http://www.ajc.com/news/nation-world/clemency-ruling-delayed-for-130067.html

National / World News 4:21 p.m. Thursday, September 3, 2009

By MICHAEL RUBINKAM

The Associated Press

HARRISBURG, Pa. — Two Pennsylvania inmates who have won plaudits for their decades-long efforts to reduce prison violence and counsel troubled youths will have to wait a little longer to hear whether their life sentences will be commuted.

The inmates, convicted murderers Tyrone Werts and William Fultz, were the first lifers to go before the state Board of Pardons since a federal judge decided that thousands of Pennsylvania inmates sentenced to life should have an easier path toward clemency.

U.S. District Judge A. Richard Caputo ruled June 11 in a lawsuit seeking to overturn a 1997 state constitutional amendment that toughened commutation standards for lifers. The pardons board has appealed the ruling, leading to Thursday’s vote to delay a clemency decision for Werts and Fultz until the appeal is decided.

The inmates’ supporters, who had anticipated that the board would vote to recommend commutation to the governor, said they were stunned and disappointed.

“This is heartbreaking. This is rough. I can’t believe it,” said the Rev. Paul Werts, who presented his brother’s case. “I expected a yes.”

Despite their good deeds in prison, the pair faced incredibly steep odds. Only three life sentences have been commuted since 1997, when Pennsylvania voters — outraged over a killing at the hands of a commuted inmate — amended the state constitution. Clemency for lifers hasn’t been common in Pennsylvania since the 1970s, when then-Gov. Milton Shapp freed 251 inmates.

The1997 amendment requires that inmates sentenced to life must receive a unanimous vote of the five-member pardons board before the governor may consider their commutation request — giving a single board member the power to block any inmate’s bid. Before then, lifers needed only a majority vote to get their case before the governor.

Opponents of the referendum argue it deprives lifers of any meaningful chance to win clemency. Pennsylvania leads the nation in the number of inmates serving life sentences who were juveniles when they committed their crimes. It’s also one of only six states in which a life sentence automatically means life without parole — so commutation is the only way lifers who have already spent decades behind bars can get out of prison.

“You can’t have a right without a remedy,” said Philadelphia attorney Stephen Whinston, who represents the Pennsylvania Prison Society, a prisoner advocacy group, in its long-running legal bid to get the amendment declared unconstitutional.

In his ruling, Caputo said the pardons board may not apply the tougher 1997 standard to inmates who committed their crimes before 1997 because the U.S. Constitution forbids ex post facto punishment. The decision — the latest ruling in the prison society’s 12-year-old lawsuit — could affect more than 3,000 of the 4,868 lifers in the state’s prisons.

The pardons board has asked the 3rd U.S. Circuit Court of Appeals to overturn the lower court ruling. The board also asked to Caputo to stay his decision while the circuit court appeal is heard — meaning it could continue to operate under its preferred unanimity standard — but Caputo did not act on the request in time for the hearing.

Lt. Gov. Joe Scarnati, the pardon board’s chairman, said Thursday that the board had little choice but to delay decisions on Werts and Fultz because of the uncertainty over which legal standard it should use.

“We’re not clear if we need three votes or a unanimous vote in order to pardon these two lifers. And to take a vote that may conflict with a court ruling weeks down the road, I think, would be inappropriate,” he said.

The 1997 amendment was part of an anti-crime package advocated by then-Gov. Tom Ridge in the wake of a decision by his predecessor, Robert Casey, to grant clemency to convicted killer Reginald McFadden. After he was released, McFadden killed two people in New York and raped a third.

Supporters of the amendment say the murderers who make up Pennsylvania’s lifer population should face a high hurdle to freedom.

“We owe it to the victims and to society to ensure that while we do offer an avenue to clemency, it has to be a very high threshold,” said Michael Piecuch, a former prosecutor and executive director of the Pennsylvania District Attorneys Association. Clemency, he noted, is “not a right, it’s not an entitlement.”

Indeed, the family of Werts’ victim, William Bridgeman, opposes commutation of his sentence, according to state Victim Advocate Carol Lavery.

Werts, 57, of Philadelphia, was convicted of second-degree murder in 1975 for his role in Bridgeman’s slaying during a robbery at a speakeasy. Fultz, also 57 and from Philadelphia, was convicted of first-degree murder in 1975 in the fatal shooting of a teenager. Neither inmate was the triggerman, and both rejected plea deals that would have gotten them out of prison decades ago.

Werts and Fultz are considered model inmates at Graterford prison outside Philadelphia, where they have counseled at-risk teenagers and led efforts to reduce recidivism rates. Werts once prevented the rape of a prison teacher, while Fultz risked his life to deliver medicine to a prison staffer during a 1981 hostage crisis at Graterford.

“Allowing Mr. Werts to return to society is the right thing to do,” Upper Moreland TownshipPolice Chief Thomas Nestell III, who spent 23 years with the Philadelphia police department and has collaborated with Werts, told the board.

Fultz’s elderly mother, Barbara Fultz Green, sobbed as she begged the board to show mercy.

“I know my son, I love my son, and I’m praying every day I’ll live long enough to see him a free man again,” she said.

Calling Werts and Fultz “two remarkable men,” board member Russell A. Walsh, a psychologist, nevertheless recommended that the board postpone its decision.

The vote was unanimous.

___

September 03, 2009 04:21 PM EDT