By Naomi Creason
The Sentinel
CASLISLE, Pa. — The death penalty is a tool prosecutors use to punish those who commit the most grievous crimes against society.
Some officials and associations, however, believe that not enough is being done to ensure those on death row actually committed the crimes or deserve the punishment of death.
Through studies and reviews of Pennsylvania’s death penalty system, some have found lacking and underfunded defenses as well as strong racial biases where black defendants were committed to death row more often and for the same crimes as white defendants.
For some, though, the death penalty is an important tool in the criminal process.
Death penalty
The potential for a death penalty starts with a homicide and a prosecutor’s determination of whether that can be prosecuted as a first-, second- or third-degree murder.
Cumberland County District Attorney David Freed said if he and his office believe it is a strong first-degree murder case, then he has to determine if there are “aggravating circumstances” that meet the standards for a death penalty case.
Some potential circumstances include a history of violence, killing during the commission of a felony, or killing a child or elderly person, Freed said.
If any of those circumstances fit, then it’s up to the prosecutor to decide if it should be a capital case that could result in the defendant’s execution.
In his career of almost 20 years as a prosecutor, Freed said he has been involved in 30 homicide cases. In those that have fallen in the last 10 years, Freed has more often than not made the decision himself in whether to seek the death penalty.
He explained that his office will initially file a criminal homicide charge without detailing what degree or murder they intend on seeking. With some time, he will then determine the degree and aggravating circumstances to be ready at the formal arraignment in the case.
Not every prosecutor will opt for the death penalty, and Death Penalty Information Center Executive Director Robert Dunham said there aren’t many district attorneys who consider it, even in states that allow it.
“The DA always has discretion,” Dunham said, noting that studies show that only a small percentage of counties end up seeking the death penalty, which then increases the rate for an entire state.
Carlisle defense attorney and former prosecutor Jay Abom said he’s also seen less of an interest in pursuing a death penalty.
“I think prosecutors in my opinion are much more judicious in applying the death penalty case,” he said. “Anecdotally, its seems like it’s being sought less frequently. Maybe they want to reserve (the sentence) for those who deserve it. And that may change over time.”
“...I am willing to consider the development of mitigating evidence at any time during the proceedings,” Freed said in an email. “I am confident that I make the decision to file aggravating circumstances after appropriate deliberation and only in the most egregious cases.”
Freed noted that though cases involving the death of an infant — often in shaken baby cases — it’s difficult to prove intent even with aggravating circumstances, so cases like that of Justin Thompson often aren’t pursued as capital case options. In that particular case, Freed said the district attorney’s office revised its decision and did not pursue the death penalty. Thompson was later found guilty by a jury of third-degree murder.
Thompson, 36, of South Middleton Township, was charged after the September 2011 death of his 5-week-old daughter. Aggravating circumstances were initially filed in this case, but they were repealed before the trial this past February. A jury convicted him of third-degree murder, and he was sentenced to 16 to 40 years in prison.
When a death sentence is sought, a jury must decide both the guilt of the defendant in the trial and the sentence in the penalty phase if the defendant is convicted of first-degree murder. The jury would then decide if the defendant should be sentenced to life in prison or death row.
After that trial in the county, an inmate then has the right to file an appeal. If that fails, the inmate can file post-conviction relief. If the ruling is not overturned at that stage either, the inmate can then go through the federal review of habeas corpus.
Problems
Defenders and organizations argue that there are numerous ways in this process where an innocent person can be convicted, and that the system is generally bogged down in the state, costing taxpayers millions.
The American Bar Association conducted a Pennsylvania Death Penalty Assessment report in October 2007 and noted recently that what it found then are still problems today.
“Over the course of the past 30 years, the American Bar Association has become increasingly concerned that capital jurisdictions too often provide neither fairness nor accuracy in the administration of the death penalty,” the association wrote in the report.
The report said many of Pennsylvania’s shortcomings were “substantial.”
Among the issues the association took with the state’s death penalty system were inadequate procedures to protect the innocent, the state’s refusal to fund indigent capital cases, lack of collective data in the state, significant juror confusion and a racial bias. The report said Pennsylvania did not mandate the preservation of biological (DNA) evidence for as long as the defendant remains incarcerated, it did not provide state funding for capital indigent defense services, and it did not collect data on capital cases to ensure proportionality in charging or sentencing.
Two of the biggest faults it found in the system were juror confusion and racial bias. The report said 82.8 percent of capital case jurors did not believe that “a life sentence really meant life in prison.” The jurors said they thought a defendant could get parole if they were sentenced to life during the penalty phase of a capital case, which is not the case.
The report also said 68 percent thought they needed to be unanimous in finding the existence of mitigating circumstances, and 58.7 percent failed to understand they could consider mitigating circumstances during the penalty phase of the case.
The report found racial bias was also an issue in capital cases, saying there were “strong indications” that the death penalty system did not operate in an “evenhanded manner.” The committee analyzing the system found that one-third of the black death-row inmates in Philadelphia County would have received sentences of life imprisonment if they had not been black.
Freed argued that this report, and a similar one from the Pennsylvania Joint State Government Commission, are biased with staunch opponents to the death penalty and defense attorneys making up those committee boards.
“The last (joint commission) report hasn’t resulted in any legislative action,” he said.
Freed said the system has gotten better in training public defenders to appropriately defend capital case defendants, and the system allows for highly trained court-appointed attorneys to pick up a case if a public defender cannot. He noted that local attorneys have proven themselves more than capable over the years in defending their clients.
He also noted that the association’s take on a racial bias has not come up in Cumberland County. He noted that of the four inmates on death row from sentences in the county, two are black and two are white.
“We haven’t seen the racial disparity here,” he said.
Appeals process
Dunham said a concern for him is the way Pennsylvania issues death warrants.
Dunham explained that a 1994 piece of legislation required death warrants to be issued “during times it will not be carried out.” The death warrants, which would signify the impending execution of an inmate, are issued before certain stages in the appeals process — the post-conviction relief and habeas corpus review.
A case going to either stage would cause the death warrant to be stayed, and the execution date canceled.
“At both stages, it’s clear the death warrant serves no legitimate purpose,” he said. “The defendant will not be executed.”
From 1978 when the death penalty in Pennsylvania was re-established on through the Corbett administration, Dunham said governors have signed 433 death warrants. “Of those 433 death warrants, all but three were stayed or reprieved. Only three times were (the death warrants) carried out, and they were mentally ill defendants (who dropped their appeals).”
In a publication on death penalty stewardship that he wrote in 2013, Pennsylvania Supreme Court Chief Justice Thomas Saylor of Camp Hill said that in 2013, 74 percent of prisoners on death row in the state have been there for more than 10 years.
Freed agreed that there is a problem with the “bottleneck” of cases tied up in the appeals process, and that should be the question addressed in the discussion about the death penalty and reform.
Solutions
The American Bar Association in 2007 called for a nationwide moratorium on executions until serious flaws in the system are identified and eliminated.
Gov. Tom Wolf instituted such a moratorium shortly after taking office this year, and Freed has been vocal in his opposition to Wolf’s moratorium, saying it was not in the governor’s purview to make such a decision.
“It’s the law of the commonwealth of Pennsylvania,” he said. “He’s tied it to the Joint (State Government) Commission report, which is stacked with anti-death penalty (advocates). … This is open-ended and outside of the law.”
Wolf’s moratorium is in front of the state Supreme Court, and until a decision is made — which judges said would not be immediate — the moratorium in Pennsylvania will stay in effect.
In addition to a moratorium, the bar association in its 2007 report recommended some things that Pennsylvania could do to make the system better and less likely to execute an innocent person.
Among the recommendations were a requirement for “innocence protection” that included evidence preservation and videotaped interrogations, a statewide data collection on all death-eligible cases, a state authority in charge of training and monitoring defense attorneys, state funding for capital indigent defense, clearer jury instructions and a comprehensive study about racial disparities in the system.
Dunham said that report has done little to change how the Pennsylvania death penalty system works.
“The fact is studies have shown in Pennsylvania that problems are long existent and haven’t been addressed,” he said.
Freed said he gives credit to those who take a stance in the death penalty debate, regardless of what side they take, but he noted that any changes to the system need to be met with considerations on how it would affect the judicial process.
“I have nothing but respect for those who have a very strong opinion against the death penalty,” he said. “It’s hard to argue there isn’t a problem (with the system). What I want is to get (solutions) out there based in reality, not just conventional wisdom.”