Rarely used, Pennsylvania's death penalty remains a headache on both sides of the debate

Death-penalty opponents held a candlelight vigil in Fort Indiantown Gap, Pa., to protest Keith Zettlemoyer's execution in 1995 - the state's first since it reinstituted the death penalty.
Death-penalty opponents held a candlelight vigil in Fort Indiantown Gap, Pa., to protest Keith Zettlemoyer's execution in 1995 - the state's first since it reinstituted the death penalty. (JOHN S. ZEEDICK / Associated Press)
Posted: May 15, 2011

Year after year, polls show that about 60 percent of U.S. citizens support executing people convicted of murder.

Until those citizens become jurors.

An Inquirer analysis of almost 2,000 Pennsylvania homicide cases filed between Jan. 1, 2007, and Feb. 3 shows that just 3 percent of first-degree murder cases - the only charge for which capital punishment is possible - that went to a jury ended with the jury's choosing death.

A third of all first-degree murder cases ended with a sentence of life in prison with no chance of parole, the remainder with guilty verdicts on lesser degrees of homicide, guilty pleas, acquittals, or dismissal of charges.

For the eight people with the dubious distinction of being condemned by Pennsylvania juries since 2007, it's more likely they will die of old age than the injection of chemicals that is now the state's method of execution.

Just three people have been executed since Pennsylvania reinstituted capital punishment in 1978 - two in 1995, the last in 1999 - and only because all three ended appeals and asked for death.

For the other 215 awaiting execution, there is life on death row - solitary confinement 23 hours a day in special units at four state prisons, some for as long as 27 years - a sentence some inmates have called "death on the installment plan."

Pennsylvania's execution stalemate hides a debate that continues in the state's legislative and legal communities.

Proponents complain that capital punishment, unused, mocks survivors of murder victims, condemning them to follow appeals for decades while waiting for a convicted killer to be executed.

Opponents say the death penalty is inhumane, is often wrongly and unfairly applied, deters no one, and caters to vengeance. A life sentence with no chance of parole - the law in Pennsylvania when a jury cannot agree on a death sentence - is just as effective.

And that is how Pennsylvanians vote when they get the chance as jurors deciding the fate of a fellow human.

Last year, just three Pennsylvanians were sentenced to death: one from Philadelphia, one from Lycoming County, one from York County.

State prison rolls list 211 men and four women awaiting execution - the fourth-largest condemned population among 35 states with the death penalty. New Jersey abolished capital punishment in 2007.

Convicted police killer Mumia Abu-Jamal - now 57 and on death row since May 25, 1983 - is often cited to illustrate the absurdity of Pennsylvania's death penalty. But there is also fellow Philadelphian Henry P. Fahy, 53, who has been there since Nov. 2, 1983, convicted of the rape-murder of a 12-year-old girl.

Yet considering the controversy the death penalty stirs, data on the subject are hard to come by in Pennsylvania.

Although prosecutors must file a court notice when they intend to seek the death penalty, Pennsylvania's court system does not keep statistics on when the 67 county prosecutors do so. Neither do the Pennsylvania District Attorneys Association and the Philadelphia District Attorney's Office.

"We've been looking for that kind of information for years," said Robert B. Dunham, an assistant federal defender in Harrisburg who has long handled appeals of indigent people facing execution.

Dunham, lawyers in the homicide unit of the Defender Association of Philadelphia, and local death-penalty consultant Marc Bookman have been left to glean their own anecdotal data based on what defense lawyers tell them and media accounts.

At The Inquirer's request, the Administrative Office of Pennsylvania Courts supplied a computer spreadsheet of all cases from Jan. 1, 2007 - when the Supreme Court implemented uniform reporting rules for all counties - through Feb. 3, 2011.

The 362 pages of data list 1,975 cases originating in 56 Pennsylvania counties where a person was accused of causing the death of another.

From this list, 639 cases from 41 counties were culled because first-degree murder - a premeditated, malicious killing - was charged, the only crime for which death may be the punishment.

Among first-degree murder cases, 231 ended in a guilty verdict and a life sentence. In only eight cases did the jury opt for death by lethal injection.

For a condemned person, the jury's words are just the beginning, the first step in three levels of appeal guaranteed under the U.S. Constitution and federal and state law.

In Pennsylvania, any death sentence is automatically appealed to the state Supreme Court. Then there is a secondary state appeal, known as a PCRA (Post-Conviction Relief Act), which may challenge the effectiveness of the defense lawyer and the quality of the defense case. A final federal appeal, known as habeas corpus, raises purported violations of basic constitutional rights during the process.

But appeals move slowly, and any number of legal skirmishes - lawyers' responses and counterresponses, questions from judges, changes in law - can slow it more.

Many politicians, and citizens who elect them, call the appeals process frivolous and dilatory, and some defense lawyers certainly do their best to prolong a client's life.

But often appeals uncover fundamental problems or unfairness with the trial that yielded a death sentence.

Dunham, the federal defender, noted that of 222 death sentences reversed since 1978 - the year Pennsylvania reinstituted capital punishment - 124 were for ineffective defense attorneys.

Many of those cases are reappearing in county courtrooms for new trials or sentencing hearings - and often result in a guilty plea to a lesser grade of homicide.

In many cases involving indigents, there is not enough money to investigate and document so-called mitigating factors that could persuade a jury to choose a life sentence.

That was the impetus behind a petition filed last month in Philadelphia Common Pleas Court by Bookman, a veteran former public defender who last year formed a legal consulting firm, the Atlantic Center for Capital Representation.

Joined by the lawyers for three Philadelphia men awaiting trial and facing a possible death sentence, Bookman contends in his petition that the money Philadelphia pays court-appointed lawyers with indigent clients in capital cases makes it impossible for them to mount an effective defense. The lawyers get a flat fee of $2,000 to prepare a death-penalty case, the lowest among all state counties, according to Bookman's petition.

The cost to taxpayers, say legal experts, is enormous.

The Death Penalty Information Center in Washington estimates a death sentence costs up to three times as much as imprisoning an inmate for life at high security.

But like most things involving the death penalty in Pennsylvania, data about the cost of prosecuting, defending, and appealing death penalty cases are not collected.

The situation seems to have swayed even a longtime death-penalty proponent: Ed Rendell, who saw 17 people sentenced to death from 1978 to 1986, when he was Philadelphia's district attorney. Today, all 17 are still alive, locked in cells nearly round the clock on death row.

So on Jan. 14, his last official day as governor, Rendell challenged the legislature: Make the death penalty more efficient, or abolish it.

Having signed 119 death warrants during his two terms in Harrisburg, Rendell said capital punishment loses any deterrence when 15 to 25 years can pass between sentence and execution.

To street criminals, he said, "our death penalty is simply not a reality."

Expediting capital punishment in Pennsylvania would not be easy, but Rendell's parting shot started a conversation in the legislature.

At least one bill to abolish the death penalty and several others to expand or modify the grounds prosecutors use to seek death have been filed.

State Sen. Stewart J. Greenleaf (R., Montgomery), chairman and longtime member of the Judiciary Committee, has introduced a resolution to create a bipartisan commission to find financial and statistical data to prove whether the death penalty is worth keeping.

Yet that debate may ignore the larger reality: Juries, not just in Pennsylvania but nationwide, seem increasingly reluctant to sentence people to death.

The one Philadelphian sentenced to death in 2010 was Laquaille Bryant, now 29, whom a Common Pleas Court jury condemned in the 2008 contract killings of Chante Wright, 23, a protected witness and Bryant's childhood friend, and Octavia Green, also 23, a friend of Wright's who happened to be present.

Arguably more notable were cases in which juries spared killers' lives:

Mustafa Ali, convicted of killing two Loomis security guards in 2007 as they serviced an ATM in Northeast Philadelphia.

Eric DeShann Floyd and Levon T. Warner, convicted in the 2008 killing of Police Sgt. Stephen Liczbinski, shot while chasing them from a Port Richmond bank robbery.

Rasheed Scrugs, convicted of killing Officer John Pawlowski in a 2009 standoff at Broad Street and Olney Avenue.

"Justice is not served," Kimmy Pawlowski said in November after a city jury spared her husband's killer. "They should throw out the death penalty."

Bookman said he believed jurors were starting to accept two facts: Executing an innocent person can happen, and a life term in Pennsylvania means life without parole.

"We've seen so many mistakes over the years," Bookman said, referring to DNA testing and other advances.

National polls have consistently found that about 61 percent of respondents say they support the death penalty for people convicted of murder.

But the support falls off sharply when respondents are asked to choose between death or life in prison with no chance of parole.

Another reason, say defense attorneys, is that juries never get to hear mitigating evidence about a killer's life and background until the trial's penalty phase.

Deputy District Attorney Edward McCann, a city homicide prosecutor for more than 25 years, said he thought "there is still significant support for capital punishment."

Nevertheless, McCann said he believed his office now sought death in far fewer cases - well below 10 percent of the 300 to 400 murder cases seen each year.

And, he added, that's proper: "It should be reserved for those crimes where you have strong evidence and the defendant is the worst of the worst. I think it should be difficult."


Contact staff writer Joseph A. Slobodzian at 215-854-2985 or jslobodzian@phillynews.com.

 

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