The Philadelphia District Attorney's Office has conceded that a judge resentencing "juvenile lifers" may impose a minimum sentence lower than the 35 years that the office has been offering in such cases.
The possibility was raised Monday as the office agreed to move ahead with resentencing for Kempis Songster, 44, who is serving life without parole for a murder he committed in 1987 at age 15.
An openly frustrated U.S. District Judge Timothy J. Savage - who ordered a new sentence for Songster four years ago, and again in August with a 120-day deadline - said the office's policy of offering all inmates the same deal for a new sentence was inconsistent with a U.S. Supreme Court ruling that put back into play about 300 murder cases in Philadelphia involving juveniles.
Savage's Aug. 17 order had urged resentencings in which a judge would have discretion to impose "individualized, proportionate sentences," take into consideration an inmate's rehabilitation, and impose a maximum of life only in "the rarest of permanently incorrigible" cases.
"Here's the problem that I have," Savage told Assistant District Attorney Susan Affronti on Monday. "If you're saying you have all these offers out, it seems you're treating all of these folks the same way - 35 years to life. I don't get that. That to me appears to show a lack of due diligence, of looking at each case individually. I understand you want to do this for policy reasons. Maybe because it looks good."
Songster's case and others are back in the courts as a consequence of Montgomery v. Louisiana, a U.S. Supreme Court decision in January that made retroactive the court's ban on automatic life-without-parole sentences for juveniles. The ruling affects about 2,300 cases nationwide, about 500 of which are in Pennsylvania - including about 300 in Philadelphia.
Affronti, accompanied by Tariq el-Shabazz, one of District Attorney Seth Williams' top deputies, agreed Monday to drop the appeal of Savage's order directing Songster to be resentenced as well as its request for a stay of the 120-day time frame. Savage's earlier ruling questioned the district attorney's reliance on parole as the means of release by leaving maximum life sentences in place.
Affronti said a contested sentencing hearing was the goal all along in Songster's case, but argued that the Supreme Court ruling did not invalidate the maximum of life in these sentences as long as the sentences allow for parole eligibility. She said a sentencing judge could impose any minimum. "The state court judge could impose five years," she said.
Douglas Fox, representing Songster, said he would request a sentence with a maximum of less than life and a minimum that would make Songster eligible for release. Songster has been in prison 29 years. He and Dameon Brome were convicted in 1988 in the killing of Anjo Price, 17. All three were runaways working for Jamaican drug posses in Southwest Philadelphia. Brome is incarcerated in the Dallas, Pa., prison; Songster is in Graterford.
Bradley Bridge of the Defender Association of Philadelphia, who is handling many of the juvenile lifer cases, said the district attorney's dropping of its appeal was significant because it left Savage's opinion in place. "His vision of what is a lawful sentence is substantially different than the prosecutor's view of what is a lawful sentence," Bridge said. "The prosecutor has now conceded that Judge Savage wins. They're not challenging him on it."
Until now, Williams has offered about 60 defendants plea agreements of 35 years to life, which, Savage previously noted, in effect pass the decision on release over to the parole board, which has approved the release of a handful of defendants in the oldest of the cases. Williams' office has argued that allowing parole in these cases was an acceptable way to comply with the Supreme Court ruling. Savage wrote in an earlier ruling, however, that a sentence with a maximum of less than life had to be considered by the resentencing judge. The life maximum should be ordered only in rare cases, but was allowable, he said.
Affronti acknowledged that the office had not been willing to offer a negotiated new sentence of less than 35 years to life for those were 15 to 17 at the time of their crime, which is the current sentence set by Pennsylvania for first-degree murder involving a juvenile defendant 15 and older, set after the Supreme Court invalidated sentences of life without parole. Pennsylvania law also now allows for a more lenient sentence of 25 to life for juveniles who were younger than 15 at the time of the crime.
Affronti said the District Attorney's Office would continue to use the new Pennsylvania law as a guideline for offers to the lifers, though it does not legally apply retroactively, because "I believe a 15-year-old that commits first-degree murder in 1974 should be treated the same as a 15-year-old in 2016."
Songster's case will be in Common Pleas Court for a hearing Monday. Bridge said the District Attorney's Office would face the issue of maximum sentences in juvenile lifer cases again at the state level, when a three-judge panel will hear a variety of issues arising from the cases.
After the hearing, el-Shabazz - who had told the judge that the office was going through the cases "at a record pace" and contacting victim's families - was scolded by a woman who said she was speaking for family members of victims who do not oppose resentencings.
"Every person that has lost someone does not feel that way," she said. The father of Anjo Pryce, she noted, was quoted as saying the opposite, that he considered the two defendants, Songster and Brome, "as innocent as Anjo."
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