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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