In a legal brief filed
Monday night in support of the petition, Philadelphia D.A. Larry Krasner, who
ran for office promising to never pursue a death sentence, argues
Pennsylvania's death penalty is applied unreliably and arbitrarily,
violating the state constitution's ban on cruel punishment.
To reach its conclusions, the Philadelphia District
Attorney's Office reviewed every case where a Philadelphia defendant
received a death sentence between 1978 and 2017. The study found that 72
percent of those 155 sentences were ultimately overturned—more than half of
them for ineffective legal assistance.
"Where nearly three out of every four death sentences
have been overturned—after years of litigation at significant taxpayer
expense—there can be no confidence that capital punishment has been carefully
reserved for the most culpable defendants, as our Constitution requires,"
the office wrote in its brief. "Where a majority of death sentenced
defendants have been represented by poorly compensated, poorly supported
court-appointed attorneys, there is a significant likelihood that capital
punishment has not been reserved for the 'worst of the worst.'"
The brief was filed in the
case of Jermont Cox and Kevin Marinelli, who were sentenced to death for
three drug-related murders in 1992 and a fatal 1994 shooting, respectively.
Their petition argues that the Pennsylvania Supreme Court should strike down
the state's capital punishment system because of its "pervasive
unreliability" and "systemic dysfunction," citing the scores of
reversed death penalty sentences, as well as six death row exonerations.
Cox and Marinelli's petition has
attracted amici briefs from groups like the Pennsylvania chapter of the
American Civil Liberties Union (ACLU) and the NAACP Legal Defense Fund.
Meanwhile, the Pennsylvania attorney general, the
Philadelphia chapter of the Fraternal Order of Police, and several groups of
Republican state lawmakers filed briefs opposing the petition. But it appears
to be the first time, at least as far as several criminal justice experts can
tell, that a district attorney has argued broadly in court against a state
death penalty.
"There have been individual cases where a particular
defendant challenges the death penalty and a prosecutor who reviews the case on
appeal decides, you know, we can't defend what happened here," says David
Rudovsky, a professor at the University of Pennsylvania Law School. "I
don't know of any case of a broad-scale attack like this on the whole system,
where a prosecutor agreed that the death penalty, at least in application here
in Pennsylvania, is unconstitutional."
Last year, the prosecuting attorney for King County,
Washington, wrote
an op-ed calling on the state to end the death penalty.
Krasner, a former civil rights attorney, was
elected in 2017 and is one of the most high-profile members of a wave
of progressive candidates who have run for prosecutor offices in major cities
in recent years, promising to roll back policies they say contribute to mass
incarceration.
Krasner pledged during his campaign to never seek the death
penalty. That decision, along with others, has led to intense
opposition from police unions and critical
local news coverage.
Although Pennsylvania is one of 30 states where the death
penalty is still on the books, there have only been three executions in the state
since 1978. The last took place in 1999. Four years ago, Pennsylvania
Democratic Gov. Tom Wolf announced a moratorium on the death penalty that still
remains in place.
Nationwide, the use of capital punishment has steadily
declined and become more geographically isolated over the past few
decades. Only a handful of counties in the U.S. are responsible for the
majority of new death penalty sentences. Last year, the Washington Supreme
Court struck
down the state's death penalty "because it is imposed in an
arbitrary and racially biased manner"—much the same argument that Cox and
Marinelli, as well as Krasner, make.
However, the extraordinary cost of death penalty trials and
near non-existence of executions have not stopped Pennsylvania prosecutors from
pursuing capital punishment. A 2016 analysis by the Reading Eagle found that
the state had spent $816 million on the death penalty since 1978.
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