There are only two states in the country where parole is not possible after a second-degree murder conviction. An appeal in Pennsylvania could change that.
PITTSBURGH (CN) — “This case is limited to those who did not take a life or intend to take a life,” Bret Grote, an attorney with the Abolitionist Law Center, opened Monday as a virtual hearing of the Pennsylvania Commonwealth Court got underway.
Grote represents six inmates, two of them women, who were all in their teens or early 20s when they engaged in robberies or drug deals that resulted in death. In some cases, victims died of heart attacks, while in others, they were killed by a co-defendant.
Led by Marie Scott, the group petitioned the court in July to overrule Pennsylvania’s policy of denying parole to those sentenced to life in prison for felony murder.
Pennsylvania and Louisiana are the only states in the country that deny such felons the chance of parole.
Scott, at 67, is the oldest of the challengers and has been incarcerated since 1973. When she was 19, high on pills and serving as the lookout in the robbery of a gas station, Scott’s co-defendant killed the station attendant. Because the co-defendant was just 16 years old at the time of the crime, he won parole after the U.S. Supreme Court decided Miller v. Alabama in 2012. The case, and retroactive relief under Montgomery v. Louisiana in 2016, called it unconstitutional for states to give juvenile offenders mandatory life sentences without the possibility of parole.
Pennsylvania has one of the highest life-without-parole populations in the country at 5,200, with an estimated 1,100 people in this group having taken a life unintentionally, or not at all. The result, as Grote’s team puts it, is “death by incarceration.” They note that many of those serving life sentences in this realm are older inmates, who typically have lower recidivism rates.
Another angle that the attorneys are tackling is systemic racism: Black inmates account for 70% of the prison population who will spend the rest of their lives behind bars.
Grote argued that his clients could be resentenced, not through relitigation of their sentences, but by permitting them to be considered for parole. If the Commonwealth Court rules life-without-parole punishments unconstitutional for second-degree murder, he said, the parole board can determine when inmates are eligible to apply for relief.
On behalf of the Pennsylvania Parole Board, Ronald Eisenberg, chief deputy Pennsylvania attorney general, told the judges that Scott and the others should have raised their challenge under the Post Conviction Relief Act or as a sentencing appeal through the Superior Court.
“It’s clear under the court’s jurisdiction that a collateral challenge to a conviction or sentence does not lie within this court’s jurisdiction,” Eisenberg said.
Judge Kevin Brobson also seemed puzzled with the state’s stance.
“We do not have jurisdiction over PCRA matters and habeas matters, that’s true,” Brobson said. “But does that mean that we don’t have jurisdiction over a matter of challenging the constitutionality of a statute.”
In addition to Scott, Normita Jackson, Marsha Scaggs, Reid Evans, Wyatt Evans and Tyreem Rivers are all fighting for parole. Each wrote to the parole board in May, saying they “present no risk to public safety” and are “thoroughly rehabilitated.” Their requests were denied.
Judge Emerita Leavitt questioned what route to the Supreme Court was taken for the precedent cited in this case.
“In the case of Miller, which established that life without parole violated the Eighth Amendment for juvenile defendants, was that matter brought up through a post-conviction appeal?” Leavitt asked.
“Those were criminal appeals,” he explained. “There were two companion cases — one of them came on direct criminal appeal; one of them came on conviction appeal. And if the United States Supreme Court or the Pennsylvania Supreme Court ever decides to take this question up to — as the petitioners put it — extend Miller, the PCRA will be open to them. The door will be wide open, just as it was for the juvenile lifers.”
As Grote explained, the justices ruled for retroactivity in Montgomery because the case turned on a substantive right.
“The substantive right was defined as if a criminal offense is committed by somebody younger than 18 and that crime reflects transient immaturity of youth, they cannot be subjected to life without parole sentencing scheme,” Grote said. “But the court went further and acknowledged that Miller had a procedural component. And that procedural component invalidated any mandatory sentencing scheme that did not allow for anything less than life without parole. Therefore, everybody in Pennsylvania, who was serving such a sentence, their actual life sentence was invalidated because of the manner in which it was imposed.”
Brobson and Leavitt were joined on Monday’s panel by Judge Emerita Leadbetter.