The Fight to Free Avis Lee Continues Despite the Denial of Appeal by the Pennsylvania Supreme Court


Last week the Pennsylvania Supreme Court denied our Petition for Allowance of Appeal in the case of Commonwealth v. Avis Lee. The Appeal would have allowed people given life without parole sentences while young and with their judgment/impulse control still developing (but were over 17 years at the time of their offense) to apply for resentencing, like many juvenile lifers who were given that chance and are now thriving outside prison walls in our state.

Despite the scientific consensus on brain development indisputably supporting our argument, the Court denied the Appeal without explanation or justification; we’re disappointed since we believe that an honest, science-based review of Avis’ death by incarceration sentence would’ve found it unconstitutional and void, but we also have no illusions that the Superior and Supreme Courts serve the interest of justice.

For centuries, the higher courts have given legal cover to our country’s and state’s most appalling class- and race-based oppression, and only on rare occasions (and under intense public pressure) have they set aside the interests of money and power and ruled in the interests of justice. We have always seen legal strategy as one part of a larger movement of people most impacted by the justice system to challenge power, and we know that meaningful changes in the justice system will come from people organizing and resisting—and not from the morality and reason of judges or legislators.

While we will keep the legal fight up with three other litigation plans that challenge DBI sentences for those 18 as well as those serving DBI for second degree murder, we urge everyone to continue to organize, gather, lift up voices, and commit to dismantling this system brick by brick. We look forward to working with Avis on her commutation packet and know that she will be home one day.

At this time we are also reminded that our comrades at the Coalition to Abolish Death by Incarceration (CADBI) are convening in Harrisburg this Wednesday, the 23rd, in support of SB942. We stand in solidarity with CADBI and echo the call of the Superior Court for the legislature to end death by incarceration. No one is free until we all are.

In Solidarity Always,

The Abolitionist Law Center

Third Circuit Court of Appeals to Hear Argument in Challenge to 33 Years of Solitary Confinement on Death Row

On Tuesday, October 22nd at 10:00 a.m. in The Albert Branson Maris Courtroom, (19th Floor, U.S. Courthouse, 6th & Market Sts., Philadelphia, PA), a panel of the Third Circuit Court of Appeals Federal Court will hear argument in Ernest Porter v. Pennsylvania DOC, a case challenging 33 years of solitary confinement on death row as violating the 8th and 14th Amendment to the U.S. Constitution.

Porter has been held in solitary confinement since 1986 despite having a perfect disciplinary record in DOC custody. His death sentence was overturned in 2003, but he has yet to be resentenced due to ongoing appeals by the Commonwealth and himself regarding his death sentence and guilt-phase claims in his criminal case. The PA DOC is arguing that his ongoing appeals require his being buried in conditions that U.S. Supreme Court Justice Sonia Sotomayor referred to as a “penal tomb.”

In 2017, the Third Circuit held in Williams v. Secretary, that incarcerated people whose death sentences have been vacated had a liberty interest in removal from solitary confinement that entitled them to due process rights to challenge their isolation and be released to the general population of the prison. Despite that ruling, Porter remains in the capital case unit.

Porter filed suit in 2017 arguing that his indefinite solitary confinement which began in 1986 constituted cruel and unusual punishment under the 8th Amendment, and that the Third Circuit’s 2017 ruling entitled him to due process protections under the 14th Amendment. The Federal District Court for the Western District of Pennsylvania granted defendants summary judgment, throwing out Porter’s suit and leading to his appeal to the Third Circuit.

Porter is represented by the Abolitionist Law Center and Daniel Greenfield of the Roderick & Solange MacArthur Justice Center at Northwestern School of Law. Bret Grote, legal director of the Abolitionist Law Center, will be arguing for Mr. Porter.

The Abolitionist Framework Must Combat Ableism in Order To Ensure the Freedom and Equity of Those Behind Bars

The Abolitionist Law Center is proud to announce our Board President, Jamelia Morgan has published a journal article calling for the abolition of ableism while fighting back against mass incarceration. REFLECTIONS ON REPRESENTING INCARCERATED PEOPLE WITH DISABILITIES: ABLEISM IN PRISON REFORM LITIGATION explores the intersections of disabilities and abolition while tasking legal advocates to combat ableism with holistic representation of clients and a raising of a multidimensional consciousness. While the conditions in prisons and jails are often discussed, what is often overlooked is how these inhumane facilities often target and mistreat those living with mental and physical disabilities. Disability Justice is important part of the abolition framework as those with disabilities are overrepresented in the criminal system as a result of failed health policies and systematic disparities. Due to the fact prisons and jails are not inherently designed to treat people in humane ways, those who enter into incarceration with a disability or develop a disability while incarcerated, face a lack of services and programming which leads to debilitation and trauma. What is even worse is that many lawyers lack the requisite training and understanding to represent clients who have disabilities and often perpetuate ableism.

lawyers representing people with disabilities are forced to represent their clients as physically, mentally, and emotionally damaged. In the typical, wellpleaded Section 1983 complaint brought on behalf of incarcerated people with disabilities, the weaknesses and challenges of disability are on full display, not because of any individual plaintiff’s inability to overcome obstacles or challenges in carceral settings (as is often the nature of ableism reflected in rhetoric about people with disabilities in free society) but, rather, because prisons inherently were not built to meet the needs of people with physical or mental disabilities.

In combating ableism and amplifying disability justice as a practice, lawyers and advocates must not simply create an awareness of the issues impacting those living with disabilities but must also change the culture of the abolition framework to recognize the negative and often violent implications that arise as the result of ableist legal practices. As such, abolitionist may move to using better language in fighting for freedom and can use court filings to highlight the inherent structural injustices in the designs of prisons and jails.

As prisoners’ rights advocates, we must strategically and consciously resist ableist discourses and ideologies that present our clients as deserving of constitutional protection only where physical or psychological damage is readily apparent or diagnosable. Advocates must acknowledge structural disablement within carceral spaces and use language that affirms the humanity of people with disabilities locked up behind bars or steel doors.

Due to current systems, those living with disability while incarcerated are often from marginalized populations. In order to effectively advocate for this population of individuals, intersectionality dicates that abolitionists examine their complicity in ableist behaviors and ensure they are including impacted peoples in developing strategies and policies for transformative change.

Citation: Morgan, Jamelia, Reflections on Representing Incarcerated People with Disabilities: Ableism in Prison Reform Litigation (July 22, 2019). Denver Law Review, Vol. 96, No. 4, 2019. Available at SSRN: https://ssrn.com/abstract=3424341 or http://dx.doi.org/10.2139/ssrn.3424341

Media Release: Janet and Janine Africa are paroled after forty years of incarceration!!!

The Abolitionist Law Center and the People’s Law Office are proud to share that Janet Holloway Africa and Janine Phillips Africa of the MOVE 9 have been released from state custody after more than forty years of incarceration. Earlier this morning, the MOVE sisters were finally released on parole from SCI Cambridge Springs and are now with family and friends. The sisters have been battling for their freedom after being consistently denied parole for a decade despite an impeccable disciplinary record and extensive record of mentorship and community service during their time in prison.

Following their 2018 parole denial, attorneys from Abolitionist Law Center and People’s Law Office filed petitions for habeas corpus seeking their release from prison. The habeas petitions challenged their parole denials on the grounds that the decisions were arbitrary and lacking in any evidence that janet or Janine presented a risk to public safety. Under pressure from litigation and with a court date for May 28 looming, the Pennsylvania Board of Probation and Parole (board) granted Janet and Janine parole on May 14, 2019, just one day after the anniversary of the notorious May 13, 1985 bombing of the MOVE home.

“The release of Janet and Janine is a victory not only for them and their loved ones, but also for the MOVE Organization and the movement to free all political prisoners,” said attorney Brad Thomson of People’s Law Office. “Janet and Janine were excellent candidates for parole. They have been described by DOC staff as model prisoners and neither of them has had a single disciplinary incident in over twenty years. While in prison, they have participated in community fundraisers, and social programs, including training service dogs. They are remarkable women to deserve to be free.”

Like Debbie and Mike Africa, who were released last year, Janet and Janine are now able to experience holding their loved ones outside of prison walls for the first time in decades. The release of Janet and Janine after forty years is the culmination of the MOVE organization, public support, legal action, and policy changes.

Three other members of the MOVE 9 remain incarcerated (Chuck, Delbert and Eddie Africa), while two others (Merle Africa and Phil Africa) died in custody. Abolitionist Law Center and People’s Law Office represent Chuck, Delbert and Eddie in the struggle for their freedom. To support the fight, you may donate to the MOVE9 Legal Fund.

Press Contact:

Mike Africa Jr.,MikeAfricaJr [at] gmail.com

Brad Thomson bradjaythomson[at]gmail.com 773-297-9689

 

Media Release: PA Superior Court Urges PA Supreme Court to Review Whether Avis Lee can Challenge Life-Without-Parole Sentence Imposed at 18 years-old

For Immediate Release

Friday, March 1, 2019: The Pennsylvania Superior Court issued a unanimous en banc decision today disallowing Avis Lee the opportunity to challenge the constitutionality of her life without parole sentence, which was imposed for her role as a lookout in armed robbery 39 years ago that resulted in a homicide. The Superior Court held that it was “constrained to affirm” the lower court’s dismissal of Ms. Lee’s Post-Conviction Relief Act (PCRA) Petition on the basis that only the Pennsylvania or United States Supreme Court could permit a consideration of the constitutionality of Ms. Lee’s sentence. In reaching this conclusion the Superior Court wrote: “We would urge our Supreme Court to review this issue in light of the research [on adolescent social and neuro-development] available even since Batts II was decided in 2017.”

Ms. Lee brought this challenge to her decision in March 2016 after the U.S. Supreme Court’s decision in Montgomery v. Louisiana, which held that the right established in the 2012 decision of Miller v. Alabama that prohibited mandatory life- without-parole sentences for children younger than 18 years of age applied retroactively to older cases. In Montgomery, the Supreme Court found that the right in Miller was substantive, not merely procedural, and that it prohibited a sentence of life-without-parole – commonly referred to as “Death by Incarceration” – upon any defendant whose crime “reflected the transient immaturity of youth.”

In the Superior Court, Avis was arguing for the right to make an argument, to be heard on the merits on this issue for the first time, as she has never had the chance to argue that her sentence is unconstitutional under the new constitutional standards of Miller and Montgomery. On October 23, 2018, counsel for Avis argued in front of a 9-judge en banc panel that she deserves at least that one opportunity to challenge her sentence under current law, and there is nothing in state or federal law to prohibit that. The Philadelphia courthouse was packed to overflowing with the family members of those serving DBI sentences.

The offense Ms. Lee is currently serving a death-by-incarceration sentence for occurred in November 1979, when she agreed to serve as a lookout in an armed robbery. When the victim attempted to resist her co-defendant and older brother shot him, resulting in his death. Ms. Lee was convicted of 2nd degree felony murder, which in Pennsylvania is defined as a homicide that occurs in the course of another felony. The offense does not require any intent to kill on the part of the defendant, and it carries one penalty – death by incarceration.

Ms. Lee’s 2016 PCRA petition argued that a sentencing court should be required to consider the factors identified by the U.S. Supreme Court in Miller and Montgomery in order to determine if her sentence amounted to disproportionate punishment under the Eighth Amendment to the U.S. Constitution. The petition contained extensive discussion of the poverty, trauma, and violence that Ms. Lee had been exposed and subjected to since she the very first years of her life. The petition also included copious examples of her exemplary prison record, including going without any prison misconduct for more than a quarter of a century, and her involvement in numerous volunteer and service projects.

Ms. Lee is also widely known and admired for her irrepressible optimism, which she maintains in spite of her circumstances. When informed of today’s opinion, she said: “Thank you for standing by me and continuing to stay strong, because I will [too]. Eventually we will prevail.”

The Abolitionist Law Center represents Ms. Lee, along with Duquesne Law School Professor Tiffany Sizemore and University of Pittsburgh Law Professor Jules Lobel. ALC legal director, Bret Grote, said

We are not surprised by this outcome and have always recognized that ultimately it is the Pennsylvania Supreme Court that will determine whether the PCRA statute should be read consistent with its text and purpose and permit Ms. Lee the mere opportunity to argue this issue on the merits. It is beyond dispute that Avis, beloved and respected by all who know her, is serving a sentence that lacks any social or penological purpose. To read the law in such as a way as to keep the courthouse doors forever closed to meritorious claims against permanent punishment is to enshrine a tortured and incorrect formalism over substantive justice. We intend to appeal.

Abolitionist Law Center Communications Director, Miracle Jones, added:

When it comes to fighting against Death-by-Incarceration at the ALC defeat is not an option. We are part of a powerful and growing movement that will not rest until every person sentenced to DBI has the opportunity to return to their families and communities, until the right to redemption becomes the North Star of the justice system.

#FREEAVISLEE


Press Contact:

Miracle Jones
(She/Her/Hers)
412-346-6537 (google voice)
Director of Communications
Abolitionist Law Center
communications@alcenter.org

Media Release: En Banc Hearing Granted For Avis Lee

 

For Immediate Release 

October 16, 2018

(Philadelphia, Pennsylvania)

On Tuesday, October 23, at 9:30 a.m. the Abolitionist Law Center will argue at an En Banc hearing in front of the Pennsylvania Superior Court in the case is the Commonwealth v Lee, where the petitioner, Avis Lee, is arguing that the right established in the U.S. Supreme Court’s Miller v. Alabama and Montgomery v. Louisiana decisions applies to all adolescents and not just strictly to those who were under the age of 18 at the time of the crime. This groundbreaking case has the potential to alter the way the Commonwealth treats mandatory life without the possibility of parole (LWOP).

The petitioner in this case, Avis Lee, has served over thirty-eight years in prison. Like many people in Pennsylvania, Avis received a mandatory life sentence under a felony-murder charge. At the age of 18, Avis served as a lookout while her brother and his friend attempted a robbery. After a brief struggle, the victim was shot by Avis’s brother and collapsed in a parking lot. Avis flagged down a bus driver in order to get the victim help, but despite her efforts, he still passed away. Avis was convicted and sentenced to mandatory life in prison without the possibility of parole. Since her incarceration, Avis has completed extensive rehabilitative programming and performed countless hours serving others through her work in the prison and with community groups, including being a mentor and assisting in braille translations.

As described in ALC’s recently published report, A Way Out: Abolishing Death by Incarceration in Pennsylvania, as people mature, they are less likely to engage in criminal conduct. Of the more than 5,300 people serving life-without-parole in Pennsylvania, approximately half committed the offense resulting in their LWOP sentence before the age of 25.

 

This case therefore is representative of hundreds of individuals who were sentenced to mandatory life without parole in their youth but who are currently ineligible to be resentenced due solely to an arbitrary age cut-off.

 

Petitioner has argued to the Superior Court that the same scientific and legal reasoning behind Miller and Montgomery apply with equal force to those who were younger than 18 and those like Avis, who were adolescents and possessed the same characteristics of youth. The Court has decided to take the rare step of hearing the case en banc, meaning that 9 judges will hear the matter and will possess the power to overrule the Court’s earlier cases that upheld a cutoff at 18 years of age.

 

Allegheny County is the place where the crime occurred. The Allegheny County District Attorney’s office, headed by DA Zappala, is opposing the petition and has not shown a willingness to reconsider the pursuit of LWOP sentences. By contrast, Philadelphia District Attorney Larry Krasner came out in support of Pennsylvania Senate Bill 942 this month, legislation introduced by Senator Street that would allow parole consideration for all serving life sentences after 15 years.

 

That Avis Lee, who was 18 at the time of her offense and who had repeated and severe experiences of trauma in her childhood and adolescence, committed her offense during a time of ongoing maturation and development is a historical fact at this point. The question in front of the Court is whether she can proceed to a merits determination as to whether her sentence is excessive in light of Miller and Montgomery.

Contact: Miracle Jones, Abolitionist Law Center, communications@alcenter.org

Media Release: A Way Out: Abolishing Death By Incarceration in Pennsylvania

New Data: Philadelphia and Pennsylvania Lead the Nation and World in Life Without Parole Sentences

Comprehensive Study Shows that Life Without Parole Sentences in Pennsylvania are Imposed on the Young with Alarming Racial Disparities

(Pittsburgh, PA) Philadelphia County has 2,694 people serving life without parole sentences (LWOP), which is more than any other county in the United States and far more than any other country in the world, according to a new data analysis released today by the Abolitionist Law Center.  A Way Out: Abolishing Death By Incarceration in Pennsylvania [Full Report] [Abridged Report] found Pennsylvania has 5,346 people serving LWOP, making the state a national leader in the use of the punishment; only Florida, with twice the population, has more people serving LWOP. State Representative Jason Dawkins and State Senator Sharif Street have filed legislation that would allow parole eligibility for all lifers after 15 years of incarceration.

The report refers to life without parole as “Death by Incarceration” (DBI). Key findings include:

 

  • Most of the people serving DBI were convicted and sentenced when they were 25 or younger, a period of life when brain development and maturation remains ongoing, according to recent neuroscientific research.
  • More than 70 percent of those serving DBI are over 40 and nearly half (2,377 people) are over 50. The practice continues even though research shows that criminal activity drops significantly after age 40 and despite the fact that locking up a person over 55 is two to three times more expensive.
  •  Black Pennsylvanians are serving DBI at a rate more than 18 times higher than that of their white counterparts. Out of Philadelphia’s 2,694 people serving DBI, 84 percent are Black. In Allegheny County, 13 percent of the county’s residents are Black, but constitute 76 percent of those serving DBI sentences (409 out of 541 people).

“This report presents a definitive portrait of a punishment that is archaic, cruel, unjustified, and indefensible,” said Bret Grote, Legal Director of the Abolitionist Law Center and co-author of the report. “Death by incarceration sentences do not keep the public safer. The human and economic costs are staggering and growing by the year, as thousands of aging, rehabilitated men and women are locked away needlessly. Fortunately, there is also a rapidly growing movement determined to make parole eligibility for all lifers a reality.”

In all cases involving defendants 18 years of age or older, Pennsylvania law does not allow for individualized consideration of a defendant’s circumstances; instead it mandates automatic DBI sentences to many who never actually killed or intended to kill anyone. As the report states, DBI is “a failed policy predicated upon the fallacy that the trajectory of a person’s life – including their capacity for rehabilitation, transformation, and redemption – can be accurately predicted at the time of sentencing.”

Avis Lee is an example of a person serving a DBI sentence because none of the particulars of her case were taken into consideration at sentencing – and may have made a difference. Ms. Lee has served 38 years of a DBI sentence due to a robbery committed by her brother that tragically went wrong and someone lost his life. Ms. Lee was only 18 years old and had been told by her brother to serve as a look out during a robbery. Ms. Lee had turned to drugs and alcohol after a childhood riddled with sexual abuse, violence, poverty, and the death of her mother. After the shooting, she flagged down a bus and told the driver a man was injured. For more than 25 years, she has had no disciplinary infractions in prison. Earlier this year, the Pennsylvania Superior Court agreed to hear her claim that her mandatory life sentence was disproportionate because of her youth. There is hope for Ms. Lee, though not many others.

The Philadelphia DA’s Office is considering reviewing certain cases of excessive sentences, including mandatory life without parole sentences, and will pursue a lesser sentence when legally viable. The trend toward electing reform-oriented, less punitive district attorneys across the country could lead to similar efforts at sentence review being implemented in DA offices on a national scale.

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The Abolitionist Law Center is a public interest law firm inspired by the struggle of political and politicized prisoners, and organized for the purpose of abolishing class and race based mass incarceration in the United States. https://abolitionistlawcenter.org/

MEDIA RELEASE: MOVE Member Debbie Africa Released on Parole After Over 39 Years in Prison

Debbie Africa with her son, Michael, after being released from prison

Media Contacts

Brad Thomson bradjaythomson@gmail.com 773-297-9689

Bret Grote            bretgrote@abolitionistlawcenter.org      412-654-9070

June 18, 2018: On Tuesday, June 19, 2018 at 10 a.m., MOVE member Debbie Africa will make her first public appearance since being released from prison after 39 years and 10 months of incarceration. On Saturday, June 16, Debbie was released on parole from State Correctional Institution (SCI) Cambridge Springs. Debbie will be speaking at a press conference that will be held at Faith Immanuel Lutheran Church, at 65 Penn Blvd. in East Lansdowne, Pennsylvania. Other speakers will include Debbie’s son Mike Africa Jr. and Brad Thomson, one of Debbie’s attorneys.

Debbie said, “I am happy to finally be home with my family, but Janet, Janine and the rest of the MOVE 9 are still in prison, in the same situation that I was in and they deserve parole too.”

Debbie was imprisoned since August 8, 1978, following an altercation between the Philadelphia police and the MOVE Organization. Debbie was one of 9 MOVE members, collectively known as the “MOVE 9,” who were convicted and sentenced to 30-100 years in prison following the altercation.

Debbie was eight months pregnant at the time of the incident and gave birth in jail to her son, Mike Africa Jr. Debbie has been incarcerated for Mike’s entire life and the two spent time together outside of prison for the first time on Saturday, following Debbie’s release.

“After being born in jail and never being with my mom or dad, I’m happy to be with my mom at home for the first time ever in almost forty years. But my family is still incomplete because my dad is still in prison. Forty years of separation is not over for our family,” said Mike Africa, Jr. His father, Mike Africa Sr. is also one of the MOVE 9 and still in prison. Mike Sr. is scheduled to next appear before the parole board this upcoming September.

Janet Africa and Janine Africa, also of the MOVE 9, were denied parole after appearing before the Pennsylvania Board of Probation and Parole (PBPP) on the same day as Debbie. Debbie is the first member of the MOVE 9 to be granted parole. The surviving members of the MOVE 9 have been eligible for parole since 2008 and have each been denied parole when previously appearing before the PBPP.

One of Debbie’s lawyers, Bret Grote, of Abolitionist Law Center, stated, “This historic release of Debbie Africa renders the Parole Board’s decision to deny Janet and Janine all the more incomprehensible, as each has maintained DOC records that are as exemplary and essentially identical to that of Debbie.”

Debbie had not had a misconduct for violating prison rules since 1992. She also received the recommendation of the Pennsylvania Department of Corrections (DOC), as well as recommendations from Corrections expert and former DOC Secretary Martin Horn, and Philadelphia District Attorney’s Office. Janet and Janine also received the support of the DOC, Martin Horn, and the District Attorney’s Office.

In letters written to Leo Dunn, the Chairman of the PBPP, Carolyn Engel Temin, the Philadelphia District Attorney’s Office First Assistant, wrote on behalf of District Attorney Larry Krasner that she was “confident” that Janet and Janine “will not pose a threat to the Philadelphia community” and that their “continued incarceration does not make our city safer.” In spite of these letters, the PBPP cited the “negative recommendation of the prosecuting attorney” as a basis for denial.

Brad Thomson, of the People’s Law Office, who is also a lawyer for Debbie, Janet, and Janine stated: “It is shocking that Janet and Janine were denied parole. Their circumstances and institutional records are nearly identical to Debbie’s. The decision to deny Janet and Janine appears arbitrary and it is difficult to understand how the Parole Board could justify it based on the facts that were presented.”

“The Parole Board has the opportunity to correct its mistake regarding Janet and Janine, stop playing politics with parole determinations for the MOVE 9, and release our clients,” said Bret Grote. “If they do not take the chance to do the right thing, however, we fully intend to vindicate our clients’ rights and keep fighting until they join Debbie.”

In addition to Janet, Janine and Mike Sr., three other members of the MOVE 9 remain incarcerated, as two died in custody. During the August 8, 1978 altercation, a Philadelphia police officer was killed and following a highly politicized trial, the MOVE 9 were convicted of third degree homicide. All nine were sentenced to 30-100 years in prison. The six surviving members of the MOVE 9 are all eligible for parole.

 

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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