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A Comment on the Courage of Norma L. Shapiro – Part Four – Evans v. Beard: A State Court Sentencing Error Corrected 11 Years Later

Are There Really “Plenty of Shapiros Out There”? 
A Comment on the Courage of Norma L. Shapiro – Part Four – Evans v. Beard: A State Court Sentencing Error Corrected 11 Years Later

The third and final case is Evans v. Beard, a habeas petition brought by William Evans, a state prisoner convicted on multiple counts of rape against victims who were young children. At the outset, I acknowledge that the crimes committed by Mr. Evans distinguish him as, by far, the least sympathetic petitioner featured in this Essay. Recognizing the severity of his crimes, one of the state courts sentenced Mr. Evans to more than 700 years’ imprisonment. However, that sentence was later vacated on appeal in an exceptionally complex multi-jurisdictional state court procedural history that need not be recounted here. For purposes of this post, it is sufficient to note that Mr. Evans began his incarceration in 1986 and, in a1994 sentencing hearing, his 700-year sentence was reduced to ten to twenty years’ imprisonment.

Throughout his sentence, Mr. Evans received annual correspondence from the Pennsylvania Board of Probation and Parole stating that he would be released on November 13, 2006. But in April 2005, shortly before his anticipated release, Mr. Evans received a different notice. This time, the Board informed him that it had added four and a half years to his sentence because, in the 1994 resentencing hearing, the state court judge improperly computed credit for time served.

As it turns out, the 2005 notice was correct about the sentencing judge’s erroneous computation. Mr. Evans had been convicted in separate proceedings in two Pennsylvania counties. This fact was significant because state law precluded the grant of credit for time served on a prior unrelated sentence before the effective date of a subsequently imposed concurrent sentence. The problem in Mr. Evans’ view, however, was that the state waited almost eleven years to correct the error and, when it finally issued a correction, the judge signed a new sentencing order without notice to Mr. Evans or an opportunity for him to be heard. Mr. Evans filed a federal habeas petition that was randomly assigned to Judge Shapiro.

I surmise that, had Judge Shapiro presided over the original resentencing of Mr. Evans as a state court judge, she would have imposed a harsher punishment than ten to twenty years because of the extraordinary severity of his crimes. But the wisdom of the state court’s resentencing decision of ten to twenty years was not the subject of her review. Rather, the question presented was whether the state could correct an erroneously lenient sentence nearly eleven years after its imposition.

Judge Shapiro concluded (courageously, in my view) that, notwithstanding the horrible nature of what brought Mr. Evans into the criminal justice system, the state’s mishandling of the sentence shocked the conscience and therefore violated his right to substantive due process. The District Court opinion explained:

“The Department of Corrections’ gross delay in seeking the state court’s correction of Evans’ Form DC–300B was fundamentally unfair, as was the court’s decision to grant the amendment. As early as 1994, the Department of Corrections had actual knowledge that Form DC–300B granted Evans more credit than it believed was allowed under state law. After the Clerk of Court certified Form DC–300B granting the contested credit over the Department’s objection in February 1995, the Department abandoned the issue for more than a decade. In 2005, eleven years after the sentence was imposed and Evans had exhausted his appeal (and just one year before his scheduled release), the Department renewed its effort to remove the time credit. The Department’s prolonged delay in seeking correction of Form DC–300B is shocking to the conscience; so was the court’s decision to grant the amendment. If the Fourteenth Amendment Due Process Clause imposes a temporal limit on the power of a sentencing court to correct an illegal sentence, an eleven year delay by the Lehigh County Court of Common Pleas certainly exceeded that limit.”

Fully aware of the strong likelihood of reversal in a habeas case like this, Judge Shapiro nevertheless granted Mr. Evans’ petition because she believed the Constitution required it.  Anticipating the district attorney’s response, however, Judge Shapiro ordered that Mr. Evans’ release be postponed for thirty days to give the state an opportunity to file an appeal.1 The state filed a timely appeal and, as a further precaution, Judge Shapiro yielded the decision of whether to stay Mr. Evans’ release pending appeal to the Third Circuit. On the state’s emergency motion, a two-judge motions panel of the Third Circuit denied the stay.  Mr. Evans was a free man.2

Mr. Evans’ release from prison quickly attracted media attention.  A Philadelphia television station covered the story on the local evening news with the headline, “Convicted Child Rapist Released Early.”3 The reporter interviewed the local District Attorney, who characterized the problem in Mr. Evans’ resentencing as a “clerical error.”  This was true, of course, but incomplete.  The sentencing judge’s clerical error was not the aspect of Mr. Evans’ proceeding that Judge Shapiro found to violate substantive due process; it was the state’s gross delay in correcting it.  The reporter also interviewed a children’s rights advocate who worried that Mr. Evans’ release would discourage young victims of rape and sexual abuse from seeking help.  I share the advocate’s concern about the underreporting problem in cases involving minor victims, but it is difficult to identify a direct link between that problem and Mr. Evans’ case. By the time of his release, Mr. Evans had already served more than half of the additional four years added by the belated correction of his sentence.

Nearly two years following Mr. Evans’ release, the Third Circuit reversed the District Court’s grant of habeas relief. Writing for the Third Circuit, however, Judge Kent Jordan was deliberately measured in expressing disagreement. Indeed, the carefully worded opinion appears as if it were drafted to emote the panel’s great respect for Judge Shapiro and her legal analysis.  Judge Jordan repeatedly emphasized the “amorphous character of the shock-the-conscience test,” and offered the uncommonly disarming concession that “[w]hat is shocking to the conscience inevitably depends to a degree on whose conscience is being tested; so, to put it mildly, the standard has some give in it.”4 Judge Jordan’s words are a rare public acknowledgement that, although reversed, Judge Shapiro was not mistaken in her analysis, and that reasonable minds can differ in applying a weakly defined constitutional due process standard.

I select this case to remember Judge Shapiro, again, not to revisit the disappointment of a reversal.  Rather, this case presents a compelling illustration of Judge Shapiro’s steadfast unwillingness to follow the path of least resistance when confronted by a challenging or controversial matter.  Judge Shapiro could have easily disposed of Evans by curtly adopting the magistrate’s Report and Recommendation against granting relief.  Such a ruling would all but have guaranteed affirmance on appeal.  But Judge Shapiro assumed the risk of reversal in making the harder decision to grant habeas relief because, to her, the state’s mishandling of Evans’ sentence was not a harmless clerical error, as argued by the District Attorney. To the contrary, the state’s gross delay in correcting an erroneously lenient sentence inflicted a significant, though intangible, harm that implicated the venerable constitutional protection of substantive due process.

These three cases can be variously described. For some, they might suggest a district judge unwilling to bend to hierarchical authority and, consequently, a rogue agent within the federal judiciary.  That’s not what I see.  I see a woman with rare courage to do what was right, who tried to push all those she came in contact with—the lawyers and citizens who appeared before her, the appellate judges who sat above her, her colleagues on the bench, and her clerks—to a path of righteous justice. It takes deep courage to make a decision knowing you’d be accused of being an accomplice to murder by your City’s paper. And it takes just as much courage to order the release of guilty men. That’s true even when you are convinced it’s the right thing to do. Donald Trump got the gist of my former boss all wrong. There are not “plenty of Shapiros out there,” and there never were.


1 By that point, Mr. Evans had served more than two and a half years beyond his original 2006 release date.

2 Order at 1, Evans v. Beard, No. 09-2657 (3d Cir. June 26, 2009) (“The forgoing motion for a stay is denied.”).

3 Walter Perez, CONVICTED CHILD RAPIST RELEASED EARLY, 6abc Action News (June 30, 2009).

4 For an alternative theory of habeas relief on Double Jeopardy grounds, see Reid K. Weisbord & George C. Thomas, III, Judicial Sentencing Error and the Constitution, 96 B.U. L. Rev. 1617, 1652-71 (2016).