by Robert Saleem Holbrook
On October 30, 2013 in the case of the Commonwealth of Pennsylvania v. lan Cunningham, in one stroke the Pennsylvania Supreme Court's right wing justices created a class of political prisoners within the state's prison population by denying retroactive parole relief to prisoners who were juveniles when sentenced to mandatory sentences of life imprisonment without the possibility of parole (LWOP) – sentences that the United States Supreme Court abolished as unconstitutional in 2012. The ominous signs were on the horizon when the six sitting justices deadlocked 3 – 3 along party/ideological lines and Pennsylvania Governor Tom Corbett, a conservative, appointed a fellow conservative, Judge Stevens, to the Court to cast the deciding vote. Justice Stevens, as expected, delivered for his gang and in doing so Pennsylvania’s Supreme Court disregarded the precedent of three prior US Supreme Court decisions in Roper, Graham and Miller that established juveniles are different from adults when it comes to imposing society’s harshest punishments and should be afforded greater protections from the one size fits all mandatory sentences that have proliferated in the hysterical “Tough on Crime” era of mass imprisonment.
The argument the Pennsylvania Supreme Court used to justify its decision, that the United States Supreme Court in Miller didn't specifically say its decision was retroactive is absurd. The Court essentially determined that the 450 prisoners sentenced to LWOP as juveniles prior to Miller should die in prison, based not on sound judicial reasoning but rather through the use of judicial semantics and a procedural rule to justify a political decision. Let us make no mistake about it, the Pennsylvania's Supreme Court's decision in Cunningham was not about justice, it was about holding the line and maintaining the politics of vengeance and mass imprisonment that have come to define the state of the justice system in the United States. The decision of the Pennsylvania Supreme Court, written by Justice Saylor, is littered with “states’ rights” language that is reminiscent of the language Southern segregationists used to obstruct the United States Supreme Court decision in Brown v. Board of Education which eventually led to the desegregation of the Jim Crow South. The “states’ rights” doctrine has historically been employed to deprive minority groups of their rights and protections under the United States Constitution. When Justice Saylor writes that the litigants failed to persuade the Court that the new rule abolishing mandatory LWOP sentences imposed on juvenile offenders should be applied retroactively because “it is not resonate with Pennsylvania norms” he sounds strikingly similar to the Southern segregationists who defended Jim Crow segregation from federal intervention to abolish it because it represented Southern tradition and norms.
The ideological climate in which Pennsylvania’s conservative justices operate in and view the US Supreme Court’s intervention into Pennsylvania’s draconian sentencing schemes imposed on juvenile offenders is summed up by the late conservative segregationist Governor of Alabama, George Wallace, who said, “The same Supreme Court that ordered integration and encouraged civil rights is now bending over backward to help criminals." This is the mentality of the opposition to parole for juveniles sentenced to mandatory LWOP sentences within this state.
Some may find that analogy a bit too extreme but before one dismisses the statement as hyperbole, they should consider the reality that in Pennsylvania over 70% of the juveniles sentenced to mandatory LWOP sentences are youth of color. In addition, Black youth in Pennsylvania are over 20 times more likely to be sentenced to LWOP than White youth (Human Rights Watch Report, “The Rest of Their Lives,” 2008). In Pennsylvania, Black youth are 19 times more likely and Latino youth are 8 times more likely to be sentenced to juvenile placement than White youth. Also, as if to prepare the present generation of youth of color for a future that awaits them in the prison industrial complex, the city of Philadelphia is forced to close 30 schools, and eliminate 7,000 jobs (including 2500 teachers). The school district’s annual budget has been stripped of $300 million while, at the same time, the state legislature has committed over $400 million to the construction of two new prisons a couple of miles from the city of Philadelphia. It should be noted that Philadelphia’s population is over 60% Black/Latino while the state legislature is over 90% white and rural. Where does one think Philadelphia’s undereducated youth will end up? (For more on this read "Fund the Schoolhouse, Not the Jailhouse” by Sergio Hyland, http://www.phillystudentunion.org/index.php/psu-blog/item/511-your-actio...).
Outside of the criminal justice spectrum the picture is equally unsettling. Pennsylvania is one of the only states in the country whose population has yet to elect an African-American to a statewide elected position, despite numerous qualified candidates running for office. Alabama, Mississippi, Virginia and Georgia have all done so. This is not to imply that all of the Justices of the Pennsylvania Supreme Court are racists, however they operate within an institution that unquestionably imprisons Blacks at a disproportionate rate. We must also be mindful that it was the conservative movement that deliberately attached a Black/Brown face to crime in the United States to play off of deeply ingrained racial fears within white America. Whether overtly or unconsciously, this mentality motivates the Justices’ decisions, for as the revolutionary George Jackson observed, “Racism is a question of ingrained traditional attitudes conditioned through institutions - for some it is as natural a reflex as breathing.” Justice Saylor and his colleagues were only following a script they've been conditioned to play through years of operating within Pennsylvania’s notoriously harsh and unjust criminal justice system.
While the criminal justice system in Pennsylvania and for that matter the United States, overwhelmingly deprives people of color justice and imprisons them at a disproportionate rate, the Pennsylvania Supreme Court's decision is also about maintaining the politics and institution of mass imprisonment through the protection of mandatory sentences which are responsible for the assembly line sentences handed out in Pennsylvania, and by extension in courtrooms throughout the United States. The conservative right and its “tough on crime" lobby of hate and vengeance (which has members in both political parties) recognizes that the United States Supreme Court's abolishment of mandatory LWOP sentences imposed on juvenile offenders was the first victory in the incremental battle to dismantle the system of mass imprisonment and the Prison Industrial Complex that has been spawned in its wake. The Supreme Court's abolishment of mandatory LWOP sentences on juveniles would be used to eliminate all mandatory sentences. To prevent this, the opposition is doing everything in their power to hold the line.
Pennsylvania's judicial, political and law enforcement establishment is not the only state that is attempting to hold the line. Florida, Michigan, Minnesota and Louisiana’s Supreme Courts have ruled that Miller should not be applied retroactively to the prisoners who were sentenced to LWOP in their states as juveniles. So now the decision of the Pennsylvania Supreme Court and the other states will be appealed to the United States Supreme Court for a clarification whether its ruling in Miller was retroactive to prisoners sentenced to LWOP prior to Miller. It is not guaranteed the United States Supreme will rule it is, though it is likely it will as it would appear unjust to say juveniles sentenced prior to 2012 are not entitled to the protections granted juveniles following the Court's decision. What we must keep in mind is that even if the Supreme Court rules in our favor the conservative right and its allies will continue to do everything in its power to maintain the sentence in spirit by just imposing harsh determinate sentences on those prisoners slated for resentencing. For their opposition is not based on justice, it is based on preserving the dysfunctional, discriminatory and unjust status quo surrounding mass imprisonment. Like the segregationists of old who they draw ideological inspiration from, they will remain entrenched in the doorway to justice.
Make no mistake about it: this is a contest between injustice and justice, between hope and hate, between a state that has lost any judicial legitimacy and individuals who have become victims of politicians and judges possessing outdated social and political views. When prisoners become victims of politics, when judges and politicians allow the politics of injustice and vengeance to supersede justice, then the prisoners impacted by these decisions become either "prisoners of politics" or "political prisoners." The question to the 500 juvenile lifers in the state of Pennsylvania (and elsewhere) is who will you decide to be, a "prisoner of politics" or a "political prisoner"? A prisoner of politics is someone who continues to allow him/herself to be victimized by a criminal justice system that is illegitimate and morally bankrupt. A "political prisoner," on the other hand, is one who challenges and denies the authority of an illegitimate judicial system and asserts his/her human right to be free of an illegal sentence and detention. The political prisoner is motivated by the words of Malcolm X: "Whenever you’re going after something that belongs to you, anyone who's depriving you of the right to have it is a criminal. Understand that. Whenever you are going after something that is yours, you are within your legal rights to lay claim to it. And anyone who puts forth any effort to deprive you of that which is yours is breaking the law, is a criminal." I’ve already made my choice. The decision is yours and no authority can deny you of that choice.
Robert Saleem Holbrook #BL-5140
1 Kelley Dr.
Coal Township, PA 17866