Sunday, May 12, 2019

Pennsylvania’s Death Penalty Is in Peril—We Can, and Must, Do Better

Matthew T. Mangino
The Legal Intelligencer
May 9, 2019
Recently, the Pennsylvania Supreme Court upheld the death sentence of convicted cop killer Eric Frein. The court’s 45-page opinion, written by Justice Debra Todd, found Frein’s conviction was “supported by overwhelming evidence.”
The high court found that the Pennsylvania State Police violated Frein’s Fifth and Sixth Amendment rights by questioning him after he invoked his right to remain silent and his right to an attorney. However, the court found those violations to be harmless and not prejudicial.
The Fifth and Sixth Amendment protections are relevant in any criminal prosecution. The right to counsel and the right to remain silent are fundamental.  A thorough analysis by the court was warranted.
The court also refused to grant Frein a new trial on additional grounds that are more nuanced and specific to the death penalty. First, the court did not believe that the victim impact evidence presented by the prosecution during the penalty phase of the trial was prejudicial. Although the defense presented 29 mitigating factors, the jury found none and therefore a potentially flawed jury instruction had no impact on the verdict.
The court found that Frein ambushed Cpl. Bryon K. Dickson II with “malice and the specific intent to kill,” and his conduct warranted the death penalty. Now Frein will go to Pennsylvania’s death row with little chance of ever being executed.
The death penalty has been around in its modern form for about 43 years. In 1972, the U.S. Supreme Court outlawed the death penalty. The court ruled in Furman v. Georgia, 408 U.S. 238 (1972), that the death penalty was unconstitutional, violating the Eighth Amendment ban against cruel and unusual punishment. Supreme Court Justice Potter Stewart wrote, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”
The decision forced state legislatures to review the death penalty and eliminate the arbitrary, capricious and racially discriminatory aspects of capital punishment. The court suggested that states establish criteria to direct and limit death sentences and provide the sentencing authority with information about the accused’s character and record.
In 1976, the Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976), found that three of five states that amended their death penalty statute—Georgia, Florida and Texas—did conform to the directives of Furman. The death penalty was back.
Since Gregg, there have been 1,495 men and women executed nationwide. Three of those executions took place in Pennsylvania. Keith Zettlemoyer, Leon Moser and Gary M. Heidnik are the only men to have been executed in Pennsylvania since 1976. The last execution in Pennsylvania was carried out on July 6, 1999.
In February 2015, Gov. Tom Wolf announced a moratorium on the death penalty pending a review of the Pennsylvania Task Force and Advisory Commission on Capital Punishment Report, and for purposes of full disclosure I was a member of that task force. At the time, the governor said that the decision was not based on sympathy for the inmates, but out of concern over flaws in the system. He stated that as it stood, the system is an endless cycle of court proceedings, and is ineffective, unjust and expensive.
The report took the advisory commission nearly seven years to complete. The 280-page report found, among other things, that the death penalty is costly, inconsistently applied geographically across the state, and disproportionately impacts people with intellectual disability and mental illness.
Yet, nearly a year after the report and four years after the governor’s moratorium nothing has been done to fix the death penalty. But, there is bipartisan action by Philadelphia Democrat House member Christopher M. Rabb and Lebanon Republican Francis X. Ryan to abolish Pennsylvania’s death penalty.
In a co-sponsored memo Rabb and Ryan assert, “Although Pennsylvania has the country’s fifth highest death row population, currently at 175 inmates, only three executions have occurred in recent decades, and the state has not executed anyone who did not voluntarily give up their appeals in more than 50 years. According to a Reading Eagle analysis, those three executions have cost taxpayers $816 million.”
This comes at a time when support for the death penalty is waning. Twenty states and the District of Columbia have abolished capital punishment. According to the New York Times, four additional states—including Pennsylvania—have imposed moratoriums on executions. Not only are executions down, death sentences are down as well. In 2018, 14 states and the federal government imposed death sentences, more than haif of those 42 death sentences came from four states.
Disdain for the death penalty is not new. In 1994, Justice Harry Blackmun famously said, “From this day forward I no longer shall tinker with the machinery of death.” Blackmun had voted to restore the death penalty and even to approve mandatory death sentences. But after 25 years, he said, “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”
More recently, Supreme Court Justice Stephen G. Breyer wrote in a 2015 dissent—joined by Justice Ruth Bader Ginsburg—in Glossip v. Gross, 576 U.S. ___ (2015), that it was “highly likely that the death penalty violates the Eighth Amendment,” the constitutional ban against cruel and unusual punishment.
Yet, the death penalty continues. A closer look at the current status of capital punishment is revealing. Just 10 states are responsible for about 83 percent of executions since 1976.
Evolving standards of decency in a “mature society,” the analysis used to outlaw the execution of juveniles and those intellectually disabled, have made carrying out of executions increasingly rare nationwide. Last year, there were 25 executions carried out in the United States. All 25 were carried out in only eight states.
So far this year there have been five executions nationwide. There are approximately 2,721 men and women on death row according to the Death Penalty Information Center, an anti-death penalty advocacy group.
If not another person was sentenced to death in this country, at the current rate of executions, it would take 108 years to close the doors on death row. Pennsylvania can, and must, do better.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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