PA Gov. Shapiro Wants to Ban the Death Penalty. He Mustn’t Stop There.

February 23, 2023

When Pennsylvania Governor Josh Shapiro (D) announced on February 16 that he would extend the moratorium on the death penalty implemented by his predecessor, Tom Wolf (D), he went a step further: recommending that the state legislature ban it once and for all.

Recognition of basic human rights for convicted people fits with Gov. Shapiro’s Jewish faith, which became an important part of his successful electoral campaign as he repeatedly referenced it last year. While ancient Jewish authorities did not forbid the death penalty outright, the Talmud includes stirring discussions like this:

“A Sanhedrin [court] that puts a man to death once in seven years is called a murderous one. R. Eleazar ben Azariah says ‘Or even once in 70 years.’ R. Tarfon and R. Akiva said, ‘If we had been in the Sanhedrin no death sentence would ever have been passed’; Rabban Simeon b. Gamaliel said: ‘If so, they would have multiplied murderers in Israel.'”

Nonetheless, Shapiro’s announcement was somewhat surprising from a man known for harshness and lack of tact in his former role as state attorney general, which he held from 2017 until being sworn in as governor this year. While Gov. Wolf was seen as a moderate supporter of criminal justice reform, AG Shapiro fought to retain the death penalty, and engaged in media subterfuge to undermine Philadelphia’s reformist top prosecutor.

If Shapiro really wants to change, there are numerous other things he should do. Here are three of them.


Support Larry Krasner

Philadelphia District Attorney Larry Krasner may have won reelection with over two-thirds of the vote in 2021, but that is not because he wasn’t a vulnerable candidate. It’s more that his opponents in both the primary and general elections—Carlos Vega (D) and Chuck Peruto (R), respectively—were notably weak.

Any Republican would face an uphill task in a Democrat-dominated city, and Peruto had personal vulnerabilities besides. As for Vega, his dogged pursuit of a murder conviction for an innocent man brought to mind his old boss, the “Queen of Death” DA Lynne Abraham.

The national progressive prosecutor movement has seemingly ground to a halt in the last year or so, with just a few luminaries of that once-promising avenue for reform still standing. Krasner is by far the most important. (George Gascón, the Los Angeles DA, has a larger jurisdiction, but despite overcoming a recall campaign, his own office and funders are in full revolt and his days in office look numbered.)

With Shapiro’s unequivocal backing, Krasner could yet have the staying power to keep challenging the mass-incarceration status quo. 

Krasner, who has served since 2018, has declined to prosecute marijuana possession and many sex work charges, reduced use of cash bail, pursued police misconduct and set up a Conviction Integrity Unit that has exonerated dozens of wrongfully convicted people, among other measures. In 2019, he filed a motion with the state Supreme Court in an attempt to declare the death penalty unconstitutional in Pennsylvania.

Unsurprisingly, Krasner has plenty of enemies, including among Democrats. He was impeached by the Pennsylvania House in October 2022 on “misbehavior in office” charges—which were then found by the state’s Commonwealth Court not to meet the required legal standard. With Shapiro’s unequivocal backing, Krasner could yet have the staying power to keep challenging the mass-incarceration status quo. 


Support Independence for the Attorney General’s CIU

One of the most heartbreaking clemency advocacy stories involves John Brookins, a Black man who has served 32 years in Pennsylvania state prison for a murder he swears he did not commit. Unfortunately for Brookins and his loved ones, the Bucks County District Attorney’s Office adamantly refuses to reinvestigate his caseeven to check the DNA.

There are only two ways for John Brookins to leave prison alive. First, the Attorney General’s Conviction Integrity Unit could reinvestigate the case, bypassing Bucks County DA Matthew Weintraub entirely. Second, a governor could give him clemency.

If AG Shapiro was any prelude to Gov. Shapiro, a commutation seems out of the question. The crime Brookins is associated with, despite severe doubt over his guilt, is too bloody. But the governor can do a seemingly more moderate, “good government” thing that could impact many people besides Brookins: Support double-checking the evidence.

Shapiro should advocate for an “independent” Conviction Integrity Unit, with systems in place to ensure CIU investigations are not impacted by conflicts.

One problem is, Acting Attorney General Michelle Henry spent over 20 years in the Bucks DA office before becoming the DA herself in 2008. She likely has some level of personal relationship with major players in the legal drama that led to Brookins’ conviction. For example, Brookins was prosecuted by recently retired Judge Diane Gibbons, who later caused another man’s wrongful conviction for attempted murder as DA. Henry was Gibbons’ major crimes unit chief.

Gov. Shapiro has vast major prosecutorial experience, and perhaps if he told Henry that Brookins’ case was worth looking into, she might actually do it.

Otherwise—and preferably—Shapiro should advocate for an “independent” Conviction Integrity Unit, with systems in place to ensure CIU investigations of possible innocence cases are not impacted by conflicts. Many DA offices across the country already have such checks and balances, such as the Wayne County (Detroit) Prosecuting Attorney’s Office in Michigan.

In a statement given to Filter, Karen Brookins, the wife of John Brookins, said, “Where innocence may be a possibility, and the true perpetrator is free to cause further harm, wouldn’t it be in the best interest of society to ensure that they got it right?” She also recommended that a nonprofit dedicated to conviction integrity, such as the Innocence Project, provide oversight.


Support Safe Consumption Sites

During the Wolf administration, AG Shapiro occupied a role as Pennsylvania’s ultimate law enforcement-centrist Democrat. Krasner was the most leftwing major figure in this sphere. The rightwing hardliner was US Attorney Bill McSwain, the Trump-installed top federal prosecutor, based also in Philadelphia.

Where these dynamics became most apparent was in the fight over safe consumption sites (SCS, also known as overdose prevention centers), after the nonprofit Safehouse announced its plans to create one in Philadelphia.

This evidence-based response to the opioid-involved overdose crisis, emphatically demonstrated to save lives, was openly supported by Krasner. McSwain heavily implied that he would criminally charge anyone who dared open such a center, despite their positive impact and legality in Canada and elsewhere. He sued Safehouse in 2019, starting a legal battle that has continued ever since.

Shapiro stated that there is “no safe way to inject yourself with this type of poison.”

AG Shapiro, meanwhile, mediated by using that special Democrat-in-law-enforcement muscle—the one that takes no principled stand on any controversial issue and uses the police as the vanguard in making sure nothing changes. He opposed SCS, stating in 2018 that there is “no safe way to inject yourself with this type of poison.”

Presumably, that means he considers today’s devastating and unprecedented overdose crisis “safe” for people who use drugs. And, as of December 2022, that is where Shapiro still stands.

The Biden administration, which has repeatedly delayed taking a position on SCS, may eventually come around. Other states aren’t waiting until then. Although the court case is federal, Gov. Shapiro’s support would be a difference-maker in Pennsylvania. If he continues to withhold it, he’ll effectively be helping to impose the very sentence he wants the legislature to ban on more people who use drugs.



Photograph of Shapiro in 2021 by office of Governor Tom Wolf via Flickr/Creative Commons 2.0

Rory Fleming

Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School's Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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