The justices are set to hear argument in the consolidated appeals of Cox v. Commonwealth and Marinelli v. Commonwealth starting at 9:30 a.m. Wednesday. The case comes before the justices in an unusual posture, as the justices agreed to hear the case under their extraordinary King’s Bench jurisdiction.
However, a possibly more unusual feature is the fact that the Philadelphia District Attorney’s Office, which is prosecuting the case, is in agreement with the defendant that the death penalty statute is unconstitutional as applied. The prosecutor’s brief, entered in July, garnered significant media attention as it marked what one court observer called an “unprecedented” move of having a prosecutor’s office pushing to have a death-penalty statute struck down.
To support the argument, Philadelphia District Attorney Larry Krasner’s office conducted a review of nearly all capital cases out of Philadelphia between 1978 and 2017, and found it was being applied in a “wonton and freakish, arbitrary and capricious manner,” quoting language from a 1982 Pennsylvania Supreme Court decision. Specifically, the brief cited racial disparities and the high rate of sentences being overturned due to ineffective court-appointed attorneys.
“Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is significant likelihood that capital punishment has not been reserved for the ‘worst of the worst,’” the brief said. “Rather, what our study shows is that, as applied, Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the ‘worst’ (i.e. the most poorly funded and inadequately supported) representation.”
Krasner’s position splits from those presented by other prosecutors, including the Pennsylvania Attorney General’s Office, which said the court should defer to the General Assembly on the issue, and the Pennsylvania District Attorneys Association, which asked the court to reject the constitutional challenge.
Although Chief Justice Thomas Saylor has hinted at possible agreement with Krasner’s position—even saying in 2013 in the Widener Law Journal that the “current state of Pennsylvania’s capital jurisprudence is impaired”—court watchers have questioned how forcefully Saylor and the rest of the court might address an issue that could be seen as the legislature’s prerogative.
Along with the prosecutor and defendants, the Pennsylvania Senate Republican Caucus is also set to present oral arguments in the case as an amicus curiae.
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