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Sisters begged the Board of Pardons to free their brother’s killer. The board said ‘no’

The Pennsylvania Board of Pardons was swayed by DA Larry Krasner to support one lifer's commutation application. Two other lifers, however, were denied.

Mitzi Birli Foulke, 60, of Quakertown and Janice Birli Airey, 53, of Birdsboro, traveled to the capitol June 28 to support commutation for Craig Datesman, who killed their brother.
Mitzi Birli Foulke, 60, of Quakertown and Janice Birli Airey, 53, of Birdsboro, traveled to the capitol June 28 to support commutation for Craig Datesman, who killed their brother.Read moreSamantha Melamed

In December, Pennsylvania Attorney General Josh Shapiro was the lone "no" vote barring an ailing 76-year-old named William Smith from spending his twilight years outside prison walls, after nearly a half-century in prison for his role in the 1968 robbery of West Philadelphia shopkeeper Charles Ticktin. It became murder when Smith's accomplice fatally shot Ticktin.

At an unusual second hearing by the Pennsylvania Board of Pardons on Thursday, Shapiro changed his mind. The five-member board unanimously recommended that Gov. Wolf approve Smith's application for commutation of his life-without-parole sentence.

The difference was that Shapiro and the other board members had a few additional pieces of information at Thursday's hearing: feedback from the Philadelphia District Attorney's Office, which under Larry Krasner no longer opposes clemency; and a reaction from the victim's only surviving son, Rick Ticktin, now 71 and living in Levittown.

"He can't do anybody much harm," Ticktin said in February when a reporter visited his home to ask his opinion on Smith's release. "If he wants to get out of prison, best of luck to him."

Smith's large family — including more than 20 grandchildren, most of whom he's never met — wiped away tears as the votes were cast.

"We've been coming here for a couple years, and it's finally paid off," said Brendyn Harris, 30, a grandson. "He's going to be released after 47 years."

>>READ MORE: Philly lifers' clemency plea hits a roadblock in Attorney General Josh Shapiro

Shapiro was not similarly swayed, however, by the testimony of two sisters from Bucks County who took the day off from work to travel to Harrisburg and plead for mercy for Craig Datesman, 64, who shot and killed their brother, Jeff Birli, in an argument 36 years ago.

He and one other board member voted against Datesman and another lifer, Robert Swartworth, 60, a Pittsburgh man who participated in a fatal 1979 armed robbery of an antiques store but who was not the gunman.

The 3-2 votes in each case were short of the unanimous vote required.

The sisters first met with Datesman nearly a decade ago — an experience they describe as "life-changing" — and have advocated for his release since.

"We were told he'd be paroled in 17 years, but I guess things changed," Mitzi Birli Foulke, 60, said while she waited to testify on Datesman's behalf. "We were like, 'What do you mean, 'Life is life?' "

Foulke described the board's rejection as devastating. "Our brother would have wanted" Datesman's release, she added.

When Datesman was convicted in 1983, Pennsylvania governors were still commuting dozens of life sentences. But in subsequent decades, the process all but ground to a halt in part as a reaction to the violent crime spree of Reginald McFadden, a commuted juvenile lifer, in 1994.

In his tenure as chairman of the Board of Pardons, Lt. Gov. Mike Stack III has prioritized the resurrection of the commutation process. Just six lifers were granted clemency from 1995 to 2014; since Stack took office in 2015, six (including Smith) have been recommended to the governor. Wolf has granted clemency in only two of those cases, but it's not uncommon for governors to wait until late in their terms to act on the recommendations.

>>READ MORE: With help, Pennsylvania lifers now have a fighting chance at clemency

However, the future of clemency in Pennsylvania may hinge in large part on the outcome of this fall's gubernatorial election. One lifer has been commuted under a Republican governor in the past three decades.

John Fetterman — the Democratic candidate for lieutenant governor, who bested Stack after his first term was mired in a series of controversies — says he intends to pick up where Stack left off. "We're going to reinvent the process to maximize the interest of justice," he said. He cited the case of Corry Sanders, who was elected to the city council in McKeesport in 2016 but was barred from serving due to a 23-year-old drug conviction, as an example of the need for second chances. But, he added, he shares Shapiro's deference to victims in decisions about second chances. "Their response must carry an important amount of weight," he said.

The Republican candidate for lieutenant governor, Jeff Bartos, a Montgomery County real estate developer, also said he understands the value of second chances, particularly among low-level offenders. Andrew Romeo, a spokesman, said Bartos recognizes the need to weigh competing interests. He emphasized, "Any commutation process must include proper notice for victims and their families, and must allow victims and their families a forum to share their views with the board before any decision is made."

Shapiro, who took office in January 2017, has proved a cautious participant in the process. He said, in casting his vote on Smith's case, that he was swayed by input from the district attorney and victim's family, though he takes into account numerous factors, above all public safety. Smith applied for reconsideration after the December no-vote, and the board granted that request in March.

Unlike Smith, both Datesman's and Swartworth's applications faced opposition from the district attorneys in their respective home counties. All had exemplary prison records and support from the Department of Corrections, which deemed them low-risk.

"Mr. Shapiro didn't look up when we spoke at all," Janice Birli-Airey, 53, said. "I'm disappointed. I can't believe it."

Harris Gubernick, a corrections expert, also voted against Datesman. The second vote against Swartworth came from Marsha Grayson, the victim representative on the board.

Joe Grace, a spokesman for Shapiro, said the attorney general had weighed all the available information, including evaluations that are not made public.

"The Bucks County District Attorney's Office, as I understand it, they vehemently opposed this position for clemency," Grace said, "and the position of the county district attorney is definitely one of the factors that the attorney general closely considered."

In a TedX talk at Graterford Prison, Datesman spoke about the transformative experience of connecting with Birli's sisters through the state victim advocate.

"How do you tell someone how sorry you are for doing something that can never be undone? Sorry seems to be too simplistic a word," he said. "All you can do is live an honorable life and keep searching for ways to be a better human being, one that's worthy of redemption."

Foulke said she was doubtful before going into that first meeting — for years, she'd been angry and bitter over the crime — but Datesman moved her with his deeply felt remorse. Since then, she and her sister have gone back to visit him, and they've kept in touch.

"He sends birthday cards, Christmas cards," she said. "Whenever he does something, he sends it to me. It's really important to him that we know he's doing good."

Tyrone Werts, a former lifer who received commutation in 2010, described Datesman as a leader within the institution — the lifer who, out of all the inmates Werts knows, was most pained by his crime and likely to succeed upon release.

"Any lifer out here carries the weight of the lifer population on his back," he said, "so I wouldn't stand up here and speak for someone who had an inkling of a chance for recidivism."