CONCERNING THE PENNSYLVANIA BOARD OF PARDONS
So far, a search for some foundation of pardon, and guides to clemency has failed to produce any rational for what goes on in the proceeding of the Board of Pardons of Pennsylvania. In explaining its procedure, the Board says, “Neither the Pennsylvania Constitution nor the laws or regulations governing the Board establish minimum eligibility requirements in order to apply for executive clemency. Also, the law does not establish a specific list of factors that the Board must consider in evaluating applications. As a result, each of the five Board members is free to rely upon the information that he/she feels is most important both in deciding to grant a public hearing and in deciding to recommend clemency to the Governor....the Board evaluates every application on a case-by-case basis to determine whether clemency is appropriate.” There is much to be commended in a policy which does not hamstring itself or codify itself into stone. There is also much to be said in favor of a clear understanding of the principles of what we do and why we do it. The laissez faire approach in which each members does what he or she please, runs the danger of building a scaffold with no foundation, of doing things without a leg to stand on, of having a vote of five members which only represents their particular point of view. As the Supreme Court considers the cases of two Juveniles in Florida who have been sentenced to life in prison with out parole, it might be good to compare the Board of Pardons with the Supreme Court. Perhaps the Supreme Court is the opposite of the Board of Pardons, in that there is a multitude of criteria involved in the Supreme Court process, before the Court comes out with a vote of its nine members. In the Supreme Court, it is obvious that there is a multitude of principle, theory, philosophies, tradition and practice which is the basis of what the Judges do and why they do it. In the end it is the same --a tally of individual votes to make a majority decision and decide the case. In the Supreme Court when the votes are cast, opinions are given. There are even different opinions within the majority and minority. But there is a fundamental agreement, that the vote itself is not enough. Why the vote was cast is the important matter. There is some greater good, some greater principle, some greater cause to which the individual Justice is attracted, and which he/she defends. It is a personal vote, yes. But it is more than a personal opinion. It is a declaration of a higher truth. Such a devotion to principle is not evident in the deliberations of the Board of Pardons in a Public Hearing. There is no evidence of any underlying moral, humane, justice principles which embrace the action of the Board. There is no ground on which everyone stands. It is not even evident that the Board is for Pardons or against Pardons. There is no declaration of even why the State should consider Pardon. All that is seen is a group of people who take a vote. Or don't take a vote. Care needs to be taken in the use of words. The Board of Pardons pardons hundreds of citizens every year. And the Board seems to enjoy it. They are making life more bearable for those who have run afoul of the law, and now deserve some respect, in spite of mistakes they have made. The Commutation of a sentence from Life in prison to life on parole is another type of pardon which the Board faces, apparently with less enthusiasm. A more serious action, indeed. One that demands some historic commitment, some fundamental concepts, some moral principles. You don't just take a vote on issues like these. You test them against established values, against proven experience, against your hope for humanity. That kind of moral, humane, justice principle seems to be lacking in the Board of Pardons. There is no dearth of individual opinion. In fact the Board is structured that way. But there appears to be a serious lack of understanding, of higher principles of Justice and Mercy, as they do what they are doing. ****************ANNOUNCEMENTS:All Juvenile Lifers at SCI COAL TOWNSHIP are asked to sign up for the next TRIUMPH meeting, so that you will be able to meet other Juvenile Lifers in your Institution, and become a more united force for Juvenile Lifers’ concerns. All Juvenile Lifers are asked to take advantage of the Prisoner Organization in your Institution as a place to go to meet each other, and share common concerns. INNOCENCE INSTITUTE OF POINT PARK UNIVERSITY “Justice”, the official magazine of the Innocence Institute of Point Park University, continues its journalistic coverage of criminal justice issues in its next installment, “Juvenile Lifers.” The magazine will focus on the complexities of life without parole sentences for juvenile offenders. If you or your loved ones have information to share -- or would like a copy of the magazine when it is released next month, please contact---Matt Stroud, Reporter and Graduate Assistant, Innocence Institute of Point Park University, 201 Wood Street, Pittsburgh PA. 15222 A WORD FROM BRADLEY BRIDGE, Friend, Advisor, Attorney of Juvenile Lifers. Defenders Association of Philadelphia, 1441 Sansom Street Philadelphia PA 19102 There have been some new developments since the last newsletter. As you know, on November 9, 2009, the United States Supreme Court will be hearing argument on two juvenile lifer cases out of Florida. The United States Supreme Court typically starts their year on the first Monday in October and finishes by the end of June the following year. This means that they will likely issue a decision in the two Florida JLWOP cases by June 30, 2010, the end of the Supreme Court year. On September 17, 2009, the Pennsylvania Supreme Court granted review in Qu’eed Batts' case on the JLWOP issue. The Pennsylvania Supreme Court indicated that they want to see what the United States Supreme Court decides in the two Florida cases. They will consider those cases in determining whether for juveniles the Pennsylvania life without parole law is unconstitutional because it's mandatory. This is a very good sign because it shows that more and more courts are thinking seriously about the constitutionality of JLWOP. On September 22, 2009, I argued two cases in the Pennsylvania Superior Court (the appellate court above the trial court and below the Pennsylvania Supreme Court) that raised JLWOP issues. Though the argument in my brief covered some 22 pages, I told the three judge panel that because the United States Supreme Court and the Pennsylvania Supreme Court are each considering this exact issue, they should hold off making a decision until those courts decide. I was pleased that the judges were aware of what the Pennsylvania and United States Supreme Courts were doing and that they seemed to agree with me that it was better to wait for guidance from those courts. SUPREME COURT CONSIDERS JUVENILE LIFE WITHOUT PAROLE In November, when the Supreme Court considers the cases of two; Floridian children, sentenced to life without parole, you will not only be present with those two defendants, you will be present with the attorneys who present their cases. That presence is a result of your affiliation with Fight For Lifers, West, and FFLW connection with the Juvenile Law Center. The Juvenile Law Center has provided the following statement to describe the situation On July 23, 2009, Fight for Lifers West joined approximately 60 other organizations in urging the United States Supreme Court to hold that juvenile life without parole is unconstitutional. Before the Court were two cases: one involving Joe Sullivan, who was convicted at age 13 of sexual battery, and another involving Terrence Graham, a 17 year old on a probation violation for an armed home invasion. The brief FFLW joined, which was authored by Juvenile Law Center, the National Juvenile Defender Center, and the Bluhm Legal Clinic at Northwestern University, argued that juvenile life without parole is unconstitutional as applied to juveniles. The brief underscored that life without parole is inappropriate for juveniles as it is out of keeping with adolescent development research. The brief emphasized that the Supreme Court has historically recognized developmental differences between adolescents and adults, and that in recent cases – particularly Roper v. Simmons, the case holding the death penalty unconstitutional for youth – the Supreme Court has recognized the important role of social science research in assessing adolescent culpability. The brief urged the Court to apply these principals in holding juvenile life without parole unconstitutional. The Court will hear oral arguments on the case in early November. Jessica Feierman, Supervising Attorney, Juvenile Law Center, 1315 Walnut Street, 4th FloorPhiladelphia, PA 19107 (215) 625-0551 So, you are there. You have been in court before, with legal defense at your side. You will be in court again, but this time you are also part of the legal defense. Ms Feierman outlines your brief. The two Supreme Court cases are summarized below. The words are the direct language of their petition Terrance Graham, 16 years old, was charged with armed burglary and attempted armed robbery. He pled guilty. It was his first and only conviction of his life. The State sentenced him to three years probation. While he was still 17 he got involved in some other robberies and the State found, by a preponderance of the evidence, that he had violated his probation, and sentenced him to life imprisonment without the possibility of parole. The trial court reasoned that the sentence was justified because it concluded that:(i) Petitioner had thrown away a great opportunity to do something with his life; (ii) nothing could be done to deter Petitioner from future criminal activity; (iii) Petitioner had decided to lead a criminal life; and (iv) the trial court needed to protect the community from Petitioner. Joe Sullivan, mentally disabled, was a 13 year old child living in a home where he was regularly subjected to physical and sexual abuse. On the day of the crime, two older boys convinced Joe to participate in a burglary. The three boys entered the home of Lena Bruner in the morning while no one was there. One of the older boys took some money and jewelry. The three boys then left. That afternoon, Ms Bruner was sexually assaulted in her home. She never saw her attacker. One of the older boys, who may have been the true assailant, accused Joe of the sexual battery. Each of the older boys received short sentences in juvenile detention. Thirteen old Joe Sullivan was charged and tried in adult court. Joe’s trial before a six person jury lasted only one day. No biological evidence was presented. Instead, the prosecution relied on testimony from Joe’s juvenile codefendants and a highly suggestive voice identification by the victim, who could say only that Joe’s voice “sound[ed] like” the voice of her assailant. The trial, involving an African-American defendant and a white victim, featured repeated, irrelevant references to race. Joe Sullivan was convicted and sentenced to life imprisonment without parole. The following material is taken from the State Briefs against Sullivan and Graham. QUESTIONS PRESENTED (Sullivan)Joe Sullivan is serving a sentence of life imprisonment without the possibility of parole for a non-homicide offense committed when he was thirteen years old. Nationwide, only one other thirteen year old child has received a life without parole sentence for a non-homicide. The questions presented are:1. Does imposition of a life without parole sentence on a thirteen year old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where freakishly rare imposition of such a sentence reflects a national consensus on the the reduced criminal culpability of children?2. Given the rarity of a life without parole sentence on a thirteen year old for a non-homicide and the unavailability of substantive review in any other federal court, should this Court grant review of a recently evolved Eighth Amendment claim where the state court has refused to do so?3. May this Court review Sullivan's Eighth Amendment claim when the state court dismissed his post-conviction motion on an independent and adequate state law ground?ARGUMENTI. The trial Court's ruling--that Sullivan’s Post-conviction Motion was Procedurally Barred-- is based on an Independent and Adequate State Law Ground That Forecloses Review in This Court A. The trial court’s ruling rests on a state law ground that is independent of the federal question and adequate to support the judgment B. State Courts should not be compelled to adjudicate claims of new constitutional rights in post-conviction proceedings C. This case presents no basis for upsetting long-established state post-conviction procedures because Sullivan’s federal constitutional claim could have been asserted at trial and on direct appeal. II. Sullivan Ignores The Court’s Eighth Amendment Proportionality Jurisprudence, Which Supports a Life Sentence Without Parole For The Violent Crime of Sexual Battery. A. Under this Court’s precedents, no inference of gross disproportionality exists for the violent crime of sexual battery. B. Neither comparative jurisdictional analysis nor Sullivan’s “objective indicia” support a constitutional violation. III. Roper Does Not Alter Proportionality Principles as Applied to Juvenile Incarceration or Compel a Categorical Rule Against Life Sentence Without Parole A. Death is different; Roper does not eliminate lengthy sentences, including life sentences, for violent offenses B Age, as a characteristic of the offender, is already woven deeply into the fabric of state criminal justice systems. C. Roper does not displace state sentencing laws, which must be flexible to allow for the mix of punishment, deterrence, avoidance of recidivism, and rehabilitation that best address serious crime problems. D. The categorical rule suggested by Sullivan is ill-defined and unworkable CONCLUSION The Court should find that certiorari was improvidently granted; alternatively, the Court should hold that Sullivan’s sentence does not violate the Eighth Amendment ************** QUESTION PRESENTED (Graham) Whether the Eighth Amendments’ ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide. ARGUMENT Outside the context of the death penalty, this Court has never adopted categorical bans on punishment and it has never considered the Eighth Amendment analysis. Yet Graham seeks to override both of these established and important firewalls protecting the states’ power to structure and implement their criminal justice systems as they deem warranted. These systems already account for age, along with offense severity, in the processes by which a juvenile offender is adjudicated and punished for criminal conduct. The linchpin of Graham’s argument is the wholesale extension of Roper and its categorical ban, which was developed in the unique and highly limited context of the death penalty, to the exceptionally broad and virtually unlimited context of prison incarceration. This extension, which seeks a categorical ban of life sentences for juveniles in the adult system who commit violent felonies merely because no death occurs is compelled neither by this Court’s Eighth Amendment jurisprudence nor by Roper. Section I demonstrates that life without parole is not grossly disproportionate for the type of violent felonies involving lethal weapons that underlie Graham’s sentence, even when accounting for an offender’s age. Section II explains why Roper should not be extended outside the death penalty context, why doing so would undermine the administration of state criminal justice systems that all ready account for juvenile status, and why Graham’s proposed analysis is unworkable. I. This Court's Eighth Amendment Jurisprudence Supports a Life Sentence Without Parole for Violent Juvenile Offenses, Even When a Victim of the Offense Does Not Die. A. Under general Eighth Amendment principles that apply to incarceration cases, Graham’s sentence is not grossly disproportionate to his offense. B. Graham’s comparative analysis is seriously flawed. C. International comparisons are unnecessary.II. Roper Does Not Alter This Court’s Non-Capital Precedents, Particularly Given that Age is Woven into State Criminal Justice Systems, the Deference to State Sovereignty in Sentencing Matters, and the Unworkability of a Categorical Rule. A. Roper’s elimination of the death penalty for juveniles does not also eliminate harsh prison sentences for juveniles B. Age, as a characteristic of the offender, is already woven deeply into the fabric of state criminal justice systems C. The structure of state sentencing laws must be flexible and allow states to pursue methods that best address serious crime problems. D. The categorical rule suggested by Graham in the Question Presented is unworkable.CONCLUSION For all of the above reasons, this Court should affirm the First District Court of Appeal, State of Florida. COMMENTS The number of times the word “State” appears in the briefs of the State of Florida against Terrence Graham and Joe Sullivan gives an inkling of the true nature of this debate. This theme was also present in the discussion of HR 2289 in which Congressman Gohmert of Texas said that though he personally finds it repugnant to sentence a juvenile to life without parole, it should be left to the States to make this decision. The conflict between Federal power and State power is older than our nation, and continues today. Our founders debated the issue as they considered the ratification of the Constitution, in which the Nation prevailed to a certain extent. Brother against brother killed each other in hand to hand combat in the bloody Civil War, in which the Nation prevailed, not rebellious States. Since then, the question of Human Rights, with regard to race, gender, and class have been battled out in street and court. It is clear that no final answer has been agreed upon. Whatever decisions are made in one context, are vigorously challenged by the other party in the next contest. The Supreme Court consideration of the Florida cases is another page in the story, another fight in the battle, another gain or loss in the struggle. Unfortunately, there will be casualties. Each hopes the casualties will be on the other side. There are already casualties,- Joe Sullivan and Terrence Graham. Apart from the dubious quality of how their cases have been handled in Court, their cases have gone from the consideration of two human beings, juvenile human beings, to an issue of Federalism and State Rights. As the Representative from Texas says, it is not a matter of rights of an individual, and justice in that situation, it is a matter of who has the right to determine the punishment of that individual. If that is the case, humanity has already lost the first battle. Only two Juvenile Lifers are on trial in the Supreme Court. But every Juvenile Lifer in the Nation will be affected by these cases. Wouldn't it be grand if the concern was focused on the two Juveniles, the realities of their personal situations, rather than the power of government. Wouldn't it be grand if every Juvenile Lifer in the United States could be considered on the basis of his or her own human situation, both in the context of the crime, and in the growth and development of that precious human being over the years. And that leads us to human beings of any age, Lifers of any age. What is there about being over 18 years of age that denies consideration of a human being? A Life sentence without Parole is wrong, period. It is wrong for anyone. It is not an appropriate substitute for the death penalty. Life without parole is death itself, because it denies the fundamental aspect of life--development and change, growth and understanding, repentance and remorse. It is like saying to a person, you are dead already, and under no circumstances will we allow you these basic human attributes. You have to live without those human attributes for the rest of your life. Life sentences with the opportunity for parole does not mean that everyone convicted of murder will be released from prison. That decision will be up to the prisoner, responsible corrections officials and parole boards. But it does affirm that the person is still a human being, open to the Grace we all receive, and that we have not yet consigned the person to Hell. Life without parole prematurely ends the humanity of the prisoner, rather than offering to the prisoner the opportunity for a new life. One of my first reactions to the Board of Pardons response to the appeals of Tyrone Werts and William Fultz was the recollection of my forced memorization 67 years ago of Portia’s speech on the Quality of Mercy in the Merchant of Venice, by William Shakespeare. I often regurgitated High School memorization to keep me awake on night watches in the Navy. But in the literally gut wrenching aftermath of the Board of Pardons non action, Portia came to me all by herself to soothe and offer healing, and to recall another day when there were principles by which some men lived and not politics, where there were causes some people strived for and not power. It was not just that one person was right, and another person was wrong, but there were human beings just like ourselves who respected each other. Please read and absorb The Quality of Mercy. You might have missed it in High School, or in your G.E.D. class. And it certainly is old fashioned. But think about it. And check out the Merchant of Venice from the SCI library. It is a good story. Portia;The quality of mercy is not strain’d,It droppeth as the gentle rain from heaven upon the place beneath;It is twice blest; It blesseth him that gives and him that takes.‘Tis mightiest in the mightiest:It becomes the throned monarch better than his crown;His sceptre shows the force of temporal power, the attribute to awe and majesty, wherein doth sit the dread and fear of kings;But mercy is above this sceptred sway.It is enthroned in the hearts of kings.It is an attribute to God himself.And earthly power doth then show likest God’s, when mercy seasons justice.Therefore...though justice be thy plea, consider this- that in the course of justice, none of us should see salvation. We do pray for mercy, and that same prayer doth teach us all to render the deeds of mercy.
JUVENILE LIFERSThere are now 456 names on the Juvenile Lifers listJORDAN BROWN, the 11 year old who is accused of murdering his father’s pregnant girl friend will spend his 12th birthday in an adolescent detention center in Erie, while his attorneys prepare to ask the Judge to move his case to Juvenile Court. On August 26 the attorneys asked the Judge to dismiss most of the prosecution's evidence, and to dismiss the case against Jordan Brown. The Judge did not make a decision and did not set another hearing date, but said he will make a decision soon. Attorney David Elisco said Jordan has been evaluated by an adolescent psychologist who deemed Jordan to be “amenable to juvenile rehabilitation”, and Mr Elisco hopes to file a motion to decertify the case to juvenile court.DAVID PENNEWELL is still in the limbo of the appealing of his case.VINCENT JOHNSON, a Juvenile Lifer whose Life sentence was removed by the court, received a hit from the Parole Board. His max date is November 2011 LEGISLATIONPlease keep up your steady stream of letters to the Pennsylvania Representatives in the the United States Congress concerning HR 2289. Your constant concern means far more than a one time letter.Pennsylvania Representative Kenyatta Johnson has sent a memorandum to his colleagues saying that he plans to introduce a bill very similar to HR 2289 into the Pennsylvania House of Representatives.HOUSE RESOLUTION 402 A Resolution directing the Joint State Government Commission to establish an advisory committee to study the issues relating to juveniles with life sentences, has been referred to the Judiciary Committee. HB 1567 in the Pennsylvania House of Representatives has passed the House Judiciary Committee (16-6) and is now in the House Rules Committee. It is a three strikes and you’re out type of bill for “violent offenders” which leads ultimately to a sentence of Life Without Parole.