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!

 

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.

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.

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.

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 http://www.theatlantic.com/national/archive/2013/08/the-confessions-of-innocent-men/278363/.

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.

 

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.