"A grave miscarriage of justice"

Last week, after 21 years on Pennsylvania’s death row, James Dennis of Philadelphia finally had his moment of justice. Federal district court Judge Anita Brody ruled that the 1992 conviction of Dennis for the murder of Chedell Ray Williams was “a grave miscarriage of justice,” citing highly questionable eyewitness identification, evidence that was withheld from the defense by the prosecution, and ineffective assistance of defense counsel. 

Judge Brody went so far as to say that “in all probability he did not commit” this crime.

In 1991, Ms. Williams was killed when she was robbed for her earrings by two men. Prosecutors presented no physical evidence and never recovered the stolen earrings. Dennis was convicted and sentenced to death on the basis of three eyewitnesses.

But half of the witnesses to the crime described someone who was taller and heavier than Dennis and didn’t pick Dennis from a photo lineup. Even those three who did pick him and testified initially identified him with hesitation. Ms. Williams’ companion that day described the perpetrators as people she recognized from her high school, which Dennis did not attend. And a witness who could have confirmed Dennis’s alibi that he was on a bus miles away from the shooting gave the incorrect time of day that she saw him, an error of which the prosecution was aware.

The Philadelphia District Attorney’s office withheld this critical evidence from Dennis’s defense counsel. Meanwhile, his trial attorney never interviewed a single witness.

Judge Brody vacated Dennis’s death sentence and conviction and ordered a new trial within six months. Otherwise, Dennis must go free, according to the ruling.

Philadelphia District Attorney Seth Williams has yet to announce his next move, but in a statement reminiscent of his predecessor, Lynne Abraham, he claimed that Dennis’s appeals team is lying. Meet the new boss, same as the old boss.

This case should shock the senses. The commonwealth of Pennsylvania sought to execute a man under these highly questionable circumstances. Governor Corbett even signed a death warrant for Dennis in 2011, which was vacated by the federal court.

While those of us who work regularly on this issue- I’ve been doing it for 13 years- don’t really lose the outrage factor when we hear about a case like this, we are certainly not surprised by the circumstances that created it. Mistaken eyewitness identification is the number one reason why innocent people are convicted of crimes. According to the Innocence Project, 75 percent of people who have been exonerated by DNA testing were convicted by eyewitness identification.

Regrettably, official misconduct by public officials too often plays a role in wrongful convictions. While the Innocence Project does not quantify how often prosecutorial misconduct occurs, it notes, “DNA exonerations have exposed official misconduct at every level and stage of a criminal investigation.”

Finally, the commonwealth’s broken indigent defense system regularly leads to breakdowns in the criminal justice system. More than 200 death sentences have been vacated in Pennsylvania since capital punishment was reinstated in 1978, and a majority of those involved ineffective assistance of defense counsel.

The confluence of these missteps in this case led to the conviction of and a death sentence for a man that a federal judge now says is likely innocent.

The death penalty in Pennsylvania is a failed government program. Jimmy Dennis’s day in the sun has finally come. And the day of reckoning for capital punishment should not be far behind.

Cross-posted at Pennsylvanians for Alternatives to the Death Penalty

Death race

A few weeks ago, I was sitting in the office of a state representative, and the topic of capital punishment came up in conversation. This particular representative, who is young and white, said that he turned into an abolitionist when he realized the impact of race on death sentencing, particularly the race of the victim. 

As he said that, his office suitemate, another young state representative who is black, walked into the office. The first representative asked, “Do you know that if someone kills me they are more likely to get the death penalty than if they kill you?” His colleague replied, “Yeah, because you’re white. No one cares if a black guy gets shot.”

The statistics bear them out. Since the Supreme Court reinstated the death penalty in 1976, after a four year national moratorium, 77 percent of the victims in cases that led to executions were white. But white people are the victims in 50 percent of homicides. (See the website of the Death Penalty Information Center. ) 

Juries’ penchant for using the death penalty disproportionately in response to the murder of white victims is an expression of America’s shadow side that has plagued us since the first settlers arrived on these shores. Too many Americans value the lives of the majority population far more than the lives of people of color.

When I got involved in anti-death penalty activism 13 years ago, I did it simply because I thought the idea of the government murdering people was wrong. But my opposition gained depth when I learned how dysfunctional the capital punishment system is.

Despite the attempts of supporters to explain away the problems, the death penalty is poor public policy. Since 2007, five states have repealed the death penalty, and Maryland may follow suit this year. It’s well past time for Pennsylvania to do the same.

---Andy Hoover, Legislative Director, ACLU of PA

Can you take action to save a man's life?

Terry Williams at the age of 17.

It's been 13 years since anyone was executed in Pennsylvania. In the 1990s, three men voluntarily ended their appeals to accept death. It has been 50 years since anyone was involuntarily executed in the commonwealth. This, despite a bursting death row with more than 200 people, the fourth-largest death row in the country.

Terrance "Terry" Williams is at risk of being the first person executed against his will in Pennsylvania since John Kennedy was president.

The basic facts of Terry's case are not in dispute. In 1984, just a few months after his 18th birthday, he killed Amos Norwood in Philadelphia. Less than a year earlier, while he was still 17, Terry killed another man, Herbert Hamilton.

But there were key facts in Terry's case that the jury never heard, facts that may have convinced the jury to spare his life. Terry had been a victim of repeated sexual assault since the age of six, and his two victims had been abusing him. His trial attorney never investigated these facts, so the jury never heard them.

This case was and is a tragedy in every sense. Several jurors recently stated that they would have ruled for a life-without-parole sentence for Terry if they had known these facts. Some jurors have also said that they opted for death because they mistakenly believed that a life sentence would afford Terry a parole opportunity. Death and life-without-parole have been the only sentencing options for first degree homicide in Pennsylvania since the 1920s.

Terry's appeals options are exhausted, and his execution is scheduled for October 3. His attorneys are now asking the pardons board and Governor Corbett to commute Terry's sentence to life-without-parole. To be successful in that arena, the pardons board must first unanimously recommend a commutation. Governor Corbett must then agree and grant the commutation.

Support for commutation is strong and broad. Supporters include Norwood's widow, several jurors, 22 former prosecutors and judges, 34 law professors, 40 mental health experts, and more than three dozen faith leaders, including the Roman Catholic Archbishop of Philadelphia, Charles Chaput.

How can you help? Contact Governor Corbett directly and ask him to support clemency for Terry Williams. Sign the petition in support of clemency that currently has nearly 14,000 signatures. And learn more about the case at a website dedicated to Terry's plea for clemency.

Take action. A man's life depends on it.

2011 in Review: The death penalty for people with intellectual disability

For more than a decade, the ACLU of Pennsylvania has advocated to truly end the execution of people with intellectual disability, formerly known as mental retardation, in our state. Even before the U.S. Supreme Court's decision outlawing the practice in Atkins v. Virginia in 2002, we pushed for the passage of legislation to end this grotesque practice. 

Since that case, we have worked with disability advocates throughout the state and with members of the legislature to implement a procedure that would require a judge to decide before trial that a person has ID and cannot be executed.  On four separate occasions, including earlier this year, the state Senate passed legislation with this procedure with overwhelming bipartisan support, but the bill has never made it through the state House.

Last week, the long struggle to implement the Atkins decision in the commonwealth took a turn for the worse. In a case out of Lancaster County, the Pennsylvania Supreme Court implemented a procedure for trial courts to follow when a defendant in a capital case files a claim of intellectual disability (ID).

• The jury will rule on the claim
• The jury will hear the claim after it has convicted the person of first degree murder
• The burden is on the defendant to prove that he has ID
• The jury's ruling in favor of the defendant must be unanimous

So what does this mean? This means that all jurors in these cases must be what's known as "death qualified," meaning that they must be willing to implement the death penalty.  Research shows that death qualified jurors are more likely than non-death qualified jurors to trust prosecutors and police and are less likely to trust mental health experts.

As one friend in the capital legal world told me, the Supreme Court's ruling is what a court does if it wants to nullify the Atkins decision in Pennsylvania. People with ID who are on trial for their lives are more likely to end up on death row as a result of this ruling.

The fight is not over. There is no doubt that this ruling will be challenged in federal court, when an opportunity presents itself. But it is a reminder that the courts are not always our friend. It's a reminder that sometimes our issues must be resolved at the legislature. Former Governor Ed Rendell supported our position. The state Senate supported our position. But we couldn't get it through the House, and now we're left with a horrendous ruling from the state Supreme Court.

And this is why we need your support. Please consider making a year-end, tax-deductible donation to the ACLU of Pennsylvania because freedom can't protect itself.

Greetings from Harrisburg! Good news (yes!) from the state capitol

The news on civil liberties out of the state capitol isn't all bad. Learn more about three positive developments this week at the General Assembly. 
 

Please note that by playing this clip YouTube and Google will place a long-term cookie on your computer. Please see YouTube's privacy statement on their website and Google's privacy statement on theirs to learn more. To view the ACLU of PA's privacy statement, click here.

Our broken death penalty

Last week, Troy Davis was executed by the state of Georgia. This tragic event, despite the longevity of the events leading up to its conclusion and the focus it has drawn from the media and pop culture, is not by definition an unusual one.

Despite the fact that most Americans like to think of our justice system as being very thorough, especially when it comes to something as final as the death penalty, the fact is that there are too many who have slipped through the cracks. Nationwide, 138 people have been exonerated after being sentenced to death, including six in Pennsylvania, and some have been exonerated after their executions.

During the prosecution process there are too many outside elements that can interfere with the jury’s understanding of the case, leading to wrongful conviction. The largest of these interferences is eyewitness misidentification, which accounts for 75% of the wrongful convictions overturned through DNA testing, and played a major part in Troy Davis’ prosecution. Social science research has proven that the human brain does not have the ability to record events like a camera and is often quite malleable. Thus eyewitness testimony is often extremely inaccurate.

Playing a smaller, though no-less important, part in wrongful conviction is that of Forensic Science misconduct, which, though less talked-about, is slightly more nefarious. Though DNA evaluation has been examined again and again to prove its truthfulness, many other techniques used in the crime lab, such as hair microscopy, bite mark comparisons, fire arm tool mark analysis and shoe print analysis, have received no such examination and are therefore subject to occasional tampering. Other tampering, such as contamination of a crime scene and the planting of evidence can play a part.

Another factor, which may come as a surprise, but plays a no less substantial role, is that of false confessions. People who are being interrogated may in fact have many reasons to confess to a crime that they did not commit, which for mentally-incapable adults may include extreme interrogation lengths and being placed under other forms of duress by law enforcement. However, children and those who are mentally ill are often more likely to falsely confess due to a misunderstanding of the situation or an attempt to please authority figures.

Aside from the transgressions that can occur during the prosecution process, there are several large issues outside the courtroom that must be addressed. The common thought is that it is less expensive to put a prisoner to death than it is to keep them in prison. Contrary to this thought, recent studies seem to show that the death penalty is much more expensive than even life without parole. The lengthy conviction process, the cost of keeping prisoners on death row, as well as that of taxpayer-funded public defenders, all add up to a hefty bill. In fact, the majority of prisoners on death row are among the population too destitute to afford a private attorney, which in addition to the cost to the taxpayer for a public defender, often adds up to a poor defense.

Finally, the last issue at hand is the toughest; that of race. In the state I live, Pennsylvania, nearly 70% of those sentenced to die are members of a racial or ethnic minority. Sadly, this is the case across the country. This is not a reflection of which races are more likely to commit violent crime. It is unfortunately a reflection of which races our justice system are more willing to prosecute and which races our juries are willing to sentence to die.

In a society oriented toward retribution, advocating for the abolishment of the death penalty can be extremely difficult. When presented with these facts, however, more way be willing to reevaluate their views and be ready to accept an end to this still-instinctive aspect of our justice system.

Evan Stultz, ACLU-PA volunteer, Harrisburg

How innocent people are sentenced to death

Like so many things in life, the average American probably assumes that they or someone they love couldn't be wrongly sentenced to death. The Innocence Project explains how innocent people are convicted of crimes. In the aftermath of the execution of Troy Davis in Georgia this week, it's worth considering how it could happen to you.

While the ACLU of PA takes no position on the innocence or guilt of anyone currently before the courts, we know shady circumstances when we see them.

Your children die in a house fire. Dennis Counterman of Allentown, Daniel Dougherty of Philadelphia, and Cameron Todd Willingham of Texas all lost children tragically in house fires.

Counterman spent 18 years in prison, including 11 on death row, after prosecutors withheld evidence that cast doubt over his guilt and even cast doubt over the cause of the fire. He pled guilty to lesser charges after winning a new trial.

Willingham was executed in 2004. Forensic experts say that not only was he not guilty but the fire wasn't even arson. It was an accident.

Dougherty wasn't a suspect in the house fire that killed his sons until 14 years later when he and his wife went through a messy divorce. Dougherty is on death row today. The evidence in the Dougherty case is eerily similar to that in the Willingham case.

Someone you know is killed. Ray Krone, a native of York County who was a mailman in Arizona, was a regular at the bar where Kim Anacona was a bartender. In December, 1991, Kim was killed at the bar after closing. She had confided in a friend that she was romantically interested in Ray and that he would help her clean up that night. Ray was convicted largely on bite mark evidence, but it was discovered later that five dental experts told the district attorney that the bite mark on the victim did not match Ray. A sixth expert told the DA it did match, and the case moved forward.

Ray spent ten years in prison, including more than three on death row. His appeals options were largely exhausted when he was freed by DNA evidence in 2002. Krone's case was featured in the book The Death Penalty on Trial: Crisis in American Justice by A&E television personality Bill Kurtis.

Acquaintances of William Nieves (pdf) and Harold Wilson were murdered in Philadelphia in separate cases, and both Nieves and Wilson were sentenced to death. Nieves was acquitted at retrial when it was discovered that witnesses had identified the perpetrator as someone of a different race, and Wilson was acquitted at retrial, in part by DNA evidence from someone other than the victims and Wilson.

Walter Ogrod of Philadelphia is on death row today for the murder of a young girl from his neighborhood. No physical evidence ties Walter to the case, and he was convicted only on a questionable confession he gave after 30 hours at the police station and on testimony from a jailhouse snitch who made a career of testifying against fellow inmates. In 2004, City Paper of Philadelphia published a two part series on the case.

You're standing there with a crowd when someone is killed. That's what happened to Troy Davis.

The Davis case has brought energy around the death penalty that I have not seen in 11 years of abolition activism. National ACLU has an action page where you can do more to support the effort to end capital punishment.

Next week at the state capitol

Next week the Pennsylvania General Assembly returns to session after a three week break for budget hearings. Some people complain that we have a do-nothing legislature. And they say it like that's a bad thing.

Here's what's on tap. Our analysis, memos, etc. on these issues are available on our webpage for the current session, unless otherwise noted.

FLOOR VOTE! Death penalty expansion (HB 317): HB 317 adds two new aggravating circumstances for death penalty cases, bringing the total aggravating circumstances that allow a prosecutor to pursue a death sentence to an even 20. We oppose. I missed the memo that the death penalty has been a success. HB 317 is currently on the House calendar for third consideration.

Taxpayer-funded private school vouchers (SB 1): We expect this bill will be voted out of the Senate Appropriations Committee (with a $1 billion price tag?) sometime next week. It will get a vote on the Senate floor soon thereafter, although that may happen the week of Apil 11. We oppose.

E-Verify for state contractors (SB 637): The Senate State Government Committee is scheduled to consider this bill to mandate state contractors to use the federal E-Verify database program on Wednesday. Never mind that the Court of Appeals for the Third Circuit ruled in the Hazleton case that local governments can't do that. We want Pennsylvanians to make donations to the ACLU, but we want those to be private donations, not out of the general fund after we kick the commonwealth's a** in court. We oppose.

We don't have any published documents on E-Verify for this session, but if you're interested in more info, check out our webpage from the 2009-10 session.

Elimination of pre-HIV-test counseling and informed consent (SB 260): The Senate Public Health and Welfare Committee will consider this bill on Wednesday. Under current law, a person getting an HIV test receives pre-test counseling and must sign a form, aka informed consent, to get the test. SB 260 wipes out the counseling requirement and requires patients to opt out of the test, rather than opting in. That's a violation! Again, no new info posted yet on this one, but our 09-10 session page has some commentary on why this is wrong. Also, national ACLU's HIV/AIDS project has a lot of info on why patient privacy in HIV testing must be protected.

Voter suppression (HB 934): The House State Government Committee will hold an informational meeting on Wednesday on HB 934, a bill to suppress votes by requiring photo ID at the polls. Members of the committee will debate the bill but not vote on it until a later meeting that is yet unscheduled. You guessed it....we oppose.

Did I forget anything? Oh, in what is sure to provide plenty of entertainment, representatives from the Transportation Safety Administration (TSA) will meet with the House State Government Committee on Monday to discuss a resolution protesting TSA's extreme search tactics and a bill to create a new state crime of touching a person's genitals during a search.

Finally, Thursday is going to be action-packed for me. In the morning, I'll be testifying at the state capitol before the House Democratic Policy Committee on school vouchers. Then in the evening, it's off to Penn State for a panel discussion on sexting at the law school with Rep. Seth Grove (R-York County), Dauphin County District Attorney Ed Marsico, and Riya Shah, a staff attorney at Juvenile Law Center. It's at 6pm on Thursday in the auditorium of the Lewis Katz Law Building. If you're in the area, come by and say, "Hola!"

Greetings from Harrisburg, state budget edition

This week we react to Governor Corbett's mention of overcrowded state prisons in his budget address and give a preview of an expected House vote on House Bill 317, expanding the death penalty to add two new aggravating circumstances.



As always, you can check out our latest statements on civil liberties-related legislation at our legislative webpage.

Update, 5:34pm: Here is what Governor Corbett said about prisons during his budget address:

Last month my administration cancelled a prison project in Fayette County because we don’t need it and we can’t afford it. We also can’t afford to ask counties in our state to subsist on a prison-based economy. We need industries that generate wealth, not sorrow...

In 1993, Pennsylvania had 24,000 men and women in its prisons. Today that number is over 50,000. This number speaks to a failure. Sometimes it’s a failure in our schools, or in our society, but ultimately in the personal character of the criminal.

We need to fund additional parole officers to help freed inmates make the transition from the prison yard to Main Street. We need to think smarter about how and when and how long to jail people.

Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see YouTube's privacy statement on their website and Google's privacy statement on theirs to learn more. To view the ACLU of PA's privacy statement, click here.

Next week at the state capitol

Next week will be a big week at the state capitol as Governor Corbett gives his first budget address, a proposal that his budget secretary has suggested would be a "day of reckoning."

But on the civil liberties front, it appears all should be relatively quiet, for a change. Several bills in which we have an interest have been re-referred to the Senate Appropriations Committee, including Senate Bill 3, banning insurance coverage for abortion in the insurance exchanges created by healthcare reform, and Senate Bill 9, requiring government-issued ID for public aid. Bills expanding the controlled substances law are currently on the tabled calendar, and SB 1, the school vouchers bill, is expected to go to the Senate Appropriations Committee.

Though the legislature is always full of surprises, no committees are scheduled to vote on civil liberties-related bills.

The biggest potential threat this week is House Bill 317, which adds two new aggravating circumstances for capital cases. It would bring the total number of aggravating circumstances, i.e. circumstances in a homicide that could lead to the death penalty, to 20. At a time when Illinois and Montana are considering repeal of the death penalty, followed on the heels of repeal by New York, New Jersey, and New Mexico, this bill actually expands the death penalty here in PA.

It's possible that HB 317 could get a vote next week. One would think it would go to the House Appropriations Committee before getting a floor vote since the death penalty has proven to be a very expensive government program. But one never knows at the capitol.

After next week, the legislature breaks for several weeks for budget hearings. (Yes, I'm already thinking about the days off I'll be taking this month.) Ah, but civil liberties will still be on the docket this month, as the House Democratic Policy Committee will hold several hearings on school vouchers and the House State Government Committee will hold hearings on ID to vote (on March 21) and on a resolution asking the federal government to address concerns raised over TSA airport searches (on March 30).

In between, I'll be getting some rest. It will really crank up in April.

Video update from the state capitol

It was a rough day for civil liberties at the state capitol. The Senate Education Committee passed SB 1, creating taxpayer-funded school vouchers, and the House Judiciary Committee passed HB 317, creating two new aggravating circumstances for capital cases. Plus, Rep. Daryl Metcalfe has brought anti-immigrant legislation back to the fore with a press conference today.

Next week at the state capitol

Two weeks ago, little did we know that the fun was only beginning at the state capitol.

The death penalty is a failure...so let's expand it. Huh?
On Tuesday, the House Judiciary Committee will vote on House Bill 317. This bill will add a new aggravating circumstance for capital cases. A person could get the death penalty if the homicide also involves a sex offense and the defendant was required to register under Megan's Law at the time. There are already 19 aggravating circumstances that could lead to the death penalty, and one of those is committing homicide in the course of committing another felony. But with HB 317, we want to be very, very, extra special sure that the person gets death.

The Everyone an ICE Agent Act of 2011
On Monday, the House Labor and Industry Committee will vote on House Bill 439. This bill would penalize any licensed employer in PA who hires a person without papers by taking the employer's license. Of course, the bill doesn't explain how the licensing board or commission is supposed to determine that the business did hire an undocumented immigrant. Does this bill only kick in if the employer is cited by the federal government? Does the licensing board have to conduct its own investigations and train its members as ICE agents?

Can't we just put them on double secret probation?

State Constitution? We don't need no stinkin' state constitution
It hasn't been posted yet, but the word is that the Senate Education Committee will vote on Tuesday on Senate Bill 1, the school vouchers bill. We contend- convincingly, of course- that SB 1 violates not one, not two, but three different provisions of the state constitution. Our legal analysis and our testimony on SB 1 are both available on our legislative webpage.

Meanwhile, back on the floor....
We don't expect floor votes this week on any bills on which the ACLU of PA has a position, but SB 3- prohibiting insurance coverage for abortion in the insurance exchanges- and SB 9- requiring government-issued ID for public aid- both continue to linger on the Senate calendar. Both bills are expected to detour to the Senate Appropriations Committee, but I also expect them to get a floor vote at some point soon.

You see what I have to deal with on a daily basis? Truth is, though, that I love it.

Let's do the time warp again!

(I do realize that I've mixed my movie references. Just go with it.)

A friend of the ACLU of PA from an ally organization has said publicly that the state legislature is typically ten years behind the rest of the country. We can quibble over just how far behind the General Assembly is, but his point is well taken.

Early in the 2011-12 session, we've already had two reminders that our legislators are behind the times.

House Bill 41/Senate Bill 9: These pieces of legislation would require an applicant for public aid to show a government-issued identification before receiving that aid. Currently, most applicants show ID, but if they do not have it, the issuing department will work with them to get other records to establish ID.

The bill is framed as a way to stop people without papers from getting public aid, but there is no evidence that is actually happen. There is plenty of evidence, though, that a significant percentage of the citizen population does not have government-issued ID. According to the Brennan Center at NYU, 11 percent of US citizens do not have government-issued ID, and they are disproportionately the elderly, the working poor, and black adults. (pdf)

Colorado tried this in 2006 and lost money doing it. The state spent $2 million to implement the program and didn't save any money. Since then, some states have altered their verification process but without the ID requirement.

But here in PA the supporters of HB 41 and SB 9 continue to plow forward. Oh, and the Rendell administration estimated that these bills would cost $19 million to implement.

House Bill 308: At least with HB 41 and SB 9, what we've learned from other states is a relatively new phenomenon. When it comes to the death penalty, some of our state legislators are stuck in 1996.

House Bill 308 addresses capital cases in which the jury does not reach a unanimous verdict on the sentence. Under current law, if the jury is not unanimous, the judge implements a sentence of life without parole. This happened in a recent trial in Philadelphia in which the defendant was convicted of killing a police officer. Seven jurors wanted life and five wanted death.

HB 308 is the response to that trial. This bill would require a court to seat a new jury to hear another penalty phase argument. There is a mountain of evidence that shows that the death penalty is more costly than even life without parole. In the last three years, New Jersey and New Mexico repealed capital punishment, in part due to its large financial burden, and the Illinois legislature has passed a repeal bill, which awaits the governor's signature.

If HB 308 becomes law, it would only add to that huge payout that the commonwealth pays for the privilege (?) of maintaining the death penalty.

California has a law like this. It drags out the capital trial process, and it is expensive and painful to victims' families. The LA Times recently featured a story on the mother and grandmother of murder victims who is struggling to continue through the trial process and wants the prosecution to stop pursuing death. She just wants it to end.

They say adults have to hear something seven times before they learn it. Clearly, we advocates have our work cut out for us in bringing our legislators into this decade.

One day at the capitol

One day in the life of a lobbyist for civil liberties. Last Tuesday, May 4.

8:30am: Coffee klatch with a few legislators and lobbyists. Hilarity ensues.

9:30am: House Judiciary Committee meeting. The committee approves House Bill 739 to add a new aggravating circumstance for capital cases. A person could face the death penalty if, along with the homicide, they also commit a sex offense and they were required at the time to register under Megan's Law. Needless to say, ACLU-PA opposes and submitted a memo (pdf) to that effect.

Only outgoing Rep. Kathy Manderino voted in opposition. I'm not worried at all about this bill becoming law.

I've left difficult committee meetings with a headache in the past, but I don't yet have a headache.

10am: Rep. Metcalfe and his merry band hold a press conference to announce the introduction of legislation, House Bill 2479, similar to the recently passed law on immigration in Arizona. Our press release goes out as the presser starts.

The reps and advocates in favor of Metcalfe's bill sounded something like this:

Blah blah blah blah illegals blah. Blah blah invasion blah blah. Crime blah blah blah.

I tweeted it, with my own commentary.

Still no headache.

11am: Definitely no headache now- Senator Leach holds his press conference on medical marijuana. Chris Goldstein of Pennsylvanians for Medical Marijuana drops science with defiance.

12pm: Work the press room on immigration. ACLU-PA gets mentions in the Pittsburgh Post Gazette, Pittsburgh Tribune Review, Lancaster Intelligencer Journal, Pennsylvania Independent, and WITF-FM.

12:30pm: Lunch with the medical marijuana guys- Chris, Derek, and Jay. Brownies for dessert. (Just kidding.)

We ate in the capitol cafeteria, and as far as I know, no one has dropped dead.

2pm: Back to the office to catch up on my messages. I support a moratorium. On email.

3:30pm: Back to the capitol, meet up with allies working on prison reform issues.

4pm: Meet with Republican senator who is supportive of reform but not optimistic about passage this session.

4:45pm: Meet with Democratic senator who is supportive of reform.

5:15pm: Head back to the office to deal with emails on sex ed and LGBT discrimination and to send an update to my ACLU-PA colleagues.

6:20pm: Leave the office. No headache, no need for medical marijuana.

Another day in the life.

Andy in Harrisburg

Is that the Hallelujah Chorus I hear?

Yes, folks, we finally have a budget. Earlier this month – 101 days after it was supposed to be finished – the legislature passed a budget for the fiscal year we are already three and a half months into.

Aside from many, many agencies, schools, and organizations breathing a sigh of relief, what this also means is that the legislature can now get back to working on other things, including important bills on LGBT discrimination, capital punishment, and sex education.

A few to watch:

• House Bill 300

If you follow Speaking Freely or get email updates from us, you know that we were working hard on this bill – which would ban discrimination in employment, housing, and public accommodations on the basis of sexual orientation or gender identity or expression – before the budget impasse. We’re ramping back up now that the legislature is back on track and we need YOU to help get this bill moving again!

Even if you’ve done it already, please take a moment to let your representatives in Harrisburg know that this is something that’s long past due in Pennsylvania. There’s something for you to do no matter how much spare time you have.

If you only have two minutes:
Email your representative. Please take a minute and a half of your two minutes to add a sentence or two to personalize the email – for example, you might briefly summarize the story of a loved one who this law will affect; mention that as a person of faith, you support treating all Pennsylvanians with dignity and respect; or state that as a business owner, this is important legislation for you as you work to recruit and diverse and competitive workforce.

If you have five minutes:
Give your representative’s office a call and say the same thing. You can find the number by using the ACLU’s Find Your Legislator tool. Making a call often augments your voice with lawmakers – it is louder both literally and figuratively! If you have never done this before, don’t worry. All you need to do is tell the staff member who answers your name and address, the bill number you are calling about (HB 300), that you’d like Representative X to support the bill, and why (the personal notes mentioned above or a fact or two from our talking points).

If you have fifteen minutes:
Think about business owners or religious leaders you know who may be willing to sign on as supporters of this bill. Write a brief email or take a few minutes to speak to them about the importance of this bill and let them know that they can help show the diversity of groups that support anti-discrimination legislation. Have them contact us at aclupa@aclupa.org for more information about how they can help.

If you have half an hour:
Write a letter to the editor of your local newspaper. LTEs educate members of your community and are another way of making your voice heard with decisionmakers. You can see examples here or use our talking points for more ideas.

If you have an hour:
Visit your legislator! This is the most important way to make your voice heard with your lawmaker. Meetings can be held in-district (near your home) or in Harrisburg. Call your legislator’s office to schedule a visit. If you have never done a legislator visit before, contact aclupa@aclupa.org for help.

• Senate Bill 1110

This bill calls for a moratorium on executions while a comprehensive study of capital punishment in Pennsylvania is conducted. The study would include analyses of the death penalty’s impact on victims’ families, the potential for executing an innocent person, and the economic, geographical, and racial disparities present in the current system.

In 2007 the American Bar Association concluded that there is overwhelming evidence that the state’s death penalty system is flawed and that we are at risk of executing an innocent person. Among the problems with the death penalty are:

wrongful conviction – The most common causes of wrongful conviction are eyewitness error, government misconduct by the police and/or prosecution, mishandled evidence or the use of unqualified scientific “experts,” unreliable testimony from jailhouse snitches in exchange for a reduction in their sentences, and false confessions resulting from torture, mental illness, or mental retardation.

racial disparities – 69% of Pennsylvania’s death row inmates are racial or ethnic minorities, the second-highest death row minority rate in the country, and black defendants are more likely to be sentenced to death than white defendants, especially if the victim is white.

costs – Contrary to popular belief, it costs more to execute a prisoner than to house him or her for life. A new study released this week by the Death Penalty Information Center investigates other criminal justice needs that could use the hundreds of millions of dollars spent on capital punishment, including the need for 200 more police officers in Philadelphia.

deterrence – The science is inconclusive at best on the deterrent effect of the death penalty. Meanwhile, a national survey of police chiefs from around the country found that police chiefs do not believe the death penalty significantly reduces the number of homicides.

For more information on the death penalty, go to www.deathpenaltyinfo.org or check out our previous blogs on the subject.

• House Bills 1162 and 1163

After years of declining rates of teen pregnancies and teens contracting sexual transmitted diseases, those numbers are again on the rise. Why? Because the epic failure of abstinence-only-until-marriage education has come home to roost. Studies have shown that students who get abstinence-only sex ed don’t delay sexual activity and are less likely to use contraception than students who get comprehensive, science-based sex education.

The impact on public health is without question. Teen births cost the commonwealth more than $300 million per year.

House Bill 1163 (The Healthy Youth Act) would require all public schools that teach HIV prevention – which is all public schools in the state (although the bar for what qualifies as teaching prevention is low, e.g. “don’t have sex”) – to also teach comprehensive sex ed.

House Bill 1162 (The Notice Home Act) would require all schools that teach abstinence-only sex ed to send a notice home to parents informing them of the school’s sex ed curricula.

To learn more about this issue, visit the Pennsylvanians for Responsible Sex Education website.

Becca and Andy in Harrisburg

Texas closer to admitting it executed an innocent man

Antonin Scalia, no friend of justice, once said that if an innocent person had been executed in the United States, death penalty abolitionists would shout it from the rooftops. We've tried, and we've had some success. Innocence, above all other issues, has led Americans to increasingly doubt capital punishment since the Illinois moratorium in 2000. But we still have plenty of work to do.

I've long felt that the more zealous prosecutors and legislators get about pursuing death sentences, the more the public is turned off by the idea of the death penalty. The most zealous state, Texas, is on the verge of admitting that it executed an innocent man.

Cameron Todd Willingham was executed by the state of Texas in 2004 for a house fire in 1991 that killed his three children. Now The Chicago Tribune has learned that a nationally known fire expert has reported to the Texas Forensic Science Commission that not only is there no evidence that Willingham set the fire but there's also no evidence that the fire was even arson.

Among Beyler's key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams' house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham's injuries could not have been caused as he said they were.

We have at least one similar case here in PA- the case of Dan Dougherty, which has been featured on CNN and ABC News. Dougherty sits on PA's death row today for a house blaze that fire experts believe was probably not even arson.

I first heard about Dougherty's case two years ago. This afternoon, after hearing the Willingham news, I contacted a lawyer friend from the office that is handling Dougherty's appeal. While sparing you the gritty details, Dougherty is years away from any relief as he and his lawyers weave their way through the appeals maze.

People can reasonably disagree over the idea of the death penalty. But there can be no doubt that executing an innocent person is our government's worst nightmare. It's past time to end the debacle of the death penalty.

(h/t JR at Daily Kos, here and here)

Andy in Harrisburg

Executing an Innocent Man (Again)?

In 1991 Troy Davis was convicted and sentenced to death for the murder of Georgia police officer Mark Allen MacPhail. The case against him rested on the testimony of nine witnesses – no physical evidence ever linked Davis to the crime and the murder weapon was never found. Davis has always maintained his innocence.

Since the trial, seven of the nine witnesses have recanted their testimony, with several saying they were coerced into giving it by police. “They wouldn’t stop questioning me until I told them what they wanted to hear. So I did,” said one. Of the two remaining witnesses, one is the principal alternative suspect in the murder, who nine other witnesses have implicated. Nonetheless, Troy Davis has not been granted a new hearing to present the new evidence of his innocence or examine the reliability of the witness testimony that was used to convict him. The courts have cited technicalities - such as the Antiterrorism and Effective Death Penalty Act of 1996, which restricts the rights of state and federal prisoners to file habeas corpus appeals - in denying him such a hearing.

Is Troy Davis innocent? I don’t know. But for the state to execute a man when such serious questions remain on that issue illustrates the grave flaws with the death penalty system.

Since the reinstatement of the death penalty in 1973, 132 people in 26 states – including 6 here in Pennsylvania – have been released from death row due to evidence of their innocence. At least eight men with strong claims of innocence have actually been executed. A study by the Center on Wrongful Convictions at Northwestern Law School found that the most common reason for wrongful conviction in the 86 death row cases studied was eyewitness error, resulting from confusion or faulty memory. Other causes included government misconduct (by both the police and the prosecution), junk science (mishandled evidence or use of unqualified “experts”), snitch testimony (often given in exchange for a reduction in sentence), false confessions (resulting from mental illness or retardation, as well as from police torture), and other factors, such as hearsay or questionable circumstantial evidence.

Those who see the system up close – including a Texas DA who calls himself “no bleeding heart” – have started to recognize the problem with imposing the death penalty when clearly our processes for determining guilt and innocence are fallible. It’s time for the public to follow suit.

Becca in Harrisburg

Take Action:

1. Send an email to the governor of Georgia asking for clemency for Troy Davis

2. Ask your state representative to support Pennsylvania Senate Bill 628, which would ban the imposition of the death penalty in cases where the defendant is mentally retarded and require that the determination of mental retardation be made by a judge before the start of the trial

Common Ground on the Death Penalty

An important theme emerged this past weekend at the National Coalition to Abolish the Death Penalty’s annual conference in Harrisburg: the death penalty is not just about what a particular defendant deserves, but about what is best for society at large. There are those who are morally opposed to state-sponsored killing, and there are those who believe that the perpetrators of particularly horrific crimes deserve to die, but there are many things we can all agree on.

1. The safety of society is a major concern for everyone.

We all want to protect ourselves and each other from the worst offenders. While death penalty proponents feel that taking the lives of these offenders is the best way of accomplishing this goal, this may not be the case.

There is a great deal of doubt as to whether the death penalty is a deterrent to individuals who might commit capital crimes, a way to prevent murders from taking place. In fact, a survey of experts from the American Society of Criminology, the Academy of Criminal Justice Sciences, and the Law and Society Association found that the overwhelming majority – over 80% – do not believe that existing research supports the idea that the death penalty is a deterrent to homicide.*

While the death of a defendant who has already committed a homicide certainly removes him or her from society, there are other options – such as life in prison without parole – for doing this.

* (M. Radelet and R. Akers, Deterrence and the Death Penalty: The Views of the Experts, 1995. Cited on the Death Penalty Information Center website.)

2. Victims’ families have suffered devastating and unacceptable harm, and they deserve some type of restitution.

Again, many feel that if we do not sentence offenders to death, we are denying victims’ families the revenge they deserve and sending a message that their loved ones were not important.

Many families of victims, however, do not want to see the killer of their loved ones sentenced to death. This may be a moral standpoint, or it may be due to the very real ways in which the death penalty harms victims’ families. While executing the offender will not bring their loved one back, families will be forced to endure the lengthy capital appeals process, testifying again and again over the course of years – or even decades – and seeing media coverage of the crime over and over. Clearly, this impedes families from healing and moving on with their lives.

In addition, the most important thing to many families after a loved one has been murdered is information about exactly what happened to that person. The offender may be the only person who has this knowledge to give to the survivors. The death penalty may prevent families from ever getting this knowledge. Marietta Jaeger Lane, the mother of a kidnap/murder victim, did not know the whereabouts of her 7-year-old daughter Susie for a full year until the kidnapper called her on the phone. Her forgiveness of him over the phone not only led to his capture, but allowed her to have her questions about what had happened to her daughter answered.

While the current system offers victims’ families retribution – “we will kill the person who did this” – it often provides little of the ongoing help they need, such as mental health care and financial assistance. The capital punishment system expends enormous resources to execute the offender, rather than allocating these resources to programs that work with survivors to address the emotional and practical consequences of the loss of a loved one.

3. The idea that the state could execute an innocent person for a crime he or she did not commit is horrific.

Nonetheless, innocent people are sentenced to die and are executed far too often. The Death Penalty Information Center reports that since the reinstatement of the death penalty in 1973, 130 inmates have been released from death row due to evidence of their innocence. This is not solely a result of new DNA technology – in fact, the DPIC says that DNA was a major factor in proving innocence in only 17 of these cases.

Strong evidence also exists that innocent people have actually been executed by the state. For example, investigative reporting by the Chicago Tribune cast serious doubt on the guilt of Carlos De Luna, executed in Texas in 1989. (See story: Part 1 Part 2 Part 3 Part 4 Editorial)

4. If the death penalty is to exist, it should be applied fairly and used only to punish the worst offenders.

Overwhelming evidence demonstrates, however, that the death penalty is applied in a racially-biased manner, with non-white defendants and defendants whose victims were white being far more likely to receive a death sentence than white defendants or defendants whose victims were non-white.

The beliefs of individual prosecutors and the financial resources of the jurisdiction in which the crime took place are also major factors in determining who will live and who will die. For example, USA Today reported that while only 9% of murders in the state of Ohio took place in Hamilton County, 25% of the state’s death sentences were imposed there.**

** (R. Willing and G. Fields, "Geography of the Death Penalty," USA Today, December 20, 1999. Cited on the Death Penalty Information Center website.)

5. The death penalty costs a lot of money.

Due to court costs associated with capital appeals and the increased cost of housing an inmate on death row, it costs more to execute a man than it does to jail him for life.

The California Commission on the Fair Administration of Justice estimated in a 2008 report that the current death penalty costs the state $137 million per year, while a system that used life imprisonment instead of the death penalty would cost just $11.5 million per year.

Likewise, a 2008 study by the Urban Institute found that Maryland taxpayers paid an average of $3 million in court costs per death sentence – nearly three times what they would pay to obtain a sentence of life in prison. These were only the costs to prosecute a capital case and did not include costs such as housing the prisoner on death row or carrying out the execution.

The money we now spend on the death penalty could be used instead for preventative programs, increased policing, and victim services .

It seems clear that the death penalty is not serving the function it claims to serve in our society. Given the harm to victims’ families, the harm to corrections staff asked to carry out the execution of another human being, and the high monetary cost of the death penalty, it is in the best interests of everyone, whether morally opposed to the death penalty or not, to find alternatives for accomplishing our shared goals of protecting society, providing restitution to victims, and seeing justice fairly applied.

Becca in Harrisburg