HARRISBURG — A little-known case before Pennsylvania’s highest court could strike down the death penalty and block the executions of scores of people on death row.
At the heart of the case before the state Supreme Court is whether Pennsylvania’s death-penalty system is so flawed that it violates the state constitution’s prohibition on cruel punishment. The justices’ decision could affect not just future cases, but also the 142 inmates awaiting execution, potentially forcing the courts to resentence them.
“If the death penalty is abolished, that would have a very real effect on a limited number of cases — which happen to be the most heinous cases,” said Greg Rowe, legislation and policy director for the Pennsylvania District Attorneys Association.
It could also set the stage for another showdown with the Republican-controlled legislature, which just last year accused the Democratic-majority court of trying to set public policy from the bench.
“The essence of the question is … Whose jurisdiction is it?” said Drew Crompton, the top lawyer in the state Senate. He added that there is concern that the court’s action on this matter could “further erode the legislative branch’s powers” to make laws and substantive changes to public policy.
Underpinning its potential impact, the case has bypassed the lower courts and gone straight to the Supreme Court, whose justices are weighing whether to accept it on an emergency basis and whether the state’s death-penalty system is unconstitutional.
Two death-row inmates — Jermont Cox and Kevin Marinelli — are spearheading the effort, arguing that the death penalty has been imposed unevenly and capriciously. Cox was ordered to die for a 1992 Philadelphia murder, Marinelli for a 1994 killing in Northumberland County.
In court papers, attorneys for the pair rely heavily on a 280-page report released last summer that took seven years to complete. That report highlighted troubling discrepancies in how and when the death penalty is imposed, finding that factors other than the merits of a case — things like race, geography, quality of representation — play an outsize role in determining whether someone is sentenced to death.
For instance, it found that defendants in Philadelphia were sentenced to death at higher rates than those in other counties. It also found that defendants in first-degree murder cases — the only ones in which the death penalty can be imposed — were more likely to receive a death sentence if the victim was white. And it noted a significant number of death sentences were later overturned, often because the defendants got inadequate legal representation.
The report, which was ordered up by the legislature, recommended Pennsylvania make sweeping changes throughout the trial and appeals process in hopes of reducing those disparities.
But lawyers for Cox and Marinelli say that such changes, even if they were enacted, would likely have little or no impact on them and others who are currently on death row.
“This result is constitutionally intolerable,” their attorneys, Stuart Lev and Helen Marino of the Federal Community Defender Office, argued in legal briefs submitted to the high court.
Several other organizations, including the NAACP and the American Civil Liberties Union, have filed court papers supporting the two inmates.
The state Attorney General’s Office, which defends state laws when they are challenged in the courts, has not yet weighed in on the case but expects to in the coming weeks.
Cox was convicted in Philadelphia in three separate drug-related murders that occurred in 1992. He was sentenced to death in the killing of one victim — Terrance Stewart — and to life imprisonment in the deaths of the two others, Lawrence Davis and Roosevelt Watson. Philadelphia’s current district attorney, Larry Krasner, who during his 2017 campaign spoke openly about his opposition to the death penalty, is expected to file court papers in the matter this month.
Marinelli was convicted of beating and fatally shooting Conrad Dumchock during a 1994 robbery in Kulpmont, Northumberland County. The current district attorney in that county, Tony Matulewicz, said this month the death penalty was “appropriate” in that case.
Pennsylvania is one of 30 states that has the death penalty, although Democratic Gov. Tom Wolf four years ago announced a temporary halt on executions in one of his first acts as governor. The moratorium still stands.
According to the state Department of Corrections, the death penalty in Pennsylvania dates to the late 1600s, although it was on hold for a period in the 1970s, while courts and state officials wrangled over its constitutionality. The means used to execute people evolved from hangings to the electric chair and then, in 1990, to lethal injection.
Since that time, three men have been executed. Gary Heidnik, convicted of killing of two women he imprisoned in his Philadelphia home, was the last person put to death in the state, in 1999.
In considering the new appeal, the seven-member Supreme Court has options. Among them: The justices could decide it does not merit any action; they could strike down the death penalty entirely; or they could effectively put the death penalty on hold until the legislature makes changes to eradicate disparities.
“If we’re reading tea leaves, the court is sufficiently concerned about the systemic problems in Pennsylvania’s death penalty that they at least want to look at the issue closer,” said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit that tracks capital punishment across the country.
Oral arguments, which could offer hints at the justices’ positions, have not been scheduled in the case.
Whichever direction the court goes is bound to be politically fraught. A 2016 poll by Pennsylvania State University found that a majority of residents still favor the death penalty.
And the state legislature, while ushering in other criminal-justice reforms, has not taken a hard look at the death penalty. Having the high court tell it to do so is sure to rattle some critics in the state Capitol.
“The core issue is abolishment vs. improvement,” said Crompton. “I think abolishing it is going to be a fundamental concern for a lot of people I answer to.”