The Pennsylvania Supreme Court (members pictured) heard oral argument on September 11, 2019 on whether to exercise its extraordinary “King’s Bench” powers to determine whether the death penalty, as currently applied in the Commonwealth, violates the Pennsylvania constitution. If the court agrees to reach the constitutional issue, it has the power to strike down the death penalty, uphold its constitutionality, or issue directives or standards regarding its future use.

Assistant federal defender Timothy Kane of the Federal Community Defender Office for the Eastern District of Pennsylvania argued on behalf of death-row prisoners Jermont Cox and Kevin Marinelli, who challenged the state’s death penalty after a June 2018 report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment raised numerous concerns about the way the death penalty is administered in Pennsylvania. Before a packed courtroom in Philadelphia, with an overflow audience listening in an adjacent room, Kane described what he called a broken and arbitrary death-penalty system skewed by an overly broad statute and plagued with racial and geographic disparities. Kane asked the court to declare the Commonwealth’s death penalty unconstitutional and to reduce the sentences of the state’s 137 death-row prisoners to life in prison without parole. Kane’s argument emphasized the unreliability of Pennsylvania death-penalty verdicts, noting that courts have overturned more than half of the 441 death sentences imposed since the Commonwealth reinstated the death penalty in 1974. “The reliability of the system as a whole is cruel and the systemic problems affect every case,” Kane argued. “If the system is cruel, it’s incumbent for this court to say so.”

The Philadelphia District Attorney’s office joined with the defenders in calling for the end of the Commonwealth’s death penalty. Supervisory Assistant District Attorney Paul George, of the D.A.’s appeals division, told the court that the systemic provision of deficient representation to indigent capital defendants has produced a constitutionally indefensible death penalty. Paul cited a study by the Philadelphia District Attorney’s office of 155 death sentences imposed in Philadelphia from 1978-2017. In that forty-year period, he said, 72% of the death verdicts had been overturned, most as a result of ineffective defense representation. “When you’re talking about having a 72% error rate, you’re not talking about a reliable system,” George said.

Ronald Eisenberg, a long-time appeals lawyer for previous Philadelphia District Attorneys who is now senior appellate counsel in the Pennsylvania Attorney General’s office, told the court that the issues presented by the prisoners were essentially legislative in nature and that they should only vacate existing death sentences if prisoners have proven that prejudicial constitutional errors occurred in their cases. Eisenberg argued that the court had alternative means to address the flaws in the death-penalty system, including creating a remediation process for defense lawyers who are found to be ineffective, and mandating better funding for court-appointed counsel. The Attorney General’s brief in the case argued that problems with the application of the death penalty “are important, and should be thoroughly considered and resolved, by the General Assembly.” Attorney Matt Haverstick, who argued on behalf of 12 Republican state senators who were granted permission to intervene in the case, argued that the legislature’s report had been intended to be “advisory only.” He threatened that the senators would not authorize any further study commissions if the court employed their studies as a basis for judicial remedies.

Prior to the argument, Philadelphia District Attorney Larry Krasner highlighted the discriminatory nature of the city’s death penalty. “It wasn’t the worst of the worst [being sentenced to death],” Krasner said. “It was the poorest and it was [the] blackest and brownest.”


Julie Shaw, Pa. high court hears argu­ments in Philly over con­sti­tu­tion­al­i­ty of death penal­ty, The Philadelphia Inquirer, September 11, 2019; Maryclaire Dale, Pennsylvania high court asked to throw out death penal­ty, Associated Press, September 11, 2019; Max Mitchell, Pa. Justices Grill Defense Attorney, Phila. DA on Their Bid to Scuttle Death Penalty, The Legal Intelligencer, September 11, 2019; Alicia Victoria Lozano, Philadelphia District Attorney’s Office Urges Pennsylvania Supreme Court to Toss Death Penalty, NBC-10, Philadelphia, September 112019.