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With help, Pa. lifers now have a fighting chance at clemency

Thurmond Berry had served nearly four decades toward a life sentence when he received a note in his cell instructing him to meet with a Dr. Kathleen Brown, a professor of nursing at the University of Pennsylvania. He'd been ill, so he figured it was a checkup.

Thurmond Berry greets Kathleen Brown at the University of Penn's law school, who helped him get out of prison, Wednesday April 20, 2016.
Thurmond Berry greets Kathleen Brown at the University of Penn's law school, who helped him get out of prison, Wednesday April 20, 2016.Read moreDAVID SWANSON / Staff Photographer

Thurmond Berry had served nearly four decades toward a life sentence when he received a note in his cell instructing him to meet with a Dr. Kathleen Brown, a professor of nursing at the University of Pennsylvania. He'd been ill, so he figured it was a checkup.

Instead, the woman waiting for him in a meeting room at Graterford Prison told him, "I'm here to get you out of prison."

The plan Brown laid out wasn't that much more far-fetched than if she'd suggested that the 68-year-old great-grandfather scale Graterford's high walls and shimmy through the barbed wire loops to freedom. She intended to help Berry win commutation - a second chance denied him five times before.

Commutation is the only chance that lifers have at release in Pennsylvania, because the state parole law specifically excludes them. When Berry was locked up in 1976, dozens of life sentences were commuted each year; Gov. Milton Shapp alone signed 251 clemency orders between 1971 and 1978.

But in the 1990s - after a newly released lifer named Reginald McFadden killed two people and raped a third - commutations all but ceased. The state's prisons now hold 5,451 lifers, all ineligible for parole; only Florida has more. Just six had been released in the 22 years since McFadden's crimes.

Now, Brown intended to coax the rusted machinery of commutation back into motion, to provide lifers with a meaningful opportunity for release. She and her students would give evidence-based support for Berry's bid for clemency, and Berry would be the first test case of the Penn Inmate Project, a collaboration between Brown and the Department of Corrections.

Amazingly, it worked.

In September 2015, the Pennsylvania Board of Pardons approved Berry's application. In December, Gov. Wolf signed the clemency order. On Jan. 4, Berry was released.

'But I didn't kill anyone'

"To spend that amount of time in a prison," Berry said recently, "you'd think I was a mass murderer. . . . But I didn't kill anyone."

It's hard for Berry even to explain what happened. He was abusing alcohol and looking for acceptance with a bad crowd.

He doesn't deny that he set out to commit a crime. He was armed with a gun when he and three other men went into a Philadelphia bar in 1975, intending to rob it. But he didn't expect what happened next: One of his accomplices shot a patron, Reginald Gilmore, who died from the wound.

Berry was charged with second-degree murder, under a state law that makes those guilty of a felony liable for any death that occurs during the crime. (He's one of about 400 Pennsylvania lifers who did not perpetrate the killing they are locked up for, according to State Sen. Daylin Leach, who proposes eliminating the felony-murder rule.)

Berry pleaded guilty, not comprehending the enormity of his sentence. (He also admitted in court that he had threatened a witness to the crime.)

"At the time I went to prison, lifers were getting out of prison. They could do 12 or 15 years," he said.

So he planned for that future. He got his GED and an associate's degree, learned trades, and led antiviolence workshops.

And he applied for commutation, over and over.

"The first two or three applications, they really were not up to par. But the last two, I would say, were about as good as I could get them," he said.

They were not good enough.

Inmates must wait two years before reapplying, and the Board of Pardons' backlog now stretches four years. If Berry's sixth plea failed, he'd turn 74 before he had another chance to make his case.

That's where Brown came in. She'd been working on social justice issues - she created a sexual-assault nurse examiner program for Philadelphia's jails - when a colleague mentioned commutation.

"I thought, 'Commutation? What's that even mean?' " she said. As she learned more, she saw a dire need. "We seem to have public sentiment that we need to do something with mass incarceration. . . . If we want to get serious about this, there should be a more efficient way of reviewing these cases."

Currently, inmates fill out an application a few pages long with information about their criminal history, their conduct in prison, their education, work, family, and religious backgrounds, and their reasons for seeking a pardon. The Department of Corrections' Bureau of Treatment Services also provides supporting materials: a psychological assessment, a housing review.

From there, it's an arduous process: Three out of five members of the Board of Pardons - the lieutenant governor, the attorney general, a corrections expert, a psychiatrist, and a victim representative - must agree to hold a full hearing. If the hearing is granted, a unanimous vote is required to recommend the commutation, which can then be approved or denied at the governor's discretion.

Brown said inmates' applications are often brief and handwritten. She thought that she and her students could do far better.

She contacted Corrections Secretary John Wetzel and Tyrone Werts, a criminal-justice reformer who was one of five lifers granted commutation by Gov. Ed Rendell. Both offered to help. Werts gave her a list of worthy candidates, and Wetzel gave permission to set up a video link so students could confer with inmates virtually.

Students then wrote proposed supplements to Berry's application: helping him develop a home plan and citing research on the diminished rates of recidivism that attend old age, higher education and religious involvement.

"It gives the [Board of Pardons] something to go on that's more than the fact that the prison record looks really good," Brown said.

Brown sent Berry the students' essays, and he found something useful in almost every one.

In some of them, "it seemed like I stepped out of my shoes and they just stepped right in. . . . One young lady gave a home plan to me that was six pages long. I told Dr. Brown, I'm going to use it all. I'm not going to change a thing."

'It seems so surreal'

If you passed through the City Hall courtyard this winter, you might have seen Berry. He went his first day out of prison (he's living in a community corrections center) and kept going back for three months. He was on a mission: "I had to find out if I could still function in society. If I had took something out of prison that shouldn't be out here."

He'd been away so long that his 6-year-old daughter had grown up and had children, who'd grown up and had kids of their own. Were his values still intact?

"I would sit and just watch people - all different walks of life, all different forms of dress, some even in all different states of consciousness. It turned out . . . they had me locked up, but my mind never went to prison."

Recently, Brown invited Berry to speak to law students. He arrived late - parking in University City has become scarcer since 1976 - wearing a crisp tan suit and a big grin.

"After 39 years, coming out and coming to the University of Pennsylvania? It seems so surreal," he told them. "I'm probably a miracle standing here."

He had brought his daughter, Erica Speed, 45, and his granddaughter Shardé, 29, plus a brother, a niece and a cousin.

Speed, a nursing assistant from South Philadelphia, said Berry was a great father, writing letters and helping with homework by phone. But his homecoming felt like a second chance for her whole family. "I don't know how to describe that feeling - life starting over again," she said.

Berry told the students there's a need for more of this work.

"There are people that should never get out of prison. But a lot of them that's there should not be," he said. "They've been there 30, 35, 40 years with no hope at all."

So far, Brown and her students have assisted with 20 applications. Of those, another lifer, Daniel Peters, was recommended for clemency pending the governor's approval; a third, Richard Moore, was held under advisement; and a fourth was rejected.

Steven Burk, interagency liaison for the Department of Corrections, provides support for clemency applications. He said Brown's work has transformed morale at Graterford and at Muncy, the state's women's prison, where no one had bothered applying for commutation in years.

Of course, Brown is also taking advantage of a political moment and an amenable administration.

Wetzel, who served on the Board of Pardons before he became Corrections Secretary, said there should be a high bar for lifers to be released.

"But," he added, "there's some recognition that the system isn't always a fair and equitable system. In my time on the Pardons Board, some of the most disturbing things I saw were situations where . . . the reason this person needs a pardon is because they're poor and they didn't know the system. The three people pardoned at the end of the Rendell administration were all young minors with poor representation, and in all three cases they weren't the triggerman. And in some cases the person who did pull the trigger got a better sentence because they took a plea."

He sees Brown's effort as restoring a measure of equity to these cases.

"Dr. Brown is a hope broker for these folks," he said. "An individual understanding they're going to get a fair shot and fair representation . . . that's really important."

Werts wishes he'd had this help when he was seeking clemency. He sees it as a stopgap, though, not a solution.

"We need to take [commutation] out of the political process and put it into the correctional process," he said: If lifers could be evaluated by the parole board, rather than by elected officials, they'd have a better shot.

As for Berry, he's not sure what's next. He's taking in the small and large ways the world has changed in 39 years. "Everyone's wearing spandex. That's what jumped out at me," he said.

Lately, he's been getting furloughs from the corrections center, a few nights at a time when he can go to a basement apartment he's subletting from a relative and, for the first time in decades, be alone.

"To go home and lock the door. To unlock your own door, more than locking it," he said, "that's an amazing feeling."