In February 2015, just a month into his term as Pennsylvania’s Governor, Tom Wolf imposed a moratorium on capital punishment in the state, calling it “error prone, expensive and anything but infallible.” [See: PLN, Feb. 2016, p.44].

Afterwards, the Reading Eagle issued a report that pinpointed the largest problem with the state’s death penalty system: poor representation by ineffective attorneys who have histories of discipline for professional misconduct.

The system is “flawed,” said Governor Wolf. “If the Commonwealth of Pennsylvania is going to take the irrevocable step of executing a human being, its capital sentencing system must be infallible.”

As noted by Slate, Pennsylvania’s criminal justice process is indeed flawed – with no law on the books requiring the recording of police interviews and no guidelines for eyewitness identification of suspects, for example. And perhaps most troubling, Pennsylvania is the only state in the nation that does not contribute funding to indigent defense, instead leaving such matters in the hands of often cash-strapped counties.

Such conditions, according to some critics, have resulted in a grave state of injustice – especially where poor defendants facing capital charges are concerned. These criticisms seem to be supported by strong statistical evidence. According to Slate, issues involving ineffective assistance of counsel comprised the majority of the 250 death sentences that have been thrown out in Pennsylvania since 1979.

During his gubernatorial campaign, Wolf promised to issue a moratorium on capital punishment. He said it would remain in effect until he receives a report from a legislative commission that has been studying the death penalty since 2011; the report remained pending in early 2017, three years behind schedule.

“I want to give this joint bipartisan commission on the death penalty the ability to come up with their report,” the governor stated. “Is it cost effective? Are we doing the right thing? Is it fair? Is it effective as a deterrent?”

The moratorium caused an outcry among prosecutors, law enforcement officials and victims’ rights advocates.

“[Governor Wolf] has rejected the decisions of juries that wrestled with the facts and the law before unanimously imposing the death penalty, disregarding a long line of decisions made by Pennsylvania and federal judges, ignored the will of the legislature and ultimately turned his back on the silenced victims of cold-blooded killers,” the Pennsylvania District Attorneys Association said in a statement.

Nevertheless, the moratorium on capital punishment was upheld by the state’s Supreme Court in December 2015. [See: PLN, Nov. 2016, p.20].

According to the findings of the Reading Eagle, what actually occurs during the death penalty process is that mostly poor defendants are denied effective assistance of counsel. The Eagle found that of the people sentenced to death in Pennsylvania since 2005, 18.2 percent were represented by attorneys who had disciplinary records.

In all, 312 capital cases dating back to 1980 were examined. The newspaper determined that 25 percent of the defense attorneys involved in capital cases had a criminal record when assigned to those cases. In 58 percent of the cases examined, the attorneys had racked up a disciplinary record prior to their appointment. And of the defendants assigned an attorney with a disciplinary history, 83 percent were black or Latino.

“Nearly two out of three of the disciplined attorneys had been suspended or disbarred,” the Eagle reported. “Forty-five percent were disciplined multiple times.”

Perhaps most troubling, the Eagle found that one in five defendants had been “appointed attorneys with drug or alcohol addictions, who suffered from depression, have had a history of mishandling clients’ cases, or were convicted felons.”

“People are being represented by the absolute dregs in the profession that nobody with money would hire,” noted Stephen Bright, president and senior counsel for the Southern Center for Human Rights. “You get the death penalty not for committing the worst crimes, but for having the misfortune of being assigned the worst lawyer.”

The Eagle’s review found that in cases where disciplined attorneys represented defendants in capital cases, two-thirds had been “found by Pennsylvania courts to be ineffective in at least one case where a defendant received death.”

The root of the problem is the compensation provided to attorneys who take on capital cases for indigent defendants.

“There is nothing more well-known about Pennsylvania but the fact the state doesn’t pay one cent towards capital defense,” noted Fred Goodman, a public defender in Philadelphia. “Virtually all the counties do it as cheaply as they can possibly do it.”

Previously, attorneys in Philadelphia County received up to $2,000 to prepare and $400 a day if a case went to trial. Now they get $10,000 to prep and the daily rate only if the trial exceeds a week. Vigorous representation of death penalty cases costs over $100,000, attorneys say, and such low compensation impacts the quality of lawyers willing to accept such cases.

“Only the worst lawyers would consider taking these cases on a regular basis because you can’t make a living doing it,” said Marc Bookman, director of the Atlantic Center for Capital Representation. “If you’re poor, you don’t have a choice. They count on the system to give them a qualified, effective lawyer, and they don’t get it.”

In 2011, prior to Philadelphia County increasing the preparation payment in death penalty cases to $10,000, Bookman filed a petition for writ of mandamus that challenged the constitutionality of low rates of indigent defense compensation. In his petition, he noted that the Florida Supreme Court had ruled, in 1986, that a fee of $3,500 for representation in capital cases was indeed unconstitutional.

Nevertheless, in 2014 the Pennsylvania Supreme Court ruled against Bookman, upholding the dismal state of indigent defense.

Then-Philadelphia Common Pleas Court Judge Benjamin Lerner, whom the state Supreme Court had selected to investigate rates of pay for court-appointed counsel, found that attorneys with disciplinary records are typically overbooked in small, sole practitioner offices with few resources.

“To put it bluntly, they run around from case to case and court to court trying to make a living,” he said.

For the courts to work properly, effective counsel must be provided for all parties. An attorney’s failure to fulfill ethical obligations demonstrates incompetence, and given that such lawyers are often appointed to represent poor defendants, there is often a resulting imbalance between the efficacy of prosecution and defense.

“By and large, the failure to fulfill the disciplinary rules is a failure to be a competent lawyer,” said Lawrence Fox, former chairman of the American Bar Association’s Standing Committee of Ethics and Professional Responsibility.

But for indigent defendants facing the death penalty, an incompetent attorney is often their only option.

As of March 2017 there were 173 prisoners on Pennsylvania’s death row; the state has executed three people since 1976. 

Sources: Reading Eagle, www.wtae.com, www.fox43.com, www.slate.com

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