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July 16, 2019

Philly DA argues, based on study of local capital cases, that "death penalty, as it has been applied, violates the Pennsylvania Constitution"

As reported in this local article, headlined "DA Krasner wants Pa. Supreme Court to strike down state’s death penalty and declare it unconstitutional," a notable local prosecutor has filed a notable state court brief that surely could have national consequences.  Here are the basics:

In a response to a death penalty case that could have far-reaching ramifications, the Philadelphia District Attorney’s Office is asking the Pennsylvania Supreme Court to strike down the state’s death penalty and declare it unconstitutional.  “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,” District Attorney Larry Krasner’s office wrote in a motion filed with the court Monday night....

The DA’s Office was responding to a petition filed by federal public defenders representing Philadelphia death-row inmate Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.  The defense attorneys, who also represent a Northumberland County inmate, Kevin Marinelli, sentenced to death for a 1994 killing, have asked the high court to end capital punishment, arguing that the death penalty violates the state Constitution’s ban on cruel punishment.

Krasner’s office agrees with that assessment.  The office’s position does not come as a surprise — Krasner had campaigned against the death penalty while running for district attorney in 2017, saying he would “never seek the death penalty” — but Monday night’s motion in the Cox case is the first time Krasner has articulated it to the state’s highest court....

The justices’ eventual decision on Cox and Marinelli could affect not just future death-penalty cases, but also the approximately 130 other inmates awaiting execution, potentially forcing the courts to resentence them.  After a June 2018 bipartisan legislative Joint State Government Commission report found troubling deficiencies in the state’s death-penalty system, Philadelphia-based federal defenders in August filed separate petitions for Cox and Marinelli, asking the state high court to find the death penalty unconstitutional.

The defense attorneys asked the high court to invoke its King’s Bench authority, which gives the court the power to consider any case without waiting for lower courts’ rulings when it sees the need to address an issue of immediate public importance.  The court consolidated the two cases in December.  In its February joint petition for Cox and Marinelli, the federal defenders asked the high court to “strike down the Commonwealth’s capital punishment system as a prohibited cruel punishment” and heavily relied on the joint commission’s report in finding problems with the death penalty....

The DA’s Office response to the defense petition was initially expected in March.  City prosecutors three times requested a deadline extension.  The high court then set a July 15 deadline. The court has set a Sept. 11 hearing date for oral arguments on the petition from Cox and Marinelli....  

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed was Gary Heidnik of Philadelphia in 1999.

The full brief from DA Larry Krasner's office is available at this link, and it is a must-read in part because it makes much of the office's own study of Philadelphia capital cases. Here are a few paragraphs from the the brief's introduction:

To assess whether Pennsylvania’s capital sentencing regime ensures the heightened reliability in capital cases required by our Constitution, there is no better place to start than Philadelphia — the jurisdiction that has sought and secured more death sentences than any other county in the state.  In order to formulate its position in this case, the Philadelphia District Attorney’s Office (DAO) studied the 155 cases where a Philadelphia defendant received a death sentence between 1978 and December 31, 2017.

As will be detailed below, the DAO study revealed troubling information regarding the validity of the trials and the quality of representation received by capitally charged Philadelphia defendants — particularly those indigent defendants who were represented by under-compensated, inadequately-supported court-appointed trial counsel (as distinguished from attorneys with the Defender Association of Philadelphia).  Our study also revealed equally troubling data regarding the race of the Philadelphia defendants currently on death row; nearly all of them are black.  Most of these individuals were also represented by court-appointed counsel, often by one of the very attorneys whom a reviewing court has deemed ineffective in at least one other capital case....

Where nearly three out of every four death sentences have been overturned— after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires. 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.” 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....

As this Court observed in Zettlemoyer, our 1978 statute attempted to establish a reliable, non-arbitrary system of capital punishment. Decades of data from Philadelphia demonstrates that, in its application, the system has operated in such a way that it cannot survive our Constitution’s ban on cruel punishment. Accordingly, the DAO respectfully requests this Court to exercise its King’s Bench or extraordinary jurisdiction and hold that the death penalty, as it has been applied, violates the Pennsylvania Constitution.

Some additional good discussion of this brief and its context can be found in discussions at The Appeal and Reason.

July 16, 2019 at 09:54 AM | Permalink

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