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Capitol Notebook

From the archives 2020

Protesters call on Pennsylvania AG to ‘show mercy’ and commute more life sentences

by Cynthia Fernandez |

Attorney General Josh Shapiro.
ANTHONY PEZZOTTI / Philadelphia Inquirer

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HARRISBURG — More than a hundred people rallied in Philadelphia and Pittsburgh on Tuesday, a protest organizer says, calling on Attorney General Josh Shapiro to “show mercy” by supporting more commutations.

The issue came to a head in December, when the Board of Pardons, charged with recommending commutations to Gov. Tom Wolf, voted in favor of just two cases out of more than a dozen. Lt. Gov. John Fetterman, who serves on the board with Shapiro, called it “one of the most dismaying days of my life.”

It was an abrupt change in a record-breaking year: Wolf granted 14 commutations in 2019, up from only one the previous year.

The protests outside Shapiro’s offices were organized by several reform organizations including the Coalition to Abolish Death by Incarceration.

“These rallies are spotlighting Shapiro who has been a consistent person voting against commutations,” said Lily Rorick, an organizer with the Philadelphia-based Amistad Law Project. “While we are working on these legislative solutions, Shapiro needs to vote to commute.”

A spokesperson for Shapiro said his “record is clear— he is a firm believer in second chances. That is a proven fact.”

Pennsylvania has the second-highest number of prisoners serving life-without-parole sentences in the U.S., according to the reform organization FAMM. These sentences are mandatory for first- and second-degree murder convictions.

For this population, commutation is often the only path to life outside of prison.

A commutation can only be recommended to the governor after a unanimous vote by board, which is composed of five members.

The bar was lower until 1997, when voters approved an amendment to the state Constitution to require a unanimous vote. The change was spurred by the board’s 3-to-2 recommendation to commute the sentence of Reginald McFadden, who went on to kill two people and rape another.

Between 1997 and today, the lifer population in state prisons has exploded.

According to the state Department of Corrections, there were more than 3,000 inmates serving life sentences in 1997. Their typical age was 39. As of January 2020, there were more than 5,000 inmates serving life sentences, with an average age of 49.

There’s bipartisan support in the legislature for rolling back the change.

Sen. Camera Bartolotta (R., Washington) has introduced a measure to change the threshold to a 4-to-1 vote. Another proposal from Rep. Joanna McClinton (D., Philadelphia) would reinstate the 3-to-2 majority in place before the 1997 change.

Both would require an amendment to the state Constitution, a lengthy process.

“When people are no longer a threat to public safety and we are housing them, it is a waste of resources,” McClinton said. “Seeing people aging, in wheelchairs, in their 70s and 80s — we need to have a process.”

Shapiro said in January he supports McClinton’s proposal. A review of Board of Pardons’ records shows her measure, as opposed to Bartolotta’s, could have the greatest impact.

Since Wolf took office in 2015, no recommendations have been denied by a 4-to-1 majority. There were eight cases, however, denied by a 3-to-2 vote.

Mark Singel, who voted to recommend commutation for McFadden as lieutenant governor in 1994, said the case has had a chilling effect.

“We basically slammed the door on folks and took away any reasonable hope they have of ever being free. That’s not fair,” Singel said Tuesday. “There are cases that cry out for mercy and justice.”

Fetterman and Shapiro are both Democrats who have adopted the progressive mantle. But their board records differ significantly.

In 2019, Fetterman voted to recommend commutation 30 times, while Shapiro voted to do the same 17 times, a Pennsylvania Capital-Star analysis showed.

During his campaign for lieutenant governor, Fetterman called for “substantive changes on issues like pardons.”

“Many of those condemned to die in prison committed their crimes as teens, but they’re now men and women in their 60s,” Fetterman wrote in December. “In many of these cases, the wardens of their prisons begged for their release during public hearings and pleaded that they represent zero risk to public safety.”

Shapiro has previously said he considers victim statements “first and foremost” when making a decision.

His spokesperson, Jacklin Rhoads, said Tuesday “several factors play a role,” including victim statements, the applicant’s criminal history, and “flaws and inequities in the criminal justice system.”

“Each of his decisions is based solely on the facts and circumstances of each applicant’s case,” Rhoads said.

That doesn’t satisfy Rorick of the Amistad Law Project. She supports legislative solutions but wants to see Shapiro vote for commutations when Fetterman is in favor.

The decisions made by the Board of Pardons can have political consequences for elected members, Singel said, but that comes with the job.

“It’s dangerous and it always has been,” Singel said. “But that’s what leadership is about. When you assume the duties of being on the Board of Pardons, you take an oath. You’re supposed to dispense your duties according to the oath of office and the Constitution. If you resign to playing safe and voting no, in my opinion, you’re violating your oath of office.”

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