The Legal Intelligencer
July 19, 2018
Did the commonwealth of Pennsylvania need a
report, six and a half years in the making, to acknowledge that the
state’s death penalty has some problems?
All one needs to know is that Pennsylvania has executed
three men since the death penalty was reinstated in 1978. All three men
volunteered to be executed—waiving their appeal rights. In fact, Pennsylvania
has not carried out an involuntary execution since 1962. In the last 30 years,
approximately 35 inmates have died while waiting for an execution date.
The state’s most recent execution occurred in 1999, when
Gary Heidnik was put to death for the murders of two women he tortured in his
Philadelphia home. The other two executions were in 1995. Leon Moser killed his
wife and two daughters, and Keith Zettlemoyer killed a “friend” who planned to
testify against Zettlemoyer at his trial for robbery.
At the end of June, the long-awaited report, “Capital
Punishment in Pennsylvania,” issued by the Task Force and Advisory
Committee on Capital Punishment through the Joint State Government Commission
was unveiled. The report took on a sense of urgency when Gov. Tom Wolf declared
a moratorium on the death penalty.
The governor could not really shut down the death penalty
but he had the authority pursuant to Article IV, Section 9 of the Pennsylvania
Constitution to grant reprieves and exercise that authority for any reason—or
no reason at all.
Wolf’s announcement suggested that the current system of
capital punishment is “error-prone, expensive and anything but infallible.”
Wolf made it clear that executions would not resume until he had an opportunity
to review the report.
The Task Force and Advisory Committee chose not to directly
address the governor’s action or, more appropriately, his inaction. However, as
a member of the advisory committee I acknowledge that the death penalty needs
to be overhauled or abolished.
Senate Resolution No. 6 of 2011 charged the Task Force and
Advisory Committee with addressing 17 specific issues regarding capital
punishment and making recommendations for reform.
After our initial conference, the advisory committee divided
into subcommittees on impact, policy and procedure.
The subcommittee on impact developed the material in the
report on cost, impact on and services for family members, secondary trauma,
length and conditions of confinement on death row and public opinion. The
subcommittee on policy developed the material on bias and unfairness,
proportionality, mental illness, penological intent and alternatives. The
subcommittee on procedure developed the material on mental retardation, juries,
state appeals and postconviction, clemency, innocence, counsel and lethal
injection.
The advisory committee was to have completed its findings
and recommendations by the end of 2013. However the collection of data
prolonged the release of the report. The work of the committee was important
and the painstaking collection and analysis of data was essential to making
sound recommendations to the Senate. The committee chose thoroughness over
expediency.
A thumbnail sketch of some of the committee’s
recommendations provides some insight into the state of the death penalty in
Pennsylvania.
The committee recommends that Pennsylvania enact legislation
to provide for routine and systematic collection of data for proportionality
reviews that can reveal unfair, arbitrary or discriminatory variability in
pursuing the death penalty.
The committee proposed amending statutory aggravating and
mitigating circumstances to reduce any significant difference in the crimes of
those selected for the punishment of death as opposed to those who receive life
in prison. Pursuant to 42 Pa.C.S.A. 9711, there are currently 18 legislatively
established aggravating circumstances on the books in Pennsylvania.
The Rules of Criminal Procedure should be amended to require
a judge to determine mental retardation or intellectual disability at the
pretrial stage. Currently in Pennsylvania a jury determines post-trial if the
defendant is intellectually disabled.
The committee suggests that pretrial determination of
intellectual disability would save a significant amount of money and many days
of court time because the case would not proceed as a death penalty case.
The committee also addressed mental illness and the death
penalty. A recommendation proposes relief for a defendant who is not legally
insane but is suffering from mental illness. The committee suggests extending a
version of guilty but mentally ill as a bar to imposition of the death penalty
based on a defendant’s mental disorder significantly impairing the defendant’s
exercise of rational judgment or conformance to legal requirements.
The committee also acknowledged concern with jury instructions,
suggesting standard jury instructions be rewritten by attorneys and judges with
the assistance of linguists, social scientists and psychologists, as well as
data disclosing the misunderstanding and misapplication of current jury
instructions.
Pennsylvania is the only state that contributes nothing for
indigent defense. All public defender services are funded locally with counties
carrying the full burden of indigent defense costs. The subcommittee on
procedure called for the creation of a statewide capital defender office funded
by the commonwealth rather than having indigent capital defendants represented
by county public defender offices.
In addition, the committee recommends that the lethal
injection protocol be public rather than confidential. Although, the
constitutionality of lethal injection, as with all forms of execution, has
consistently been upheld by the U.S. Supreme Court, the shortage of drugs used
in executions has generated an endless flow of litigation. The committee
suggests the use of an appropriate and effective execution drug that executes
humanely and is selected through qualified professional experts.
The report comes at a time when support for the death
penalty is waning. 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, additional
states—including Pennsylvania—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.
“The committee that issued the report was largely comprised
of anti-death penalty advocates, and it appears that its findings restate the
usual litany of opinions held by death penalty opponents,” said Richard Long,
executive director of the Pennsylvania District Attorneys Association, in a
Pittsburgh Post-Gazette article.
The response is not a surprise. When Gov. Wolf announced his
de facto moratorium the Pennsylvania District Attorney’s Association response
was, “He has rejected the decisions of juries that wrestled with the facts and
the law before unanimously imposing the death penalty, disregarded 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 death penalty in Pennsylvania and nationwide is at a
crossroad. Although about 3,000 men and women sit on death row nationwide,
there have only been 83 executions carried out in the last four years. It is
time for comprehensive reform that will result in carrying out executions in
Pennsylvania—or, absent reform, the abolition of the death penalty.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George. He is a member of the Task Force and Advisory
Committee on Capital Punishment. 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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