The Republican-dominated Pennsylvania House recently voted in favor of a resolution condemning the death penalty moratorium enacted by Democratic Governor Tom Wolf in February, shortly after his historic win over Republican incumbent Tom Corbett. In a perfect example of how things sometimes go in Pennsylvania, the House Judiciary Committee, of which the resolution’s prime sponsor is a member, held a hearing ostensibly to explore the issue—on the day after passing the resolution.
When he announced the moratorium, Wolf’s office called the state’s death penalty “a flawed system” that is “ineffective, unjust, and expensive.” The moratorium’s critics aren’t arguing that death penalty is effective, just and cost-efficient in the state; regardless of moral perspective on the idea of government executions, it is a near universally acknowledged fact that the system for choosing who will be executed is broken. In 2013, Pennsylvania Supreme Court Chief Justice Thomas Saylor began a paper on the topic by stating what he called the obvious: “The current state of Pennsylvania’s capital jurisprudence is impaired,” he wrote. “Indeed, a colleague sometimes commented that, in Pennsylvania, we do not have the death penalty, rather, we have ‘death by arteriolosclerosis.’”
What the resolution calls unconstitutional, though, is the relatively esoteric business of the protocol Wolf used to declare a temporary halt to the death penalty. Specifically, it is an argument over whether or not Article IV, Section 9 of the state constitution grants Wolf sufficient reprieve powers to justify his action.
House Resolution 143 urges Wolf to reverse the moratorium so Pennsylvania can to get back to executing inmates. Except, as Chief Justice Saylor noted, Pennsylvania generally doesn’t execute inmates.
Pennsylvania has the fifth most populous death row in the nation, with 186 people theoretically awaiting lethal injection with drugs the state currently doesn’t possess and can’t obtain. Since Pennsylvania reinstated the death penalty in 1978, only three men have been put to death, and they all went willingly, by voluntarily waiving appeals. Six people have been exonerated. Since 1985, 29 have died of natural causes. There have been more than 250 reversals. According to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions.
So far, Governor Wolf has granted reprieve to two inmates who were scheduled for execution. The guilt of neither inmate is in doubt, though the case of Terrance Williams is marred by serious questions about the relevance of the allegation that the murder victim had sexually abused his killer.
The moratorium isn’t indefinite; Wolf says he is waiting for the opportunity to review and address a forthcoming report from the Pennsylvania Task Force and Advisory Commission on Capital Punishment. The task force, commissioned by the state Senate back in 2011, initially expected to deliver their report by the end of 2013 but they’ve repeatedly extended the deadline. (The Task Force hopes to issue their forthcoming report by the end of the year.)
Meanwhile, Philadelphia District Attorney Seth Williams filed a lawsuit asking the Supreme Court to rule Wolf’s moratorium a “lawless act.” (It is fascinating and sad that the first black district attorney from Philadelphia is suing a wealthy white man from central Pennsylvania to re-instate a death penalty system that has been repeatedly found to discriminate, specifically, against poor black men from Philadelphia.)
Pennsylvania is the only state in the country that does not fund indigent defense, leaving that problem to each of the state’s 67 counties. Half of all the state’s death row inmates come from Philadelphia, which historically has low funding and high pursuit of the death penalty.
That’s a bad combination made worse by the wheel of fortune spun when a poor person is arrested in Philadelphia. Since 1993, one in five indigent defendants have been represented by the Defender Association of Philadelphia, a non-profit organization under contract with the city. The other four of out five are assigned to a tiny pool of court-appointed lawyers. A 2011 study that analyzed the disparity in sentencing in Philadelphia raised questions about whether current commonly-used methods for providing indigent defense satisfy Sixth Amendment legal tests for effective counsel and Eighth Amendment prohibitions against arbitrariness in punishment.
The study found a significant difference in sentencing depending on representation. Compared to appointed counsel, Defenders Association counsel reduced their clients’ murder conviction rate by 19 percent and lowered the probability that their clients receive a life sentence by 62 percent.Not one of its clients has received the death penalty during the years analyzed in the study.
Advocates say the problem of insufficient funding is exacerbated by a controversial flat fee system, which incentivizes the least amount of work for cases with the most at stake. Until 2012, court-appointed Philadelphia lawyers earned $1,333 if they resolved a case before trial, and a whopping $2,000 if the case went to trial. After the first day of trial, lawyers get $200 for three hours or less of daily court time and $400 for more than three hours. For years—Philadelphia’s previous district attorney was notoriously nicknamed the deadliest D.A. for aggressively seeking death sentences—these lawyers earned what would be the equivalent of $2 an hour, had they prepared the number of hours typical in federal capital trials. “Outrageous,” observed the former director of the Southern Center for Human Rights, “even by southern standards.” The number one reason for reversing convictions in Pennsylvania is ineffective counsel.
In 2011 a former public defender named Marc Bookman, who now runs the Atlantic Center for Capital Representation, an organization that provides training for capital defense teams in Pennsylvania, filed a petition contending the pay was so low that it globally violates the constitutional rights of indigent people to effective counsel. The petition was so unusual no one knew what to do with it, though what it articulated—a connection between Philadelphia’s low pay, aggressive pursuit of the death penalty and high number of ineffective counsel reversals—was hardly surprising.
In response to Bookman’s petition, the Supreme Court held one day of hearings before suspending them, then commissioned another report. Common Pleas Court Judge Benjamin Lerner concluded the system, among other things, was “grossly inadequate” and "unacceptably increases the risk of ineffective assistance of counsel.” He also concluded there is no global fix, and that the constitutionality had to be determined on a case-by-case basis. That would entail, of course, decades more of the ridiculously lengthy appeals process that critics of the moratorium insist should be shortened, to make the death penalty more efficient—for prosecutors, anyway. The pay for appointed counsel was bumped up to a still-meager $10,000 flat fee.
Those who are worst off in Philadelphia are, as always, further stratified by race. A 1998 analysis of racial bias by law professor David Baldus and statistician George Woodworth revealed that black defendants facing capital punishment in Philadelphia have nearly quadruple the odds of receiving the death penalty as white defendants. In fact, the researchers found that being black in Philadelphia functioned as an “extra aggravating factor,” increasing the odds of a defendant receiving a death sentence to the same degree as an aggravating circumstance of “torture” or “grave risk of death.”
A fascinating exchange took place during the recent hearings about this issue when Robert Dunham of the Death Penalty Information Center cited this study in his testimony. After Dunham explained the Baldus study, Rep. Rick Saccone responded, “I don’t get that, being black is not an aggravating circumstance.”
“That’s correct,” said Dunham.
“So it doesn’t apply to the death sentence,” replied Saccone.
“It should not,” said Dunham, explaining that was exactly his point. And so it went on, an unnervingly circuitous conversation about how the system should work versus how it does work until, exasperated, Saccone insisted that Dunham was taking “a very big leap of faith” by believing being black led to an increased chance of being put to death.
Listening to this conversation circle the drain against the backdrop of all the evidence that Pennsylvania’s death penalty—without that all-important forthcoming report even out yet—is broken, it’s hard not to conclude that the largest leap of faith is believing it’s possible to fix Pennsylvania’s capital punishment at all.
In 2012, a young man named Derrick White was sentenced to death in Philadelphia for killing a former local basketball star to prevent him from testifying in another trial. Initially, White’s mother didn’t want her son’s killer to receive the death penalty because, she said, there was too much death in Philadelphia already. But she was at peace with the sentence. “Justice was served,” she said, “and nobody wins.”
Her statement is as profound as her pain is unfathomable. During the recent hearing in Pennsylvania, lawmakers repeatedly conflated execution with justice for victims’ families. The resolution specifically cites the widow of Terrance Williams’ victim, who wrote in response that she was “shocked and upset” that politicians were “using” her for political gain. A year after White’s sentencing, the death penalty was reversed in part because of ineffective counsel.
In 1834, Pennsylvania led the nation in moving public death penalty hangings inside, out of public view. Capital punishment abolitionists opposed the change. They had hoped that Pennsylvanians would eventually call for an end to state executions—if only we could see what was really happening.