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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