Pennsylvania Democratic Attorney General Shuts Down Bids for Freedom

Pennsylvania’s Democratic Attorney General Josh Shapiro may be eyeing a run at the governor’s office in 2022, yet his law-and-order voting record on the Pennsylvania Board of Pardons suggests that he is playing to Democratic primary voters of a bygone tough-on-crime era.

Last November, Philadelphians elected Larry Krasner, an outspoken civil rights lawyer who pledged to fight mass incarceration, as district attorney. By contrast, Shapiro is using the power of his office to ensure that some of the lifers most deserving of release — including at least one who has demonstrated that he has been deeply rehabilitated—die in prison.

On December 14, Shapiro denied William “Smitty” Smith, an elderly prisoner from Philadelphia who was convicted and sentenced to life imprisonment for his role in a 1968 murder, one of his last shots at freedom. In Pennsylvania, lifers are not eligible for parole. As of 2016, Pennsylvania recorded the highest number of prisoners serving life without parole sentences — 5,398 — of any state excluding Florida, according to The Sentencing Project. That’s roughly the same size as the total Pennsylvania prison population in 1968, when the crime was committed. Smith was an accomplice to the crime, has expressed remorse, and the victim’s son has told reporters he is okay with the state offering Smith a second chance. Shapiro dissented from his three colleagues on the Board of Pardons by casting the sole “no” vote on Smith’s application to have that sentence commuted.

Joe Grace, Shapiro’s communications director, told The Appeal that Shapiro would not explain specific votes but that he “examines each commutation application based on the facts and circumstances of each case and the applicant’s desire to atone for his or her crimes … while always standing up for crime victims and every Pennsylvanian’s right to public safety.” When challenged that his vague statement would be an abdication of Shapiro’s responsibility to clearly explain his decisions on the Board of Pardons to the public, he warned, “[b]e careful what you write.” Grace later apologized and said he had not meant the comment as a threat.

Today, Smith is a 76-year-old hobbled by a stroke. In most every sense, he is a different man than the 26-year-old who rushed into a Southwest Philadelphia check-cashing store in 1968 alongside his accomplice William Barksdale, who shot and killed the owner, Charles Ticktin. Smith is a model of rehabilitation who has thrived in prison; his many accomplishments include playing guitar for Power of Attorney, a funky and soulful prison rock band that released an album on Polydor.

Ending mass incarceration will require much more than embracing the non-threatening aspects of criminal justice reform, like reducing sentences for non-violent offenders.

It must include a new approach to violent offenders, who make up roughly half of the state prison population nationwide. As a candidate for Pennsylvania attorney general, Shapiro declared that “the time is now to advance real criminal justice reform.” But a vision of reform that includes condemning Smith to die in prison rings hollow to many observers, given that the tools are available to shorten his imprisonment.

For years, the commutation of life sentences was a commonly used tool to reduce a life sentence in Pennsylvania. Milton Shapp, who was the Democratic governor from 1971–79, commuted 251 sentences. As the war on crime ratcheted up, however, the number of commutations plummeted. Republican Dick Thornburgh, in office from 1979–87 and later picked as President Reagan’s attorney general, commuted just seven. His Democratic successor, Bob Casey, commuted 27. And commutations all but disappeared after 1994, when Governor Casey commuted the life sentence of Reginald McFadden, who went on to kill two and brutally rape another shortly thereafter.

“You met him, and you look into his eyes, you knew that he was deranged,” Tyrone Werts, one of just five lifers to have their sentence commuted under Governor Ed Rendell, said of McFadden when I was reporting my 2014 profile of Smith. “The system saw fit to let him go. But if they would have came around to different prisons [and] said, ‘What do you think about McFadden? You think that he’s a good candidate for commutation?’ ‘Hell no, [don’t] let that crazy motherfucker out.’”

Why, during a law and order era, was such a seemingly horrible candidate for a commutation one of the few to be released? The one person who voted “no,” then Pennsylvania Attorney General Ernie Preate, told me that McFadden was released in part because of his cooperation with correctional authorities during a 1989 uprising at the State Correctional Institute at Camp Hill. Back then, approving a recommendation of commutation to the governor required just a majority vote. That would soon change.

McFadden’s atrocities humiliated then Lt. Governor Mark Singel, who ran in 1994 to succeed Casey as governor and voted “yes” on his commutation application. Republican Tom Ridge beat Singel, running on a tough-on-crime campaign pitched to the maximally punitive political environment of the mid-1990s. George W. Bush later appointed Ridge to be his Department of Homeland Security secretary, calling him “a man of compassion who has seen what evil can do.”

After taking the governor’s office, Ridge launched a special session on crime, and legislators sent voters a successful referendum on commutations: from there on out, the Board of Pardons seat once claimed by a lawyer would go to a victim’s representative instead; more importantly, a commutation recommendation to the governor for those sentenced to life in prison would require a unanimous, and not majority, vote.

In 1992, Smith received just that: a unanimous recommendation that his sentence be commuted. But Governor Casey never signed off. Smith believes that his application was sitting on the governor’s desk as McFadden’s murders dominated the headlines. He continued to apply but was repeatedly rejected, including when Republican Lt. Governor Jim Cawley cast the sole “no” vote to deny his 2008 application. Lt. Governor Singel’s experience with McFadden had become a defining one for Pennsylvania politics, one that shut the prison gates for most lifers.

More recently, it seemed like Smith’s best shot was for Republican Governor Tom Corbett to be voted out of office, and that Cawley would likewise be replaced by a Democrat. That happened after Democrat Tom Wolf knocked Corbett out of office in 2014, and Mike Stack took the lieutenant governor’s seat on the board.

But in December, Shapiro cast a “no” vote.

“We all assumed it was just going to be so easy for Smitty this time with this current administration,” Kathleen Brown, a retired professor of nursing at the University of Pennsylvania and a leading advocate for sentence commutations, told In Justice Today. “So we were very surprised when he said ‘no.’”

In 2016, Brown visited Smith while he was recovering from his stroke at the Laurel Highlands state prison, a medical facility. Surrounded by elderly inmates who were sick and dying, Smith was losing hope. But convinced that he had a good shot at a commutation with Democratic Governor Wolf in office, he fought his way back to wellness.

“I’m just scared that this disappointment is so huge that it will turn his rehabilitation around,” Brown said. “He really worked hard. Now this.”

Indeed, Smith’s son, William Harris, says that his health declined after the hearing and that he couldn’t locate his father within the system for weeks.

Harris, who testified alongside his uncle at the hearing, was stunned by the Shapiro’s no vote. “You just question why the other three said ‘yes,’” he said, “…and one person said ‘no.’ It leaves you empty trying to figure that part out.”

Now, Harris, like Brown, worries that Smith will lose the hope that has kept him alive, and die in prison. He was just a little over a year old when his father was arrested.

But it’s not just Smith who received a “no” vote from Shapiro.

The same night he condemned Smith to a possible death behind bars, he also cast the sole “no” vote to deny commutation to a man named Edward Printup. WGAL, a Pennsylvania NBC affiliate, recently aired a three-part series on his case. Printup, now 57, says that he killed his abusive stepfather in 1980 at age 19 to ward off “another one of his famous beatings.”

“He would just beat my brother literally until he bled down the back of his legs,” his sister, Michele Printup, told WGAL.

“When he shot our stepfather, the abuse stopped.”

In a statement, Lt. Governor Stack called the “no” votes “a stunning disappointment that left me, and many other advocates for criminal justice reform, wondering whether we had lost the momentum toward change and were heading backward.”

“It’s a bad, bad story about a kid who’s undereducated, who’s physically abused,” said Brown. “I believe him when he says the intention was not to kill him. The intention was to scare him off because he knows what’s coming. He shoots him. He dies … no intent, just scared.”

Shapiro’s votes on Printup and Smith suggest that the path out of prison for Pennsylvania lifers remains narrow.

There is, however, another sign of hope. Philadelphia District Attorney Larry Krasner recently hired Patricia Cummings, a Texas attorney with a track record of freeing the wrongfully convicted, to overhaul his office’s conviction integrity unit. Recently, Cummings told The Philadelphia Inquirer that “conviction integrity also encompasses fair sentencing” — what observers say would likely be an unprecedented move to ease the harshness of the American criminal justice system. But that might be too late for Smith. His best shot is an upcoming vote at the Board of Pardons to reconsider their decision.

“I hear he has some political aspirations,” Brown said of Shapiro. “I guess I don’t understand enough politics to know how that helps.”

Shapiro seems to believe that combining attacks on Trump — as attorney general, he has signed on to lawsuits targeting the Trump administration — with a conventional tough-on-crime record might shore up the party’s liberal base while appealing to more conservative voters outside the big cities. Lt. Governor Singel’s vote on McFadden, after all, still casts a long, Willie Horton-like shadow over criminal justice politics in Pennsylvania. The possibility that a “yes” vote gone wrong might destroy a political career continues to outweigh the suffering of prisoners who, by every conventional measure, deserve their freedom.