Why is this controversial?

It is hard to believe that preventing the incarceration of innocent people is controversial. But that is the state of justice in Pennsylvania.

Today the advisory committee on wrongful convictions released its report. Committee chair Professor John Rago of Duquesne University School of Law and committee member Judge William Carpenter of Montgomery County presented the report to the Senate Judiciary Committee.

I have yet to read the report (it's available here), but Professor Rago and Judge Carpenter talked about some of their recommendations, including blind photo lineups, in which the officer presiding over a witness with a photo lineup does not know who the suspected perpetrator is, and audio and video recording of confessions.

This sounds like common sense. Who in their right mind would accept the incarceration of innocent people? Well, an independent response to the committee's report has been issued by prosecutors, police, and victims' advocates. I have not yet seen that report either, but a reporter tells me that the independent report claims that passing the committee's recommendations will give defense attorneys more room for shenanigans. (Update, 5:50pm: This Associated Press story further explains the position of those who oppose the study and its recommendations.)

Senator Stewart Greenleaf, the chairman of the Senate Judiciary Committee and the primary sponsor of the 2006 resolution that formed the advisory committee, pre-empted that argument in today's meeting, noting that recording confessions will make it more difficult for defense attorneys to challenge the legitimacy of confessions. He also said that implementing checks to stop wrongful convictions will give appeals attorneys less avenues and will keep guilty people from walking free on the streets.

Opponents of these recommendations need to explain why they fear accountability in the system and why they prefer a system that risks the incarceration of innocent people.

Looming over this, of course, is the imminent execution of Troy Davis in Georgia. No physical evidence links Davis to the murder of Savannah police officer Mark MacPhail in 1989. Seven of the nine witnesses against him have recanted, with some saying that they were coerced by police to identify Davis. Of the remaining two witnesses, one is a possible suspect in the killing.

This morning the Georgia Board of Pardons and Paroles denied Davis's request for clemency. Davis's execution is scheduled for tomorrow, and the governor has no clemency powers. The state of Georgia is willing to execute a man on no physical evidence and extremely flimsy witness testimony, at a time when the reliability of eyewitness testimony is increasingly called into question.

National ACLU has suggested action steps in response to the board's decision on its blog.

This problem is not isolated to Georgia. There are cases in Pennsylvania that are as weak as Davis's case and as questionable as the case of Cameron Todd Willingham in Texas.

The ACLU of Pennsylvania opposes the incarceration of innocent people. Apparently in Pennsylvania, that's a controversial statement.

Mom publicly shares her pain in support of juvenile justice reform

Legislative committee meetings are usually pretty dry affairs. Legislators and staffers pour through the details of bills while wonkish advocates look on.

But that was not the case in the PA Senate Judiciary Committee on Tuesday. The committee considered- and ultimately passed- a package of bills to reform Pennsylvania's juvenile justice system in response to the court scandal in Luzerne County, where two judges took kickbacks from a private detention corporation in exchange for sending more kids to the facilities.

There in support of the legislation was Sandy Fonzo. Ms. Fonzo became the face of the Luzerne scandal when she publicly lashed out at Judge Mark Ciavarella in February. In a brief statement, Ms. Fonzo told the committee the story of her son, Ed Kenzakoski. Ed was an all-star wrestler with high hopes when he was arrested for drug paraphernalia. His family thought he would get a sentence of community service, but instead Ciavarella sentenced Ed first to 30 days in a facility and then to several months at a boot camp more than an hour's drive from his home. Ms. Fonzo said that he returned an angry, depressed young man, a far cry from the happy teen Ed had been before he encountered Ciavarella. Last year, at the age of 23, Ed shot himself to death.

As Ms. Fonzo told her story at Tuesday's committee meeting, I could hear sniffles around me and noticed several people wiping their cheeks. This was not just another day at the legislature.

After Ms. Fonzo finished telling her story, the committee chairman, Senator Stewart Greenleaf, told her that her loss would not go unnoticed at the legislature.

The ACLU of PA supports SB 815, prohibiting parents and guardians from waiving counsel for juveniles, and SB 817, prohibiting the use of shackles on juveniles in court, and we look forward to helping this legislation find its way to the governor.

Video of Ms. Fonzo's statement and the statements of Senator Lisa Baker (R-Luzerne) and John Yudichak (D-Luzerne) is available at the PA Senate Republicans' website. You won't regret taking a few minutes to watch it. You can also watch an interview from the Today show with Sandy Fonzo and her lawyer and friend of the ACLU of PA Marsha Levick of the Juvenile Law Center.



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Prison Reform on Life Support

The effort to reform Pennsylvania's sentencing structures and alleviate its overcrowded prisons hangs on by a thread.

As a recap, Pennsylvania is in the process of building four new prisons by 2013. The construction costs alone will be more than $800 million, and the annual costs to maintain them will be $50 million each.

To relieve the current situation, the commonwealth has sent 2,000 prisoners to Michigan and Virginia, where they have beds available. The secretary of the Department of Corrections here says that the new prisons will be filled soon after they open, based on current projections.

Last month, the Pennsylvania Senate passed a package of three bills sponsored by Senator Stewart Greenleaf (R-Montgomery County) that would reform sentencing guidelines (SB 1145), make it possible for certain non-violent offenders to leave prison early, based on certain conditions (SB 1161), and create alternatives for technical parole violators, parolees who violate parole but don't commit a new crime (SB 1275).

In the last few years, 20 states have reduced their prison populations by setting up similar structures, and those states, by and large, have not seen an increase in crime. Why not Pennsylvania?

The House Judiciary Committee scheduled SB 1161 for a vote on June 23, as Chairman Thomas Caltagirone (D-Berks County) has been a vocal supporter of reform and relief to the corrections system. The plan was to amend the bill to add pieces of the other two bills into it. However, an error in drafting the amendment forced the committee to hold the bill.

SB 1161 was rescheduled for June 29. At that meeting, Dauphin County District Attorney Edward Marsico, who is president of the Pennsylvania District Attorneys Association, and a lobbyist for the Attorney General's office were given 40 minutes to address the committee and lay out their concerns with the bill. The concerns of the DAs and the AG lit a fuse under some reps, who piled on and offered their own problems with the bill. Lobbyists for the Department of Corrections and for the Board of Probation and Parole were also given a few minutes to speak. (DOC supports the reform, saying it could save us at least $60 million per year, and P&P is conditionally unopposed, with some minor changes.)

As a result of that ruckus, SB 1161 was held over again. Later that week, the legislature finished the 10-11 state budget, and legislators beat feet out of town.

The next opportunity for the House Judiciary Committee to consider this legislation will be after Labor Day, when both chambers return for a few weeks of session before Election Day. If the bill is amended, as expected, passes out of committee, and finds its way through the House, it will still have to go back to the Senate to vote on what's known as concurrence, when a chamber takes up a bill that it already passed but was altered by the other chamber.

I'm worried that prison reform may be dead for this year and maybe the next four years. This legislative session officially ends in November, and there will be only a few more weeks of session. A House staffer who is close to the action is convinced they can get it done. I hope he's right, and I'm wrong.

Andy in Harrisburg

I'm Just a Bill to Ban the Shackling of Pregnant Inmates

On Tuesday, the state House passed a bill to ban shackling of inmates during childbirth in the commonwealth's prisons and in county jails. The state Senate previously passed the legislation, so it heads to Governor Rendell for his signature, which is expected.

The reaction we usually get when we talk about this bill is shock that it's even necessary, but Pennsylvania would become only the eighth state to ban this cruel practice by statute. A few states also ban it by policy, as does the federal Bureau of Prisons and the federal Marshalls Service.

Hopefully you don't need this blog post to convince you why this bill is needed. To read our arguments, you can check out our press release after Tuesday's vote and also see the memos we submitted in support of the bill at our legislation page.

What I really want to write about is the process on how this happened. Numerous legislators from both parties and from both chambers played a role in getting SB 1074 to the governor's desk. If any one of them had balked, the bill would have died. It's very difficult to get legislation passed, even on a slam dunk issue like this one.

Consider the impact of these legislators:

Senator Daylin Leach. Senator Leach is the primary sponsor of SB 1074 and advocated for his bill. That should be a given, but often legislators introduce legislation but don't lobby for it. Senator Leach did that.

Senator Stewart Greenleaf. Senator Greenleaf is the powerful chairman of the Senate Judiciary Committee. (Leach is the Democratic minority chairman of that committee.) Like all chairmen, Greenleaf makes decisions about what bills will be considered by the committee. When Leach asked Greenleaf to consider SB 1074, Greenleaf was willing to do that.

Rep. Thomas Caltagirone. Rep. Caltagirone is the chairman of the House Judiciary Committee and ensured that the bill got out of his committee. In addition, when Caltagirone became concerned that the bill might not get a vote in the House, he amended the language into another bill in his committee. That set off a chain of events that got the bill on the House floor.

Rep. Babette Josephs. Rep. Josephs personally advocated with House leadership to get SB 1074 before the full House. Two days later, it was on the House floor. (Full disclosure, Rep. Josephs is a member of the board of our Greater Philadelphia chapter.)

Senator Dominic Pileggi and Rep. Todd Eachus. The majority leaders of their respective chambers saw to it that the bill did get a vote before their members.

Like a clock missing a gear, if any one of these steps had not occurred, the bill would have stopped.

For the record, if this bill is signed by the governor, it will be the first bill in the 2009-10 session supported by the ACLU of PA that has become law. For now, no bill we oppose has become law. This classic Schoolhouse Rock cartoon illustrates why that is.



Andy in Harrisburg

Duke lacrosse players get it

When the North Carolina Attorney General announced several months back that all charges would be dropped against the Duke lacrosse players, I heard one radio report that quoted one of the players saying that he knew that he only managed to find justice because his family had the money and that he recognized that there are many people who are done wrong by the criminal justice system because they cannot afford an attorney. I was very impressed by this but didn't hear it again in any of the media coverage.

In a column on June 22, Connie Shultz of the Cleveland Plain Dealer noted that the three players- Dave Evans, Collin Finnerty, and Reade Seligmann- attended a fundraiser for the Innocence Project on April 24:

They didn't want to talk to reporters, (Eric) Ferrero (of the Innocence Project) said. "We had about 20 exonerees at the dinner, and they [the former Duke students] kept saying the focus should be on those men. They kept mentioning how they would have gone to prison if they hadn't had the money to fight. We were all impressed that they could acknowledge that."

These guys get it. Too often, people don't get it until it affects them personally, but that's why we're out there doing the work we do. And we're grateful for people like Senator Stewart Greenleaf, who created the advisory committee on wrongful convictions; Pete Shellem of The Patriot News, who has freed four innocent people through his investigative journalism; and death row exoneree Ray Krone of York County, who is out there constantly talking with the public and the powers-that-be about how innocent people are convicted of crimes.

Andy in Harrisburg