On Wednesday morning, a federal defense attorney and a representative of the Philadelphia District Attorney’s Office argued before the Pennsylvania Supreme Court in Cox/Marinelli v. Commonwealth, that the way the death penalty works in Pennsylvania is unconstitutional. They want the court to strike down the death penalty by invoking king’s bench power, which allows the court to rule on cases that have “immediate public importance.”
The crux of the argument is that there are systemic problems with the death penalty that require the court’s intervention. The basis for this argument is largely the 280-page report of the Pennsylvania Joint State Commission about the death penalty that was released last summer after seven years of preparation. The bipartisan commission found that the death penalty was unevenly applied and influenced by race and geography. According to the report, 97% of death-penalty sentences are converted to life or less, often due to ineffective counsel.
In 2015, Gov. Tom Wolf put a moratorium on executions.
The hearing ended with a representative from the Office of Pennsylvania State Senate President Pro Tempore Joe Scarnati (R., Jefferson). Scarnati’s office argued that the goal of the Joint State Commission is to inform legislative decisions, not to be used to invoke king’s bench and bypass the legislature. Further, if the court does move to rule on this, it would disincentivize the legislature from conducting further research that could be used as “handcuffs” against it in the future.
In other words: How dare anyone take a well-researched bipartisan report that was paid for by the taxpayers and, unlike the state Senate, actually do something with it?
The Joint Commission report doesn’t call for abolishing the death penalty -- as this board has in the past. It provides a series of recommendations for the legislature to implement, including a state fund for creating a state-funded capital defender office. Over a year since the report was published, the Senate didn’t even hold a hearing about the death penalty, let alone seriously act on the recommendations.
In the last budget, the legislature did set aside $500,000 for county public defenders offices to apply to reimburse cost of indigent capital defense -- far from the recommended statewide defense office or any systemic change.
This is not the first time the Supreme Court has had to do the Senate’s job. In 2018, only months before the midterm election, the court had to draw a fair congressional district map because the Senate failed to do so. Scarnati then asked the Supreme Court of the United States to strike down that map.
In fact, recent analysis by Spotlight PA, the new investigative newsroom in Harrisburg powered by The Inquirer, found that the number of bills that the General Assembly sent last year to the governor’s desk is half of what it used to send a few decades ago.
Instead of threatening to stop the review of data and conducting research, Scarnati and other senators should start taking their job more seriously and bring legislative solutions to fix broken systems in Pennsylvania. A discussion about fixing, or abolishing, the death penalty would be a good start.