The Pennsylvania Supreme Court on Thursday rejected a petition by two death row inmates to find the state’s death penalty unconstitutional, a request that some advocates had hoped would lead to a historic ruling.
In its one-page order, the court left the door open for individual review of death penalty cases. “Discrete review of properly presented claims will proceed in the individual cases, subject to the jurisdictional limits of the post-conviction courts,” its ruling said.
The Supreme Court case centered on a petition filed by federal defenders in August 2018 on behalf of two inmates, Jermont Cox of Philadelphia and Kevin Marinelli of Northumberland County, but had the potential to affect the approximately 130 others on death row.
Shawn Nolan, chief of the capital habeas unit at the Federal Community Defender Office in Philadelphia, which represents Cox and Marinelli, said in a statement Friday: “We are disappointed that the Pennsylvania Supreme Court declined to hear this important case at this time.
“As noted by the order of the court, we will continue to litigate the unconstitutionality of Pennsylvania’s capital punishment system in individual cases. There is overwhelming evidence that Pennsylvania’s death penalty system is broken — unfair, inaccurate, and unlawful under the constitution of the commonwealth.”
In their petition, the defenders cited the June 2018 Joint State Government Commission report, which found cause for grave concern with the application of the death penalty, in arguing the court should find it violates the state constitution’s ban on cruel punishment.
On Sept. 11, the seven justices heard the appeal arguments in the cases of Cox and Marinelli.
During that hearing, Tim Kane, an assistant federal defender, argued that the death-penalty system is unreliable and thus violates the state constitution’s ban on cruel punishment.
The Philadelphia District Attorney’s Office, which represents the state in Cox’s appeal, also contended that the death penalty, as applied, has been unreliable and is thus unconstitutional.
Paul George, assistant supervisor of the Philadelphia district attorney’s law division, referred to a recent study by his office that found that 112 of 155 death penalty sentences — or 72% — from 40 years through 2017 were overturned. Most were overturned because the defendants had ineffective counsel, he said.
George, like Philadelphia District Attorney Larry Krasner, is a former criminal defense attorney who has opposed the death penalty. Krasner, who took office in January 2018, had campaigned on “never” seeking the death penalty. In practice, the District Attorney’s Office under Krasner has agreed or signaled a willingness to vacate the death penalty for more than one-third of the 45 inmates from Philadelphia on death row in May, an Inquirer analysis showed. Under Krasner and George’s leadership, the office has not asked for the death penalty in any cases that have come up for resentencing.
In a statement Friday, Krasner said: “I am disappointed that the Pennsylvania Supreme Court has declined to address a constitutional issue that is literally a matter of life and death.”
He added: “While political realities indicate that a statutory remedy to the unjust application of the death penalty in Pennsylvania is not imminent, there is growing support for fair and just prosecution in the commonwealth, which includes abolishing capital punishment.”
The Pennsylvania Attorney General’s Office, which represents the state in Marinelli’s case, has taken a different stance from the District Attorney’s Office. Ronald Eisenberg, senior appellate counsel in the Attorney General’s Office, argued before the justices that there was no immediate need for the high court to take up its so-called King’s Bench power to review the matter, and suggested that other avenues exist to address issues regarding lawyers determined to be ineffective in capital cases.
Jacklin Rhoads, a spokesperson for the Attorney General’s Office, said the office had no comment on the court’s order.
The Pennsylvania District Attorneys Association issued a statement Friday afternoon supporting the order.
“The extraordinary relief sought by petitioners was the wrong mechanism for this type of challenge, and it was properly denied,” the statement said. “The appeals process in Pennsylvania exists to ensure this rare punishment is applied properly — and that process will continue to be utilized by individuals sentenced to death. While no prosecutor takes joy in seeking the death penalty, we believe today’s ruling is the right result for the citizens of this commonwealth.”
In the state legislature, Sen. Sharif Street and Rep. Chris Rabb, both Philadelphia Democrats, are among lawmakers who in April announced a plan to introduce legislation to end the state’s death penalty, saying it is unsuccessful as a crime deterrent, costly, and flawed. Sen. Katie Muth, a Democrat who represents parts of Montgomery, Chester, and Berks Counties, is a prime joint sponsor of the proposed Senate bill. Her legislative director, Sonia Kikeri, said Friday that Muth hopes to introduce the bill in the fall session.
Republican Rep. Francis X. Ryan of Lebanon County, who considers himself one of the most conservative members in the state House, is a prime joint sponsor of Rabb’s bipartisan effort. “I do think it needs to be abolished,” Ryan said Friday.
Rabb said in a separate interview that they would plan to introduce their bill “when we have a few more co-sponsors on both sides of the aisle.... We have our work cut out for us if we want to introduce it by the end of this year.” He said they would have until November 2020 to introduce a bill in the current legislative session.
Cox was convicted of three separate drug-related murders in Philadelphia in 1992 and ordered to die for one of them. Marinelli was sentenced to death for a 1994 killing in Northumberland County.
Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978. The last person executed by the state was the Philadelphia basement torture killer Gary Heidnik, in 1999.
Gov. Tom Wolf in 2015 imposed a moratorium on the death penalty in Pennsylvania.
Three other states — California, Colorado, and Oregon — also have a moratorium on the death penalty. Nationwide, 29 states have a death penalty, while 21 have abolished it, according to the Death Penalty Information Center.