A view of the dome of the State Capitol in Harrisburg. (Tim Lambert/Pennsylvania Capital Star)
State lawmakers confirmed Gov. Josh Shapiro’s controversial nomination to the Board of Pardons over several concerns, including the fact that the selection too often featured expert opinions that children could not be rehabilitated.
John S. O’Brien II – whose term on the five-member board began upon confirmation and expires on November 30, 2031 – denied the criticism during his testimony before the Court state Senate Judiciary Committee last week in response to questions from Sen. Rosemary Brown (R-Monroe, Wayne, Lackawanna).
On matters cited as the basis for concerns related to his 40 years of experience, O’Brien stated that he often declined to issue an opinion with “reasonable certainty” because of factors supporting any of the findings.
“No expert, no mental health expert, could give that opinion with reasonable certainty,” he said. “It sounds like a cop’s excuse, but it’s really the most direct way I can… [explain] that I am not the person who can make such a decision.
Sen. Nikil Saval (R-Philadelphia) said O’Brien’s response to Brown “disturbed him.”
“You have in no way addressed the science of adolescent development and brain development,” Saval told O’Brien. “The science of the effects of trauma and substance exposure on brain development – and more generally, the brain development of juveniles charged as adults – how will this impact your views on the potential for rehabilitation of commuters who committed crimes as teenagers?”
O’Brien noted that he agreed with research linking juvenile behavior to “immature brains.”
“And certainly childhood trauma can influence future behavior. So that would be something that any mental health evaluator would be looking for,” he said. “And I do it too.”
Saval also cited a “rare” wave of comments opposing O’Brien’s nomination.
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Several individual voters and more than 20 organizations contacted committee members, including the Pennsylvania Prison Society and innocent organizations such as the Pennsylvania Pardon Project. They also heard from public defender associations in the state and Philadelphia and from public defender offices in counties including Delaware and Blair, according to Saval’s office.
Some supporters say they have long been aware of the controversy surrounding it O’Brien and his approach, Which Spotlight PA also detailed He was sent to the Senate 10 days before his nomination.
O’Brien – a law-trained psychiatrist whose civil and criminal forensic expertise was involved in high-profile cases, including a case involving Jerry Sandusky – also appeared last Wednesday before the Senate Executive Rules and Nominations Committee in front of a 38-10 majority of the entire House (ten Democrats voted against the nomination and a dozen supported it).
Some lawmakers say the process of confirming nominations was rushed, with all three votes taking place in one day.
The House of Representatives does not approve executive nominations.
O’Brien, 71, will fill the psychiatrist’s seat on the board, which has been vacant since November last year. At the time, Shapiro refused reappoints longtime member singled out by supporters for improper hearing and lack of appropriate professional knowledge.
Apart from a place for a psychiatrist, board has seats for a corrections expert, a victims’ representative, the attorney general and the lieutenant governor. State Attorney General Dave Sunday and Lieutenant Governor Austin Davis are elected by virtue of their elected positions. Marsha Grayson serves as a victims’ representative; Harris Governor, as corrections expert.
The analysis shows that Shapiro, while a board member during his tenure as AG, voted for clemency 17 times, or in less than half of the cases heard in one year (2019). by Capital-Star. His motions’ approval rate was the lowest among members – including now Democratic U.S. Sen. John Fetterman, who had the most approval (30 of 41) in his position as then lieutenant governor.
“Complicated Problems”
O’Brien said he couldn’t recall details of several specific cases brought up by Saval at trial, including one from five years ago in Blair County in which the court ultimately rejected his report and testimony as insufficient.
In another, the state Supreme Court overturned the belief of Jordan Brown. Saval said he was 11 when he was tried as an adult in the fatal shooting of his father’s pregnant fiancée, based in part on O’Brien’s testimony.
O’Brien cited Brown’s “resentment” toward his biological mother and his father’s deceased fiancé as his main concern. Ultimately, however, O’Brien said, he was “unable to express an opinion” as in other cases deemed controversial.
Sen. Amanda Cappelletti (Delaware/Montgomery) also said she was voting against the nomination, in part because of O’Brien’s lack of experience with recidivism, discussed during a closed-door interview she and her colleagues conducted with him before the public hearing.
Many of the candidates’ cases occurred decades earlier, “when they were in their teens and 20s,” Cappelletti said.
“Additionally, Dr. O’Brien said he is no longer accepting new patients and is not up to date on what he calls complex medication issues and multiple diagnoses and therefore does not feel equipped to handle them,” she said.
O’Brien, who did not directly respond to Cappelletti during the hearing or later to Capital-Star’s requests for comment, said he would withdraw from cases in which he was involved as an expert witness.
He also said he would consider mental health, domestic violence and lack of treatment while incarcerated as mitigating factors when evaluating clemency applications in response to detailed questions from Sen. Camera Bartolotta (R-Greene, Washington, Beaver).
The The Judiciary Committee voted 9-5 confirm the nomination on the morning of February 4. The Regulations and the Contractor were adopted Nominating Committee 16-1 that afternoon, and then the full Senate.
Sen. Doug Mastriano’s office did not respond to questions about why the Republican representing Adams and Franklin counties changed his vote from opposing the nomination during a committee hearing to supporting it in a full-board vote.
Background
Asked whether the governor had at any time reviewed the concerns raised or discussed them with O’Brien, spokesman Alex Peterson said the administration remains “confident [O’Brien] will serve the Board of Pardons well.”
“He is a respected psychiatric expert and public official who worked in the Philadelphia courts for three decades as a medico-legal consultant, where he was involved in many high-profile cases,” Peterson said.
According to Abolitionist Law Center executive director Saleem Holbrook, some supporters immediately raised objections when they heard who Shapiro had nominated because they had long considered O’Brien’s approach “problematic.”
“He’s someone whose reputation unfortunately preceded him,” Holbrook told the Capital-Star after the Legislature confirmed O’Brien. He noted the disappointment in the governor’s choice felt by him and his colleagues and partners – including some crime victims and survivors.
Holbrook also said some aspects of the structure of the state Board of Pardons could cause problems with its members, particularly the requirement for unanimous voting.
In Pennsylvania, clemency applications must receive the board’s full support before they can be sent to the governor for final approval in cases involving a life sentence or death penalty – as is the case with the expansive majority of applications.
The the legislator requested a change to the provision earlier, bringing Pennsylvania in line with most other states. Supporters cite the role of the unanimity requirement in the commonwealth’s backlog of clemency applications.
They also note that during the tough-on-crime era of the 1990s, the Commonwealth moved from supermajority to unanimity voting on the Board of Pardons, and that the documented effectiveness and harmfulness of some of the reforms introduced during that time led to their repeal.
