ARBITRARINESS: Pennsylvania’s Costly and Broken Death Penalty System

The the­o­ry of the death penal­ty is that pros­e­cu­tors select offend­ers who have com­mit­ted aggra­vat­ed mur­der and obtain death sen­tences for the most heinous offend­ers through a scrupu­lous tri­al with full due process. The real­i­ty in Pennsylvania is rad­i­cal­ly dif­fer­ent. Hundreds of inmates have been sen­tenced to death, but of the cas­es that have com­plet­ed the appeals process, 100% have been over­turned, most­ly because of errors in the con­vic­tion or sen­tenc­ing stages. (Three inmates were exe­cut­ed, but they waived their appeals; the rest of those sen­tenced to death remain on death row, con­tin­u­ing their appeals.) Moreover, when these cas­es are sub­mit­ted for re-tri­al, pre­sum­ably with the errors cor­rect­ed, almost all (95%) receive a sen­tence less than death (and some are freed completely). 

These sta­tis­tics, col­lect­ed by Robert Dunham, Adjunct Professor at Villanova Law School, reveal a cap­i­tal-case selec­tion process that is seri­ous­ly flawed and a tri­al process that is ram­pant with error. From a cost per­spec­tive, this is extreme­ly waste­ful: every death sen­tence is a result of an expen­sive tri­al and appeal; nev­er­the­less, almost all of these cas­es ulti­mate­ly result in a life sen­tence after even more pro­ceed­ings. Eleven per­cent (11%) of the cas­es requir­ing a re-sen­tenc­ing were resolved as less than first-degree murder.