Wednesday, May 28, 2014

Tough On Crime But Hard On Justice

     This blog includes the attached opinion column, which reminds me of why I wrote my book, Justice or Just This?: A Constitutional Trespass. The Reading Eagle has carried the weekly column of Leonard Pitts Jr. for several years. Exactly two years ago last Sunday, Mr. Pitts wrote an editorial piece that coincidentally underlines the theme of my book. It is my belief that after serving as judge for 22 years, that the other two branches of government have trespassed on our Constitution and have controlled judicial sentencing to the point of substituting their judgment for that of the sentencing judge. This conclusion is reached based on two authoritative factors both created by laws passed by the other two branches (executive and legislative) solely to control judicial sentences:

          1) Mandatory-minimum sentences are imposed by either the legislature or the prosecutor, not the judge. The three branches of government balance and check one another: legislative, executive, including the prosecuting district attorney, and the judiciary. How is it constitutional for another branch to mandate that the judiciary impose a minimum sentence in a case if there is a guilty plea or verdict? 

          2) The Pennsylvania Commission on Sentencing recommends sentences that unfortunately we judges consistently follow 90 percent of the time in all sentences imposed in Pennsylvania. A sentencing commission concept is at best a good idea going terribly wrong. They have existed in every state and in the federal government. 

     I continually inquire as to who does the sentencing in the Commonwealth. Pennsylvania is not alone, as Pitts points out. He cites other examples of injustice from different parts of the country. Please keep in mind that the term ‘prison overcrowding’ is a recent phenomenon that began immediately after the Pennsylvania Commission of Sentencing became law in 1982. Within two years, Pennsylvania began building more new prisons (16 in the next 14 years) than the eleven built during the entire 160 years before 1982!

Nation Got Tough on Crime and Hard on Justice
By Leonard Pitts Jr. (published 5-25-12)

 The people got sick of it, all those criminals being coddled by all those bleeding heart liberal judges with all their soft-headed concern for rights and rehabilitation. And a wave swept this country in the Reagan years, a wave ridden by pundits and politicians seeking power, a wave that said, no mercy, no more. From now on, judges would be severely limited in the sentences they could hand down for certain crimes, required to impose certain punishments whether or not they thought those punishments fit the circumstances at hand. From now on, there was a new mantra in American justice. From now on, we would be tough on crime. 

We got tough on Jerry Dewayne Williams, a small-time criminal who stole a slice of pizza from a group of children. He got 25 years. We got tough on Duane Silva, a guy with an IQ of 71 who stole a VCR and a coin collection. He got 30 to life.

We got tough on Dixie Shanahan, who shot and killed the husband who had beaten her for three days straight, punching her in the face, pounding her in the stomach, dragging her by the hair, because she refused to have an abortion. She got 50 years. We got tough on Jeff Berryhill, who got drunk one night, kicked in an apartment door and punched a guy who was inside with Berryhill’s girlfriend. He got 25 years. 

Now, we have gotten tough on Melissa Alexander. She is a Jacksonville, Fla., woman who said her husband flew into a violent rage and tried to strangle her when he found text messages to her first husband. She fled to her car, but in her haste, forgot her keys. She took a pistol from the garage and returned to the house for them. When her husband came after her again, she fired into the ceiling. The warning shot made him back off. No one was hurt.

Like Shanahan before her, Alexander was offered a plea bargain. Like Shanahan, she declined, reasoning that no one would convict her under the circumstances. Like Shanahan, she was wrong. 

Alexander got 20 years for aggravated assault. And like Shanahan, like Berryhill, Williams, Silva and Lord only knows how many others, she received that outlandish sentence not because the judge had a heart like Simon Legree’s, but because the judge was constrained by mandatory-minimum sentencing guidelines that tied his hands, allowing no leeway for consideration, compassion, context or common sense. 

Judge Charles Smith, who sent Shanahan away, put it best. The sentence he was required to impose may be legal, but it is wrong. 

The Eighth Amendment prohibits cruel and unusual punishment. In a nation where we execute people based on nothing but eyewitness testimony, it is hard to imagine what meaning that prohibition holds. But assuming it means anything, surely it means you can’t draw a 20-year sentence for shooting a ceiling. 

In restricting judges from judging, we have instituted a one-size-fits-all version of justice that bears little resemblance to the real thing. It proceeds from the same misguided thinking that produced the absurd zero-tolerance school drug policies that routinely get children suspended for bringing aspirin to class. There is this silly idea that by requiring robotic adherence to inflexible rules we will produce desirable results.

It should be obvious how wrong and costly that reasoning was and how urgently we need to roll back the wave that swept over us. It is understandable that the nation wanted to get tough on crime. But we have been rather hard on justice, too.

Tuesday, May 20, 2014

Election to Bench-How It Works In Pennsylvania

     Twenty-five years ago, I got to the bench with the support and hard work of many people. A campaign for the public office is an expensive experience, especially when it covers all of Berks County. I recently found this letter from "Big Bob," the campaign's committee chairman, to other members. It was written in the summer of 1991 to announce a picnic to celebrate our victory. Bob writes well and I wanted to share his wit and wisdom with readers. Reading this again brought many memories and a smile to my face. Enjoy.


Review of
"Sprecher for Judge" Campaign
A one-act dramedy from the Chairman

They say it's not over til the fat lady sings. Sometimes, it seems. it only takes one act to get her on stage.
As the curtain rose we found Jeff Sprecher at center stage, playing the lead as a qualified candidate determined to win his party's nomination for Judge of the Court of Common Pleas of Berks County.

Ever as his side was his wife Jane, whose supporting role called for her to inspire and encourage (nag) her husband into traversing the entire stage many times, even if it meant wearing three hats, appearing two places at once and being one tired dude.
From the first plate of spaghetti to the last "grip and grin," this production called from invocation, flexibility and hard work.

More often than not, the challenge was not in memorizing their lines (the lead wrote them himself based on a true story), the challenge was in saying the same thing a hundred times and making it sound fresh each time. After all, how many ways are there to say "I earned my bachelor's, master's and law degrees while working full time and supporting my family?"
But repeat his lines he did. From granges to bingo's to meetings with politicos, no one was spared. If you'd listen (and even if you wouldn't), he'd talk. And if you were lucky, you might even find a pencil coming your way.

Behind the scenes worked a crew of volunteers dedicated to bringing down the house. Through not a cast of thousands, their work was reminiscent of one. The chorus sang the praises of Sprecher for Judge to everyone they met. Scenery was impeccable (those confounded signs were everywhere), with impressive billboards featuring that famous Polident (or is that Poligrip?) smile. Whether by post, personal contact or door-to-door, handbills made their way into homes of city, town and country voters everywhere.
All in all, a finely orchestrated production

As the lights dimmed on the first act, the cast and crew began setting the stage for the act to follow as it turned out, though, a full scale production would not be necessary, since the applause and standing ovation by the audience indicated that they'd seen enough: the play was a hit, Sprecher was a winner and everyone went home satisfied...
Thank you and congratulations to all!

Author's Note

     The primary election is held to determine the victor of the party. To reduce the political impact in a judicial election, a candidate for Judge is permitted to circulate nominating petitions to be put on both the Republican and Democratic tickets. This is called cross-filing and only judges and school board candidate can do this. It gives both parties the opportunity to choose which candidate will lead its ballot regardless of the candidate's political registration.
     I am proud to say that I was one of two candidates on both the Republican and Democratic ticket to finish in one of the top two positions on both ballots. The election of two judges was finished in the primary and the general election ballot became only a technicality.
     As we celebrate the primary election of May 20, 2014, please keep in mind how it works for judges. Judges are only on the ballot for election in odd number years. Thus there were no judicial elections in the 2014 primary. Hopefully you exercised your greatest freedom-that of choice- in this primary election


Wednesday, May 14, 2014

The Good, the Bad, and the Ugly...

              The war on drugs was waged and fought with good intentions. But after 43 years of battling, we are compelled to evaluate its results and determine if it should continue. President Nixon declared a war on drugs in 1971 that is still waged on an increased level today, however that does not mean that this is best for society. The good is also found in the intent to arrest those at the top of the food chain in the illegal drug market to stop distribution.

Evaluators of this war must also study the epidemic of prison construction that has plagued our nation during those four decades. They will also have to consider the thousands of lives ruined by the incarceration of the mother and/or father, and how much the inmate, their family and society continue to suffer just like civilians in any other city where war was waged. That is the bad part, and therefore there are many negative results. The big fish was never reeled in. The flow, distribution and use of illegal drugs did not diminish. Even after every resource was utilized, the war on drugs stands as a big failure.

In summary, what constitutes the good? Our good intentions do but that’s about it. The bad is the irreparable harm to millions of citizens caught in the war zone. They were locked up for long periods of time, mothers and fathers were taken from their families and taken to prisons located hundreds of miles away, placing more stress on the family unit. The nation’s cities are in shambles from the war on drugs, but the suburbs and countryside remain relatively intact. African Americans and Hispanic or Latinos are sent to jail more than whites, even though use and availability of illegal drugs is similar for all three races. So, how about the ugly?

The ugly consists of the violence city residents regularly witness and fear: Drive-by shootings, murders, gang-related retaliation, the deaths of innocent bystanders, including children and the stress of living in a community with the knowledge that almost everyone owns and carries a gun. It’s a place where increased arrests, along with prosecutions and punishments, are suffered by the residents within city limits. Stop-and-frisk law enforcement tactics and aggravated punishments for distributing drugs in the city are at the forefront of this argument. The fact that nearly every illegal drug transaction in a city is within 1,000 feet of a school zone results in the majority of offenders being caught in the web of more lengthy mandatory minimum sentencing. That does not exist in the suburbs or rural America. Neither do stop and frisk law enforcement tactics.

The ugly can also be represented in the ineffective law enforcement programs. Everyone wants the drug problems to stop, but the kingpins and top drug distributors are not arrested for fear of injury or death if someone testifies against them in court. The situation has come to the point where a potential informant will choose long jail sentences that are often followed by deportation over a lighter sentence earned by ratting on his/her supplier. I have witnessed this many times. However by snitching,  on the smaller the informant may provide enough that the mandatory minimum sentence will be withdrawn by the district attorney. That is an option for a desperate defendant, which regularly happens because there is a reward given to the snitch defendant. In fact, there is a standard jury instruction to be given to the jury when a jailhouse informant points the finger against the defendant. There are so many snitches that websites using the slogan “snitches get stitches” have been created to scare the informant who turns states evidence. Their pictures and names are posted.

Mexico is the worst example of this. More than 50,000 people have been executed for snitching and being part of a rival gang. They are often tortured first. Stories of beheadings and public displays of dead bodies serve as messages to others who may cooperate with authorities. This can’t happen in the United States of America.

Or can it? In March 2014, Sen. Bob Casey Jr. asked U.S. Attorney General Eric Holder to allocate more resources to help Philadelphia’s district attorney combat witness intimidation in Philadelphia. As of March 14, 188 witness intimidation charges were filed in Philadelphia. That is 60 more than last year. According to the Associated Press, Philadelphia’s district attorney reported that since 2010, when records for intimidation began to be counted, that “more than 3,700 cases have been filed in Philadelphia, ranging from execution-style slayings to court room threats.” (Reading Eagle, March 2014)

We can conclude from our evaluation of the war on drugs that it has been as effective as prohibition;

In other words, the war has failed and only organized crime has prevailed. There is a saying that ‘the road to hell is paved with good intentions.’ That saying is applicable to the intention of identifying and prosecuting the top drug offenders and scaring the others away with tough punishment laws. But little public benefit has been accomplished, while a large pile of bad and ugly desecrates our cities, the justice system and prisons; Many logical facts leads one to conclude it just lies these stinking to high heavens.  You be the judge.