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1997 Changes in Pennsylvania Commutation Law Held Ex Post Facto

by John E. Dannenberg

The U.S. District Court for the Middle District of Pennsylvania held that a 1997 state ballot constitutional amendment, which modified Pennsylvania?s commutation laws to require a unanimous vote rather than a simple majority of the Board of Pardons to initiate pardons or commutations of death or life-sentenced prisoners, was an ex post facto law that caused ?individual disadvantage? to all such prisoners who applied for pardons.

The non-profit Pennsylvania Prison Society, represented by attorney Ernest Preate, Jr., filed a complaint against Governor Edward Rendell in state court in October 1997, challenging a then-pending November 1997 ballot initiative that would make it easier for the state to stifle commutations and pardons. Subsequently approved by the voting public, the amendments to the Pennsylvania commutation process provided that a unanimous vote of the Board of Pardons (concurrently reformulated to replace an attorney on the Board with a crime victim) was required to place the matter before the Governor. The gravamen of the plaintiffs? complaint was that the application of the amendment to prisoners sentenced to life before its passage impermissibly increased the measure of punishment as applied to them.

While the court agreed with defendants that the mere presence of a crime victim on the panel was no more presumptively biased than the long-approved practice of permitting a prior crime victim to serve on a jury, it found that the statistical record of pre- and post-1997 lifer commutations demonstrated a stark reduction in post-1997 Board recommendations and grants. From 1987-1996, the number of lifers recommended by the Board for commutation was about 140, but after the 1997 amendment only three were recommended to the Governor (who then took no action).

Perhaps not surprisingly, the state was able to procure the opinion of a statistics expert, Dr. Christopher K. McKenna, who reported to the court that the 1997 amendments had ?no statistically significant negative effect on the percent of inmates getting Board of Pardons recommendations for commutation.? But the court found that it was Dr. McKenna?s analysis -- and not the reduction in commutation recommendations -- that was insignificant.

The legal standard evaluated by the court was whether the application of the 1997 law created a ?significant risk? of increasing life-prisoners? punishment in violation of the ex post facto clause. From the 30-year record that the court examined, the likelihood of increased punishment to any individual prisoner was manifest because all post-1997 convicted pardon applicants were ?completely foreclosed? from ever gaining a non-unanimous (but majority) approval by the Board. Since the new law thus plainly disadvantaged such prisoners, they were constitutionally entitled to the benefit of the more favorable law in place at the time of their pre-1997 crimes. Accordingly, the district court granted plaintiffs? motion for summary judgment, reinstating pre-1997 majority voting standards for all such prisoners? future Board hearings. The decision has been appealed to the U.S. Court of Appeals for the Third Circuit.

On August 21, 2006, the district court granted the plaintiffs? motion for attorney fees and costs, awarding $178,286.20 in fees and costs to Gerger & Montague, P.C. and $47,491.61 in fees and expenses to attorney Gerald C. Grimaud. See: Pennsylvania Prison Society v. Rendell, USDC MD PA, Case No. 1:97-cv-01731-ARC (March 13, 2006), appeal filed, Appeal No. 06-3354 (3d Cir. 2006).

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Related legal case

Pennsylvania Prison Society v. Rendell