STUDIES II: Pennsylvania’s Death Penalty System in Need of ​“Immediate Reform”

A recent review of death penalty cases in Pennsylvania conducted by the Philadelphia Inquirer (see earlier DPIC post) has revealed a pattern of ineffective assistance of counsel leading to extensive delays and reversals of death sentences. When the cases are litigated a second time, now with more competent representation, they frequently do not result in a death sentence. Prosecutors have called the system a great disservice to victims’ families. Edward McCann, the first assistant district attorney in Philadelphia, said, “The length of time is unconscionable. To have to make phone calls to people 20 years after the fact and tell them: ‘By the way, you know that death sentence you thought was final 20 years ago? We’ve got to talk to you about that.’ I think it’s unconscionable to put people through that.” And yet, according to the Inquirer’s study, “lawyers found to have provided ineffective assistance of counsel are routinely appointed to new cases,” and some even become judges. Moreover, “deficient legal work extends to appellate cases, where the very lawyers hired to correct the errors of others themselves prove ineffective.” Appellate lawyers have filed legal challenges that cite little or no case law, and have grammatical errors. Some appellate lawyers missed key filing deadlines or failed to appear for court hearings. Jack McMahon, a former homicide prosecutor and now a defense lawyer, pointed to the low pay for attorneys in capital cases as the source of the problem: “The government gives people a constitutional right to an attorney, but by lowering the [lawyers’] fees to pauper’s level, they have severely hindered that right,” he said. “To me, that’s inexcusable, particularly in a homicide case, where the government is either seeking to kill you or put you in jail for the rest of your natural life.” Pennsylvania Supreme Court Justice Thomas G. Saylor (pictured) called the legal work in some cases emblematic of the “unconscionable delay, disarray, and inconsistencies” in death-penalty appeals and called “for immediate reform.”

(N. Phillips, “In life and death cases, costly mistakes,” Philadelphia Inquirer, October 23, 2011). See Representation, New Voices and Studies.