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.