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Clemency Under Fire

John Fetterman

Tom Williams/CQ Roll Call/Getty

John Fetterman, center, with, from left, Dennis and Lee Horton at a campaign rally in Philadelphia, September 24, 2022

On December 10, 1995, Felix Rosado, an eighteen-year-old living in Reading, Pennsylvania, stumbled out of a local bar, blackout drunk. He encountered a man sitting in his car and attempted to rob him; in the process, he killed him. At his trial, he pled guilty to first-degree murder—an offense that in Pennsylvania carries a life sentence without the possibility of parole. He told me that his memory was so addled by alcohol that the only details he knew about the crime were the ones presented in the courtroom.

Rosado acted out in prison. “I went through my first years of confinement doing all I could to avoid the reality of being sentenced to breathe my last breath behind bars,” he wrote years later. “I smoked, drank, popped everything I could get my hands on.” But as he approached his thirtieth birthday, he agreed to participate in a program that sent inmates to lecture boys from a nearby juvenile detention center about not ending up sentenced, like he was, to spend their lives in prison. The experience transformed him. “The first night I did that, I realized what my purpose was on earth: to prevent other people from making the same mistakes that I had,” he told me.

He studied the concept of restorative justice, a paradigm of conflict resolution in which the perpetrator makes amends with their victim and community, and helped start a restorative justice program inside his prison. He also helped lead an “alternative to violence” program with other inmates, in which they guided their peers through three-day workshops on peaceful conflict resolution. He earned a bachelor’s degree in interdisciplinary studies from Villanova University and became a devout Catholic. These accomplishments made him an ideal candidate for commutation, the process by which the state’s governor and its five-member Board of Pardons—which includes a person representing victims, such as the state’s victim’s advocate, and the attorney general—cut short the sentences of prisoners who, according to the board, “show rehabilitation.”

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In Pennsylvania, commutation is a crucial safety valve against ballooning prison populations. In most states, courts generally hand down life sentences with the possibility that a parole board may one day deem the person fit to be released. But here a life sentence for first- or second-degree murder comes with no such reprieve. Pennsylvania is one of only six states to require a sentence of life without parole for felony murder, meaning that a person merely participated in a felony where a victim died, not that they pulled the trigger.

I work with defense teams as a mitigation investigator in the Pennsylvania legal system. Much of my job involves writing profiles of criminal defendants for the court so it can weigh the full breadth of a person’s life history when determining their sentences. Doing this work, I came to learn that the commutation process in Pennsylvania had lain dormant for years, thanks in large part to a political culture that prioritizes punishment over rehabilitation. Starting in the Nixon administration, and escalating in the years that followed, both Democratic and Republican politicians stoked voters’ fears of drugs and violent crime and promised to allay those fears by locking up more people and handing down longer sentences. Lenient views on punishment became a political liability—most famously during the 1988 presidential race between Vice President George H. W. Bush and Massachusetts governor Michael Dukakis, when the Bush campaign ran fearmongering ads about the Massachusetts inmate Willie Horton, who had raped a white woman and stabbed her boyfriend after failing to return to prison following a weekend furlough. Bush’s strategy—using Horton to paint Dukakis as insufficiently tough—continues to inspire racist Republican rhetoric around criminal justice.

Decades ago, Pennsylvania had a healthy clemency system. But in the 1980s the number of commutations in the state fell dramatically. Between 1979 and 1986, Republican Governor Richard Thornburgh granted only seven commutations of life sentences. (His predecessor, Milton Shapp, who served from 1971 to 1978, had granted 251.) Then, in 1994, commutations ground to a halt when Governor Robert Casey commuted the life sentence of Reginald McFadden, who went on to murder two people in New York and rape another woman. Following the McFadden affair, Pennsylvania legislators amended the state constitution to make the commutation process more rigorous, requiring that a commutation petition receive unanimous, rather than majority, support from the five-person board.

The state’s population of lifers—prisoners serving a life sentence without the possibility of parole—has ballooned. Since 1970 it has grown over tenfold, from about 400 to over 5,000—a number surpassed only by Florida, according to the Sentencing Project. This population skews male and Black: 62 percent of lifers are Black in a state where Black residents make up only 12 percent of residents. In Pennsylvania, entire prisons are reserved for lifers.

In 2019 Pennsylvania voters elected John Fetterman as lieutenant governor. As part of his duties he became chair of the Board of Pardons, and set out to rejuvenate the commutation system. From 1995 until the term of the current governor, Tom Wolf, Pennsylvania governors commuted only six life sentences. Wolf has commuted fifty-three, of which forty-seven were during Fetterman’s tenure. On July 14, Rosado, now forty-five, had his life sentence cut short on Fetterman’s watch. “When the Board of Pardons finally voted yes…I fell straight to the ground,” he said. “This huge weight I had been carrying just lifted.”

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For the past month and a half, Mehmet Oz—the Trump-backed celebrity doctor running against Fetterman in a close race for a seat in the Senate—and his Republican supporters have attacked Fetterman’s record on clemency by vilifying the people commuted during his tenure as chair of the board of pardons. Taking a page from the Willie Horton playbook, Oz has taunted Fetterman for being soft on crime, accusing him of letting dangerous criminals out on the street. One television ad from the Oz campaign features a black-and-white photo of a hulking, stone-faced Fetterman, standing before a stark white-brick wall, while bright yellow text announces: “JOHN FETTERMAN WANTS TO FREE MURDERERS.”

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Yet Fetterman has not backpedaled on clemency. On the campaign trail he has often been photographed alongside brothers Dennis and Lee Horton. In 1993 a Philadelphia court convicted them of felony murder for allegedly participating in a robbery gone awry, and sentenced them to life in prison. The prosecution alleged that the two men served as getaway drivers for an alleged killer; the brothers insist that they picked him up afterwards, ignorant of the fact that he had just committed murder. Over the next twenty-seven years they maintained their innocence, bringing the case all the way up to the state’s superior court, to no avail.

Cases like that of the Horton brothers were what stirred Fetterman to the cause of clemency when he took over the all-but-dormant board. During his first year in office he traveled from prison to prison encouraging lifers to apply for clemency. “If you’re cynical about the commutation process,” he told a crowd of lifers at a prison in northeastern Pennsylvania, in October 2019, “you have good reason to be, because nothing was really done about it in the last forty years. A catastrophic bottleneck has doomed hundreds and hundreds of men and women to die in prison. But we have the best opportunity in forty years to get people out.”

Fetterman streamlined the administrative process for commutations and ended application fees, which he argued were a barrier to many would-be petitioners. To demonstrate his belief in redemption, he hired two people to work for the board whose life sentences had been recently commuted. He tried, and failed, to change the number of board members who have to approve a petition before it goes to the governor’s desk, from a unanimous vote to a 4-1 majority. He also endorsed legislation that would allow judges to decide on a case-by-case basis whether a felony murder conviction warranted a life sentence (the measure’s fate remains uncertain). He grew visibly upset in public hearings when other board members disagreed on cases that he championed.

One such case was that of the Horton brothers. They first applied in 2017, and the board reviewed their case in 2020. But to Fetterman’s dismay, they lost their first bid for commutation—Shapiro voted no, as did two other members of the board. Fetterman made it his personal mission to free them from prison. “Up until that time we had never had anyone of that level fighting our cause, or even anyone at a lesser level,” Dennis Horton told me. Fetterman took the case to the media, to the statehouse, to anyone who would listen. “The trajectory of my career in public service will be determined by their freedom or lack thereof,” he told The Philadelphia Inquirer.

In prison, the Horton brothers endeared themselves to correctional staff and inmates alike. They produced plays they had written, became certified peer counselors, took several college courses, and tutored men on their cell blocks. Michael Wiseman, a Philadelphia lawyer who represented them, pointed out that the brothers endured nearly three decades of incarceration without receiving a single disciplinary writeup. With Fetterman’s advocacy and Wiseman’s help, in 2020 the board reconsidered the Horton brothers’ petition. This time, all five members voted in favor of their release; in early 2021, the governor signed off, setting them free.

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Oz and his Republican supporters have worked hard to turn the fear of crime into political currency, attempting to turn Fetterman’s mercy for the state’s aging prisoners against him. “If John Fetterman cared about Pennsylvania’s crime problem, he’d prove it by firing the convicted murderers he employs on his campaign,” Brittany Yanick, a spokeswoman for Oz, said in September. In an ad underwritten by Make America Great Again Inc., a Trump-linked super PAC spending millions on candidates endorsed by the former president, a narrator says: “John Fetterman wants ruthless killers, muggers and rapists back on our streets, and he wants them back now.” In a statement, Oz spokesperson Rachel Tripp wrote to me that “we cannot allow Fetterman to bring this radical and dangerous pro-murderer mentality to the U.S. Senate.”

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The strategy is clear: to tie Fetterman to crime by any means necessary. On October 20 Jahmir Harris, a Philadelphia man exonerated last year for a 2012 killing, was arrested as a suspect in a new murder case. The Oz campaign quickly developed new attack lines linking Harris’s exoneration to Fetterman via Fetterman’s support for Larry Krasner, the district attorney of Philadelphia, whose office led the fight to overturn Harris’s 2012 conviction. “I’m smart enough to realize that if I fought to free two Black men with the last name Horton, that is going to go ding ding ding” for Republican campaign strategists, Fetterman told New York magazine. He has accused Oz of lying about his record on crime—a record, he says, built on curbing gun violence during his time as mayor of Braddock and reviving Pennsylvania’s clemency process.

Oz’s caricature of Fetterman is misleading in several ways. For one, the office they seek does not control the release of prisoners in the state. For another, Fetterman is not terribly progressive on criminal justice issues, at least by current standards. He supports the legalization of marijuana and, in line with his advocacy for clemency, believes that a felony murder conviction should not automatically result in a life sentence without possibility of parole—a policy that forty-four states already follow. But he has also described the idea of defunding the police as “absurd.” A proud gun owner, he supports centrist gun control reforms such as mandating universal background checks. “John took a fair-minded approach to cases that came before the board, voting to grant clemency in many cases but also voting to deny clemency in hundreds of other cases,” his campaign spokesperson, Joe Calvello, wrote to me.

Oz also seems to suggest that the Board of Pardons doles out commutations with reckless abandon—a gross mischaracterization. Applicants must write essays that explain how they have reformed themselves during their time in prison and describe in detail the crime that put them there and their part in it. As those who work with commutees have told me, their writing must show remorse. They must submit a resume listing all the in-prison programs they’ve joined or created, and, to boost their chances of success, they are encouraged to include letters of recommendation from loved ones as well as from prison officials. When an application comes before the Board of Pardons, the board decides whether to advance the applicant to the interview stage. It also solicits input from family members of the applicant’s victims and from the sitting district attorney in the county where they were convicted.

Rachel Lopez, a law professor at Drexel University, runs a legal clinic that helps prisoners prepare commutation applications. This summer, two of her seven clients who applied for commutations received them; the other five are still in the pipeline. One of the clients who won commutation, Terrell Carter, now advises the students in her clinic. “Rell talks about having survivor’s guilt because there are so many other people deserving commutation,” Lopez said. She worries most about her elderly clients with applications stuck in the queue. Most are in their seventies and eighties and have been incarcerated for as long as fifty years; many are in declining health. In a great number of these cases, many prisoners lead “quiet, productive lives, or in some cases…exemplary lives,” Sean Damon, the organizing director of Amistad Law Project, a Philadelphia-based law firm, told me. Damon and his colleagues have helped dozens of prisoners petition for commutation since 2018 in Pennsylvania; eleven have been successful.

Yet another problem with Oz’s narrative is that, according to the secretary of the Board of Pardons, none of the prisoners commuted under Fetterman’s watch have been rearrested. There’s not yet enough data to analyze this cohort’s long-term recidivism rates, but we do have data for some of the 459 Pennsylvania inmates released since 2016 as a result of a series of court decisions that found it unconstitutional to give people under the age of eighteen automatic life sentences without the possibility of parole. Like the commutees, these men and women, often referred to as “juvenile lifers,” have spent decades behind bars. Many essentially grew up in prison before getting a second chance. In 2020, a Montclair State University study found a recidivism rate of approximately one percent among released former juvenile lifers. Damon believes that the plights of juvenile lifers and the commutees—both populations who have served decades-long sentences after being convicted of violent crimes—bear comparison. “It is often this group—including many folks who are getting up in years—that we see a high amount of transformation, rehabilitation, and very low rates of reoffending.”

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On a recent Sunday in Philadelphia, Rosado shared a testimony with a prayer group at the Catholic church he attends every week. He told the eight worshippers about the crime he committed and what he’s doing with his life today. After he spoke, an elderly African American woman approached him in tears. “She was like, ‘So you’re the guy they’re talking about in those commercials?’” he told me. He is not personally featured in any Oz ads, but caricatures of people in his position are. “She was like, ‘You need to be on TV, because they have no idea.’”

Since his release from prison, Rosado has continued his restorative justice practice, working with children under eighteen who have run afoul of the law through a nonprofit called the Youth Arts & Self-Empowerment Project, which partners with the district attorney’s office. He guides the teenagers through a series of seminars and activities with community members and, ideally, their victims. If they complete the process, Rosado said, they avoid jail or prison time. “It’s tough work, it’s emotional work,” he told me. “It’s also rewarding. I love to help young people see their potential.”

Fetterman’s effort to revive Pennsylvania’s commutation system was hardly extreme. The extreme measure is to sentence someone to spend the rest of their life in prison without a second consideration. For taking on these efforts, he risked his political career. “Keep in mind, when he did what he did for us, he did it when nobody gave a damn. It would have been easy for him to say, ‘Hey guys, I’m sorry it didn’t work out for you, but I wish you the best,’” Dennis Horton told me. “This was not a fight that was beneficial for him….It was not a fight that lined up with his political interests.”

In 2020 I helped one lifer, a forty-nine-year-old man named James Frazier, file his petition for clemency. Frazier was raised by a mother addicted to crack cocaine and an abusive stepfather. In 1995, driving while high on PCP, he shot at a group of men, several of whom had beaten him up a day earlier. He killed one of them. His remorse set in the moment he sobered up. Upon entering prison, he kicked his drug habit. Today, nearly three decades later, he’s a serene man who spends most of his days studying the Quran and talking with his daughter. While incarcerated, he met and married a woman. He has a home and a job waiting for him. We’re still waiting to hear if the board will consider his case, and his fate could depend on this election. If Oz proves that giving prisoners a second chance is a fatal political liability, the next lieutenant governor may be less eager to take up the cause.

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