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. rickyfree 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 ricky-olds-at-14-jpg 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?

 

[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.”

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?

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.