The Supreme Court Has Gone Fishin'

It’s impossible to find the bottom these days. One outrageous story bleeds into another, and lies that pile up like cordwood obscure earlier mendacities that seemed like whoppers at the time but quickly gave way to even greater scandals. Such is the case with the recent revelation of Justice Alito’s luxury fishing trip, bought-and-paid-for by a rich Supreme Court litigant. While it may be shocking to the uninformed, it’s about as surprising as a sunrise to anybody paying attention over the last few decades. 

Since memory fades, let’s recap. In 2004, Justice Scalia flew down to Louisiana on a government plane to go duck hunting with Vice President Dick Cheney, who had a case in front of the Supreme Court. Refusing to recuse himself, Scalia broke it all down to money:

[T]hough our flight down on the vice president’s plane was indeed free, since we were not returning with him we purchased (because they were least expensive) round-trip tickets that cost precisely what we would have paid if we had gone both down and back on commercial flights. In other words, none of us saved a cent by flying on the vice president’s plane.

Shockingly (or maybe not so shockingly), there was very little indignance about the more obvious question: Wait, a Supreme Court Justice goes duck hunting with the Vice President? Weren’t we taught something about the separation of powers in elementary school? And then Scalia played the victim card: “While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this court cannot. The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot faults.” In other words, if you catch us being unethical, it’d be better if you’d keep your mouth shut, or else the public will start to think that we’re unethical. 

Well, time’s a wasting, so let’s skip ahead to our more recent scandals:

1. Chief Justice Roberts’s wife apparently bringing in more than $10,000,000 in commissions by headhunting for lawyers who would be appearing before her husband;

2. Justice Thomas’s dear friendship with right wing billionaire and Nazi artifacts collector Harlan Crow, which began in childhood, during college, as a lawyer after Thomas ascended the High Court and yielded free tuition for his nephew, home improvements, and extravagant vacations—you know, the sort of gifts anyone might accept with the understanding that there are no strings attached. How dare you suggest otherwise? And most recently…

3. Justice Alito’s undisclosed luxury fishing trip with a hedge fund billionaire who regularly has cases pending at the Philadelphia Court of Common Pleas, Poughkeepsie Bankruptcy Court the Supreme Court. Providing fodder for late night comics, Alito explained that there was no reason for him to report his travel on a private jet because he took “a seat that, as far as I am aware, would have otherwise been vacant.” This explanation is particularly galling: The billionaire might well have invited someone from the Atlantic Center for Capital Representation had Justice Alito been busy with… Court stuff.

Then there’s this last bit of news we learned about Alito’s fishing trip—he’s knowledgeable about wine. “As I recall, the meals were home-style fare. I cannot recall whether the group at the lodge, about 20 people, was served wine, but if there was wine it was certainly not wine that costs $1,000.” Who knew? On the bright side, this most recent scandal helps us forget last year’s allegations that Justice Alito leaked his opinions to right-wing leaders, and that Justices Alito and Scalia invited those same right-wing leaders to attend Supreme Court arguments in special seats: “We were invited to use seats from Nino and Sam. Wow!” Wow indeed. 

But what does any of this have to do with the death penalty, you ask? Even though these justices might appear beholden to right-wing interests, and those right-wing interests have been keeping capital punishment afloat for years, the justices could still be analyzing, without fear or favor, each individual claim that comes before them. After all, an appearance of impropriety doesn’t mean that there actually is impropriety. Maybe it’s just a coincidence that Justices Thomas, Scalia, Roberts, and Alito consistently vote against indigent defendants appearing in the Supreme Court, especially when it comes to death penalty cases. Maybe. But we prefer the great writer Vladimir Nabokov when it comes to coincidence: “A certain man once lost a diamond cuff-link in the wide blue sea, and twenty years later, on the exact day, a Friday apparently, he was eating a large fish—but there was no diamond inside. That’s what I like about coincidence.”

The Governor Speaks

“The Commonwealth shouldn’t be in the business of putting people to death. Period.” And with that succinct announcement by newly minted Governor Josh Shapiro, Pennsylvania applied for membership in the civilized world. After declaring that he would continue Governor Wolf’s moratorium on executions, the Governor went further, speaking “to the fundamental question as to whether death is a just and appropriate punishment for the state to inflict on its citizens.” The system is fallible, he said, and the outcome is irreversible. Rejecting the idea that our capital punishment system is flawed but fixable, he called on the General Assembly to “work with me to abolish the death penalty once and for all here in Pennsylvania.”

Skeptics like myself had reason to expect much less when we filed into the Mosaic Community Church on February 16th. As our former Attorney General, Mr. Shapiro had hardly appeared the abolitionist. He himself admitted that he had “evolved” on the issue, and evolve he certainly did: he could not have been stronger in declaring his recently found moral opposition to state-sanctioned executions. But while we should acclaim this new and strong ally in Harrisburg, we might not want to celebrate too soon. Indeed, it is important that we learn from recent history. I am referring, of course, to our former president and his despicable and bloody reign of terror on our federal death row. Like Pennsylvania, the federal government had only executed three people in the modern era, the last in 2003. But in the final six months of the Trump administration, the twice-impeached president, working in tandem with Attorney General Barr, executed 13 people. Six of them occurred after he had been soundly beaten in the 2020 election.

Following Governor Shapiro’s announcement, we are now assured that such a spree will not take place in Pennsylvania during his term. But a moratorium declaration, and even a governor’s sincere wish to end capital punishment in the Commonwealth, will only take us so far. As long as there is a death row, there is a risk the next governor will end the moratorium, just as Trump ended the unannounced but very real moratorium by President Obama; and Pennsylvania still has more than 100 people on its death row. It’s not hard to bring this home – just close your eyes and try to imagine that Doug Mastriano had beaten Mr. Shapiro in the 2022 election.

Moratoriums have another huge limit as well, in that they do not prevent individual prosecutors from seeking the ultimate punishment. There are 67 counties in Pennsylvania, and that means 67 District Attorneys. Each has his or her (actually mostly his – 78% are men) own idea of what a capital case looks like, and each under the law has the full discretion to do so with virtually no restraints. This is particularly unsettling given the makeup of the 67 – there is not a single person of color on the list. https://www.pdaa.org/da-directory/ (You will note only 66 in the directory – Philadelphia District Attorney Larry Krasner is not a member, given his objections to the Pennsylvania District Attorneys Association policies). So while Governor Shapiro has promised not to execute anyone, there are 57 people awaiting trial in pending capital cases as this is written. 21% of them are in Washington County. You don’t know where Washington County is? We’re not surprised, as it has less than 2% of Pennsylvania’s population. You see the problem.

But this blog isn’t being written to rain on anyone’s parade. Our governor has taken a huge step towards bringing Pennsylvania in line with the rest of the Northeast, and it is up to the rest of us to make sure the General Assembly puts an abolition bill on his desk. In the meantime, it is critically important that we not assume the fight is over – in Pennsylvania, there will always be a Doug Mastriano waiting in the wings.

If Not Now, When?

Last week produced two stunning developments in the capital punishment world: the rejection of the Andre Thomas appeal by the United States Supreme Court, and the life verdict handed down to Nikolas Cruz in the Parkland High School shooting case. Each in its own way is revelatory of the dysfunctionality of the death penalty. Viewed in conjunction they paint the clearest portrait yet of a system that simply has never worked as advertised.

Let’s first consider the Cruz verdict, in which a deeply disturbed 19-year-old who killed 17 (including 14 children) and injured 17 others received a life sentence from a Florida jury. At first glance it would be hard not to consider the young Mr. Cruz among the “worst of the worst” for whom the death penalty is designed – after all, he was the perpetrator of the deadliest mass shooting to go to trial in United States history. But the crime itself does not dictate the sentence, and the jury was moved to life after learning Cruz’s tortured upbringing, which included the fact that his mother had drunk and done drugs during her pregnancy. That led Mr. Cruz to suffer from fetal alcohol disorder, a diagnosis that explained his many developmental delays and behavioral problems and no doubt led the jury to bestow the minimal showing of mercy that separates a lifetime in prison from a death sentence.

Many of the victim survivors, enduring the incalculable pain that most of us are fortunate to avoid, felt betrayed by the verdict. Egged on by prosecutors and a media hostile to the defense, they were led to believe that a death sentence was a foregone conclusion. Their dismay at the verdict prompted a remarkable statement by the Reverend Sharon Risher, herself a family member of one of the victims of the 2015 mass murder in the Mother Emanuel AME Church that ended in a death sentence for Dylann Roof:

“How can you not want vengeance for the killer? I was very conflicted, but by the time it was over, I knew that killing him would do nothing to help me heal. Yet in the Mother Emanuel case, the killer was sentenced to death. Because of that, we are still suffering in ways that could have been avoided. Last year at this time, Dylann Roof’s first appeal came up. It was six years after his crime, but just the experience of that appeal being a top headline in the news brought all of that anguish back not only to me, but on some level it ripped the scab off of the wounds of all of us touched by that crime.

This is the unintended but very real consequence of the death penalty. Rather than helping us heal, it keeps reopening our wounds. Because I know this from my own still-fresh experience, I hope the families in Parkland can see this as a turning point for them. Once the killer is sentenced, they can move toward healing.”

Two lessons emerge from the Parkland verdict. First, as the New York Times noted, “the verdict comes at a time when people are growing more wary of the death penalty.” Second, and perhaps more importantly, the life sentence for Mr. Cruz is not the outlier it seems at first blush. The horror and scope of the case cannot be doubted, of course; but there are a surprising number of highly aggravated cases in which compelling mitigation stories persuaded juries to return life sentences. (Russ Stetler, the former National Mitigation Coordinator and current member of the Board of Directors of the Atlantic Center, and two colleagues – Maria McLaughlin and Atlantic Center co-founder Dana Cook – have documented over six hundred highly aggravated cases (multiple victims, child victims, or law enforcement victims) where juries declined to impose death sentences. Their study, Mitigation Works: Empirical Evidence of Highly Aggravated Cases Where the Death Penalty Was Rejected at Sentencing, will be published later this year in volume 51 of Hofstra Law Review.)

While the Parkland verdict took many by surprise, the United States Supreme Court’s denial of the Andre Thomas appeal was utterly in keeping with the Republican-rigged Court’s disdain for due process. Thomas, a profoundly mentally ill Black man who killed his white wife and two mixed-race children because he thought they were Jezebel, the anti-Christ, and an evil spirit, removed one of his eyes a few days after his arrest based on a biblical passage. Some years after receiving a death verdict from a Texas jury, he removed the other eye. But his obvious mental illness wasn’t all – it turned out three jurors who imposed the death sentence on him had explicitly expressed their hostility to interracial marriage in their jury questionnaires, an issue his incompetent lawyers did not even ask the jurors about. Yet the six member Republican majority, most of whom were selected based on their membership in the Federalist Society, were not even willing to consider the issue. Justice Sotomayor, dissenting with Justices Kagan and Jackson, and citing an earlier Court precedent, noted the failure of the majority: “it is ultimately the duty of the courts ‘to confront racial animus in the justice system.’ That responsibility requires courts, including this one, vigilantly to safeguard the fairness of criminal trials by ensuring that jurors do not harbor, or at the very least could put aside, racially biased sentiments.”

There are two lessons to be learned from the Thomas case as well. First, there appears to be no depth of inept lawyering, mental illness or racism that will prompt this Court to interfere with the machinery of death; and second, that the highest court in the country is moving further and further from how the majority of Americans feel about capital punishment.

And there is one final lesson we should learn from last week. After Trump administration appointments, it is clear that we cannot rely on our Supreme Court to protect us from the racism or poor lawyering that infects death penalty trials. The mantle falls to us to persuade our legislators and prosecutors that juries across the country have spoken, and that capital punishment is no longer on our agenda.

Five Decades After Furman

Fifty years ago today, the Supreme Court ended the death penalty in the United States. To some extent, the opinion in Furman v. Georgia simply put a period on a punishment that had already faded from public consciousness, as there hadn’t been a single execution in the entire country in the more than five years that had preceded the decision. Yet, as soon as the ink dried on Furman, nearly every legislature in the country, including Pennsylvania, rushed to rewrite its death penalty laws to comply with the new opinion and bring capital punishment back to life. And then, as if to prove that the death penalty really was an important weapon in the fight against crime, executions rose to a peak of 98 in 1999. 

That number, and the number of death sentences across the country, has been steadily declining since. Over the last three years fewer than 20 executions have taken place per year; Pennsylvania has not seen one this century. Death sentences have dropped as well, from a high of more than 300 per year to consistently less than 50 over the last eight years. One state after another – New Mexico, Illinois, Connecticut, Maryland, New Hampshire, Colorado, Virginia – has gotten rid of capital punishment.

Given this history, a skeptic might fairly suggest that the death penalty is cyclical in popularity, and that the lesson to learn from Furman is simply that states want the ultimate punishment available to them if necessary, and that different generations will determine necessity differently. The reality of capital punishment over the past two decades tells another story, however; a story that was anticipated by Justice Thurgood Marshall in the Furman opinion itself. He noted that the question of the constitutionality of capital punishment rested on “whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable. In other words, the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.”

Therein lies the rub, and why the popularity of the death penalty is very likely on a permanent decline. The “information presently available” was markedly different during the period after Furman came down in 1972. For starters, we had no idea how many mistakes we were making. The first DNA exoneration for a death sentenced prisoner didn’t occur until 1993. (That man, Kirk Bloodsworth, is now the Executive Director of Witness To Innocence, a non-profit based in Philadelphia). Since then, nearly 200 more death row exonerations have occurred, the most recent occurring in Delaware County of an innocent Black teenager given a death sentence by an all-white jury and executed in 1931. Other exonerations are not nearly as old, however. Kareem Johnson of Philadelphia went to death row in 2007 based on physical evidence of blood on a hat left at the scene of the crime; it wasn’t until 2015 that attorneys from the Federal Defender Association discovered that the blood was on a different hat entirely. 

The Pennsylvania Supreme Court concluded that such a mistake was “unimaginable,” which leads us to other information that was not “presently available” in the decade after Furman. In short, who made such an unimaginable mistake? Obviously, the trial attorneys did not go to the trouble of actually looking at the evidence against their client, nor did they review the DNA report, which clearly indicated that there was a second hat. Such blunders were virtually unheard of in the 1970s – stories of lawyers sleeping through trial, as in the Calvin Burdine case in Texas, or drinking a quart of vodka a night, as in the Georgia case of Robert Holsey, didn’t emerge until the 1990s and later. But our Supreme Court was not even referring to the defense attorneys when it pointed out unimaginable mistakes; instead, it questioned how the prosecution could so casually attempt to execute someone without even scrutinizing its own evidence. Fifty years ago, the public was not aware that prosecutors might intentionally hide evidence, as in the Pennsylvania case of Jay Smith, or sloppily overlook proof of innocence that was sitting in their own files, as in the Kareem Johnson case. And it is mistakes such as these, and our justifiable fear of a wrongful execution, that has driven the cost of capital punishment far higher than even the lengthiest incarceration.

On this 50th anniversary of the Furman decision, we should recognize and appreciate all we have since learned about criminal justice. The decline of the death penalty is no accident; rather, it is the result of the knowledge we have gained from past mistakes.

Julius Jones and David Cox

Many emotions raced across the country when news broke that Julius Jones had been commuted. Relief that he had not been executed, rage that the governor of Oklahoma had ordered Jones never to be released, and many shades in between. There were zoom sessions about healing and grief and non-violence; but what if none of those feelings quite captured how I felt? What if I was offended by the commutation – where did I go for that?

Before we get to my feelings, though, let’s make sure the record is clear. Julius Jones should never have been on death row in the first place – the virtually all-white jury, the alleged racism of a juror, and the significant questions about guilt were more than sufficient to make even believers in capital punishment question the appropriateness of a death sentence. Indeed, the idea that Oklahoma was even contemplating an execution after the botched execution of John Grant only weeks earlier might have been shocking to many, but not to those aware of the state’s history of horrifying disasters in the death chamber. Six years earlier the state had tried for 33 minutes to kill Clayton Lockett, until the execution had been called off by the former governor, who had been attending an Oklahoma Thunder basketball game at the time. That was, and is, how seriously Oklahoma takes capital punishment.

Many A-list celebrities, marshaled by Mr. Jones’s own family, spoke up for him, and rallied far more support than others with similar claims of innocence. Kim Kardashian warned of a possible “tragic miscarriage of justice,” and Kerry Washington advocated to her many followers: "Take action. Now is the time. #FreeJuliusJones." Athletes like Stephen Curry and his coach, Steve Kerr, called on people to vocalize their opposition to the execution: “Do it for Julius,” he begged. Baker Mayfield, a former Heisman Trophy winner from the University of Oklahoma and now the quarterback of the Cleveland Browns, called for God’s intervention to spare Mr. Jones, and then tweeted #GodIsGreat when his apparent prayers were answered. Indeed, the governor of Oklahoma had been said to be deep in prayer before partially following the vote of his Board of Pardons and Parole: while the Board recommended commutation with the possibility of parole, the governor decided against any future parole. Hence the anger felt by many at the bittersweet victory.

The day before Julius Jones was to be executed, Mississippi executed David Cox. You never heard of David Cox? He pled guilty to killing his wife, and had long wanted to be executed, telling his lawyers that the awful conditions on death row at Parchman had made his choice to be executed by the state much easier. His comments did not prompt a viral social media campaign to improve prison conditions in Mississippi, however.

Per the Clarion Ledger, vigils and protests around the state were planned ahead of the scheduled execution - one was being held outside the prison gates, and another had been expected at the state Capitol, “but no one was there. A couple protesters stood outside the governor's mansion.” A vigil at the University Baptist Church in Hattiesburg announced that its members would be praying not only for Cox, but for putting an end to the death penalty. "[The night of Mr. Cox’s execution] is going to be a tough night at the church for everybody," said its pastor. "We pray they will stop choosing violence."

Before the execution of Mr. Cox and Mr. Grant, this fall saw the execution of Willie B. Smith III in Alabama, Ernest Johnson in Missouri, and Rick Rhoades in Texas. You never heard of them either.

So, back to the beginning, when I was saying that I was offended. Why? Obviously not because of the fact of the Julius Jones commutation, a clearly merited decision even in a rabidly pro-death penalty state. And not because people, including celebrities, spoke up on his behalf. Rather, it’s the gnawing feeling that the justice was done because famous people spoke up; or, to be even more specific, that justice was done only when famous people spoke up and injustice was done when they didn’t. Such results promote an appropriate distrust of the criminal justice system and a sense of illegitimacy in our system of capital punishment; and of course they encourage vigilance. But it is deeply offensive to think that fairness can be achieved only when social media personalities demand it.

The Most Important Election Of Our Lives For Criminal Justice Reform

At the Atlantic Center for Capital Representation, we don’t endorse candidates. We do believe in facts, however; and we think voters should know them before they vote. My kids claim that I have said at least four times that “this is the most important election of our lives.” That sounds about right. Elections do matter, and in retrospect some matter more than others. We think the choice of Philadelphia District Attorney between Larry Krasner and Carlos Vega is the most important election for criminal justice reform in our lifetimes. We urge you to circulate this blog post widely for Philadelphia voters:

          George W. Ball, an Undersecretary of State in the 1960s, is best remembered as the single member of Kennedy’s administration against the escalation of the Vietnam War. He presciently concluded that our foreign policy of containment was outdated, and that South Vietnam could not be saved. He famously declared that “nostalgia was a seductive liar.” 

          Nostalgia will do that. In its grip we idealize the past, recalling the good and smoothing over the bad, comparing the harsh reality of today to the warm glow of yesteryear. Nostalgia warps our perceptions, and narrows our focus to our own experiences. Ask nostalgic white people about their memories of the late 50s and early 60s, and see how many of them mention separate water fountains.

          It behooves us to remember these effects when we contemplate who the next District Attorney of Philadelphia should be. The choice is a stark one: a reformer who came to the office from the other side of the aisle, and can be judged on his performance over the past four years (Larry Krasner), versus a former prosecutor (Carlos Vega) who spent thirty-five years in the office before being fired by Krasner in 2017. While the last few years are fresh in the voters’ minds, the history of criminal justice in the City of Brotherly Love has likely faded over time. Mr. Vega claims on his web page to have spent his years “protecting Philadelphians” and “standing up for marginalized communities.” Those assertions are hard to quantify. But his third claim - helping to overturn wrongful convictions – is borne of the criminal justice reform movement, and far easier to measure. A careful look at Mr. Vega’s record renders this claim absurd.

          The concept of wrongful convictions is not a new one. The phrase itself appeared in the London Morning Chronicle in 1826, and nearly 100 years later the legendary jurist Learned Hand, noting that the American judicial system had “always been haunted by the ghost of the innocent man convicted,” referred to the notion of wrongful conviction as an “unreal dream.” But overturning wrongful convictions is a relatively new concept, and one that all true criminal justice reformers now embrace in recognition of the many DNA exonerations. We need not go back any earlier than the 2016 case of Anthony Wright to know that Carlos Vega has utter disdain for the concept. 

          Anthony Wright had gone to prison for life after confessing to the 1991 rape and murder of an elderly woman named Louise Talley. It turned out there were a few problems with the conviction, however – first, when a DNA test was performed decades later, it was discovered that the sperm inside Ms. Talley was not Wright’s, but that of a small time criminal and crack addict who lived in an abandoned house nearby. In fact Wright’s DNA did not appear anywhere. Second, the detective who had taken the confession from Mr. Wright – a confession Wright always denied making – had taken the Fifth Amendment in a similar case he had investigated around the same time as the Wright case. Why would a detective claim the Fifth Amendment in a case he was investigating? That question had never troubled the old District Attorney’s Office. 

          As wrongful convictions go, then, this one was a beauty – someone else’s DNA and a highly questionable confession taken by a detective who had chosen to remain silent rather than defend his own work. But this was the nostalgic golden age of Philadelphia justice, and the district attorney’s office, under the leadership of the subsequently federally convicted Seth Williams, decided to try Mr. Wright again. And this time, in 2016, Mr. Vega was on the prosecution team. Not surprisingly, the jury returned a very quick Not Guilty verdict: the foreperson of the jury said, “The evidence was so compelling for Tony that there really could have been no other verdict.”

         For a prosecutor who claims to have spent his career fighting to overturn wrongful convictions, the Wright case is not a good one for the resume. Perhaps this is the reason he told The Intercept that his only participation in the case was calling civilian witnesses and crime scene personnel. “With respect to the rest of the case, I was not involved at all. It was not my case,” he said. This was an odd assertion for Mr. Vega to make, particularly since his name appeared over 900 times in the trial transcript. Odd and untrue. Mr. Vega actually called the detective who took Mr. Wright’s alleged confession to the stand, and then Vega testified in a civil deposition about the case. During that deposition he made two things clear: in his 35 years as a prosecutor he had never heard of a case where the police were suspected of fabricating or coercing a confession, or planted evidence; and that he would have gone ahead with the Wright trial even if he had known the confession had been fabricated by the police.

          Such opinions apparently weren’t shared by the city, however. Mr. Wright received a 9.85 million dollar payout from his civil suit for the almost 25 years he’d spent in prison, the largest wrongful-conviction settlement in Philadelphia history. When we think about going back to the “good old days” of Philadelphia’s criminal justice system, we might want to remember the bad old days as well – and what they cost our citizens, and ourselves.

Policing the Prosecutors

After years of looking the other way at police abuses large and small, the legal establishment has finally been made to face a truth well understood by communities of color and others who were simply paying attention: that for many years law enforcement has been short on law and very long on heavy-handed and violent enforcement. What made us suddenly recognize the problem? We had no choice – we could either accept the reality that was on our cell phones or become “murder deniers.” Our own eyes, watching something even more graphic than the Rodney King tape and even more shocking than the Ahmaud Arbery stalking and shooting, finally persuaded us that we should believe what we see. But if our own eyes have led us to the necessity of police accountability, why haven’t they led us to the same conclusion about prosecutor accountability?

Less than a month ago, the Pennsylvania Supreme Court, in the case of Commonwealth v. Kareem Johnson, barred Mr. Johnson’s retrial after he spent nine years on death row based on the prosecutor’s “unimaginable” mistake of reading a DNA report incorrectly – and there was a pretty compelling argument that the misreading wasn’t an accident. The Court found that the assistant district attorney acted with a “reckless disregard for consequences and for the very real possibility of harm stemming from the lack of thoroughness in preparing for a first-degree murder trial.” That’s a pretty “unimaginable” situation, and yet we can read about it with our own eyes. But the Johnson case is far from the worst. 

Walter Ogrod recently walked off death row after spending 23 years there, in part because handwritten notes found in the prosecutor’s file – notes that might crucially have staved off the injustice – were never turned over to his defense attorney. Of course, the law requires that this information (any evidence favorable to an accused relevant to his guilt or his punishment) must be provided to the defense; but what happens when it isn’t? If you’re lucky, you get a new trial; and if you’re really lucky, you get to go home after being near state execution for 23 years. There is no one standing at the prison gate giving you back your years. 

Now that we’ve finally initiated a conversation about police accountability, remedies being discussed include national databases for violent officers, firing violators and barring their rehiring, and of course prosecution of police in cases that merit it. A serious conversation about reshaping police departments to reflect more community involvement and less community occupation has emerged from the rubble of outrageous digital imagery. Is it time to start a similar dialogue about prosecutorial misconduct? 

When Larry Krasner became the Philadelphia District Attorney, he fired 31 assistants, a number completely in keeping with the percentages fired by some of his predecessors. He took over an office that had been previously run by a District Attorney who went on to the Pennsylvania Supreme Court and was reprimanded by the United States Supreme Court for acting as a prosecutor and a judge in the same case; followed by another who enjoyed the anachronistic nickname of the “Deadliest DA;” and finally a third, who went to prison. This was an office that had seen close to 100 death sentences reversed, an unseemly amount of them due to prosecutorial misconduct. In other words, the Ogrods and the Johnsons were just the tip of the iceberg. One might think that an attempt to change the culture of an office like that would be welcomed. Hardly.

Here’s some language from a previous ACCR blog: Local news characterized Krasner’s action as one of the most “shocking and drastic shakeups that anyone could recall.” “The purge was on full display,” said Dann Cuellar of Action News, while long-time assistant DA’s left the office with boxes in hand. Vernon Odom declared that Krasner had fired “hundreds of years of prosecutorial experience.” The Inquirer quoted unnamed sources who attributed the firings to vendettas or “run-ins with Krasner’s one-time peers in the defense bar” or his wife, then-Common Pleas Judge Lisa Rau. Even the venerable Jim Gardner joined the fray, noting that Krasner has a problem with mass incarceration but apparently no problem with “mass firings.” One ex-prosecutor claimed that Krasner had done lasting damage to the office: “They [the fired prosecutors] won their cases. They prevailed. They achieved justice for their victims. That’s what they did, they did their job.”

But a prosecutor’s job is no more to win his case than a police officer’s job is to rough up a perpetrator; and a prosecutor’s hiding evidence that puts someone on death row is not all that different from putting a knee to your neck for nine minutes. Berger v. United States, a Supreme Court case from 1935, made it clear that a prosecutor’s job is not to win a case, but “that justice shall be done.” So when is the conversation going to begin about policing prosecutorial misconduct? Do we actually need to see the hiding of the evidence on our cell phones, or might reading the cases and watching the prison gates belatedly open up finally be enough?  

Catching Up

It’s been too long since we weighed in on the state of affairs regarding capital punishment in Pennsylvania, and there is much to cover. Before we do that, however, it is necessary that we address a more urgent issue - the independence of criminal defense in the Commonwealth, an independence that suffered a huge blow in late February when two hard-working and dedicated friends of our community were unceremoniously fired from their positions as Defender and Deputy Defender of the Montgomery County Public Defender’s Office.

For years the Montco PD was a part-time agency in desperate need of an upgrade. Dean Beer and Keisha Hudson professionalized the office, turning it into a destination for attorneys willing to work hard for that least-appreciated constituency, poor people accused of criminal behavior. By all accounts and our own familiarity with their office, Beer and Hudson were doing an outstanding job. Their firing occurred shortly after they filed a brief in the Pennsylvania Supreme Court documenting injustices involving cash bail in Montgomery County, a filing that apparently upset the President Judge. Lawsuits alleging the impropriety of these dismissals have been filed (an ACCR staff member, acting in a private capacity as a resident of Montgomery County, is a plaintiff in one of the suits), and the last page has not yet been written in this saga. But the firings of these two outstanding public servants remind us all that the independence necessary for a vital Sixth Amendment can vanish at the pique of a President Judge.

Capital punishment continues to plod on in the Commonwealth, even as states such as Oregon (rewriting and greatly narrowing their death penalty statute) and Colorado (abolishing it altogether) have revisited the wisdom of executing its own citizens. For a moment in time, though, it appeared that Pennsylvania might follow the course of Washington and end capital punishment by a judicial ruling. But it was not to be: months after asking for briefing on the unconstitutionality of our death penalty statute, but only two weeks after hearing argument on the issue, the Pennsylvania Supreme Court wrote a short order suggesting that whatever thought they’d given to the issue had led them to conclude that all was well as far as capital punishment was concerned. This was a crushing blow for those of us who were hoping the Court might at least acknowledge the devastating lack of resources for indigent defendants or the failure of the Commonwealth to provide a statewide office for representation. 

In the meantime, the death penalty across the state continues to fail. Take, as an example, the Pittsburgh case of Cheron Shelton and Robert Thomas, who were charged with the murder of five people and an unborn child. For the most serious case the state has seen in years, the first trial judge (who subsequently recused himself) decided that he would not waste any money allowing the defense to properly investigate the possible death sentencing, choosing instead to wait until the jury decided on innocence or guilt. It was at this time that the Atlantic Center stepped in, recruited four nationally respected death penalty lawyers and mitigation specialists, and persuaded the judge that the ABA Guidelines for capital representation and countless United States Supreme Court cases required an appropriate and necessarily costly mitigation investigation. Several years later, when the case finally wound its way to trial, one of the defendants had his case dismissed for lack of evidence; the second defendant was acquitted. There is far more to the story, including significant claims of prosecutorial misconduct, than this space allows, but the results speak for themselves: in a case in which the Commonwealth wished to execute two men, it could not muster the evidence to even obtain a conviction. While we might expect more from prosecutors than such a casual approach to a capital prosecution, the case serves as a helpful reminder of how close we can get (and surely have gotten in the past) to the most profound mistake imaginable – the execution of an innocent man.

Which brings us to Walter Ogrod, a man who had been on Pennsylvania’s death row for decades and who everyone – the District Attorney, the defense attorneys, and the victim’s mother – now agrees has been wrongly convicted. The Philadelphia Conviction Integrity Unit, after a thorough and lengthy investigation, has concluded that Ogrod is “likely innocent,” but apparently one person has not agreed – Judge Shelley Robins New, a former long-time prosecutor in the same office that initially convicted Ogrod. According to The Intercept and journalist Tom Lowenstein, New worked alongside Judy Rubino, the attorney who prosecuted Ogrod and is now accused of misconduct leading to the wrongful conviction. New, asked to list the case for Ogrod’s release as quickly as possible, responded through her law clerk: “The courts and the public all have a deep interest in seeing the matter move forward. Even so, after considering her full calendar and the equally compelling interests of other defendants and civil litigants whose cases have long been scheduled, she finds that she is unable to set a date earlier than June 5, 2020.” Yes, those civil litigants must be attended to!!

But let’s end on some good news: last week Federal Judge John E. Jones III gave final approval to a deal struck between the ACLU and the Department of Corrections granting death row prisoners considerably more exercise time, contact visits with loved ones, and greater access to phones and prison jobs. The new agreement also drastically limits what was previously a routine shackling of inmates to showers and legal visits. The settlement is one more small step towards a recognition that we are all human, and deserve to be treated as such. In the words of the great organizer, Saul Alinsky: we will see it when we believe it. 

The Empire Strikes Back

During the 1980s and 1990s, the federal government made a concerted effort to harshly punish the sale of crack cocaine – the “crack epidemic” had swept through many cities, bringing with it an increase in violent crime, and legislatures took firm action to stem the tide of crack use. In 1986 the Congress overwhelmingly passed a law, happily signed by President Reagan (in conjunction with First Lady Nancy Reagan’s “Just Say No” program) that penalized crack cocaine at 100 times the severity of the same amount of powder cocaine. The Commonwealth of Pennsylvania took a similar approach, resulting in Philadelphia having the highest incarceration rate of any large jurisdiction in the country. It was literally decades later that judges, legislators, and the community at large perceived the racism inherent in a law that punished black crack users starkly worse than white powder users; and in the last ten years federal legislation was passed to reduce the disparity in the punishments while Philadelphia has succeeded in lowering its prison population. No one fixing the crack/powder inequality mentioned the complaint at the heart of the recent Inquirer article entitled DA Larry Krasner Gives Up Fight In More Death-Row Appeals, Stirring Concern From Courts, Families: that each new prosecutor might reverse the decisions made by the former prosecutor, thus leading to “chaos” in the court system. Indeed, when prior decisions are racist or out of step with modern thinking or just flatly unjust, the “chaos” in the court system comes from propping those decisions up, rather than making the necessary changes to address the injustice. District Attorney Krasner should be commended for his reevaluation of a failed capital punishment policy.

First a history lesson might be in order, since there seems to be a perception that we were living through a golden age of prosecutorial judgment before the current administration came along. Ron Castille was District Attorney for five years in the late 1980s to 1991; he then left to be a justice, and then chief justice, on the Pennsylvania Supreme Court. But three years ago, he was reprimanded by the United States Supreme Court in the Terry Williams case for judging a case in which he had authorized a capital prosecution: “Chief Justice Castille's significant, personal involvement in a critical decision in Williams's case gave rise to an unacceptable risk of actual bias. This risk so endangered the appearance of neutrality that his participation in the case ‘must be forbidden if the guarantee of due process is to be adequately implemented.’” As the Court noted, it was a prosecutor in Castille’s office who a Philadelphia judge found to have engaged in “multiple, intentional” acts of prosecutorial misconduct in a capital prosecution. Castille was followed by Lynne Abraham, famously labeled “The Deadliest DA” by the New York Timesfor her overly aggressive prosecution style that now seems utterly anachronistic. She was followed by Seth Williams, who now resides in a federal prison.

Were they outstanding prosecutors? It depends on what you mean. If the goal is to get convictions, they were quite good. If the goal is to get convictions lawfully, they weren’t very good at all. Well over 100 death sentences they obtained have been reversed, a significant number of them, like the Williamscase, for prosecutorial misconduct. There are consequences to this “win at any cost” theory of prosecution: victims get hauled back into court years after they are told a case is over, taxpayers spend unnecessary money covering the same ground over and over again, court dockets become clogged with repetitive litigation. And what was the return for the money wasted, the courts congested, and the victims retraumatized? A single mentally ill person who gave up all of his appeals was executed two decades ago. Does Krasner stand alone in his thinking that the death penalty isn’t working? Hardly. Death sentences are near a modern low, which is consistent with polling that shows the popularity of the death penalty near an all-time low as well. Between 2011-2017, 98.7% of Philadelphia cases in which the prosecution sought the death penalty resulted in a sentence less than death. Was Krasner wrong when he said that seeking a death sentence in Philadelphia was akin to “lighting money on fire?” Is it any wonder that the Chief Justice of the Pennsylvania Supreme Court describes the current state of our capital jurisprudence as “impaired?”

Our city is revisiting old criminal justice policies that were once set in stone. We are decarcerating our prisons, reducing cash bail, and releasing juveniles we once felt the need to imprison for life, all with a remarkably low rate of recidivism. In short, we shouldn’t be worried about the chaos that might ensue when a new criminal justice administration takes over and changes failed policies; rather, we should be worried when it doesn’t.

The Thoughtless Response To An Incomprehensible Crime

The president of the United States prides himself on his unpredictability. “I don’t want them to know what I’m thinking,” he likes to say. Leaving aside the assumption in his statement, the sentiment itself is particularly absurd, given recent coverage indicating that Russia, China and your aunt Sadie are apparently listening to his routine iPhone conversations. But his claim of unpredictability, like virtually everything else the president says, is an utter lie. He is as predictable as gravity.

When asked about the horrific mass murder at a Pittsburgh synagogue, in which four police officers were injured trying to stop the killer, the president struck a very different tone from the Jewish community’s plea for love, acceptance and healing. Instead, the president noted that “if they had protection inside, the results would have been far better.” In a case where the killer entered a place of worship with an AR-15 assault rifle and three handguns, the president declared that our gun laws had little to do with the shooting. Both responses are to be expected – it is hard to imagine any set of circumstances that would force him to stray from the party line of the gun manufacturer’s lobby. But even more predictable were the president’s words about Robert Bowers, the demented anti-Semitic killer:

When you have crimes like this, whether it’s one, or another one on another group, we have to bring back the death penalty… They have to pay the ultimate price. They can’t do this. They can’t do this to our country. We must draw a line in the sand and say, ‘Never again.’ When people do this, they should get the death penalty. Anybody that does a thing like this to innocent people that are in temple or in church ― we’ve had so many incidents with churches ― they should be suffering the ultimate price.

As a point of comparison, it is impossible not to think of Dylann Roof and the equally incomprehensible murderous rampage in a Charleston church in 2015. And it must be noted that the Obama Justice Department ultimately sought and obtained a death sentence against Roof. But note President Obama’s words after that crime: 

The FBI is now on the scene with local police, and more of the bureau's best are on their way to join them. The attorney general has announced plans for the FBI to open a hate crime investigation. We understand that the suspect is in custody, and I'll let the best of law enforcement do its work to make sure that justice is served. Until the investigation is complete, I'm necessarily constrained in terms of talking about the details of the case. But I don't need to be constrained about the emotions that tragedies like this raise…We don't have all the facts, but we do know that once again, innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hand on a gun…Now is the time for mourning and for healing. But let's be clear. At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries. It doesn't happen in other places with this kind of frequency…And it is in our power to do something about it…At some point, it's going to be important for the American people to come to grips with it and for us to be able to shift how we think about the issue of gun violence collectively.

It’s tempting to just stop writing at this point, to let the blustering conclusion that a death sentence is the answer compare with the reasoned observation that gun violence must be met by legislation, not execution. To let a knee-jerk response that the cure for crime is punishment compare with the thoughtful reflection that our country has a problem with mass violence that other countries do not. To let one president’s bullying call for a specific punishment compare with another’s calm understanding that justice is a process, not a demand. 

Yes, let’s just stop writing at this point. Their words speak for themselves.

Case Closed

Try this quiz. What do the Unabomber, The Green River Killer, Jared Loughner, and The Olympic Park Bomber have in common, other than the fact that they killed numerous people? Each was offered a plea bargain of life without the possibility of parole by the prosecution, accepted the offer, and disappeared from public view. Those agreements saved the taxpayers millions of dollars in perpetual and virtually endless litigation costs; and perhaps most importantly, each settlement guaranteed the community’s safety by putting the killer in prison for the rest of his life. Are these examples too far from home? Then consider the case of Solomon Montgomery, who killed 16 year veteran police officer Gary Skerski in Philadelphia in 2006 and pled guilty for a life sentence offered by none other than Lynne Abraham, labeled “The Deadliest DA” in a famous media profile.

None of those results prompted an outcry. Yet, when current District Attorney Larry Krasner offered pleas of life without the possibility of parole to Ramone Williams and Carlton Hipps in the killing of officer Robert Wilson – pleas that would guarantee their incarceration for the rest of their lives while saving the taxpayers millions of dollars in endless and virtually perpetual litigation – the uproar was seismic. How dare Krasner not seek the death penalty? 

The Fraternal Order of Police, egged on by ex-assistant district attorneys fired by Krasner, declared that “people were walking on the grave of Robert Wilson.” President John McNesbydeclared the plea offer “despicable.” Even former mayor Michael Nutter weighed in, decrying the “decision not to fully prosecute the 2 killers.” But before we decide whether guilty pleas to a lifetime of incarceration satisfy the definition of a full prosecution, we should consider some facts about life sentences and death sentences, because misinformation about both alternatives is rampant.

The bipartisan study on capital punishment in Pennsylvania, released on the same day as the guilty pleas for Hipps and Williams, addresses the public’s distorted sense of life sentences. In the study, a Rowan University professor notes that jurors believe such a sentence means release after 25 years, which she describes as “underestimating the reality.” The reality, of course, is that for the more than 5000 Pennsylvania inmates currently serving life sentences, there is no parole at 25 years or ever.  

On the other hand, capital punishment in Pennsylvania is more an unreality. While life sentences actually mean what they say, death sentences in Pennsylvania have no connection to actual executions. Indeed, not only has the Commonwealth not executed a single person this century, but the last involuntary execution (someone who opposed the death sentence on appeal) was 56 years ago. The study did note a “practical reality,” however: “more than 97% of post-conviction reversals disposing of death sentences in Pennsylvania since 1978 have subsequently resulted in a sentence of life imprisonment or less.” For the non-lawyers out there, this means that virtually every death sentence is eventually overturned, requiring victims to be hauled back into court years after they believed the matter had ended, only to learn that the death sentence had become something different. 

For taxpayers, capital punishment means all that and more. Much more, in fact. Some studies indicate that a death verdict is ten to twenty times more expensive than a life sentence; not a single study shows it to be cheaper. But once again people are badly misinformed by those pushing a pro-death penalty agenda, as 70% of the public believes the death penalty saves the taxpayers money. 

The other side of the coin is the life sentence imposed pursuant to a guilty plea. Such pleas are almost impossible to reverse, and take up a morning of the court’s time rather than months of trials and years of appeals. Victims never have to relive the crime in a future courtroom, defendants disappear from public view, and taxpayers are saved millions of dollars.  

Even with all of the misinformation in the public’s mind, support for the death penalty is declining. A 2015 poll indicated that the majority of Pennsylvanians preferred a life sentence to a death sentence for those convicted of murder. With the exception of New Hampshire, the rest of the northeast has ended capital punishment. And New Hampshire, whose legislature recently voted to abolish the death penalty only to have the bill vetoed by its governor, does not actually have a death row at all, as there is only one man under sentence of death there.  

Given these unalterable facts, it is reasonable to wonder why there is such an outcry to seek a punishment that has not been carried out this century. The community is safe and the case is closed; and surely the money we’ve saved might be better spent on schools or streets or law enforcement. The death penalty is a dinosaur, and the sooner we recognize it the sooner we will see real criminal justice reform.   

The Sky Isn't Falling

Based on recent media coverage, and a shocking endorsement of Beth Grossman by the Philadelphia Inquirer, we can safely assume that many Philadelphians left their homes this morning looking up at the clouds in fear. Surely the sky was falling after Larry Krasner’s decisive win in the race for District Attorney of Philadelphia. After all, hadn’t things been going swimmingly all these years? Why in the world would we want to upset the apple cart by electing a bomb-throwing radical like Krasner, when there was a perfectly good candidate like Beth Grossman to vote for?

So let’s take these issues one at a time. It helps to remember that Chicken Little believed disaster to be imminent because an acorn fell on his head; those in a panic over this election are suffering from a similar hysteria. Krasner’s positions – ending the death penalty, working to eliminate cash bail, opposing mass incarceration through fair rather than maximum sentences – are hardly sky-falling. Death sentences are at an all-time low, cash bail has been shown to unnecessarily incarcerate the indigent at taxpayer expense, and even conservatives are now re-examining the criminal justice policies that have led to mass incarceration. In short, Krasner’s election isn’t even a falling acorn.

Have things been going so well in the Philadelphia justice system that we should have wished to keep the status quo? Hardly. Philadelphia has seen videotapes of leading prosecutors teaching young assistants how to keep poor blacks off juries, dozens of convictions reversed based on prosecutorial misconduct of all stripes, and its most recent District Attorney sent to prison. Indeed, Philadelphia stood out like a sore thumb in the Northeast, which had almost entirely rejected the death penalty and began instituting real justice reforms years before Krasner even decided to run. Keeping the status quo would have been the equivalent of selecting a district attorney by standing still while everyone else took a step backwards. We are better than that, and Krasner is a giant stride forward from the career prosecutors who have occupied that office in the past.

Finally, was Beth Grossman the better choice, as the Fraternal Order of Police advocated? Certainly she had years of experience, having worked under the regressive Lynne Abraham and the convicted Seth Williams. She ran the civil forfeiture unit, a controversial wing of the office that was routinely accused of seizing assets from people who were not complicit in any way with crimes.

The main complaint leveled against Larry Krasner, a Stanford law graduate with years of experience fighting police abuse and other civil rights violations, is that he has no experience being a prosecutor. Given the history of Philadelphia’s justice system, some fresh eyes seem very welcome right now.  

Political Suicide... Not

Yesterday, in what can only be described as a sea change election, Lawrence Krasner won the Democratic primary for the next district attorney in Philadelphia. While his victory in November is far from assured, he will surely be the favorite, and with continued vigilance should take over as the top law enforcement official in the city in January.

No doubt there will be a tendency to view this election as a fluke, an off-year, low turnout (but not that low!) affair fueled by the outrages of Trump and company. And indeed it is reasonable to think that the stars aligned on May 16th. But you would be wrong to see Krasner’s emergence as some lucky confluence of factors beyond his control. This result was a long time coming.

The Inquirer quoted Krasner in post-election jubilation joking that his position on capital punishment had been described as “political suicide.” While some might have felt this way, such thinking is the equivalent of Trump’s claim that coal will once again emerge as our leading source of energy. Forgive the mashing of two great song lyrics into one sentence, but the times they are a changing, and we won’t get fooled again.

Krasner’s victory is no more anachronistic than Governor Wolf’s death penalty moratorium. Both flowed naturally from the knowledge – long hidden, then long denied – that our justice system was not working properly. Krasner properly noted four important facts: Philadelphia leads the country in death penalty reversals, resulting in terrible unfairness to victim and inmate families alike; the entirety of the northeastern part of the United States has abandoned capital punishment (New Hampshire, the last outlier, has a single person on its death row); Pennsylvania has not executed anyone against his will since 1962; and, finally, all of these capital prosecutions and reversals cost the taxpayers an incredible amount of money. In short, it would have been political suicide to continue supporting this error-plagued and wasteful system.

As the late great Justice Brennan cogently pointed out in dissent when the majority brushed aside profound evidence of racism, we have a fear of “too much justice.” If we acknowledge race discrimination permeates capital cases, then how do we deny that it permeates all criminal cases? If we concede that indigent defense is badly underfunded, how do we find the money that a fair justice system needs? If we recognize that our detectives are coercing confessions that may prove false and identifications that might be erroneous, how do we have confidence in our results?

There are no easy solutions to these problems, but the first step, like any intervention, is understanding that these are problems. This is what happened yesterday, and Krasner was the emissary. His message is everyone’s message: We’re not going to keep pouring money down the bottomless black hole of capital punishment. We’re not going to continue the absurdly high incarceration rate of communities of color. We’re not going to seek the highest charge and maximum sentence simply because we can. We’re not going to waste huge amounts of money so that self-aggrandizing politicians can promote themselves to higher office. In short, we’re not going to be fooled again.

The Unethical Compass

When the indictment of Philadelphia District Attorney Seth Williams came, it was worse than most of us expected. Sure, there were $200 ties, $500 meals, lots of free flights and cash, and even a pre-owned 1997 Jaguar convertible. There was some seriously bad behavior as well, such as his stealing money from his own mother in a nursing home and then spending it all on himself. But from the previous news reports, the stakes seemed petty – family vacations and roof repairs and sporting club dues. And the crime itself, if it even was a crime, appeared to involve the friendship of sycophantic businessmen and restauranteurs who wanted nothing more than to be close to the rising political superstar. This was naïve in the extreme.

Instead, the indictment is nothing more, or less, than an old-fashioned case fixing scandal, eliciting predictable condemnation from the Mayor of Philadelphia and the Chancellor of the city’s Bar Association. “I’m merely a thankful beggar,” Williams said of himself; but the indictment shows that he’s not afraid to express his gratitude in a profoundly and brazenly illegal way.

Political scandals are nothing new to Philadelphia, of course; this space tends not to cover them, even when judges go to prison or police are captured acting improperly on videotape. And this scandal, about restaurants in California and vacations to Punta Cana, appears to have nothing to do with capital punishment. But the FBI agent announcing the charges against Williams put his finger on the relevance of this particular outrage: “The immense authority vested to law enforcement has to be kept in check, and that requires decision makers and leaders with a steady ethical compass.”

In every way, the death penalty is about decisions. The most obvious is the choice jurors make between life and death, a decision documented in books and films and songs. For those of us who work in the field, though, the more important decision is the one made by the district attorney to seek the ultimate punishment in the first place. It is this choice that starts what Justice Blackmun famously called “the machinery of death,” and a prosecutor without a steady ethical compass should be the last one to make such a choice. It is almost too obvious to point out, but a district attorney who owes favors to the powerful and cuts deals with his cronies will have to balance the books somewhere else, and that somewhere else will always be on the backs of the poor and the powerless.

This is not to castigate Seth Williams. He will suffer enough ignominy to pay the price for his misdeeds, and no one reading this blog would trade places with him. In addition, we are defenders, and defenders don’t gloat about indictments. Our point is a different one. The death penalty is a human endeavor, and human beings come in all shapes and sizes. Seth Williams is not the first prosecutor to sell an elected office for financial gain, nor will he be the last to brag about how tough he is on criminals while being one himself. As long as the machinery of death is run by innately frail human beings, it will yield an end product that must eventually bring shame to us all.

Wake-Up Call

At 6:19 a.m. Saturday morning ACCR staff got the call: 38 years, 3 months and 4 days after the 14-year-old Ricky Olds went to prison for buying a bag of potato chips with the wrong crowd, he was going home a free man.  If you don’t believe the part about the potato chips, read VICE: The 14-Year-Old Who Grew Up In Prison. It is reasonable to wonder how this could have happened, but honestly it’s nothing you haven’t heard before. Just a lot more of it.

It’s always difficult to know where to start a story of unimaginable injustice. Maybe, in this case, racism. How else do you explain charging Ricky Olds – a skinny little black kid who bought a bag of chips in a Pittsburgh quickie mart and ran away when he saw a gun – with murder? Was it because his older friend killed a white man? Or because his lawyer, all of the prosecutors, and the judge were white? Was it because his jury was all white? Was it because it never occurred to any of them that a 14-year-old black kid might not have done anything wrong? It’s impossible to go back in time, and even if we could we wouldn’t get an honest answer. We can see through a little window, however. The judge didn’t want to give Ricky a life sentence, but he couldn’t persuade the prosecutor to be reasonable. The prosecutor thought it was all just a lot of whining: “He’ll be out in 17 years, maybe less,” Robert Colville said. Wrong and wrong.

But that was ancient history, and we like to think that we’re far more fair and just in 2017 than we were in 1979 (though why we would like to think this after November 8th is a mystery). If only it were true. In 2016 the prosecutor insisted on a 20 year to life sentence for Ricky, which was ridiculous given Ricky’s outstanding prison adjustment and his ludicrously minimal involvement in the crime – under what plausible theory did a guy like him require supervision by the Commonwealth for the rest of his life? But he had already served 37 years by then, so at least he would be getting out of prison. Well, not so fast. The prosecutor was only asking for 20 years, but they were insisting that the parole board release him – so they objected to the judge’s granting of bail. By doing so, the DA’s office made a man who never should have gone to prison for a minute serve an extra three months at State Correctional Institute at Somerset. The Commonwealth’s objection to bail for Ricky Olds infuriated us at ACCR, and we were very outspoken about the knee-jerk objections by the prosecution. But the Pittsburgh newspapers used its discretion to keep the specific prosecutors out of the public’s eye. We have no reason to do the same.

Assistant District Attorney Ron Wabby, just minutes before filing an appeal to keep Olds in prison and only minutes after conceding that Olds surely would be paroled when the parole board got around to it, explained to ACCR staff that he was just “following orders from the top man.” The top man? Stephen Zappala, the DA in Pittsburgh who recently lost the race for attorney general of Pennsylvania, is the son of a former Pennsylvania Supreme Court justice. Wabby and Zappala should be ashamed of themselves, but again, the Pittsburgh newspapers have condemned their decisions but not by name.

Ricky Olds is out of prison, and we should all be glad about that. And we are. But you’ll forgive us for not celebrating. His case, from beginning to end, has been an insult to justice. It would be one thing if we could look back and say “how could they,” and believe with some confidence that we are happy we’ve moved on from 1979. But Zappala and Wabby made two very concrete decisions at the end of 2016 – that the “rules” require an innocent kid  to spend the rest of his life on state parole, and that his continued incarceration after 37 years was necessary to uphold the “proper use of bail.” In other words, their cowardly fear of using the discretion the electorate gave them is no different from the behavior of their counterparts all those years earlier.

We have not come far at all. When someone steps forward and says that we made a mistake all those years ago, that will be grounds for celebration. If we survive the shock, that is.

Jeff Sessions For Dogcatcher

When my father used to see egregiously unqualified or morally disqualified candidates running for office, he liked to say that he wouldn’t vote for that person for dogcatcher. Nowadays, though, taking care of abandoned animals has far more cachet than in my father’s time, so I’m going to disagree with him – I would in fact vote for Jeff Sessions for dogcatcher. Anything to keep him from being the Attorney General of the United States.

Sessions came to national attention more than a year ago when he was the first, and practically only, senator to jump on the Trump bandwagon; now he is one of the three recently announced Trump nominees who appeal to the Make Believe Right.[1] His background is well documented, and begins in the office he may now run – he was an assistant U.S. Attorney in Alabama beginning in 1975, and was appointed by Reagan as the U.S. Attorney for the Southern District of Alabama in 1981. In the mid-80’s he prosecuted three African Americans for voter fraud, a decision that prompted cries of selective prosecution. They were quickly acquitted, but even years later Sessions continues to stand by his decision to prosecute. In other words, he was far ahead of his peers in creating the illusion of voter fraud to suppress minority voting. The acquittal did not hinder Sessions’ political ascendance, however; shortly thereafter, Reagan nominated him to be a federal judge.

His nomination hearing proved illuminating. A lawyer from the Department of Justice testified that he claimed the ACLU and NAACP were “communist-inspired” and “un-American,” and “forced civil rights down the throats of people;” a black assistant U.S. Attorney claimed that Sessions referred to him as “boy,” and told him to “be careful what you say to white folks.” His attempt to become a federal judge was voted down in committee. Rejected for his racist views, Sessions turned to a community he knew wouldn’t mind – the state of Alabama. In 1994 he was elected Attorney General of the state, and in 1996 became their junior senator. As a fellow senator, he is virtually assured enough votes in that chamber to be confirmed as Attorney General.

The consequences of this nomination are great, particularly for those most likely to be reading this blog. We must anticipate a further attempt to limit voting rights, now without a watchdog Department of Justice to crack down on obvious violations. Undocumented immigrants, a particular scapegoat for the President-elect, will be treated harshly by his nominee, who was quoted saying that building a wall between us and Mexico was “biblical.” (In this regard, he is correct – such ideas have failed since Biblical times). And Sessions, one of nine senators to oppose the ban on torture in 2005, is likely to be a regressive force in almost all criminal justice issues, very much including the death penalty. Elections do in fact matter.

Would Sessions make a good dogcatcher? Maybe not. But wouldn’t it be great to give him a nice long chance to succeed at it?

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[1] ACCR will never refer to these folks as representative of the “alt-right,” an absurd media concoction suggesting that their way of thinking is simply another alternative for us to consider, rather than the feverish, hate-inspired, imaginary nonsense that it actually is.

Post-Election Blues

There’s no way to sugarcoat what happened yesterday, and we won’t try. Indeed, in our capital punishment world the news was even worse than might appear already obvious – the attempt to repeal the death penalty failed in California, and the plan to speed it up passed; the attempt to reinstate it passed in Nebraska; and in Oklahoma a ballot initiative passed insuring that the state can carry out an execution some other way if it can’t find the drugs necessary to do it by poisoning. (But note that the news wasn’t entirely awful. Pro-moratorium Governors in civilized Oregon and Washington won.)

ACCR staff was working at a polling place all day. Many conversations were had, some of them predictably depressing. In one it was pointed out that Trump’s claim about skyrocketing crime rates was factually wrong, that according to the FBI and the DOJ violent crime rates were near all-time lows. “Those are your facts, not mine,” the Trump supporter responded. This conversation is particularly consistent with the recent Trump claim that the Central Park Five were guilty, irrespective of their exonerations through DNA. The appointment of Rudy Giuliani to a position at the head of the Department of Justice makes the thought of justice seem distant.

A post-factual and post-scientific world is not an easy place for a rational person to live in. But as John Adams said: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” Facts will prevail – we have had fewer death sentences and executions than at any time in recent memory, and no baseball hats with stupid slogans will change that fact. A friend of ACCR just texted that “we have bottomed out.” But if you’ve read your college share of Sartre, Camus, and Beckett, you’ll know that this is good news – we now have only one direction to go.

And speaking of Samuel Beckett, you might even recall the last lines of The Unnamable: “I can’t go on. I’ll go on.”