The Batts II Decision: The Favorable and Where It Falls Short

 

Statement by Amistad Law Project and Abolitionist Law Center

The Pennsylvania Supreme Court released their opinion in Commonwealth v. Batts (Batts II), a case that decided the appropriate procedure and sentence for the approximately 500 Pennsylvanians who were sentenced to Juvenile Life Without Parole (JLWOP) before Miller v. Alabama. While Batts II reversed the unconstitutional sentence of life-without-parole imposed on 14 year-old Qu’eed Batts and created some procedural safeguards for the re-sentencings of the hundreds of Pennsylvanians serving an illegal JLWOP sentence, it also affirmed the status quo in current juvenile homicide sentencing and re-sentencing that imposes draconian mandatory minimums on children, all but guaranteeing they will not be released from prison until they spend more than twice their life span at the time of the offense locked in a cage. The legal work and organizing that has brought us this far has won crucial and necessary victories, but this opinion–and its shortcomings–remind us how much further we have to go to bring our people home so that they can demonstrate and live their redemption, be restored to the community, and be the leaders we need to foster healing and accountability.

In Batts II, the Pennsylvania Supreme Court reversed Batts’ sentence of JLWOP for the second time, holding that a JLWOP sentence was not supported by the evidence in the sentencing record, which showed that Batts–as a 14-year-old–had the attributes of a child recognized by the U.S. Supreme Court as rendering him less culpable and that there was considerable evidence of his potential for rehabilitation. The Court also held that the Commonwealth must give a defendant notice if it is going to seek JLWOP. Critically, the Court established that the prosecution must prove beyond a reasonable doubt that the defendant is permanently incorrigible and therefore incapable of rehabilitation when it is seeking a JLWOP sentence. These holdings should mark Batts II as a seminal opinion that finally brings Pennsylvania in line with the U.S. Supreme Court’s 2012 decision in Miller v. Alabama outlawing mandatory life without parole for children.

And because the notion of “permanent incorrigibility,” based on the idea that the government can determine that a child will never change or rehabilitate or mature for the rest of their life, is itself inherently unprovable and the judicial equivalent of the racist concept of the “Superpredator,” this decision marks an important milestone in ending JLWOP sentences once and for all.

We can pick apart the legal issues in the PA Supreme Court’s decision in Batts II but we would be remiss if we missed the fact that Qu’eed Batts is a person. The Batts II opinion lays out the multiple systems that failed him and the difficult life he lived prior to the homicide that led to his incarceration. We can look at these 500 JLWOP cases in Pennsylvania as legal issues, but we must also look at the defendants in these cases as people, who, as children, did very harmful things, but who, because they were children, are especially capable of change and redemption. Anything less is an affront to justice.

We believe in real second chances. Many people sentenced to die in prison as kids, like Qu’eed Batts, never had a first chance. This is where Batts II falls extremely short. Since the U.S. Supreme Court, in Montgomery v. Louisiana, ruled that Miller was a new substantive rule of constitutional law, Philadelphia has slowly moved to comply with the ruling and to resentence the 300 juvenile lifers who were convicted and sentenced in Philadelphia. The Philadelphia District Attorney’s Office has looked to 18 Pa.C.S. §1102.1(a), which is the statute that the PA legislature passed in response to the 2012 Miller decision. It created a 35 year minimum for first degree murder for people who were 15 to 17 at the time of their offense. It also specifically does not apply to people who were sentenced before Miller that make up the vast majority of those still serving unconstitutional JLWOP sentences.

The PA Supreme Court’s acquiescence to what is happening in Philadelphia and across the state should focus our attention on 1102.1(a) itself. Why are children who even the Commonwealth does not contend are “irredeemable” forced to spend a minimum of 35 years in prison before they can go before a parole board and argue for release? Why, after serving a minimum of 35 years in prison, are these people forced to spend the rest of their lives on parole? Children have a greater capacity for reform. Most people age out of criminal behavior by their thirties. This re-sentencing scheme keeps people sentenced to die in prison as kids incarcerated into their late forties or early fifties, at the earliest, before they are afforded the opportunity for someone to take a look at their case and decide if they should get a second chance.

Batts II is not a defeat but it is a call to continue fighting for justice and redemption and freedom. We don’t just want an end to the barbaric practice of sentencing children to die in prison. We also want a system that is transformative and fair.

The legislature, prosecutors, and courts in Pennsylvania are intent on conceding as little ground as they think they can get away with, holding the line like the segregationists of old, and seeking to preserve the punitive ethos and practices of a racist system of mass incarceration. It is our responsibility to fight this, to push the line further toward freedom and a new paradigm that centers restorative justice and the right to redemption.

PA Supreme Court Petition Challenges Mandatory Life Without Parole for 18-Year-Old Juveniles

Charmaine Pfender petitions PA Supreme Court, claiming that the mandatory life without parole sentence imposed on her in 1985 is unconstitutional.

Charmaine and her mother Donna.

June 6, 2017: A petition filed in the Pennsylvania Supreme Court on June 2nd is requesting that the Commonwealth’s highest court apply the U.S. Supreme Court’s recent holdings striking down mandatory life without parole sentences for juveniles to the case of a woman who was 18 years and 6 months old at the time of the homicide leading to her conviction.

Read Petition to PA Supreme Court HERE.

In 2012, Miller v. Alabama struck down mandatory life without parole sentences for juveniles convicted of homicide offenses. The Court’s holding was based on a recognition that “youth is more than a chronological fact”. Youth is marked by developmental characteristics of “immaturity, irresponsibility, impetuousness, and recklessness,” and is a “condition of life when a person may be most susceptible to influence and to psychological damage.”

Thus, the Court held that Mandatory life without parole “poses too great a risk of disproportionate punishment” because it “mak[es] youth (and all that accompanies it) irrelevant to the imposition of that harshest prison prison sentence[.]” Life without parole sentences pose a heightened risk of excessive punishment when imposed on youthful offenders because “[i]mprisoning an offender until he dies alters the remainder of his life ‘by a forfeiture that is irrevocable.’”. A life without parole sentence “imposed on a teenager, as compared with an older person, is therefore “the same . . . in name only’”

Charmaine Pfender, now a 51-year-old woman who has spent nearly 33 years in prison, was convicted in 1985 for the homicide of a man whom she has always maintained was trying to rape her. Ms. Pfender testified at trial that she reached for a gun under the front seat of the car she was parked in when Turkish student Engin Aydin attempted to force himself on her while holding a knife. After firing a warning shot and attempting to run away, she shot Aydin twice as he continued pursuing her outside of the parked vehicle.

Although her co-defendant also testified that Charmaine was in the back seat of the car with Aydin until she fled and the shooting occurred, Aydin’s friend testified that the two women attempted to tie them up for no reason and that Charmaine shot Aydin when he resisted. Charmaine has always disputed the prosecution’s version of events as a lie designed to cover up the assault against her.

 

Diminished culpability

In addition to her youth, Charmaine experienced extreme childhood physical, psychological, and sexual abuse, factors the U.S. Supreme Court held are relevant for determining whether a lesser sentence than life without parole should be imposed. Between ages 6-14 Charmaine was subjected to repeated abuse at the hands of her father, including vicious beatings and sexual violence.  Despite the severe trauma she endured, Charmaine has an exemplary record, devoting herself to personal growth and service during her time in prison.

As an 18-year-old who had previously been adjudicated a dependent of the Commonwealth and placed in a ward home at age 13, Ms. Pfender was still considered a child at the time of her offense under Pennsylvania law that recognizes adjudicated dependents as juveniles until they reach age 21.

The U.S. Supreme Court has cited to science on brain development in its recent cases on life without parole sentences imposed on juveniles that recognize how the areas of the brain involved in impulse control and risk evaluation continue developing through late adolescence and into early adulthood at age 22. And the cover of every issue of the Journal of Research on Adolescence, the flagship journal of the Society for Research on Adolescence, proclaims that adolescence is defined as ‘the second decade of life.’

Charmaine’s case sheds light on a large and looming problem in Pennsylvania’s prisons.  More than 5,400, or 10.3%, of those in the PADOC are serving sentences of life without the possibility of parole (LWOP), also referred to as Death By Incarceration (DBI). The increase in the LWOP/DBI population over the past 30 years has been a major contributor to the mass incarceration in Pennsylvania and across the country, as well as the rising costs of incarceration associated with an aging and elderly prison population. According to the Sentencing Project, Pennsylvania has the largest proportion of its prison population serving LWOP/DBI. Human Rights Watch identified Pennsylvania as having the second highest proportion of its prison population classified as elderly. And Pennsylvania has been the national and world leader in sentencing juveniles to life without parole, a practice now prohibited by the U.S. Supreme Court, resulting in ongoing re-sentencing proceedings for approximately 500 people.

Research and recidivism rates have consistently shown that aging and elderly prisoners pose a drastically diminished risk to public safety. Charmaine’s case is illustrative of that fact.

Since her incarceration over 32 years ago, Charmaine life in prison been marked by a complete absence of any violence, an exemplary disciplinary record, and an impressive list of achievements and record of service. She has participated in and completed several programs aimed at violence prevention, assisting survivors of sexual abuse, and utilizing restorative justice practices. Ms. Pfender has worked at numerous jobs during her incarceration, including many pertaining to her skills in carpentry and building and construction trades, skills that she obtained while in prison. Currently, she works with the Canine Partners for Life program as a dog handler for a Lion’s Club program that trains service dogs; she works as a Braille transcriber for the Lion’s Club; Create for Kids community work program; and she is the chairperson of special events committee in the progressive housing unit she lives on, which is an honors unit for inmates with exceptional disciplinary records. Ms. Pfender’s maturation into a community-oriented adult with an impressive record of service, educational and vocational achievement is also reflected in the fact that she has never engaged in an act of violence while in prison and maintained an exemplary disciplinary record over the course of 32 years.

The 18-year-old who made a fateful decision to accompany her friend for what she presumed would be a typical date has transformed her life. Charmaine is a living testament to the rectitude of the U.S. Supreme Court’s recognition that mandatory life without parole is an inappropriate and disproportionate punishment for teenagers, in part, due to their possessing less fixed characters and therefore being more amenable to rehabilitation. As anticipated by Miller and Montgomery, the continued incarceration of Charmaine Pfender serves no penological purpose and should come to an end.

 

Contact: Bret Grote

bretgrote@abolitionistlawcenter.org

412-654-9070

MEDIA RELEASE: Owners of Dog Shot by Pittsburgh Police Demand Criminal Charges be Dropped

Press conference – with the dog –  scheduled for 10:00 a.m. Wednesday, June 7 in case where police shot his own partner and a dog

King, pitbull, recovering after incident.

June 6, 2017: The owners of a dog who was shot by a Pittsburgh police officer on March 10, 2017, in the Hazelwood neighborhood are holding a press conference tomorrow, Wednesday, June 7 at 10:00 a.m. in the courtyard of the County Courthouse to demand that the criminal charges brought against them be dropped.

The dog, King, will be at the press conference to show how he has healed, how friendly he is, and that he is stronger than a police bullet.

Marlon Jackson, Devin Paige, and Saundra Cole are facing criminal charges after three plainclothes Pittsburgh police officers rushed into the yard of the Cole home on March 10, pursuing Mr. Paige for allegedly committing a summary offense. The officers drew their tasers. When questioned what they were doing by Mr. Jackson, the officers attempted to force him to remain outside by grabbing him by the shoulders as he was entering the house. When the door opened the family dog, King, came outside to see what was going on.

Bullet recovered at scene.

Although King is a friendly 4-year-old pit bull, about 60 pounds, who has never hurt anybody, officer Goetz panicked and drew his gun. Waving the gun in the tight area of the front porch, Goetz fired a shot, missing the dog but striking his partner, officer Brown, in the foot. King ran away across the street before officer Goetz fired another shot, striking him in the left buttock.

Officer Berberich later filled out a criminal complaint charging Marlon Jackson with aggravated assault, three counts of recklessly endangering another person, and animal cruelty. Saundra Cole was charged with Hindering the Apprehension or Prosecution for driving her car a few feet as she and her son were going to look for the wounded dog more than 30 minutes after the shooting. Neither her nor Mr. Jackson had been taken into custody.

“These are textbook ‘cover charges’, brought for the sole purpose of covering up officer misconduct,” said the family’s attorney, Bret Grote, Legal Director of the Abolitionist Law Center. “The charges are baseless and should be dropped immediately, and the officers should provide restitution for King’s veterinarian and surgery bills.”

Saundra Cole said she will continue to speak out: “Police officers cannot continue to treat our communities like a war zone and our children like enemy combatants. Racial profiling and trigger-happy policing in Hazelwood and the rest of Pittsburgh needs to stop.”

CONTACTS:

Sandra Cole        412-670-8421

Bret Grote           412-654-9070

 

Time to Fight Back: Statement from Legal Counsel in Support of Professor George Ciccariello-Maher

June 4, 2017: The Abolitionist Law Center, together with Eisner & Dictor, P.C. have been retained by tenured Professor George Ciccariello-Maher as legal counsel for the purpose of defending him from the ongoing efforts of reactionary forces to pressure Drexel University to unlawfully terminate him. Following months of concerted harassment of Professor Ciccariello-Maher and his employer, including numerous death threats against Ciccariello-Maher, Drexel University has caved into pressure and convened a so-called “Committee of Inquiry” to review unspecified “conduct” of the Professor in light of unspecified University “policies.” In doing so the University has intimated that the Committee may recommend termination of Professor Ciccariello-Maher’s employment.

As the Professor’s legal counsel we have notified Drexel University that any termination of his employment would be beyond the authority of this Committee as it has been constituted in violation of the University policy requiring that discipline or adverse action against tenured faculty must “be carried out under the standards approved by the American association of University Professors (AAUP).”[1] These standards are set forth in the AAUP’s Statement on Procedural Standards in Faculty Dismissal Proceedings[2] and its Recommended Institutional Regulations on Academic Freedom and Tenure.[3] The Committee of Inquiry has not been formed and is not proceeding pursuant to these standards, and as such any adverse action against Professor Ciccariello-Maher would be patently unlawful.

To be clear: any adverse employment action taken against Professor Ciccariello-Maher in this matter will render the University liable for breach of contract.

Thus, we are demanding that Drexel University abide by its avowed commitment to academic freedom and cease the ominous and unjustifiable inquiry into his political speech and opinions. The mere formation of the Committee of Inquiry that is investigating Professor Ciccariello-Maher’s “conduct” to ascertain if any “policies” of the University have been violated represents a dangerous, chilling precedent for any academic whose opinions or modes of expression contravene political orthodoxies.

On Saturday, June 3, in response to a request that Professor Ciccariello-Maher address the Committee, we wrote the Committee and the Provost requesting information regarding the conduct being investigated, the policies at issue, and the AAUP standards being used. We informed the Committee of the following:

This is a very serious matter. In recent months, Professor Ciccariello-Maher has been the subject of a concerted attack by forces of right-wing revanchism, including hordes of neo-Nazis and white supremacists of the alt-right, Fox news, and Pennsylvania Republican Party State Senators. These forces are broadly aligned around a virulent and reactionary project of chauvinistic nationalism that is mobilizing racist, sexist, homophobic, and transphobic elements of society pursuant to a politics of scapegoating. Academic freedom and free speech are values to be protected with even greater vigilance in such an environment. This Committee must critically and fearlessly evaluate how Drexel University has allowed itself to be put in a position where it is enabling these forces. Anything less falls woefully far beneath the standards of academic freedom that are supposed to animate a democratic society.

We are heartened to see the emerging mobilization on behalf of Professor Ciccariello-Maher and look forward to working with his supporters and all the others who are mobilizing against the ceaseless rightwing attacks on public intellectuals who make principled and serious commitments to combating white supremacy, challenging police violence, struggling for social transformation, supporting movements for liberation, and fostering an ethic of solidarity. Make no mistake about it, Professor Ciccariello-Maher is being targeted because he has made such commitments, and we will diligently participate in the fight back on behalf of our client.

 

/s/ Bret Grote

Bret Grote, Esquire

Legal Director
Abolitionist Law Center

 

/s/ Benjamin N. Dictor

Benjamin N. Dictor, Esq.

Eisner & Dictor, P.C.

 

[1] Drexel University Tenure and Promotion Policy, § VII. Termination of Tenured Faculty.

[2] Accessible at: https://www.aaup.org/report/statement-procedural-standards-faculty-dismissal-proceedings.

[3] Accessible at: https://www.aaup.org/report/recommended-institutional-regulations-academic-freedom-and-tenure.