Ipso Facto

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Predictive analytics has made its way into the criminal justice system through the use of assessments to predict future risk. U.S. Attorney General Eric Holder doesn’t think it’s a good idea.

Predictive analytics is the process by which analysts are able extract information from a huge amount of data in order to reveal patterns and make predictions about what might happen in the future. Predictive analytics is not a crystal ball, but it is a tool that looks into the future with an acceptable level of reliability.

Holder cautioned against the use of data in sentencing criminal defendants, saying judges should base punishment on the facts of a crime rather than on statistical predictions of future behavior that can be unfair to minorities.

"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place," Holder said.

The concept is not new. The Commonwealth of Virginia has used risk assessment in sentencing for 15 years. The higher the assessment score, the less likely the offender will be diverted from prison. The result has been fewer people in prison and a crime rate lower than the national average.

Risk forecasting is not just relegated to the courtroom. Police departments have been refining forecasting over the last two decades.

Five years ago, Holder’s justice department sponsored a National Institute of Justice Symposium on Predictive Policing. Then Assistant Attorney General Laurie O. Robinson told the conference attendees, “Eric Holder is thinking a great deal about where we are in the evolution of law enforcement. He knows, as all of you do, that we’re at a point where some very strategic, and collaborative, thinking is in order.”

Predictive policing is the use of analytical techniques to identify promising targets for police intervention with the goal of preventing crime, solving past crimes, and identifying potential offenders and victims. These techniques can help departments address crime problems more effectively and efficiently.

Jeremy Heffner of Azavea, a firm specializing in geographic information system mapping said, “You can kind of think of crime as a disease. If a crime happens, we can see how it affects the likelihood that another incident is going to happen within a certain area in a certain amount of time after that.”

(Image: adrian825/iStock)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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Judge Terrence Boyle of the U.S. District Court for the Eastern District of North Carolina presided over the government’s prosecution of Wakemed Health and Hospitals in 2013, a company accused of pervasive Medicare fraud. He rejected a plea agreement, lamenting the skyrocketing number of healthcare fraud cases across the country and their impact on “every American wage earner and every American citizen.”

Judge Boyle noted the difficulty “for society and the court to differentiate between the everyday working Joe or Jane who goes to prison and the nonprofit corporate giant who doesn’t.” He complained that deferred prosecution agreements like the one he rejected are supposed to be for marijuana-smoking teenagers, not corporations accused of financial crimes.

Boyle’s complaint seemed to be directed at the U.S. Commission on Sentencing. The Commission, which yesterday voted on priorities for the coming year, has expressed interest in examining punishments for white-collar crime. Not to make them stiffer, but to be more lenient.

The timing of the Commission’s action seem a bit peculiar given the public outrage at those recently convicted of massive fraud—stealing the life savings of their clients; the lingering anger over the damage inflicted by the 2008 financial meltdown; and situations described by Judge Boyle.

Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them. Advocates argue that white-collar sentencing guidelines are "mixed up and crazy" and could weaken support for keeping them in place, said Ohio State University law professor Douglas Berman, a sentencing law expert.

Critics of the guidelines in white-collar cases contend that they have come to rely too heavily on financial-loss calculations, which can quickly mushroom when the crime involves a public company. In certain cases, a public-company executive could face life in prison, said James Felman, a Tampa, FL defense attorney and member of an American Bar Association Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes looking at proposing revisions in the guidelines for economic crimes.

The commission's action to soften drug-crime guidelines is a signal that the time is ripe, to soften the impact on white-collar crime sentencing. Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.

A 2013 proposal from an American Bar Association task force proposed that very thing in 2013. The task force encouraged judges to place less emphasis on how much money was lost and more on a defendant's culpability.

Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually financially benefited. Essentially, the Commission would give judges a little more discretion.

I’m sure Judge Boyle would be pleased with a little more discretion, but those brought before him might not be as pleased with the result.

(Image: John Lund/Sam Diephuis/Blend Images)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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The U.S. Centers for Disease Control and Prevention has issued its highest-level alert in response to the Ebola crisis in West Africa.

Two Americans, Kent Brantly and Nancy Writebol, have been returned to the U.S. from Liberia and are being treated for Ebola at the Emory University Hospital in Atlanta.

Could a patient with a communicable disease, or merely exposed to a communicable disease, be isolated or quarantined in Pennsylvania?

In 2007, I wrote a column for the Pennsylvania Law Weekly on the issue of quarantine -- in light of the Ebola scare the law in Pennsylvania is worth revisiting.

The United States Constitution prohibits the federal government as well as state governments from depriving individuals of specifically protected liberty rights. There are exceptions. In Pennsylvania the health and well-being of the community at large may supersede individual rights of freedom and liberty.

Although matters relating to public health have been left largely to individual states to manage, the federal government does have jurisdiction over cases where communicable disease is introduced into this country from a foreign source or to prevent or curtail the interstate movement of communicable disease.

In Pennsylvania the Disease Prevention and Control Law (DPCL) provides that the state department of health, county/municipal health departments or a local heath authority may, without court intervention, order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and no lesser restrictive means is warranted. The court may be asked to review the order within 24 hours of service upon the individual being detained.

The DPCL defines quarantine as the “limitation of freedom of movement of persons . . . who have been exposed to a communicable disease.” The limitations may continue for a period of time equal to the incubation period of the disease. Isolation is the separation of persons already infected, from other people to prevent direct transmission of disease.

As far back as 1902 the U.S. Supreme Court recognized isolation and quarantine as legitimate public health techniques to contain the spread of infectious disease.

In the months following the September 11th attack, the Pennsylvania legislature went even further by enacting the Counterterrorism Planning, Preparedness and Response Act (Act). The Act provides the governor with authority to order the temporary isolation or quarantine of individuals or groups. The Act, although not clear, was intended for use following a suspected act of bioterrorism. The statute does not specifically preclude the Act from being utilized during a pandemic.

The governor has also been empowered to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such an order from the governor is subject to judicial review.

(Image: U.S. Centers for Disease Control and Prevention officials have a conference call on Ebola earlier this week with CDC team members deployed in West Africa from the agency's Emergency Operations Center in Atlanta. David Goldman/Associated Press)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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Last week, I wrote about Pittsburgh Public Safety director Stephen A. Bucar’s charge: Lead by example. He said after his confirmation hearing “the way forward is to build leadership that instills respect in the rank and file… [and] reach out to communities that have seen a deteriorating relationship with the department.”

Then his first step as public safety director was to make a questionable challenge to the authority of the district attorney. That won’t do much to boost confidence in the police and criminal justice system. He issued a statement saying that the city police bureau will not adopt practices on eyewitness identification implemented by Allegheny County District Attorney Stephen A. Zappala Jr.

“Although the model is endorsed by certain academic and research facilities, there is dissenting opinion in those same communities that disputes the conclusion that the best practice for eyewitness identification procedure lies with a sequential process rather than a simultaneous process,” Mr. Bucar said.

United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty 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!’

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous.  One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence

Even U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness identification. 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."

According to the Post-Gazette, Bucar cited debate in the scientific community over the most effective means to utilize eyewitness identification. Nancy Steblay, a leading eyewitness scientist from Augsburg College in Minneapolis, said that’s not the case anymore.

A 2011 review she co-authored reported that the sequential process is superior.

“We have over 70 studies we’ve reviewed and verified, and you see the pattern over and over again for sequential,” Ms. Steblay said. “In an enormous set of studies, you’re always going to find some outliers. But that’s what science does — look for the pattern.”

Zappala is advocating for the sequential process. “Although it’s not perfect, it’s far superior — significantly superior — to the simultaneous procedure,” said Steblay.

In fact, this area of the law is rapidly changing. The Pennsylvania Supreme Court ruled recently that criminal defendants have the right to offer expert testimony about the reliability of eyewitness identification. The decision overturned a 20-year prohibition against using such experts in Pennsylvania.

(Image: Pittsburgh Public Safety Director Stephen Bucar, right, and Allegheny County District Attorney Stephen Zappala. Larry Roberts/Post-Gazette photos)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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"What's going on in Pittsburgh is a crisis in confidence," said Councilman Rev. Ricky Burgess during acting Public Safety Director Stephen Bucar's confirmation hearing this week.

"I absolutely agree with you that there's a confidence problem in some parts of the city," responded Bucar. "In attending these police chief meetings, I can see some of the anger and frustration in some areas of the city."

Bucar acknowledged low morale at the police bureau, but he was quick to mention that the department is a “very professional organization.”

Bucar should be applauded for acknowledging the problem, but the mere fact that he brought it up points to the work needed to rectify the problem. President Dwight D. Eisenhower, when he was General Eisenhower was constantly concerned with troop morale. He once said, "The best morale exists when you never hear the word mentioned. When you hear a lot of talk about it, it's usually lousy."

What Eisenhower meant was you cannot just talk about improving morale you’ve got to do something about it.

Bucar went on to say, the department has a “small number of bad seeds” and they get all the publicity. “It taints and paints with a broad brush,” he said, adding that public perception of officers affects their work.

Although research on police morale has evolved significantly over the years, almost all of the early research in this field focused on operational stress that officers face. The source of low morale was based on the premise that law enforcement professionals are placed in continuously difficult situations and are required to deal with these situations in the course of their duties.

What has evolved recently is the theory of organizational stress. A study of more than 2,500 officers indicated that “the findings reveal the majority of the 10 greatest sources of anger and frustration among officers have a crucial common denominator, their administrators.”

Low morale, whether operation or organizational, has consequences. A morale problem can increase turnover, absenteeism and low productivity — all of which make neighborhoods more vulnerable. Low morale can also spur civil liability which depletes resources and drives up taxpayer costs. Finally, and most tragic, low morale drives up officer suicide.

Bucar says the way forward is to build leadership that instills respect in the rank and file, and hire a new chief who not only can inspire officers but successfully reach out to communities that have seen a deteriorating relationship with the department.

“It can’t be somebody who hasn’t earned that respect by being in law enforcement for a number of years,” he said. “I have to build that trust and I have to be confident that my police chief shares that interest in drilling down in those communities that don’t trust the police.”

(Image: Stephen A. Bucar, the city of Pittsburgh's new acting public safety director, at a news briefing with Mayor Bill Peduto. Larry Roberts/Post-Gazette)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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Matt Mangino, who authors The Cautionary Instruction here each Friday, will be a guest at 10 tonight on Al Jazeera America talking about the death penalty in the United States and his new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States, published by McFarland & Company.

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A Federal Judge struck down California's death penalty. US District Judge Cormac Carney found that lengthy delays in carrying out the death penalty amounted to a violation of the Eight Amendment’s ban on cruel and unusual punishment.

Judge Carney wrote:

Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed.

My book The Executioner's Toll, 2010, released in April made those very arguments:

Let's say that death penalty verdicts continue at 2010's pace of 112 per year for the next ten years. There would be approximately 4,500 men and women on death row. Let's say that all 32 states with the death penalty executed one offender a month for the next ten years; these occurrences are not completely realistic since only eight states have more than 120 offenders on death row. After ten years at that frantic, and frankly impossible, pace, there would be 4,300 executions, still leaving about 200 people on death row. Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972. If you are one of 697 inmates on California’s death row, a state that has not carried out an execution in five years, and suddenly you are scheduled for execution — that is a lot like being struck by lightning.

The death penalty has been a permissible form of punishment for certain crimes in the United States throughout the nation's history, with the first recorded case occurring in 1608, according to Jurist at the University of Pittsburgh School of Law.

The Supreme Court has held on numerous occasions that state proscription of the death penalty is not a violation of the Eighth Amendment's ban on cruel and unusual punishment. The court has also held, however, that the Eighth Amendment does impose limitations on when and how states may use the death penalty.

The most recent Gallup Poll on the death penalty has support at about 60 percent, down from a high in 1994 of 80 percent. That’s not to say that 60 percent is not a significant number or that 32 of 50 states with the death penalty is not a substantial majority. But, unequivocally the death penalty is trending downward.

(Image: The death chamber of the lethal injection facility at San Quentin State Prison in San Quentin, Calif., shown here in a 2010 file photo. Eric Risberg/Associated Press)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

Join the conversation:

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As part of a flurry of last-minute activity, state lawmakers have sent Governor Tom Corbett a bill that would outlaw so-called "revenge porn" in Pennsylvania.

On revenge porn sites, users upload X-rated photos of ex-lovers. I’m going to refer to the victims as women — occasionally men are victimized — but the victims are predominately women. The X-rated material is posted without the woman's permission. A woman sends a personal, intimate photograph to her boyfriend and when the relationship ends; her image is all over the internet, often with a name, location and links to her social media accounts.

Basically, revenge porn works like this:

1. Person A and Person B get married, date or hook up. They exchange or make intimate photographs and/or videos.

2. Person A and Person B stop getting along, and Person A gets angry.

3. Person A disseminates Person B’s private photographs or videos without consent — either to humiliate person B, or for profit, or both.

State Senator Judy Schwank a Democrat from Berks County, proposed the Senate’s version of the bill, saying that when it becomes law upon receiving Governor Corbett’s signature as expected, "persons who publicly post sexual images of their partners in order to annoy them or harm them will commit a crime that will have significant consequences."

She's not kidding: Violations of Pennsylvania's revenge-porn law will carry up to two years in state prison — or five years if the victim is a minor, which means that teenagers will need to be real clear about this law when they go through the emotional turmoil of their first break-up — and, like many crimes, will also come with the potential for financial damages in civil court.

According to the National Conference of State Legislatures, laws have been enacted in 10 states including Arizona, Idaho, Utah, Virginia and Wisconsin. At least 27 other state legislatures are considering some measure to outlaw similar conduct. In New Jersey, legislation was passed in the wake of the tragic suicide of 18-year-old Rutgers University student Tyler Clementi who was videotaped without his consent during a sexual encounter with another male.

California was ahead of the curve, passing a law in the fall of 2013 to prohibit the distribution of "intimate" images taken "with the intent to cause serious emotional distress." But some argue the law — which protects any images that were taken with the subject's consent if the distributor of the image is also the photographer — doesn’t go far enough.

(Image: matto353/iStock)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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