Philadelphia District Attorney Asks Pennsylvania Supreme Court to Strike Down State’s Death Penalty

Citing race dis­par­i­ties, inef­fec­tive rep­re­sen­ta­tion by court-appoint­ed lawyers, and arbi­trary case out­comes, the Philadelphia District Attorney’s Office has asked the Pennsylvania Supreme Court to strike down the state’s death penal­ty. In a brief filed on July 15, 2019 in the con­sol­i­dat­ed appeals of Philadelphia death-row pris­on­er Jermont Cox and Northumberland County​’s Kevin Marinelli, the District Attorney’s office argued that Pennsylvania’s death penal­ty ​“has repeat­ed­ly been hand­ed out in an unre­li­able and arbi­trary man­ner” and urged the court to rule ​“that the death penal­ty, as it has been applied, vio­lates the Pennsylvania Constitution’s ban on cruel punishments.”

Explaining the fil­ing, Philadelphia District Attorney Larry Krasner (pic­tured) told The Appeal that the death penal­ty ​“real­ly is not about the worst offend­ers. It real­ly is about pover­ty. It real­ly is about race.” Philadelphia pros­e­cu­tors stressed that theme through­out their brief, find­ing that near­ly three-quar­ters of the Philadelphia death sen­tences imposed between 1978 and 2017 had been over­turned in the courts, most­ly as a result of inef­fec­tive assis­tance from ​“under-fund­ed, inad­e­quate­ly sup­port­ed court-appoint­ed coun­sel.” The result, city pros­e­cu­tors said, was a death row over­whelm­ing­ly com­posed of poor black defen­dants who had been denied mean­ing­ful rep­re­sen­ta­tion at trial.

The District Attorney’s study tracked 155 Philadelphia death sen­tences imposed over a near­ly 40-year peri­od. It found that:

• 72% of the cas­es (112 of 155) had been over­turned ​“at some stage of post-conviction review”;
• Nearly two-thirds of those cas­es (66%) were reversed because of inef­fec­tive assis­tance of trial counsel; 
• More than three-quar­ters of those reversed cas­es involved rep­re­sen­ta­tion by court-appoint­ed pri­vate lawyers depen­dent upon court fund­ing for inves­ti­ga­tors, experts, and their own com­pen­sa­tion; and
• 91% of the reversed cas­es (102 out of 112) ulti­mate­ly end­ed up in a final, non-capital disposition.

“Where a major­i­ty of death sen­tenced defen­dants have been rep­re­sent­ed by poor­ly com­pen­sat­ed, poor­ly sup­port­ed court-appoint­ed attor­neys, there is a sig­nif­i­cant like­li­hood that cap­i­tal pun­ish­ment has not been reserved for the worst of the worst,’” the DA’s brief said. ​“Rather, what our study shows is that, as applied, Pennsylvania’s cap­i­tal pun­ish­ment regime may very well reserve death sen­tences for those who receive the ​‘worst’ (i.e., the most poor­ly fund­ed and inad­e­quate­ly sup­port­ed) representation.”

The Philadelphia D.A.’s brief also said that its study ​“revealed equal­ly trou­bling data” regard­ing the race of the 45 Philadelphia pris­on­ers who remain on Pennsylvania’s death row. 82% of those pris­on­ers, the brief said, are black; 91% are peo­ple of color.

Defense attor­neys for Cox and Marinelli are ask­ing the Pennsylvania Supreme Court to invoke its ​“King’s Bench” juris­dic­tion to make a spe­cial rul­ing to ​“strike down the Commonwealth’s cap­i­tal pun­ish­ment sys­tem as a pro­hib­it­ed cru­el pun­ish­ment.” The February 2019 peti­tion high­light­ed the prob­lems iden­ti­fied by the Pennsylvania Task Force and Advisory Committee on Capital Punishment, which released a report in 2018 sum­ma­riz­ing years of research. Attorney Shawn Nolan wrote, ​“Although the sys­tem was intend­ed to apply only to the worst of the worst, arbi­trary fac­tors, such as geog­ra­phy, pover­ty, men­tal ill­ness, and race, best pre­dict who ends up on death row.” The plead­ing asked that the court ​“order that all con­demned pris­on­ers be resen­tenced to life impris­on­ment” and that the death-penal­ty sys­tem be found to vio­late the Pennsylvania constitution.

The Pennsylvania Attorney General filed a brief in oppo­si­tion to the death-row pris­on­ers’ peti­tions, with the sup­port of ami­cus briefs filed by the Pennsylvania District Attorneys Association, 13 Republican state sen­a­tors, the Pennsylvania House Republican Caucus, and the Pennsylvania Fraternal Order of Police. The oppos­ing briefs argued that the court should not inter­vene in what they char­ac­ter­ized as a leg­isla­tive issue. ​“In our con­sti­tu­tion­al sys­tem it is the leg­is­la­ture which best dis­cerns and rep­re­sents the will of a sov­er­eign peo­ple,” the Attorney General wrote. The Republican sen­a­tors’ brief expressed a sim­i­lar sen­ti­ment, say­ing, “[t]he present mat­ter, if accept­ed by the Court, stands to direct­ly impede the Senators’ abil­i­ty to per­form their leg­isla­tive func­tion in mat­ters involv­ing the death penal­ty in Pennsylvania, which is a mat­ter of sig­nif­i­cant pub­lic pol­i­cy con­cern for the General Assembly.”