The work of defending civil liberties goes on

ACLU of Pennsylvania Executive Director Reggie Shuford addresses the crowd at the “Show Love for the Constitution” event. | February 15, 2017. (credit: Ben Bowens)

Dear supporter,

In some ways, our country changed on November 8. The United States elected a leader who, by all measures, is hostile to the basic foundations and principles that we stand for. President Trump and his regime deserve every ounce of pushback we can gather, and the ACLU will be on the front lines of the resistance.

And yet, at the ACLU of Pennsylvania, we have always taken the long view. Issues that are with us today were with us before November 8 and, to one degree or another, would have continued regardless of who was elected, including mass incarceration, police brutality, inequality for gay and transgender people, and efforts to compromise women’s access to reproductive healthcare.

You may have heard that there has been a major increase in giving to the ACLU since the election. While much of that growth has occurred at the national level, in fact, here in Pennsylvania, our membership has tripled. We saw a notable rise in donations after Election Day, but the real surge of giving happened after the weekend of the Muslim Ban. It was in that moment that many Pennsylvanians realized the significance of the threat to our values and to the people we most cherish.

You have put your trust in the ACLU in these challenging times. We are grateful for that trust and take it as a responsibility. Thank you.

The generous outpouring of support we’ve received in recent months has allowed us to think big about our work. It is my intention to add new staff to our existing staff of 22. Our current team has the talent, skills, and persistence to take on the many challenges before us. I also know that we can advance the cause of civil liberties throughout Pennsylvania by bringing even more talented people on board. The times demand it. Your support enables it.

In the months ahead, you’ll hear more about our Smart Justice campaign, our effort to reform, reinvent, and revamp the criminal justice system; our Transgender Public Education and Advocacy Project; the campaign for District Attorney in Philadelphia; the many bills we’re advocating for and against at the state capitol; and more litigation to push back against government excesses wherever they occur.

The ACLU of Pennsylvania is prepared to thwart the Trump administration’s worst instincts as they play out in the commonwealth.

And state and municipal officials aren’t off the hook. We’re working with immigrant communities to monitor federal immigration enforcement tactics while also standing with municipal governments that insist they won’t bend to every demand of ICE. We’re insisting that the commonwealth keeps its commitment to open beds for people who are too ill to stand trial and are being warehoused in local jails. We’re working at the state legislature to defeat efforts to hide the identity of police who seriously injure and kill people and to hide video that captures police brutality from the public. And we are active in ongoing struggles to diminish police presence in schools, to stop rollbacks of women’s reproductive healthcare, and to fight the practice of jailing people for their debts.

The ACLU of Pennsylvania has the infrastructure and the experience to defend civil rights at every turn. Consider some of our recent work:

  • Our legal team successfully freed travelers who were detained at Philadelphia International Airport the weekend of Muslim Ban 1.0, our advocacy team supported the protests at airports in Philly and Pittsburgh, and our communications staff echoed the message to #LetThemIn.
  • Two weeks ago, we settled a lawsuit against the School District of Lancaster for denying enrollment at its regular high school for older refugee students. Older refugee students will now be able to attend the regular high school instead of being segregated at an alternative school.
  • Over the last month, our legislative director has been busy at the state capitol in Harrisburg lobbying against efforts to reinstate mandatory minimum sentencing, which has been suspended for two years due to court rulings.
  • In tandem with allies, our advocacy team has launched the Philadelphia Coalition for a Just District Attorney, an effort to push the candidates for district attorney to commit to reforming the criminal justice system.
  • Last week, our lawyers filed to intervene to defend a school in Berks County that has been sued for affirming its students’ gender identity. We’re representing a transgender student and a youth advocacy organization who would be harmed if the lawsuit successfully overturns the school’s practice.

These five examples are just from the last two months. In fact, four of them happened in the last two weeks.

My favorite playwright, Pittsburgh native August Wilson, said this about gratitude in his play Two Trains Running:  “You walking around here with a ten-gallon bucket. Somebody put a little cupful in and you get mad ’cause it’s empty. You can’t go through life carrying a ten-gallon bucket. Get you a little cup. That’s all you need. Get you a little cup and somebody put a bit in and it’s half-full.”

Well, thanks to you, our ten-gallon bucket runneth over.

Onward!

Reggie Shuford
Executive Director, ACLU of Pennsylvania

It’s Time to Get Real About Race and the Death Penalty

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

SQ Lethal Injection Room

Two weeks ago, Governor Wolf announced a moratorium on executions in Pennsylvania and granted a reprieve from execution to Terrance Williams, who was scheduled to be executed on March 4. Wolf will continue granting reprieves- a power he is granted by law – until an analysis commissioned by the state Senate returns with its recommendations and “all concerns are addressed satisfactorily.”

In his announcement of the moratorium, Wolf referred to capital punishment as “unjust” and cited several reasons for using the word. In his memorandum that explained the moratorium, he spent several paragraphs discussing the role of race in capital punishment.

Death penalty abolitionists don’t use race as one of their top tier messages, and who can blame them? A 2007 survey found that support for capital punishment actually goes up when white respondents hear messages of racial disparity. White America is still sticking its collective fingers in its ears when it comes to race and the criminal justice system.

Pennsylvania has consistently shown a penchant for sentencing black defendants to death. According to the Death Penalty Information Center, of the 188 people on death row in the commonwealth, 120 of them, or 64 percent, are people of color, as of October 1, 2014. Over the 15 years that I have been involved in death penalty repeal work, that number has been as high as 70 percent.

A study by Professor David Baldus and his colleagues at the University of Iowa found that a black defendant in Philadelphia was 3.9 times more likely to receive a death sentence than a white defendant in a similar case.

The Baldus study was 17 years ago and was based on data from 1983 to 1993. As part of the Senate-supported analysis, researchers are trying to update the question of race and the death penalty in Pennsylvania. Unfortunately, according to one of my sources, at least one high-profile district attorney stymied that work for months by refusing to release data from his county on race in capital cases. He was ultimately persuaded but only after much cajoling. Some public officials just don’t want to talk about facts in the death penalty debate.

The race of the victim may play an even greater role in deciding who lives and who dies. Homicide victims are white in about 50 percent cases. But since the Supreme Court reinstated the death penalty in 1976, the victims were white in 76 percent of cases that ended in execution.

There are many reasons why capital punishment is slowly being swept into the dustbin of history. Since 2007, six states have repealed their death penalty statutes, bringing the total of non-death states to 18. In 2014, only seven states carried out executions, and 80 percent of those were in three states. Governor Wolf did the right thing in bringing a halt to the machinery of death, and he used the right word to describe it- unjust.

To learn more about the debate over Pennsylvania’s moratorium on executions, check out the discussion on WITF-FM’s Smart Talk, which featured Spero Lappas, who is a member of the ACLU of PA’s South Central Chapter board, a retired criminal defense attorney, and former cooperating counsel with ACLU-PA.

Andy Hoover is the legislative director of the ACLU of Pennsylvania and is the former chair of the board of Pennsylvanians for Alternatives to the Death Penalty.

This blog post is part of a series for Black History Month.

What Happened In Oklahoma

By Marc Bookman, Director, Atlantic Center for Capital Representation

Clayton Lockett

Clayton Lockett (photo via http://www.christianpost.com/)

The number one rule of the Internet is never read the comments. If you broke this rule over the last week, you might have seen the following in relation to the botched execution of Clayton Lockett in Oklahoma:

  • 1) “if his lawyers were so concerned about the execution method failing perhaps they should have considered shooting him then burying him alive. it (sic) worked for his victim.”
  • 2)“I will do it for free ….I won’t use a single tax payer dollar…Drop him off and come back in 5 minutes to pick up his body ….I am scared to think of the links (sic) I would go to if that were my family member..”
  • 3) “Get a rope.”

In short, these are the folks who believe that our community should act just like the murderers we condemn. It’s enough to make you remember the penetrating question asked by that greatest and most imaginary of West Wing occupants, Jed Bartlet: “These people don’t vote, do they?” More on that in a minute. What’s important to keep in mind is that “these people” aren’t us – for the overwhelming majority in this country, the events of the past weeks in Oklahoma were horrifying in their unpredictability, their arrogance, and their outcome. Let’s take the concepts one at a time.

If there is a single word that must be included in the description of a constitutionally satisfactory execution, it is “predictable.” And yet Oklahoma authorities went to extremes to guarantee that anything might happen: they used an untested combination of drugs, they refused to reveal where they had been obtained, and they fought all efforts by the defense to find out how the drugs had been made. (And Oklahoma is far from alone in this effort – in Georgia, a law is now in place declaring all information about lethal injection a “confidential state secret.” Texas, where the next execution in the United States is scheduled for May 13th, has also recently reversed course and now maintains that the details of the killing protocol are not the condemned man’s business.) When anything can happen, eventually it will.

The Oklahoma courts struggled with this regime of secrecy. They also struggled to decide whether the state supreme court or the court of criminal appeals had jurisdiction over the issue, a strange circumstance indeed considering the fact that the state has conducted well more than 100 executions in the modern era. After spending a week acting like petulant children fighting over the portions of dessert, the Oklahoma Supreme Court eventually stayed Lockett’s execution, along with a second execution scheduled shortly thereafter, that of Charles Warner. This infuriated every other branch of the Oklahoma government. First, the state attorney general asked the Supreme Court to reconsider. When the Court quickly rejected the request, Governor Mary Fallin issued an executive order declaring that she could overrule the Supreme Court, and announced that the executions would take place two hours apart on the night of April 29th. While her authority to do so was being questioned by every law professor in the United States, a member of the Oklahoma legislature drafted a resolution to impeach the justices of the Oklahoma Supreme Court who had ordered the stay of the execution. That’s when the Court caved, dissolved its stay, and allowed the executions to proceed. As the old song goes, it doesn’t take a weatherman to know which way the wind is blowing.

The night of April 29th won’t soon be forgotten by the witnesses to Clayton Lockett’s execution. Seven minutes into the execution, prison officials checked to see if Mr. Lockett was unconscious – “I’m not,” Lockett said. Three minutes later, he was declared unconscious; six minutes after that, Lockett said “man” and tried to lift himself off the gurney. All the while Lockett’s body had been writhing, his mouth twitching. 16 minutes after the execution began, a prison official stated, “We are going to lower the blinds temporarily,” a phrase that Andrew Cohen of The Atlantic aptly noted might serve as an epitaph for the entire sequence of events that had led to this debacle. Lockett’s execution was then stayed by the state officials who were present, but he died of a heart attack 30 minutes later. As the lawyer for Warner described it, he was “tortured to death.” Another lawyer called the execution a “human science experiment.” As for Charles Warner, his execution has been delayed for several weeks while Oklahoma conducts an investigation into what went wrong. Governor Fallin has already gotten the investigation off to a bad start by assigning the inquiry to the state’s public safety commissioner, who answers directly to…Governor Fallin.

What we are left with is the specter of government secrecy in our most public of government spectacles, the subversion of the rule of law by elected state officials, and the horror of an execution that would have been condemned had it occurred before our constitution was even written. At the very least, the events in Oklahoma should be yet one more reason for hesitation in Pennsylvania – indeed, two days after the botched execution, all of the candidates in the democratic primary for governor announced their support for a moratorium on the death penalty. And as to that first question: do “these people” vote? It’s not really the right question. As an old client of mine liked to say, one thing is for sure and two things are for certain – we had better vote. Because the community gets the government it deserves, and we surely deserve better than what the Oklahoma government has delivered.

Marc Bookman is the Director of Atlantic Center for Capital Representation, a non-profit death penalty resource center serving Pennsylvania and Delaware.

"A grave miscarriage of justice"


Last week, after 21 years on Pennsylvania’s death row, James Dennis of Philadelphia finally had his moment of justice. Federal district court Judge Anita Brody ruled that the 1992 conviction of Dennis for the murder of Chedell Ray Williams was “a grave miscarriage of justice,” citing highly questionable eyewitness identification, evidence that was withheld from the defense by the prosecution, and ineffective assistance of defense counsel. 

Judge Brody went so far as to say that “in all probability he did not commit” this crime.

In 1991, Ms. Williams was killed when she was robbed for her earrings by two men. Prosecutors presented no physical evidence and never recovered the stolen earrings. Dennis was convicted and sentenced to death on the basis of three eyewitnesses.

But half of the witnesses to the crime described someone who was taller and heavier than Dennis and didn’t pick Dennis from a photo lineup. Even those three who did pick him and testified initially identified him with hesitation. Ms. Williams’ companion that day described the perpetrators as people she recognized from her high school, which Dennis did not attend. And a witness who could have confirmed Dennis’s alibi that he was on a bus miles away from the shooting gave the incorrect time of day that she saw him, an error of which the prosecution was aware.

The Philadelphia District Attorney’s office withheld this critical evidence from Dennis’s defense counsel. Meanwhile, his trial attorney never interviewed a single witness.

Judge Brody vacated Dennis’s death sentence and conviction and ordered a new trial within six months. Otherwise, Dennis must go free, according to the ruling.

Philadelphia District Attorney Seth Williams has yet to announce his next move, but in a statement reminiscent of his predecessor, Lynne Abraham, he claimed that Dennis’s appeals team is lying. Meet the new boss, same as the old boss.

This case should shock the senses. The commonwealth of Pennsylvania sought to execute a man under these highly questionable circumstances. Governor Corbett even signed a death warrant for Dennis in 2011, which was vacated by the federal court.

While those of us who work regularly on this issue- I’ve been doing it for 13 years- don’t really lose the outrage factor when we hear about a case like this, we are certainly not surprised by the circumstances that created it. Mistaken eyewitness identification is the number one reason why innocent people are convicted of crimes. According to the Innocence Project, 75 percent of people who have been exonerated by DNA testing were convicted by eyewitness identification.

Regrettably, official misconduct by public officials too often plays a role in wrongful convictions. While the Innocence Project does not quantify how often prosecutorial misconduct occurs, it notes, “DNA exonerations have exposed official misconduct at every level and stage of a criminal investigation.”

Finally, the commonwealth’s broken indigent defense system regularly leads to breakdowns in the criminal justice system. More than 200 death sentences have been vacated in Pennsylvania since capital punishment was reinstated in 1978, and a majority of those involved ineffective assistance of defense counsel.

The confluence of these missteps in this case led to the conviction of and a death sentence for a man that a federal judge now says is likely innocent.

The death penalty in Pennsylvania is a failed government program. Jimmy Dennis’s day in the sun has finally come. And the day of reckoning for capital punishment should not be far behind.

Cross-posted at Pennsylvanians for Alternatives to the Death Penalty