Year: 2016

Compassionate Release for Terminally Ill– Compassionate release refers to a court’s authority to permit the early release of a prisoner based on “extraordinary and compelling reasons.” Congress codified the option for compassionate release in federal statute 18 U.S.C. §3582(c)(1)(A)(i), however several states have taken care to create their own compassionate release statutes applicable to state prisoners.

Sentencing juveniles to life without parole (JLWOP) is one of the many areas of criminal justice in which the United States sets itself apart from the rest of the world. No other country allows for the imposition of life sentences without the possibility of parole for child offenders. Pennsylvania has the most people serving Juvenile Life without Parole in the country.Of the approximately 2,500 JLWOP sentences in the United States, around 400 or so were awarded in Pennsylvania, which is what is known in juvenile sentencing terms as a "double mandatory" state: juveniles involved in a homicide are automatically transferred to adult court and tried as adults (“adult crime, adult time“) and both first- and second-degree murder convictions carry mandatory LWOP sentences.

In 2012 the U.S. Supreme Court (In Miller v. Alabama) ruled That Mandatory Life without Parole Sentences for Juveniles Are Unconstitutional. At that time the decision did not state that the ruling was retroactive therefore each state's court made their own decision on retroactivity and unfortunately Pennsylvania's high court declared that the decision was not retroactive. This left over 400 individuals serving JLWOP in PA without the right to seek relief from the Supreme Court Decision. Last year the U.S. Supreme Court agreed to hear another case (Montgomery v. Louisiana) in which the main issue was whether the 2012 decision in Miller v. Alabama was a substantive rule that must be applied retroactively. Last month the U.S Supreme Court issued their decision in Montgomery v. Louisiana and declared in a 6 to 3 decision that the rule is Retroactive. As a result of this decision, 69 year-old Henry Montgomery (who has been serving a mandatory JLWOP sentence for over 50 years), along with over a thousand others serving mandatory life without parole sentences for crimes committed while they were juveniles, will receive new sentencing hearings or be considered for parole. In Pennsylvania specifically this means that over 400 individuals serving JLWOP will finally be given an opportunity for new and hopefully just sentencing.

Pennsylvania’s Post Conviction Relief Act (PCRA:

http://www.mcdonalddefense.com/2011/12/16/pennsylvanias-post- conviction-relief- act-pcra/

The PCRA is an indirect method of appeal in criminal cases. A direct appeal is when a criminal case is appealed from the Court of Common Pleas, where the accused lost the case, and wants to challenge some aspect of it. For more on direct appeals, read my post here. An indirect appeal in a PCRA allows the person to have the case reconsidered when a direct appeal to the Superior Court has been denied.

The PCRA must be filed within one year of the denial of the final direct appeal, or after the conviction if the defendant chooses not to use direct appeals. The one year rule does have some exceptions. The basic exceptions include: where counsel effectively abandons the defendant in the PCRA process, where the petition is an extension of a previously filed petition that was within the one year limit, where the government blocked the petition in some manner, where the new evidence could not have been known within the one year limit, and finally, where the court has determined that constitutional rights are such that the extension must be given.

PCRA is limited on its grounds for appeal. The full text of the act can be read here, but I will summarize it briefly. Under 42 Pa.C.S.A. § 9541 et seq, you may only begin the process for the PCRA if your conviction or sentence resulted from:

 A violation of the Constitution of Pennsylvania or of the United states, or of the laws of the United States, and the violation occurred under circumstances which so undermined the process that no reliable adjudication of truth could have taken place

 There was ineffective assistance of counsel such that no reliable determination of truth could have taken place

 A plea of guilty was gotten under circumstances which make it likely that the defendant was induced to falsely make the statement and the defendant is innocent

 Government officials wrongly obstructed the defendant’s right to appeal where an issue for appeal was present and capable of being appealed

 New evidence has come to light which would have changed the outcome of the trial

 A sentence was imposed which was greater than the lawful maximum

 The court proceeding took place in a tribunal which did not have jurisdiction

Additionally, the statute requires that the allegation in the petition has not been previously litigated in court (it is a new issue) and it has not been waived by a failure to raise the issue (you didn’t bring it up and you were only permitted to bring it up at a certain point of the proceeding). The failure to litigate the issue cannot be the result of a rational or strategic move by the defendant’s attorney at trial. You may notice the phrase “reliable adjudication of the truth” or “reliable determination of the truth.” These phrases are synonymous and mean that, because of what happened at trial, the facts or process was so distorted that no one could have discovered the truth. The courts have stated that the issue must go directly to the truth-determining process. (Commonwealth v. Bennett, 2007).

Another thing to mention is the process that a person must be given for the court to have properly reviewed the PCRA claim. Although the amount of due process required is less stringent than at trial, a defendant who petitions is still entitled to present his or her claims in a meaningful time and have them considered in a meaningful manner.

A petition for post-conviction relief must conform to certain processes and is subject to parameters defined by statute and the court. When you consider a PCRA, you also need to consider what attorney you will hire, and find one with the experience and the dedication to see the petition through. Failure to obtain the right counsel can result in the denial of your petition.