King’s Bench and the Constitutionality of Capital Punishment

Cox v. Commonwealth, 102 EM 2018; Marinelli v. Commonwealth, 103 EM 2018 (King’s Bench)

Death row prisoners, whose convictions and sentences were affirmed by the Pennsylvania Supreme Court on direct appeal, petitioned to invoke the Supreme Court’s King’s Bench jurisdiction to consider whether Pennsylvania’s capital punishment system imposes cruel punishment under Article I, Section 13 of the Pennsylvania Constitution. The Supreme Court directed that petitioners and respondents (the District Attorney of Philadelphia and the Attorney General) brief both the propriety of the Court assuming King’s Bench jurisdiction and the merits of the death penalty issue. Numerous interested parties, including the NAACP and Juvenile Law Center, have filed amicus briefs.

While, the Eighth Amendment to the United States Constitution bars only punishments that are both “cruel and unusual,” Article I, Section 13 of the Pennsylvania Constitution bars the Commonwealth from inflicting “cruel punishments,” without qualification. Pa. Const. art. I, § 13.

Petitioners argue that the Court should grant King’s Bench review and declare the death penalty unconstitutional under Section 13, thereby giving “independent force to Section 13 in considering the cruelty of capital punishment as administered in Pennsylvania.” Petitioners’ Brief at 15.

First, petitioners argue that Pennsylvania’s system of capital thereby unreliable, and thus constitutes “cruel punishment” in violation of Section 13. “In the past four decades,” they argue, “hundreds of death sentences have been declared unconstitutional and six death row prisoners have been exonerated, while only three prisoners have been executed.” The high error rate, they assert, “is directly attributable to the Commonwealth’s failure to provide adequate resources for indigent capital defense and the recurring problem of prosecutorial error in capital cases.” Id. at 15-16.

Second, petitioners argue that by imposing death sentences according to arbitrary circumstances, the Pennsylvania death penalty system likewise violates Section 13. Citing a 2018 Joint State Government Commission (JSGC) report, they point out that “the sentencing statute’s aggravating factors are too numerous and broad,” and “prosecutors and jurors lack sufficient guidance in exercising discretion under the statute.” They also argue that the Supreme Court’s review of death sentences has become significantly less strict since 1978, with the result that the present 131 death row inmates in Pennsylvania “represent, not the worst of the worst, but the product of a broken system where geography, race, mental illness, and poverty best predict who is sentenced to death.” Id. at 16.

Third, petitioners argue that the death penalty lacks penological justification because it does not “measurably serve the principles of deterrence or retribution,” and death sentences are not imposed pursuant to any public necessity, as Section 13 requires. Id.

Respondent Philadelphia District Attorney (PDA) supports the relief requested by petitioners, based on its own study of the 155 cases where a Philadelphia defendant received a death sentence between 1978 and December 31, 2017 (DAO study). As PDA explains:

[The DAO] study reveals that the majority (72%) of Philadelphia death sentences have been overturned, most commonly because under-funded, inadequately supported court-appointed counsel failed to prepare a constitutionally acceptable mitigation presentation. Most of those overturned cases have resulted in final, non-capital dispositions, often with the agreement of the same prosecutor’s office that originally sought death. This results in a system that lacks reliability. Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments.

PDA Brief at 24. Further, the PDA points out that there is an obvious and troubling “connection between indigence, the quality of representation, and the [largely minority] racial composition of Philadelphia’s death row.” Id.

The core of the PDA brief seeks to establish that the Pennsylvania Constitution prohibits the unreliable and arbitrary imposition of the death penalty, and that the DAO study supports the conclusion that the death penalty has been imposed in an unreliable and arbitrary manner.

The PDA closes with arguments that the Court should prohibit the imposition of the death penalty independently of the United States Constitution, and should do so in the context of this King’s Bench proceeding.

Respondent Attorney General (OAG) opposes grant of King’s Bench consideration of the petition, and of the grant of the merits relief requested in it, arguing that the only “record” basis for it is the JSGC report, that its findings have never been tested, and that an appellate court cannot find facts.  OAG argues that the JSGC report is a legislative document intended for use by the legislature, and that because the questions the report raises are important, they “should be thoroughly considered and resolved, by the General Assembly.” OAG Brief at 4.

OAG goes on to address and rebut petitioners’ arguments for decaling the death penalty unconstitutional based on racial discrimination, unreliability, geographic disparity across Pennsylvania’s 67 counties, mental health issues, indigence, and penological justification.

For more information, contact Kevin McKeon or Dennis Whitaker.