by Kevin W. Bliss

In June 2018, a death penalty task force commissioned by Pennsylvania’s General Assembly in 2012 finally released its report. Finding that neither judicial economy nor fairness is served – because 97 percent of all capital cases are converted to lesser sentences after post-conviction judicial review – the task force recommended disqualifying mentally ill prisoners and the intellectually disabled from the death penalty, instituting a process to review the proportionality of capital sentences and creating a state-funded capital defender office.

The last recommendation resulted from a finding that private counsel represented just 20 percent of death row prisoners. The other 80 percent were represented by “indigent defense practitioners,” some of whom “failed to meet professional standards.” Pennsylvania has no statewide office of public defenders, relying instead on each county to maintain its own.

“The public defenders that get worse results are public defender offices in the counties that are not nearly as well resourced and not nearly as well trained,” said Marc Bookman, co-director of the Atlantic Center for Capital Representation.

As a result, the task force noted that capital defendants “receive poor representation, resulting in reversible errors and, in some cases, the risk of convicting an innocent person.”

Since 1978, 150 Pennsylvania prisoners condemned to death have had their sentences overturned due to ineffective counsel. Currently, however, “there’s no real consequence to the defense attorneys if they’re ineffective,” declared Lancaster County District Attorney Craig Stedman.

As of November 2018, Pennsylvania’s death row held 144 prisoners, more than every other state except Alabama, California, Florida and Texas. But only three Pennsylvania prisoners have been executed since the death penalty was re-instated in 1978 – all of whom waived the appeals process.

The most recent was the 1999 execution of Gary Heidnik for killing two women he had held prisoner in his Philadelphia home. The others were both in 1995, when Leon Moser was put to death for murdering his wife and two daughters, and Keith Zettlemoyer was executed for the murder of a friend who had offered to testify against him in a robbery case. The task force report noted that all three “had psychiatric problems.”

Six prisoners formerly on Pennsylvania’s death row have been exonerated since 1978. About three dozen have died while awaiting execution.

When he became governor in 2015, Tom Wolf imposed a moratorium on all death sentences pending results from the Pennsylvania Task Force and Advisory Committee on Capital Punishment. Now that its 280-page report has been released, the governor has indicated the moratorium will remain in effect until the task force’s recommendations are satisfactorily addressed.

The task force drew on the work of the Justice Center for Research at Pennsylvania State University and the Inter-branch Commission on Gender, Racial, and Ethnic Fairness. Its report expressed grave concerns with the way the death penalty is administered, including:

• It costs the state 12 times as much to try capital cases as noncapital homicide cases, much of which is due to required appeals.

• Each death row prisoner costs an extra $15,000 per year to house.

• The race of the homicide victim may be unconstitutionally predictive of a death sentence, with murderers of white victims 14 percent more likely to end up on death row than those whose victims were non-white.

• The drugs utilized by states for lethal injection are difficult to obtain and under Supreme Court scrutiny.

The report also noted that 68 percent of the state’s death row prisoners are black, and thus vastly over-represented given that Pennsylvania’s overall population is just 11 percent black. But in the same way that other factors leave men over-represented on death row compared to women, the study said factors other than unconstitutional racial bias may be to blame.

All of these factors contribute to a system that is “flawed, ineffective, unjust and expensive,” Governor Wolf stated. His Republican challenger for the governor’s office this year, Scott Wagner, countered that the report pointed to a need for swifter justice. Saying the majority of Pennsylvanians favor the death penalty – and that any reduction in its application prioritized “cop killers” over “our children” – Wagner vowed to begin signing death warrants within 48 hours of taking office, if elected.

The fact that most death sentences are later reversed, and six people who once faced execution in Pennsylvania have been exonerated, apparently wasn’t a matter of concern. Wagner lost his gubernatorial bid during the mid-terms in November 2018.

Beyond prosecutorial misconduct, factors involved in cases where capital sentences were overturned included “withholding of evidence, wrongfully striking African American jurors, ineffective lawyering by the defense – many substantive reasons,” explained Bookman, with the Atlantic Center for Capital Representation. He added that if the appeals process were streamlined to save money, “we’re going to be moving closer to executing people who should not be executed.” 

The task force also attempted to assess the psychological costs of death penalty cases, finding that nearly two-thirds of judges, prosecutors, public defenders and victim advocates “indicated that a typical, capital murder case causes more stress or anxiety than a typical, noncapital murder case.” Over two-thirds reported the same result with respect to “emotional stress.”

However, a 2013 study by Pennsylvania State University and the Department of Corrections (DOC) found that a small sample of guards, victims and prisoner’s loved ones indicated “that in no instance was the capital punishment condition associated with statistically higher PTSD, depression or stress.”

During his re-election campaign, Governor Wolf claimed the task force had recommended keeping his moratorium on capital punishment in place. In doing so, he admitted relying on a 2003 state senate report attached to the task force’s report as an appendix. His reelection campaign apologized for that error. The moratorium has led only to reprieves, rather than commutations, of some death sentences.

Politics appeared to play a role in many reactions to the task force report.

“No district attorney takes pleasure in pursuing a death penalty case,” insisted Berks County District Attorney John T. Adams, who heads the Pennsylvania District Attorneys Association – which decried the task force for being composed largely of “anti-death penalty advocates.”

“The taxpayers of Pennsylvania are spending hundreds of millions of dollars for a death penalty system that doesn’t work and hasn’t resulted in an execution in nearly 20 years,” countered Kathleen Lucas, executive director of Pennsylvanians for Alternatives to the Death Penalty, which claimed the report “validated their concerns” about the state’s dysfunctional capital punishment process.

On November 15, 2018, Witness to Innocence, a Philadelphia-based non-profit, held an event that called for abolishing the death penalty in Pennsylvania. The event, held at the National Constitution Center, included 21 former death row prisoners as well as attorneys and celebrated anti-death penalty advocate Sister Helen Prejean.

“The death penalty is cruel and unusual punishment and shouldn’t nobody be allowed to say who lives or dies in America,” said former Ohio death row prisoner Derrick Jamison, 57, who attended the event. Convicted and sentenced to die in 1985, he was exonerated in 2005. 

Sources: www.philly.com, www.pennlive.com, www.mcall.com, Washington Post, www.witf.org

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