In a 5 to 4 decision announced this week, the Supreme Court of the United States struck down laws in 28 states — Pennsylvania among them — that automatically sentence youthful killers to life terms behind bars, calling juvenile life without parole “cruel and unusual punishment.”
The decision follows years of debate on the issue, and the high court’s ruling applies to all inmates under 18 who are serving life sentences. The ruling doesn’t automatically empty cell blocks, nor does it hinder any judge from sentencing a teenage murderer to life. It does, however, leave the important rehabilitative tool of parole on the table.
“I’m ecstatic about this, not only as a defense attorney, but as an attorney in the state that sentences more juveniles to life in prison than any other state in the nation, and any other jurisdiction on earth. Many of these defendants weren’t even present when the murders were committed and didn’t even know what was being done,” said defense attorney and activist Michael Coard. “In 2005, the high court said that executing kids is unconstitutional. We don’t let kids vote, drink or drive or get married because they are impulsive, irrational and sometimes downright silly. The justices applied the same logic to this decision. Now, I’m not a bleeding heart liberal who wants to slap a killer on the wrists just because they’re young. My concern is the idea that there is no possibility of parole. What if after 20, 30, or 40 years in prison the defendant gets his GED, maybe helps the officers during a prison riot, educates himself or becomes a minister or imam? Our intent should always be rehabilitation, and if you take away, even the possibility of parole, what does that inmate have to lose? Parole is the carrot dangling in front of them; it’s an incentive for good behavior.”
Justice Elena Kagan said in a statement that the decision was consistent with the court’s previous acknowledgement that children lack maturity and have an underdeveloped sense of responsibility. By nature, children are more susceptible to peer pressure and outside influences and they are more open to being rehabilitated. The court’s opinion does not say whether its ruling applies only to future sentences, or whether new hearings would be granted to the more than 2,000 prisoners across the country who were are serving life terms for murders. The decision doesn’t end life sentences for youthful defendants but it does require that judges must consider their age along with the facts of their crimes.
According to figures from the Pennsylvania Bar Association, the state has almost 500 inmates serving life without parole who either are juveniles or were juveniles at the time of their sentencing.
“I think this is a significant decision and that SCOTUS got it right. This is significant and timely, especially for Pennsylvania, which incarcerates the largest number of juveniles serving life sentences in the country. Sentencing young people automatically to life without parole is unconstitutional,” said prominent civil rights attorney David Rudovsky. “The question in all of this is what kind of reviews will be considered and the review process because of course, every case is different and the appropriateness of the punishment to the circumstances must be considered. It’s not clear yet how all of that will work out. And their prison records have to be reviewed as well.”
One of the most controversial cases that surfaced in Philadelphia was that of Stacey Torrance. Torrance was 14 in 1988 when he was arrested for the murder of Alexander Porter, a young man who was his girlfriend's brother. He was about to enter the tenth grade at a Philadelphia high school under a magnet program for students who excelled academically.
Torrance was convicted of second degree murder (felony murder in Pennsylvania) and sentenced to life without parole. He had no juvenile record, and this was his first offense. He was charged directly in adult court and never had a juvenile transfer hearing. According to court documents and police investigative reports, Torrance agreed to participate in a robbery with two adults, Henry Daniels, who was his cousin, and Kevin Pelzer. The victim was Alexander Porter. They reportedly believed Porter had a lot of money because it was allegedly common knowledge that his family was involved in drug dealing. The plan involved coercing Porter to give over the keys to his apartment so that Daniels and Pelzer could rob it.
Torrance agreed to participate in the robbery scheme, but was not present at Porter’s fatal shooting, nor was there evidence presented at trial that even suggested he knew Daniels and Pelzer were going to murder Porter. Torrance has been serving a life sentence.
“The large number of individuals sentenced to juvenile life without parole represents the dismantling of the founding principles of the juvenile justice system,” said Marc Mauer, executive director of The Sentencing Project in a press release. “These youth were failed by systems intended to protect children. Many juveniles sentenced to life without parole first suffer from extreme socioeconomic disadvantage, and are then sentenced to an extreme punishment deemed unacceptable in any other nation.”
More than 9,000 inmates in city jails
Civil rights attorney David Rudovsky was given permission by a federal judge this week to reopen a lawsuit against the City of Philadelphia for its overcrowded prisons, a problem with no easy solution.
Rudovsky took on the issue of prison overcrowding during Mayor Michael Nutter’s first term in 2008, and also during the John Street administration in 2006, when the city’s prison population exceeded 9,000 inmates. According to Philadelphia Prison System spokesperson Shawn Hawes, the current inmate population — in the six facilities on State Road and smaller jails throughout the city — is 9,339. She was unable to comment regarding the lawsuit.
The lawsuit alleges that more than 1,000 inmates are housed three to a cell in cells meant for two people, air conditioning is a problem at the Detention Center, and these conditions exacerbate volatile issues inmates already have. But Philadelphia or Pennsylvania isn’t the only city or state with overcrowded prisons. Experts say this is a nationwide problem and that, although there have been some reductions, inmate overcrowding continues to be a problem. In fact, according to statistics provided by the Sentencing Project, there are 2.2 million people in the nation's prisons or jails — a 500 percent increase over the past thirty years.
Rudovsky, who was unable to respond by Tribune press time, said in a previous interview that although there had been some alleviation of the crowded conditions, the facilities are still over capacity.
“This was not a new lawsuit,” Rudovsky said. “The judge just agreed to allow us to reopen the previous complaint. Essentially, the city managed to reduce the inmate population to 7,500 several months ago, and it appeared as though we were making progress. But now it’s turned around the other way. We’re back to triple-celling — which we think is unconstitutional. We’ve had some reductions over the last few years. At one point, the city prison population was at 10,000 inmates. On the state level, we’ve had some diversion of the inmate population, and for nonviolent offenders we’re seeing more sentencing to alternative facilities and in-house arrests — and these offenders’ cases are being heard quicker but now the prisons are overcrowded.”
Prison reform has taken on an increasing national stature, particularly in an era of shrinking state and local budgets. Governments are looking for alternatives to prison for nonviolent offenders. In 2010, Republican state Sen. Stewart Greenleaf was among those lawmakers who said that Pennsylvania could save millions on prison costs if the state made better use of alternative sentencing for nonviolent offenders.
“With an aggressive alternative sentencing program and better treatment programs in general, we can actually reverse the increases,” Greenleaf said. Greenleaf sponsored legislation to use more specialized courts like drug courts, and to move nonviolent criminals to halfway houses.
The state legislature passed three of Greenleaf’s prison reform bills during the 2009-2010 session. The measures were combined into Act 95 of 2010, which contained several provisions to save costs.
“Pennsylvania has more than 51,000 prison inmates,” Greenleaf said. “This number is 8,000 more than the rated capacity for the state prison system. Pennsylvania is building three new prisons and, while they are being built, transferring inmates to counties and other states, like Virginia and Michigan, with excess capacity. We must bring this crisis under control. We must fund programs that will help divert low-level offenders from state prison and support re-entry services that lessen the chance for offenders to commit new crimes.”
Although a recently released government report showed a decline in the national prison population in most states, Pennsylvania is among those still showing an increase. But part of the reason for the increase, according to a report by the Pew Charitable Trust, is that Philadelphia’s prisons are transferring a portion of the county population to state facilities.
“From 2008 to 2009, even as Philadelphia’s inmate population peaked and then fell, Pennsylvania’s Prison System was recording the largest increase in prisoners of any state in the nation in absolute numbers,” according to the report. “Only two states, Indiana and West Virginia, had bigger percentage increases than Pennsylvania’s 4 percent. Over the same period, 26 states had population declines.
Philadelphia is responsible for a significant share of the increase being experienced by the state. Last year, the number of new inmates going to the Pennsylvania Department of Corrections from the Philadelphia courts rose by 6 percent. Without enough capacity to handle the growing population, Pennsylvania is sending prisoners to Michigan and Virginia. Plans are in place to build four new state prisons.”
According to the report, in Philadelphia the decline in the inmate population started early in 2009 and accelerated as the year went on. A number of factors contributed to the drop, including a marked decrease in the percentage of sentenced inmates because of changes in the law. Rudovsky said that a number of factors contributed to the overall decline in the Philadelphia Prison System but there are still issues.
“I think they started implementing some of the things we recommended in our lawsuit and there have been some changes in the laws. Seth Williams did some things in the charging unit. But Philadelphia still has one of the highest prison populations in the country. I think they’ve done the easy things, now it’s time to take on some of the more difficult issues,” Rudovsky said.
As the New York Police Department comes under scrutiny regarding its stop-and-frisk practices, a similar case in Philadelphia has also brought the harsh spotlight once again on the same practices by the city’s police officers.
A report released this week by the law firm of Kairys Rudovsky Messing and Feinberg along with the Philadelphia ACLU alleges that almost half of all pedestrian stops were conducted without probable cause. Further, the report alleges that the department continues to report low levels of unconstitutional stop-and-frisk and raises concerns as to whether or not the Internal Affairs Department and inspectors are carrying out appropriate oversight.
In a disproportionately high number of stop–and-frisks conducted by Philadelphia police officers, the officers didn’t have probable cause or reasonable suspicion to initiate the action, the report said. Also, as in the case being heard in New York, most of the stop –and-frisks were conducted on African-American and Latino men, many of whom were not involved in criminal or suspicious activity.
“This report tells us that the city has not achieved the goal of ensuring that its stop-and-frisk practices are legal and fair,” said civil rights attorney David Rudovsky. “The Philadelphia Police Department will need to improve its own monitoring and supervision systems to meet that goal, or the court will be asked to impose appropriate sanctions. We’re two years into this process. We understand the police use shorthand, and that’s not the issue. We sampled 1,800 incidents and out of that number only three guns were recovered; there should be more evidence.”
Mark McDonald, spokesman for the Nutter administration, said the report tends to highlight poor documentation of appropriate stop and frisks. Captain Fran Healy, special counsel to Police Commissioner Charles Ramsey, said in many instances his police officers are doing a good job but are poorly documenting the reasons for making the stops.
“We get criticized when a report like this comes out, but the fact is we provide more documentation regarding stop-and-frisks than any other police department,” Healy said. “The law requires reasonable suspicion when we stop someone and probable cause if they think the person has a weapon. They write the reason for the stop, but often use cop abbreviations so we’ll see the reason for the stop listed as ‘loitering’ and then terminology that doesn’t accurately describe what happened. Here’s the problem; I have a range of officers on the streets, some with just a GED and others with law degrees, and we need to have them on the same page. The stops may be lawful but not properly documented.”
The report is the latest peripheral to the case of Bailey v. Philadelphia, in which a number of African -American men say they were stopped questioned and frisked without cause by Philadelphia police officers. The complainants: Mahari Bailey, Timothy Streaty, Fernando Montero, Preston Fulton, Gregory Blackmon, Jr., John Cornish, Carl Cutler and former State Rep. Jewell Williams accused the Philadelphia police officers of violating their constitutional and civil rights. They claim that the more than 10 defendants named in the complaint implemented and enforced a policy of stop-and-frisk without reasonable suspicion or probable cause, a violation of the Fourth Amendment.
Mahari Bailey, the lead plaintiff in the case, was in West Philadelphia in early 2008 with several other Black men when he was approached by some officer who allegedly stopped Bailey without cause.
“Since the case has settled, the police and city government have made some efforts to improve the current and past practices. Unfortunately, those efforts may not be reflected in the numbers, and I hope that the numbers are improved in the coming reports; especially in the disparity. I have faith that the city and police department will remedy the situation in time,” said Bailey.
Allegedly his car was searched and he was detained with no criminal charges being filed against him. Around Sept. 12, 2008 Bailey was stopped again while driving in the vicinity of North 64th Street. The complaint alleges he was pulled over and was asked by the officers if he had any drugs or guns in the car. Bailey told them he was an attorney and that there were no illegal drugs or firearms in his vehicle. He was detained again and eventually released with no criminal charges being filed.
Bailey was stopped again in August 2009 by Philadelphia police officers who allegedly had no reasonable suspicion or probable cause. He identified himself as an attorney and this time refused to consent to being searched. Allegedly, one of the stopping officers raised his fist in a threatening manner and told him “he didn’t give a f*** who he was” and left.
“On each occasion, defendants subjected Mr. Bailey without probable cause or reasonable suspicion, to an unlawful stop, frisk, search or detention based on his race,” the complaint stated. “This unconstitutional conduct is a direct and proximate result of policies, practices and or customs of the defendants.”
In 2011, the city and the ACLU reached a settlement agreement regarding the complaint. As part of the settlement, the Philadelphia Police Department agreed to collect data on all stop-and-frisks. Officers were to be retrained regarding stop-and-frisk procedures and agreed to establish a monitoring system in which the police department, plaintiffs' counsel and an independent court-appointed monitor would review and analyze the data.
The report, which was released on March 19, showed that the overall number of stops had decreased by nearly 15 percent. On the flip side, the report indicated that there was still a very high number of stops-and-frisks – about 45 percent – made without reasonable suspicion.
African-American and Latino males bore the brunt of those contested incidents – 76 percent of the stops and 85 percent of the frisks. The report notes that Philadelphia Police Department officers continue to stop pedestrians for reasons specifically forbidden in the consent decree, because they are "loitering," or "acting suspiciously," or on the basis of a description too vague and generic to justify a stop. Tens of thousands of Philadelphians continue to be stopped without reasonable suspicion, it said.
Captain Healy said police need to stop the right people, but to do their jobs without alienating the community they serve. Using terms like “loitering” simply undercuts the good job they’re doing, he said.
“The community needs to know that police officers are stopping people for the right reasons, and if we abide by the law we uphold; that creates credibility and transparency,” Healy said. “If you read between the lines in the Bailey case, you see that in numerous cases, the police officer was verbally abusive. People don’t file a complaint against an officer for fun. It’s a lengthy process, so you know when they do, they were offended by something. We have an aggressive policy to address that. An officer who has a complaint filed against them ends up in their inspector’s office with their commander who tells them that ‘your mouth put you in here because you dropped the f-bomb and I don’t want to see you back in here.’ Believe me, you don’t want to find yourself sitting in the inspector’s office for any reason. But a lot of people grow up using the f-word and think it’s all right when it’s not. The behavior of our officers has to be above reproach and the fact is that if you can’t conduct yourself in an appropriate and professional manner you need to walk…find another job, because this one isn’t for you.”
The Philadelphia Police Department continues to misuse stop and frisk tactic, according to a new study by the local chapter of the ACLU.
The new study says local police continues to misuse the tactic, two years after the ACLU sued the city to rein in the practice.
“Forty-five to fifty percent of all stops-and-frisk were being conducted without legal cause,” said civil rights attorney David Rudovsky. “Tens of thousands of Philadelphians during that period of time were being stopped by the police, many of them frisked, without legal justification.”
The local report came out the same week that stop and frisk is facing a federal court challenge in New York.
The class-action lawsuit in federal court challenges the constitutionality of some of the stops by New York police officers.
New York City Police Officer Adhyl Polanco testified that his superiors told him that he needed 20 summons, five street stops and one arrest per month. It didn’t matter whether the stops were done properly, he said Tuesday.
“They will never question the quality. They will question the quantity,” Polanco said.
Polanco is one three department whistleblowers who told of a culture that revolved around numbers and less around actual policing. Civil rights lawyers say the policy is leading to tens of thousands of wrongful stops of Black and Hispanic men by the police.
Rudovsky said the report on the Philadelphia Police Department was based on analysis of the language by the officers on the individual police reports.
In their reports officers cited questionable reasons for their stops such as someone being in a high crime area.
A federal judge continues to oversee an agreement between the ACLU and the Nutter administration over the use of stop and frisk. The agreement calls on the police department to better train officers on the use of stop and frisk.
Rudovsky said he believes the Nutter administration is making a good faith effort to ensure that stop and frisk is used appropriately.
Nutter has said that stop and frisk should be appropriately used. He said the tactic has helped drive down crime rates in the most dangerous neighborhoods.
Still more needs to be done.
Changing the culture of the city’s police department will be difficult but it’s necessary to ensure that the rights of law-abiding citizens are not violated. The city’s police department will need to do more training, supervising and disciplining of officers.