The following excerpts are from the death penalty chapter of the Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System. The blue-ribbon Committee, appointed in 1999, used a wide variety of sources to draw its conclusions and formulate the recommendations found in its report.
KEY RECOMMENDATIONS
The Committee made a series of 23 recommendations to the Pennsylvania Supreme Court, to the Legislature, to the state’s Attorney General and District Attorneys, and to Governor Ed Rendell. Among the key recommendations were a call for a moratorium on executions until the state can further analyze the impact of race on the death penalty, passage of a Racial Justice Act, statewide standards for prosecutorial discretion, and statewide standards for both trial and appellate lawyers in capital cases. (The complete list of recommendations may be found on Pages 219-221 of the report.)
To the Supreme Court of Pennsylvania
1. Pursuant to its inherent power to issue temporary stays of execution, declare a moratorium on the imposition of the death penalty in any case where the defendant’s direct appeal has resulted in affirmation by the Supreme Court of Pennsylvania, pending the completion of a study investigating the impact of the race of the defendant and of the victim in prosecutorial decisions to seek the death penalty and in death sentencing outcomes. The moratorium should continue until policies and procedures intended to ensure that the death penalty is administered fairly and impartially are implemented. (Page 219)
2. Empanel a special commission to study the impact of the race of the defendant and of the victim in prosecutorial decisions to seek the death penalty and in death sentencing outcomes. (Page 219)
6. Mandate statewide standards for an independent appointment process of selecting capital counsel for all stages of the prosecution, including trial, appeal, and post-conviction hearings. The standards, at a minimum, should incorporate those recommended by the American Bar Association in its Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. (Page 219)
To the Legislature
1. Enact a Racial Justice Act, like that of other states, that allows for the admission of evidence of a pattern and practice of disparate treatment in both the prosecutorial decision to seek the death penalty and in sentencing outcomes. (Page 220)
5. Enact legislation declaring a moratorium on the death penalty until such time as policies and procedures are implemented to ensure that the death penalty is being administered fairly and impartially throughout the Commonwealth. (Page 221)
To the Governor
1. Pursuant to his constitutional authority to grant temporary reprieves, declare a moratorium on the imposition of the death penalty in any case where the defendant’s direct appeal has resulted in affirmation by the Supreme Court of Pennsylvania, pending the completion of a study investigating the impact of the race of the defendant, and of the victim, in prosecutorial decisions to seek the death penalty and in death sentencing outcomes. The moratorium should continue until policies and procedures intended to ensure that the death penalty is administered fairly and impartially are implemented. (Page 221)
2. Empanel a special commission to study the impact of the race of the defendant and the victim in prosecutorial decisions to seek the death penalty and in death sentencing outcomes. (Page 221)
CONCLUSIONS
Empirical studies conducted in Pennsylvania to date demonstrate that, at least in some counties, race plays a major, if not overwhelming, role in the imposition of the death penalty. (Page 218)
There is a significant failure in the delivery of capital counsel services to indigent capital defendants in Pennsylvania, one that disproportionately impacts minority communities. (Page 218)
OTHER ITEMS
Introduction
Pennsylvania has the nation’s fourth largest death row, with 245 inmates currently under sentence of death in the Commonwealth. Although Pennsylvania’s minority population is 11 percent, two-thirds (68 percent) of the inmates on death row are minorities. Pennsylvania is second only to Louisiana in the percentage of African Americans on death row. (Page 200)
Based on existing data and studies, the Committee concluded that there are strong indications that Pennsylvania’s capital justice system does not operate in an evenhanded manner. At least one county, Philadelphia, has been extensively studied. After controlling for the seriousness of the offense and other non-racial factors, researchers there found that African American defendants were sentenced to death at a significantly higher rate than similarly situated non-African Americans; researchers further concluded that one third of African Americans on death row in Philadelphia County would have received life sentences if they were not African American. (Page 201)
Using the American Bar Association standards as a benchmark, the Committee concluded that delivery of these (defense) services is inadequate throughout the Commonwealth. With the exception of Philadelphia, there was a lack of effective standards for appointment of capital counsel. (Page 202)
The Work Group selected by the Committee to analyze this important issue was composed of criminal justice experts of many outlooks and professions, who were selected on the basis of their expertise, and without regard to their views on the death penalty. Its racially and gender-diverse membership was well-balanced and included current and former prosecutors and criminal defense lawyers, a judge, a police officer and an investigator. (Page 202)
The ability to prove discrimination where it exists is beyond the resources of most capital defendants and an avenue for redress in the courts remains elusive, particularly because federal constitutional doctrine fails to provide an effective remedy for racial and ethnic discrimination. (Page 202)
Delivery of Counsel Services to Indigent Defendants
The days of expecting a general practitioner to provide the standard of care required in a capital case are long gone. Capital defense is now a highly specialized field requiring practitioners to successfully negotiate minefield upon minefield of exacting and arcane death penalty law. Any misstep along the way can literally mean death for the client. The importance of ensuring good representation is magnified by the recent limitations Congress placed on federal review of state court convictions. (Page 210)
Specifically, the Spangenberg Group found that of the counties surveyed, only one met ABA standards for public defenders. Virtually every other county surveyed showed serious deficiencies in its ability to deliver services to capital defendants. (Page 210)
Based on this analysis, the Committee concluded that delivery of capital counsel services for the indigent in Pennsylvania is inadequate. (Page 213)
The Need for a Racial Justice Act
Despite compelling evidence of systemic race-of-defendant and race-of-victim discrimination in many jurisdictions, not a single capital defendant has been granted relief on equal protection grounds. (Page 214)
If a capital defendant is in fact a victim of racial bias, he or she should be permitted to raise an inference of discrimination by showing a pattern and practice of disparate treatment. A Racial Justice Act or comparable legislation permitting such evidence would fulfill this goal. (Page 214)
Standards for the Exercise of Prosecutorial Discretion
No county prosecutor’s office in Pennsylvania employs public guidelines defining standards and procedures for seeking the death penalty. Attempts to learn about the internal procedures were rebuffed by the Pennsylvania District Attorneys Association, which advised member counties not to cooperate with the Committee on this point.
