State lawmakers have confirmed Gov. Josh Shapiro’s controversial nomination for the Board of Pardons over several objections, including that the pick has too frequently provided expert testimony that children can’t be rehabilitated.
John S. O’Brien II – whose term on the five-member board began upon confirmation and expires Nov. 30, 2031– denied the criticism during his testimony before the state Senate Judiciary Committee last week in response to questions from Sen. Rosemary Brown (R-Monroe, Wayne, Lackawanna).
In the cases flagged as the basis for concerns about his 40-year track record, O’Brien said he’s often declined to provide an opinion “with reasonable certainty” due to factors at play supporting either finding.
“No expert, no mental health expert, could provide such an opinion with reasonable certainty,” he said. “It sounds like a cop out, but it’s really the most direct way I can … [explain] that I am not an individual who can make that determination.”
Sen. Nikil Saval (D-Philadelphia) said O’Brien’s response to Brown “disturbed” him.
“In no instance did you refer to the science around youth development and brain development,” Saval said to O’Brien. “The science around exposure to trauma and substances’ … impact on brain development – and just more generally, about brain development for juveniles charged as adults – how would that impact your views on the potential rehabilitation capacity for people seeking commutation who committed their crimes as teenagers?”
O’Brien noted that he agreed with research linking minors’ behavior to the “immature brain.”
“And certainly childhood trauma can influence future behavior. And so that would be something that any mental health evaluator would be looking for,” he said. “And I do that as well.”
Saval also cited a “rare” barrage of feedback objecting to O’Brien’s appointment.
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Several individual constituents and more than 20 organizations contacted committee members, including the Pennsylvania Prison Society and innocence organizations such as the Pennsylvania Pardon Project. They also heard from the state and Philadelphia public defenders’ associations and defender offices in counties including Delaware and Blair, according to Saval’s office.
Some advocates say they’ve long been aware of the controversy surrounding O’Brien and his approach, which Spotlight PA also detailed 10 days before his nomination came up before the Senate.
O’Brien – a psychiatrist with a law degree whose civil and criminal forensic expertise has been engaged in high-profile cases including that of Jerry Sandusky – also appeared last Wednesday before Senate Rules & Executive Nominations Committee ahead of the full chamber’s 38-10 floor vote (ten Democrats voted against the appointment and a dozen supported it).
Some legislators say the nomination approval process was rushed, with all three votes happening on a single day.
The House of Representatives isn’t involved with approving executive nominations.
O’Brien, 71, will fill the board’s spot for a psychiatrist that has been empty since last November. At that time, Shapiro declined to re-appoint a longtime member flagged by advocates for inappropriate questioning and lack of relevant professional expertise.
In addition to a psychiatrist’s slot, the board has seats designated for a corrections expert, victim representative, attorney general and lieutenant governor. State Attorney General Dave Sunday and Lieutenant Gov. Austin Davis each have seats by virtue of their elected positions. Marsha Grayson sits as victim representative; Harris Gubernik, as corrections expert.
While on the board during his AG tenure, Shapiro voted to grant clemency 17 times or less than half of cases considered one year (2019), according to an analysis by the Capital-Star. His application approval rate ranked lowest among the members – including now-Democratic U.S. Sen. John Fetterman, who supported the most (30 of 41) in his seat as then-lieutenant governor.
“Complicated issues”
O’Brien said he couldn’t recall details about a few specific cases Saval raised during the hearing, including one from five years ago out of Blair County wherein the court ultimately rejected his report and testimony as inadequate.
In another, the state Supreme Court overturned the conviction of Jordan Brown. He was 11-years-old when he was tried as an adult in the fatal shooting of his father’s pregnant fiancé based in part on O’Brien’s testimony, Saval said.
O’Brien cited Brown’s “resentfulness” toward his biological mother and his father’s late fiance as a main concern. But ultimately, O’Brien said, he wasn’t “in a position to express an opinion” as in other cases raised as controversial.
Sen. Amanda Cappelletti (D-Delaware/Montgomery) also said she was voting against the nomination partly due to O’Brien’s inexperience with recidivism discussed during the closed-door interview she and her colleagues each had with him ahead of his public hearing.
Many applicants’ cases stem from decades prior “when they were in their teens and early 20s,” Cappelletti said.
“Additionally, Dr. O’Brien shared that he no longer accepts new patients, and he is not up-to-date on what were referred to as the complicated issues around medications and multiple diagnoses, and he did not feel equipped to handle them,” she said.
O’Brien, who didn’t respond directly to Cappelletti during the hearing nor to the Capital-Star’s requests for comment afterward, pledged to recuse himself from cases he was involved in as an expert witness.
He also said he’d consider mental health, domestic violence and lack of treatment during incarceration as mitigating factors when assessing pardon applications in response to being specifically questioned on those points by Sen. Camera Bartolotta (R-Greene, Washington, Beaver).
The Judiciary Committee voted 9-5 to approve the nomination the morning of Feb. 4. It passed the Rules and Executive Nominations Committee 16-1 that afternoon followed by the entire Senate.
Sen. Doug Mastriano’s office didn’t respond to questions about why the Republican, who represents Adams and Franklin counties, changed his vote from opposing the nomination during the committee hearing to supporting it during the floor vote by the full chamber.
Background
Asked if the governor had looked into the concerns raised or addressed them with O’Brien at any point, spokesperson Alex Peterson said the administration remains “confident [O’Brien] will serve the Board of Pardons well.”
He “is a well-respected expert in the field of psychiatry and a public servant who has worked for three decades at the Philadelphia Courts as a medical-legal consultant, where he has contributed to many high-profile cases,” Peterson said.
Some advocates immediately raised objections upon hearing who Shapiro had nominated because they’d long viewed O’Brien’s approach as “problematic”, according to Abolitionist Law Center Executive Director Saleem Holbrook.
“This is someone who, unfortunately, their reputation preceded them,” Holbrook told the Capital-Star after the legislature confirmed O’Brien. He noted the disappointment with the governor’s selection felt by him, colleagues’ and partners – including some crime victims and survivors.
Holbrook also said some aspects of the state Board of Pardons structure can compound issues with members, particularly its unanimous vote requirement.
In Pennsylvania, clemency applications must get full support from the board to go to the governor for final approval in cases involving a sentence to life in prison or the death penalty – as is the situation in the vast majority of applications.
The legislature has raised changing the rule previously, bringing Pennsylvania in line with most other states. Supporters cite the unanimity requirement’s role in the commonwealth’s backlog of clemency applications.
They also note the commonwealth shifted from a majority to unanimous vote requirement by the Pardons Board during the tough-on-crime era of the 1990s – and the fact that documented effectiveness and harm of some reforms enacted during that time has led to their repeal.
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date: 2026-02-09 23:00:00
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