Today oral arguments were heard at the U.S. Court of Appeals for the Third Circuit in the matter of the Pennsylvania Prison Society vs. the Board of Pardons. This lawsuit has been going on for 10 years now, so each step forward is welcome.
The Prison Society was represented by its solicitor, Stephen A. Whinston, who argued that the appeal to the district ruling by Judge A. Richard Caputo was necessary because Judge Caputo failed to order the Pardons Board to provide relief for the ex post facto violation, which means there is no remedy for those prisoners who have been adversely affected by the ex post facto application of the 1997 amendments. (Whew!)
The judges on the panel were Dolores K. Sloviter, Leonard Garth -- who joined the panel via teleconferencing -- and D. Brooks Smith. There was lively conversation and debate, particularly on the subject of standing, and whether this is a facial challenge. Judge Sloviter, in particular, repeatedly acknowledged that most prisoners never get commutation. This was her quick response when the Attorney General's representative argued that "not one of the plaintiffs have been negatively affected." Judge Sloviter replied that she doesn't know if they've been negatively affected; indeed, they must have been (and continue to be) if our argument is sound.
Additionally, Judge Sloviter pointed to the change in number of commutations granted depending on past governors. "Under Gov. Shapp," she said, "there were many commutations granted. We don't know who will be the next governor ... It takes a long time to get redress in Pennsylvania courts."
Was it a win for the Prison Society? It's not clear yet, but we finished strong and made our case persuasively. We're cautiously optimistic and will give updates when we have more information.
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