The [No] Mercy Rule: Clemency and the Pennsylvania state constitution
Critics say a 1997 constitutional amendment has set the bar too high for lifers seeking a second chance
On June 2, 2004, a 64-year-old woman with inoperable lung cancer was transported 90 miles from a prison cell to Camp Hill, a suburb of Harrisburg. There, in a hearing before four people who held her future in their hands, she pleaded for mercy – to be allowed to spend her final days outside of prison.
For Phyllis Krout, who was so sick that doctors had to accompany her on the trek from the State Correctional Institution at Muncy, mercy was something that had eluded her in years of trying.
And once again she was denied mercy, even though three of the four people who heard her plea were in favoring of granting it.
Krout was sentenced to life in 1983 for first-degree murder in the Feb. 26, 1981, slaying of her husband, George Krout, who she said had beaten her and raped their daughter. Although Phyllis Krout wasn’t the one who beat her husband to death outside their home in York, she was convicted on the basis of her lies to law enforcement about the killing and on testimony that she had offered to pay $1,500 for the murder.
Krout died at Muncy on April 20, 2005. She had lived behind bars for 24 years.
The case of this terminally ill prisoner illustrates how futile it is for convicted murderers under life sentence to try to win clemency in Pennsylvania.
A constitutional amendment adopted by the voters in 1997 requires a unanimous vote by the state board of pardons to send a clemency recommendation to the governor. But in the 17 years since the constitution was changed, the board has sent only six recommendations to the governor – just a fraction compared to before the amendment.
The last time a lifer’s sentence was commuted was 2009.
In theory there is a way for convicts serving life sentences to regain freedom if their circumstances deserve clemency. Article IV, Section 9 of the state constitution gives the governor the power to grant pardons and commute sentences. Under the section, the governor can act only if the convicts are recommended by the board of pardons.
Therein lies the rub. Until the constitution was amended in 1997, only a majority vote of the board was needed to send a recommendation to the governor’s desk. Now that a unanimous vote is required, some convicts are rebuffed even though they win a majority.
That happened twice to Krout. The board normally consists of five members, and in 2002 the vote was three in favor of recommending clemency and two against. In 2004, when there was a vacancy on the board, she failed even though the vote was 3-1 in her favor.
Governors have been commuting lifers’ sentences for decades. Republican Dick Thornburgh, governor from 1979 to 1987, had 75 cases come before him, and he granted seven commutations. Democrat Bob Casey, who served from 1987 to 1995, received 118 cases and granted 27.
It was under Republican Tom Ridge – whose tough-on-crime campaign for governor in 1994 initiated the pardons board change – that the numbers took a nose dive. Starting in the Ridge administration, there were fewer hearings, fewer recommendations and fewer commutations.
Ridge was governor from 1995 to 2001, leaving office in his second term to become President George W. Bush’s homeland security adviser in the wake of the Sept. 11 attacks. While Ridge was in office, the board heard just 15 cases and sent four to Ridge. He turned down all four.
Ridge’s lieutenant governor, Mark Schweiker, filled out the remaining two years of Ridge’s term. While he was in office, the board heard only two cases, recommending one. Schweiker granted the commutation.
Democrat Ed Rendell was governor from 2003 until 2011. The pardons board heard 11 cases and recommended five. Rendell granted all five.
Republican Tom Corbett took office in 2011 and will leave in January 2015, having lost his reelection bid. While he has been in office, the pardons board has heard just one case involving a lifer. That inmate failed to get a unanimous recommendation.
“The problem with that is there’s a lot of good people who probably deserve it, served enough time, become a good model prisoner after 25, 35, 45 years,” said former state Attorney General Ernie Preate, who once served on the pardons board. “Maybe they deserve a second chance, but they don’t get it now.”
How the board works
The commutation process is initiated by inmates themselves, who apply to the board of pardons. The board is chaired by the lieutenant governor. Another member is the attorney general. The other members are a psychiatrist, a corrections expert and a victim’s representative, all appointed by the governor.
The board conducts an initial review of the inmate’s application. If three of the board members vote in favor, the lifer is granted a public hearing and a formal case is presented.
After the public hearing, the board must make a unanimous recommendation if the case is to proceed to the governor.
Phyllis Krout, after being rejected at her public hearing in 2002, rode back to Camp Hill two years later as a much sicker woman. She knew she was dying and she wanted to spend her remaining time in the care of her sister, Dorothy Raver.
J. Harvey Bell, who was a state Department of Corrections lawyer specializing in pardons cases, was in charge of presenting Krout’s case before the board. “Whenever you have someone who is dying, why not let them out?” Bell said in a recent interview. “Their life in the community is pretty well limited.”
Attorney General Jerry Pappert cast the vote against Krout.
Preate, who served on the board of pardons from 1989 to 1995, said the 1997 constitutional amendment, which was approved twice by the General Assembly and then by the voters in a referendum, may have gone too far.
A Pennsylvania lifer who got a second chance was the reason everything changed for lifers like Krout.
McFadden case spurs change
Reginald McFadden was convicted of murder in Philadelphia in 1969 when he was just 16 years old.
Twenty-three years later, the pardons board voted 4-1 to recommend that Gov. Bob Casey commute his life sentence. Casey agreed, and on July 7, 1994, McFadden walked out of the State Correctional Institution at Rockview as a free man.
McFadden found work in New York at a bookstore. Ninety-two days later, he was back behind bars. In his brief stint with freedom, he was convicted of killing an elderly woman and raping another woman; he was indicted in the murder of a man; and he was suspected in a third slaying.
The reaction in Pennsylvania was to change the constitution to make it harder for lifers to get out of prison.
The change breezed through the Pennsylvania Senate and House twice with little opposition, putting it on the ballot for the citizens to decide. They voted for it, 1,182,067 to 811,701.
Gregg Warner, counsel to the Pennsylvania Senate Judiciary Committee, said: “Some people argued that the changes would make it nearly impossible for a deserving life-sentenced inmate to get a second chance – and they have been proven right. But the vast majority of legislators wanted to make sure that there was never another Reginald McFadden.”
Reaction to change
Preate initially was in favor of the amendment. Then, he said, he realized what the effect would be.
A self-proclaimed prosecutor’s prosecutor, Preate had lectured across the country on how to win murder cases and get the death penalty. Yet in his time on the board, he voted to commute 36 life sentences. He explained that by saying he was able to take off his “prosecutor’s hat” and put on his “compassionate hat.”
Preate supported the amendment because he thought the board would always do as he did and judge each case based on the facts. “I was wrong,” he said. The board members, he said, were “so McFaddenized” that they hardly ever voted for a commutation.
“We’ve gone from one extreme to the other extreme,” he said.
Something Preate wasn’t wrong on was McFadden himself. In the 1992 board meeting that led to the prisoner’s release, Preate cast the sole dissenting vote.
Preate has moved on from the board. He went to prison himself for 11 months on charges of mail fraud, after pleading guilty to soliciting campaign contributions from illegal video-poker operators.
Preate, now practicing law in Scranton, recalled the criteria he used in judging lifers’ bids for freedom. The lifer usually had to be at least 50 years old and upon release would go to a good home with a supportive family and a good job. He said McFadden had none of those things.
The prisoner, 39 years old at the time of the hearing, said he planned to leave Pennsylvania for work. Preate also was disturbed that McFadden had no associations within any of the prison’s lifer organizations. He had hoped to find that McFadden was in a choir or was working as a postmaster in the prison, because he said those activities teach “get-along” skills.
“That’s what living in society is all about ... if you can exist in a lifer group with a bunch or other murderers, and get along, and obey courtesy, and respect rules.” Preate said. “But I didn’t see that in McFadden. He was a loner.”
He said he pleaded with Casey not to sign McFadden’s commutation, but the governor agreed with the other four board members, including his lieutenant governor, Mark Singel.
Political consequence of vote
Singel admitted in a recent interview that he made a terribly wrong decision in trusting that McFadden had been rehabilitated. But he said the board did the best it could with the information it had.
Part of the information provided to the board was a spotless prison record that credited McFadden with helping to calm the 1989 prison riots at Camp Hill. In a letter, McFadden said he carried two prison guards to safety.
“We knew there was risk, but that’s what leadership is about,” Singel said. “You make tough decisions, and sometimes you have to live with consequences.”
One major consequence was a blow to Singel’s political career. Singel was the Democratic candidate for governor in the 1994 election against Ridge. Crime became a big campaign issue when the news came out about McFadden’s alleged murders and Singel’s role in his release. As Preate recalled, Singel went from “10 points up in the polls to 10 points down.”
In the campaign, Singel called Ridge’s use of the McFadden case against him “disturbing” and compared it to a case that happened during the 1988 presidential campaign.
Willie Horton was a prisoner who was released on a weekend furlough by then-Massachusetts Gov. Michael Dukakis. While on the furlough, Horton committed assault, armed robbery and rape in Maryland. The campaign of Republican George H. W. Bush ran a television commercial detailing Horton’s actions and blaming Dukakis. Bush easily won the election.
Ridge beat Singel in the 1994 race by 5 percentage points. Immediately after taking office, Ridge called a special legislative session on crime that culminated in passage of the constitutional amendment that would be approved by the voters in 1997.
Singel, now a Harrisburg lobbyist, said his first reaction to the amendment was that it was a “disturbing, knee-jerk reaction.” He said the requirement of a unanimous vote on the board of pardons removes all hope for lifers. That, he said, invites real trouble.
“It’s called the Department of Corrections, not the Department of Revenge,” Singel said. “If we’re just all gun-slinging cowboys, who want to string everybody up, then that’s fine. Just throw away the key and we’ll build more prisons.”
Once Singel left the lieutenant governor’s office in 1995, Schweiker became chairman of the board of pardons.
In an interview, Schweiker said that in his seven years as the chairman, not once was he convinced an inmate was wrongly convicted or had a change of heart. He said he respected the jury verdicts that put lifers behind bars.
“If you’re going to challenge or overlook the wishes of the jury and the sentencing judge, you damn well better have powerful, incontrovertible insights and facts to do that,” Schweiker said.
When deciding how to vote, Schweiker would ask himself if he would be comfortable with that certain lifer living next to someone’s mother.
Schweiker said the reason he and Ridge pushed for the amendment to require a unanimous vote is that a jury had to vote unanimously to convict a lifer in the first place.
Schweiker said it is important when pondering the circumstances of lifers serving time in prison to also ponder the families and survivors of the victims. “They, too, serve a life sentence of grief and emotional distress,” he said.
“When one considers that emotional weight, the amendment has been for the best,” Schweiker said. “The perpetrator can’t get out and do it again.”
Critics condemn amendment
Leonard Sosnov, a law professor at Widener University’s campus in Wilmington, Delaware, last represented an inmate before the pardons board in 2005. He called the amendment “draconian and absurd.”
Sosnov said the system was absurd because it gives any individual member of the board more power than the governor. The governor can’t grant a commutation without the board’s recommendation. And a single member’s dissenting vote would keep a lifer’s name off the governor’s desk, rendering the governor’s opinion irrelevant.
Part of the problem is the political makeup of the board, Sosnov said. The attorney general and lieutenant governor are both elected officials, and in Pennsylvania, the holders of those seats have a history of running for higher office.
“If you have somebody who is concerned with their own political career rather than justice and mercy, that could potentially be a problem,” Sosnov said.
Preate refused to criticize Singel for his “vote of conscience,” but he said it has influenced the board ever since. “Nobody wants to have that against them in their political careers,” Preate said. “So that’s why you get everybody saying, ‘Ah, I’m not going to vote for the guy.’ ”
McFadden is serving another life sentence in New York. He is housed in the prison at Attica, infamous for a bloody inmate uprising in 1971. In a letter he wrote by hand for this article, McFadden said he had a massive heart attack in 2011 and doesn’t have much time to live.
Preate predicted that the amendment will never be changed because there is too much anti-prisoner sentiment in Pennsylvania.
Sosnov said that because of the amendment, “I know some people gave up. They said, ‘It’s hopeless.’ ”
Tracy Forray, secretary of the board of pardons, said it’s simple logic that it’s more difficult to get a unanimous vote rather than a majority, but she said it had not reduced the number of inmates who apply. She said, however, it was impossible to track the actual application numbers before and after the amendment, because the board does not keep that statistic.
Mike Fienman, a Philadelphia-based criminal defense lawyer, disagrees with Forray. He thinks the “no prospect of winning” notion has discouraged inmates from applying.
“People say, ‘What’s the point?’ ” Fienman said. “With respect to hiring a lawyer, spending X number of dollars on legal fees over X number of years to obtain a pardon, is it something that is going to be worthwhile?”
Fienman said he receives opportunities to represent inmates before the board but doesn’t accept because of the lengthy process and the low number of commutations the board hands out.
Preate remains hopeful that with more time passing since McFadden’s crimes, the board members will be ready to make “more appropriate” and “more well-informed” decisions.
The process elsewhere
Nine states have a pardons process similar to Pennsylvania’s.
Margaret Colgate Love, a Washington, D.C., lawyer who specializes in executive clemency and is a former U.S. pardons attorney for the Department of Justice, referred to Pennsylvania’s procedure as a “gatekeeper” system, because the governor can act only upon a favorable recommendation from a board.
Love said she admires Delaware’s gatekeeper system because, unlike the attorney general’s board seat in Pennsylvania, there is no provision for a prosecutor on the board.
Seven of the gatekeeper boards operate as Pennsylvania once did, providing for a majority vote. No other states require unanimity. Louisiana comes closest, requiring four out of five votes to send a recommendation to the governor.
The pardons process has been receiving a great deal of attention recently in one other gatekeeper state.
In Montana, Gov. Steve Bullock wrote a letter to the state’s board of pardons and parole asking members to approve a commutation for Barry Beach, a man who confessed to a 1979 murder but later said he was coerced. His plea was rejected by the board, so Bullock had no way to grant clemency.
Bullock has proposed a bill that would give the governor the power to grant clemency to prison inmates without a recommendation from the board.
Unlike the 1994 race between Singel and Ridge, crime was almost nonexistent as an issue in this fall’s race between Corbett and Democrat Tom Wolf, who beat the incumbent by 10 points.
Bell, who represented Krout and is now retired, recalled that he had prepared Krout and her family for the likelihood of rejection, because the unanimous vote posed “insurmountable obstacles.”
He said it was a positive that the vote was even close.
“It seems like it’s almost mythical at this point,” Bell said, “that there has to be such extraordinarily high justifiable circumstances that would merit a recommendation of mercy.”