Rethinking prosecutors’ ‘second bite at the apple’ during parole proceedings
This year, Debbie Sims Africa became the first member of the ‘MOVE Nine’ released on parole. Last week, her husband Michael Africa Sr. became the second. [Samantha Melamed / Philadelphia Inquirer] The couple, along with the five other surviving members of the group, was serving 30- to 100-year sentences for the death of a police officer who was fatally shot during a 1978 standoff in Powelton Village in Philadelphia. All nine maintained their innocence. (The 1978 incident was followed seven years later by the police department’s bombing of the MOVE compound that killed five children and six adults.) The couple was reunited with their son, born in Sims Africa’s jail cell, after 40 years.
In Sims Africa’s case, Martin Horn, a former corrections commissioner provided written testimony to the parole board about her “record of growing maturity, improved judgment and the assumption of personal responsibility,” and said he did “not believe that Debbie Sims is today a threat to the community.” [Ed Pilkington / The Guardian] In Michael Africa Sr.’s case, a retired guard told his attorney that “he had a spare room, and he would open up his home to Mike if needed, because of how much he trusted and respected him.” Africa had been denied nine times before his release. [Samantha Melamed / Philadelphia Inquirer]
The dispositive factor in the parole board’s change of heart may have been the support from District Attorney Larry Krasner’s office. In a letter supporting Sims Africa’s release, the first assistant district attorney wrote: “While Ms. Sims Africa’s crimes were very serious, her continued incarceration does not make our city safer. I am confident that she will not pose a threat to the Philadelphia community to which she wishes to return.” The parole board cited that letter in its decision. Two MOVE members who were also up for release at the same time were denied, and their denial letters cited the “opposition of the prosecuting attorney.” (The DA’s office said it had sent letters in support of their release as well. The parole board refused to provide clarification to media outlets, leaving it unclear whether it considered the DA’s recommendation or overlooked it and relied on old letters from the DA’s office opposing release.) [Sam Newhouse / Metro] Michael Africa Sr.’s lawyers said his parole was won thanks to a host of factors, including parole recommendations from the Philadelphia district attorney’s office. [Sam Newhouse / Metro]
Several Black Panthers and members of Black political movements remain in prison, serving decades-long sentences that began in the 1970s and 1980s. A few people have been released in the last year, despite virulent opposition from police unions and even elected officials. In Philadelphia, where Krasner has set out to make his office the “best progressive D.A.’s office in the country,” as Jennifer Gonnerman put it in her New Yorker profile, the office’s support for the couple’s release is consistent with that vision. But it is the rare exception among prosecutors who, even in an era when lengthy sentences are attracting new scrutiny, often oppose release on parole almost reflexively.
“What we see in New York State and across the country is prosecutors intervening in the parole release process in punitive ways,” Laura Whitehorn, a community organizer with the Release Aging People in Prison Campaign, told the Daily Appeal. “Having pursued the heaviest possible level of conviction and punishment during the trial and sentencing—the front-end of the legal process—prosecutors often get a second bite at the apple by recommending that incarcerated people be denied parole.
“This is even true in cases where there were plea deals,” Whitehorn continued. “The prosecutor negotiates a conviction and sentence that doesn’t carry the maximize prison time, but then years—often decades—later, they push to maximize prison time through parole denials. If the new wave of so-called progressive prosecutors really want to help end mass incarceration, they should seriously change the ways in which they intervene in the parole release process.
“Shockingly, this also happens in what’s called ‘compassionate release,’” said Whitehorn. “Across the country, elderly and ill people are denied release—even when they are within months of death—because the final decision rests with prosecutors and police, who continue to seek more punishment.”
In an article forthcoming in the Ohio State Journal of Criminal Law, professor Michael Cassidy calls for prosecutors to play little to no role in parole proceedings. He asks: “What is the ‘truth’ that a parole board is attempting to ascertain at a release hearing, and does the prosecutor play any legitimate role in that inquiry?” Cassidy believes that a prosecutor’s input at a parole hearing must typically be of “limited value,” given that much of what they can share will already be contained in the parole file. This question is of increased pertinence now for two reasons: First, the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama that have given people once sentenced to life without parole as young people the possibility of release. Second, the reckoning with the human and financial costs of mass incarceration that has led some states to reintroduce parole and others to consider it. [Michael Cassidy / Ohio State Journal of Criminal Law]
In Cassidy’s view, once outside the trial process, prosecutors must “eschew adversarialism and behave as ‘ministers of justice.’” Instead, he notes, there are numerous examples of prosecutors putting their “thumbs on the scale” of parole decisions, sometimes “offering a prediction of future behavior that as a professional matter [the prosecutor] is simply unqualified to make.” He advocates a two-part solution: action by state legislatures to limit the role of prosecutors in parole hearings and restraint on the part of prosecutors. Cassidy writes: “Each of the 38 states now providing some form of discretionary parole for adult prisoners allows prosecutors to give input in some fashion to the parole board. Unless prosecutors in those jurisdictions possess highly relevant, post-conviction information unavailable from documentary materials or the testimony of victims, I urge prosecutors to stay home and keep quiet.” [Michael Cassidy / Ohio State Journal of Criminal Law]