GateHouse: Using death penalty as a political prop

Matthew T. Mangino

GateHouse Media

March 2, 2018

Politics at its worst is on full display in Pennsylvania. Not only is State Senator Scott Wagner, a GOP candidate for Governor, shamelessly trying to exploit the school massacre in Parkland, Florida, his proposal to make the death penalty mandatory for school shooters is bunk.

There is no requirement that a candidate for governor be a constitutional scholar, but to go on the stump and tell voters he’s going to do something that he knows, or should know, is unconstitutional — is untenable.

Recently, Wagner spoke to the Pennsylvania Press Club and said he would pursue a mandatory death penalty for any school shooter who kills someone, “if someone kills one of our children, we will kill them.”

The problem is mandatory death sentences have been unconstitutional for decades. Marc Bookman, of the Atlantic Center for Capital Representation in Philadelphia, told The Associated Press that mandatory death sentences have been unconstitutional since 1976 when the U.S. Supreme Court threw out a North Carolina law that imposed a mandatory death sentence for the crime of first-degree murder.

The Court found that justice requires careful consideration of the defendant’s individual characteristics and the nature of the crime, including any evidence that mitigates the defendant’s responsibility.

A mandatory death sentence does not provide for such review and is cruel and unusual punishment and a violation of the Eighth Amendment to the United States Constitution.

In 1987, the U.S. Supreme Court struck down the last remnant of the mandatory death penalty in the United States. The decision dealt with a very specific type of killer, much like Wagner’s proposal.

The High Court struck down a Nevada law that made executions mandatory for murders committed by prisoners who were serving life sentences without the possibility of parole.

Obviously, there was concern that a person sentenced to life without the possibility of parole could kill with impunity. The Court refused to circumvent the requirements of due process for a killer who kills while in prison.

Justice Harry A. Blackmun’s majority opinion said the Eighth Amendment’s prohibition of “cruel and unusual punishment” guarantees to all defendants facing possible death sentences the right “to present any relevant mitigating evidence that could justify a lesser sentence.”

Senator Wagner may not agree with the Supreme Court, but he and the Commonwealth of Pennsylvania have to comply with its directives.

Wagner is pandering to the “law and order” crowd even as support for the death penalty wanes. That’s not surprising. According to Newsweek, President Donald Trump has floated the idea of a mandatory death penalty for drug dealers, even though the Supreme Court has outlawed the death penalty for all crimes but first degree murder.

Less than half of Americans — 49 percent — favor the death penalty for people convicted of murder, according to a 2016 poll by Pew Research.

Nineteen states and the District of Columbia have abolished capital punishment. According to the New York Times, four more states have imposed moratoriums on executions. Not only are executions down, death sentences are down as well. There are 31 states with the death penalty. Only 14 states handed down death sentences last year, for a total of 39 across the country — less than half the number six years ago. California, which issued more than one-quarter of last year’s death sentences, hasn’t executed anyone since 2006.

In Wagner’s Pennsylvania, there has not been an execution since 1999. The state has carried out only three executions since 1976 and all three inmates gave up their appeal rights and volunteered to be executed.

In 2015, U.S. Supreme Court Justice Stephen Breyer noted in a dissent that the decline of the death penalty county by county could one day persuade the court to end it everywhere. However, as long as the death penalty is on the books, politicians will use it to their benefit — whatever the circumstances.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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