Feb. 13 was a red-letter day in Pennsylvania. On that day, newly elected Gov. Thomas Wolf declared a moratorium on executions in the Commonwealth.
It was the first day in 36 years when the State would not be actively engaged in trying to kill one of its own citizens. It was also a day that might mark the beginning of the end for the death penalty in the state from which a new nation was proclaimed.
The United States of America was a beacon to the world in 1776, the first country to proclaim the new concept of human rights. Today, it is the last major Western nation to retain the most barbaric practice of the eighteenth century, capital punishment. And it carries it out in a manner that is arguably more cruel and unusual than anywhere else on earth, where executions — as they did in the 18th century — can require laborious acts of suffocation that may drag on for more than an hour, and inflict a pain all the more terrible for being largely screened from observers.
Eighteen states have now abolished the death penalty, but in reality, federal prosecutions can force it upon the citizens of states that have decided to abolish it whether they like it or not. Such is the case in Massachusetts, where the capital trial in the Boston Marathon bombing has just got underway.
And no state of the Union will be safe from having the moral obscenity of capital punishment inflicted on until it is abolished on the national level as incompatible with constitutional, not to say core human values. That means, given the present makeup of the U.S. Supreme Court, not anytime soon.
The Court had a chance to do this more than 40 years ago in Furman v. Georgia, in which it struck down every one of the 31 state capital statutes in the country, but not the death penalty itself. It came back, the beast apparently dead but without the requisite stake through its heart. And it has claimed some 1,400 lives since.
I have some stake of my own in this. A friend of mine, Terry Williams, is on Pennsylvania’s death row. He was spared execution Oct. 3, 2012, only by the courageous intervention of a Common Pleas judge, Teresa Sarmina. On that day, he came within three hours of the death Pennsylvania has been trying to inflict on him for nearly 30 years.
When Governor Wolf issued his moratorium, there was one person on death row still scheduled for execution among the five under death warrants signed by Wolf’s predecessor, Tom Corbett, as he left office. That was Terry. His execution was to have taken place March 3. Very possibly it would have, although the only witness against him had recanted his testimony, likely at considerable cost to himself. He said that his conscience would not permit him to see a man die who did not deserve to.
I wonder exactly where else conscience is in Pennsylvania’s capital justice system, which can still, of course, churn out death sentences. It was not present in Andrea Foulkes, the prosecutor in Terry’s case who Sarmina wrote suborned and coerced the perjured testimony that convicted Terry, and concealed the evidence that would almost certainly have spared his life. Foulkes, who is not in prison for the crime of attempted murder, pursues her career today as a federal prosecutor.
Conscience is not in Ronald Castille, the recently retired Chief Justice of Pennsylvania’s oft-disgraced Supreme Court, who refused to recuse himself from the appeal of Judge Sarmina’s stay despite the fact that, as Philadelphia’s District Attorney, he had direct supervision of and responsibility for Foulkes. Instead, Castille wrote the stinging decision overturning that stay. It was one of his last acts in office, too.
Castille has recently been approached to run on the Republican ticket for mayor of Philadelphia. He declined, but if he had accepted, he might well be facing the current Democratic frontrunner, Lynne Abraham, another former District Attorney who got so many capital sentences through the death penalty mills of the Philadelphia court system that she earned the sobriquet of “Queen of Death.” That would have been quite a matchup.
Although Pennsylvania is now bordered by several states that have recently abolished the death penalty — New York, New Jersey and Maryland — it has the fifth largest death row in the country, with 186 condemned prisoners at last count. Castille and Abraham may help you understand why. But even they are only the tip of the iceberg.
Nationally, about two-thirds of all death sentences — 67 percent — are overturned on appeal. But nowhere is the reversal rate higher than in Pennsylvania, where 96 percent of such sentences are vacated.
Can I repeat that for you? Ninety-six percent of all death sentences in Pennsylvania are struck down.
Concretely, this means that only seven or eight of the 186 prisoners on the state’s death row “deserve” to be there. Of course, while the state is getting around to deciding this, they are spending 10, 20 or, as in Terry’s case, 30 years in 23-hour-a-day lockdown in a cell four paces by three, and the first thought that will greet them in the morning is that the majesty of the law is determined, as on every other day, to see them dead.
Why is this record so uniquely bad — a record worse than that of Texas or Alabama or Mississippi?
Not long ago, court-appointed defense attorneys were paid a flat rate of $1,500 per capital case. That’s about five hours’ worth of time at a good law firm’s office, although such firms, naturally, do not accept such cases. It’s more now — $10,000, but again a flat rate, and one that is supposed to cover all expenses, such as expert testimony.
It’s obvious, too, as Dan Silverman of the Temple University law school pointed out recently, that the more work an attorney puts in defending his client, the less the hourly rate he earns. A decently defended client’s case will hardly fetch his attorney the minimum wage.
There is one class of attorneys who do exceptional work in Pennsylvania capital cases, and that is the public defenders. Not one person they have defended has been executed in the state. It is understandable why prosecutors would rather not see them in court. They need not worry too often, however.
Thanks to the Pennsylvania Bar Association, they are limited to 20 percent of all capital defenses. The reason for that is simple — the bar wants more work for its lawyers, not the best defense for defendants on trial for their lives. And since every one of
Pennsylvania’s death row inmates is indigent and thus unable to afford the representation that, in the vast majority of cases, would surely spare him, the bar gets business for its own neediest — and, by and large, its least competent.
A lawyer assigned a death penalty case in Pennsylvania need not have any prior experience in capital or even criminal cases. Ambulance chasing is qualification enough.
So, why does the bar association help perpetuate — and profit from — the restrictions it puts on capital representation? I don’t know, but maybe you can ask the next member of it you meet.
Seems like a bit of a conscience deficit here, too.
You may think the death penalty is defensible in principle (I don’t). But there is no conceivable way its practice is defensible in Pennsylvania. And there is no likelihood it ever will be.
It’s time to bring the stake and hammer. It’s time for the death penalty itself to die.
Robert Zaller is a professor of history at Drexel University. He can be contacted at [email protected].