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.

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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.

  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.

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?

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.

 

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!