In 1978, after several years of controversy over the state’s capital punishment statute, the Pennsylvania legislature resurrected the death penalty in compliance with the U.S. Supreme Court’s ruling in Furman v. Georgia (1972).

In Furman, a divided bench held that when the death penalty is administered in an arbitrary and inconsistent manner, it constitutes cruel and unusual punishment in violation of the Eighth and 14th Amendments.

The decision marked a de facto four-year moratorium of the sentence as 37 states scrambled to enact new legislation in accordance with the Court’s ruling.

Since Pennsylvania’s new law took effect, the state has executed three individuals; each of them was considered “volunteers,” so termed because the prisoners waived their rights of appeal.

If Williams’ sentence is carried out on October 3, he will be the first non-voluntary execution in the state in 50 years.

But while some anti-death penalty advocates have painted Williams as a new figurehead for the abolition movement, at its heart this case is about the function of clemency in the American prison system.

As legal scholar Daniel T. Kobil argues, “clemency can be used to achieve justice, by individualizing sentencing and remitting undeserved punishment… Clemency, exercised in this way, can properly be said to be a fundamental part of any system of justice.”

The debate over clemency has a long history in the United States.

In the American colonies, clemency procedure reflected the system in place under the British crown.  Pardon powers were most often reserved for the Royal Governor, the king’s colonial representative across the Atlantic.

In the aftermath of Revolution, however, continuing concern over centralized power prompted state governments to develop their own systems for presiding over clemency.  As Kobil writes, many states created joint executive-legislative administrative boards, or vested the power to pardon solely within the legislature.

It was Alexander Hamilton, at the Constitutional Convention, who proposed that a supreme executive should “have the power of pardoning all offenses except Treason; which he shall not pardon without approbation or rejection of the senate.”

Though his ideas were intensely debated, Hamilton’s proposal ultimately won out. Article II, Section 2, of the U.S. Constitution reserves the power for according clemency within the executive branch, authorizing the President to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

While the federal government utilized its clemency power to repair national stability in moments of great social and political change – following the American Civil War, for instance – it was within each individual state where questions of clemency became part of daily legal interpretation.

Today, 29 states continue that federalist tradition, vesting sole authority to grant clemency within the office of the governor.   In five other states, clemency decisions are the purview of an administrative panel, often appointed by the governor.  And in the 16 that remain, clemency evaluations are shared between a governor and an administrative panel.

Pennsylvania is one of those 16 states.

Up until 1997, Pennsylvania state law mandated that the Board of Pardons, by majority vote, make the recommendation for clemency to the governor.  That year, though, Pennsylvania voters passed a referendum to require a undivided Board in order to stay an execution.

And it is here where Terrance Williams finds himself.

Williams, the victim of long-term physical and sexual abuse as a child and young adult, was charged in 1984 for murdering one of his attackers, Amos Norwood, the leader of the acolytes at St. Luke’s Episcopal Church in Philadelphia.

At trial, prosecutors offered evidence that the killing took place during the course of a robbery, and so, in 1986, Williams was convicted of first-degree murder and sentenced to death.

In the 26 years that have followed, Williams’ attorneys exhausted the appeals process.  Last week, the State Pardon Board convened to determine whether Williams should be granted clemency, reducing his sentence from death to life imprisonment.  After a 90-minute session, the board reached a 3-2 decision in favor of Williams.

Based on the 1997 law, clemency requires a unanimous vote.

Critics charge that these results misconstrue the purpose of clemency.  They argue that the pardon system was designed for cases like Williams’.  They point to statements by members of the original jury, who have said that they would not have sentenced him to death had they known of the history of abuse.  They point to the victim’s widow, who has spoken out in favor of leniency.  They point to Marc Draper, Williams’ accomplice and a key witness at trial, who has since recanted his testimony that the murder took place during a robbery.

This week, defense attorneys filed new evidence with the court, including material they claim corroborates the charges of Norwood’s sexual assault on Williams.  They are asking Judge M. Theresa Sarmina to vacate the 1986 sentence and grant a new hearing based on this latest evidence.  There, a jury would determine whether Williams should be executed or spend the rest of his life in prison.

The court is scheduled to announce its ruling Friday morning.

Around the country, death penalty advocates and abolitionists alike will be watching Pennsylvania in the coming week as the state government grapples with this new information and determines what should happen to Terrance Williams.

The fate of Williams may also help determine to future of clemency procedure in Pennsylvania.

For further reading:

Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King
[69 Tex.L.Rev. 569 (1991).

Andrew Cohen, “In Pennsylvania, a Clemency Catch-22,” The Atlantic, 19 September 2012

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey, and a fellow at the Kean University Center for History, Politics and Policy.

The thirtieth anniversary of Múmia Abu-Jamal’s incarceration arrives on December 9, 2011. The occasion coincides with a recent U.S Supreme Court motion that allowed to stand the decisions of four federal judges whose past rulings declare unconstitutional Abu-Jamal’s death sentence.

Mumia Abu-Jamal (Photo via Flickr (c) Nolen Edmonston/Prison Radio)

On December 9, at the National Constitution Center’s Grand Hall Overlook, Cornel West, among others, will offer their views on the case. They will be joined by hundreds of citizens who oppose the death penalty, decry the refusal of constitutional rights to Abu-Jamal, and insist that justice for Múmia will not be served by life imprisonment, but by freedom.

The basis of the Supreme Court’s motion is the “Mills Claim,” which rules unconstitutional improper instructions to a jury deliberating on a death sentence. In the Abu-Jamal case, the jury was misled to believe that it had to unanimously agree to consider mitigating factors against a death sentence. The fact is that any one juror may have done so and, if convinced by the merits, blocked a sentence of death. Because of improper instructions, the jury didn’t consider that Múmia was a rising journalist and dedicated father who’d recently authored and produced an award-winning radio essay on the Pope’s visit to Philadelphia. Given Abu-Jamal’s personal history, character, and career path, it was highly unlikely that he was guilty of premeditated murder.

In light of these constitutional violations, the federal courts now mandate that Múmia be granted a new sentencing-phase trial or have his sentence changed to life without parole. Recent discussions in Philadelphia’s mainstream media, all of which have emphasized the enormous costs of a new trial to the financially strapped city, suggest that the DA is likely to choose the latter.

Despite widespread evidence of prosecutorial and judicial misconduct during the conviction-phase of the trial, the federal courts have only granted Múmia relief on the constitutionality of his sentence. But if the courts have found violations during the trial’s sentencing-phase, shouldn’t these findings call into question the fairness of the trial from the beginning, especially given that both trial phases were presided over by the same judge, the same DA, and the same jury?

At least one federal judge, Thomas Ambro of the Third Circuit Court, has declared unconstitutional the manner in which Abu-Jamal’s original conviction was obtained. In 2007, Judge Ambro wrote a dissenting opinion upholding Abu-Jamal’s attorneys’ claims that the prosecution’s elimination of 11 out of 15 potential African Americans from the jury was overwhelming in its racial bias. Acknowledging the unequal application of the law in the Abu-Jamal case, Judge Ambro wrote that the court’s decision to deny Abu-Jamal the famous “Batson” claim of discrimination in jury selection “goes against the grain of our prior actions.” In previous cases with exactly the same claims, the court had granted relief to the defendants, but this time it ruled against Múmia in a two to one decision that overturned the court’s own precedents.

What Múmia’s jury could not have known prior to its conviction verdict was that within days of the trial’s end, 15 of the 35 police officers who’d collected evidence at the crime scene of Officer Daniel Faulkner’s shooting would be convicted and jailed on charges that included graft, corruption, and tampering with evidence. Among these officers was Alfonzo Giordano, who led the crime scene investigation.

The Polakoff photographs, discovered in 2006, demonstrate the illegal methods employed by the police in the Abu-Jamal case. Pedro Polakoff was a freelance photographer and one of the first persons at the crime scene. In Polakoff’s photos, Officer James Forbes, who testified that he properly handled the two guns allegedly retrieved at the crime scene, is seen holding the weapons with bare hands. The photos also discredit cabdriver Robert Chobert as a witness; his taxi, contrary to his testimony, is pictured facing away from the fallen officer’s car. This evidence hasn’t been reviewed by any court.

Of all the compelling evidence of innocence in this case, the most important and least known is the existence of a fourth person at the crime scene, a man named Kenneth Freeman. In his excellent book, The Framing of Múmia Abu-Jamal, Patrick O’Connor argues that Freeman, not Abu-Jamal, killed Officer Faulkner. Within hours of the shooting, a driver’s license application found in Officer Faulkner’s shirt pocket led the police to Freeman, who was identified as the shooter in a line-up. Yet Freeman’s presence at the scene was concealed, first by Inspector Giordano and later, at trial, by Prosecutor Joe McGill.

We’re sobered by the realization that for thirty years an international movement kept Abu-Jamal alive long enough for the appeals process to run its course. But what if the movement hadn’t kept him alive? This latest development is another in a long line of cautionary tales about the death penalty. Its finality (not to mention the barbarism of its administration and the torture of awaiting certain death) is part of what makes it unconstitutional under the Eighth Amendment’s protection against cruel and unusual punishment.

For thirty years Abu-Jamal has been forced to withstand tortured isolation in a windowless cell the size of a small bathroom. For thirty years he has not touched his children, wife, family, or friends.

A petition: Because for thirty years he has been subjected, unconstitutionally, to unbearably inhumane conditions, because he is innocent of the crime for which he is charged, and because he has been denied a fair trial, Múmia Abu-Jamal should be immediately released from prison and awarded restitution for time served.

I believe that history will prove that Múmia is innocent and that our quest for his release marks one of the most moral political assignments of our time. That’s why, on December 9, we’ll gather at Philadelphia’s National Constitution Center, where, in the presence of that powerful nationwide symbol of liberty and justice, we’ll again raise our voices and say, Free Múmia!

Johanna Fernández is Assistant Professor of History at Baruch College of the City University of New York. She is the writer and producer of the documentary film, Justice on Trial: The Case of Múmia Abu-Jamal, which premiered at the National Constitution Center in September 2010.

When I set out to make the film The Barrel of a Gun I figured that I would face a firestorm of criticism for daring to tell the facts in the story of Múmia Abu-Jamal and the murder of police officer Daniel Faulkner.   I was prepared to follow the facts wherever they led me.  If only I could say the same for Múmia’s supporters.

Mumia Abu-Jamal (Photo via Flickr (c) Nolen Edmonston/Prison Radio)

When I started researching the case, read the court transcript and interviewed people who prosecuted the case,  I came to the conclusion that Múmia Abu-Jamal was indeed guilty and did receive a fair trial. My  film presented the cold, hard facts about the murder of a Philadelphia police officer, but Múmia’s supporters never let the facts get in the way of a bad argument.

So 30 years later I ask Múmia’s disciples, how can you deny the evidence? Four eyewitnesses saw all or part of the shooting and identified Abu-Jamal as the killer.

Abu-Jamal was found at the scene of the crime with a gun that was registered in his name. Abu- Jamal’s brother, William Cook,  was stopped by Officer Faulkner for a traffic violation at 3:50 am, and Abu-Jamal was just across the street at the time of the traffic stop. Múmia ran to his brother’s aid and shot the policeman once in the back and then stood over the wounded officer and fired point-blank into Daniel Faulkner’s face.

It is vitally important to note that William Cook has never testified on behalf of his brother. In my film I interviewed Cook’s attorney, Daniel Alva, who said that  he encouraged Cook not to testify to in order to avoid being drawn into a capital murder case. Cook took Alva’s advice and chose not testify.

So I ask you, if your brother was accused of capital murder and you were a witness to his innocence, wouldn’t you  try to save him? Where was the Philly brotherly love between William Cook and Múmia? Why didn’t William ever testify?

The facts underscoring Múmia’s guilt are overwhelming. But there is also Múmia’s motivations  to consider, and I explored this extensively in my film. Consider that Abu-Jamal comes from a radical, Marxist communist background.  He was a member at a young age of the Black Panther Party and he idolized mass- murderer Mao Tse Tung.  Mao is responsible for the genocide of more than 50 million Chinese. Remember also that  the Panthers wanted to foment a violent revolution in the United States to overthrow the capitalist, racist system and saw cop-killing as a form of empowerment.

Yes, the U.S. had severe racial problems at the time, but our biggest gains as African Americans came not from cop-killing, but from civil disobedience and the  ballot box and by persuading fellow Americans to change discriminatory laws – that is the American way that Martin Luther King, Jr., championed.  But Múmia did not embrace non-violence, he embraced the barrel of a gun.

After the Panthers imploded, Abu-Jamal became a fanatical supporter and follower of John Africa and the anarchist cult-group MOVE.  Múmia lost several news reporter jobs for his advocacy of MOVE after they killed police officer James Ramp in 1978.

Although Múmia had no arrest record that stuck, he was no choir boy before the murder of Daniel Faulkner.  In fact, former Daily News reporter Kitty Capprella has reported that Múmia and a group of MOVE supporters once surrounded and beat her in an empty City Hall courtroom in the late ‘70s.

On Dec. 9, the 30^th anniversary of the murder of Daniel Faulkner, a group of pro-Múmia supporters will gather at the National Constitutional Center to tell more lies and mistruths about Múmia’s supposed innocence and how, they believe, this killer has been railroaded by a capitalist, racist system.

It is fitting that the pro-Múmia gang chose the National Constitution Center  as a place to celebrate thier constitutional right of free speech. Ironically, several of the guest speakers scheduled to appear at the  event are either Marxist, Socialist or  just plain anti-capitalist.  Like Múmia, some of his most ardent supports cite Chairman Mao, sport  T-shirts featuring the likeness of communist  Che Guevara and admire dictators like Fidel Castro.  In their own countries, neither Mao nor Castro would  ever have allowed  their own people to speak out against the political system.  In fact, protesters in those countries could be jailed or “disappear.” You have to wonder if Abu-Jamal’s supporters ever consider the irony? In their own warped minds I’m sure they don’t.

I have been  attacked by Múmia’s supporters for daring to exercise my right of free expression to make this film. They’ve used hateful words against me, like  “Uncle Tom, sell-out, a black right-wing wacko, an FOP stooge.” I have always presented the facts  of this case to the public in the most honest and respectful manner possible.  It speaks volumes that Múmia’s delusional supporters choose to personally attack me, attack the criminal justice system and advance unproven theories rather than face the truth.

Tigre Hill is a Philadelphia filmmaker, whose documentary The Barrel of a Gun, explores the Múmia Abu-Jamal controversy.

Stevens’ 35-year career on the Court reflects just how vexed the national debate over capital punishment has been. Shortly after he joined the Court in 1975, Stevens voted to reinstate the death penalty, which the Court had struck down in 1972. By 2008 he had reversed course, writing in an opinion that he now believed the death penalty to be unconstitutional.

In his book-review, and in an appearance on 60 Minutes, Stevens explained how he got from one opinion to the other.

His position is complicated. Stevens believes that with the right procedural safeguards, the death penalty can be limited to extremely serious crimes and administered fairly. Between 1976 and 2008, he maintains, a series of mistaken Supreme Court decisions made those safeguards impossible. Decisions on issues ranging from how juries in death-penalty cases are chosen and what evidence they may hear to how to address racial disparities in the capital justice system have now made the death penalty irrational and unconstitutional.

Here is an Opinion Lab on the question:
Should the death penalty be abolished as cruel and unusual punishment?

The Eighth Amendment to the Constitution bans “cruel and unusual punishments,” but what is considered cruel and unusual has been sharply debated over the years. Except for a brief period in the 1970s, the Supreme Court has not considered the death penalty to be cruel and unusual. But in recent years it has narrowed the category of people who may be executed, including offenders under the age of 18 and people are mentally retarded.

The divisive national debate over the death penalty involves questions of deterrence, retribution and whether death sentences are meted out in a fair manner by impartial juries. Recent controversies have touched on the use of DNA evidence, the purported rehabilitation of death-row inmates, and whether the methods used to carry out executions, such as lethal injections, are cruel and unusual.

As a constitutional matter, proponents of the death penalty point out that both the Fifth and Fourteenth Amendments specifically authorize the taking of life, so long as due process rights are provided to the defendant. Those favoring abolition of capital punishment maintain that national standards of decency have evolved to the point where capital punishment can no longer be tolerated by the Constitution.

Should the death penalty be abolished as cruel and unusual punishment?

YES: Capital punishment offends modern ideas of human dignity. Over half the countries of the world have abolished the death penalty; the United States should follow suit.

NO: The death penalty is a form of retribution and deterrence justified by the text of the Constitution. The laws of other nations have no bearing on American legal practices and should not inform decisions about the death penalty.

YES: Exoneration of more than 130 death-row inmates since 1973 highlights serious flaws in the criminal justice system.  As long as the death penalty is maintained, the risk of executing the innocent cannot be eliminated.

NO: The Supreme Court has articulated workable standards for the administration of the death penalty. The 38 states that provide for capital punishment have adopted clear statutes to guide judges and juries.

YES: The uneven application of the death penalty is discriminatory and unfair. Death sentences fall disproportionately on the poor and members of minority groups.

NO: The Supreme Court has rejected the use of statistical studies that claim racial bias as the sole reason to overturn a death sentence. The existence of some systemic problems is no reason to abandon capital punishment.

What’s your opinion?

To briefly summarize (if that is possible) this case involves multiple District Court hearings and over 70 Orders.  The first case, Coleman v. Schwarzenegger was filed in 1990 and alleged that California was not providing adequate prisoner mental health care in violation of the Eighth Amendment and federal disability statutes. Plata was filed in 2001 alleging violation of Prison Litigation Reform Act (PLRA).  It asserted that inmates were denied appropriate medical care as a result of prison overcrowding, in violation the Eighth Amendment and the PLRA.

Factually, the California prison population was 197% over of its design capacity.  Among other things, Plata alleged:

• Delayed or failure to provide access to medical care
• Untimely responses to emergencies
• Insufficient medical staff
• Lack of quality control procedures
• Inadequate medical record keeping
• Prison staff interferences with medical care

Reportedly, these shortcomings resulted in 34 inmate deaths, along with other deprivations.

During the pendency of the combined case, there were innumerous administrative and judicial hearings, reports and orders, and a declaration of a State of Emergency by the governor stating that California did not have the money to deal with the situation.  Two separate commissions found unacceptable overcrowding and recommended prisoner reductions.  On the judicial side, a District Court ordered the convening of a three-judge panel (as provided for under the PLRA).  On the panel were the two judges who had heard the two cases at the District Court level and an appellant court judge.  The panel eventually ordered the State to submit a plan for a reduction of the population to 137.5% of capacity, within two years.  The panel factually found that a substantial number of prisoners could be released without affecting public safety. There followed submissions and resubmissions of plans.  Finally in January, 2010, a plan was submitted, accepted by the panel and the court entered an Order for its implementation.  California appealed and the Supreme Court agreed to hear this matter.

The issues before the Court are numerous and complex.  They involve convoluted jurisdictional and procedure matters and factual determinations – for example, does the Supreme Court even have jurisdiction to hear this case, were all the requirements of the PLRA met in rending the final order for implementation, did the panel’s order exceed its authority?

Putting aside all the technical legal mumbo jumbo, you decide, has the Eighth Amendment’s prohibition against “cruel and unusual punishments” been violated?  You, “We the People” be the judge.  VOTE!

Photo credit: Flickr user timpearcelosgatos