Category Archives: Crime and corrections

Cruz, “Liberty” and Teletubbies

AP CRUZ A USA VA By Peter Galuszka

Where’s the “Liberty” in Liberty University?

The Christian school founded by the controversial televangelist Jerry Falwell required students under threat of a $10 “fine” and other punishments to attend a “convocation” Monday where hard-right U.S. Sen. Ted Cruz announced his candidacy for president.

Thus, Liberty produced a throng of people, some 10,000 strong, to cheer on Cruz who wants to throttle Obamacare, gay marriage, abolish the Internal Revenue Service and blunt immigration reform.

Some students stood up to the school for forcing them to become political props. Some wore T-Shirts proclaiming their support of libertarian Rand Paul while others protested the university’s coercion. “I just think it’s unfair. I wouldn’t say it’s dishonest, but it’s approaching dishonesty,” Titus Folks, a Liberty student, told reporters.

University officials, including Jerry Falwell, the son of the late founder, claim they have the right as a private institution to require students to attend “convocations” when they say so. But it doesn’t give them the power to take away the political rights of individual students not to be human displays  in a big and perhaps false show.

There’s another odd issue here. While Liberty obviously supports hard right Tea Party types, the traditional Republican Party in the state is struggling financially.

Russ Moulton, a GOP activist who helped Dave Brat unseat House Majority Leader Eric Cantor in a primary last summer, has emailed party members begging them to come up with $30,000 to help the cash-strapped state party.

GOP party officials downplay the money problem, but it is abundantly clear that the struggles among Virginia Republicans are as stressed out as ever. Brat won in part because he cast himself as a Tea Party favorite painting Cantor as toady for big money interests. The upset drew national attention.

Liberty University has grown from a collection of mobile homes to a successful school, but it always has had the deal with the shadow of its founder. The Rev. Falwell gained notoriety over the years for putting segregationists on his television show and opposing gay rights, going so far as to claim that “Teletubbies,” a cartoon production for young children, covertly backed homosexual role models.

Years ago, the Richmond Times-Dispatch published a story showing that the Rev. Falwell took liberties in promoting the school he founded in 1971. Brochures touting the school pictured a downtown Lynchburg bank building with the bank’s logo airbrushed off. This gave the impression that Liberty was thriving with stately miniature skyscrapers for its campus.

Some observers have noted that Liberty might be an appropriate place for the outspoken Cruz to launch his campaign. The setting tends to blunt the fact that he’s the product of an Ivy League education – something that might not go down too well with Tea Party types – and that he was actually born in Canada, although there is no question about his U.S. citizenship and eligibility to run for question.

Hard-line conservatives have questioned the eligibility of Barack Obama to run for U.S. president although he is likewise qualified.

With Cruz in the ring and Liberty cheering him, it will make for an interesting campaign.

Parole Abolition — Did It Work?

parole_boardby Sarah Scarbrough

What does “worked” mean? What does “success” truly mean? If it means having offenders spend the majority of their sentence behind bars and don’t get released early, then, sure, it worked. If it means seeing crime rates drop, then one could argue it worked. But, there are so many other factors associated – really, so many factors that it is close to impossible to give a definitive answer one way or another. So here goes – my attempt to explain many of the associated factors.

Former Governor George Allen’s plan to abolish parole could be seen as a “success” in that it established truth in sentencing through the requirement that felons served 85% of the time they were sentenced. When looking at the Virginia statistics 12 years after (2008), it was found that those convicted of first-degree murder spent 91 percent of their sentence in prison, with the average sentence being 32 years, rather than 12 years with parole.  The sentence of “life in prison,” now truly means “life in prison.”

Since abolishing parole, the violent crime rate in Virginia fell by 23 percent, the murder rate decreased by 30 percent, and forcible rape decreased by 15 percent. When examining the crimes and statistics before 1995, it was found that previous offenders committed the majority of these serious and violent offenses; therefore if a rapist serves 18 years rather than six years, he will not be able to hang out in parking lots waiting for his next victim.

However, the reason for the decline in the crime rates is debatable and hard to pin down. Many believe it is because of the abolition of parole – Virginia releases fewer people than ever before. The idea is that individuals “age-out” of crime when released now because they spend longer behind bars. However, the relatively new phenomenon of re-entry, programs, and treatment also likely is contributing to the decrease. Historically, upon incarceration, offenders were simply warehoused – they were not provided with an opportunity for programming, thus, breeding better criminals during incarceration. However, with today’s strong focus on providing opportunities, offenders are now being equipped with the tools to be successful upon release. They are being provided with tools that directly assist in overcoming the barriers to entry into the community. Furthermore, according to Dr. John Reitzel, with the Department of Criminal Justice at California State University, San Bernardino, “Both violent and property crime started dropping in Virginia a few years before the state abolished parole. And, we must keep in mind that nationally, crime started dropped in 1993 too.”

The examination of recidivism rates also can provide some insight, however, this too is fairly complex. Currently, Virginia has the second lowest recidivism rate in the nation. However, that rate is calculated if an individual gets released from prison and then goes back to prison – this means they are convicted of a crime and sentenced to more than 12 months. So, if someone reoffends and is found guilty but sentenced to 11 months, they are not seen to have recidivated. I believe this truly presents a problem when truly trying to define success. From working in a jail full time, I can tell you the true recidivism rate in Virginia is much higher than this statistic claims.

There are also problems present with the implementation and practice of the abolition of parole. Currently there are more than 37,000 individuals incarcerated in Virginia, of whom about 3,500 were eligible for parole in 2013 because their crimes and imprisonment occurred before the abolition in 1995. The Citizens United for Rehabilitation of Errants-Virginia, Inc. (Virginia C.U.R.E.) claim that all of these prisoners were sentenced by prosecutors and judges with the assumption that the length of their sentence would be subject to mitigation through the consideration of parole. However, because parole was abolished, the likelihood of receiving it is slim. In 2012, the Parole Board heard 3,156 cases, of which only 116 were granted parole, according to Virginia C.U.R.E. – this is just 3.7 percent of those who were eligible. However, Bill Muse former Chairman of the Parole Board under the McDonnell administration had slightly different views: “The rate during McDonnell administration was about 4%. About 92% of those who were eligible were serving long sentences on extreme cases. The “easy” ones were already released.”

At least 44 percent of the denials were attributed to the “serious nature and circumstances of the crime.” As such, many prisoners were receiving this same response year after year. Moreover, many denials from the Board did not suggest their own comments or guidelines, such as changes in behavior, their motivational levels, development of education, release plans, or employment skills attained while imprisoned.  However, in 2013 legislation was passed and then signed by Governor McDonnell requiring the Parole Board to list specific reasons why an individual was denied so the individual would know what they should or should not be focusing on.

Muse explained: “Every parole case is entirely different and you have to look at them differently. One of the common questions asked is, ‘He got parole and has a similar offense doing the same number of years as my son, so why won’t you let him go?’ But we have to look at them differently – there aren’t two offenses that are exactly the same – one type of murder may occur because of a drug deal gone bad and the other an execution style robbery – even if they have the same sentence, they are still very different. We also have to take into consideration when the crime occurred – a 16- or 17-year-old would be considered differently than someone older because of their age when committed.”

Muse explained how the parole board also examines things the offender was involved with while in prison and if they took advantage of each opportunity they had, such as work, religion, or schooling. Disciplinary issues while incarcerated are also considered – did they cause staff a hard time, did they obey the rules? “If you can’t behave in prison, why would we expect you to behave when you are on the street,” Muse remarked. The Board also looked at factors associated with release – supportive family, housing, under what circumstances will they live (in same neighborhood), will they continue with addiction treatment if needed, among others?  “All of these things are taken into consideration – and more really. All of these factors contribute to why each case is treated individually.

The Board does not personally interview the prisoner or confer with the prisoner’s counselor and only allows one member of the Board to meet with a family member or other representative.  In over 70 percent of other states, however, Board panels carry out inmate interviews. Under the Board procedures currently followed, “some parole eligible inmates are serving longer terms than some non-parole inmates convicted of the same crime and sentenced under the state’s post 1995 sentencing guidelines” Many believe that the Board’s behaviors are inconsistent with the original intention of the General Assembly, through retroactively abolishing parole for prisoners who came in before 1995. Continue reading

Abolition of Parole in Virginia

parole_boardThis is the first of two articles on the abolition of parole in Virginia.

by Sarah Scarbrough

Fathers’ Day of 1986 was  tragic — Detective George Taylor of the City of Richmond Police Department stopped a vehicle for a routine traffic violation. After being pulled over, the driver, Wayne DeLong, shot and killed Taylor. Later, it was found that DeLong had recently been paroled after serving a portion of his sentence for murder.  A few years later, in 1991, Leo Webb, a divinity student at Virginia Union University in Richmond came across another man, James Steele, who appeared to need assistance. Because of his kind heart, Webb stopped to help Steele. Later, Steele went into the bakery where Webb worked, shot and killed him, took his money, and then went out and partied. Again, it was found that Steele was on parole for malicious wounding.

From 1990 to 1995, Virginia experienced a 28% increase in violent crimes like the ones explained above. Furthermore, three out of four violent crimes, including rape, murder, robbery and assault, were committed by recidivists.  Because of these stories and statistics, when George Allen was running for Governor of Virginia in 1993, a main focus of his campaign was on a promise for parole reform. Many believe that this campaign promise was one of the major reasons that he won the election.  The politics involved with “getting tough on crime” typically is very popular among voters. Violent crimes, victimization, or a related type of crime has in some way impacted the majority of families and individuals in the United States. Therefore, the policy stance of “truth in sentencing” and “abolishing parole” was a great talking point and issue. On the other hand, during the campaign, many opponents believed this plan would cost too much and that it was too drastic of a measure.

Upon victory, Allen immediately acted on his campaign promise of abolishing parole. He established in the Commission on Parole Abolition and Sentencing Reform in 1994, a bipartisan group of judges, crime victims, prosecutors, business leaders, law-enforcement officers, and legal professionals. Further, he called a special session of the General Assembly in September of 1994, in order to have the full attention of the public and legislators on this matter.  The Allen administration and other supporting legislators displayed the urgency of implementing these measures.  It was shared that those convicted of a felony were only serving about one third of their sentence and there were many serving only one sixth.  The average sentence for a first-degree murder was 35 years and only about 10 years were actually served. There were rapists who were sentenced to nine years and only serving four, and armed robbers were serving four of their fourteen-year sentence.

In order to begin changing the laws, discretionary parole needed to be eliminated. Discretionary parole was when an offender would serve a portion of their sentence and be released by the parole board for ‘good behavior.’ Thus, an offender would receive 30 days off their sentence for every 30 days served that they were ‘good.’ As an alternative to encourage good behavior, wardens would be able to offer sentence credits, which could equal up to 54 days off per year; a drastic reduction from the average of 300 days that were granted previously.

In order for judges to be effective in their sentencing, guidelines were also developed.  In doing so, recidivism rates and age relation to those rates were studied. It was found that the longer the inmate spent in jail and the older they were upon release, the less likely they were to engage in further illegal behavior. After age 37, the likelihood of recidivating decreased drastically. Clearly, the main objective of these reforms was to prevent future violent behaviors, but the idea of future revenge had to be taken into account as well. The Commonwealth wanted to send violent criminals a message that Virginia would not tolerate violent behavior, and if such a crime was committed they would stay in prison until they were “too old to commit another one.” As a result, Virginia increased prison time for violent criminals as follows:

  • 100 percent increase for first-time violent offenders
  • 125 percent for first-time murderers, rapists, and armed robbers
  • 300 percent for those with previous convictions for assault, burglary, or malicious wounding
  • 500 percent for those with previous convictions for murder, rape, or armed robbery

In addition, everyone convicted of a violent crime must serve a minimum of 85 percent of the time they were sentenced. Throughout the United States, a criminal typically serves an average of 50 percent of the time they were sentenced.

Through the mildest estimates of actual crimes and convictions, it was found that 4,300 violent felony crimes between 1986 and 1993 would have been prevented, if the ‘Allen plan’ were in place. It was projected that from implementation in 1995 to 2005, 119,000 felonies would be prevented in Virginia, with 26,000 of these being violent crimes. Through this, it is thought that 475 lives would be saved, 3,700 women would not be raped, and over 11,300 armed robberies would not occur. As a result, this would save the public $2.7 billion in direct costs.

Taking effect January 1, 1995, the Allen administration pushed through legislation that placed increased penalties on murder, armed robbery, and rape. The principle of truth in sentencing was created, as well as abolishing parole and increasing the time a violent criminal would spend in jail by five times.  However, opponents argued that abolishing of parole would be the “declaration of war on young black males.” These people insisted that Virginia spend more money on prevention programs, rather than simply focusing on punishment that was a result of “white fear.” These arguments were not heard favorably. It was also argued that the new laws would actually benefit the African American community, which was one fifth of Virginia’s population, more than any other race. Of the ‘preventable’ murders between 1986 and 1993, 65% of the victims were African American. Of the assaults during the same time period, approximately 60% of the victims were African American.

Before the abolition of parole in 1995, Virginia was spending $658 million of taxpayers’ money on recidivists. This number included costs of new arrests, investigations, and trials. Further, from 1995 to 2005, the estimated cost needed to build new prisons to hold the steadily increasing population was $750 million. Although the new parole laws would require new prisons, the prison population would not double, as it was estimated to do if the new laws were not enacted.

Next: Did parole abolition work?

Sarah Scarbrough is internal program director for the City of Richmond sheriff’s department.

Yes, Let’s Investigate ABC Incident


Governor Terry McAuliffe did the right thing by promptly demanding an investigation into an arrest by ABC special agents of a black University of Virginia student that resulted in a head injury requiring 10 stitches. In the racially inflamed atmosphere we live in today, fueled by national news coverage of deaths of young black men at the hands of white police, emotions are running high. Nobody wants this incident to turn into another Ferguson.

On the one hand, Virginians are rightly concerned about the behavior of ABC agents, who caused a furor last year when they arrested Elizabeth Daly, a white University of Virginia student on the mistaken premise that she was carrying a case of beer. One agent drew a gun and another tried to shatter a window in her car with a flashlight. Citizens rightly wonder if last night’s arrest of Martese R. Johnson was a similar case of excess force.

On the other hand, we need to know all the facts. Martin, who was arrested outside a bar at 12:45 a.m., was charged with obstruction of justice and profane swearing or resisting arrest. It appears from news accounts — and, as we know from the UVa rape case, all news accounts should be considered preliminary and incomplete, and YouTube videos can miss important context — that Martin was intoxicated and resisted arrest. He banged his head on the ground when ABC agents took  him to the ground before handcuffing him. “I go to U.Va., you [expletive] racists,” he yelled, as blood flowed from his cut. “How did this happen?”

As with the UVA rape case, we should refrain from speculation on the basis of incomplete knowledge. Let’s wait for the facts to come in before drawing conclusions.

– JAB

Community Policing and Human Settlement Patterns

Former Police Chief Rodney Monroe implemented community policing in Richmond is credited with bringing down the city's sky-high crime rate. Can his approach be replicated in suburban Henrico and Chesterfield?

Former Police Chief Rodney Monroe, who implemented community policing in Richmond, is widely credited with bringing down the city’s sky-high crime rate. Can his approach be replicated in suburban Henrico and Chesterfield?

by James A. Bacon

Community policing is key to the war on crime, agreed top law enforcement officials yesterday at a public forum hosted by the Richmond Times-Dispatch. Community policing gets police out of their cars so they can patrol neighborhoods on foot, interact with residents and build trust. “I do think the relationship piece … is the critical piece,” said Henrico County Police Chief Doug Middleton.

The reversion from police-by-patrol-car to community policing is credited with much of the downturn in crime in recent years, along with adoption of the “broken windows” theory of crime fighting, which advocates going after smaller crimes, and the use of statistical tools to predict areas where crimes are more likely to occur. In the city of New Haven, Conn., community policing has coincided with a 30% decline in serious crime since 2012, according to a front-page article in the Wall Street Journal today.

Community policing is back in the spotlight since a U.S. Justice Department probe into law enforcement practices in Ferguson, Missouri, where the police killing of a young black man triggered rampant protests. The suburban locality’s community-policing efforts “have dwindled to almost nothing in recent years,” the report said. Police had lost “the little familiarity it had with some African-American neighborhoods.”

This passage in the WSJ article has particular resonance in the Richmond region:

Walking the beat isn’t feasible in spread-out, rural or suburban areas. It is more labor-intensive than assigning officers to police cars that can zip from neighborhood to neighborhood, and officers on foot can’t always respond as quickly to crimes. Budget cuts also have made it harder for some police departments to justify the cost of walking the beat.

Community policing is a fine strategy for the City of Richmond, where urban neighborhoods are reasonably compact. But it’s more problematic in Henrico and Chesterfield County where an increasing number of poor people are living. For two or more decades now, poverty has been leaking across municipal boundaries into old suburban neighborhoods of ’50s- and ’60s-era ranch houses in low-density, cul-de-sac subdivisions that do not lend themselves to walking, biking or community policing.

Cul-de-sac subdivisions worked fine for mostly law-abiding, middle-class people who, if they engaged in criminal activity, it was more likely to be check kiting or embezzling than drug dealing or shoot-outs. As those neighborhoods are increasingly occupied by poor residents experiencing social breakdown and a higher proclivity for crime, Henrico and Chesterfield county police face a real challenge in implementing community policing. While everyone agrees in theory that building strong ties to the community is critical, the experience of Ferguson and other suburban jurisdictions shows that it may be difficult. Let us hope that Richmond-area police are up to the challenge.

Film Rips Climate Change Deniers

merchants-of-doubt-posterBy Peter Galuszka

A just-released documentary “Merchants of Doubt” seems tailor-made for the readers of Bacons Rebellion.

The film by Robert Kenner explores the profession of doubting climate change in which the energy industry quietly hires “scientists” to debunk the idea that carbon dioxide emissions are creating global warming that could have catastrophic consequences.

The strategy of confronting scientific evidence that is damaging to a particular industry has been around since at least the 1960s when the chemical industry tried to dismiss the idea that the insecticide DDT widely used to control mosquitoes could be deadly to wildlife for decades.

Big Tobacco took the concept to entirely new levels when scientific studies in the 1960s linked tobacco smoking to addictive nicotine, cancer and other bad things. Cigarette makers hauled out their own supposedly independent but payrolled “scientists” to raise doubt about the claims before congressional committees and to the general public.

The tobacco industry snowballed their phony science into yet another sphere. There had been complaints that people were being killed when they fell asleep on furniture while holding smoldering cigarettes.

The cigarette makers could have put in fire retardants in the smokes but they thought it would be too costly. So, they set up a scenario where furniture makers would load up sofas and chairs with fire retardants, which, unfortunately, proved carcinogenic or otherwise harmful. Then, of course, the chemical industry found its own “scientists” to claim the flame retardants they put in furniture were safe.

According to review so the film which I haven’t seen (it was just released March 6), Big Energy is using the very same tactics with help from the Koch Brothers and their network of paid think tanks (such as the “Heartland Institute”) to debunk the link between carbon and climate change. You may see some of those ideas popping up on this blog from time to time.

Kenner has won awards for such documentaries as “Food, Inc.” His latest film is based on a 2011 book with the same title by Naomi Oreskes and Erik M. Conway. According to a review in The Washington Post, “What’s disheartening about “Merchants of Death” is that the strategy still works so effectively in a hyper-partisan, intellectually lazy, spin-addicted 24-7 news cycle.”

Can anyone guess which news channel fits the bill?

Virginia Supreme Court Blunder

vt_massacre2by David S. Cariens, Jr.

Whatever our politics — Democrat, Republican, Tea Party, Green Party — we share a common expectation that our courts will treat us fairly. When a court renders a major decision based on false information — especially when that court is the Virginia Supreme Court — it should disturb everyone.

It is unusual for a state Supreme Court, or the United States Supreme Court, for that matter, to overturn a jury verdict. But on October 31, 2013, the Virginia Supreme Court did just that: It overturned a jury verdict in the Pryde and Peterson lawsuit against Virginia Tech holding the school liable for not warning the campus on April 16, 2007, after a double homicide had taken place at West Ambler Johnston Hall. About two hours after that incident, Seung-Hui Cho killed another 30 people and wounded 17 before killing himself.

Justice Cleo E. Powell who wrote the unanimous decision, stated that “under the facts of this case, there was no duty for the Commonwealth to warn students about the potential for criminal acts by third parties.” She then got one of the most critical facts wrong—who was in charge of the investigation that day following the initial shooting at West Ambler Johnson Hall.

Powell wrote that the Blacksburg Police Department was in charge: “Although officers from the Virginia Tech Police Department were the first on the scene, the Blacksburg Police Department led the investigation.” In fact, Chief Wendell Flinchum of the Virginia Tech Police Department was in charge. If Blacksburg Chief Kimberly Crannis had been, there would have been no duty to warn because she did not have that authority. Chief Flinchum did have the authority to warn and lockdown.

To cite Crannis as the person in charge is not only a major blunder in the historical record, but sets a precedent that incorrect facts central to a major decision are acceptable. Five times, people testified under oath that it was Chief Flinchum and not Blacksburg’s Chief Crannis. Having gone through more than five volumes of trial testimony, I can find no reference to Chief Crannis being in charge.

The identity of who was in charge is important because Virginia Tech had in place all the means necessary to warn and lockdown the campus on April 16, 2007. Over two and one half hours elapsed between the double homicide and the mass murder in Norris Hall. So, more than a year after the Supreme Court ruling, the question persists, why didn’t the university issue a warning?

Eight months earlier, the Virginia Tech administration had set a standard for warning the university community. In the fall of 2006, a prisoner in the Blacksburg jail, William Morva, escaped and killed two people. There was no indication that Morva was on or near the campus, yet Virginia Tech warned and locked the campus down.

But on April 16, 2007, there was a double murder in the middle of the campus. Thirteen bloody foot prints led from the crime scene to an exit stairwell; there were spent bullet shells on the floor but no weapon. The school issued no warning even though it was obvious the killer was on the loose. Had a lockdown of the campus been implemented, lives would have been saved. The administrative failure allowed two students to go to their French class where they were among the first of the 30 students and teachers killed in Norris Hall.

The Virginia Supreme Court declined to hold anyone accountable for anyone else’s actions in the Virginia Tech massacre. The Court is entitled to its opinions, but not its own facts.

David S. Cariens, Jr., a retired CIA intelligence analyst, is author of “Virginia Tech: Make Sure It Doesn’t Get Out.” He publishes the “A Question of Accountability” blog. Continue reading

Another Russian Reformer Murdered

nemtsov killedBy Peter Galuszka

It was a personal shocker to read of the murder in Moscow of Russian reformer Boris Nemtsov, the latest in a long string of killings related to the tragic fight for change in that country.

Nemtsov was gunned down Friday in a drive-by shooting as he walked across Moskvoretsky Bridge a short distance from the Kremlin and Red Square.

The outspoken 55-year-old former nuclear physicist turned government official was a key figure in the far more hopeful years of the early 1990s when bright young people tried (in vain) to move Russia beyond the kleptocracy of the Communist era.

Nemtsov pushed capitalist reforms by trying to root out corruption. He simplified establishing businesses by taking the registration process out of the hands of crooked bureaucrats. He advocated transparency in bidding contracts. More recently, he revealed billions of dollars in payoffs at the Russian Winter Olympics last year at Sochi.

Naturally, Nemtsov ran afoul of Vladimir Putin, the former KGB officer who beat out Nemtsov as Boris Yeltsin’s successor. Putin is the spearhead of the old power elite that has seized control over the past 15 years, rolled back democratic reforms, unleashed a torrent of inside business deals, and pushed the worst military conflict in the region (Crimea and Ukraine) since the Cold War.

Nemtsov was due to lead a Moscow protest rally against Putin’s bloody Ukrainian adventurism that has killed 5,800 people. He was to stand in for Alexei Navalny another reformer who has been imprisoned for handing out leaflets at a subway station.

As he was taking a walk on an unusually warm winter evening, a car drove up. Six shots were fired. Nemtsov was killed by four bullets.

He is the fifth person – either Russian or foreign – that I have dealt with personally who has been murdered. I reported from Moscow for BusinessWeek in the 1980s and 1990s.

Here are a few examples: American businessman Paul Tatum involved in a dispute with a Chechen partner was slain by 11 bullets to the head and neck at a subway station that I used to frequent. Paul Klebnikov, an American editor of Russian-language Forbes magazine, was shot near his apartment. Russian investigative journalist Yuri Shchekochikin, a friend who got me an assignment to write for Literaturnaya Gazetta, died in an apparent poisoning.

I had interviewed Nemtsov back when he was pushing far-reaching and radical change in the the city of Nizhniy Novgorod, formerly known as Gorky, east of Moscow.

He is the highest-profile reformer to be killed during the regime of Putin who says it was a contract killing and that he will oversee the investigation “personally.”

The McDonnell Saga Is Far From Over

maureen mcdonnell sentencedBy Peter Galuszka

Former Virginia First Lady Maureen McDonnell has been sentenced to 12 months and a day in federal prison, but the GiftGate saga is far from over.

She will appeal as has her husband, former Gov. Robert F. McDonnell, who was sentenced to two years in prison last month. The now estranged couple was convicted of public corruption felonies, making McDonnell the only Virginia governor, past or present, to be convicted of a crime.

The next step is for the former governor’s appeals to be heard at the U.S. Fourth Circuit Court of Appeals in May. The issue is whether so-called “honest services fraud” for which both were convicted, should be interpreted broadly or narrowly.

During their trial, U.S. District Judge James Spencer took the broad approach, instructing the jury that there did not have to be a very strict “quid pro quo” for them to return a guilty verdict. He reiterated his stand on Friday by overruling a slew of motions from the defense relating to the issue.

The appeals could have far-reaching consequences, as I reported with a colleague on Bloomberg News this week. Charles James, a former federal prosecutor who works at the Williams Mullen law firm in Richmond, says the case “could be the next case to further restrict the use” of the honest-services fraud statute.

If the Robert McDonnell’s appeal is successful, then it would have a big impact on his wife, as well as loosen the interpretation nationally of how far “honest services” should go.

If the government is successful, then expect a crackdown on public official hankie-pankie.

At Friday’s sentencing, eight character witnesses described Ms. McDonnell, 60, as an empathetic, self-sacrificing woman who would do anything for her children and husband.

That image stands in marked contrast to the image defense lawyers for her husband painted during the trial. Incredibly, her own lawyers piled on with the idea that Maureen McDonnell was a naïve but abusive woman who hated being First Lady. She was so frustrated with her husband ignoring her for his political career that she got entangled with Jonnie (the serpent) Williams, who ran Star Scientific, a Henrico company that made and marketed vitamin supplements.

Williams gave the financially strapped McDonnells about $177,000 in gifts, loans and trips while the McDonnells set up meetings with state officials to the products of his money-losing firm. Ironically, the main product was Anatabloc, a skin cream, which has since been ordered off the market the Food and Drug Administration.

At the top of this blog, you see a teaser story that the convictions were corrupted by Williams’ dubious integrity. That’s nonsense, of course. Prosecutors use inside testimony, especially in organized crime and drug cases, all the time.

The bigger issue is whether “honest services” means bribery or whether it is a normal part of setting up appointments by public officials to consider projects that might benefit their city, state or country. This will be the key issue in the appeals.

Meanwhile, the soap opera has been weirdly painful, fascinating and entertaining. It’s also been rather crass. The former governor tries to come off like a Boy Scout yet refused a chance to cop a plea in exchange for Maureen not being indicted at all. She was not a public official, but non-public officials have been convicted in the past of honest services fraud.

Both defense teams made Maureen the scapegoat. She was portrayed as a greedy and unstable hustler who brought her husband down.

Before delivering the sentence to Maureen, who gave a tearful, first-time statement asking for mercy, Spencer made bitingly critical remarks of the defense lawyers. “The ‘Let’s throw Momma under the bus’ defense morphed into the ‘Let’s throw Momma off the train defense,’” he said. Ms. McDonnell seemed to be two very different people and Spencer had trouble figuring it out.

Her lawyers had asked for no prison time and 4,000 hours of community service. Federal guidelines could have given her more than six years but prosecutors asked for only 18 months in prison.

Spencer split the difference, mostly because he gave Mr. McDonnell a light sentence. He was more culpable since he was a public official, not to mention a former state prosecutor and the state attorney general.

He cut Maureen some slack, too. By sentencing her that extra day, he gave her the opportunity to get out in only 10 months for good behavior since that’s the rule under federal prison guidelines.

Why Hide Details of Lethal Injection?

lethal injectionBy Peter Galuszka

It has to be one of the creepiest bills ever considered by the General Assembly.

Senate Bill 1393, sponsored by Sen. Richard Saslaw (D-Fairfax), would drop a veil of secrecy over how Virginia executes prisoners by lethal injection. Its backers, including Gov. Terry McAuliffe, are pushing it against a backdrop of global politics and questions of morality.

Virginia is one of 32 states that allow capital punishment. Since 1982, it has so far killed 110 prisoners, either by lethal injection or in the electric chair.

The preferred method is lethal injection. In the process, a doomed prisoner is strapped in a gurney and is given a series of three shots. One is to anesthetize; another is to paralyze; and the third is to stop his or her heart from beating. In some states, one drug may be used. Usually, there are witnesses to the execution, including members of the news media.

But Saslaw wants to start hiding crucial aspects of the gruesome practice. His bill would make information about lethal drugs. Companies that make or compound them would be exempt under the state Freedom of Information Act.

There are persistent national shortages of drugs used in the death process. According to The New Yorker, the sole American manufacturer of sodium thiopental stopped making the key, killer drug in 2011. Death penalty states looked to European manufacturers, but the European Union, which crusades against capital punishment, forbids European drug companies to export it if it will be used in executions.

Harried U.S. prison officials started shopping around to their counterparts in other states as shortages spread to other drugs. The situation seemed dire enough for Virginia to consider dusting off the electric chair, which it also allows for executions.

For a while, Virginia did have a good supply of killer drugs but by 2014,it ran short or drugs went past their expiration dates. A solution is to use pharmacies to compound drugs for executions but it could expose the firms to lawsuits.

So, as is too often typical in Virginia, Saslaw & Company started pushing the rights of private companies over the public’s right to know. His bill has drawn criticism from the American Civil Liberties Union, the Virginia Coalition for Open Government and the Society of Professional Journalists.

Underscoring the horror of the drug drama is what happened last April in Oklahoma during the execution of convicted murderer and rapist Clayton Lockett. He was injected with the three-drug cocktail, but 10 minutes into the process, he revived as stunned onlookers watched. He died after another half an hour.

There is considerable evidence that lethal injection is not a painless way to go. In fact, the issue may be back before the U.S. Supreme Court again about whether injections are an unconstitutional “cruel and unusual” punishment. Another issue is why facts around execution must be made confidential.

There are larger issues about the ethics of capital punishment. Virginia, after all, follows only Texas when it comes to legally-sanctioned killing. Virginia does not have an unusually high crime rate (ranking No. 34 in violent crimes  per 100,000 population according to 2006 U.S. Census statistics). So why is it so intent on keeping capital punishment and hiding it?