Pennsylvania Supreme Court to Weigh in on Death-By-Incarceration Lawsuit

Six Incarcerated People Challenging Lifetime Ban on Parole for Those Convicted of Felony Murder


To learn more about Scott v. Board of Probation and Parole, visit our case page.

Kris Henderson, Amistad Law Project, kris@amistadlaw.org

Bret Grote, Abolitionist Law Center, bretgrote@abolitionistlawcenter.org

Jen Nessel, Center for Constitutional Rights, jnessel@ccrjustice.org

October 25, 2021

HARRISBURG ‒ A lawsuit brought by six people serving mandatory Death-By-Incarceration sentences, commonly known as Life Without Parole, will go before the Pennsylvania Supreme Court, which will decide if a lawsuit challenging the practice can proceed. Represented by the Abolitionist Law Center, Amistad Law Project, and Center for Constitutional Rights, they seek an end to the prohibition on parole for those serving life sentences under the state’s felony murder rule. 

The felony murder rule, which exists in forty-four states, holds a person liable for murder if the person participates in a felony that leads to a death, even if the person plays no direct role in the death or does not intend or anticipate it. The application of the rule varies from state to state. In Pennsylvania, people found guilty are automatically sentenced to life, and a separate provision of state law prohibits parole eligibility for anyone serving life.

Scott v. PA Board of Probation and Parole, filed in July 2020, is the first case of its kind in the country. It argues that mandatory life sentences without the possibility of parole for those who did not kill or intend to kill do not serve any legitimate governmental interest and are illegally cruel under the Pennsylvania constitution. They join a movement of incarcerated and formerly incarcerated advocates and family members in using the term Death By Incarceration, which they say is the true impact of these sentences.

“We know that people are more than their worst moments in life,” said Nikki Grant, Policy Director of Amistad Law Project. “Our clients are simply asking for a chance to demonstrate to the Parole Board how they have changed. Everyone deserves the opportunity to show how they have rehabilitated themselves, that they can be redeemed and become an asset to their community.”

All of the people bringing the case were convicted in their late teens or early 20s. Though none directly caused or intended the death of the victim, they have spent between 24 and 48 years in prison ‒ the majority of their lives. Marie Scott, for example, was 19 when she robbed a gas station with a person who killed the attendant. Another plaintiff, Tyreem Rivers, was 18 when he grabbed the purse of an elderly woman who fell as a result. She was hospitalized and died two weeks later from pneumonia she had contracted in the hospital. Unless their legal challenge succeeds or the law is otherwise changed, these six people will almost certainly die in prison. 

Earlier this year, a lower court ruled that the plaintiffs, and the more than 1,100 others in Pennsylvania serving Death-By-Incarceration sentences for felony murder, are not even allowed to challenge the lifetime prohibition on parole. Their attorneys will urge the Pennsylvania Supreme Court to overturn this decision, so that their clients may proceed with their lawsuit.  

“Consigning anybody to die in prison is a disgraceful practice. Imposing this indignity on an overwhelmingly Black and Brown population on the scale that Pennsylvania does is a severe human rights violation and a primary mechanism for enforcing an apartheid justice system,” said Bret Grote, legal director of the Abolitionist Law Center. “Our movement intends to end this practice, and the Pennsylvania Supreme Court allowing this lawsuit to go forward would be an important step in the right direction.”

Pennsylvania’s Death-By-Incarceration sentencing scheme both reflects and exacerbates the racial disparities endemic to the U.S. criminal justice and penal systems. While only 11 percent of Pennsylvania’s population is Black, approximately 70 percent of people serving Death-By-Incarceration sentences for felony murder are Black. Overall in the state, Black people are sentenced to Death By Incarceration at a rate 18 times higher, and Latinx people at a rate five times higher, than white people. 

While this lawsuit focuses on a subset of people in Pennsylvania serving Death-By-Incarceration sentences, both the plaintiffs and their attorneys see it as a challenge to a system that frequently condemns people to die in prison. Even more so than imprisonment for non-violent drug offenses, harsh sentencing for more serious crimes drives mass incarceration. Indeed, advocates say heavy use of the Death-By-Incarceration sentence is perhaps the most distinctive and emblematic feature of the U.S. system of mass incarceration. 

“Prolonged incarceration serves no legitimate public purpose and is inherently cruel and dehumanizing,” said Samah Sisay, attorney and Bertha Justice Fellow at the Center for Constitutional Rights. “This case is part of ongoing abolitionist efforts to end Death-By-Incarceration sentences and gives Pennsylvania a chance to prioritize redemption and liberation by providing predominantly Black and aging people a chance to be released from prisons.”    

Pennsylvania is a global leader in Death-By-Incarceration sentences, which the U.S. Supreme Court has said are akin to the death penalty in their severity and irrevocability. In Pennsylvania, 5,200 people are serving such sentences, giving the state the country’s highest per capita rate and accounting for 10 percent of the country’s total. Philadelphia county alone has more people serving these sentences than 45 states – and more than any country other than the United States. In fact, Philadelphia’s rate of Death By Incarceration is higher than the overall incarceration rate of 140 countries.

Several legal organizations filed amicus briefs in support of the lawsuit. The MacArthur Justice Center submitted a brief that focuses on the racial disparities in Death-By-Incarceration sentences for felony murder; The Sentencing Project, which seeks an end to “extreme punishments,” submitted a brief, along with the International Human Rights Law Clinic at Berkeley Law and the Andy and Gwen Stern Community Lawyering Clinic at Drexel Law, that addresses the unconstitutionality of the lifetime parole ban and describes how such sentencing practices are outside the international norm; Seton Hall Center for Social Justice Eighth Amendment Scholars submitted a brief explaining why the lifetime ban on parole for this class of people violates the constitutional prohibition on cruel and unusual punishment; and the Defender Association of Philadelphia’s brief explores the capacity of people to evolve in prison and the positive influence that paroled “lifers” can have on communities. 


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. Abolitionist Law Center litigates on behalf of people whose human rights have been violated in prison, educates the general public about the evils of mass incarceration, and works to develop a mass movement against the American punishment system by building alliances and nurturing solidarity across social divisions. Follow us on social media: Facebook, Twitter: @AbolitionistLC.

Amistad Law Project is a public interest law center that fights for the human rights of people in our community by providing free and low-cost legal services to Philadelphians and those incarcerated in Pennsylvania’s prisons. Additionally, we advocate for laws and policies that reflect our vision for a new justice paradigm and organize events and activities to educate the public on their rights and the law. Amistad’s vision is to abolish the prison industrial complex and create alternative systems of accountability and healing while reducing the harm of the system in the meantime. Follow Amistad Law Project on social media: facebook.com/AmistadLaw, @AmistadLaw on Twitter and Instagram.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org. Follow the Center for Constitutional Rights on social media: Center for Constitutional Rights on Facebook, @theCCR on Twitter, and ccrjustice on Instagram.


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After 51 Years in Prison, Arthur ‘Cetewayo’ Johnson is Released

Cetewayo walks free with family members Julie Burnett and Sandris Windly beside him, just moments after his release on the evening of August 11, 2021.

August 11, 2021

After fifty-one years in prison on a wrongful conviction we are pleased that our client, friend and mentor Arthur ‘Cetewayo’ Johnson is being released today. His release is the result of an agreement with the Philadelphia District Attorney Office, in which Mr. Johnson, age 69, pled to a lesser offense allowing him to be released to his family and friends. 

ALC Legal Director, Bret Grote, said, “We are grateful to the Conviction Integrity Unit that Mr. Johnson is finally able to return home to his family. When I first met Mr. Johnson I promised we wouldn’t stop fighting until we brought him home. Today we fulfilled that promise.”

Mr. Johnson was convicted in the 1970 murder of Jerome Wakefield based solely on a signed statement that Mr. Johnson testified at trial he could not read. Mr. Johnson was arrested a mere two months after his Eighteenth birthday. He had only completed the fourth grade and did not begin to learn to read until he was incarcerated on this case. 

Evidence from the police file turned over to Mr. Johnson’s lawyers from the Abolitionist Law Center by the Conviction Integrity Unit in 2019 revealed that police had only obtained a statement implicating Mr. Johnson from a 15-year-old child that they had interrogated for 21 hours in a 30 hour period, including the last 15 hours consecutively. Not until more than 11 hours into that last interrogation did the child give a statement implicating himself and others, including Mr. Johnson.

Mr. Johnson testified at trial that he was physically struck by police officers during his interrogation, matching the testimony of Gary Brame, who was also charged and tried separately for the murder. Mr. Brame said Philadelphia police beat him until he signed a confession. He was sentenced to 7 ½ to 15. In 2020, Mr. Brame signed a statement admitting to the murder and disavowing that Mr. Johnson had anything to do with the crime.

The Philadelphia District Attorney Office offered to resolve this case on the basis of suppressed evidence of police misconduct if Mr. Johnson pled to a lesser offense. 

The Abolitionist Law Center fought diligently the past five years to bring Mr. Johnson home from an unjust sentence and conviction, however no one fought harder than Mr. Johnson and his family during the past fifty-one years. While we believe Mr. Johnson to be innocent of the charges he was convicted of, Mr. Johnson made the decision that was in the best interests of his family and decided to plead guilty to a lesser offense to be reunited with his family after decades of incarceration.

Our Executive Director Robert Saleem Holbrook, who during his twenty-seven years of incarceration was mentored by Mr. Johnson offers the following statement: “Arthur Cetewayo Johnson was a beacon of strength and hope to younger prisoners like myself who entered the prison system lost souls. Mr. Johnson was a mentor to so many of us who found ourselves struggling to survive the daily grind of prison life. I don’t believe we found justice in this case however we found freedom for Mr. Johnson, after fifty-one years of incarceration.”


MORE ABOUT ARTHUR ‘CETEWAYO’ JOHNSON:

Ceteywayo spent 37 years in solitary confinement. The Abolitionist Law Center represented him in a lawsuit against the Pennsylvania Department of Corrections for violations of his 8th Amendment rights. He was released from solitary confinement in the fall 0f 2017 after we won the case.

Throughout his incarceration, Cetewayo was consistently a target of state repression and human rights abuses, for his relationship to the Black Liberation Movement.

Cetewayo currently serves on the Prison Advisory Board of Let’s Get Free: Women and Trans Prisoner Defense Committee.

PRESS


After 50 years in prison — 37 in solitary confinement — Philly man’s conviction is vacated‘ by Samantha Melamed for The Philadelphia Inquirer (08/11/21)

‘Arthur “Cetewayo” Johnson Ordered Released After 51 Years in Prison’ by Chris Schiano for Unicorn Riot (08/11/21)

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

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: 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/