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)

ALC Releases Report on PA Office of the Victim Advocate, Highlighting Office’s Pro-Retribution History, Calls for New OVA Appointee to be Advocate for All Victims

February 15, 2021

FOR IMMEDIATE RELEASE

CONTACT:

William Lukas, Abolitionist Law Center, wjlukas@alcenter.org

Dolly Prabhu, Abolitionist Law Center, dprabhu@alcenter.org

PITTSBURGH – The Abolitionist Law Center has published a report on Pennsylvania’s Office of the Victim Advocate. The report illuminates how the agency under former Commonwealth Victim Advocate Jennifer Storm has functioned as a pro-retribution lobbying arm funded by taxpayers, rather than a department that provides meaningful programming to survivors of violence and impacted communities. The report examines how throughout Storm’s seven-year tenure, the OVA advanced a reactionary anti-criminal justice reform agenda by advocating for harsh punitive legislation and increased criminalization, and opposing rehabilitation and decarceration.

According to the report, the OVA had a budget of $2.65 million in 2019 and provides next to nothing by way of programming or substantive direct services for crime victims. Since the OVA is only obligated to represent registered “direct victims” whose harm resulted in an arrest and criminal trial, the report acknowledges, “this legal definition likely excludes most survivors of violence in Pennsylvania” – including thousands of victims of unsolved rape cases and thousands of victims’ families of unsolved murders.

According to the report the OVA has 103,893 registered “direct victims,” yet data on race and ethnicity accounts for only 18.2% of these victims (18,887), while only 40% (41,816) have a known gender identity: 68% women and 32% men. The report compares data on the percent of registered victims versus the percent of victims of violent crime in 2018, illustrating how white residents are overrepresented among registered victims, while Black residents are vastly underrepresented, despite enduring higher rates of violent crime. In Allegheny County, 70.74% of registered victims are white and 27.31% are Black, yet the demographics of victims of violent crime are 49.62% white and 49.26% Black. 

Several OVA programs that are available to the registered direct victims are coded as “Restorative Justice”, which the report notes is “ultimately a cooptation that does not offer a pathway to repairing relationships” since the OVA has never offered nor advocated for alternatives to carceral punishment, but conversely has called for increased sentence time, increased surveillance, and increased fees and fines of incarcerated and paroled individuals. The report shares that in emails obtained in a Right to Know request, Storm even opposed the mere use of humanizing language of incarcerated community members, condemning the DOC’s decision to abandon terms like “offender” and “felon.”

The report highlights other contradictions between the OVA’s alleged mission of supporting victims versus how the Office conducts itself in practice. For instance, Storm’s OVA often advocated against sexual violence against children and rape culture at large, yet her Office remained consistently silent on the incredible prevelance sexual assaults and state violence that are endured by incarcerated youth in jails and prisons.

The report concludes by acknowledging that the data and legislative records left in the wake of Storm’s January resignation shows that the OVA only spoke for victims when there was an opportunity for punishment and that the agency failed to recognize victims of police brutality, carceral violence, and poverty – who are disproportionately Black – along with crime victims who advocate for healing justice over retribution. The report ends by remarking that the harm inflicted by the OVA can only begin to be undone when the Commonwealth appoints a Victim Advocate who “acknowledges the relationship between criminal justice reform and public safety, and acts as an advocate for all victims.”

To view the report, The Pennsylvania OVA: Criminalization, Punishment, And Retribution Under Jennifer Storm, click the download button or use the embedded PDF viewer below.

File name : OVA-REPORT-FINAL-02-05-21-1.pdf

Family Calls for Justice in Death of Tyrone Briggs

Tyron Briggs’ parents Shaleda and Ervin Busbee

Last week Tyrone Briggs, a 29-year-old from Philadelphia, died after Pennsylvania Department of Corrections (DOC) staff at State Correctional Institution (SCI) Mahanoy reportedly used force against him. Mr. Briggs had been incarcerated since he was 15 years-old, and he and his family were eagerly anticipating his release on parole in the near future; instead, his parents, friends, and community find themselves mourning and awaiting answers about why the life of their beloved son, cousin, and friend was taken.

While very little information has been released about Mr. Briggs’ death, there is strong reason to believe that aggressive conduct of DOC staff directly caused it. As the family seeks answers for the death of their beloved son, the Abolitionist Law Center will be representing Mr. Briggs’ parents, Shaleda and Ervin Busbee. We will accompany and fight with them to ensure that Mr. Brigg’s death does not become yet another extrajudicial killing by the state that goes by without justice and accountability.

Tyrone’s father, Ervin Busbee, said: “The lives of the inmates in there matter, they are someone’s son, daughter, father, mother, brother or uncle. They are human. Why are you painting my son as an animal? Tyrone’s life mattered. His Mother will never get to see him again. The last time she saw him was behind glass on a visit, and the next time she’ll see him will be in a box. We took pictures of Tyrone to church every week so our congregation would get to know him and they were awaiting his presence at service when he came home. Now our church will be burying him. Why hasn’t the prison offered its condolences? We want justice.”  

ALC’s Director of Community Organizing, Robert Saleem Holbrook, emphasized the importance of supporting Mr. Briggs’ family and pursuing systemic change: “The Busbees are victims. Their son Tyrone was violently taken from them. We will not only pursue justice in this case but will also ensure that measures are taken in the future to prevent such reckless use of force on prisoners, whether restrained or unrestrained. As investigations proceed we want to be clear at the outset that victims of state violence are entitled to the full range of victim services in the Commonwealth.”

Legal Director of the Abolitionist Law Center, Bret Grote, stated that “Whether committed by a police officer or a prison guard, extrajudicial killings of Black people in this country are an epidemic. Our clients have joined a tragic community of those who have lost loved ones to state violence. We are asking our larger movement family to come together and support them in this time of grief.”

A GoFundMe page has been established by the family to help with costs associated with Tyrone’s death. Please visit this LINK, contribute, and share widely.

We Abolished Death Row Solitary Confinement in Pennsylvania!

This morning we filed a motion for preliminary approval of a settlement agreement that permanently ends solitary confinement for all death-sentenced people in the Pennsylvania Department of Corrections (DOC).

Up to now, every person sentenced to death in Pennsylvania has been forced to live in austere conditions of isolation that have been recognized as torture by the UN and the human rights movement around the world. Pennsylvania hasn’t executed a prisoner since 1999 and currently has a moratorium on executions, so many prisoners on Death Row have been living in solitary for decades. The last three executions were of people who had “volunteered” by giving up their appeals, quite possibly to escape the torturous conditions. Today, we have achieved a legally enforceable agreement to ensure that the 136 people living with death sentences can await a full adjudication of their cases without the added cruelty of solitary confinement being imposed on them.

According to the settlement, the DOC will still house people who are sentenced to death in specific prisons, but has agreed to offer the rights and privileges afforded to people in other state facilities. These changes are likely the most sweeping set of reforms to a capital case unit in the country: 

  • At least 42.5 hours out-of-cell activity every week, including yard and outdoor time, law library time, congregate meal time, treatment or counseling meetings, congregate religious worship, work assignment, and phased in contact visitation;
  • Permission to use the phone on a daily basis  for at least 15 minutes per usage;
  • Incarcerated people will not be subjected to strip-searches, shackling, or other restraints, unless security measures are required in response to a temporary, emergent situation;
  • Contact visits with family, lawyers and religious advisors; and
  • Resocialization assistance for individuals psychologically damaged by long periods in solitary confinement to help them in the transition to living in a general population setting, as well and physical and mental health baseline evaluations due to years of neglect.

Despite decades spent in inhumane isolation, our clients have organized and persevered in this historic achievement for the movement to abolish solitary confinement in Pennsylvania. They have set a powerful precedent for ending solitary confinement of capital case prisoners —  and eventually the death penalty as a whole — across the country. Many of our clients have been able to embrace loved ones for the first time in decades in recent months because of this settlement. 

Lots of gratitude to ALC President Jamelia Morgan, whose work on this was critical in driving the case, and to our co-counsel at the ACLU of PA, ACLU National Prison Project, Susan Lin of the Kairys, Rudovsky, Messing, Feinberg & Lin law firm, and Drinker, Biddle, & Reath.

Most of all, thank you to the Plaintiffs and class representatives who organized their own legal representation and pushed for this: Anthony Reid, Ronald Gibson, Mark Spotz, Jermont Cox, and Ricardo Natividad. We are proud to represent them.

Finally, your support is what makes this work possible. If you’d like to ensure more victories like this in the future, please DONATE to the Abolitionist Law Center.


More information about the lawsuit, Reid et al. v. Wetzel, is available at this link: https://www.aclupa.org/en/cases/reid-et-al-v-wetzel

Fighting for the Right to the Cure – ALC’s Hepatitis C Pro Se Litigation Manual

A Guide for Filing a Lawsuit to Win Treatment with the Breakthrough
Cure for Hepatitis C

Hepatitis C Pro Se Litigation Manual

The Abolitionist Law Center’s Hepatitis C Project was developed to
assist incarcerated people throughout the state of Pennsylvania obtain
Hepatitis C treatment. The Hepatitis C Project developed out of our
work in _Mumia Abu Jamal v. Kerestes_. Since the project’s inception,
we have corresponded with many throughout the state prisons that are
living with Hepatitis C.

ALC does not have the capacity to represent every prisoner with
Hepatitis C. In order to reach as many people as possible, we have
created this pro se litigation packet for incarcerated patients who will
represent themselves in court. This packet can be used by any
incarcerated patient with Hepatitis C to draft pro se litigation in an
effort to obtain Hepatitis C treatment. The components of this packet
include:

  • Hepatitis C factsheet
  • The American Association for the Study of Liver Diseases Guide on
    When and in Whom to Initiate HCV Therapy
  • List of common medical terms associated with Hepatitis C
  • List of medical tests associated with Hepatitis C
  • List of questions to ask your medical provider regarding your
    Hepatitis C
  • The PA DOC Hepatitis C treatment protocol
  • Instructions on how to file a grievance
  • Draft grievance
  • Jailhouse lawyer’s manual (written by Mumia Abu Jamal)
  • Legal brief instructions
  • Draft legal brief
  • Draft complaint

Please use this packet to assist in securing treatment. There is now a
safe and effective cure for Hepatitis C, and there is no reason why so
many should go without access to this cure. We hope this pro se
litigation packet will help you get the Hepatitis C treatment that you
are entitled to.