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.”