Atlantic Center for Capital Representation


View from the Atlantic Center

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.

Akeem Davis
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.

Akeem Davis
A Quiet Giant Passes

Stuart Schuman, who spent decades as the heart and soul of the Philadelphia Defender Association, left us earlier this week. If you somehow managed to spend time under Stu’s tutelage and you didn’t rethink your entire approach to being a public defender, it was likely you had chosen the wrong career path. He was that kind of a mentor.

I will never forget my first contact with him. The Defender had a very involved training program, and Stu got to speak to all the new lawyers for an hour. For impact, try to imagine Barack Obama’s speech at the 2004 Democratic convention, but in a very small room. “Every courtroom, every list, every day, every file, every client,” he intoned. By the time he was done, every young public defender was prepared to pull an all-nighter to defend the retail thief caught on video stealing a scarf. Was he homeless? On drugs? Did he have a detainer? If so, had you looked at that case to find out why he was in custody? Had you gone to that judge and asked him to lift the detainer? If the judge had ordered the detainer lifted, had you made sure the clerk had sent a short certificate to the record room? Had you called the jail to make sure they got it? Had you called a few days later to be sure the client got out? And on and on. This was how you represented a poor person accused of a crime – he was lucky to have you. In fact, he couldn’t get better representation if he was a millionaire. All of this in the first hour you met Stu Schuman.

The best lawyers in the Defender Association spent hours in Stu’s office; but you didn’t dare enter unprepared. And even if you were as prepared as you thought humanly possible, you left having more to do. While you were there, you saw the volume of work he handled every day, and the chicken-scratch handwritten notes he left on countless files advising lawyers of the additional work that should be done. More than once I advised Stu that if he simply cleaned up his office – try to imagine a flash flood of yellow files entering your work space every day – he might be a little less stressed out by the job. Those suggestions were rejected – I know exactly where everything is, he would say. And this was true.

But while everyone knew Stu as the leader of the Municipal Court unit, very few knew his dedication to abolishing the death penalty. For many years - before the Defender Homicide Unit came into being, before the federal habeas unit, before any statewide post-conviction units – Stu was the unofficial head of the movement to reform capital punishment defense in Pennsylvania. There was no money, there was no organization, there was no public support, but Stu Schuman was undeterred. There was a principle at stake, and that principle was the undeniable dignity of every human being. Whether you were facing a bad check charge or a homicide charge, you deserved the best representation money couldn’t buy.

Now he is gone, and no one who knew him expects there to be another. Fortunately, he leaves behind many lawyers and social workers and investigators who listened to his every word.

Akeem Davis
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.   

Akeem Davis
The Sky Isn't Falling, Part Two!


On District Attorney Larry Krasner’s fourth day in office, he fired 31 prosecutors in what the media characterized 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 even his wife, 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.”

Richard Sax, a now retired long-time prosecutor (who the ACCR staff knows personally), has over the past ten months or so made himself the leader of the Krasner resistance. Sax claimed that the firings were “personal and vindictive,” and would cause lasting damage to the office: “They won their cases. They prevailed. They achieved justice for their victims. That’s what they did, they did their job.”

Sax’s cataloguing of his former associates’ qualities is both shocking and revealing: in his view, a prosecutor’s duty (his job!) is to win cases, to do justice not for the community, but for the victim. Fortunately the law says otherwise, as best articulated in the United States Supreme Court case Berger v. United States 82 years ago. “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” It is likely that Sax read Berger in law school, but apparently the lesson didn’t sink in: a prosecutor’s job is not to win, nor is it to represent the victim; rather, her job is the hardest one there is. To do justice.

Given the reaction of the media and select former prosecutors, a stranger might think that Philadelphia has just lived through a golden age of criminal justice, and that losing 10% of the staff (Rendell fired 25% of his staff when he became DA) is the legal equivalent of decimating the 1927 Yankees. Such is not the case, of course. The last DA is now in prison, the one before him a national embarrassment for her overly aggressive prosecution style that now seems utterly anachronistic. Almost 100 death sentences have been reversed, many for prosecutorial misconduct.

The implication of the media overreaction is that Krasner is intentionally weakening his office, as if he were pro-crime and pro-criminal. This is a canard spread by the very people responsible for overcrowding our prisons, excessively seeking the death penalty, and winning cases at any cost. The fairer conclusion is that Krasner has not only read Berger v. United States, but has understood it as well. Once again, allegations of a falling sky are unfounded. 

Akeem Davis
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.  

Akeem Davis
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.

Akeem Davis
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.

Akeem Davis
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.

Akeem Davis
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?

[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.

Akeem Davis
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.”

Akeem DavisComment
It's Always Christmas in the DA's Office

We’ve been feeling a little slighted at ACCR these past few days. It being summer and vacation time, we took a few days off – but for some reason we can’t fathom, none of our friends stepped forward to pay for our flights. Not only that, we’ve been footing the bill for Eagles and Sixers and Phillies tickets – why aren’t our supporters offering us free seats? When our roof leaks, we have to pay to have it repaired ourselves! And then, of course, there’s the cash – why aren’t people walking up to us to hand us some hard currency, for god’s sake??

But Seth Williams, the top prosecutor in Philadelphia, doesn’t have these problems. He’s been taking free trips with free lodging, getting his roof fixed “on the house” (rather than the $45,000 it costs non-District Attorneys), standing on the sidelines of sporting events, and getting gifts that are the color of money. If he forgot to tell anyone about it, “he wasn’t paying attention,” his lawyer said. Well, a leaky roof can really be a distraction.

Under the “anything’s possible” column, maybe Williams is just an extraordinarily terrific fellow, and when he goes online to take a flight, an alert goes out to his buddies to make sure he doesn’t actually have to pay for the trip himself! Indeed, his security detail, who surely make less than his $175,000 salary, gave him $800 in cash for Christmas. But while ACCR believes more than most in the presumption that one is innocent until proven guilty, we also have to acknowledge another explanation: the people providing all this largess expect something in return. Two of the main gift-givers, in fact, were defense attorneys handling cases prosecuted by Williams’ office, and one became a judge subsequent to Williams’ endorsement. The Eagles, who apparently like to provide free sideline passes to important Philadelphia officials, were fortunate enough not to have two of its star players prosecuted after a DA investigation.

Nor is it really plausible that Mr. Williams wasn’t paying attention. Not too long ago, his office successfully prosecuted five state legislators and local officials for taking gifts much smaller than those Mr. Williams has himself admitted to receiving. Certainly an elected official, no less the top prosecutor in Philadelphia, is acutely aware of the ethical and legal standards to which he must be held.

But what does all this have to do with the death penalty? We think a lot. For starters, Williams has bucked the national trend to seek the ultimate punishment infrequently – while Philadelphia is surely pursuing the death penalty less often than it used to, it still does so more than virtually every other major city, even though no death sentence has been returned in more than three years. Perhaps more importantly, Williams continues to ignore the very real regional shift away from capital punishment – every state in the Northeast except New Hampshire (which has one person on its death row) has now done away with it. Of course, it is still the law of Pennsylvania that a District Attorney can attempt to impose a death sentence, even though Governor Wolf has rightly suspended executions pending a full evaluation of an obviously flawed system. But if capital punishment is sought, we would at the very least hope that the decision to do so was being made by a prosecutor following the most rigorous ethical and legal principles. Is there any question that Mr. Williams’ behavior has fallen well beneath such standards?

Akeem DavisComment
The Republican Platform

We know we’re not the only ones who feel guilty for secretly hoping that Donald J. Trump got the Republican nomination. After all, who could have imagined that he might actually win? It wasn’t the racism and misogyny and Muslim-bashing that we thought might derail his candidacy – while he was more obvious about it than his compadres, he was hardly more sincere. Rather, we assumed he was just too buffoonish to be taken seriously, what with his moronic baseball hat, insipid slogans, and seeming inability to complete a sentence without repeating it again, to emphasize the profoundly middle-schoolish nature of his thought. Even in our feverish imaginations, we did not see this coming.

We know we’re not the only ones who hate the idea that the Republicans have co-opted the word “conservative” – have we become so academically illiterate, or the Republicans so good at stealing language, that we’ve forgotten the meaning of the word “conservative?” Is denial of global warming conservative? Or this, from our potential future Vice President, Mike Pence – “Time for a quick reality check. Despite the hysteria from the political class and the media, smoking doesn’t kill.” Or this from Ted Cruz at the RNC – “We [the GOP] passed the Civil Rights Act, and fought to eliminate Jim Crow laws.” Unless conservatism now means ignoring facts, debunking science, and rewriting history, none of the above has anything to do with the meaning of the word conservative. Indeed, it is hard not to recall the great Helen Hayes line from Anastasia: “Truth serves only a world that lives by it.”

Which brings us to the capital punishment platform of the Republican party: “The constitutionality of the death penalty is firmly settled by its explicit mention in the Fifth Amendment. With the murder rate soaring in our great cities, we condemn the Supreme Court’s erosion of the right of the people to enact capital punishment in their states.” Where to begin?

Well, for starters, while the Fifth Amendment mentions capital punishment, it certainly does not endorse it as a timeless penalty beyond future scrutiny. For 70 years our courts have assessed the constitutionality of punishment by the “evolving standards of decency that mark the progress of a maturing society,” rather than by the opinions of the Framers, who viewed blacks as three-fifths of a person and women as unfit to vote. But why should the Republicans worry about obscuring the law, when they can simply lie about the facts? Murder rates are not “soaring” – of the 63 jurisdictions surveyed by the Major Cities Chiefs Association in May 2016, 32 showed an increase in homicides, while 27 showed a decrease and four remained the same in a first quarter comparison between 2016 and 2015. This is more of a little bump in the road than a major trend. But even these statistics can be very misleading.

Here are some facts that cannot be controverted. Murder rates across the country are as low as they’ve been in decades; and these rates are occurring at the same time executions and death sentences have plummeted. While no honest statistician would draw the conclusion that the lack of a viable death penalty has caused such declines, only a perniciously dishonest one would advocate capital punishment as a cure for the nonexistent problem of soaring homicide rates.

Finally, the GOP has condemned the Supreme Court’s “erosion of the right of the people to enact capital punishment in their states.” If saying it, or writing it in a platform, only made it so! There’s nothing – other than the good sense of legislatures who think money can be better spent on schools or roads or drug treatment facilities than on a mostly imaginary punishment fraught with error – stopping states from enacting death penalty statutes.

The trend among the states, of course, is in the opposite direction. And regardless of the code words and dog whistles used by Trump and the RNC, our country’s inclination is against racism, misogyny and Muslim-bashing as well. There may be the occasional electoral blip, but this sort of hatred can never prevail for long. Indeed, many true conservatives have rejected the vitriol, just as they have come to understand capital punishment as an anachronistic throw-back to an era long gone.

Now if only we can say the same thing about morons with orange hair wearing really stupid hats.

Akeem Davis
Let's Pay Attention

Tuesday is a pretty big day for Democrats in Pennsylvania: Hillary or Bernie? Sestak or McGinty or the very cool but lesser known John Fetterman? And, of course, that critical race for Attorney General. Wait, you don’t know about that critical race for Attorney General? Allow us to provide you a little information.

ACCR doesn’t endorse candidates (honestly, do you think we need more enemies than we already have?). We do, however, believe that voters should be informed consumers when entering the booth. And since Kathleen Kane has decided to end her biblical reign (in terms of calamitous, not miraculous, events), this election is particularly important in reestablishing a sense of legal dignity in our state. Here are a few facts about the three running in the Democratic primary, Stephen Zappala, John Morganelli, and Josh Shapiro.

Zappala is the long time District Attorney of Pittsburgh and the son of a former Chief Justice of Pennsylvania’s Supreme Court. When asked his opinion about the death penalty, he bravely noted that it must be applied “in a thoughtful way.” And, in truth, for most of Mr. Zappala’s tenure as District Attorney, his office sought capital punishment more selectively than the rest of the state, and far less than Philadelphia. But then the worst thing that can happen to a prosecutor happened to Mr. Zappala – he got ambitious. In the years leading up to his decision to run for Attorney General, Pittsburgh has seen a huge uptick in death penalty prosecutions, while the rest of the country has moved in the opposite direction. Would Mr. Zappala be the first politician trying to climb higher on the backs of poor people accused of serious crimes? Hardly.

Then there is Mr. Morganelli. Of the three candidates, he is the only actual trial prosecutor; and in fact he has personally put a number of men on death row. He is a staunch believer in the death penalty, but he has a casual relationship with the truth when he discusses this issue. “We have federal judges who constantly block these executions. It has nothing to do with the guilt or innocence of the defendant. It is because the federal judges are philosophically opposed to the death penalty,” Morganelli said. The reality, of course, is that Pennsylvania state judges have granted relief in far more capital cases than Pennsylvania federal judges. While the possibility of executing an innocent person weighs heavily on even most pro-death penalty advocates, Mr. Morganelli is the exception: “Death row right now, there’s absolutely no evidence at all that these people are innocent, in fact they’re all guilty, we know that,” he said in a televised debate with the Director of ACCR. At least he is not struggling with his conscience.

Finally, there is Josh Shapiro. A Montgomery County commissioner and chairman of the state’s Commission on Crime and Delinquency, he has no background as a prosecutor. While he does support the death penalty for “the most heinous of crimes,” he believes the current system is broken and needs to be fixed. Mr. Shapiro sees the problems with capital punishment as part of a larger discussion on criminal justice reform; unlike Mr. Morganelli, who has criticized the ongoing state study as a maneuvering tactic by abolitionists, Mr. Shapiro anxiously awaits the results of the study and believes it will provide insight into possible remedies.

For those of us who have been doing criminal justice work for a while, recommending a vote for a prosecutor, a judge, or an attorney general is always fraught with the possibility of disappointment. Nonetheless, we should at least know what a person’s track record is before we pull a lever. Hopefully this has helped. But, as always, let the buyer beware.

Akeem Davis
Christmas Is Still On December 25th

Well yes, the title of this blog entry requires an explanation. We were originally going to call it “Christmas Comes Early,” referring to yesterday’s Pennsylvania Supreme Court unanimous decision upholding Governor Wolf’s declaration of a moratorium. But that title would suggest that the opinion was a gift – it was not. The Court’s decision relied on 300 years of prior case law, legal treatises, gubernatorial actions, and, last but not least, the Pennsylvania Constitution. Given the scandals that have devastated our courts and prosecutors’ offices over the past few years, it is easy to fall into the trap that an opinion that simply follows the law is a “gift.” Rather, it is critically important that we demand the highest legal standards from our highest court, even when that court is beleaguered.

The decision itself, Commonwealth v. Terrance Williams, is significant for what it says and what it doesn’t say. What it says, specifically, is that Governor Wolf’s decision to grant a reprieve to Terry Williams (and to several others whose executions were pending) was not an abrogation of constitutional duty, but a “valid exercise of constitutional authority.” What it doesn’t say is that a governor’s conscience can be compromised by the political leanings of the District Attorney’s Association, and specifically by Seth Williams, the Philadelphia DA. The Court emphasized that it was not their task to address the wisdom of Governor Wolf’s decision. This blog need not be so restricted.

That the death penalty in Pennsylvania has become a political football cannot be denied. The Court practically said as much:

Governor Wolf issued the reprieve on February 13, 2015, indicating that it will continue until the Task Force’s report is issued and any concerns raised therein are addressed. The Commonwealth initiated an action in this Court five days later, seeking to invalidate the reprieve as unconstitutional. At this time, when the Task Force report has yet to be issued, we cannot conclude as a matter of law that the effect of the reprieve is to permanently suspend Williams’ sentence.

In other words, the Philly DA was so anxious to appeal the governor’s decision that even though he believed the Task Force’s work important enough that he voluntarily agreed to be a member, he didn’t even care to see what the Task Force report might say. Regrettably, such knee-jerk support for the death penalty, in the face of historically low death sentences and executions across the country, is what we have come to expect from Seth Williams.

Governor Wolf, in declaring the moratorium on executions, recognized many of the problems with capital punishment: the unending cycle of death warrants and reversals that is unfair to defendants and victims’ families alike; the racial discrimination; the excessive cost; and the risk of executing an innocent man. Yesterday, the Supreme Court recognized the Governor’s right to exercise his conscience. Not a gift, just a correct decision. Happy Holidays!

Akeem DavisComment
A Call To Action

It is impossible to overestimate the impact of the Pope’s visit on the United States, and the way he has inspired all of us who hope and work for repeal of the death penalty. His words to Congress will not soon be forgotten:

The yardstick we use for others will be the yardstick which time will use for us. The Golden Rule reminds us of our responsibility to protect and defend human life at every stage of its development. This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.

And his words to the inmates at the Curran Fromhold Correctional Facility, while not directed at the death penalty, carried a message irreconcilable with the ultimate punishment:

This time in your life can only have one purpose: to give you a hand in getting back on the right road, to give you a hand to help you rejoin society. All of us are part of that effort, all of us are invited to encourage, help and enable your rehabilitation. A rehabilitation which everyone seeks and desires: inmates and their families, correctional authorities, social and educational programs. A rehabilitation which benefits and elevates the morale of the entire community.

The Pope’s visit came only one day after Justice Scalia, at a small college in Memphis, Tennessee, remarked that he “wouldn’t be surprised” if the United States Supreme Court found the death penalty unconstitutional. Scalia, in turn, was referencing the dissent by Justice Breyer and Ginsburg in the Glossip opinion only a few months earlier. It is hard not to hear the dominoes falling, one by one, on capital punishment.

The Curran Fromhold speech, like every event on the Pope’s itinerary, was well attended by civic leaders. Among the attendees was Seth Williams, the District Attorney of Philadelphia, one of a rapidly diminishing number of prosecutors in the entire United States still regularly seeking the death penalty and, like Justice Scalia, a Catholic. Was he listening to the Pope’s message? Judging by his tweets – “Powerful words from ‪@Pontifex redemption, forgiveness, mercy, justice, hope and love. ‪#PopeInPhilly” – it sounds like he was. If so, is he willing to forego the punishment that a huge majority of the civilized world has already put behind it? Only time will tell.

When the Pope spoke to the inmates at Curran Fromhold, he recognized that for them “it is a difficult time, one full of struggles.” For us, too. Change never comes easy personally or politically; and if we want to achieve the goal of a more humane criminal justice system, we must struggle to be heard. The Pope’s visit is nothing less than a call to action.

Akeem DavisComment
It's Always Something

As one of our greatest and saddest comedians liked to say, it’s always something. A quick recap of the scandals in the Pennsylvania criminal justice system over the last year shows us just how astute Gilda Radner really was.

For starters, the racist, misogynistic, pornographic email scandal doesn’t seem anywhere near its endpoint. Having already claimed former Supreme Court Justice Seamus McCaffery – who resigned not only in the wake of email accusations but also allegations of ticket fixing and huge consultation fees given his wife – the scandal then proceeded to out former deputy attorney generals Frank Fina, Marc Costanza and Patrick Blessington. Each of them had been hired by Philadelphia District Attorney Seth Williams after their involvement with said emails, but Williams decided not to fire them. Bravely announcing his decision late Friday afternoon before Labor Day, Williams determined that “sensitivity training” might be the better course for his wayward lawyers.

Unfortunately, improper emails are not the only problem confronting our top law enforcement officials. The Philadelphia Inquirer has reported that Mr. Williams himself is being investigated by a federal grand jury for improper campaign spending – subpoenas have been issued to his political action committee, and the investigation is said to be a joint FBI/IRS effort.

But Williams’ problems pale in comparison to his archrival, Kathleen Kane, who as of this writing is still the Attorney General of Pennsylvania. In August, she was charged with illegally leaking information to the news media about grand jury proceedings in a 2014 case, then lying about it. That case involved former state prosecutors with whom she was feuding, namely the former deputy attorney generals now working for Seth Williams. But the tangled web doesn’t stop there – yesterday the Pennsylvania Supreme Court, acting unanimously at the behest of the Disciplinary Board, suspended Kane’s law license. Kane, seizing on the thin lifeline that she has not been ordered removed from office, insists that she will remain the Attorney General and that she is the victim of a vendetta by an “old boys’ network” of political and legal rivals. While this may or may not be true, she is now an attorney general who cannot sign legal documents, provide legal advice, or act in a legal capacity. Her next step, apparently, will be to release even more of the damning emails to prove the conspiracy she claims has been hatched against her.

None of this should give us confidence that law enforcement decisions are being made with the level of calm deliberation the public deserves. But there is one thing we can always count on – just as patriotism is the last vestige of a scoundrel, so is the urge to execute a citizen the last vestige of a prosecutor in trouble. The ink was barely dry on Governor Wolf’s declaration of a moratorium when Seth Williams and Kathleen Kane attacked it as an outrageous usurpation of justice. Of course, it is no such thing – given the number of well-documented death penalty reversals and exonerations, the atrocious lawyering and thinness of resources, the procedural carousel that is unfair to victims and defendants alike, the Governor’s decision was consummately reasonable and thoughtful.

The decision about capital punishment is the most serious one a law enforcement officer can make. We should expect a lot more from the elected officials who make them.

Akeem Davis
What Can You Say?

What can you say in the face of an inexplicable act? When you are committed to explanations – never excuses, but explanations – what can you say? When you are dedicated to opposing the death penalty unilaterally, no matter how heinous the crime or vilified the criminal, no matter how violated we might feel as a community, what can you say in light of Charleston?

Well, let’s start with the low hanging fruit first. Dylann Storm Roof, a skinny 21-year-old white supremacist with a ridiculous haircut and an unfortunately predictive middle name, seems to have lived the isolated, loner experience we might expect one with his views to live. A high school dropout with a pill problem, he scuffled around on the edges of the law absorbing the odium so easily found in this era of internet-charged access to the nether regions of hate groups. Sporting some badly outdated apartheid patches from South Africa and what used to be called Rhodesia on his Facebook profile photo, it seems likely he wouldn’t even have known the history of those countries without having been spoon fed it on a hate site. Of course, the answer to such a problem does not lie in the narrowing of the First Amendment – as long as we have it, and hopefully we always will, the lowest form of human speech will find its way into the open air. But in South Carolina you don’t have to plug in to find symbols of intolerance; all you need do is look up at the Confederate flag waving in front of the state capital. Under the absurd guise of respect for the heritage of the South, the shameful image of slavery continues to be dignified by a government. Does this excuse the mad killing of nine worshippers in a church? Of course not. But nor should we be shocked when such an atmosphere breeds demented violence in those who might be vulnerable to incitement.

And then there is the gun, the .45 caliber handgun he had to reload several times in order to achieve his goal of killing as many blacks as possible, the gun that was bought with the money given him as a birthday present by his parents. The president, saddened by the bloodshed but also enraged at the easy access this kid had to guns, couldn’t help but point out that sooner or later we had to come to grips with the laxity of our gun laws. We don’t know much about Dylann Roof’s home life or his upbringing, but very few of us would guess that he grew up in a home of diverse and tolerant views. Is there something we could do tomorrow to end the generational passing of hatred and intolerance? No. Is there something we could do tomorrow to end the possibility that a disturbed young man might walk into a Walmart and leave with a semi-automatic? Of course there is.

But the gun problem this country has, the outrage of a Confederate flag that continues to wave, the hate groups that fester on the internet, those are the easy targets. The much harder target is Dylann Roof himself, and what we do with him. What in the world was he thinking as he sat for an hour among those people he wanted to destroy? Was he struggling with his own hatred while those around him prayed and presumably welcomed him into their circle? Did he try to shout down the voices of hate in his own head, or listen to other voices that might have told him the Confederacy was dead and with good reason, that South Africa decades ago did away with apartheid, that Rhodesia is now Zimbabwe? Did he think for even a second that the violence he felt welling up inside him wasn’t going to achieve anything?

We may never know. There is a very good chance that even Dylann Roof doesn’t know, so consumed is he by delusions of starting a new civil war with the same sense of inhumanity that started the old one. What can you say in the face of an inexplicable act? That we must react with reason to unreason, and humanity to inhumanity. If there was ever a time to understand that violence only increases violence, this is it. This is what we must say.

Akeem Davis
Nebraska? Seriously?

When a good friend of ACCR’s heard that the reddest of red states, Nebraska, had voted to repeal its death penalty, he emailed: “Nebraska? Seriously?” Well, yes. Not only did the Nebraska legislature vote to repeal, but it overrode the veto of their Republican governor, Pete Ricketts. The vote crossed party and even religious lines – at one point in the final debate the sponsor of the bill, the great and long-standing Senator Ernie Chambers was accused of not believing in God – and legislators withstood a serious lobbying effort by law enforcement as well. Given that this vote busted up all sorts of stereotypes, the arguments that worked so well in Lincoln bear close examination.

Was it the drugs, or more accurately, the lack of drugs? No doubt. The Governor was so intent on keeping his state in the death penalty column that he spent $51,000 of taxpayer money to obtain lethal drugs from West Bengal, India – “the functionality of the death penalty in Nebraska has been a management issue that I have promised to resolve,” Ricketts declared. But in debate only minutes before the final vote, Ernie Chambers urged his fellow legislators to listen carefully to the Governor’s words: “He said he paid for the drugs, he never said he actually had them.” Nor was there ever any assurance that the drugs from West Bengal would meet constitutional standards for quality – did Nebraska really want to join the line of states that had suffered through a botched execution?

Was it the fact that the death penalty hadn’t been working the way it had been advertised, and that the state hadn’t executed anyone in almost 20 years? Certainly. Several legislators pointed out the risk of executing an innocent person, and others made the more nuanced but equally important point that the death penalty coerces innocent people toward an improper guilty plea out of fear of possible execution. (For a good example from Philadelphia, see

Was it that the Nebraska legislature got tired of wasting money? Of course. “The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years,” said Senator Colby Coash, a Republican. “This program is broken. How many years will people stand up and say we need this?” Legislators interspersed the “failed government program” motif with the words of Justice Stevens and the late Justice Blackmun, both of whom concluded after many years of tinkering that the death penalty simply couldn’t be fixed.

And was there a clear recognition – particularly in this day of supermax prisons and plummeting crime rates and the DNA-infused recognition of how easily we can and do make mistakes – that the death penalty is not morally justified? Over and over again legislators stepped to the podium to point out the fallacy of deterrence, the myth of closure for victims who must suffer through mandatory death penalty appeals, and the plain truth that retribution is just a fancy word for vengeance. Finally, many relied on the conclusion that seems so obvious to so many of us – it is simply wrong to kill.

What can we take from repeal by a state so conservative that it hasn’t seen a Democratic governor or senator this century? That injustice resonates for everyone, that the horror of a botched execution is no less horrifying if you prefer smaller government, that conservatives are no more in favor of wasting money than liberals, that unnecessary killing is wrong, and that putting executions under color of law may make them legal but doesn’t make them right.

It took 30 votes to override the governor’s veto in Nebraska, but no one rushed to take credit. As Omaha Sen. Robert Hilkemann said, his vote to override was not the deciding one. “We were all No. 30.” And today we are all Nebraskans.


Akeem Davis
Taking Note

We should take note when a good one passes. Dean Smith, the longtime coach of the University of North Carolina Tar Heel basketball team, was much beloved by basketball fans everywhere – he was a Hall of Fame coach of some of the greatest players ever, including Michael Jordan; an innovator with some of the most creative ideas the hard court has ever seen; and a man who made sure that 97% of his players graduated from college. But that was the tip of the iceberg.

Dean Smith integrated the Atlantic Coast Conference, at the time the most prominent league in the country. Charlie Scott, the first black player with a scholarship at UNC, had this to say about his coach: “Coach Smith never treated me like the first African-American to go to the University of North Carolina. It was all any person would want to be treated like — like everybody else.” He integrated more than just a basketball team, though; he helped a graduate student break the color line in an all-white neighborhood in Chapel Hill, and then broke bread at an all-white restaurant as well. He was also ahead of his time in protesting against the Vietnam War and nuclear proliferation, for equal treatment for women, and for LGBT rights. Years ahead.

But we wouldn’t be blogging about him if there wasn’t more. He took a stand against the death penalty when it was a highly unpopular position in North Carolina, and when Dean Smith took a stand he didn’t just mouth the words. He took his players to death row In Raleigh and to Angola Prison in Louisiana, and had them interact with the inmates. In 1998 he went with a delegation from People of Faith Against the Death Penalty to meet with then Governor Jim Hunt in a desperate attempt to save a mentally ill condemned man named John Noland. Pointing a finger at the governor, Smith called him a murderer – then he pointed at the others in the room and said, “And you’re a murderer, and you’re a murderer, and I’m a murderer.” He didn’t save Noland, who was executed two weeks later, but it didn’t stop him, either. “I really haven’t done much other than send a little money and talk to the governor and do some public-service announcements, so don’t make me out to be too much of a hero,” he said.

Dean Smith’s fight is not over, of course. But since his passing many have recalled his bravery, from the basketball court to the lunch counter to the governor’s office; and there is a sense that we are closer to his vision than we have ever been before. The good ones leave you feeling that way.

Akeem Davis