Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Why Does Pennsylvania Have the Death Penalty? Still Asking

Dr. Robert Zaller,
Professor of History, Drexel University

March 6, my colleague Julia Hall and I moderated a symposium at Drexel's law school to address the question of Pennsylvania's death penalty. It pulled together a distinguished panel from all sides of the question, including Bruce Castor, the former Montgomery County district attorney who has successfully prosecuted several capital cases; Professor Jules Epstein of Widener, who represents a number of death row defendants; Stewart Greenleaf, the long-serving chair of the Pennsylvania State Senate Judiciary Committee; Ellen Greenlee, the chief defender of the Philadelphia Defenders Association, which has never had a client sentenced to death; Judge Renee Cardwell Hughes, who tries exclusively capital cases for the Philadelphia Court of Common Pleas and has pronounced three capital sentences from her bench; Lisette McCormick, author of the 2003 report on capital punishment in the Commonwealth commissioned by the State Supreme Court; and Ed Martone, who successfully led the campaign to abolish the death penalty in our neighbor state of New Jersey.

Some of these panelists are philosophically opposed to the death penalty; some are not. None of them, I think it is fair to say, is happy with the way capital justice is administered in Pennsylvania today.

Consider the terms of the crap-shoot that Pennsylvania justice represents. Our death penalty statute lists 18 so-called aggravating factors in a homicide, any one of which can trigger a capital charge, and some of which are big enough to drive a truck through. Against this there are only eight mitigating factors (childhood abuse, mental disability or incapacity, etc.) available to the defense in trying to persuade a jury not to elect death. The state prosecutes cases out of taxpayer money (though each county must pay its own costs, meaning that the richer your jurisdiction is, the more you can go for the expensive option of death); the typical capital defendant is indigent and must be provided with a court-appointed attorney, not necessarily trained or experienced in capital cases at all and paid as little as $3,000-$5,000 per case: the equivalent of bottom-of-the-barrel ambulance-chasing rates.

You'd think district attorneys, at least, would love this setup. Not so, said Bruce Castor. Death penalty cases are far and away the most expensive for the state to prosecute, and 68 percent of them are reversed on appeal — meaning, the state has wasted its money two-thirds of the time. Many of these reversals are due to incompetence of counsel, which is of course the predictable result of a system that courts ambulance chasers. Castor says that his greatest fear in court was not that he would mismanage his case, but that his opposing counsel would — that killers deserving of death would escape the needle not because their lawyers were good, but because they were sloppy, unprepared or simply ignorant of the law.

From a defendant's point of view, of course, a bad lawyer could get him unjustly convicted of murder in the first place. Six factually innocent prisoners have been exonerated in Pennsylvania under its current capital statute. How many there may be among the state's current 224 death row inmates, no one knows.

Renee Hughes freely acknowledges her reputation as a no-nonsense, law-and-order judge who, as she told us, has no compunction whatever about putting violent offenders behind bars. She hates the death penalty, though, even as she administers it. Trying a capital case is a nightmare, beginning with jury selection, where it can take a pool of 300 to produce a jury of 12. If a guilty verdict comes in, a second trial is required to determine whether death or life imprisonment is to be imposed. That's life without the possibility of parole — LWOP in legal parlance — although, capital jurors are not instructed that parole is statutorily forbidden in such cases (another quirk of the Pennsylvania system), so that many of them vote for death in the mistaken fear that otherwise a killer may someday walk the streets again.

Capital cases are uniquely expensive; in Maryland, studies showed that it cost $1.9 million more to execute a prisoner than to house him for life. Pennsylvania has never had such a study, but the typical experience around the country is that execution is three times more expensive than life. Some people don't mind the cost, particularly if it falls on some other county's taxpayers, but Judge Hughes, as a Philadelphia resident, was very vocal on the subject. More than 40 percent of Pennsylvania's death row inmates are from Philadelphia, thanks in large part to the prosecutorial zeal of District Attorney Lynne Abraham. The money that soaks up (Abraham refuses to disclose her budget for capital cases) not only takes away from social and educational programs that might reduce crime, but will make it more difficult, she says, to send her own son to college. "That's my money," Judge Hughes said emphatically, "and I most certainly do care!"

Sen. Greenleaf likewise began his career as a law and order advocate in a district attorney's office. He voted for the current death penalty statute as a member of the legislature, fully convinced of its importance in the prosecutor's arsenal. Now, having held his own hearings and watched the system in practice for more than a quarter of a century, he isn't so sure. He's deeply troubled, too, by the general rise in incarceration, which over that period, as he points out, has increased by 450 percent against a state population increase of only 3 percent.

I wasn't surprised to hear Professor Epstein and Defender Greenlee raise objections to the death penalty. They represent capital defendants and death row inmates, and they know firsthand how the system stacks the deck for death, from the statute itself to the disparity in resources between prosecution and defense, and the selection process for juries that not only excludes opponents of the death penalty but virtually ensures that those who survive it will include the most hard-bitten customers. What did impress me was hearing a legislator who voted for the statute, a district attorney who'd put men on death row with it and a judge whose job is to pronounce the sentence of death all agree in one way or another that the process is agonizing, wasteful and seriously out of whack. Their anecdotal experience, accumulated over many years in the trenches, is sobering and impressive; the research of Lisette McCormick, which culminated in a recommendation for a statewide moratorium on the death penalty, is equally so.

Ed Martone had the panel's last word. When New Jersey abolished the death penalty in 2007, it had only 15 death row inmates against Pennsylvania's 224; yet, Martone says his state, despite its reputation, is hardly a liberal one. Nor did he and his colleagues achieve abolition by changing public or legislative opinion about the death penalty itself. "We didn't change the mind of a single person in the legislature about capital punishment," he said. What did impress the legislators was the fact that all 21 of New Jersey's county prosecutors — the state's equivalent of Pennsylvania's district attorneys — supported repeal. The prosecutors weren't death penalty opponents either; most believed devoutly in it. But they begged for relief from capital prosecution, which so beggared them of personnel and resources that they could hardly perform their other law enforcement duties.

Maybe that's how the death penalty dinosaur will die — not because of any moral revulsion against executions, but because the animal eats all the grass. Congress and the courts have repeatedly tried to streamline the capital process, but it's so error-prone as it stands that the only sure result has been to increase the likelihood of executing the innocent. The fact is that the process would have to become far more expensive, and even more protracted, to achieve even a semblance of equity.

You can have executions or you can have justice, but, it seems, you can't have both. Pennsylvania will have to make its choice.

This article was originally published in The Triangle, 3/13/2009, under the title, "Death penalty expensive, unjust." Link:

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login