PA faces daunting resentencing effort after Supreme Court ruling on LWOP

 Last month, the Pennsylvania Supreme Court gave lawmakers 120 days to find a legislative solution after ruling mandatory life sentences for second degree murder charges are unconstitutional under the state’s prohibition on cruel and unusual punishments, reported the Pennsylvania Capital-Star.

The ruling is likely to kick off what could be the largest resentencing effort the commonwealth has ever undertaken, though the timeline will depend on decisions made by lawmakers.

In Pennsylvania, someone can be charged with second-degree murder even if prosecutors can’t prove they intended to cause another person’s death. In some cases, a person can be charged without actually killing someone. Prosecutors just need to prove someone died while the person charged committed a felony. That charge comes with a mandatory life sentence without parole, which the state’s high court ruled unconstitutional last month.

Last Thursday, lawmakers on the state House Judiciary Committee were set to vote on a bill that would have addressed the problem by making those serving such sentences eligible for parole after 25 years, and creating a 50-year maximum sentence for future second degree murder charges.

But as the panel’s meeting started, its chairman, Rep. Tim Briggs (D-Montgomery), announced he would be pulling the bill from consideration.

“These people have been serving long, unconstitutional sentences, and I will not put them in a worse position than what I believe the Supreme Court would order for them,” Briggs said about those currently serving life sentences without parole on second degree murder charges. “I am confident that as long as we all work together, we will come up with a bill we can all be proud of.”

Briggs said that he and other lawmakers on the committee were seeking input from people and organizations like public defenders, district attorneys and victims advocates.

But while some groups had issues with components of the proposal, the move rankled criminal justice advocates who have long sought to eliminate mandatory life sentences for those convicted of felony murder. 

To read more CLICK HERE

Louisiana routinely holds prisoners after there release date

Roughly 200 inmates are held beyond their legal release dates on any given month in Louisiana, amounting to 2,000 to 2,500 of the 12,000 to 16,000 prisoners freed each year, reported The New York Times. The average length of additional time was around 44 days in 2019, according to internal state corrections data obtained by lawyers for inmates — and until recently, the department’s public hotline warned families that the wait could be as long as 90 days.

In most other states and cities, prisoners and parolees marked for immediate release are typically processed within hours — not days — although those times can vary, particularly if officials must make arrangements required to release registered sex offenders. But in Louisiana, the problem known as “overdetention” is endemic, often occurring without explanation, apology or compensation — an overlooked crisis in a state that imprisons a higher percentage of its residents than any other in most years.

The practice is also wasteful. It costs Louisiana taxpayers about $2.8 million a year in housing costs alone, according to department estimates.

“The state has not made liberty, or taxpayer money, a priority in how they run their prisons,” said William B. Most, a lawyer based in New Orleans who has filed two class-action lawsuits on behalf of overdetained inmates.

“To our clients, it is an extremely scary experience because they do not know why they are being held, when they will be free or how they can get free,” he added. “All they know is they should not be behind bars.”

In December 2020, the Justice Department opened an investigation into the practices the state used to determine the release of its prisoners, particularly those, like Mr. Traweek, who remained behind bars despite being eligible for immediate release. The investigation, according to people with knowledge of the situation, is expected to find widespread violations of a federal law that guarantees imprisoned people their “rights, privileges or immunities.”

State officials have been cooperating with the investigation, so it is possible it could result in an agreement. Such a deal would probably require an overhaul of procedures used to calculate time served, according to people who have spoken to investigators, and mandate the replacement of the state’s outdated corrections computer system known as CAJUN. (Its error message is a pixelated pop-up of a bunny behind bars.)

Prisoners’ rights groups say that federally mandated changes, while welcome, would do little to overcome the core problem that defines Louisiana’s troubled criminal justice system: an entrenched belief that an inmate’s freedom is worth less than everyone else’s.

“We exist in a space between malice and incompetence,” said Jamila Johnson of the Promise of Justice Initiative, a nonprofit in New Orleans that has sued the state for unlawful detention and poor treatment of prisoners.

A spokesman for Louisiana’s corrections department declined to discuss overdetention or even provide basic information about how the system operates and declined to respond to specific claims by inmates, citing the continuing litigation.

But in a deposition taken in January, James M. Le Blanc, who has run the agency for 14 years, acknowledged that the state has “had a problem with immediate releases” since at least 2012. He said the department had halved waiting times in recent years, from an average of more than 70 days a decade ago, and claimed that parish prison officials were also responsible for the drawn-out releases.

The problem crops up sporadically in other states, including neighboring Mississippi, and in the federal Bureau of Prisons. New York City recently agreed to pay out as much as $300 million to thousands of current and former inmates at local jails who had been kept hours or a few days after they were supposed to be released. But those waiting times are relatively short compared with what prisoners in Louisiana endure.

The state routinely sends prisoners with sentences under 20 years (and those with serious physical or mental conditions) to jails or prisons run by governments in local parishes, which are the equivalent of county governments elsewhere. That means parish prisons serve not only as traditional jails, but also as officially designated extensions of the state prison system.

It is a jumbled and sluggish system with tangled lines of communication and jurisdiction — and many of the prisoners who have been kept past their release dates fell into the chasm between dysfunctional state and parish bureaucracies.

A judge freed Brian Humphrey from the jail in Bossier Parish in northwest Louisiana on April 16, 2019, after he had served three years for an offense related to assault. He prepared to leave that night. Instead, he languished.

The corrections department, for reasons that remain unclear, waited 10 days to even begin processing his paperwork, according to records obtained in a 2021 class-action lawsuit his lawyers filed against the state. Instead of freeing Mr. Humphrey, as he was legally bound to do, the parish sheriff transferred him to a state-run work camp outside Shreveport, where he stayed until he was released on May 13, 2019.

That was 27 days beyond his release date.

Louisiana has one of the most overcrowded prison systems in the country, yet parish sheriffs are often reluctant to release people they believe are at high risk of committing new crimes. Some even view inmates housed in local facilities as worth holding onto as free labor.

In October 2017, Sheriff Steve Prator of Caddo Parish, which includes Shreveport, told reporters he was concerned that a recent criminal justice effort in the state was bad for parish governments. Not only would it result in higher crime rates among the “bad” former prisoners, but it would also deprive his staff of free labor provided by the “good ones.”

To read more CLICK HERE

 

Bringing back advocacy to the criminal justice system

Below is an excerpt of remarks by Stephen Bright, President of the Southern Center for Human Rights at the Aspen Ideas Festival, reported by The Atlantic:

We've taken power from judges and given it to prosecutors, who now decide, with their charging decisions and whether they file repeat-offender papers and all sorts of other things, how long a person is going to serve. So they decide the sentence. The judge is relegated to being a clerk at the end of the process. He signs off on whatever the sentence is. That's got to be shifted back in the other direction, because the prosecutor is an advocate. We theoretically have an adversary system. The worst system is one that masquerades as an adversary system and is not one.

And in many places, people do not receive any real kind of legal representation. If we are going to say this is an adversarial system where we have prosecutors striking hard blows and trying to lock people up or do whatever, you have to have defense lawyers representing those people. First of all, are we even locking up the right people, because we keep letting out people who didn't do what they were convicted of.

And what about the life and background of that person? When it comes to diversion programs, the prosecutor doesn't go interview the defendant, the defense lawyer does that, and then does a social history workup of who is this person? See my article on Sentence Advocacy. This woman, yes, she wrote a fake prescription to get drugs. But she's got a kid with down syndrome. And that's one of three children that she's trying to raise at 25 years of age. So do we really want to put her in the prison system in Georgia for three years?

Or is there another way to deal with this?

And if she's not represented, the prosecutor and the judge will never know about that child. I've twice been called by the department of criminal justice saying we've got people here with IQs of 45, these kids are walking victims, and they're about to be moved into the adult system, and if somebody doesn't do something...

In both of those cases, lawyers plead them guilty and didn't even spend enough time with them to realize they were severely disabled. There are public defenders’ offices that are hopelessly overburdened. And we have places like Alabama where you appoint anybody with a bar card and a pulse and they represent you. The way to make money at that is to move as many people through the system as fast as you can.

To read more CLICK HERE

Miller v. Alabama Changes the Dynamics of Sentencing

The Pennsylvania Law Weekly
November 27, 2012

The failure to vigorously investigate and present mitigation evidence in cases where juveniles are charged with first-degree murder may give rise to claims of ineffective assistance of counsel.

Under Strickland v. Washington, 104 S. Ct. 2052 (1984), an attorney is deemed ineffective when his or her performance falls below a reasonable standard, as defined by professional norms, and when the attorney's failure results in prejudice. The presentation of mitigation evidence in non-death penalty sentencing hearings is not universally required of defense counsel, wrote Beth Caldwell in "Appealing to Empathy: Counsel's Obligation to Present Mitigating Evidence for Juveniles in Adult Court."

However, that may no longer be the case in Pennsylvania and across the country. There are a series of U.S. Supreme Court decisions and new legislation in Pennsylvania that seems to imply in juvenile homicide cases that the presentation of a sentencing advocacy package is now necessary and the failure to do so may be ineffective assistance of counsel.

Senate Bill 850, now known as Act 204 of 2012, recently signed by Governor Tom Corbett, was enacted to address the U.S. Supreme Court decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), striking down mandatory life in prison for juveniles convicted of homicide. The new statute requires that the sentencing judge consider the age, mental capacity, maturity, degree of sophistication, prior delinquent conduct, criminal history and institutional conduct of the offender.

The U.S. Supreme Court's decisions in Roper v. Simmons, 125 S. Ct. 1183 (2005), and Graham v. Florida, 130 S. Ct. 2011 (2010), demonstrated that mitigating information about a juvenile accused of a crime is important to the court. In both cases, the court considered the tumultuous life histories of teenage defendants in conjunction with adolescent brain development research.

The high court in Roper established that because juveniles have lessened culpability, they are less deserving of the most severe punishments. As compared to adults, juveniles have a "lack of maturity and an underdeveloped sense of responsibility."

The court continued, juveniles "are more vulnerable or susceptible to negative influences and outside pressures." As a result, the court held that sentencing juvenile offenders to death violated the Eighth Amendment's prohibition against cruel and unusual punishment.

The court in Miller reasoned that the Graham and Roper decisions stood for the idea that "in imposing a state's harshest penalties, a sentencer misses too much if he treats every child as an adult."

The linchpin of the Miller decision was that "mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him."

The mitigation evidence that defense counsel is required to present during the penalty phase of a capital case is essentially the same evidence courts consider in sentencing juvenile offenders facing life in prison or some lesser sentence, establishing similarities between capital sentencing and sentencing juvenile offenders.

In the capital context, attorneys are responsible for gathering evidence about a defendant's childhood, mental capacity, health, history of substance abuse, experiences of abuse and neglect, and developmental disabilities.

"It is incompetent for counsel to fail to present this information to a judge charged with determining a young person's fate," Caldwell wrote.

In Pennsylvania, the legislature went to work quickly after the Miller decision, and the result is Act 204. The act provides an alternative to mandatory life in prison. The new law provides for juveniles convicted of first-degree murder, ages 15 and older, to be sentenced to 35 years or life in prison. For those convicted of murder under age 15, the sentence can range from 25 years to life.

More importantly, the act provides that a judge must consider age-related characteristics of the defendant. Those characteristics include, specifically: age, mental capacity, maturity, criminal sophistication, criminal history, institutional conduct and other relevant factors.

Defense counsel who fail to explore mitigation will not only fail to comply with the act, but will most assuredly fail their clients.

Interestingly, the act also provides, as in capital cases, that the district attorney must provide notice to the defendant if the commonwealth intends to seek life in prison for a juvenile offender. The notice provision further reinforces the similarities between capital sentencing and sentencing juvenile homicide offenders.

Whether the notice requirement is indicia of heightened responsibility, the reality is that 94 percent of state cases end in plea bargains. That statistic presents yet another potential pitfall for counsel representing a juvenile accused of first-degree murder.

The U.S. Supreme Court decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), extended the protections of the Sixth Amendment — the right to assistance of counsel — to plea bargaining. Defense lawyers will now be subject to scrutiny in terms of their plea-bargaining negotiation on behalf of their respective clients.

In Cooper, the court considered whether an attorney's advice to his client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Frye, the court considered whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.

Mitigation is not just for sentencing. The onus is on defense counsel to begin investigating mitigation at the earliest stages, so that information is available during plea negotiations. The failure to do so may open the door to ineffectiveness claims.

Some states have anticipated the collateral responsibilities that have grown out of the Miller decision. In Massachusetts, the Youth Advocacy Department recently announced the creation of a "Juvenile Life Without Parole Sentencing Advocate." The advocate will assist in the preparation of a capital "penalty phase" like a sentencing hearing. The sentencing advocate is analogous to a mitigation specialist retained to prepare for sentencing in a capital case.

With the issue of retroactivity still pending in Pennsylvania and the commonwealth having more juvenile lifers than any other state, defense attorneys would do well to start thinking about sentencing advocacy as an essential component of any competent juvenile homicide defense strategy.

Visit the Pennsylvania Law Weekly 

Utah parole board dishes out life sentences

Utah has a unique sentencing structure found nowhere else in the country. Judges and juries determine a defendant’s innocence or guilt and, if convicted, hand down an indeterminate sentence as set by lawmakers, reported The Salt Lake Tribune. An indeterminate sentence usually has a minimum, five years, to a maximum, life.

Once in prison it is the parole board that ultimately decides how much retribution to exact and whether redemption is possible.  In effect the parole board decides whether an offender will spend his or her life in prison.

The inmates receiving natural life sentences from the board — a small fraction of the prison population — tend to be murderers, rapists, pedophiles and repeat offenders.

It currently costs the state approximately $3.2 million a year just to house the 108 inmates who now have board-determined natural life sentences, an expense that will grow by at least $30,000 a year, the average annual cost for incarceration, for each additional inmate handed such a term — and possibly more, as these inmates face age-related illnesses before dying in prison, reported The Tribune.

The average age of inmates at the Utah State Prison with natural life sentences is 56. There are 62 inmates age 55 — the age at which an inmate is considered elderly — or older, with the oldest an 82-year-old sex offender. At least five inmates were in their 20s when the board revoked any chance of parole.

Anyone guilty of a first-degree felony — murder, rape, child kidnapping, aggravated burglary, aggravated robbery, arson and possession of a controlled substance with intent to distribute near a school — could later be handed a natural life term by the Utah Board of Pardons and Parole under Utah’s sentencing scheme.

According to The Tribune, the board has ordered natural life sentences for 25 of the 74 inmates currently imprisoned for aggravated murder; the rest will serve between 25 and 30 years before getting either an original or review hearing or being eligible for parole.

The board has ordered 23 of the 257 inmates convicted of murder to spend the rest of their lives in prison; most — 150 inmates — will serve nearly 21 years before they get an original hearing before the board, when it will determine how much longer they’ll serve for their crimes.

The board declined to set parole dates for another 41 people, who will serve an average of 25 years before getting a rehearing; 43 have parole or termination dates that will require them to serve close to 22 years before they are eligible for release.

In a letter to The Tribune, Shayne Todd, a natural life wrote, “The undisputed facts are the Utah Board of Pardons has been unlawfully acting as a sentencing board, rather than a board of pardons, particularly where it no longer accepts an inmate’s good or bad prison behavior in determining his [or] her release date eligibility.”

To read more: http://www.sltrib.com/sltrib/news/54485777-78/board-prison-inmates-natural.html.csp

Reducing Prison Population Through Sentence Advocacy

More can be done to manage the size of Pennsylvania's prisons, including the zealous pursuit of sentencing alternatives

The Pennsylvania Law Weekly
October 1, 2012

More can be done to manage the size of Pennsylvania's prisons, including the zealous pursuit of sentencing alternatives. As of August 31, the Department of Corrections was housing 51,508 inmates in 27 state institutions — 105.5 percent of capacity.

Building prisons will not solve the problem, although construction is under way in Pennsylvania. Construction is near completion at Benner Township near SCI Rockview and is under way at SCI Phoenix, two new facilities on the grounds of SCI Graterford.

This summer, lawmakers made yet another attempt to deal with ever-expanding prison growth. In July, Governor Tom Corbett signed into law SB100. The new law includes some modest steps toward prison reform. It expands eligibility for intermediate punishment programs, creates a sanctioning scheme that minimizes the number of technical parole violators returned to prison and diverts low-level misdemeanors from state prison, reported The Philadelphia Inquirer.

Pennsylvania's Justice Reinvestment Initiative (JRI) proposed reinvesting any savings from reducing the prison population to create a risk-assessment tool for judges when sentencing defendants; to fund local law enforcement; and to give judicial districts an incentive to divert defendants to county jails, reported The Pittsburgh Post-Gazette.

Pennsylvania Corrections Secretary John E. Wetzel said it was important that JRI funds be used to develop a risk-assessment tool to provide judges with solid information on whether a defendant might commit a crime in the future.

"The better and more information judges have, the better placement they can make," Wetzel told the Post-Gazette.

When Wetzel refers to "placement," one must assume he is talking about more than just being locked away in a cell at some state correctional facility.

For years, alternatives to incarceration have been based primarily on the recommendation of a prosecutor or the county adult probation office. The typical presentence report emphasizes the details of the crime, the defendant's prior criminal record and a brief outline of the offender's background. The report seldom lists mitigating issues nor expands on risk and needs of an offender.

There is a way to have an impact on incarceration rates, address the offender's needs and reduce recidivism. At the sentencing hearing, defense counsel would be wise to utilize the assistance of a sentencing consultant. Such a consultant has been referred to as a sentence advocate, sentencing specialist, post-conviction mitigation consultant or client-specific planner.

Whatever the name, planning and assistance at sentencing, including a formal report and testimony, are powerful and important tools available to criminal defense practitioners.

The term "client-specific planning" (CSP) was coined by Dr. Jerome Miller and elaborated on for the Canadian Solicitor General. CSP enhances the ability of defense counsel to provide an alternative to the prosecutor's recommendation. CSP is not necessarily at odds with the criminal justice agencies, but provides a meaningful alternative to the state's narrative.

CSP is more widely used in federal court in light of the landmark decision in U.S. v. Booker, 543 U.S. 220 (2005). The U.S. Supreme Court made the U.S. Sentencing Guidelines advisory. However, the opinion implored that sentencing judges "maintain a strong connection between the sentence imposed and the offender's real conduct — a connection important to the increased uniformity of sentencing that Congress intended its guidelines system to achieve."

That does not mean there is no place for CSP in state courts. The Pennsylvania Sentencing Guidelines permit a judge to impose a sentence outside the guidelines accompanied by a written explanation for the deviation.

In Commonwealth v. Holiday, 954 A.2d 6 (2008), the Superior Court found that the sentencing guidelines have no binding effect and create no presumption in sentencing. They are advisory guideposts that must be respected and considered.

The work begins once a sentence advocate is engaged. Retaining a sentence advocate should occur as a plea is being negotiated or the case is being prepared for trial. Making plans early in the process to retain a sentence advocate will ensure there is enough time to prepare a strong report. Sentence advocates come from a host of backgrounds, including criminology, parole supervision, treatment providers, law enforcement and former prosecutors, to name a few.

At the outset, CSP for advocacy at sentencing requires some context. The client's counsel must provide information regarding the posture of the case. Is the client considering a plea or preparing for trial?

Initially, access to police reports, criminal history, court transcripts and the court file are crucial. Pertinent information from bail hearings, the preliminary hearing and other pretrial proceedings should not be overlooked.

An interview with the defendant must include a detailed history, including social contacts, criminal justice contacts — juvenile and adult — mental health history, drug and alcohol history, medical issues, employment and education history.

A sentence advocate can order psychological testing, risk and treatment assessments. Testing can provide the court with a snapshot of the client's current treatment needs. For instance, the Texas Christian University drug screen is a widely accepted assessment that provides a simple numerical score on a scale of 0 to 9. The TCU screen can be used to support a recommendation for community treatment.

The Level of Service Inventory-Revised (LSI-R) is a treatment and supervision assessment that can also be used in assessing risk. Using a risk instrument can provide some comfort for a prosecutor or judge who is hesitant to consider sentencing alternatives.

A client should voluntarily submit to independent urinalysis testing while on pretrial supervision. A sentence advocate should document any pretrial treatment, in-patient or out-patient, attendance at group therapy, such as Alcoholics Anonymous, verify any counseling or mental health treatment, and note volunteer work completed in the community.

Once a clear picture of the client has emerged, the expert needs to identify the community resources, or, as Wetzel called them, "placements."

Based on the client's profile and needs, a persuasive argument must be formulated using evidence-based practices to support an alternative sentence that might include one or more of the following forms of punishment: county intermediate punishment 42 Pa.C.S.A. §2154.1, state intermediate punishment 42 Pa.C.S.A. §2154.2, work-release, county or state probation supervision, electronic monitoring, community halfway house, house-arrest, drug and alcohol treatment, in-patient mental health treatment or participation in a therapeutic drug, gun, veteran or re-entry court.

There are clear departures between a presentence report and a CSP. For instance, sentencing options are identified and documented in a CSP. The client should be pre-interviewed by the service provider and accepted for placement. A CSP must provide documentation that the client has been accepted in a residential treatment program or community residential confinement. Proof of employment is extremely important and a valuable component of any successful alternative sentencing plan.

Can a sentence advocate qualify as an expert? In Miller v. Brass Rail Tavern, 664 A.2d 525 (1995), the state Supreme Court held that qualifying as an expert witness requires a reasonable pretension of specialized knowledge on the subject under investigation. If, pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the scientific evidence has "general acceptance" in the relevant scientific community.

However, even where a sentence advocate's expert status is uncertain or denied, the witness may be allowed to testify and even offer hearsay evidence at a sentencing hearing. See Green v. Georgia, 442 U.S. 95 (1979).

The written CSP and testimony at a sentencing hearing should include a clear analysis of any patterns that are extrapolated from the instant offense and criminal history that identifies mitigating factors suggesting the client can be managed safely in the community.

Finally, the CSP should include a section on evidence-based predictions of success in the community; research addressing recidivism, risk and substance-abuse relapse; and research that supports the sentence advocate's opinion imploring an alternative to traditional incarceration.