Commentators Criticize Pennsylvania Death Penalty, Call for Reform or Abolition

As the September 11, 2019 Pennsylvania Supreme Court argument date approached in two cases challenging the constitutionality of the state’s death penalty, commentators and stakeholders weighed in on the case in op-eds across the state. These opinion articles highlighted the work of a June 2018 report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment that found deep flaws in the administration of the Commonwealth’s death penalty, as well as the experiences of exonerees and victims’ family members.

Daniel Filler, a law professor and member of the Task Force’s advisory committee, wrote in The Philadelphia Inquirer, “Our legislators have not stepped up to ensure a fair and effective process for deciding [death penalty] cases. Pennsylvania is the only state in the country that does not fund a statewide capital defender program or contribute to the costs of representing indigent capital defendants. Each county must fund the defense individually, and most simply cannot afford the price tag. Without adequate representation, Pennsylvania has sentenced numerous defendants to death only to later find that they were severely mentally ill or innocent or intellectually disabled and thus ineligible for a death sentence.” Filler urged the court to step in to act where the legislature had failed, saying, “Our society has rules and norms and at some point a court can no longer ignore a death penalty system that does not conform to them.”

The (Allentown) Morning Call published an op-ed by former federal prosecutor Thomas Farrell, who wrote, “As a former prosecutor, I am deeply troubled by this fact: Pennsylvania does not choose fairly those it condemns to death.” He noted the racial and geographic disparities that plague Pennsylvania’s death penalty, saying, “If Pennsylvania wants a death penalty system worthy of its ultimate power, then it needs to start by reforming its process for capital prosecutions. Life or death for a murder defendant depends more than anything on in which of Pennsylvania’s 67 counties he is prosecuted. … The pernicious effects of race, whether the defendant’s or the victim’s, continue to distort prosecutorial and sentencing decisions.” Farrell concluded, “when it comes to the death penalty, an imperfection can mean a wrongful execution. Almost as momentous, it means we the people — through our legislature, courts, prosecutors, and juries — have acted unjustly. That risk has persisted for over 40 years despite our best efforts to get it right. It’s time to stop.”

In a separate op-ed for The Legal Intelligencer, law professor Jules Epstein—who authored one of the amicus briefs filed in support of the prisoners’ challenge—echoed those sentiments, presenting specific data on racial bias in Pennsylvania. “At its simplest, the data conclusively show the following—white victim cases result in the imposition of a sentence of death at over twice the rate where the victim is black. The data are compelling. The report shows based on the court system’s own data that death sentences returned at penalty trials were at 45% (31 in 69) in cases with white victims and 20% (15 in 74) in cases with black victims. … [O]ther data show that race is also a factor in prosecutorial decision-making on whether to classify a case as capital-eligible; and the disparate use of peremptory challenges to exclude black citizens from jury service in capital cases is shown to have a long and ignoble history in Pennsylvania.” These disparities, Epstein writes, call the entire Pennsylvania death-penalty scheme into question: “This racial influence compromises fairness, creates arbitrariness and undermines confidence in the criminal justice system. The consistency and power of these findings raise the fundamental question of whether the death penalty is imposed arbitrarily, i.e., without the ‘reasonable consistency’ required by the Constitution’s commands.”

Vicki Schieber, a victim’s advocate whose daughter, Shannon, was murdered in Pennsylvania in 1998, wrote in an op-ed in the Pittsburgh Post-Gazette that “Pennsylvania’s death penalty is too broken to fix and does not serve victims like me.” Schieber also served on the advisory committee and said, “The years of work I did with the committee studying Pennsylvania’s death penalty system left me with no doubt that it is deeply unfair and broken. My experience as a victim’s mother — being mocked and disrespected during the trial of my daughter’s killer — showed me that victims’ interests are not served by the death penalty.” Schieber said “[v]ictims deserve better than endless trials and appeals that expend countless dollars on death penalty cases. We deserve better than a system meting out the ultimate punishment in our name whether we want it or not.” “Pennsylvania,” she said, “should abolish the death penalty and replace it with a system that truly honors victims and their surviving family members.”

Two death-row exonerees with Pennsylvania connections shared their personal experiences and described the systemic problem of wrongful convictions. Ray Krone and Kirk Bloodsworth wrote, “If sentencing an innocent person to death isn’t cruel, then nothing is. Nationwide, since 1973, 166 people have been exonerated and freed from death row with evidence of their innocence. Six of them were in Pennsylvania. Citizens should not look away from the cruelty. It is carried out in your names and with your tax dollars.” Krone was born and raised in York, Pennsylvania, before moving to Arizona as part of his military service. Following his honorable discharge, he was wrongfully convicted and sentenced to death as a result of false bitemark testimony by a government forensic expert. Bloodsworth was sentenced to death in Maryland and now heads the Philadelphia-based death-row exoneree program, Witness to Innocence. The first former death-row prisoner to be exonerated by DNA evidence, Bloodworth was convicted and sentenced to death after the prosecution withheld exculpatory evidence and manipulated two young eyewitnesses into falsely identifying him. “Our wrongful convictions were caused by junk science, mistaken eyewitness identification, prosecutorial misconduct, and above all, lack of access to high-quality legal representation at trial — all of which remain problems in Pennsylvania’s broken death penalty system,” the men explained. “Our death penalty system is still broken, inaccurate, and unreliable. In Pennsylvania and every state, we have life without parole sentences for the small number of offenders who show no hope for rehabilitation. Because the death penalty inevitably comes with the risk of killing innocent people, the Supreme Court of Pennsylvania should strike it down as cruel and unconstitutional.”