Pennsylvania

Pennsylvania

DPIC Study Shows 97% of Prisoners Who Overturn Pennsylvania Death Sentences Are Not Resentenced to Death

In Pennsylvania, death-row prisoners whose convictions or death sentences are overturned in state or federal post-conviction appeals are almost never resentenced to death, a new Death Penalty Information Center study has revealed. Since Pennsylvania adopted its current death-penalty statute in September 1978, post-conviction courts have reversed prisoners' capital convictions or death sentences in 170 cases. Defendants have faced capital retrials or resentencings in 137 of those cases, and 133 times—in more than 97% of the cases—they received non-capital dispositions ranging from life without parole to exoneration. Only four prisoners whose death sentences were reversed in post-conviction proceedings remain on death row. Philadelphia cases accounted for more than half of the post-conviction reversals (86 cases) and 54% of the non-capital case dispositions (72 cases). DPIC reviewed all of the cases in which Pennsylvania death-row prisoners have won post-conviction relief. Contrary to the often-expressed perception that most death-penalty reversals occur in federal courts, state courts reversed twice as many Pennsylvania capital convictions or death sentences as did their federal counterparts. Pennsylvania death-row prisoners obtained state post-conviction relief from their convictions or death sentences—and, in some instances, both—in 116 cases. State courts granted 18 post-conviction petitioners new trials and vacated 108 death sentences. Of the vacated sentences, the state courts granted 91 new sentencing hearings, and declared prisoners constitutionally ineligible for the death penalty in 17 cases. Life sentences were imposed in fifteen cases as a result of a prisoner's intellectual disability and in two cases because the prisoner had been younger than age 18 at the time of the offense. Federal courts granted Pennsylvania capital habeas corpus petitioners relief from their convictions and/or death sentences in 58 cases, awarding new trials in 24 cases and new sentencing hearings in 44. Three death-row prisoners who were granted penalty-phase relief in state court later overturned their convictions in federal court. One prisoner who was granted a new penalty-phase trial by the federal courts also overturned his conviction after the case was remanded back to the state courts. The DPIC study found that 86% of the reversed death-penalty cases  concluded with a non-capital resentencing to life without parole. Those included 89 cases resulting from sentencing pleas or prosecutorial decisions to drop the death penalty, 12 capital sentencing retrials that resulted in life sentences, and the 17 cases in which defendants were declared constitutionally ineligible to face the death penalty. Two formerly death-sentenced prisoners—Nicholas Yarris and Harold Wilson—were exonerated, and a third, Frederick Thomas, died on death row while Philadelphia prosecutors appealed a trial judges' ruling that new evidence presented in the post-conviction proceedings established that no jury would have convicted him. Thirteen prisoners—including several widely considered to be innocent—pled guilty or no contest to lesser murder charges and were sentenced to time served or to terms of years. Six have completed their sentences and two others have been released on parole. The DPIC study found that the odds were 33.25 to 1 against a prisoner who won post-conviction relief remaining on death row. Six defendants were resentenced to death, but two of those death sentences were later overturned and the defendant resentenced to life without parole. The remaining four death sentences are still on appeal. Calling Pennsylvania's death-penalty system "riddled with flaws, ...error prone, expensive, and anything but infallible," Govenor Tom Wolf in February 2015 imposed a moratorium on executions in the Commonwealth. The state has not carried out an execution since 1999.

After 22 Years, District Attorney’s Office to Examine Possible Innocence of Philadelphia Death-Row Prisoner

Twenty-two years after Walter Ogrod (pictured) was sentenced to death for a murder he insists he did not commit, a new Philadelphia District Attorney’s administration has dropped the office’s long-time opposition to Ogrod’s request for DNA testing and has referred the case for review by a revitalized Conviction Integrity Unit. As that review proceeds, an hour-long documentary on the case—aired April 8 as part of CNN’s Headline News Network series Death Row Stories—presents what Philadelphia Daily News columnist Will Bunch describes as “compelling evidence that the snitch testimony that the Philadelphia District Attorney’s Office used to convict Ogrod was fabricated” and that the confession the intellectually impaired man gave to Philadelphia police was coerced. Ogrod was sentenced to death in 1996 for the high-profile 1988 murder of 4-year-old Barbara Jean Horn, whose body was found discarded in a television box on a Northeast Philadelphia street. No physical evidence linked Ogrod to the murder, but four years after the murder, police questioned the 25-year-old truck driver—variously described as “slow,” possibly autistic, and lacking “common sense”—for 14 hours, telling him he was repressing memories of the murder. In the documentary, a friend of Ogrod’s recounts that Ogrod signed a confession after police told him that if he didn’t, he would have to wait for a lawyer in a holding area with other prisoners and “you know what they do to child molesters down there.” Author Tom Lowenstein, who investigated the case and wrote the 2017 book The Trials of Walter Ogrod, says in the documentary that the 16-page confession, hand written by the detective, “is a flowing monologue of thought and process and description that Walter Ogrod is not capable of…. He could not have given the confession.” Ogrod was tried twice for the murder. In 1993, the jury in his first trial appeared to have acquitted him, filling out “not guilty” on the verdict sheet. But as the verdict was being read, one juror said he had changed his mind, resulting in a mistrial. Following the mistrial, Ogrod was celled with John Hall, a notorious (and later discredited) jailhouse informant nicknamed “The Monsignor” for his proclivity in producing confessions. Hall’s widow, Phyllis Hall, explains in the documentary that Hall introduced Ogrod to another prisoner, Jay Wolchansky, and worked with police and prosecutors to feed Wolchansky information to implicate Ogrod in the murder. Wolchansky then testified against Ogrod in his second trial, claiming that Ogrod had confessed. Phyllis Hall says her husband “would get some of the truth and he would sit in his cell and make up stories—and he was darned good at it.” For years, Philadelphia's district attorneys—first Lynne Abraham, who oversaw Ogrod’s prosecution, and later her successor, Seth Williams—fought requests from Ogrod’s lawyers to test DNA evidence that might prove his innocence. While campaigning for District Attorney in 2017, Krasner told Bunch “it is clear that for decades the practice and policy of the District Attorney’s Office has been to win convictions at any cost, too often at the cost of justice itself.” When he took office in January 2018, Krasner rankled many entrenched prosecutors by emphasizing a reform agenda that included a willingness to take a look at questionably obtained past convictions. Krasner has not spoken about the specifics of the Ogrod case, but told Bunch, “Four-year-old Barbara Jean Horn was murdered. If the wrong person went to death row for it—and I specify that I am saying if—then the person who did murder her walked free.”

After Supreme Court Denies Them Relief, Pennsylvania Death-Row Prisoners Resentenced to Life

Two former Pennsylvania death-row prisoners, whose death sentences were overturned by federal courts after the United States Supreme Court had ruled against them, have been resentenced to life without parole. On February 28, 2018, Scott Blystone (pictured) was resentenced to life by the Fayette County Court of Common Pleas in southwestern Pennsylvania, 34 years after being sentenced to death and 27 years after the U.S. Supreme Court heard his case. Two days later, on March 2, Joseph Kindler was also resentenced to life after the Philadelphia District Attorney's Office agreed to drop the death penalty in his case. Nearly 35 years had passed since Kindler had been sentenced to death and eight since the Supreme Court had ruled against him. Blystone's case was the first from Pennsylvania to challenge the state's law requiring the jury to sentence a defendant to death if it finds any aggravating circumstance present, but no mitigating circumstances. Blystone had been represented by a part-time public defender who had been practicing law for less than a year and had never tried a homicide case. The lawyer presented no defense at the guilt stage of trial and had no evidence to present in the penalty phase except for testimony from Blystone's parents. When Blystone refused to have his parents take the stand to beg for his life, the lawyer presented no case in mitigation. Even then, the jury asked the court whether it had to impose the death penalty if it found no mitigating evidence. The court answered in the affirmative, and the jury sentenced Blystone to death. In 1990, a divided U.S. Supreme Court upheld Pennsylvania's death-penalty statute by a 5-4 vote. The federal district court subsequently overturned Blystone's death sentence because of his lawyer's failure to investigate and present mitigating evidence of Blystone's brain damage, mental health diagnoses, and extreme mental and emotional disturbance at the time of the murder. Kindler also overturned his death sentence in the federal courts, after the Pennsylvania state courts had refused to consider Kindler's constitutional challenges to his conviction and sentence because he had escaped to Canada. The federal courts found multiple constitutional violations in Kindler's case, including that his lawyer had failed to investigate and present available mitigating evidence and that the jury had been given an instruction that unconstitutionally limited its ability to consider the mitigating evidence that had been presented. In a unanimous U.S. Supreme Court decision in 2009 dealing with federal review of state procedural rules, the Court overturned the grant of a new penalty hearing and sent the case back to the federal court of appeals. The appeals court again ruled in Kindler's favor, and this time the Supreme Court let that decision stand. 

Virginia Death-Row Prisoners Win “Landmark” Prison Conditions Lawsuit

In what lawyers for Virginia death-row prisoners have called “a landmark ruling,” a federal judge has issued an injunction barring the Commonwealth from subjecting prisoners who have been sentenced to death to automatic solitary confinement, physical isolation from visitors and other prisoners, and other harsh conditions. In a decision issued on February 21, Judge Leonie M. Brinkema wrote that the conditions to which Virginia subjected death-row prisoners before instituting reforms in 2015 violated the Eighth Amendment proscription against cruel and unusual punishments. Virginia had refused to commit to keeping the reforms, which it adopted only after the prisoners initiated suit, and the court's order prevents the state from reverting to the prior unconstitutional conditions. Before 2015, death sentenced prisoners spent about 23 hours a day alone in a 71-square-foot prison cell and were separated from visitors—including family members—by a plexiglass wall, although the warden had discretion to permit contact visits with family. For one hour a day, five days a week, prisoners were taken to a small “outdoor cell” with a concrete floor and no exercise equipment. Death-row prisoners were barred from the recreational facilities used by prisoners in the general population and allowed to shower only three times per week. Brinkema decided in favor of the three remaining death-row prisoners who had sued the state in 2014. While the suit was pending, one of the orginal plaintiffs, Ricky Gray, was executed and another, Ivan Teleguz, was granted a commutation. Lawyers for the prisoners said Brinkema's decision was the first time a court had ruled such conditions unconstitutional. In granting the prisoners' petition, the court said that “the rapidly evolving information available about the potential harmful effects of solitary confinement” set this case apart from prior prison-conditions lawsuits, and as a result the prior “decades-old determinations” by the Supreme Court and federal appeals court upholding death-row prison conditions were not binding. “As courts and corrections officers across the country have begun to realize, the years-long isolation that the pre-2015 conditions of confinement forced on plaintiffs created, at the least, a significant risk of substantial psychological and emotional harm,” Brinkema wrote. Kathryn Ali, one of the lawyers for the prisoners, said “[t]he law in this area is very bad but it's also very old. ... Judge Brinkema's ruling is a landmark ruling but i think its also just common sense, that we shouldn't be torturing people by keeping them in isolation.” Victor M. Glasberg, who filed the lawsuit on behalf of the five original plaintiffs in 2014, said the court's decision could have implications for prison-conditions lawsuits in other states. “This opinion should serve as a snowball let loose at the top of a snowy mountain, to turn into an avalanche as advocates in other states bring similar suits to end what has become increasingly recognized as untenable conditions in which to hold human beings,” he said. Under the reforms Virginia implemented in 2015, death-row prisoners are permitted to have contact visits with family members one day per week, for up to an hour and a half, as well as non-contact visits on holidays and weekends. They now have access to a covered outdoor yard for up to an hour and a half per day, five days a week. The yard has a basketball court and exercise equipment, which up to four prisoners at a time may share. Virginia now also permits daily one-hour access for up to four prisoners at a time to an indoor recreation space that has games, music, and a television. Death-row prisoners also are now permitted to shower daily.

Is Racially Biased Testimony Wrongly Subjecting Intellectually Disabled Defendants to the Death Penalty?

The U.S. Supreme Court's 2002 decision in Atkins v. Virginia categorically bars states from executing any person who has Intellectual Disability. (Daryl Atkins is pictured.) However, as reported in recent stories in Pacific Standard Magazine and the newspaper, The Atlanta Black Star, some states have attempted to circumvent the Atkins ruling by using social stereotypes and race as grounds to argue that defendants of color are not intellectually disabled. Prosecutors in at least eight states have presented opinions from expert witnesses that "ethnic adjustments" should be applied to IQ tests and tests of adaptive functioning that would deny an intellectual disability diagnosis to Black or Latino defendants who, if they were White, would be considered intellectually disabled and ineligible for the death penalty. "Ethnic adjustments" typically take one of two forms. One adjustment purports to compensate for perceived racial bias in IQ testing by boosting the defendant's IQ scores. A second form of adjustment is determining, based upon the expert witness's subjective views about a defendant's social conditions and culture, that impairments in day-to-day functioning that would be considered adaptive deficits for White defendants are not as rare for a person with the defendant's racial, ethnic, and socio-economic background, and so are not evidence of intellectual disability. Robert M. Sanger, a trial lawyer and professor of law and forensic science at Santa Barbara College of Law in California who wrote the 2015 law review article IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins called the use of these adjustments "outrageous." “What these so-called experts do," Sanger says, "is say that, because people of color are not as likely to score as well on IQ tests, you should, therefore, increase their IQ scores from 5 to 15 points to make up for some unknown or undescribed problem in the test.” Sanger has documented the use of ethnic adjustments by prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio. “The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound,” Sanger wrote. IQ scores, he says, are affected by a variety of  environmental factors "such as childhood abuse, poverty, stress, and trauma[, that] can cause decreases in actual IQ scores." Because people who experience these environmental factors "disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death." Moreover, the courts have repeatedly rejected the adjusting of test scores on the basis of race in cases that would benefit racial minorities, Sanger said, most prominently in cases in which African-American applicants for police or firefighting jobs had alleged that cities were using racially discriminatory tests. Sanger says "it’s sort of outrageous that you can adjust scores upward so you can be killed, but not so you can get a job.” In 2011, the Texas State Board of Examiners of Psychologists reprimanded psychologist Dr. George Denkowski for his misuse of ethnic adjustments in death-penalty cases. As part of an agreement dismissing disciplinary charges against him, Denkowski—who testified against sixteen Texas death-row prisoners, several of whom have been executed—was fined $5,500 and agreed that he would never again conduct intellectual disability evaluations in criminal cases. On January 4, 2018, Philadelphia prosecutors, who had used Denkowski's ethnic adjustments as part their argument that Pennsylvania death-row prisoner Jose DeJesus was not intellectually disabled, agreed that DeJesus should be resentenced to life. Ethnic adjustments are only some of the non-scientific barriers states have erected to avoid compliance with Atkins. In 2014, the U.S. Supreme Court ruled in Hall v. Florida that Florida had unconstitutionally emplyed an IQ cut-off score to reject claims of intellectual disability. In 2017, in Moore v. Texas, the court rejected the state's use of a set of unscientific lay stereotypes to claim that a defendant did not have the adaptive deficits necessary to be considered intellectually disabled. The Court called Texas's approach an "outlier" that, "[b]y design and in operation, ... create[s] an unacceptable risk that persons with intellectual disability will be executed." Moore reiterated that a court’s determination of intellectual disability in a death-penalty case must be “informed by the medical community’s diagnostic framework."

Pennsylvania Death-Row Prisoners File Lawsuit Challenging Automatic, Permanent Solitary Confinement

Five prisoners on death row in Pennsylvania have filed a class-action lawsuit challenging the Commonwealth's policy mandating solitary confinement for all condemned prisoners. The five named plaintiffs have been held in solitary confinement between 16 and 27 years each, kept in cells the size of a parking space, allowed out for a maximum of two hours per day for exercise, and denied human contact with family members during prison visits. The prisoners, represented by the American Civil Liberties Union, the Abolitionist Law Center, and three law firms, call these conditions "degrading" and "inhumane" and say the "policy and practice of automatically and permanently placing all death-sentenced prisoners in solitary confinement" is unconstitutionally cruel and unusual punishment. David Fathi, director of the ACLU National Prison Project, said Pennsylvania's death-row solitary confinment "until either the prisoner is executed, or dies of natural causes, or has his death sentence overturned is very different from the way solitary confinement is used for all other prisoners. For all other prisoners, you earn your way in and you earn your way out. You serve your punishment, and, if you behave, you can come back to the general population.” While many states still keep death-row prisoners in solitary confinement, that practice is changing. At least eight states have recently allowed death-row prisoners more time outside their cells, including Arizona, which changed its policy in 2017 in response to a similar lawsuit. According to the Pennsylvania suit, however, about 80% of those currently on death row have been held in solitary confinement for more than ten years. The United Nations' Standard Minimum Rules for the Treatment of Prisoners prohibits solitary confinement for periods longer than 15 days. One of the named plaintiffs in the lawsuit who has been held in solitary confinement for 21 years "describe[d] his experience as ‘psychological torture,’ where prisoners are ‘treated like animals’ and forced to ‘depend on everybody for everything.'" The lawsuit says "[h]e feels ‘trapped in [his] cell’ – and his ‘mind is like a popcorn machine.’” Pennsylvania's death-row conditions were challenged in 1980, but upheld by a federal court. “In the intervening time, there has been a sea change in the scientific understanding of solitary confinement and increasing recognition by the courts that this crosses constitutional boundaries when it is prolonged,” said Bret Grote of the Abolitionist Law Center. Just last year, a federal court ordered Pennsylvania to end its practice of keeping prisoners in solitary confinement even after their death sentences had been vacated, until they were formally resentenced or released. The retrial or resentencing process often took many years and, in some cases, took decades.

Pledging No Death Penalty, Larry Krasner Sworn In As Philadelphia's District Attorney

Saying “[a] movement was sworn in today,” long-time civil-rights lawyer Larry Krasner (pictured)—who pledged to end Philadelphia's use of the death penalty—took the oath of office on January 2 as district attorney in a county that only five years ago had the third largest death row of any county in the country. Krasner's inaugural address put a face on the “[t]ransformational change in criminal justice" he had called for during the election, saying it was time to begin “trading jails—and death row—for schools,” “jail cells occupied by people suffering from addiction for treatment and harm reduction,” and “division between police and the communities they serve for unity and reconciliation.” Krasner's election has drawn national attention, as social-justice activists focus on new strategies to bring about social change. The Los Angeles Times placed Krasner among "a growing list of district attorneys around the country ... who have declared that their role isn’t simply to prosecute, but to protect defendants from the excesses of the criminal justice system." The American Prospect described "[t]he relatively quick swing from a death penalty devotee to a crusading reformer at the helm of a major American city’s DA office [as] both a distillation of a long-brewing shift in the politics of crime—away from the standard tough-on-crime bromides and toward a smarter approach to justice—and emblematic of a new recognition from progressives that electing allies into DA offices could be one of the most effective ways to reform the system from the inside." Since 2015, "reform" prosecutors have been elected to replace prosecutors in counties historically known for their aggressive use of the death penalty, including Harris (Houston), Texas; Duval (Jacksonville), Orange (Orlando), and Hillsborough (Tampa), Florida; Caddo Parish (Shreveport), Louisiana; and Jefferson (Birmingham), Alabama. But Clarise McCants, campaign director for the racial-justice organization, Color of Change, is eyeing upcoming district attorney races in 2018, saying “[t]he small number of [reform-minded] prosecutors we have elected so far is nothing compared to the kind of impact we could have.” Krasner takes the reins of an office most recently headed by Ronald CastilleLynne Abraham, and Seth Williams. Castille served as district attorney from 1986-1991, obtaining 45 death sentences and then participating in appeals in those cases after being elected to the Pennsylvania Supreme Court. Abraham was dubbed “America's Deadliest DA,” obtaining 108 death sentences in her 19 years as district attorney between 1991 and 2009. She was replaced by Williams, who resigned after being convicted in 2017 of corruption charges. Krasner's election culminates two decades of dramatically declining death penalty use in Philadelphia. Death sentences, which averaged 9.9 per year in the 1990s, have fallen to an average of fewer than one per year this decade. 

Anti-Death Penalty District Attorney Elected in Philadelphia, the Nation's 3rd Largest Death Penalty County

Philadelphia, Pennsylvaniathe nation's third largest death-penalty county—has elected as its new district attorney a candidate who ran on a platform of ending mass incarceration and eschewing use of the death penalty. Democrat Lawrence Krasner (pictured), a longtime civil rights lawyer and opponent of the death penalty, who once joked that he’d “spent a career becoming completely unelectable,” received 75% of the vote in easily defeating his Republican opponent Beth Grossman. As a civil rights and criminal defense attorney, Krasner had represented political protesters and Black Lives Matter activists, and had sued the Philadelphia Police Department on numerous occasions. He has likened use of the death penalty to "lighting money on fire,” saying that capital punishment “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962.” A July 2015 DPIC analysis of death sentences imposed in Philadelphia reported that at least 148 death sentences imposed in the city since Pennsylvania reinstituted the death penalty in 1974 had been overturned. In that time, one prisoner from Philadelphia—who voluntarily dropped his appeals—was executed. Krasner called his election a "mandate" for "transformational change." He said, "[t]his is a story about a movement. And this is a movement that is tired of seeing a system that has systematically picked on poor people—primarily black and brown poor people." Those are the people who, historically, have been most disproportionately affected by Philadelphia's death penalty. A major study of Philadelphia's death penalty in the 1980s and 1990s documented that black capital defendants faced more than triple the odds of being sentenced to death than did other defendants, and that an estimated one-third of the more than 100 African Americans who were on the city's death row at the turn of the century would have received life sentences but for their race. Another study showed that death-sentencing in the city was heavily influenced by a defendant's physical appearance: the probability that a black defendant charged with killing a white victim would be sentenced to death doubled if the defendant was perceived as having "stereotypically African" physical features—darker skin, a broader nose, and thicker lips. Even as the number of death sentences imposed in Philadelphia has dramatically declined—falling from an average of 9.9 death sentences per year in the 1990s to less than one sentence per year this decade—the racial disproportionality of the death sentences imposed in the city has grown. Nine of the 99 death sentences imposed in Philadelphia in the 1990s were directed at white defendants, as compared to only one of the 25 death sentences imposed this century, and 45 of the last 47 people sentenced to death in the city have been defendants of color. 

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