawful conduct, if a warrant was improvidently issued by a judge, or if a valid warrant was illegally served.

In 2009, the assault on the exclusionary rule continued. The Supreme Court found that evidence confiscated as the result of an arrest that was the product of an expired warrant was not subject to exclusion. The court found that negligence by one police department in failing to remove a warrant did not contaminate evidence obtained by a different police department that was unaware of the invalid arrest warrant.            

In 2011, the 50th anniversary of the Mapp decision, the U.S. Supreme Court further narrowed the exclusionary rule. Police in Alabama arrested Willie Davis. After he was handcuffed and placed in the backseat of a police cruiser Davis’ car was searched. The police found a gun. The police were in conformity with the law as it existed at the time the warrantless search of Davis’ car was conducted.      

  Subsequently, the law changed and Davis sought to have the evidence excluded. The Supreme Court refused to exclude the evidence. Justice Samuel Alito concluded that suppression of evidence as the result of a change in the law, a change that came after a lawful search, “would do nothing to deter police misconduct.”

In 2016, Supreme Court Justice Clarence Thomas wrote an opinion in an Utah case ruling that evidence obtained from an unlawful police stop would not be excluded from court because the link between the stop and the evidence’s discovery was “attenuated” by the discovery of an outstanding warrant during the stop.

What the exclusionary rule accomplished was a higher standard of police training and in turn police work. Ironically, the late Justice Antonin Scalia cited “increasing professionalism of police” as a reason for the exclusionary rule’s obsolescence.

The law enforcement training that grew out of the Mapp decision has enhanced the quality of police investigations and protected the rights of individual citizens. The exclusionary rule’s contribution to the criminal justice system cannot be overstated.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the Column CLICK HERE

 

MCN/USA TODAY NETWORK: The plight of pregnant women in prisons and jails

Matthew T. Mangino
More Content Now /USA TODAY NETWORK
February 26, 2021

Pregnancy can be challenging to a mother and fetus under the best of circumstances.  According to Johns Hopkins University, pregnant women are particularly vulnerable to life threatening complications if not closely monitored by a physician.

Without close medical observation, conditions like hyperemesis gravidarum, a severe form of morning sickness that can cause significant weight loss; gestational diabetes, which may cause the fetus to grow larger than normal causing problems during child birth; or preeclampsia which causes dangerously high blood pressure, can cause harm or death to a mother and child.

Now, imagine pregnancy in jail or prison. Incarcerated pregnant women are a vulnerable population with special needs. For example, national guidance provides that they should receive regular prenatal care, screening, and diagnostic tests. However, the U.S. Government Office of Accountability (GOA) found that while the U.S. Marshals Service and the Federal Bureau of Prisons (BOP) have policies on pregnancy-related care, they do not always align with the national guidance.

Outside of the prison walls the government and private businesses make a host of accommodations for pregnant and parenting women.  The Pregnancy Discrimination Act is a federal statute that protects pregnant workers and requires covered employers to make job-related modifications for pregnant employees. The Act forbids employment discrimination based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.

When a family is expecting a new child, the Family Medical Leave Act (FMLA) provides equal leave for both the mother and father. Both, or either covered parent, may take 12 weeks leave for the birth of a newborn. If both parents work in positions covered by the FMLA, they will both be entitled to leave. FMLA also provides leave for pregnancy-related health reasons. 

In prison, the government is not so generous when it comes to pregnant women or women who have recently given birth.  According to the GOA report, while the Marshals Service and BOP both have policies in place for pregnant women, not all policies fully align with national guidance recommendations on 16 pregnancy-related care topics.

Women in the custody of the Marshals Service are typically those in pretrial detention.  Those inmates may be in federal facilities, but are more likely in state or local facilities where beds are leased by the federal government.  Those in the BOP have been sentenced to a term of imprisonment.

GAO analyses of available data show that from 2017 through 2019, there were at least 1,220 pregnant women in Marshals Service custody and 524 pregnant women in BOP custody.

According to The Crime Report, national guidelines created by the American College of Obstetricians and Gynecologists call for special nutrition for pregnant women and, if needed, mental health care, as well as other screenings and services.

According to the GOA the Marshals Service policies align with only on three of 16 care topics and BOP policies fully align with eight of 16 recommendations.

Prisons and jails are not equipped to properly care for pregnant women. For instance, pregnant women with mental health problems are advised to stop taking psychotropic drugs for bipolar, anxiety and depression. Obviously, confinement exacerbates their condition.  Intensive mental health therapy must stand in the void.

Special nutritional concerns like seafood, foods not fully cooked or fruit and vegetables not properly cleaned put women and their babies at risk. Proper intake testing and evaluation, prenatal care and postpartum care, especially mental health care after separation from a newborn child can go a long way toward protecting pregnant women and their newborn.

Pregnant women do not belong in prisons or jails, but until we get to the point where society can achieve an alternative—intensive evaluation, observation, care and treatment are essential.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

MCN/USA TODAY NETWORK: The time is right to fix punishment for felony murder

Matthew T. Mangino
MCN/USA TODAY NETWORK
February 19, 2021            

           Pennsylvania has not carried out an execution in 22 years.  More than 58 years have passed since the last prisoner in the Commonwealth was executed involuntarily.

            Although Pennsylvania might not be carrying out executions—Governor Tom Wolf has declared a moratorium on executions—Pennsylvania has thousands of de facto death sentences. There are about 5,200 state prisoners serving what has been referred to as “death-by-incarceration.”

            What is death-by-incarceration? Offenders condemned to life in prison without the possibility of parole. 

           Under Pennsylvania’s sentencing scheme, offenders—other than lifers—are sentenced to a minimum and a maximum term of sentence.  The maximum must be at least twice the minimum.    

            In Pennsylvania, once an inmate has served her minimum sentence she is eligible for parole.  Release from prison is determined by the parole board.  Once released the offender is supervised on parole until the expiration of her maximum sentence. 

            A life sentence in Pennsylvania has no minimum—there is no opportunity for parole—life means life in Pennsylvania. 

            There isn’t much sympathy for an offender who has been sentenced to life without parole for killing another human being.  However, in Pennsylvania more than 20 percent of lifers didn’t kill anyone.  Those offenders were convicted of second-degree murder—felony murder. 

             Felony murder is a statutory crime in Pennsylvania promulgated at 25 Pa.C.S.A. 2502 (b) providing “[C]riminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.”      The law in Pennsylvania is clear, if a death occurs during the commission of a felony, the death is considered murder and anybody who participated in the felony is equally responsible for the murder, regardless of whether they had any criminal intent to harm or cause death.

               The concept of felony murder can produce bizarre outcomes.  For instance, two teens go into a convenience store unarmed. They pretend to have guns and ask the store owner to turn over the cash. The owner pulls a gun and kills one of the would-be robbers.  The surviving robber can be convicted of Second Degree Murder and sentenced to life in prison, even though he had no intent to kill and no means to kill.

            Pennsylvania lawmakers have tried to provide hope for those serving life sentences. A recent proposal would have allowed lifers a chance at parole after serving 35 years on a first-degree murder conviction and 25 years on second-degree murder.  The proposal never made it to the floor for a vote.

             Now a lawsuit has been filed on behalf of six people convicted in their late teens of “felony murder,” arguing that prohibiting parole consideration for felony murder is cruel and unconstitutional under Pennsylvania law. Article I, Section 13 of the Pennsylvania Constitution prohibits “cruel punishment.” Pennsylvania’s constitutional provision predates the Eighth Amendment to the U.S. Constitution.

           According to the lawsuit, the plaintiffs are three women and three men who have served between 23 and 47 years in Pennsylvania prisons. Each was sentenced to life after a felony murder conviction. None committed or intended to commit any killing in the course of the crime.

             The Pennsylvania Board of Probation and Parole has denied the plaintiffs parole consideration through 61 Pa.C.S.A. 6137(a) that prohibits individuals serving life sentences from parole eligibility. The plaintiffs seek to show the parole statute is “grossly disproportionate to any legitimate penological interest as applied to individuals who did not take a life or intend to take a life, and must be struck down.” 

             With essentially no death penalty in Pennsylvania—and what appears to be the slow undoing of the death penalty nationwide—it is ridiculous to impose the same sentence of life in prison without parole on an individual who commits planned premediated murder and someone who is along for the ride.  The legislature must act to provide a sense of hope for those serving a felony murder life sentence and provide the option of parole for those sentenced in the future.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. in New Castle, PA. He is the author of The Executioner’s Toll, 2010. His weekly syndicated column is distributed by Gannett. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

To visit the column CLICK HERE

MCN/USA TODAY: An investment in education is an investment in crime prevention

Matthew T. Mangino
More Content Now-USA TODAY NETWORK
February 5, 2021

Pennsylvania Gov. Tom Wolf recently unveiled, as part of his 2021-22 budget, a plan to invest $1.3 billion in public schools. As part of the initiative the governor has also taken on a taboo subject - increased taxes.

“My legislative plan is an investment in Pennsylvania’s students, but really it’s an investment in the future for all of us - for every Pennsylvanian,” said Wolf.

Investments are typically made with an eye toward cashing in. Can an investment in education pay dividends?

Several years ago the Alliance for Excellent Education reported that America could save billions of dollars in annual crime costs if school districts could raise the male high school graduation rate. While graduation rates have increased according to a 2019 Alliance report, males and “historically underserved students” have lagged behind.

“The nation needs to focus dollars and efforts on reforming school climates to keep students engaged in ways that will lead them toward … a career and away from crime and prison,” said Bob Wise, president of the Alliance for Excellent Education and former governor of West Virginia. “The school-to-prison pipeline starts and ends with schools.”

There was a time when disruptive students were sent to see the principal. Today in some school districts, the disruptive student is handcuffed and ushered off to court. The school-to-prison pipeline is overflowing with students.

According to the Washington Post, more than 3 million students each year are suspended or expelled from school across the United States. Federal data, though limited, show that nearly a quarter of a million students are annually referred to law enforcement.

There is an indirect correlation between educational attainment and arrest and incarceration rates - particularly among males. According to data compiled by the U.S. Department of Justice, Bureau of Justice Statistics, 56% of federal inmates, 67% of inmates in state prisons, and 69% of inmates in local jails did not complete high school.

The Alliance for Excellent Education found that increasing the male graduation rate would decrease crime nationwide. Annual incidences of assault, larceny, motor vehicle thefts and burglaries could see significant reductions.

In Pennsylvania, and across the country, the potential savings from an increase in the male high school graduation rate could save literally hundreds of millions of dollars in crime-related costs and produce millions in earnings and tax revenue from individuals who are employed rather than incarcerated.

There is more to the crime and education connection than just coursework and passing grades. The combination of largely unnoticed actions undertaken by individual schools affects education climates for millions of students in thousands of schools across the country. These school climates, in turn, often profoundly affect student performance.

The school-to-prison pipeline is fueled, in part, by “zero-tolerance” policies that accelerate the involvement of the criminal justice system in routine school disciplinary practices. The involvement of law enforcement in traditional matters of school discipline has soared as school districts across the country expanded the use of armed police officers in schools.

The nightly news is flooded with stories like the 7-year-old North Carolina boy with autism, whose mother said he was overwhelmed by the “comings and goings in his classroom,” and began spitting inside his special needs school.

The “school resource officer” arrived on the scene, put the boy in handcuffs, and pinned him to the ground, according to body-cam footage of the September 2018 incident that was recently published by WSOC-TV.

This pattern is all too familiar. Just this week, police pepper sprayed a 9-year-old New York girl during a family disturbance outside of school.

An investment in education is an investment in crime prevention. The potential to save money, generate revenue and minimize the anguish that comes with victimization is too important to ignore.

To visit the column CLICK HERE

MCN/USA TODAY NETWORK: An investment in education is an investment in crime prevention

Matthew T. Mangino
MCN/USA TODAY NETWORK
February 5, 2021

Gov. Tom Wolf recently unveiled, as part of his 2021-22 budget, a plan to invest $1.3 billion in public schools. 

Investments are typically made with an eye toward cashing in. Can an investment in education pay dividends?

Several years ago the Alliance for Excellent Education, which advocates for raising the high school graduation rate, reported that America could save billions of dollars in annual crime costs if school districts could raise the male high school graduation rate. While graduation rates have increased according to a 2019 Alliance report, males and "historically underserved students" have lagged behind. 

There was a time when disruptive students were sent to see the principal. Today in some school districts, the disruptive student is handcuffed and ushered off to court. The school-to-prison pipeline is overflowing with students.

According to the Washington Post, more than 3 million students each year are suspended or expelled from school across the United States. Federal data, though limited, shows that nearly a quarter of a million students are annually referred to law enforcement. 

There is an indirect correlation between educational attainment and arrest and incarceration rates — particularly among males. According to data compiled by the U.S. Department of Justice, Bureau of Justice Statistics, 56% of federal inmates, 67% of inmates in state prisons, and 69% of inmates in local jails did not complete high school. 

The Alliance for Excellent Education found that increasing the male graduation rate would decrease crime nationwide.

In Pennsylvania, and across the country, the potential savings from an increase in the male high school graduation rate could be literally hundreds of millions of dollars in crime-related costs and produce millions in earnings and tax revenue from individuals who are employed rather than incarcerated. 

There is more to the crime and education connection than just coursework and passing grades. The combination of largely unnoticed actions undertaken by individual schools affects education climates for millions of students in thousands of schools across the country. These school climates, in turn, often profoundly affect student performance. 

An investment in education is an investment in crime prevention. The potential to save money, generate revenue and minimize the anguish that comes with victimization is too important to ignore.

Matthew T. Mangino is the former district attorney of Lawrence County and an adjunct professor at Thiel College in Mercer County.

To visit the column CLICK HERE

 

MCN/USA TODAY: Bail reform is safe, humane and fiscally responsible

Matthew T. Mangino
More Content Now USA TODAY NETWORK
January 29, 2021

Every day in America thousands of people are locked-up because they don’t have money. Although those accused of a crime are presumed innocent until proven guilty, the monetary bail system denies them their freedom. Those unfortunate few, without resources, sit in jail and are at risk of losing their jobs, their homes and their families.

Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in this nation to contribute to the nearly $1 trillion spent on pretrial detention, according to the Pretrial Justice Institute - which amounts to about 6% of the Gross Domestic Product.

Correcting the bail crisis is not out of reach. This isn’t about being tough on crime. It’s about being fair. For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.

For taxpayers the issue is just as compelling. If the cost of pretrial detention could be cut in half, taxpayers could save literally billions of dollars annually.

A recent CNN review of all 50 states and the District of Columbia found that the powerful bail industry has derailed, stalled or killed reform efforts in at least nine states. In spite of those special interests, more than 25 states, including Colorado, Connecticut, Ohio, Nevada, Utah and Kentucky, have passed laws or enacted changes that address bail practices, while several states have pending reform measures.

Here are examples of successful bail reform efforts. Former New Jersey Gov. Chris Christie’s bail reform program was implemented in 2017. The reform effort was bipartisan. Reform came about through a Republican governor, a Democratic legislature as well as the unlikely partnership of the state judiciary, prosecutors, defense attorneys and the American Civil Liberties Union.

According to the Chicago Tribune, New Jersey has enjoyed a significant drop in violent crime, a 29% decrease in pretrial incarceration, and virtually no change in recidivism or court appearance rates. In addition, New Jersey taxpayers saved hundreds of millions of dollars by not having low-risk, nonviolent offenders warehoused in local jails.

The Illinois legislature also passed a bail reform package. Starting on Jan. 1, 2023, “all persons charged with an offense shall be eligible for pretrial release before conviction,” and the “requirement of posting monetary bail” will be abolished.

The law will place the burden on state prosecutors to prove an accused should be detained, rather than the accused proving that they should be free pending trial.

According to the Illinois Times, the state’s attorney must request detention in each eligible case through a verified petition. If the defendant’s offense is a low-grade felony or misdemeanor, a hearing on their detention must be held within 24 hours of their first appearance before a judge, 48 hours for more serious offenses.

A couple of years ago, California enacted Senate Bill 10, a law that abolished cash bail in favor of a computer-based “risk assessment” model. Last fall, California voters rejected Senate Bill 10.

The legislature immediately got to work on a revised bail reform measure. The result is Senate Bill 262 and Assembly Bill 329. The new legislation will set bail at zero for misdemeanors and “low-level felonies,” and require that bail money be refunded if an accused makes all court appearances, charges are dropped or the case is dismissed, reported the Courthouse News Service.

Unfortunately, not all reform is good. New York’s effort at bail reform has fallen flat. The empire state’s legislation eliminated judicial discretion and limited prosecutors’ arguments for detention to only the risk of flight - not dangerousness. New York City Police Commissioner Dermot Shea has blamed the new bail law for a sharp rise in serious crimes.

Reform can reverse the detrimental impact monetary bond has on families, employment and the viability of neighborhoods and communities disproportionately affected by the criminal justice system. It appears that some states have found the balance between public safety and the efficient operation of the criminal court system - more states should take heed.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

MCN: COVID outbreaks in prison, trust the science

Matthew T. Mangino
More Content Now
January 22, 2021

Science has demonstrated that large gatherings of people in close proximity to one another can be a breeding ground for COVID-19. The phenomenon known in coronavirus nomenclature as a “superspreader event,” has the potential to sicken large swaths of people.

A well-documented study from the state of Washington examined a single choir practice consisting of 61 choir members wherein a single infected member caused 32 confirmed infections and 20 additional probable cases.

These hot spots were targeted from the earliest days of the pandemic. Nursing homes, sporting events, religious services, indoor dining have been restricted, locked down or closed. Facilities where people congregate or live - often with little or no mitigation measures such as wearing personal protective equipment or keeping socially distanced have been universally recognized as potentially life-threatening.

Yet with similar or worse conditions in the nation’s jails, prisons and detention centers, criminal justice policy makers continue to warehouse inmates. According to NPR, the 2.3 million people incarcerated in the U.S. are nearly five times as likely to test positive for COVID-19 as Americans generally and nearly three times as likely to die.

There have been outbreaks at more than 850 jails and prisons in the country, putting many prisoners incarcerated in the U.S. at risk of infection. Dr. Ross MacDonald, chief physician of New York’s Rikers Island, told TIME in March simply that, “the right preventive measures don’t exist to stop the spread of this virus in (jail and prison facilities)” - 10 months later prison mitigation measures have not improved.

Prisoners live in crowded unsanitary spaces, sharing bathrooms and dining halls where social distancing is impossible. Many inmates have conditions like asthma, diabetes and heart disease - making them particularly vulnerable to the effects of the virus.

To complicate things, mental health problems are rampant in correctional facilities. This makes mask wearing and social distancing virtually impossible.

No one questions whether health care workers who treat COVID-19 patients should be first in line for vaccines. Other high-priority groups include residents and employees of long-term care facilities, essential workers, the old and infirm.

According to a recent nationwide analysis by PEW’s Stateline, state plans for administering vaccines in prisons found wide variations among the states. According to a recent study by the Prison Policy Initiative, a nonprofit research and advocacy group, at least 38 states addressed incarcerated people in their vaccine plans, but most of those states prioritized prison staff over incarcerated people, and 11 states appeared to have no plans for the incarcerated.

“In terms of public health risks and priorities, I think this is straightforward public health assessment and response,” Dr. Thomas Inglesby, director of Johns Hopkins’ Center for Health Security told NPR. “All the conditions that we think about in terms of trying to control COVID, they’re all moving in the wrong direction in these facilities. They are basically the perfect conditions for superspreading events.”

Should prisoners and other detainees be given priority access to COVID-19 vaccines?

New Jersey has begun vaccinating inmates and staff at the state’s largest correctional facility. Seven states - Connecticut, Delaware, Maryland, Massachusetts, Nebraska, New Mexico and Pennsylvania - have designated inmates “Phase One” recipients for vaccines, according to the Stateline.

Obviously, the question of when inmates will receive the vaccine is a mixed bag. According to NPR, states and agencies that control distribution “face political pressure from a general public that has historically been unsympathetic to the health of incarcerated people.”

If Americans are going to accept the science that vaccines are a smart and effective way to deal with COVID-19, they must be willing to accept the science when it comes to who should get the vaccine and when.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE