There hasn’t been an execution in two decades, even before Gov. Tom Wolf imposed a moratorium on them in 2015. The courts have long scrutinized death sentences, throwing out scores of them at appeal. And juries have become more hesitant to impose the state’s ultimate punishment. A long-awaited legislative study recently called for a host of reforms.
But a surprising factor is quietly contributing to the death penalty’s decline in Pennsylvania: Prosecutors are increasingly reluctant to pursue capital murder charges, given the high financial cost and lengthy legal battles they guarantee, and the improbability the sentences will ultimately be carried out.
In 2004, 40 percent of murder convictions in Pennsylvania started as death-penalty cases, according to a review of state data by The Morning Call. By 2017, that number had dropped more than threefold, to 12 percent of murder convictions, the lowest rate in 14 years.
“We are scrutinizing these decisions much more than ever before,” said Berks County District Attorney John T. Adams, the immediate past president of the Pennsylvania District Attorneys Association. “All of us are very cognizant of the fact that there’s a lot that we as prosecutors are asked to do as far as seeking the death penalty.”
The Morning Call’s figures offer a first accounting of the waning frequency with which the state’s 67 elected district attorneys pursue capital punishment, data that state government does not track. For its analysis, the newspaper reviewed 4,184 murder convictions in Pennsylvania from 2004 to 2017, using docket sheets, appellate court records and local media accounts to determine whether they were ever listed as capital cases.
The cases were identified through the Pennsylvania Commission on Sentencing, which provided every first-, second- and third-degree murder conviction reported to it by each county during the time period. That was supplemented with other murder cases identified through archived media reports, plus a smaller database of cases kept by the Atlantic Center for Capital Representation, a Philadelphia nonprofit that has tracked death-penalty prosecutions since 2011.
Pennsylvania limits the death penalty to cases of first-degree murder with at least one of 18 aggravating circumstances — for instance, the death of a police officer, a killing during a robbery, or a shooting that places others in grave risk of death. The Morning Call’s statistics focused on the beginning of those prosecutions and not the end: whether they resulted in plea bargains that avoided the death penalty, jury verdicts that rejected it, or death sentences, as was the case for 56 people sent to death row over the 14 years. The review did not account for cases that ended in acquittals, or convictions for lesser charges such as manslaughter.
The findings showed that in 2004, there were 309 murder convictions statewide, of which 123 started as death-penalty prosecutions. In 2017, there were 271 murder convictions, of which 33 saw the filing of capital charges.
The downward trend held generally year to year, though there were occasional bumps. It was driven by Philadelphia, which has long dominated Pennsylvania’s death-penalty cases, but was also seen in the rest of the state, though some individual counties such as Bucks, Chester and Lancaster saw little or no change.
And the numbers should only fall further in the coming years, amid the tenure of Philadelphia District Attorney Larry Krasner, a self-described progressive who took office in 2018 vowing to never pursue the death penalty.
Critics of capital punishment say it is costly, mistake-prone and unnecessary, especially considering the state’s other sentence for first-degree murder: life in prison without parole. They say the decline in prosecutions reflects a national trend against the death penalty, which six states have abolished in the past decade.
Source: Pennsylvania Commission on Sentencing data, Pennsylvania court records and the Atlantic Center for Capital Representation. (Jesse Musto/The Morning Call)
But to one North Catasauqua woman whose family experienced murder in its worst forms, life in prison is not enough for some crimes. Susan Stahler is the aunt of Denise Merhi, one of four people butchered in 2010 in a Northampton home by Michael Eric Ballard, who is on death row. Ballard was on parole for a prior murder when he killed Merhi, his ex-girlfriend, along with her father, her grandfather and a neighbor who tried to help.
“You can say what you want about the death penalty,” Stahler said. “But until you have a loved one murdered, you can’t share your honest opinion."
In the death-penalty debate, there’s a divide over who is responsible for Pennsylvania’s impasse. Supporters of capital punishment blame an arduous appeals process, activist judges and what they characterize as overzealous tactics by anti-death-penalty lawyers.
“What do you do with a defendant who intentionally targets and assassinates police officers?” the Pennsylvania District Attorneys Association wrote in July in defense of the death penalty. “What do you do with a defendant who kills a grandmother and suffocates a baby in a suitcase for a few dollars? What do you do with a brutal serial killer that terrorizes communities?”
Greg Rowe, the association’s interim executive director, said prosecutors recognize the stakes are high with the death penalty, and that their decisions to seek it must reflect that.
“These cases are the exception, and they’re reserved for those small number of cases where the ultimate punishment is appropriate,” Rowe said.
In the 14 years analyzed by The Morning Call, 59 counties had at least one death-penalty prosecution. The statistics showed just how prevalent such cases have traditionally been in Pennsylvania: Across those years, one quarter of murder convictions originated as capital cases — 1,109 cases in total — even with the numbers in decline.
In 2004, half of Philadelphia’s murder convictions were at some point listed as capital cases, 69 of 134 cases. In 2017, that figure was 15 percent, representing 16 of 106 cases.
Outside of Philadelphia, 54 of 175 convictions in 2004 had death-penalty notices, or 31 percent. In 2017, the number was 10 percent, with 17 cases out of 165 murder convictions.
The downswing corresponds with a drop in the number of death sentences imposed by juries each year, according to state Corrections Department data. From 2004 to 2008, more than five convicted murderers a year were sent to death row on average. In the past five years, there were less than two a year.
Death sentences are falling across the nation, said Robert Dunham, a former federal public defender in Pennsylvania who now heads the Death Penalty Information Center, a Washington, D.C., nonprofit.
“Pennsylvania reflects that pattern,” Dunham said. “What we’re seeing is that prosecutors have realized these cases are likely to not result in a death sentence.”
Lehigh Valley cases
Declines in capital prosecutions were seen in Allegheny County, which includes Pittsburgh, and Montgomery, which is the state’s third largest county. Capital notices fell even in some counties that aggressively pursue the death penalty — including Lehigh and Northampton counties.
Lehigh County had 144 murder convictions in the 14 years, of which 60 involved death-penalty prosecutions. Of those capital cases, six out of 10 occurred in the first seven years analysed by The Morning Call — 36 cases in 2004-2010, versus 24 in 2011-2017.
Lehigh County District Attorney Jim Martin said any decline was driven by the facts of each case, and not the climate surrounding capital punishment. In that time, his office won one death verdict, when Junius Burno was sent to death row in 2007 for murdering two men in Allentown during a botched robbery.
If there is the presence of an aggravating circumstance, his office seeks — or “notices” — the death penalty, Martin said.
“If there isn’t, we don’t,” he added. “Every case is different and the fact that there are fewer doesn’t mean there’s been a change in philosophy necessarily.”
While it is harder to get a capital verdict than in the past, Martin said, “that doesn’t lessen my obligation as district attorney to look at the facts and look at the law and decide whether to seek it.”
Of Lehigh County’s death penalty cases, just over half — 31 — were resolved through plea agreements to third-degree murder, a lesser homicide charge that carries the prospect of parole. Three other cases ended in third-degree murder verdicts at trial.
Defense attorneys have long complained that prosecutors use the death penalty as a club to cudgel plea bargains. A typical sentence in the Lehigh County third-degree murder cases was 20 to 40 years in prison and the lowest was for eight to 16 years, for an accomplice who testified against his co-defendants.
Martin noted the challenges his office faces prosecuting street crime in Allentown amid reluctant witnesses and the rise of gangs.
“I’m not denying that it gives us leverage,” Martin said of the death penalty. “But I am denying that we notice it to give us that leverage.”
In Northampton County, there were 60 murder convictions in the 14 years; in 26 of those cases, prosecutors pursued the death penalty. Of those, 16 fell in 2004-2010, compared to 10 in 2011-2017.
But the last decade also marked one in which District Attorney John Morganelli won the county’s first two death sentences in a generation. In 2011, a jury sentenced Ballard, the Northampton mass murderer, to death. A year later, George Hitcho Jr. was sent to death row for shooting Freemansburg police officer Robert A. Lasso in the back of the head during a police call.
Like Martin, Morganelli said his approach to the death penalty hasn’t changed, and that he continues to believe in it, even with executions at a standstill.
“We’re realistic that it is not going to happen,” Morganelli said. “But if we have a clear death-penalty case — a police officer or whatnot — we’re going to pursue it.”
Pennsylvania has executed just three men in the modern era of capital punishment, and all three were volunteers who dropped legal challenges to their sentences in the 1990s. The last time an inmate was put to death against his will was in 1962.
But the death penalty has still carried a cost for taxpayers, with added expenses that begin before the cases go to trial and continue after the condemned are sentenced. Defense expenditures topped $143,000 in Northampton County’s most recent capital murder trial. Death row’s high security carries an increased corrections bill of $15,000 a year per inmate, according to a recent estimate by the state.
Northampton County has three pending capital cases that have yet to go to trial. Lehigh County also has three.
In Berks County, there are no pending death penalty cases. Adams, who became district attorney there in 2008, said he has become increasingly reluctant to seek it, despite success in winning those verdicts: There have been two in his tenure, plus a third in Berks County that was prosecuted by the state attorney general’s office.
Berks County had 127 murder convictions in the years The Morning Call analyzed, with aggravating circumstances filed in 22 of the cases. But among the convictions from 2011-2017, there were just five capital cases.
Adams points to the resources it takes to bring a death penalty case to trial, given the extensive investigations that defense teams must do. Because of that, capital trials are often delayed months or years, even as witnesses begin to go on with their lives, he said.
Adams also highlighted what he called the almost “overwhelming” amount of work it takes to uphold a death sentence at appeal, amid a stringent court process that can stretch decades.
“Prosecutors are only seeking it for the worst of the worst,” Adams said, adding that, “prosecutors throughout the state are scrutinizing the decision to seek it — much, much more.”
Amid that, the governor’s moratorium remains in effect, with little movement in the Legislature to take up capital punishment.
Wolf tied his decision to a Senate-commissioned report on the death penalty, a long-delayed study that was released in June after seven years of preparation. The report offered a raft of potential reforms, including calls for a state-funded capital defender’s office, and more protections to prevent the execution of the mentally ill and intellectually disabled.
Wolf will continue blocking executions until the death penalty’s problems are corrected, said J.J. Abbott, a spokesman for the governor.
“He looks forward to working with the General Assembly on their plans to address the report and its recommendations for legislative changes, all of which he believes should be debated and considered,” Abbott said in a prepared statement.
Whether there is momentum to take up the death penalty — either to repeal it or to fix it with an eye to resuming executions — remains unclear.
State Rep. Rob Kauffman, the chairman of the House Judiciary Committee, said he is open to re-examining capital punishment, considering its cost to taxpayers and the lack of executions. But he said it just isn’t a big topic in Harrisburg.
“There’s a lot that has been talked about regarding criminal justice reform, but this is not one of those front-burner issues,” said Kauffman, R-Franklin.
In the meantime, the number of inmates on death row continues to fall, as do the number of new death sentences.
In 2018, juries added only one killer to death row in Pennsylvania.
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