Correctional Forum

Pardons Board Case Hearings Postponed to August 5

The Fat Lady Hasn’t Yet Sung

Prison Society’s Pardons Board Case Hearings Resume

Scranton, Pa.―US District Judge A. Richard Caputo has resumed hearings in the Pennsylvania Prison Society's decade-long battle challenging the constitutionality of the 1997 State Pardons Board referendum.

The referendum changed the state constitution by requiring a unanimous vote of the five-member Pardons Board before a recommendation could be sent to the governor for commutation of a life or death sentence. 

Consequently, the unanimity requirement effectively puts the power of commutations in the hands of any one of the five Board members, two of whom are elected officials. 

Since 1995, only two lifers have had their sentences commuted and just three have been recommended by the Pardons Board to the governor. 

However, during the eight years Governor Casey was in office, the Pardons Board recommended 118 lifers and the governor commuted 27.

Judge Caputo had previously ruled that the referendum violated ex post facto protection guaranteed by the US Constitution by making commutations significantly more difficult than they had been prior to the commission of the crime. 

Prisoner plaintiffs named in this case were included in the original 1997 filing, which took place prior to passage of the referendum.  The original intent of the lawsuit was to have the courts prevent the referendum from getting on the ballot.

The Commonwealth Court ruled in favor of the plantiffs, but the State Supreme Court overturned that decision, leading to action in the federal court under Judge Caputo.  On appeal, however, the Third Circuit Court questioned the issue of standing.

The court explained that first there must be an injury that is actual or imminent.  Second, there must be a causal relationship between the injury and the action complained of.  And, finally, there must be a substantial likelihood that the relief requested would remedy the injury.

The Third Court ruled:  "The complaint does not allege and the record contains no evidence that any of these prisoner plaintiffs has had any actual injury or presently has an application pending before the Board of Pardons."

Subsequently, the Third Circuit Court returned the case to District Court for a determination on the issue of legal standing.

And at the June 2 hearing before Judge Caputo, Stephen A. Whinston, Prison Society lead counsel, presented testimony from three witnesses:  Mark Stephen Singel, former Pennsylvania Lieutenant Governor; W. Scott Thornsley, Ph.D., Associate Professor of Criminal Justice Administration at Mansfield University of Pennsylvania; and William M. DiMascio, Executive Director, The Pennsylvania Prison Society.

In addressing the issue of standing, DiMascio testified that several hundred Prison Society members are currently incarcerated, including almost 100 lifers. 

“More than 20 of those [100] lifers had once filed for commutation and two of them ― Jackie Lee Thompson and Keith Smith ― received 4-1 votes recommending clemency,” DiMascio said.  “However, in both cases, the Pardons Board has refused to forward the petitions on to the governor as the pre-referendum rules require.” 

The only way for lifers in Pennsylvania to become eligible for parole is to receive a sentence commutation from the governor.  The Commonwealth has some 4,000 prisoners serving life without parole ― one of the largest contingents of that sort in the nation. 

Singel’s testimony focused on the Pardons Board’s process from 1987-1995 when he, as lieutenant governor, served as its chair.  Likewise, Thornsley ― who worked for the Pennsylvania Department of Correction from 1976-1995 and represented prisoners before the Pardons Board ― said there were clearly identifiable criteria that Pardons Board members used in their decision-making. 

Ernest D. Preate, former Pennsylvania attorney general, assisted as plaintiff counsel.  And attorney Gerald Grimaud of Tunkhannock, who litigated the original case in Commonwealth Court, was also present.

Additional testimony by prisoner plaintiffs Doug Hollis, Vincent Johnson, Jackie Lee Thompson and Keith Smith was initially scheduled to be heard on June 27, but has been postponed until August 5. 

Third Circuit Court Remands Prison Society's Pardons Board Case

Hold On, The Battle's Not Over

by William DiMascio

Clemency applications from life sentenced prisoners continue to stack up at the state Pardons Board as the 10-year-old legal battle to restore commutation viability heads back to the U.S. Middle District Court.

In a ruling following oral arguments before the Third Circuit Court of Appeals, judges remanded the case to the lower court to develop the legal issue of whether the Prison Society, and other prisoners and individual plaintiffs have standing to initiate the case. 

That ruling was handed down by the Third Circuit Court of Appeals on November 5, following earlier oral arguments, which focused almost exclusively on the issue of standing.

The District Court never questioned the standing for the plaintiffs in its earlier action, which resulted in a finding that the 1997 referendum violated ex post facto protection of the U.S. Constitution by making commutations significantly more difficult than they had been.

Since 1995, only two lifers have had their sentences commuted and just seven were recommended by the Pardons Board to the governor.  In the eight years prior to 1995, in contrast, the Pardons Board recommended 118 lifers and the governor commuted 27 of them.

The move against commutation of lifer sentences began with the administration of former Governor Tom Ridge in 1995 and led into the referendum two years later.  The referendum changed the state constitution to require a unanimous vote of the five-member Pardons Board before a recommendation could be sent to the governor and altered the composition of the Board as well.

The unanimity requirement effectively put the power of commutations in the hands of any one of the five members of the Board.  Given the political aspirations of some members of the Board, especially the attorney general, this change has served as an effective chokehold on the process.

Currently, the Board has 80 lifers' petitions pending.  Because these cases are called in the order in which they arrived and they are mixed in with hundreds of requests for pardons from lesser convictions, it could take years before these appeals are considered.

In Pennsylvania, lifers are never eligible for parole unless they receive a commutation of sentence from the governor.  As a result, the Commonwealth has some 4,000 prisoners serving life without parole--one of the largest contingents of that sort in the nation.

Because the commutation process holds this special significance in Pennsylvania, the Prison Society and other initiated the court suit in 1997.  The case has made its way through state courts and into the federal judiciary.

The issue of standing never came up in the earlier proceedings.

Stephen A. Whinston, Pennsylvania Prison Society solicitor and lead counsel for the plaintiffs, noted:  "Because the issue of standing was raised for the first time on appeal, the Third Circuit remanded the case to Judge [Richard] Caputo to create a factual record on the issue of standing."

According to the court, three elements are necessary to establish standing.  First, there must be an injury that is actual or imminent, not hypothetical.  There also must be a causal relationship between the injury and the action complained of--the change in the voting requirement from a majority to unanimous and the inclusion of a crime victim as a member of the Board.  And, lastly, there has to be a substantial likelihood, beyond mere speculation, that relief requested will remedy the injury.

The court said:  "Crucially, the record contains no evidence that any of these prisoner plaintiffs have received or may expect to receive a majority vote of the Board of Pardons after the 1997 Amendments."  The three named plaintiffs are Roger Beuhl, Vincent Johnson and Douglas Hollis.

"The complaint does not allege and the record contains no evidence that any of these prisoner plaintiffs has had any actual injury or presently has an application pending before the Board of Pardons," the court added.  "...The only allegation concerning these prisoner plaintiffs' commutation prospects is the very general prediction that '[s]aid plaintiffs will, in the future, apply for executive clemency through the Board.'"

The prisoner plaintiffs named in this case were included in the original filing, which was done in 1997 prior to the referendum.  At the time the suit aimed at having the courts prevent the referendum from getting on the ballot; the plaintiffs were presumed to have standing by virtue of their potentially more difficult road to commutation.  No one questioned their standing.

Regardless of their status, however, the Prison Society's standing can be linked to the direct injuries suffered by at least two of its members whose rights have been impinged by the new commutation procedures.  These members are Jackie Lee Thompson and Keith Smith, both lifers who went before the Board of Pardons and received 4-1 votes in favor of clemency and were denied the opportunity to have the governor consider and rule on their commutation applications.

The Prison Society's legal team is considering a number of options for the next step in this long running legal battle.

[Photo by Valentina Powers]

Prison Overcrowding: by William DiMascio

Governor Rendell is waltzing with a gorilla in tackling the thorny problem of prison overcrowding.  But it’s a dance that’s been delayed for decades and can no longer be denied.

State and local prisons in Pennsylvania are so crowded that we are at a tipping point.  Our only options appear to be committing hundreds of millions of tax dollars to add institutional capacity or changing our sentencing patterns.  Either way, the governor must confront a public traditionally resistant to paying taxes for prisons or a legislature unwilling to do anything that might be perceived as being soft on crime.

Since the 1980s, Pennsylvania and other states have experienced a dramatic spike in the prison census, spurred primarily by a crack down on illegal drug use.  The Commonwealth opened new prisons and helped counties to replace old ones.  Just as quickly, lawmakers adopted longer sentences and gave judges little discretion to shorten them, and later administrations curtailed parole releases.  It was like pouring one gallon of water into a bathtub and letting out one ounce.

Philadelphia jails are overflowing with more than 9,000 men and women in confinement, many housed three to a cell and locked down for 23 hours a day.  State institutions also are at 110 percent of capacity with almost 46,000 prisoners.  Anticipating the worst, the Department of Corrections has plans to build new prisons, reactivate a mothballed one and expand others.

So, Governor Rendell is proposing a package of changes that make a lot of sense.  Among the proposals is one that would move all county inmates whose sentences are from two to five years into state facilities.  These individuals are technically state prisoners anyway because their sentences exceed two years but they have been permitted by the judges in their cases to serve their time in the nearby county jails. 

The downside to serving five years in the county is that local prisons and jails are generally not well equipped to hold people for that long:  they lack programming and counseling capacities, spend less on staff training and are geared toward more rapid turnover. 

Making room for these 2,500 or so county prisoners could be accomplished, according to Jeffrey Beard, state secretary of corrections, by implementing a “recidivism reduction program.”  That’s a fancy name for one the governor’s other initiatives.

This program would permit early release on parole of certain nonviolent offenders in exchange for their active participation in rehabilitative programming.  In this way, these nonviolent offenders would minimize their exposure to the hardening effect of prisons, occupy expensive cell space for less time, and get therapeutic interventions designed to help them avoid re-offending. 

The Department of Corrections’ most recent study of recidivism showed that 46 percent of parolees return to prison within three years either for violating conditions of their release or committing new crimes.  This is a major source of admissions to the state system.

For the first time in years, the governor is shunning the “bring it on” response.  What he is proposing is a win-win approach, a way of addressing a persistent problem responsibly.

Legislators concerned about their reputations for being tough on crime need to give some thought to being perceived as smart on crime.  It truly is time to face the music and, well, dance.

A condensed version of this article was published in the Philadelphia Inquirer on October 2nd, 2007. William DiMascio is the executive director of the Pennsylvania Prison Society.

[Photo by Chrissie64]

Care for Parolees in Michigan

How is the Michigan Department of Corrections planning to cut another $100 million from its budget? Not through reduction of programming or staff cuts, but by paroling and recommending commutations for some of the thousands of chronically ill and dying inmates.

There are both moral and economic justifications for this plan. The sickest 300 individuals cost the state’s general fund more than $30 million last year alone; their care in the community costs less and provides eligibility for federal aid.

It seems that Michigan is handling this transition responsibly. As part of the Michigan Prisoner Re-Entry Initiative, the Michigan Department of Corrections is piloting a program in Muskegon that has so far helped 200 parolees. According to The Detroit Free Press, “The program will go statewide at a cost of $3 million over the next 3 years to help make sure sick inmates get proper placements, insurance and medical care.” Michigan’s Re-Entry Initiative has also reduced recidivism rates in the past two years by helping parolees find housing, jobs, and transportation.

Inmates seem to appreciate the way things are being handled. From The Detroit Free Press:

"It's some comfort knowing you're going to get some help out there," James McClendon, 31, "I feel like this gives me a chance to walk the straight and narrow."

Curtis Johnson, 45: "They made sure I had what I needed, and they were very professional. This is the first place that I've been treated like a human being."

Paroled -- Into Better Care

[Photo by Randbild]

U.S. Supreme Court to Consider Constitutionality of Lethal Injection Procedures

From the AP via the Death Penalty Information Center:

In a case with broad national implications, the U.S. Supreme Court has agreed to consider the constitutionality of lethal injections as practiced in Kentucky. The Justices will hear a challenge filed by two Kentucky death row inmates, Ralph Baze and Thomas Clyde Bowling, Jr. The two men sued Kentucky in 2004 claiming that the state's lethal injection process amounts to cruel and unusual punishment, noting that the procedure can inflict unnecessary pain and suffering on the inmate. Prior to today's decision, the U.S. Supreme Court has never ruled whether the mix of drugs used in lethal injections violates the Eighth Amendment's ban on cruel and unusual punishment. In a previous ruling, the Court had made it easier for death row inmates to contest the lethal injection process used across the nation.  The case is No. 07-5439, Baze et al. v. Rees et al.

[Image from Truth in Justice]

Human Rights Watch Report on Sex Offenders

This month Human Rights Watch released a report that unambiguously demonstrates that our policies regarding sex offenders are seriously flawed. If you have time to read the 146-page document, you're probably less stressed than we are. If not, we present some of the most revealing excerpts.

Unfortunately, our research reveals that sex offender registration, community notification, and residency restriction laws are ill-considered, poorly crafted, and may cause more harm than good:

• The registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk;
• Under community notification laws, anyone anywhere can access online sex offender registries for purposes that may have nothing to do with public safety. Harassment of and violence against registrants have been the predictable result;
• In many cases, residency restrictions have the effect of banishing registrants from entire urban areas and forcing them to live far from their homes and families.

The evidence is overwhelming, as detailed in this report, that these laws cause great harm to the people subject to them. On the other hand, proponents of these laws are not able to point to convincing evidence of public safety gains from them.

Human Rights Watch also points the problem of juvenile offenders.

For-profit prisons

 

This week, a huge prison expansion contract was “won” in Florida by GEO Group, Inc., one of the largest private operators of prisons. This will be the state’s largest for-profit prison in a newly competitive correctional industry.

Private prison operations have recently become an extremely profitable big business. This expanded prison, for instance, is expected to create $28.5 million in yearly profits. The town’s mayor, Charles Holman, told the Tallahassee Democrat, "It's a lifesaver ... It means so much to have these jobs."

Contracting state prison construction and management to private corporations is hailed by some as cost-efficient. Private prisons are required to operate less expensively than state institutions. For example, it will cost the new prison at Graceville $9.33 less per day per inmate than it costs the Florida State Department of Corrections.

How is this money is being saved? Do the private prisons cut back on worker pay and benefits, understaff their facilities, and provide subpar health care and inmate education programs? And does it work? A recent study by the University of Utah’s School of Social Work and Criminal Justice on the subject of private prisons found a 50 percent chance of saving money by going private, a 25 percent chance that the state would actually lose money, and a 25 percent chance that privatization would make no difference.

There are other disturbing issues around for-profit prisons. Will their existence create an incentive to lock more people up? We need to consider how a for-profit industry might have harmful effects on inmate rehabilitation and the overall health of our community.

Largest private prison in state set to open today in Graceville

Geo Group Wins Florida Prison Contract

Privatizing prison may not save money

 

[Image by gtmcknight]

Guards behaving badly: Graterford

4 Graterford guards charged

Tuesday's International: No high times in Japan

Japanese inmates at Abashiri prison noticed that marijuana was growing in their exercise yard, but instead of smoking it, they ratted it out. From AP Tokyo:

The marijuana plants started sprouting about a year ago, said prison official Takeshi Okamura. He said officials plucked out as many as 300 marijuana plants and treated the ground last year, but several more sprouted again this year.

Prisoners reported them to the guards.

They've been tested, but there's no evidence any of the prisoners have taken advantage of the hemp's presence.

Japan prison troubled by marijuana plants growing at exercise ground

Tuesday's International: Nigeria needs reform

Two incidents in the past few weeks in Nigeria have pundits calling for reform. From allAfrica.com:

On September 6 this year, the nation witnessed yet another riot in the Kano prisons which culminated in a jail break.

In their bid to quell the incident, security officials killed a number of the prisoners, some of who were awaiting trial. Barely days after, a similar riot broke out in the famous Agodi prisons in Ibadan. It resulted in another jail break. In trying to contain the unruly prisoners, security officials shot dead about a dozen of them.

Sad news. For more on this story, go here.