A first-of-its-kind court case in Pennsylvania is asking a big question: How long do people need to stay in prison before they get a second chance?
More than 1,000 people are serving life without parole in Pennsylvania, even though they never intended to kill anyone. Seventy percent of those people are Black.
I met Tyreem Rivers on the phone in November, when his voice was a little muffled.
"Well, I have two or three masks on," Rivers said with a laugh. "I have at least two masks on, so I'm trying to stay safe."
Staying safe is hard when you're confined with hundreds of other men during a pandemic. Rivers, 43, has spent more than half his life in prison. He grew up in a rough part of Philadelphia. When he arrived behind bars in 1997, he says he was hooked on drugs and could barely read.
"So I never really understood the concept of 'life without parole,' " he said. "You know, I didn't shoot nobody, I didn't stab anybody, I didn't rape anybody."
Here's what he did do: snatch the purse of an 85-year-old woman. She died in the hospital, two weeks later, from injuries sustained when she fell. The evidence presented at trial suggests he didn't mean to kill her. But that didn't matter under a concept called "felony murder."
The effort to change the law
"The felony murder concept is, if a death occurs during the commission of another felony, that is considered a form of murder that's attributed to anybody who participated in the felony, regardless of whether they had any criminal intent in regard to the death of the other person," said Bret Grote, legal director at the Abolitionist Law Center.
Grote, alongside the Center for Constitutional Rights and the Amistad Law Project, is suing the state on behalf of Rivers and five other people convicted in their late teens. They've already served a combined 200 years in prison. Their case argues the punishment for felony murder in the state is cruel and unconstitutional under Pennsylvania law.
Grote said it means an effective life sentence.
"People in Pennsylvania who are serving life sentences do not have the possibility of parole," he said. "And the only way they are being removed from prison in the overwhelming majority of the cases is in a body bag."
Their lawsuit hopes to change that by forcing the state board to grant prisoners parole hearings — and to push the state Legislature to change the law.
Attorney General Josh Shapiro is on the other side of the case. His spokeswoman sent NPR a statement saying that he's duty-bound to defend the law.
But, she added that he supports efforts to remove the prohibition on parole in Pennsylvania's second-degree-murder statute. "He has previously called on the General Assembly to change the law so that second degree murder is not an automatic life sentence and provide additional sentencing options, which would best address the concerns raised in this case," she said.
Pennie Hockenberry, of the Pennsylvania Office of the Victim Advocate, said the office surveyed surviving families in 2019 about parole eligibility in these cases — and 91% of respondents disagreed or strongly disagreed with the idea.
But for experts who assert the U.S. prison population is already too large, especially in the middle of a pandemic, the movement to overhaul the criminal justice system won't get very far unless the country reckons with how and how harshly to punish people who engaged in violent crimes, sometimes decades earlier.
Another lawyer for the plaintiffs — Quinn Cozzens — pointed out another problem with the way the law operates now. Cozzens says 70% of the people serving life for felony murder in Pennsylvania are Black, even though only 11% of people who live in the state are Black.
"So that's obviously a huge disparity and something that's indicative of how this punishment is imposed and who it is imposed on and what purpose it serves," Cozzens said.
Petitioning for clemency
There is one way for people like Tyreem Rivers to leave prison before they die. In Pennsylvania, a state pardon board considers those petitions and recommends clemency to the governor.
At a public meeting last fall, the board considered the case of the Evans brothers. They've spent 37 years in prison. In 1980, the brothers took part in a car jacking, with an antique gun. They dropped off the man whose car they stole at a payphone booth. Later, the man died of a heart attack.
The Evans brothers refused a plea deal. They've now served double the time they would have spent in prison if they had taken that deal. The man considered the ringleader in the car jacking is already free — has been for more than a year.
In a familiar dynamic, the prosecutor and the corrections expert at the board meeting said they didn't have enough information about the men's culpability or their turnaround in prison.
Another board member, Lt. Gov. John Fetterman, said the stakes were too high to punt.
"And that's my been my point consistently is that we're going to err on the side of mercy because the stakes are so high, if he's denied, almost assuredly going to die in prison, despite serving four decades in prison," Fetterman said at the meeting.
Then, he called on Nancy Leichter. Her father Leonard died after that car jacking.
"They were 18- and 19-year-old teenagers when they went into prison, and they are now 58- and 59-year-old men," Leichter said. "They have accepted responsibility. We believe they have paid their price and now it's time for them to be released."
Ultimately, the board voted unanimously to pave the way for the Evans brothers to be released last September. But they're still in prison, because Pennsylvania's governor has not signed the paperwork. Another man who had been approved for clemency by the board died last weekend, still in prison, while he was awaiting the governor's action.
"I'm a man of change"
Back at the state prison, I spoke with Tyreem Rivers again in early December.
"A little under the weather so to speak," he said. "Still optimistic."
Rivers told me his sense of taste and smell were off. He later tested positive for COVID-19. At least two men from his unit died. Others had to be hospitalized, he said.
I asked him what he wanted people to know about him.
"OK, so I would like for people to know that I am not a bad person," said Rivers. "I made bad decisions in the past. I have a sense of regret and remorse for my actions, and I'm a man of change."
Rivers said he had done a lot of thinking since he entered prison so long ago. He took classes, attended drug and alcohol treatment, worked with hospice patients and started mentoring new waves of young men who arrived in the facility. The student had become the teacher, he said.
This week, Rivers emailed me. He said he's got some lingering trouble from the coronavirus. But he's still optimistic that some day, he'll get out of prison, against the odds, and put his paralegal training to use in a case that doesn't involve himself.
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