Courts Sentencing
U.S. District Court for Eastern District of Pa Thom Carroll/PhillyVoice

The James A. Byrne U.S. Courthouse at Sixth and Market streets in Philadelphia.

October 17, 2016

Federal judge questions Philly DA's juvenile resentencing plan

Prosecutors in the Philadelphia District Attorney's Office were in court Monday to answer questions from a federal judge about its resentencing policy for juveniles sentenced to life without parole.

The hearing focused on the case of Kempis Songster, 47, who was sentenced to life in prison without parole in 1988 for the stabbing murder of a 17-year-old boy. Songster was 15 at the time of the crime. 

Songster's attorney, Douglas Fox, was in court before U.S. District Judge Timothy Savage, who in August questioned the plan by the District Attorney's Office to pursue sentences of 35-years-to-life with parole for any juvenile originally sentenced in Philadelphia to life without parole. 

In commentary on a resentencing petition by Songster, Savage wrote that the district attorney' plan "does not reflect individualized sentencing." 

It was an opinion the judge pressed Assistant District Attorney  Susan Affronti to dispute.

In January, the United States Supreme Court ruled that sentences of life without the possibility of parole for juvenile offenders is unconstitutional. In the case of Montgomery v. Louisiana, the Supreme Court determined that jailing a child for life without the possibility of parole constitutes cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution.

In Philadelphia, the ruling impacts about 300 individuals. 

Affronti explained that her office has made resentencing offers of 35-years-to-life in prison with the chance of parole to about 60 individuals, with an additional 40 cases under review. 

"So, you're treating everyone the same?" Savage asked Affronti. 

When Affronti indicated yes, the judge argued that each case needs to be considered uniquely. 

Savage said he was concerned the DA's Office wasn't doing "due diligence," failing to take the specifics of each case into consideration when crafting a new sentence. 

"You have to do it on an individual basis," he said. "Rehabilitation is a huge thing in this." 

But Affronti reminded the judge that the 35-to-life sentences sought by her office were nothing more than "offers," not a mandatory new sentence. Such offers, which will be made regardless of age, length of incarceration or behavior while in custody, can be refused by individuals, she said. 

In the case of a refusal, a Court of Common Pleas judge would then have the opportunity to review the case and present a new sentence of less than 35 years minimum. 

"They can make it less," she said. "They can do five years." 

Tariq El-Shabazz, a former defense attorney who recently joined the DA's Office, said the offer was devised as a way for prosecutors to handle all of the juvenile life-without-parole cases before them that need to be resentenced. 

"We have been going through these cases at a record pace," he said. 

And while 35 years might sound like a hefty minimum sentence, El-Shabazz said researching the cases requires prosecutors to reach out to the families of victims, who often have put the pain of violent crime behind them by virtue of a life sentence. Tracking down victims' families has proven very difficult, he said. 

The resentencing process, he added, opens up a lot of wounds. 

"We have to go back to these families where someone was sentenced to life, and now, all of a sudden, they are being resentenced," El-Shabazz said. "You have that conversation, they say 'just 35 years' and look at you like you're crazy." 

In the end, both sides agreed that Songster can contest the offer of 35-to-life in Common Pleas Court and prosecutors would withdraw its appeal of Savage's August petition. 

Following the hearing, Affronti said she was satisfied with the decision, and noted that in Philadelphia, no juvenile has been sentenced to life without the chance of parole since 2010. She also said that, even in a contested resentencing, while the minimum sentence might change, she believes maximum sentences will remain at life in prison. 

"Our position is that, what holds is life," she said. 

Fox said the hearing resulted in, essentially, a passing of the buck from federal court down to the Common Pleas Court. 

"All they did was put this back to Commonwealth courts," said Fox. 

For Sean Damon, a prison reform activist with DecarceratePA, Monday's ruling doesn't answer the question if Philadelphia's juveniles sentenced to life without the chance of parole could be resentenced to less than 35 years minimum. 

"It remains to be seen if these sentencings will be individualized," he said. "It's hard to know how much of a victory this is."