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]