Atlantic Center for Capital Representation

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The Empire Strikes Back

During the 1980s and 1990s, the federal government made a concerted effort to harshly punish the sale of crack cocaine – the “crack epidemic” had swept through many cities, bringing with it an increase in violent crime, and legislatures took firm action to stem the tide of crack use. In 1986 the Congress overwhelmingly passed a law, happily signed by President Reagan (in conjunction with First Lady Nancy Reagan’s “Just Say No” program) that penalized crack cocaine at 100 times the severity of the same amount of powder cocaine. The Commonwealth of Pennsylvania took a similar approach, resulting in Philadelphia having the highest incarceration rate of any large jurisdiction in the country. It was literally decades later that judges, legislators, and the community at large perceived the racism inherent in a law that punished black crack users starkly worse than white powder users; and in the last ten years federal legislation was passed to reduce the disparity in the punishments while Philadelphia has succeeded in lowering its prison population. No one fixing the crack/powder inequality mentioned the complaint at the heart of the recent Inquirer article entitled DA Larry Krasner Gives Up Fight In More Death-Row Appeals, Stirring Concern From Courts, Families: that each new prosecutor might reverse the decisions made by the former prosecutor, thus leading to “chaos” in the court system. Indeed, when prior decisions are racist or out of step with modern thinking or just flatly unjust, the “chaos” in the court system comes from propping those decisions up, rather than making the necessary changes to address the injustice. District Attorney Krasner should be commended for his reevaluation of a failed capital punishment policy.

First a history lesson might be in order, since there seems to be a perception that we were living through a golden age of prosecutorial judgment before the current administration came along. Ron Castille was District Attorney for five years in the late 1980s to 1991; he then left to be a justice, and then chief justice, on the Pennsylvania Supreme Court. But three years ago, he was reprimanded by the United States Supreme Court in the Terry Williams case for judging a case in which he had authorized a capital prosecution: “Chief Justice Castille's significant, personal involvement in a critical decision in Williams's case gave rise to an unacceptable risk of actual bias. This risk so endangered the appearance of neutrality that his participation in the case ‘must be forbidden if the guarantee of due process is to be adequately implemented.’” As the Court noted, it was a prosecutor in Castille’s office who a Philadelphia judge found to have engaged in “multiple, intentional” acts of prosecutorial misconduct in a capital prosecution. Castille was followed by Lynne Abraham, famously labeled “The Deadliest DA” by the New York Timesfor her overly aggressive prosecution style that now seems utterly anachronistic. She was followed by Seth Williams, who now resides in a federal prison.

Were they outstanding prosecutors? It depends on what you mean. If the goal is to get convictions, they were quite good. If the goal is to get convictions lawfully, they weren’t very good at all. Well over 100 death sentences they obtained have been reversed, a significant number of them, like the Williamscase, for prosecutorial misconduct. There are consequences to this “win at any cost” theory of prosecution: victims get hauled back into court years after they are told a case is over, taxpayers spend unnecessary money covering the same ground over and over again, court dockets become clogged with repetitive litigation. And what was the return for the money wasted, the courts congested, and the victims retraumatized? A single mentally ill person who gave up all of his appeals was executed two decades ago. Does Krasner stand alone in his thinking that the death penalty isn’t working? Hardly. Death sentences are near a modern low, which is consistent with polling that shows the popularity of the death penalty near an all-time low as well. Between 2011-2017, 98.7% of Philadelphia cases in which the prosecution sought the death penalty resulted in a sentence less than death. Was Krasner wrong when he said that seeking a death sentence in Philadelphia was akin to “lighting money on fire?” Is it any wonder that the Chief Justice of the Pennsylvania Supreme Court describes the current state of our capital jurisprudence as “impaired?”

Our city is revisiting old criminal justice policies that were once set in stone. We are decarcerating our prisons, reducing cash bail, and releasing juveniles we once felt the need to imprison for life, all with a remarkably low rate of recidivism. In short, we shouldn’t be worried about the chaos that might ensue when a new criminal justice administration takes over and changes failed policies; rather, we should be worried when it doesn’t.

Akeem Davis