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  • INVESTIGATING THE ATTORNEY GENERAL: IS IT TIME FOR ANOTHER INDEPENDENT COUNSEL STATUTE? 1/15/15

     

     

    There is no question that Attorney General Kathleen Kane has made mistakes. Whether those mistakes amount to prosecutable crimes will initially be determined by Montgomery County District Attorney Risa Ferman and, perhaps, ultimately, by a judge or jury. If the Attorney General is found guilty of crimes after receiving due process, so be it. But with that said, right from the outset, there have been legitimate questions raised as to the process that has led to the appointment of a special prosecutor and now, presumably, a presentment by a sitting grand jury in Norristown. Ms. Kane’s attorney, Lanny Davis recently cited the Doctrine of Separation of Powers as prohibiting a judge from acting in an executive fashion to investigate another branch of government. Mr. Davis has hinted that the appointment of Thomas Carluccio as a special prosecutor is an illegal appointment under the Pennsylvania Constitution and the aforesaid doctrine. Ultimately, that issue may also be litigated. In the meantime, lawyers in Pennsylvania, including many prosecutors and legal scholars are also privately questioning the legal basis that has led us to where we are. The questions are numerous: Who initiated the request for the Attorney General to be investigated? Were petitions filed? Why are all of the filings sealed? Why is Attorney General Kane allegedly gagged from speaking about anything including information that could aid in her defense? The public has an absolute right to know the answer to these questions when the elected Attorney General is on the ropes.

    Former Chief Justice Ronald Castille has stated that the Supreme Court of Pennsylvania has the power to appoint a special prosecutor to look into grand jury leaks. Admittedly, it has not been unusual for the appointment of a special prosecutor to investigate grand jury leaks. What is unusual in this case, however, is the appointment of a special prosecutor by the judicial branch of government to investigate a sitting attorney general elected by the people of Pennsylvania and who is part of the executive branch of government. In addition, the investigation into grand jury leaks normally would result in a report with recommendations. In this case, however, the leaks out of the current grand jury suggest that a presentment rather than a report has been issued. A presentment is more compelling because it is in the nature of a probable cause determination with a direct recommendation to a prosecutor to charge. As such it is much more significant than a grand jury report.

    All of these issues raise the question as to whether Pennsylvania should revisit the enactment of an independent counsel statute which existed for a period of five years between 1998 and 2003. Pennsylvania’s law was known as the “Independent Counsel Authorization Act” (18 Pa.C.S.A. §9301) and established a special independent prosecutor’s panel comprised of various judges of the Commonwealth chosen by lot. Authority was placed in the Commonwealth’s General Counsel to appoint a special investigator under certain circumstances. The Act specifically provided for a process to investigate allegations that the Attorney General may have committed a crime. Pennsylvania’s Independent Counsel Act provided a transparent and legislatively approved process to investigate the Attorney General in the event of alleged wrongdoing. The Act spelled out the full authority of an independent counsel. The law also provided legislative oversight. Unfortunately, the law had a five year sunset provision which expired in 2003 without further legislative action.

    In light of the current matter involving Attorney General Kane, the Pennsylvania legislature should revisit this. The former statute was a bit cumbersome and probably should be rewritten. Still it achieved its intended purpose – having a transparent, orderly and legislatively legitimate method of investigating any wrong doing alleged on the part of the Attorney General. The enactment of an Independent Counsel Statute would go a long way in assuring a fair and open process in the future, and would eliminate any speculation that powerful people acting in secret behind closed doors can bring down an independent elected Attorney General.

    DA John Morganelli Calls for Mental Health Court- February 10, 2014

                     
     
     

     

    COUNTY OF NORTHAMPTON

     

    OFFICE OF DISTRICT   ATTORNEY

    NORTHAMPTON COUNTY GOVERNMENT CENTER

    669 WASHINGTON STREET

    EASTON, PENNSYLVANIA    18042-7492

    JOHN M. MORGANELLI

    DISTRICT   ATTORNEY

    Area Code   (610) 559-3020

    Fax (610)   559-3035 

     

     

                 DISTRICT ATTORNEY JOHN MORGANELLI PROPOSES                   

    MENTAL HEALTH COURT FOR NORTHAMPTON COUNTY

                According to a study done by Eslinger and Kennard in 2010, there are more mentally ill citizens in prisons and jails in the United States then in hospitals.  Pennsylvania has the sixth highest total number of prisoners in jails and state prisons.  Approximately 16% of that total number of prisoners has a mental illness.  It is estimated that 26.2% of Americans age 18 and older suffer from a diagnosable mental disorder.  Many studies suggest that more than 2 million times annually,  people with serious mental illnesses, such as schizophrenia, bipolar disorder, and major depression, are arrested and booked into jails in the United States.  People with mental illnesses remain incarcerated 8 times longer than people without mental illnesses arrested for the same exact charge.            Unfortunately, today, more and more mentally ill people  are being sent to jail instead of receiving the mental health care they need.

    I am happy to be joined this afternoon by Laura Savenelli Northampton County Re-entry Coordinator from Family Answers, Doctor William B. Vogler Executive Director of Family Answers, and Wendy Heatley Deputy Administrator for the Northampton County Department of Human Services Mental Health Department.  Today, I am announcing, my intention, with their help, to lead an effort to establish a Mental Health Court (MHC) in Northampton County.  Mental Health Courts are one of many initiatives launched in the past number of decades to address the large number of people with mental illnesses involved in the criminal justice system.  While the factors contributing to this problem are complicated, the over representation of people with mental illnesses in the criminal justice system have as noted above been well documented.  Without adequate treatment while incarcerated or linkage to community services upon release, many people with mental illnesses often cycle repeatedly through the criminal justice system.  This frequent involvement with the criminal justice system can be devastating for these individuals and their families and also impact upon public safety and government resources.  Mental Health Courts represent one response to the disproportion of number of people with mental illnesses in the criminal justice system.  Like Drug Courts and other “problem solving courts”, after which they are modeled, Mental Health Courts move beyond the criminal courts traditional focus on case processing to address the root causes of behaviors that bring people before the Court.  They work to improve outcomes for all parties including the individuals charged with crimes, the crime victims, family members of those who are mentally ill and the community in general.

    Mental Health Courts vary widely in several aspects including the target population, charges that are accepted, plea arrangements, intensity of supervision, program duration and type of treatment available.  Essentially, a Mental Health Court is a specialized Court docket for certain defendants with mental illness that substitutes a problem solving model for traditional criminal court processing.  Participants are identified through mental health screening and assessments and voluntarily participate in a judicially supervised treatment plan developed generally by a team of court staff and mental health professionals.  Incentives reward adherence to the treatment plan or other court conditions.  Non adherence may be sanctioned and success or graduation is defined according to pre-determined criteria.  The majority of Mental Health Court participants suffer from serious mental illnesses.  Mental illness is a general term that includes a range of psychological disorders.  This includes conditions that involve long term and profound impairment and functioning – for example, schizophrenia, schizoaffective disorder, bipolar disorder (formally called manic depression), severe depression, and anxiety orders.  Some Mental Health Courts accept individuals with a broader array of disabling conditions then mental illness alone.  While developmental disabilities, traumatic brain injuries, and dementias are not included in federal statutory and regulatory definitions of serious mental illness, they may be the cause of behavioral problems that result in criminal justice contact and may also co-occur with serious mental illnesses.  Each Mental Health Court determines how flexible to be on eligibility requirements and, when screening an individual who does not precisely fit standard criteria, whether to accept participants on a case by case basis.  Although addictive disorders are considered mental illnesses and are included in the American Psychiatric Associations Diagnostic and Statistical Manual of Mental Disorders, their diagnosis, treatment interventions and providers differ from those for non addictive mental illnesses.  Nevertheless, the majority of people with mental illnesses involved with the criminal justice system – approximately 3 out of 4 – also suffer from a co-occurring substance use disorder.  As a result, Mental Health Courts must often address this population and treat both mental illness and substance use disorders in a comprehensive and integrated fashion.  As recently as January 28th of this year, new data was released linking severe mental illness and substance use.  The Washington University of School of Medicine St. Louis and the University of Southern California jointly conducted a study of nearly 20,000 individuals, 9,142 of which were diagnosed with sever psychotic illnesses, collected over a 5-year period.  The study established what many people already knew that is that the overlap of mental illness with addictive disorders is not unique.  It was concluded that mental illnesses can lead to drug abuse.  Individuals with overt, mild or even sub clinical mental disorders may abuse drugs as a form of self medication.  The result from the study conclusively established that mental illness and substance use needs to be studied and treated together not as individual ailments.

    This is not a new idea, nor is it my idea.  There are presently 17 Mental Health Courts in Pennsylvania.  Communities that have implemented a Mental Health Court system have found that the pros outweigh the cons.  Mental Health Courts improve mental health outcomes and reduce recidivism among offenders who partake in the Court program.  Participants are less likely to repeat a criminal activity because they have a stable life that was facilitated by the Mental Health Court.  Minor criminal acts are not worth the amount of money that tax payers spend for each inmate when they have a 25-35% chance of reoffending.  Many do not have a stable job or home to go back to at the end of the day and resort to desperate measures of criminal activity to avoid an impoverished life style.  Many resources are available for mental health supports that are not being used.  The Allentown State Hospital was closed due to significant decline in funding while psychiatric needs, and many patients have rejoined the community.  A Mental Health Court could help stabilize the mental health needs of citizens who do not have the inclination to reach out for help.  It represents a humane approach to dealing with individuals suffering from mental disorders and provides the defendant the opportunity to take responsibility for his actions.  Introducing a Mental Health Court offers a regular process of judicial review for mentally ill cases.  The participants are offered services of transitional residential accommodation that gives them to have access to therapeutic, vocational educational activities which increase the likelihood of success and mental health recovery.  Mental Health Courts are not for the creation of new treatment services but to create more efficient and effective linkages to existing services.  It can be an effective and cost efficient solution.

    The individuals here with me today will work with the Northampton County Criminal Justice Advisory Board and the judges of the Court of Common Pleas in Northampton County, to design a unique, innovative structure for a Northampton County Mental Health Court.  I will leave the details of the structure and the operations to those experts in Court Administration and mental health to develop.  As District Attorney, however, I will request that any plan involve the following components:

    (1)  Addressing the Needs of our Veterans

    — I will insist that a component of a NCMHC specifically address veterans who have mental illness that often leads them into the criminal justice system.  Our veterans have put their lives on the line for our freedom and we need to do everything possible to help them when they return and often deal with mental illness caused by the trauma of war, physical injury, and their overall service to our country.

    (2)  Exclusion of Primary Substance Use Disorders

    — Although I recognize that there is an overlap often between substance abuse and mental illness, I want a NCMHC that focuses on mental illness.  This means, individuals with an Axis I or Axis II mental health diagnosis.  Although “drug courts” have their purpose, I do not want the NCMHC to be a drug court.  Important differences exist in the principles and operation of drug courts and Mental Health Courts.  Mental Health Courts are not merely drug courts for people with mental illness.  The fact is that mental illness, unlike drug use, is, in and of itself, not a crime.  Mental Health Courts admit participants with a wide range of charges, while drug courts focus on drug related offenses generally.  Where as drug courts concentrate on addiction, Mental Health Courts must accommodate a number of different mental illnesses, and so there is greater variability among treatment plans and monitoring requirements for participants then in drug courts.  Although I recognize there will be some overlap, I am hopeful that the Mental Health Court remains focused primarily on mental illness.

    (3)  Exclusion of Felony Sex Offenses, Felony Crimes of Violence, and Felony Drug Offenses

    — While each case should be considered individually, I believe that the aforesaid offenses would typically be excluded from a Mental Health Court.  Murder and Manslaughter would not be considered under any circumstances.  These exclusions are reasonable and are in line with the exclusions set forth in Montgomery Court’s Behavioral Health Court.

    (4)  Juvenile Component

    — I recognize that the development and implementation of a Mental Health Court in Northampton County will take time, expertise and planning by Court Administration, the Court of Common Pleas and mental health experts and other professionals.  Juvenile Mental Health Courts have developed more slowly than adult mental health courts.  In my opinion, at some point, a NCMHC needs to encompass juvenile matters related to mental illness and hopefully in the end will become a component of a Northampton County Mental Health Court.

    I believe that the establishment of Mental Health Courts is critical to reducing the number of individuals with mental illness in Pennsylvania state and county correctional institutions, and to provide a more appropriate treatment for this population in a community or psychiatric hospital setting.  Incarcerating individuals with mental illness often on misdemeanor offenses, places an unrealistic burden on our correction facilities with minimal hope of reducing recidivism.  It is expensive, ineffective and inhumane.  By diverting individuals with mental illness into Mental Health Courts, we are most likely able to change their behavior in becoming peaceful members of their communities.  Mental Health Courts offer an alternative to sending still more people with mental illness to jail.  The goal is to prevent these types of defendants from committing more crimes.  Across the country and across Pennsylvania where these courts have been operating, the studies and data report positive results.  I am confident that the team in place at the Northampton County Criminal Justice Advisory Board with our Court Administration, judges and professionals would make Northampton County a model of success.

     

    Liquor Privatization Plan Bad Public Policy

    September 16, 2013

    NORTHAMPTON COUNTY DISTRICT ATTORNEY

    JOHN M. MORGANELLI SAYS GOVERNOR’S PRIVATIZED

    LIQUOR SALES PLAN PUTS PRIVATE BUSINESS

    INTERESTS ABOVE PUBLIC SAFETY

    DA Says Easy Access to Alcohol Increases Risks to Teens

    In the early morning hours of April 29, 2001, a 19 year old Christopher Mowad, with his blood alcohol level at twice the legal limit for an adult – lost control of his SUV at 83 miles per hour. It rolled over killing him and two 18 year old passengers. Earlier that evening, a 43 year old adult, Judith Clare McCloskey, allowed dozens and dozens of teenagers to consume alcoholic beverages in her basement at a party hosted by her two teenage daughters. Although she did not buy the alcohol for the teens, she did have knowledge that they were consuming alcohol in her basement and provided a safe haven for them to do so. Shortly after the investigation by police in that case, I directed that charges of Involuntary Manslaughter – 3 counts be lodged against Mrs. McCloskey in order to hold her criminally responsible for the deaths of the teenagers as a facilitator of underage teenage drinking. In the case that was deemed a “landmark” case by The Philadelphia Inquirer in its article of September 30, 2002, a jury of eleven women and one man found Mrs. McCloskey guilty of 3 counts of Manslaughter. She was subsequently sentenced to prison by a Northampton County judge. The case was the first of its kind in the nation to hold an adult criminally responsible for the deaths of teenagers who had consumed alcoholic beverages while under-aged with the help of an adult facilitator. The case was appealed to the Pennsylvania Supreme Court and was upheld and now is precedent in Pennsylvania.

    Since that time, unfortunately, I have seen the devastating effects when you mix alcohol, teenagers and motor vehicles. Numerous organizations throughout Pennsylvania including but not limited to the Pennsylvania DUI Association, Mothers Against Drunk Driving, Students Against Drunk Driving, Alert Partnership and others have worked in conjunction with the Pennsylvania Liquor Control Board to work in communities to combat underage drinking in order to protect our teens.

    Since that time, I have been vigilant in supporting public policy that punishes adult facilitators of underage drinking and restricts the ability of teenagers to obtain and possess alcohol. I come here today to speak out against Governor Tom Corbett’s proposed privatized liquor sales plan which, in my opinion, puts private business interests and their profits above the safety of our young people in Pennsylvania. At a time when we continue to struggle with a weak economy, it is mind boggling that one of Governor Corbett’s top priorities is to allow alcohol, including hard liquor to be more accessible and available to our young people which will clearly put them in harms way. His proposal is bad public policy and, quite frankly, risky public policy. His only rationale for this move as indicated by his spokesman is to give people “choice and convenience” and “flexibility” with respect to the purchase of alcohol. Governor Corbett, as a former Attorney General of this Commonwealth is at odds with many people in the law enforcement community, including the Pennsylvania FOP which opposed the plan in the last legislative session. The Pennsylvania Fraternal Police have opposed privatization efforts that included transfer of enforcement to local police who are not trained for said enforcement nor have resources to do so. Many people in law enforcement oppose an expansion of the availability of hard liquor and other alcohol which will ultimately allow easier access to under-aged drinkers. As was noted in their March 20, 2013 letter, the Pennsylvania FOP also recognizes that expanded access to alcohol throughout the Commonwealth threatens the safety of law enforcement officers and citizens. The U.S. Center for Disease Control has linked privatization of alcohol sales to an increase in per capita alcohol consumption. The U.S. Department of Justice has documented the clear connection between alcohol consumption rates and crime rates. In the State of Washington, in the months following privatization of liquor sales, the Association of Washington Cities reported a 63% increase in liquor thefts and a 30% increase in alcohol-related crimes near grocery stores and similar private vendors. The Center for Disease Control recommended against any further privatization of alcohol sales.

    The Governor’s plan is not even revenue friendly in that it brings in revenue on a one time only basis and ignores the fact that liquor stores provide more than Five Hundred Million Dollar a year in taxes and profits to the state. Governor Corbett’s plan means an increase in drinking by our teenagers, more social problems linked to alcohol abuse including but not limited to crime, domestic violence and child abuse. Groups such as Students Against Drunk Driving, the Pennsylvania DUI Association, the NAACP and other organizations concerned with excessive and underage alcohol consumption all have opposed privatization in the past and for good reason.

    In addition, Governor Corbett is not being transparent and honest with respect to the law enforcement impact. The Corbett Administration has assured that this transition to the private sector will be made safe by increases in law enforcement as well as alcohol treatment and prevention methods. Unfortunately, this sounds like another unfunded mandate that will not materialize.

    In January of this year, more than 100 Tennessee sheriffs and police chiefs including Knoxville’s Chief David Rausch declared opposition to legislation that would allow the sale of wine in grocery stores. Rausch and several other law enforcement officers, part of a Tennessee law enforcement for strong alcohol laws coalition, declared at a legislative news conference that they see wine sales in groceries and supermarkets as weakening control over sales and causing an expansion of underage drinking. Rausch noted that at the present time sting operations with the State Alcoholic Commission and liquor agents currently run operations and rarely find state owned liquor stores doing anything wrong in the nature of selling to underage youths. He noted that convenient stores which now can only sell beer are much more likely to have clerks caught in sting operations. He noted that grocery stores often have under-aged clerks willing to “wink and nod” for sales to under-aged friends. Law enforcement officers noted that wine and other alcohol have higher alcohol content than beer and make it much more attractive to underage drinkers and for binge drinking.

    Also, with privatization will come more advertising which will promote more drinking and increase under-aged drinking. In Eugene, Oregon, this year, the Eugene Prevention Coalition noted how high risk alcohol use was twice the national average largely due to stores advertising and promoting drinking and drinking games such as beer pong in order to tie them to alcohol sales.

    Governor Corbett’s plan is a plan to fix something that is not broken. In the past years, the legislature has rejected several bills to privatize. These proposals threaten public safety and put more youth at risk.

    As someone who has for the last 20 years attempted to do all that is possible to decrease the availability of alcohol to our teenagers, I am highly concerned that Governor Corbett’s plan, if adopted will do just the opposite. It will be much easier for teenagers to obtain all kinds of hard liquor due to laxed enforcement and profit driven motives to sell more alcohol. Today, I ask our legislators to defeat Governor Corbett’s proposal which will put more of our young people at risk. The Governor’s business friends are doing just fine.