It might surprise most Pennsylvanians that the state has one of the nation’s largest death rows, with well over 100 condemned prisoners. The state’s death penalty has fallen into such disrepair that no executions have been conducted in 20 years. Now, the Pennsylvania Supreme Court is considering whether the system as a whole is unconstitutional.
The court case focuses in part on problems documented in a bipartisan government study issued last year. I was a member of the advisory committee that conducted the study and chaired a subcommittee on procedures in death penalty cases.
From a civil rights point of view, the news is similarly abysmal. Most death row prisoners are African American, and yet African Americans make up only 12% of the state’s population. Poor and mentally ill Pennsylvanians are also highly overrepresented on death row.
Another sign that something is really amiss here is that at least six death row prisoners were ultimately found to be innocent. We would never let a plane off the ground if it were as dangerously error-prone as this state’s death penalty.
Among the many reasons for this sorry situation, one stands out. Our legislators have not stepped up to ensure a fair and effective process for deciding these cases. Pennsylvania is the only state in the country that does not fund a statewide capital defender program or contribute to the costs of representing indigent capital defendants. Each county must fund the defense individually, and most simply cannot afford the price tag. Without adequate representation, Pennsylvania has sentenced numerous defendants to death only to later find that they were severely mentally ill or innocent or intellectually disabled and thus ineligible for a death sentence.
Providing an efficient, accurate, and fair death penalty system would require immense resources and political will. But while much support is needed, little has been found. The problems we identified are not new. They were flagged years ago by the American Bar Association, the RAND Corporation, numerous scholars, and the Pennsylvania Supreme Court itself. Our study recommended many of the same reforms highlighted by these expert observers.
While the legislature has been happy to repeatedly expand the reach of the death penalty, it has shown no appetite to repair the system and address its critical flaws. Even when the Pennsylvania Supreme Court appealed to the legislature for help sorting out a fair process to identify capital defendants with intellectual disabilities, the legislature did nothing. As the chairman of the House Judiciary Committee recently admitted, “There’s a lot that has been talked about regarding criminal justice reform, but [the death penalty] is not one of those front-burner issues.”
Now, however, the death penalty is on the front burner in the Pennsylvania Supreme Court. Lacking the legislative power to fix the problems, the court may have little choice but to dispense with the system as a whole. Our society has rules and norms and at some point a court can no longer ignore a death penalty system that does not conform to them.