Pennsylvania Supreme Court Hears Argument on Constitutionality of Death Penalty

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.”