Philadelphia D.A. Asks Court to Declare Death Penalty System Unconstitutional

Larry Krasner says the punishment is ‘really about poverty’ and race.

Philadelphia District Attorney Larry Krasner—who vowed as a candidate not to seek the death penalty—has asked the Pennsylvania Supreme Court to declare that the sentence, as applied, violates the state’s Constitution.

“Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,” states a brief filed by Krasner’s office tonight in the case Jermont Cox v. Commonwealth of Pennsylvania.

“It really is not about the worst offenders,” Krasner told The Appeal. “It really is about poverty. It really is about race.”

The new brief is part of a broader push that started last August, when lawyers representing Cox and another death row prisoner, Kevin Marinelli, asked the state Supreme Court to weigh in on Pennsylvania’s use of the death penalty.

“Pennsylvania administers a system of capital punishment that is replete with error, a national outlier in its design, and a mirror for the inequities and prejudices that plague American society,” lawyers for Cox and Marinelli wrote to the court in February.

Several organizations, including Juvenile Law Center, the ACLU of Pennsylvania, and NAACP Legal Defense & Educational Fund, as well as murder victims’ family members, and former prosecutors and judges filed amicus briefs in support of Cox and Marinelli.

As part of the brief, Krasner’s challenge includes new research into 155 death convictions that occurred from 1978 to 2017 in Philadelphia.

Philadelphia courts have sentenced more people to death than any other jurisdiction in the state, according to the brief, many of whom were poor people of color. Out of the 45 people currently on death row from Philadelphia, 37 are Black, and four are from other “minority groups,” according to the brief.

Out of the 45 people currently on death row from Philadelphia, 37 are Black.

In addition to racial disparities, the DA’s study found that 72 percent of Philadelphia’s death cases had been overturned, often due to inadequate representation. Almost half of the death penalty sentences—74 out of 155—were overturned in part because of ineffective assistance of counsel. Sixty-two percent of those currently on death row were represented by someone found to be ineffective in another capital case, according to the DA’s brief.

“These were people too poor to afford their attorneys,” Krasner told The Appeal. “These attorneys did a dismal job.”

Similar trends exist at the state level. Over the last three decades, roughly half of death row prisoners were Black although the state is less than 12 percent Black, and nearly half of death sentences were overturned, according to a report published last year by the Joint State Government Commission of the Pennsylvania General Assembly. Statewide, convictions or sentences have been overturned for 150 people on death row because of ineffective assistance of counsel, as of May 2018, the commission found.

“Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the ‘worst’ (i.e., the most poorly funded and inadequately supported) representation,” according to the DA’s brief.

On the campaign trail, Krasner, a former civil rights attorney, often spoke of his opposition to capital punishment, declaring in a video that he would never seek the death penalty. Though his language has become more nuanced since taking office last year, he has not pursued new death penalty sentences and has moved to reverse existing ones. Krasner’s office “has taken steps or signaled a willingness to overturn more than one-third of the death sentences,” according to an analysis by the Philadelphia Inquirer in May.

Krasner’s decision to file the Cox brief comes at a time when progressive prosecutors seeking to emulate his rise to power have been elected in cities across the country. Many will no doubt watch this case for signs of how far they, too, can push reform.

To consider the case, the Pennsylvania Supreme Court would need to invoke unusual powers reserved for matters of great public importance, either through what’s known as King’s Bench jurisdiction or through extraordinary jurisdiction. In December, the court consolidated the Cox and Marinelli cases.

Attorney General Josh Shapiro has expressed support for the death penalty for “the most heinous of crimes.” Both Cox and Marinelli were sentenced to death for homicides. Shapiro’s office has argued that the state Supreme Court should deny their latest appeal.

In its brief Monday, Shapiro’s office said it was not the role of the courts to set policy. “In our constitutional system it is the legislature which best discerns and represents the will of a sovereign people,” the brief states.

In an amicus brief, more than a dozen state senators similarly argued that the case would represent judicial overreach. “The present matter, if accepted by the Court, stands to directly impede the Senators’ ability to perform their legislative function in matters involving the death penalty in Pennsylvania, which is a matter of significant public policy concern for the General Assembly,” they wrote.

This isn’t the first time state legislators have sought to rein in reform. Just weeks ago, the state legislature passed a bill known as Act 58 that was seen by many as a direct assault by Republican lawmakers on Krasner’s authority. The law grants Shapiro, who was endorsed by the Fraternal Order of Police, concurrent jurisdiction over certain gun offenses in Philadelphia for the next two years, meaning that if Krasner chooses not to prosecute a weapons offense, the attorney general still could.

According to Shapiro’s office, he had supported the idea of concurrent jurisdiction statewide as a way to address gun crime, but didn’t advocate for Act 58. After a public outcry, he said he would not usurp Krasner’s authority and would support a repeal of the law.

It’s unclear whether Krasner’s authority could be similarly undermined in death-eligible cases. In May, a federal judge requested that the state attorney general submit an amicus brief to determine whether the district attorney’s actions in another death case were “proper,” after the DA decided to no longer contest the prisoner’s appeal of his sentence.

Executions in Pennsylvania are rare. Since the state enacted its death penalty statute in 1978, three people have been killed. They all had psychiatric problems, according to the commission’s report, and had waived their appeals.

In 2015, Governor Tom Wolf declared a moratorium on executions. But, that has not stopped district attorneys from seeking the death penalty, courts from imposing it, and prosecutors from defending it on appeal in cases like Cox’s.

The death penalty is used as a tool for extracting pleas.Quinn Cozzens, Abolitionist Law Center

The mere existence of the punishment, even if rarely enforced, can corrupt the already problematic plea bargaining process, said Quinn Cozzens, an attorney with the Pennsylvania-based Abolitionist Law Center. “The death penalty is used as a tool for extracting pleas,” he said. “They’re able to hang that over the heads of defendants.”

He also raised concerns about how people on death row are held. “They’re spending years and, in most cases, decades in solitary confinement, suffering the many harms that solitary confinement is widely recognized to inflict on people who are subjected to those conditions,” he said.

Last year, the Abolitionist Law Center, along with the ACLU of Pennsylvania and the ACLU National Prison Project, filed a class action suit—in which Cox is a named plaintiff—arguing that death row prisoners in the state are held in “permanent, degrading, and inhumane solitary confinement.” According to the complaint, as of January 2018, Cox had been in solitary confinement for 23 years.

The findings in Krasner’s study mirror the ACLU’s recent analysis of those sentenced to die during Los Angeles District Attorney Jackie Lacey’s tenure. California Governor Gavin Newsom announced a moratorium on executions in March, but Lacey has said her office will continue to seek the sentence.

All of the 22 people sentenced to death under Lacey are people of color, according to the report, which was released in June. Eight were represented by attorneys who were charged with misconduct; of those, attorneys in five cases were later suspended or disbarred.

Despite the moratorium, most DAs in California will continue to pursue death penalty prosecutions, according to the Los Angeles County’s Association of Deputy District Attorneys. One exception is San Francisco District Attorney George Gascón, who is considering challenging Lacey in the 2020 election. Gascón has never sought the sentence during his eight years in office, according to his spokesperson, Max Szabo. “The death penalty is morally dubious at best and it’s time to end it,” Gascón said in a statement after Newsom announced the moratorium.

In recent years, district attorneys have been elected in several jurisdictions, including Durham, North Carolina and Denver, who also said they would not seek the death penalty.

Death penalty convictions and executions have been declining, said Cassandra Stubbs, director of the ACLU Capital Punishment Project and the author of the Lacey study, noting that in 2018, no counties sent more than two people to death row, and only five counties in the country did that. Twenty-one states and the District of Columbia have abolished the death penalty, and four states have a moratorium in place, according to the Death Penalty Information Center.

“There’s no question that the justice trend line is moving toward abolition in this country,” Stubbs said. “The question is how fast we’re going to get there.”