Too Harsh For Too Long Is No Excuse

Philadelphia District Attorney Larry Krasner has been everything he said he would be when he ran for office, and he’s taken some heat along with the kudos. But a collateral consequence is unfolding as his Conviction Integrity Unit is doing its job. Judges find it hard to adjust to a prosecutor who concedes that there are innocent people in prison.

As much as his office has demonstrated its willingness to go back, review old convictions, determine whether they were obtained through some impropriety or whether a defendant might have been innocent, it wasn’t entirely his call.

It will be a decade in April since a federal judge, after hearing evidence in the case of Terrance Lewis, ruled that he appeared to be innocent of the 1996 murder of Hulon Howard in West Philadelphia — but that for procedural reasons, his conviction and life sentence could not be overturned.

The procedural reasons aren’t specified, but almost certainly refer to the AEDPA, signed by President Bill Clinton in 1996, that so drastically limited the time within which to bring what used to be known as a Writ of Habeas Corpus as to render it irrelevant. The rationale was that there must be some finality to the system or claims go on forever. Included in the claims lost forever was actual innocence, even when the proof of innocence was hidden by the prosecutor so that the wrongfully convicted had no chance to bring a timely petition.

Having the door to federal court slammed in his face, Lewis sought relief in state court. This time, luck was on his side when Krasner became prosecutor. But even then it didn’t go as smoothly as one would hope.

Kevin Harden, who represents Lewis, said the CIU’s hesitation was in part a reaction to a Pennsylvania Supreme Court decision last October rejecting the district attorney’s attempt to overturn a death sentence secured by a prior administration on the basis of “prosecutorial discretion.”

“That informs all the work everyone is doing with regard to post-conviction issues, because the courts have an independent duty to maintain the finality of judgments,” Harden said.

Prosecutorial discretion plays a huge role prior to conviction, but convictions come from courts, not prosecutors, and it’s no longer up to a district attorney to say “never mind.”

A year into Krasner’s tenure, his ambitious Conviction Integrity Unit — charged with both investigating problematic convictions and reversing unjust sentences — has repeatedly found its agenda stymied by a cautious judiciary.

CIU director Patricia Cummings on Monday said she believed the pushback in part reflected a lack of trust in Krasner’s administration.

“We’re getting scrutiny because of Larry Krasner being who he is, and because we have made it clear that this is a priority,” she said. “Some judges think we’ve gone rogue or we’re renegades, and that we’re going to come in and undo convictions when the law doesn’t support that.”

Ordinarily, judges find themselves in the position of “refereeing” between an overly zealous prosecutor and the defense, After all, who would be prosecutor if not to prosecute? But Krasner’s many initiatives have not only closed the gap between the two sides, but has put judges in the awkward position of assuming the prosecutor mantle when they believe Krasner is too defense oriented and unwilling to do his job.

Krasner spokesperson Ben Waxman said that under Cummings’ leadership, the CIU has brought five cases to court. In two, murder convictions were thrown out. But in the other three, judges blocked attempts to overturn convictions or vacate sentences — even ones prosecutors believed were clearly illegal.

The prevailing argument in favor of conviction finality is that it would “open the floodgates” to constant relitigation of old and decided cases. But five? In the scheme of Philadelphia convictions, five cases doesn’t make a dent. Krasner is hardly throwing open the cell doors and letting killers walk out. If anything, it’s shocking that it’s only five, as Philly has no history of being well-aquainted with fairness. Indeed, Mayor Frank Rizzo was beloved for his cops tossing black guys against walls to remind them who’s in charge.

So why are Philadelphia judges so hard on Krasner’s rather insignificant effort to correct illegal convictions?

Still, Marissa Boyers Bluestine, executive director of the Pennsylvania Innocence Project, chalked the conflict up to an “adjustment period.”

“You have some judges who have been on that court for 20 years and … now it appears to their ears that they are being asked to do things that are improper,” she said. “It’s a matter of assuring them that ‘just because we’re taking a position that is not as draconian as our predecessors’ doesn’t mean we’re not following the law.’”

Some judges are, to be kind, harsh. Let’s not forget that the past half century has been a competition over who can be tougher on crime, and nobody was complaining about hanging judges. But others mean well and try to do what’s right. This puts them in a very different, very uncomfortable, position.

For their entire career, off and on the bench, the prosecution argued for conviction, argued why a sentence far harsher than the defense sought was necessary to protect the public from some criminal. They understood it. They believed that “justice” came from the struggle between the two sides, the prosecution and defense.

Now, with Krasner as District Attorney, the system is askew. Maybe not quite turned upside down, but certainly not what it was before. Can they trust Krasner to be the prosecutor? Can they trust his discretion? Is he doing the prosecutor’s job or is he another defense lawyer in district attorney’s clothing?

From all appearances, Krasner’s CIU has not only done its job well and fairly when it concludes that a conviction should be reversed, but is overwhelmed by the calls for review.

Meanwhile, some lawyers who have decades-old cases in the CIU’s queue complain of the office’s opacity.

Susan Burt-Collins, who has urged the CIU to take up the case of Naeem Jones for more than a year, has grown frustrated.

“The innocence cases, they’re just sitting there,” she said.

While it’s somewhat understandable that judges are reluctant to let this new guy come in and undo what generations of prosecutors before him did, this sense that Krasner’s a rogue prosecutor doesn’t appear remotely supported by reality. This “adjustment period” means that innocent and illegally sentenced defendants are sitting in cells while judges get used to a prosecutor who won’t abuse the system to secure convictions.

Granted, it may feel very different from what they experienced up to now, but the problem isn’t that Krasner has gone rogue, but that his predecessors had for decades and nobody stopped them. Judges shouldn’t acquiesce to Krasner’s discretion because he’s too soft, but because it’s been too harsh for too long. Their “adjustment period” is an innocent person’s life in prison. Get over it. Do law, even if it feels weird doing it right.

Too Harsh For Too Long Is No Excuse curated from Simple Justice