Review of Juvenile Life Without Parole

Preface

The Governor’s Committee for the Analysis and Reform of Our Criminal System was

established on August 6, 2003 by Governor Rendell. The Governor’s specific mission statement

was:

Rev.Dr. Roger Thomas1 was appointed co-Chair because he was the Secretary of the Witness

Team of the Western Pennsylvania Conference of the United Methodist Church.2 Rep. Joseph P.

Preston, Jr.3 was appointed co-Chair because he was a delegate of the Pennsylvania Legislative

Minority Caucus.

The Committee attracted members and resource people from around the Commonwealth under

this directive. Among these were Judge Renee Cardwell Hughes, Dr. John Rago, Chair of the

Advisory Committee on Wrongful Convictions SR 381(2005), Beaver County District Attorney

Anthony Birosh, Beaver County Assistant District Attorney Michael Machen, Attorney Marshall

Dayan, Attorney Martha Conoly, Attorney Bill Braslawsce, Attorney John Knorr, Attorney Teri

Himbaugh, Attorney Rob Dunham, Public Defender Kathleen Cribbins, Public Defender Daniel

DeLisio, Donna Pfender, Ned Pfundt, and Dr. Alfred Blumenstein.

After four years of study and research, the Committee conducted the “Beyond Innocence

Conference” at Old Economy Village, Ambridge, PA on November 9, 2007. It formally

discussed the issues, and developed its recommendations. The proceedings were videotaped,

with copies shared with the Pennsylvania Prison Society.

The Final Report was delivered to Governor Rendell, in Center Township, on July 10, 2008.

Twenty-three specific proposals were offered.

a.) Videotaping interviews and interrogations

b.) A Model Eyewitness Identification Act

c.) Sustained investigation of all suspects.

d.) The enhancement of Discovery Depositions.

e.) A Model Disclosure Act.

f.) A Model Act to Improve the Preservation and

Accessibility of Biological Evidence, requiring the

accreditation of labs and the certification of

technicians.

h) A Model Jury Base and Jury Pool Act to include a

l) A Model Racially Discriminatory Sentencing Act.

m) A Model Grievance Procedure.

n) A Model Limited English Procedure.

o) A Model Mental Retardation Act to implement

Atkins v Virginia and Commonwealth v Joey Miller.

p) A Model Counsel Competence Act and a Model

Capital Resource Act.

q) A Model Snitch Testimony Act

r) A Model Alternative Sentencing Instruction.

s) A Model Family Testimony Act.

1 Rev.Dr. Thomas’ ThD is in Law and Theology. His dissertation, “The Covenant Code as Law”, provides a 1992

legal brief on each verse of the Covenant Code as found in Exodus 21-23. The preface to the published version

was written by Wyoming’s Chief Justice C. Stuart Brown. Among his publications is “Death in Pennsylvania;

James V. Bennett Revisited” which examines the death penalty practice in Pennsylvania. (academia.edu.) 2 This is now called “Church and Society”.

3 When Rep. Preston’s term expired Rep. Ronald Waters assumed his position.

Pennsylvania Committee for the Analysis and Reform of Our Criminal System 1143 Carlson, Ambridge, PA 15003 pennsylvaniainnocencecommission.com

2

larger cross-section of the populace.

i) A Model Jury Compensation Act to provide at least

minimum wage.

j) A Model Jury Exemption Act to allow certain people

to decline jury service.

k) A Model Racially Discriminatory Jury Instruction.

t) A Defendant’s Statement standard.

u) A Model Juvenile Jurisdiction Act.

v) A Model After Discovered Evidence Act.

w) A Model Post conviction Relief Act

x) A Model Misdemeanor Expungement Act.

y) A Model Compensation Act.

Eleven of these recommendations have been implemented. Others are in legislation.

Following the Final Report, the Committee4 continued to meet, report, draft legislation and

testify for the enactment of its recommendations.

It insisted that judges hold offenders responsible for the special damages from their

acts.5

It worked with Sen. Helfrick to assure that people with mental retardation were not

eligible for execution.6

It worked with Rep. O’Brien to pass the DNA Bill of Rights.7 It worked with PADP

toward a moratorium on executions while a study is conducted on who lives, who

dies and who decides in Pennsylvania.8

It worked to assure that representatives of victims’ families should be allowed to

testify regardless of their political or religious beliefs.9

It worked to assure that judges would be allowed to determine whether an accused is

mentally retarded.10

It worked to assure that the accused be given competent representation. 11

It worked to assure that the sentencing jury should be fully informed of their options

as in the Federal Truth in Sentencing Act.

It worked to assure that appellate courts be allowed to consider racial, gender, and

demographic bias in sentencing patterns.

It served as a member of the SR 149 Advisory Committee to assure that non-violent,

seriously or terminally ill inmates should be allowed placement in secure medical

facilities for their care.

It served as a resource to Dr. John Rago and Michael Machen on the SR 381(2005)

Advisory Committee on Wrongful Convictions.

It is a consultant to The Pennsylvania Interbranch Commission for Gender, Racial,

and Ethnic Fairness on issues of jury compensation12

and juror exclusions.13

4 When Governor Rendell’s term of office expired, the committee name changed from the “Governor’s Committee”

to the “Pennsylvania Committee”. 5 Exodus 21:18-19

6 Senate Bill 26 of Session 2003. “A Model Mental Retardation Act” to implement Atkins v Virginia and

Commonwealth v Joey Miller. 7 Senate Bill 26 of 2002

8 This is illustrated in Senate Bill 14 of 2003, Senate Bill 741, House Bill 1680 and House Resolution 206 of 2005.

Pennsylvanians for Alternatives to the Death Penalty lead this campaign. Gov. Wolf has implemented this

moratorium, and it is currently in litigation. The Supreme Court’s Committee on Racial and Gender Bias in the

Justice System has also recommended this. 9 Senate Bill 16 of 2003.

10 House Bill 698 or Senate Bill 631 of 2005

11 Senate Bill 562 of 2005.


3

It is the assisted in writing the Racial Justice Bill,14

the Juvenile Justice Bill15

, the

Crime Lab Certification Bill16

, The Eyewitness Identification Bill17

the Juror

Compensation Bill, and a Juror Exception Bill.

The Pennsylvania Senate established the Senate Resolution 304 Juvenile Act Advisory

Committee in 2014. The Advisory Committee’s first explicit assignment was to reconcile the

Juvenile Justice Act with the Rules of Juvenile Court Procedure. The second explicit assignment

was to address the impact of the United States Supreme Court decisions in Roper v Simmons,

Graham v. Florida and Miller v Alabama on Pennsylvania law. The ancillary assignment was to

study the related issues regarding juvenile justice in Pennsylvania.

Rev.Dr. Thomas was appointed to the Advisory Committee as a representative of the community

of faith. He was appointed for the express purpose of discussing issues of juvenile justice

beyond the reconciliation of the Juvenile Justice Code and the Juvenile Court Rules, and the

implementation of the US Supreme Court decisions.

The Advisory Committee’s reconciliation of the Juvenile Justice Act and the Rules of Juvenile

Court Procedure was both prompt and significant. Substantial work was done regarding the

impact of neurological and psychological development of youth.18

Much other work was done

on related issues such as the exclusionary rule in youth facilities. The Report of the Advisory

Committee on Wrongful Convictions,(2011) had emphasized the importance of electronically

recording -specifically juvenile- interviews and interrogations. The SR 304 Advisory Committee

affirmed that recommendation. “The Pennsylvania Commission on Crime and Delinquency, in

consultation with the Pennsylvania Chiefs of Police Association, the Public Defenders

Association of Pennsylvania and the Pennsylvania District Attorneys Association (were called

upon to) develop a best practices procedure that can be used statewide Representatives of The

District Attorneys Association and the Pennsylvania Board of Probation and Parole agreed to

help develop a protocol to this end.”

12

Jury Compensation Bill is currently HB 894. Testimony was offered to the Pennsylvania Interbranch Commission

for Gender, Racial, and Ethnic Fairness on June 6, 2015. 13

The Jury Exemption Bills are currently SB 210, HB 58, HB 370 and HB 895. Testimony was offered to the

Pennsylvania Interbranch Commission for Gender, Racial, and Ethnic Fairness on June 6, 2015. 14

The Racial Justice Act is currently HB 890. The House Judiciary Committee held a hearing on this on July 17,

2010. 15

The Juvenile Justice Bill is currently HB 892. Testimony was given on Juvenile Justice Bills in September 22,

2008, July 12, 2012, and August 15, 2012. We are currently working with Sen. Daylin Leach regarding a

companion Senate Bill 16

The Crime Lab Certification Bill is currently HB 891 17

The Eyewitness Identification Bill is currently HB 889. We have been working with Sen. Ferlo on the Senate

version. 18

Final Report: “The Role of Neuroscience in Determining Juvenile Culpability”. This information, combined with

psychological testimony offered at the September 22, 2008 and July 12, 2012 hearings of the Senate Judiciary

Committee, provides effective, actionable information. Dr. Beatrice Luna, PhD, Director, Laboratory of

Neurocognitive Development, letter of July 16, 2009, as presented to the House Democratic Policy Committee

Hearing, Topic: H.B. 1994 and Juvenile Justice, August 15, 2012; Dr. Laurence Steinberg’s testimony of

September 22, 2008. Prof. Alfred Blumenstein develops the term “system” in “The Milwaukee Experiment”, The

New Yorker, May 11, 2015, p. 28.


4

Four issues need further consideration. The complexity of these issues necessitates multiple

perspectives which draw upon established sources often called “evidence based practice”.19

1. This Final Report must be viewed in conjunction with previous studies and with ongoing

work being done by similar groups. There are issues such as race, gender, victims, early

intervention20

, rehabilitation, restitution, restoration and expungement which are yet to be

resolved.

2. The “Felony Homicide Rule” is outmoded.

3. 42 Pa.C.S. §1102.1 is not balanced.

4. “Proportionality” should be considered during both direct and indirect file

determinations.

19

Juvenile justice should be viewed in a holistic paradigm. This paradigm embraces the Mosaic, Platonic and

Aristotelian concepts of perception, and all the reasoning systems which emanate from them. 20

“The Milwaukee Experiment”, The New Yorker, May 11, 2015, p. 24, specifically p. 28.


5

I

Collective View

Juvenile justice information must be viewed in its entireties. To this end, please accept into

evidence all the testimony and documentation which has already been developed such as:

the Senate Judiciary Committee Public Hearing relating to the Human Right Watch Report

on Juvenile Lifers on September 22, 2008,

the Senate Judiciary Committee Public Hearing on Miller v Alabama relating to Juvenile

Lifers on July 12, 2012, and

the House Democratic Policy Committee Hearing Topic: H.B. 1994 and Juvenile Justice on

August 15, 2012.

Please view this Final Report in conjunction with the continued work of efforts such as:

The Disproportionate Minority Contact (DMC) Subcommittee of the Pennsylvania

Commission on Crime and Delinquency’s (PCCD) Juvenile Justice and Delinquency

Prevention Committee, and

The Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness.

II

Felony Homicide Rule

An entire chapter of the Final Report is devoted to The Felony Homicide Rule. The discussion

is informed and well presented. As stated in the Final Report;

The Advisory Committee determined that as of September 24, 2014 Pennsylvania had 524

juveniles serving life without parole (JWOP).22

This is the largest JLWOP population in the

world.23

It is about a fifth of the nation's total. Sen. Stewart J. Greenleaf previously testified that

Pennsylvania’s JLWOP population “far exceed(ed) the 2d state, Louisiana”.

24

21

18 Pa.C.S. § 2502(b) and (d). See also 18 Pa.C.S. § 903 22

Final Report, p.23 23

As of June 2014, Arkansas, Florida, Louisiana, Michigan, Nebraska, North Carolina, Pennsylvania, South Dakota,

and Washington had reinstated JLWOP. Delaware, Hawaii, Texas and Wyoming have rejected JLWOP.


6

The preponderance of children serving JLWOP were convicted under “The Felony Homicide

Rule”25

This Rule provides that if a homicide occurs in the course of a felony, any person

associated with “the triggerman” is guilty of Second Degree Homicide, and may be subject to

life without parole.26

59% of the children serving JLWOP at the time of the September 22, 2008

Senate Judiciary Committee Hearing never held a weapon, never confronted a victim, and may

not even have known that a crime had occurred. They were sentenced for “a murder in which

they might have only been an unwitting accomplice.”27

The Juvenile Justice Advisory Committee considered three alternatives to address the problems

inherent in the Felony Homicide Rule.

1. The first, developed largely by Deputy District Attorney George D. Mosee, Jr., “gives

prosecutors the ability to return sentencing discretion to the court.”28

That alternative is

attached as Exhibit A.

2. The second, developed largely by a JAAC subcommittee, recommended that juveniles be

given a greater right to assert affirmative defenses.29

The prosecutor would be called

upon to prove the level of privity and complicity on each defendant. That alternative is

attached as Exhibit B.

3. A third alternative, found in Rep. Robert Matzie’s HB 892 (2015), provides for a re-

sentencing hearing which eliminates the Felony Homicide Rule. That alternative is

attached as Exhibit C.

Alabama, Arizona, Connecticut, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Mississippi, Missouri, New

Hampshire, New Jersey, Ohio, Vermont, and Virginia had not enacted new legislation. The Sentencing Project,

http://sentencingproject.org/doc/publications/jj_State_Responses_to_Miller.pdf 24

Opening Remarks of Chairman Stewart J. Greenleaf, Pennsylvania Senate Judiciary Committee Hearings on

Inmates Serving Life without Parole for Crimes Committed as Juveniles, September 22, 2008; Opening

Statement of Committee Chairman, Senator Stewart J. Greenleaf, July 12, 2012. Testimony of William

DiMascio, Executive Director, Pennsylvania Prison Society, September 22, 2008, p. 1. http://www.post-

gazette.com/pg/08273/915905-85.stm, covering the September 28, 2008 hearing. In January 2008 Human Rights

Watch reported that Pennsylvania held some 444 JLWOP, and Louisiana held 317. 25

Final Report p. 35ff; 18 Pa.C.S. § 2502(b) and (d) & 18 Pa.C.S. § 903. 26

Final Report p. 43; 18 PaCS 903, 18 PaCS 2502, and 18 PaCS 1102; Garoupa, Nuno and Klick, Jonathan (2008)

"Differential Victimization: Efficiency and Fairness Justifications for the Felony Murder Rule," Review of Law &

Economics: Vol. 4 : Iss. 1, Article 19; http://www.jcjc.state.pa.us/jcjc/lib/jcjc/juvenile_act.pdf 27

Final Report p.43; 28

One critic has noticed that the sentence under 2d Degree Murder could be less than the sentence under 3d Degree

Murder. 29

Bergstrom July 12, 2012 testimony. One critic has remarked that the “enhanced” categories are too broad. The

prosecutors would consistently allege them, and the exception could swallow the rule. He wants “enhancement”

to apply only to the actual perpetrator who committed the act itself.

http://www.post-gazette.com/pg/08273/915905-85.stm

http://www.post-gazette.com/pg/08273/915905-85.stm


7

Each of the three proposals has merit, and has supporters on the Advisory Committee. They are

each discussed in the Advisory Committee’s Final Report.

Matzie’s proposal can be viewed as an implementation of Bobbi Jamriska’s idea during the July

12, 2012 hearing.30

It is consistent with Michigan’s Senate Bill 9 of 2007, except that it grants

jurisdiction to the Sentencing Court rather than the Board of Probation and Parole.

HB 892 empowers the Sentencing Court to hold a re-sentencing hearing on individual juvenile

accomplices.31

It does not provide for a new trial. Each of the three elements is essential.

1. Each individual would be separately evaluated.

2. It only applies to juveniles.

3. It only applies to accomplices.

The vectors listed in the Bill, and in 42 Pa.C.S. §1102.1(d), are issues of fact pertaining to the

offense, and the juvenile’s degree of culpability.32

They are the very issues which are best

evaluated by the Sentencing Court.

The Bill does not vest jurisdiction in the Board of Probation and Parole because that Board’s

primary consideration in sentence reduction is the inmate’s behavior during incarceration. That

is inverse to the Sentencing Court’s focus. The Bill is designed to focus first on circumstances at

the time of conviction and then on subsequent behavior during incarceration.

The first two alternatives mollify outmoded practices. The third alternative disposes of it.

Legal Basis

Professor Leonard Birdsong discusses the Felony Homicide Rule as contrived law, extracted

from contradictory English legal theorists.33

It was never extensively used in Britain, and the

British outlawed it in 1957.34

30

Jamriska July 12,2012 testimony, p. 3; Final Report of The Pennsylvania Committee for Analysis and Reform of

our Criminal System (2010) 31

Bridge testimony on July 12, 2012. I met with the President of the Pennsylvania District Attorney’s Association

regarding this Juvenile Justice Bill on two occasions in 2012. His position was that “If it applies equally to

everyone, and does not elicit a rash of judicial activism, we have no objections to it.” 32

These elements are discussed by Dr. Beatrice Luna and Dr. Laurence Steinberg in their September 22, 2008

testimony. See also 42 Pa.C.S. §1102.1(d) 33

Leonard Birdsong, “A Long Discourse on the Concept of Felony Murder in the United States” June 25, 2008, p.7 34

Birdsong, p. 10 and 12; Britain banned the Felony Homicide Rule 9 years before The International Covenant on

Civil and Political Rights


8

Birdsong shows that the Felony Murder Rule in the United States has been more expansive than

in England. Our concept of vicarious liability is used to hold all co-conspirators liable for the

substantive crimes committed by any one conspirator in the course of executing the unlawful

agreement that may have led to the felony murder.35

Dr. Ashley Nellis describes how the U.S.

achieved this unique position by slowly and steadily dismantling founding principles of the

juvenile justice system.36

Birdsong further shows that the Rule “is akin to strict liability crimes in that no mental element

or mens rea must be proven. It operates in direct opposition to the fundamental principle of

criminal law that liability ought to reflect culpability.”37

It provides a formal track of liability

which permits a conviction regardless of the juror’s assessment of culpability.38

Culpability

under the Rule is a legal construct.39

It mixes tort theories such as “proximate cause” and

“agency” into the Criminal Justice System.40

Professor Birdsong and Dr. Nellis both show that our Felony Homicide Rule has accumulated

into an institutionalized practice which has little basis in either law or history. As early as 1619

the court found the Rule “as completely lacking in authority and that there was no logic to the

rule.”41

Judge Lee Matotan makes the same point.

“Although the felony-murder rule has obvious advantages in a retributive system, its relevance to a modern

criminal justice system more concerned with the deterrence of criminal activity and the rehabilitation of

offenders is questionable.”42

"The legal fiction and dubious logic of the quasi-tort, quasi-criminal "proximate

cause" theory was abolished.43

"Generally, (perpetrator) denotes the person who actually commits a crime

or delict, or by whose immediate agency it occurs." To say that the surviving defendants …

"perpetrated" the murder …would indeed expand the meaning of the word "beyond common

understanding." It would appear outside logical comprehension to charge any surviving co-

felons.”44

35

Birdsong, p. 9; 18 PaCSA § 903 36

Ashley Nellis, Ph.D. “The Lives of Juvenile Lifers: Findings from a National Survey” March, 2012 , as presented

to the House Democratic Policy Committee Hearing, Topic: H.B. 1994 and Juvenile Justice, August 15, 2012 37

Birdsong, p. 1 38

Birdsong, p. 1; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U. Pa. L. Rev. 50, 57 n. 40

(1956); Lee Matotan (Sislen) “State v. Jackson: A Solution to the Felony-Murder Rule Dilemma”, New Mexico

Law Review, Summer 1979, p. 433

http://heinonline.org/HOL/LandingPage?handle=hein.journals/nmlr9&div=34&id 39

Robert Schwartz, Executive Director, Juvenile Law Center, testimony, September 22, 2008, p. 5 40

Matotan, p. 433 41

Birdsong, p. 4 42

Matotan, p. 439 43

Matotan, p.440 44

Matotan, p. 441


9

International and Federal Standards

No other country sentences people to die in prison for crimes committed as youth.45

Robert

Schwartz, Executive Director of the Juvenile Law Center, testified how JLWOP violates Article

37 of the United Nations Convention on the Rights of the Child46

, Article 24 of the International

Covenant on Civil and Political Rights47

, several United Nations General Assembly resolutions,

and American Bar Association policies.48

The Federal government followed the UN Convention on the Rights of the Child in “HR 4300:

Juvenile Justice Accountability and Improvement Act of 2007”. HR 4300 requires that “each

State shall have in effect laws and policies under which each child offender who is under a life

sentence receives … a meaningful opportunity for parole.”49

The UN Committee on Racial Discrimination, the Committee Against Torture and the UN

Human Rights Committee50

each found that the United States - and the Commonwealth of

Pennsylvania- are violating treaty obligations and customary international law by continuing to

allow JLWOP and the Felony Homicide Rule.51

Justice Stevens asked the various states to comply with international law in assuring the US

meets its treaty obligations. “One consequence of our form of government is that sometimes

States must shoulder the primary responsibility for protecting the honor and integrity of the

Nation.”52

45

Nicole Porter, “States Slow to Comply with Supreme Court Mandate on Juvenile Life Without Parole ” June 25,

2014; Written testimony of Michelle Leighton, September 18, 2008 to Sen. Greenleaf, p. 2. 46

“No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither

capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed

by persons below eighteen years of age;” November 20, 1989; The United Nations Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 47

December 16,1966 48

September 22, 2008 testimony of Robert Schwartz, p. 7-9; Connie de la Vega & Michelle Leighton, “Sentencing

Our Children to Die in Prison: Global Law and Practice”, University of San Francisco Law Review, Spring 2008,

p.983. 49

“RS 102 Juvenile Justice”, 2012 Official Journal of the Western Pennsylvania Conference of the United Methodist

Church 50

Michelle Leighton letter of September 18, 2008 to Sen. Greenleaf, digesting “Sentencing Children to Die in

Prison: Global Law and Practice”. www.usfca.edu/law/home/CenterforLawandGlobalJustice%20LWOP.html 51

Michelle Leighton, Director, Human Rights Programs, University of San Francisco School of Law, letter of

September 18, 2008 to Sen. Greenleaf. 52

Michelle Leighton quoting Medellin v Texas, 554 US (2008)


10

Scriptural Violation

When juvenile accomplices are sentenced either to life imprisonment without the possibility of

parole -or now to 20 or 30 years to life- their lives are wasted. It is a cardinal sin to squander the

life of a child, especially for a secular purpose.53

This waste is compounded when the child had

minimal culpability in the offense. The Senate already has testimony that 59% of the children

serving life never held a weapon, never confronted a victim, and may not have even known a

crime had occurred. Most had been entangled into the offense by the act of some adult, and that

adult is often one of his parents. Pennsylvania needs to disassociate itself from this practice.

Pennsylvania Practice

Marc Mauer, Executive Director of the Sentencing Project, shows that prosecutors often contend

that convicting a child in adult court allows the court to keep a young offender incarcerated after

he turns 21. They claim that this is for public safety purposes. But do we really believe that a

decade behind bars is not a sufficient time to provide the assessment and treatment services

necessary to aid troubled children?54

Antonio Howard asks; “When is a child worth more than

the worst mistake he ever made?”55

Prosecutors also acknowledge that they use the Felony Homicide Rule as a bargaining chip to

elicit plea bargains or confessions. The “triggerman” can plea to a lesser charge, but must testify

against minor children.56

This self-serving -“snitch”- testimony is often the sole connection

between the juvenile and either the homicide or the underlying felony.57

53

A full discussion of the Sin of Moloch is beyond the scope of this Concurring Report, but a few citations in a

footnote might provide reference: It violates the Torah in Leviticus 18:21; Deuteronomy 12:31; 18:10-12. It

appalled the prophets in Jeremiah 32:35; 7:31; 19:5. And it was enforced in 1 Kings11:7; 2 Kings 16:3; 2 Kings 21:6; 2 Kings 23:10. 54

Mauer, Executive Director, The Sentencing Project, “Charged as Adults, Children Are Abandoned When They

Could Be Saved” August 18, 2014; September 22, 2008 testimony of Robert Schwartz, p.5 55

Written testimony of Antonio Howard, September 22, 2008. 56

Written testimony of Nicholas L. Bowen. 57

Judge Thomas Albrect has testified at length about the unreliable nature of “snitch” testimony. He specifically

testifies that such testimony is excluded throughout Europe. Exodus 20:20 speaks against this. The September

22, 2008 written testimony of Dameon Brome, Marlo Clark; Ricardo Cruz, Philip Foxx, Miguel Garcia, Andre

Green, Robert L. Holbrook and the recantation testimony of Anthony Moss each illustrate this.


11

50% of Pennsylvania’s juveniles were incarcerated because of the Felony Homicide Rule. 69%

were first offenders.58

97% were male, 69% were Black,59

and 57% were from Philadelphia

County.60

60% are now between 20 and 40 years old.61

“Life Imprisonment Without the Possibility of Parole” was intended to be limited to those

offenders who commit “a narrow category of the most serious crimes”. It should be limited to

those individuals whose extreme culpability makes them “the most deserving.”62

Its purpose was

the “specific deterrence” of a single offender. The Felony Homicide Rule, especially as applied

to minors, contradicts this principle. With minors, this “Death on the Installment Plan” implies

that “society has relinquished hope for its children.”63

There is abundant evidence that many of the juveniles implicated under the Felony Homicide

Rule were only incidentally involved in either the homicide or the underlying felony.64

The

majority were implicated by the criminal act of an adult.65

a) Judge Charles G. Webb responded to one of the Defendants, “Well the court doesn’t have

any discretion in this matter because the sentence is mandatory. And I think in a case like

this, it’s harsh because I never would have sentenced you to a life term in prison under

these facts, but the law says if a murder is committed during the course of a felony that is

second-degree, and second-degree is a mandatory sentence.”66

b) Terry Kightlinger, a co-defendant, testified on behalf of David Pennewell, “Please

consider guys like David, children who are serving life, fated to die in prison, and he

never harmed anyone. He was just there.”67

c) Stacey Torrence testified to the Senate that he had not seen either the victim or the

offender for 10.5 hours before the offense, yet he was still serving life without parole.68

d) Other specific examples are provided in the testimony provided to the Senate on

September 22, 2008 and July 12, 2012.

58

Human Rights Watch reports that some 69% are first offenders. Stacey Torrance’s video testimony on September

22, 2008 identified him as a first offender. 59

Fight for Lifers West, “Juvenile Lifers”, p. 3. 60



Roper, http://www.law.cornell.edu/supct/html/03-633.ZS.html, p. 2 63

Testimony of William DiMascio, Executive Director, Pennsylvania Prison Society, September 22, 2008, p. 1.

That is the Sin of Moloch. It is also a violation of the teshuvah of Ezekiel 33:11 which requires that the

community assist the individual in turning from their ways so they can live in society. 64

September 22, 2008 testimony of Erik Van Zant, Stacy Torrence 65

September 22, 2008 written testimony against Ollie “Homicide” Taylor; written testimony of Nicholas L. Bowen;

written testimony of Dameon Brome; 66

Written testimony of Joe Heckl, Chairperson, Juvenile Lifers Committee. 67


Video testimony of Stacey Torrance, September 22, 2008.

http://www.law.cornell.edu/supct/html/03-633.ZS.html


12

e) 26% of all Juvenile Life Without Parole sentences are handed down for felony murder

convictions, which often means the individual was not the actual killer. 69

The juveniles just listed are clearly not “the most deserving” offenders that the Supreme Court

had in mind.70

All of the victim families who testified at the September 22, 2008 Senate Judiciary Committee

Hearing on Juvenile Lifers spoke against the actual killer. Not one testified against a co-

Defendant who was incarcerated for life because of someone else’s crime.71

Little is offered

regarding the incidental, juvenile by-standers.

Our willingness to treat juveniles like adults when they commit crimes, and expose them to the

same punishments as adults is inconsistent with virtually every other decision we make about

teenagers under federal and state law.72

Nor does it follow that severe punishment of one

adolescent will deter others from committing crimes. The very same limitations that make

juveniles less responsible for their acts – impulsivity, short-sightedness, and susceptibility to peer

pressure – also make them less likely to be deterred by either the law or by the experience

suffered by others.73

The difficulty with the Felony Homicide Rule is compounded when all the people implicated in a

felony homicide are tried jointly, with no consideration given to the circumstances of the crime

or the culpability or maturity of the offender.74

This violates a bedrock principle of our criminal

law that offenders should be punished in proportion to their level of responsibility for their

behavior.75

69

Testimony of William DiMascio, Executive Director, Pennsylvania Prison Society, September 22, 2008, p. 2. 70

Roper, http://www.law.cornell.edu/supct/html/03-633.ZS.html, p. 2. See also Opening Remarks of Chairman

Stewart J. Greenleaf, September 22, 2008, p. 1. 71

Testimony of Basym Hasan, Bobbi Jamriska, Jodi Dotts, and Shirley Woodyard September 28, 2008. 72

Statement of Laurence Steinberg, PhD, September 22, 2008, p. 1 73

Statement of Laurence Steinberg, PhD, September 22, 2008, p. 2. 74

Testimony of William DiMascio, Executive Director, Pennsylvania Prison Society, September 22, 2008, p. 2. 75

Statement of Laurence Steinberg, PhD, September 22, 2008, p. 2.

http://www.law.cornell.edu/supct/html/03-633.ZS.html


13

78% of juveniles sentenced to JLWOP relied on appointed counsel.76

The inadequacy of

counsel, and the sentencing jury’s lack of any opportunity to consider the relative culpability of

each Defendant is what places innocent juveniles in prison for the rest of their life.

Conclusion

The Felony Homicide Rule sacrifices the lives of innocent children for a false purpose. That is

sin, and I am asking everyone to disassociate themselves from any such practice.

Professor Birdsong and others have shown that the Felony Murder Rule is derived from muddled

thinking by conflicting legal theorists from centuries gone by. It was developed and abandoned

in England. It has no basis in either Scripture or legal history. It is a mixture of tort and criminal

principles.

The Felony Homicide Rule violates both Federal and International Law. No other nation has any

such practice, and both the United States and the individual states have been called on to

abandon it.

The Felony Homicide Rule is being used as a bargaining chip to elicit doubtful confessions and

unreliable snitch testimony. Juveniles who are sentenced by this snitch testimony find it

virtually impossible to overturn their sentences, even if accusing witnesses recant their

testimony.

In essence, The Felony Homicide Rule has a weak basis in history and law. It is ineffectively

applied. It consistently renders an unjust result.

Attorney Ellen Kyle Beagle’s opinion delineating the deficiencies in the Felony Homicide Rule

is attached as Exhibit D to this Concurring Report.

Attorney Meredith Simmons’ opinion delineating the deficiencies in the Felony Homicide Rule

is attached as Exhibit E to this Concurring Report.

Attorney Angus Love’s opinion delineating the deficiencies in the Felony Homicide Rule is

attached as Exhibit F to this Concurring Report.

Attorney William Wekselman’s opinion delineating the deficiencies of the Felony Homicide

Rule is attached as Exhibit G to this Concurring Report.

76

Eartha Jane Meizer, “As bill to ban life imprisonment for children languishes, inequities of defense persist”, April

13, 2009. Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in The Justice

System, p. 520


14

III

42 Pa.C.S. §1102.1(f) is imbalanced

(f) Appeal by Commonwealth.--If a sentencing court refuses to apply this section where

applicable, the Commonwealth shall have the right to appellate review of the action of the

sentencing court. The appellate court shall vacate the sentence and remand the case to the

sentencing court for imposition of a sentence in accordance with this section if it finds that

the sentence was imposed in violation of this section.


15

Subsection (f) of this provision allows the prosecuting attorney to appeal the application of this

statute. That right is denied to any other party. 1102.1 is an adversarial proceeding, and each

party is to be duly represented. As written, this provision gives exclusive power to one of the

parties.

The Covenant Code77

is the most basic legal code in Scripture. The language on judicial conduct

is precise:

Exodus 23:3 “Do not show partiality to a poor man at his trial.”

Exodus 23:6 “Do not deny justice to a poor man when he appears in court.”

If subsection (f) is Constitutional, it clearly violates both the letter and the spirit of Scripture. In

an adversarial proceeding, where each party should be represented by counsel, one party is given

the right to appeal but the other is not.

Either Subsection (f) should be deleted in its entireties, or the language should be changed to

read; “…the [Commonwealth] parties shall have the right to appellate review…”

IV

Proportionality

The racial distribution among persons serving JLWOP is grossly inequitable.78

There is a

marked overrepresentation of minorities within the juvenile justice system, and the lack of

adequate resources available for females.

“The overrepresentation of minorities in the juvenile justice system has been a matter of

national concern for at least the past 15 years. In 1988, Congress responded to

overwhelming evidence that minority youth were disproportionately confined in juvenile

correctional facilities by amending the Juvenile Justice and Delinquency Prevention Act of

1974 (JJDPA). Overrepresentation (is) considered to exist where the proportion of minority

youth confined in these facilities exceed(s) the proportion of minority youth in the general

population.”79

“In Pennsylvania, African American youths account for approximately 11% of the

population ages 10 to 17 in Pennsylvania. Latino youths account for 3.7%. The

Commonwealth recorded 41,898 delinquency dispositions in 2000, of which white youths

77

Exodus 21:1-23:9 78

Pennsylvania Committee for the Analysis and Reform of Our Criminal System, “Racism in the Pennsylvania

Criminal System” December 13, 2011; Final Report of the Pennsylvania Supreme Court Committee on Racial

and Gender Bias in the Justice System, Chapter 13. 79

Racial and Gender Bias Report, p. 509


16

accounted for 55.7%, African American youths accounted for 33% and Latino youths

accounted for 6.6%.”80

“In 2000, females accounted for 20% of all delinquency dispositions in Pennsylvania,

somewhat less than the national average, with African American females representing

approximately 33% of all female delinquency dispositions. Females, however, represented

only 9% of all delinquency cases in 1992, and 17% of all delinquency cases in 1996.

Females were underrepresented in (non-custodial) placements, accounting for 11% of all

(non-custodial) placements in 2000; they were also underrepresented in probation

dispositions, accounting for only 16% of the total.”81

JDDPA specifically requires states to address the over-representation of minority youth confined

in secure detention, secure confinement, jails, and lockups.82

Pennsylvania now has the

opportunity to meet this requirement. The Juvenile Code requires evaluations in both § 6339 and

§ 6355.

And

80

Racial and Gender Bias Report, p. 514 81

Racial and Gender Bias Report, p. 514 82

Racial and Gender Bias Report, p. 514


17


18

If the General Assembly were to insert a “proportionality” provision in these subsections, the

assessor would be required to articulate the racial, gender and ethnic factors as a part of their

evaluation.

§ 6339. Investigation and report.

(a) General rule.--If the allegations of a petition are admitted by a party or notice of hearing

under section 6355 (relating to transfer to criminal proceedings) has been given, the court,

prior to the hearing on need for treatment or disposition, may direct that a social study and

report in writing to the court be made by an officer of the court or other person designated

by the court, concerning the child, his family, his environment, and other matters relevant

to disposition of the case. The social study and report shall delineate that its

recommendations are proportional to similar cases in that jurisdiction, specifically

regarding the race, gender and ethnicity of the defendant.

§ 6355. Transfer to criminal proceedings.

(h) In making its determination, the court shall delineate that its recommendations are

proportional to similar cases in that jurisdiction, specifically regarding the race, gender and

ethnicity of the defendant.

The purpose of these “proportionality” provisions is to publicly authenticate that these factors

were deliberately considered. Not only would this help meet the express JDDPA standards, it

would also help address any aversive discrimination which might be latent in the system.


19

Exhibit A

Deputy District Attorney George D. Mosee, Jr.

Felony Homicide Rule Proposal


20

Recommendation to amend the felony murder sentencing statute for persons under the age of 18.

Currently, 18 Pa. C.S. §1102.1 requires the imposition of a mandatory sentence of either 20 years for a defendant under the age of 15 or 30 years for a defendant age 15 or over when convicted of second degree murder. No one, including the prosecutor, has the ability to deviate from these mandatory terms. When faced with facts that warrant a sentence of less than the mandatory, prosecutors may seek a conviction for a different charge, but that option is lost when a case goes to trial. This recommendation gives prosecutors the ability to return sentencing discretion to the court, in appropriate cases. Whenever the Commonwealth gives notice of its intention to proceed under the mandatory provisions of §1102.1 (c) (1) or (2), the mandatory sentences would apply. Absent notice, the court will be allowed to consider a sentence under the mandatory minimum. There would no longer be a need to reduce the charges to seek a sentence less than the mandatory minimum and such could be the case even after a bench trial or jury verdict.

§1102.1. Sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer.

(a) First degree murder.--A person who has been convicted after June 24, 2012, of a murder of the first degree, first degree murder of an unborn child or murder of a law enforcement officer of the first degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows:

(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 35 years to life.

(2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 25 years to life.

(b) Notice.--Reasonable notice to the defendant of the Commonwealth's intention to seek a sentence of life imprisonment without parole under subsection (a) shall be provided after conviction and before sentencing.

(c) Second degree murder.-- Upon reasonable notice provided after conviction and before sentencing of the Commonwealth’s intention to proceed under sections (c)(1) or (2), a person who has been convicted [after June 24, 2012,] of a murder of the second degree, second degree murder of an unborn child or murder of a law enforcement officer of the second degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows,:

(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of imprisonment the minimum of which shall be at least 30 years to life.

(2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of imprisonment the minimum of which shall be at least 20 years to life.


21

Exhibit B

Juvenile Act Advisory Committee

Felony Homicide Proposal


22

PROPOSED FELONY MURDER AMENDMENT

§ 1102.1. Sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer.

(a) First degree murder.--A person who has been convicted after June 24, 2012, of a murder of the first degree, first degree murder of an unborn child or murder of a law enforcement officer of the first degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows:

(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 35 years to life.

(2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 25 years to life.

(b) Notice.--Reasonable notice to the defendant of the Commonwealth's intention to seek a sentence of life imprisonment without parole under subsection (a) shall be provided after conviction and before sentencing.

(c) Second degree murder.--A person who has been convicted after June 24, 2012, of a murder of the second degree, second degree murder of an unborn child or murder of a law enforcement officer of the second degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows, except as provided in subsection (c.1):

(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of imprisonment the minimum of which shall be at least [30] 15 years to life.

(2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of imprisonment the minimum of which shall be at least [20] 10 years to life.

(c.1) Second degree murder under special circumstances.--A person who has been convicted of a murder of the second degree, second degree murder of an unborn child or murder of a law enforcement officer of the second degree and who was under the age of 18 at the time of the commission of the offense and who violated any of the elements set forth in subsection (c.2), shall be sentenced as follows:

(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of imprisonment the minimum of which shall be at least 30 years.

(2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of imprisonment the minimum of which shall be at least 20 years.

(c.2) Enhanced minimum sentence under special circumstances.—The minimum sentence for second degree murder under special circumstances shall apply if at trial the prosecution proves beyond a reasonable doubt any of the following elements:

(1) The defendant committed the homicidal act or in any way solicited, requested, commanded or directed the commission thereof.

(2) The defendant possessed or used a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury.


23

(3) The defendant had reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

(c.3) Notice of special circumstances.—The attorney for the Commonwealth shall provide notice that the Commonwealth intends to seek the enhanced minimum sentence under special circumstances pursuant to subsection (c.2) at the sentencing hearing and contemporaneously provide the defendant with a copy of such notice. Notice shall be filed at or before the time of arraignment, unless the attorney for the Commonwealth becomes aware of the existence of special circumstances after arraignment or the time for filing is extended by the court for cause shown.

(d) Findings.--In determining whether to impose a sentence of life without parole under subsection (a), the court shall consider and make findings on the record regarding the following:

(1) The impact of the offense on each victim, including oral and written victim impact statements made or submitted by family members of the victim detailing the physical, psychological and economic effects of the crime on the victim and the victim's family. A victim impact statement may include comment on the sentence of the defendant.

(2) The impact of the offense on the community.

(3) The threat to the safety of the public or any individual posed by the defendant.

(4) The nature and circumstances of the offense committed by the defendant.

(5) The degree of the defendant's culpability.

(6) Guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing.

(7) Age-related characteristics of the defendant, including:

(i) Age.

(ii) Mental capacity.

(iii) Maturity.

(iv) The degree of criminal sophistication exhibited by the defendant.

(v) The nature and extent of any prior delinquent or criminal history, including the success or failure of any previous attempts by the court to rehabilitate the defendant.

(vi) Probation or institutional reports.

(vii) Other relevant factors.

(e) Minimum sentence.--Nothing under this section shall prevent the sentencing court from imposing a minimum sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing may not supersede the mandatory minimum sentences provided under this section.

(f) Appeal by Commonwealth.--If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section


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Exhibit C

Rep. Robert Matzie

Felony Homicide Proposal


25

PRINTER'S NO. 1094

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No. 892 Session of

2015

INTRODUCED BY MATZIE, YOUNGBLOOD, J. HARRIS, THOMAS, KINSEY,

BROWNLEE, SCHREIBER, STURLA, BISHOP, C. PARKER, V. BROWN AND

COHEN, APRIL 6, 2015

REFERRED TO COMMITTEE ON JUDICIARY, APRIL 6, 2015

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, in authorized disposition of

offenders, providing for reduction of sentence for certain

minors.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Title 18 of the Pennsylvania Consolidated

Statutes is amended by adding a section to read:

§ 1111. Reduction of sentence for minors.

(a) General rule.--Notwithstanding any other provision of

this chapter to the contrary, an individual who was under 18

years of age when he committed a crime for which he was

sentenced to serve a minimum term of imprisonment of no less

than ten years or who was sentenced to life imprisonment without

parole eligibility is subject to the jurisdiction of the

sentencing court for reduction of the sentence.

(b) Factors to be considered.--In determining whether to

reduce the sentence under this section, the sentencing court


26

shall consider the following factors:

(1) The individual's age and level of maturity at the

time of the offense.

(2) The individual's degree of participation in the

offense.

(3) The nature of the offense.

(4) The severity of the offense.

(5) The individual's prior juvenile or criminal history.

(6) The likelihood of the individual to commit further

offenses.

(7) Other information considered relevant by the

sentencing court.

Section 2. This act shall take effect immediately.


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Exhibit D

Attorney Ellen Kyle Beagle

Felony Homicide Testimony


28

TO: Rev. Dr. Roger L. Thomas, Chair, The Pennsylvania Commission

for the Analysis and Reform of Our Criminal Justice System.

From: Ellen Kyle Beagle, Attorney

DATE: March 4, 2013

RE: The Felony Homicide Rule as Applied to Juvenile Defendants

Question 1: What is the meaning and the purpose of the Felony

Homicide Rule?

Under Pennsylvania law a Felony Murder, or Second Degree

Murder, is a death caused “… while defendant was engaged as a

principal or an accomplice in the perpetration of a felony.” 18

Pa. Const. Stat. §2502(b). The "perpetration of a felony" is

“the act of the defendant in engaging in or being an accomplice

in the commission of, or an attempt to commit, or flight after

committing, or attempting to commit” a felony crime. A

"Principal" is “a person who is the actor or perpetrator of the

crime.” 18 Pa. Const. Stat. §2502(d).

The Felony Homicide Rule is the doctrine holding that any

death resulting from the commission or attempted commission of a

felony is murder. A “felony” is a serious crime punishable by

more than one year in prison or death. The result of such a

doctrine is that those who may be engaged only in the underlying

felony are subject to charges for a crime which they may not

have intended to commit. There is no requirement to prove

conspiracy between the parties in order to hold all parties

accountable for the actions of the co-perpetrator who actually

commits the murder.

The Felony Homicide Rule is an attempt to hold all

perpetrators of a felony accountable for a murder that is

committed during the commission of the felony. When two or more

people are involved in a felony, but only one of them commits

the murder while the others carry out that felony crime, all

people involved in the felony are also accountable for the crime

of murder. In an example where a shooting death accompanies a

felony, the parties engaged in the underlying felony may be

charged with Felony or Second Degree Murder although they were

engaged only in the underlying felony.

Felony Murder discounts the mens rea, or intent, of the

crime of murder. A co-perpetrator may have no knowledge of the

murder even as it is carried out. The difficulty in ancient

Anglican law was ascertaining whether a perpetrator of a felony

who was merely present during the cause of death was a principal

to the death or an abettor. The presence of an abettor could


29

prevent the victim from defending himself against the principal

and so the abettor was seen as an equal offender with the

principal. Mens rea is obliterated and Actus rea is muted. The

two main elements of Murder are dismissed and mere presence is

prominent.

Question 2: How is the Felony Homicide Rule relevant to current

Juvenile law?

As with many laws, the unintended consequences and the

indirect results of application of the law change the effects of

the law. This is even more significant when applied to a

juvenile caught in the encompassing net of the Felony Homicide

Rule and charged with Felony Murder. The law removes itself

from the reality of who committed the killing. At the same time

that the law discounts his mens rea, we endow a child/juvenile

with the same, if not stronger, presence and threatening

countenance as an adult, or older juvenile, who caused the

death.

When applied to the punishment phase for felonies committed

by two or more parties, where a juvenile is involved in the

perpetration of a felony, and there is also a resulting death

committed by one of the parties, the Felony Homicide Rule takes

on preposterous proportions. A juvenile’s immature

psychological and neurological make-up makes his sentencing more

severe than adult perpetrators even if they receive the same

sentence. Those juvenile parties engaged only in the underlying

felony may receive longer, more burdensome sentences than their

adult counterparts who committed the killing that triggered the

Felony Murder charge.

Even more troublesome is that juveniles caught in the

criminal legal system tend to be represented by underfunded

legal programs, inexperienced attorneys, or are unable to

properly assist in their own defense. These juveniles receive

inadequate legal representation even though they encounter more

severe punishments because of their immature psyches. The dismal

plight of juvenile defendants, the legal defense systems in

place to serve them, their immature psychological make-up, and

the lack in our own prison systems even for adult offenders,

demand at least a re-sentencing hearing on juveniles charged

under Felony Murder.


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Exhibit E

Attorney Meredith Simmons



31

Felony Homicide and Juveniles in Pennsylvania

The felony homicide law in Pennsylvania, as applied, is an overinclusive law that

disproportionately penalizes juveniles.

There are two main state laws regarding felony homicide in Pennsylvania, and three

statutory definitions that impact the application of those laws. The first law states that “A

criminal homicide constitutes murder of the second degree when it is committed while defendant

was engaged as a principal or an accomplice in the perpetration of a felony.” 18 PA Cons. Stat.

2502(b). The second law, dealing with the penalties for juvenile defendants convicted of felony

homicide, requires that all children who were “15 years of age or older (at the time of the

commission) shall be sentenced to a term of imprisonment the minimum of which shall be 30

years to life.” 18 PA Cons. Stat. 1102.1(c)(1). Juvenile defendants who were not yet 15 at the

time the crime was committed “shall be sentenced to a term of imprisonment the minimum of

which shall be at least 20 years to life.” 18 PA Cons.Stat. 1102.1(c)(2).

The Pennsylvania Code also defines two important terms: perpetration of a felony, and

accomplice. Under Pennsylvania law, the “perpetration” of a felony includes the “commission

…, or an attempt to commit, or flight after committing…”. 18 PA Cons.Stat. 2502(d). The law

also defines an accomplice as one who, “with the intent of promoting or facilitating” the offense

“solicits such other person to commit it; or aids or agrees or attempts to aid such other person in

planning or committing it.” 18 PA Cons.Stat. 306(c)(1). Alternately, if the juvenile’s “conduct

is expressly declared by law to establish his complicity”, then he may also be considered an

accomplice. 18 PA Cons.Stat. 306(c)(2).

In addition, in Miller v. Alabama (567 U.S. ___ (2012)), the United States Supreme Court

prohibited sentencing defendants to life without parole when they were a juvenile at the time of

the commission of the crime. This provides Pennsylvania with an opportunity to rectify its

felony homicide laws as applied to juveniles.

These felony homicide laws, when taken together, create disproportionate effects on

juvenile offenders. Consider the following two scenarios:

Scenario 1: Juveniles A and B are fleeing from the home of B’s ex-girlfriend, to which B

attempted to break in. After an alarm was set off, B lost courage, and ran back to the car

where A was driving. One block away, as they were driving home, A strikes and kills a

pedestrian. In this situation, A and B could both be guilty of felony homicide.

Scenario 2: Juveniles A and B are fleeing from the home of B’s ex-girlfriend, at which B

has just thrown eggs. After a neighbor arrived, B ran back to the car where A was

driving. One block away, as they were driving home, A strikes and kills a pedestrian. In

this situation, A is guilty, at most, of voluntary manslaughter. B is not liable for the death

of the pedestrian.

The largest problem with felony homicide laws in Pennsylvania is the ease with which

accomplice liability and attempt can make a juvenile liable for the second degree murder of

another. Accomplice liability, while it does require intent, requires merely the intent to commit

to commit the underlying felony. Under the felony homicide rule, a juvenile can be found guilty

even if they never intended for the victim to die. Similarly, attempt (which in Pennsylvania is


32

satisfied when the defendant has taken a “substantial step” towards the commission of the crime)

can warrant a charge of felony homicide even when the felony was not completed.

In addition, in light of today’s social media usage, particularly by juveniles, the

likelihood of becoming an accomplice is increasing. With a simple text message, a juvenile can

become an accomplice to a felony which, if it escalates to felony homicide, can force a minimum

sentence of 30 years on the juvenile.

Juveniles in Pennsylvania are being incarcerated for decades at a time for statutory

murders which they may have never intended to happen. Many of these juveniles were not at the

scene of the crime. For example, if in Scenario 1 (above), Juvenile C lent Juveniles A and B his

car so they could go over to the ex-girlfriend’s house while Juvenile C was at football practice,

Juvenile C could also be found guilty of felony murder with a mandatory sentence of 20/30

years.

The second problem created by the Pennsylvania statutory provisions regarding felony

homicide is that it does not allow judges to look at the totality of the circumstances. Instead,

there is a mandatory sentence of 20 years for those under the age of 15 at the time the crime was

committed, and 30 years for those who were over the age of 15 when the crime was committed.

This mandatory statutory penalization is disproportionate to the infraction it punishes; a juvenile

can be sentenced for an accomplice to an attempt to commit a felony, regardless of their intent to

commit a homicide.

Currently, over 450 juveniles are serving life sentences without parole in Pennsylvania.

This number is higher here than in any other state. Juvenile Life without Parole, The Juvenile

Law Center. This is due to the over-inclusive nature of a set of felony homicide laws and

definitions that punish juveniles disproportionately to their crimes. The combination of inclusive

statutory definitions and mandatory sentencing creates situations where juveniles with only a

passing link to a crime are being punished with the same severity as the principal aggressor.

Pennsylvania must decide whether to, in light of recent developments in neuroscience as

discussed in Miller v. Alabama, sentence juveniles individually based on the totality of the

circumstances to include the juvenile’s developmental capability, or whether to continue

enforcing a set of felony homicide laws that punishes too many juveniles too harshly.

Meredith Simmons

Attorney at Law

2517 Hartville Rd

Rootstown, OH 44242


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Exhibit F

Attorney Angus Love



34


From: Angus Love ([email protected])

Sent: Thu 6/25/15 5:10 PM

To: Ruth Thomas ([email protected])

A Case For Sentencing Reform for Homicides

Pennsylvania’s sentencing law for homicides needs to be changed as it is too broad and fails to accurately distinguish degrees of culpability and age of the perpetrator. The statute for a life sentence without the possibility of parole includes 1st and 2nd degree murder convictions. It also includes a life sentence without parole options for felony murder, which is the occurrence of a homicide during the commission of a felony. All told, this has resulted in Pennsylvania having the largest life sentence population in the country of over 5,000 persons. Pennsylvania also has the largest number of juveniles serving life sentence in the country. There are over 500 such persons. Unlike most states, there is only one option for these crimes while many states have life with and life without parole options for all homicides.

These injustices are compounded by the fact that young people, some as young as 13, are subject to a certification process and tried as adults for homicide. During a legal exchange program to Scotland, I asked a prosecutor at what age juveniles could be tried as adults. He was mystified by my question and replied that adults are adults and juveniles are juveniles and no legal fictions are permitted. Accordingly they do not have a certification process and no juveniles are tried as adults. We need to adopt a similar process in the United States. As the US Supreme Court decided in the Roper and Miller decisions, young persons don’t have the benefit of the maturation process and don’t have the ability to fully understand the difference between right and wrong. Roper outlawed the death penalty for juveniles while Miller outlawed mandatory life sentences. Pennsylvania law needs to be updated to take this into account.

This sentencing discrepancy is worsened by the elimination of the pardons process. Previously individuals sentenced to second degree could expect to be pardoned after a 15 -20 years served. Governor Milton Shapp used to pardon 30 such persons each year. This mechanism allowed for corrective measures to be made in pursuit of justice. Now a juvenile who was an accomplice or an unwitting felon could get the same sentence as a man who killed multiple people in cold blood. Recently the process has been politicized and is essentially shut down. There hasn’t been a pardon of a life sentence in years. We need to take a closer look at this sentencing scheme and determine that there are varying of culpability in homicides and that the sentences schemes should reflect this.


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Exhibit G

Gerry Knight



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If this plea should fall on the ear of leaders who do not believe in scripture, then I appeal to you through your own law.

Dear Senator,

We have in place Megan’s Law and the Amber Alert, established to notify everyone of a missing youth because it is suspected, or there is evidence, that the youth may be in danger.

REALY?!

“WHO ARE YOU KIDDING”

DO YOU REALLY CARE ABOUT THE WELFARE OF CHILDREN WHEN YOU LOCK THEM UP WITH HARDENED CRIMINALS INCLUDING PEDIFILES? These youth have already been hurt by the people that exposed them to the crime, their pain is compounded by laws that ignore the fact that they are abused youth, then they are scared forever during incarceration, and suffer the ill effects for life.

What could be more hypocritical!.

The Law must not continue to sacrifice minors to the whims of brutal conviction; it is in itself a violation of Megan’s Law. A law that is in place to protect (ALL) youth and according to the history of Megan’s law, Crimes against youth, hurts everyone. Gerry Knight

09/29/2015


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Exhibit H

Attorney William Wekselman



38

From: William Wekselman ([email protected])

Sent: Fri 7/24/15 5:32 PM

To: [email protected]

The Supreme Court has recognized that it is not appropriate to treat juveniles the same as adults

in criminal sentencing. This is shown by its decisions striking down the death penalty and

mandatory life without parole for juveniles. It is similarly excessive for a juvenile who is

involved in a conspiracy that results in a homicide but is not the actual killer to be subject to life

in prison for felony homicide. This should be addressed by our legislative bodies. If not, it

should be disallowed by the courts. That would be a logical extension of previous decisions.

Review of Juvenile Life Without Parole

Documents

Transcript of Review of Juvenile Life Without Parole