The Legal Intelligencer
March 2, 2023
Pennsylvania Gov. Josh Shapiro has finally done what some recent governors may have contemplated, but never did—call for the end of the death penalty in Pennsylvania.
In June 2018 the Joint State Government Commission,
Task Force and Advisory Committee on Capital Punishment, established under
Senate Resolution 6 of 2011, issued its long-awaited report. I was a member of
the advisory committee that reviewed 17 different aspects of the death
penalty and made eight recommendations to the legislature.
In fact, in 2015, Gov. Tom Wolf announced a moratorium
on the death penalty in Pennsylvania—still in place today—awaiting the outcome
of the task force and advisory commission report. At the time Wolf said in
a statement, “Today’s moratorium will remain in effect until this commission
has produced its recommendation and all concerns are addressed satisfactorily.”
Wolf implemented his unilateral moratorium by granting a temporary reprieve,
not a commutation, each time an execution was scheduled.
After the report, Wolf took no action with regard to
the efficacy of the death penalty or with regard to the death sentences of more
than 100 men and women on Pennsylvania’s death row. All one needs to know about
Pennsylvania’s death penalty is that the commonwealth has executed three men
since the death penalty was reinstated in 1978. All three men volunteered to be
executed—waiving their appeal rights. In fact, Pennsylvania has not carried out
an involuntary execution since 1962.
The state’s most recent execution occurred in 1999,
when Gary Heidnik was put to death for the murders of two women he tortured in
his Philadelphia home. The other two executions were in 1995. Leon Moser killed
his wife and two daughters, and Keith Zettlemoyer killed a “friend” who planned
to testify against Zettlemoyer at his trial for robbery.
The death penalty in Pennsylvania has been around for parts of five centuries. In that time more than a 1,000 people have been executed. Until 1915, those executions were at the hand of the hangman. Between 1915 and 1962 executions in Pennsylvania were conducted by electrocution—the electric chair. In 1991, the method of execution became lethal injection. Through records compiled by the Reading Eagle and the Death Penalty Information Center during the modern era of Pennsylvania’s death penalty—September 1978 through 2022—Pennsylvania courts have sentenced 417 prisoners to death. There are approximately 101 men and women currently on death row, 11 men have been exonerated, well over 30 inmates have died of natural cause or suicide and three have been executed.
Twenty-seven states, including Pennsylvania, still
have capital punishment on the books. The death penalty has been around in its
modern form for about 46 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. U.S. 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.”
That same year, the Pennsylvania Supreme Court decided Commonwealth
v. Bradley, 403 A.2d 842 (Pa. 1972). On Dec. 15, 1967, George Bradley and
two other men entered a bar in Philadelphia with the intent to commit a robbery
and ended up killing the bar owner, Charles Mosicant. Bradley was convicted and
sentence to death. On appeal, the high court ruled the commonwealth’s death
penalty sentencing procedure was unconstitutional. The court cited the U.S.
Supreme Court’s decision in Furman. Pennsylvania’s death row was emptied;
all sentences were judicially reduced to life.
The decisions forced Pennsylvania’s general assembly,
and other state legislatures across the country, to review the death penalty
and eliminate the arbitrary, capricious and racially discriminatory aspects of
capital punishment.
The idea was that the death penalty would be reserved
for the worst of the worst. Before a prosecutor could seek the death penalty
she would have to prove more than an intentional killing. Each state
established aggravating factors that would target the death penalty for the
most dangerous and heinous murderers. The decision also called for bifurcated
trial. A guilt phase and a penalty phase for the jury to decide life or death.
The court in Furman also suggested that states establish procedures
for providing the sentencing court with information about the convicted
murderer’s character and record.
In 1974, the Pennsylvania legislature enacted a new
death penalty statute overriding Pennsylvania Gov. Milton Shapp’s veto. The new
death penalty statute was subsequently found unconstitutional in 1977.
In 1976, the U.S. Supreme Court in Gregg v.
Georgia, 428 U.S. 153 (1976), found that Georgia, Florida and Texas had
enacted new death penalty statutes that were in line with the holding in
Furman. Pennsylvania enacted a new death penalty statute in 1978.
Today, the death penalty seems to be spiraling toward
extinction. In 2022, there were 18 executions nationwide and only 20 new death
sentences meted out across the country. Pennsylvania accounted for one of those
death sentences.
Compare those numbers with 1994 and 1998. In 1994, 328
men and women were sentenced to death nationwide. In 1998, there were 98
executions carried out in the United States. Public opinion polls in 2022
showed support for capital punishment remained near historic lows, even amid
rising perceptions of crime. Gallup’s 2022 Crime Survey, administered between
Oct. 3 and Oct. 20, 2022, reported support for capital punishment held steady
at 55%, one percentage point above the 50-year low of 54% in 2021, reported the
Death Penalty Information Center.
One way to measure the strength of the death penalty
is through a political lens. The death penalty has more to do with political
symbolism, “I’m a tough, law and order guy,” than holding killers accountable
and deterring future murders.
There were three state governor plebiscites in 2022
where a pause in capital punishment was an issue. Those states
were California, Oregon, and, of course, Pennsylvania. In
California Gov. Gavin Newsom, who imposed a moratorium on executions, and
decommissioned the state’s death chamber, easily won re-election. Newly elected
Oregon Gov. Tina Kotek promised to extend the state’s existing moratorium
on executions. Shapiro seeks to take the most radical action—abolish the death
penalty in Pennsylvania.
“The commonwealth shouldn’t be in the business of
putting people to death, period,” Shapiro said. “At its core, for me, this is a
fundamental statement of morality, of what’s right and wrong in my humble
opinion. And I believe as governor that Pennsylvanians must be on the right
side of this issue.”
Shapiro’s position is not the usual political
side-step. He didn’t say the death penalty is racist, or there are too may
exonerations or even that the process is arbitrary—no, Shapiro contends the
death penalty is wrong, state-sponsored death is immoral and Pennsylvania, or
any other state for that matter, should not be in the business of death.
The death penalty has lost its way in the muddled
political rhetoric of 21st century governance and Shapiro is poised to act.
There has not yet been a bill introduced to end the death penalty. Once
legislation is introduced, it will be a battle before it ever reaches the
governor’s desk.
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