No money for capital defense?

By Marshall Dayan, Assistant Federal Defender — Capital Habeas Unit
Western District of Pennsylvania

Photo from Flickr user M01229.

The death penalty is an unworkable and ineffective criminal justice policy, so it is no surprise that states around the country are abandoning it. In recent years, New York, New Jersey, New Mexico, Illinois, Maryland, Connecticut, and Delaware have either repealed legislatively or struck down judicially their death penalty statutes. In Washington, Oregon, Colorado, and now Pennsylvania, governors have hit the pause button on executions. Here in Pennsylvania, Governor Wolf has indicated that he will grant a reprieve in every case in which a death warrant is signed pending the conclusion and evaluation of a state study on capital punishment.

Surprisingly, Pennsylvania has the fifth largest death row in the United States. Our state’s death row population is exceeded only by those in California, Florida, Texas, and Alabama. District attorneys prosecute dozens of capital cases annually, at an exorbitant financial cost. The Reading Eagle estimated that the death penalty has cost Pennsylvanians $816 million since 1978. That estimate is conservative, since it did not capture all of the costs involved in pursuing a sentence of death. Yet there has not been an execution of a person who did not give up his appeals in Pennsylvania since 1962, and no execution at all since 1999. Why not?

Pennsylvania is one of only two states in the nation (the other being South Dakota) in which no money is spent on capital defense for those who are too poor to afford it on their own. Rather, funding in Pennsylvania is provided on a county by county basis. Beyond providing for a single attorney, trial judges make discretionary decisions about the allocation of resources. National standards recommend and highly encourage a minimum of two lawyers and other experts, as necessary, for a capital defense team. Based upon the circumstances of each case, these might include experts in ballistics, serology, DNA, fingerprints, hair and fiber, to challenge assertions made by the prosecution about the guilt of a particular person accused of murder. These resources are crucial, since 157 death row inmates who have been convicted of murder beyond a reasonable doubt have been exonerated.

Several of those exonerations have occurred in Pennsylvania.

Most importantly, national standards strongly recommend and encourage provision of a mitigation specialist. Usually a licensed social worker, a mitigation specialist is qualified to investigate and prepare a social history of the life of each person charged with a capital offense. This information is used to create and present an individualized educational, socioeconomic, and psychological profile of someone whom a jury might have to decide should live or die. None of these resources are required in Pennsylvania, and none of them are ever provided by state funding. Elected trial judges are motivated to keep the county funding for indigent capital defense to a minimum. In many other states, including Virginia, North Carolina, and even Mississippi, these resources are provided by the state without the interference of elected judges who keep an eye on public opinion.

The real import of the failure of the Commonwealth of Pennsylvania to provide adequate state resources is that, beyond the exonerations, we have had more than 200 reversals of capital cases in the last 40 years. This means that the same cases are being tried repeatedly at significant costs to the taxpayers. These reversals are based on important constitutional legal grounds such as the failure to provide effective assistance of counsel guaranteed by the Sixth Amendment, or by prosecutorial misconduct prohibited by the Due Process Clause of the Fourteenth Amendment, protections guaranteed by the United States Constitution. These are not reversals on technicalities; these are serious flaws in the system.

We can and must do better. Our best option is to follow the lead of our neighbors — West Virginia, Maryland, Delaware, New Jersey, and New York, and abandon capital punishment. Until then, Pennsylvania must provide those charged with and/or convicted of capital crimes sufficient resources to prevent, to the greatest extent humanly possible, wrongful convictions and death sentences, and minimize, if not eradicate, the constitutional flaws that have marked capital prosecutions in our state.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Pennsylvania counties will take part in the Stepping Up Initiative, an initiative that aims to safely reduce the number of people with mental illness in Pa. jails. Photo from The Inquirer.
  • The Daily News: “Rendell, calling DA’s Office ‘in crisis,’ endorses Khan in Democratic primary”

“The Philadelphia District Attorney is ‘obviously in crisis,’ former Gov. Ed Rendell declared Wednesday as he endorsed former federal prosecutor Joe Khan in the Democratic primary election. Rendell, who served as the city’s district attorney from 1978 to 1985, did not mention the current office holder, District Attorney Seth Williams, while standing next to Khan in the Mayor’s Reception Room in City Hall. But the federal indictment filed against Williams two weeks ago, accusing him of accepting bribes in return for official acts and of stealing money meant for the care of his elderly mother, was clearly on his mind. ‘The D.A.’s office absolutely needs someone of unquestioned integrity and someone who is an experienced prosecutor,’ Rendell said, calling the office ‘in need of a new and good district attorney.’”

  • The Inquirer: “Can Pennsylvania find a way out for thousands of mentally ill inmates languishing in county jails?”

“An interagency team is beginning to address the backlog of about 130 people who are in limbo in Philadelphia jails because they have been deemed incompetent to stand trial but are awaiting an open bed at the Norristown State Hospital. Some, typically nonviolent offenders, are now being placed in community-based treatment programs while they await trial, Herdman said. And, as part of the MacArthur collaboration, the city will soon launch an effort to divert people with behavioral-health issues picked up on low-level probation violations into community-based care, said Julie Wertheimer, chief of staff for criminal justice at the Philadelphia Managing Director’s Office. A similar program, diverting people with probation detainers to substance-abuse treatment, is already underway.”

“The officers were wearing body cameras, which are intended to add clarity to controversial moments in policing — including these types of shootings. The problem: The cameras weren’t on. Last Saturday’s shooting was at least the second this year in which body cameras worn by LAPD officers weren’t recording when they fired their guns. Since the department launched its ambitious 7,000-camera deployment in August 2015, there have been at least four shootings in which officers didn’t have their cameras on at the time, according to a Times review of LAPD statements and reports. Those cases underscore a growing predicament as more law enforcement agencies deploy body cameras. While the use of the technology has increased, so have examples in which the cameras weren’t on when they were supposed to be.”

“TASER International (NASDAQ: TASR), the global leader in connected law enforcement technologies, announced today that it is launching a new program to equip every police officer in America with a body camera and changing its name to Axon (NASDAQ: AAXN). It will also provide supporting hardware, software, data storage, training, and support to police departments free of cost for one year. ‘We are going ‘all-in’ to empower police officers to more safely and effectively do their jobs and drive important social change by making body cameras available to every officer in America,’ said Rick Smith, Founder and CEO of Axon. ‘We believe these cameras are more than just tools to protect communities and the officers who serve them. They also hold the potential to change police work as we know it, by seamlessly collecting an impartial record and reducing the need for endless paperwork. That’s why we’re giving this opportunity to every single police officer in America.’”

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