[Update: media coverage now includes the Philadelphia Inquirer's Study: Pa. death penalty system greatly flawed and the Pittsburgh Post-Gazette's Study finds major flaws in Pa. death penalty cases]
The American Bar Association’s Pennsylvania Death Penalty Assessment Report was released on the internet this morning with a press conference to follow around 10:30 or so. A quick read through the report reveals an amazingly constructive critique of the problems with Pennsylvania’s death penalty practice, as well as suggestions for judicial and legislative changes that need to be made before the Keystone state’s death chamber resumes activity. The report is perhaps the most well written of the recent ABA reports on the state of the death penalty and is written broadly enough to be relevant well beyond the bounds of the nation’s fourth largest, and perhaps most dysfunctional, death row.
I found notable in the report, and I am still working through it, the group who undertook the study. The group included a well respected trial court judge, an appellate prosecutor who has had to protect hard won death sentences for the Commonwealth, as well as an assortment of high profile litigators and professors. In short, this isn’t the “sandals & candles” crowd throwing stones, but a lawyerly tome respectfully requesting alterations to be made to Pennsylvania’s death penalty before inalterable errors are made.
The report is best summed up in the report itself
Despite the best efforts of the many principled and thoughtful actors who play roles in the criminal justice process in the Commonwealth of Pennsylvania, our research establishes that, at this point in time, Pennsylvania cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed. Basic notions of fairness require that all participants in the criminal justice system ensure that the ultimate penalty of death is reserved for only the very worst offenses and defendants.
The materials from that ABA team includes:
- Executive Summary of the Pennsylvania Death Penalty Report
- Full Pennsylvania Death Penalty Assessment Report
- Pennsylvania Death Penalty Assessment Guide
- Pennsylvania Death Penalty Assesment Team Biographies
- Fact Sheet: Problems with Pennsylvania’s Death Penalty System and Recommendations for Reform
- Compliance Charts: Pennsylvania’s Compliance with ABA Recommendations
- Survey of Pennsylvania Citizens’ Opinions Regarding Death Penalty
- Frequently Asked Questions
Several of the concerns of the ABA’s report leaped out of me as having been a consistent problem in Pennsylvania since the Weekly was launched ten years ago:
- “Inadequate Procedures to Protect the Innocent. … Since the death penalty’s reinstatement, the Commonwealth of Pennsylvania has exonerated at least death-row inmates, including Nicholas Yarris, Neil Ferber, William Nieves, Thomas Kimbell, Jr., and Harold Wilson. Despite these exonerations, the Commonwealth of Pennsylvania has not implemented any policies or procedures that would render the conviction of an innocent. This report is not intended to cover all aspects of Pennsylvania’s capital punishment system and, as a result, it does not address a number of important issues, including for example, cost and deterrence. Although some counties may be in compliance with some or even many of the recommendations contained in this report, the report focused on assessing laws and practices on a statewide basis. Consequently, while the report may highlight county rules and practices, and while individual counties may comply with various recommendations, the Commonwealth of Pennsylvania, as a state, may be in partial compliance or fail to comply with those recommendations. Furthermore, some of the “Areas for Reform” and “Recommendations” found in the Executive Summary may not be pertinent to certain counties.”
- “Failure to Protect Against Poor Defense Lawyering … Pennsylvania law fails to guarantee the appointment of two attorneys at all stages of a capital case and the compensation afforded capital attorneys is inadequate for counsel to meet their obligations under the ABA Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases (ABA Guidelines). Additionally, Pennsylvania lacks a statewide independent appointing authority responsible for training, selecting, and monitoring capital defense attorneys to ensure that competent representation is provided to each capital defendant.”
- “No State Funding of Capital Indigent Defense Services … The Commonwealth of Pennsylvania provides no funding for indigent defense services, opting instead to rely on county-funded indigent defense systems. As a result, Pennsylvania’s capital indigent defense system fails to afford uniform, quality representation to many capital defendants.”
- “Inadequate Access to Experts and Investigators . . . Access to proper expert and investigative resources is crucial in capital cases, but many capital defendants and death-row inmates, including those with mental disabilities, are denied these necessary resources.”
- “Significant Limitations on Post-Conviction Relief … Pennsylvania law imposes numerous restrictions on state post-conviction proceedings that seriously impede the adequate development and judicial consideration of a death-row inmate’s claims. For instance, on a successive post-conviction petition, the petitioner is afforded only sixty days to file the petition. Given that the court will not appoint counsel unless the judge determines that an evidentiary hearing is warranted, the harm of this short time period is exacerbated.”
- “Significant Capital Juror Confusion … Death sentences resulting from juror confusion or mistake are intolerable, yet research establishes that the overwhelming majority of Pennsylvania capital jurors fail to understand their roles and responsibilities when deciding whether to impose a death sentence. Specifically, studies reveal that an astonishing 98.6 percent of Pennsylvania capital jurors failed to understand “at least some” portion of the jury instructions. Of those questioned, 82.8 percent of Pennsylvania capital jurors did not believe “that a life sentence really meant life in prison.” It should be noted that the Criminal Justice Committee of the Interbranch Commission for Gender, Racial, and Ethnic Fairness has undertaken “the development of a system of data collection on death sentences,” but no state law yet mandates the collection of data in death penalty cases. Additionally, 58.7 percent of interviewed capital jurors failed to understand that they could consider any mitigating evidence during the penalty phase of the trial; 68 percent failed to understand that they need not be unanimous in finding the existence of mitigating circumstances; and 32 percent erroneously believed that the defense had to prove mitigating circumstances beyond a reasonable doubt. Similarly, despite the fact that Pennsylvania law expressly prohibits consideration of future dangerousness as an aggravating circumstance, 37 percent of interviewed Pennsylvania capital jurors believed that if they found the defendant to be a future danger to society, they were required by law to impose the death penalty.”
- “Racial and Geographical Disparities in Pennsylvania’s Capital Sentencing … The Pennsylvania Supreme Court’s Committee on Racial and Gender Bias in the Justice System concluded that there existed “strong indications” that Pennsylvania’s death penalty system did not “operate in an evenhanded manner.” Specifically, the Committee found that “although Pennsylvania’s minority population is 11 percent, two-thirds (68 percent) of the inmates on death row are minorities,” and that Pennsylvania was “second only to Louisiana in the percentage of African Americans on death row.” In its final report, the Committee noted that African American defendants in Philadelphia County were sentenced at a “significantly higher rate” than similarly situated non-African American defendants. In fact, the Committee found that one third of the African American death-row inmates in Philadelphia County would have received sentences of life imprisonment if they had not been African American. “
In order to address the problems the report recommends:
(1) To help protect the innocent, the Commonwealth of Pennsylvania should (a) require all law enforcement agencies to videotape the entirety of custodial interrogations or, where videotaping is impractical, audiotape the entirety of the custodial interrogation; (b) implement mandatory lineup procedures, utilizing national best practices that protect against false eyewitness identifications; and (c) mandate that all biological evidence be preserved for as long as the defendant remains incarcerated.
(2) The Commonwealth should establish a statewide clearinghouse to collect data on all death-eligible cases, which, in turn, should be made available to the Pennsylvania Supreme Court for use in conducting meaningful proportionality review and to prosecutors for use in making charging decisions and setting charging guidelines.
(3) The Commonwealth of Pennsylvania should adopt uniform statewide indigent defense standards that conform to the ABA Guidelines, including establishing maximum workloads for capital defense attorneys, mandating the appointment of two attorneys at every stage of a capital case, and establishing minimum rates for attorney compensation. The Commonwealth also should ensure that the salaries of attorneys in the county public defender offices are commensurate with those of the district attorneys’ offices.
(4) The Commonwealth of Pennsylvania should create and vest in one statewide independent appointing authority the responsibility for appointing, training, and monitoring attorneys who represent indigent individuals charged with a capital felony or sentenced to death. The statewide independent appointing authority also should be responsible for monitoring attorney caseloads, providing resources for expert and investigative services, and recruiting qualified attorneys to represent such individuals. The organization should serve as a statewide resource center to assist defense attorneys with capital trials, appeals, post-conviction, and clemency proceedings.
(5) The Commonwealth of Pennsylvania should provide statewide funding for capital indigent defense services.
(6) The Commonwealth of Pennsylvania should ensure that all death-row inmates receive meaningful review in state post-conviction proceedings. At a minimum, the sixty day deadline to file successive petitions should be extended and exceptions should be added to the statute to ensure that petitions asserting claims of innocence and/or serious constitutional deficiencies will be considered by the court.
(7) The Commonwealth of Pennsylvania should redraft its capital jury instructions with the objective of preventing common juror misconceptions that have been identified in the research literature. In addition, the Commonwealth should mandate that all capital juries be instructed on the definition of life imprisonment.
(8) The Commonwealth of Pennsylvania should sponsor a comprehensive study to determine the existence or non-existence of unacceptable disparities, whether racial, socio-economic, geographic, or otherwise, in its death penalty system, and should develop and implement proposals to eliminate any such disparities.
(9) The Commonwealth of Pennsylvania should ensure that the defense has access to sufficient investigative and expert resources to investigate and fully develop its claims, including potential mental retardation and mental disability claims.
With all that said, I am still working through this tome and anticipate having additional insights on the report.