THE DIVINE RIGHT OF KINGS

By William M. DiMascio
   Executive Director

Pennsylvania has adopted a clemency policy based solely on the arbitrary assignment of mercy - a commodity in extremely short supply in today's self-serving society and virtually depleted in the halls where politics reigns.

The principle agent of this capricious policy is the Pardons Board - an agency that is purported to do the work of the people but is shielded from public accountability. No criteria regulate the board members' deliberations; no explanations are required for their decisions, and no appeals to their rulings are permitted. When public bodies conduct life-altering work under a veil of secrecy they sow seeds of suspicion that erode trust in the system.

Consider the case of Jackie Lee Thompson who was convicted of first-degree murder 35 years ago when he was 15. A foster child whose mother died when he was 10, Thompson grew up in poverty in rural Tioga County. On the advice of his court appointed lawyer, he confessed to his role in the shooting and fatal drowning of a 15-year-old girl.

Two other teenagers were involved. One took the Fifth Amendment and refused to testify; she was ultimately adjudicated in a juvenile proceeding. The other teen - whose family owned a business in town - disputed the parts of Thompson's story that alleged his complicity in the drowning; he was released and never tried in the case. Some residents of the community who knew the boys still contend that Thompson was more credible and point out that no character witnesses were called on his behalf at the trial.

Some members of the Pardons Board seem unconcerned with re-trying cases, however. Small town justice may sometimes resemble legislative sausage-making, but the Pardons Board's function is not to clean up the messes of the legal system.

The state of neuroscience has advanced considerably over the last 35 years. Researchers have found overwhelming evidence that the human maturation process is not complete until individuals are into their twenties. Furthermore, the last parts of the maturation process take place in the brain's prefrontal regions that control aggression and other impulses, according to Ruben C. Gur, professor of psychology and director of the Brain Behavior Laboratory at the University of Pennsylvania School of Medicine.

"These results have rather profound implications for understanding behavioral development," Dr. Gur wrote in the Pennsylvania Gazette. "The cortical regions that are last to mature, particularly those in the prefrontal areas, are involved in behavioral facets germane to many aspects of criminal culpability. . . .

"As I stated in my expert opinion for the court, the brain scan techniques have demonstrated conclusively that the phenomena observed by mental health professions in persons under 18, which would render them less morally blameworthy for offenses, have a scientific grounding in neural substrates."

The science that gave us DNA testing which has helped us determine guilt and innocence now provides a way to assess "criminal culpability."

Some members of the Pardons Board seem unconcerned with correcting our errors of judgment, however. We can't always be expected to know everything, and we can't count on the Pardons Board to help us make up for our ignorance either.

When the judge sentenced young Thompson, he said: "I might say this to you, Jackie. You will always have hope in a thing of this kind. We have found that in the past, quite frequently, if you behave yourself there is a good chance that you will learn a trade and you will be paroled after a few years. That depends on you and how you behave yourself down there."

Over his 35 years in state prisons, Thompson developed an outstanding record. He obtained a General Equivalency Diploma and an Associate Degree in Business Management, and he has assisted instructors and taught basic and advanced computer classes in the prison school. He also acquired skills in handling heavy construction equipment. He performed so well, in fact, that a retired maintenance supervisor from the Department of Corrections offered to give Thompson a place to live and said he would get him a job in his son's plumbing business if the state commuted his sentence.

A top level official in the DOC who was familiar with Thompson's case commented privately that this was one of the strongest cases he'd seen go before the Pardons Board. "If they won't recommend him, they're not likely to recommend anyone," he said.

Some members of the Pardons Board seem unconcerned with rewarding good behavior, however. Since the referendum of 1997 which changed the rules to require a unanimous vote of all five board members, only three lifers have been recommended - this woeful accomplishment from a state with one of the largest populations of men and women serving life without the possibility of parole!

No bigger supporter exists for Thompson's release than the father and stepmother of the victim. They have been stalwart advocates for Thompson's release. Duane and Jean Goodwin wrote to the board during an earlier commutation hearing: "We can forgive him. Why can't you?"

Catherine Starkweather, the victim's sister, also wrote on Thompson's behalf, saying she felt he had "paid his dues" and should be free.

Some members of the Pardons Board also seem unconcerned about the feelings of victims, unless, as they usually do, they support rejecting clemency. When Mark Schweiker was lieutenant governor and chairing the Board, he used to make a grand show of accommodating the wishes of victims' families.

The Thompson case was different. Four members of the Pardons Board voted to recommend him to the governor. Only the outgoing attorney general, Jerry Pappert, voted against him. So strong was the case that at the February meeting a motion was made to reconsider Thompson's request for clemency. Only one person voted against reconsideration, incoming Attorney General Tom Corbett.

The code of far too many prosecutors is relentless, unyielding, devoid of compassion and mercy. What a sorrowful existence is theirs who sustain themselves in a sea of retribution.