Death Penalty

Philadelphia D.A. Larry Krasner Argues PA Death Penalty Is Unconstitutional

"Because the death penalty has repeatedly been handed out in an unreliable and arbitrary manner, it cannot survive the state Constitution’s ban on cruel punishments."

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A petition before the Pennsylvania Supreme Court by two death row inmates could upend Pennsylvania's dysfunctional death penalty, and it has one extremely unusual supporter: the Philadelphia District Attorney's Office.

In a legal brief filed Monday night in support of the petition, Philadelphia D.A. Larry Krasner, who ran for office promising to never pursue a death sentence, argues Pennsylvania's death penalty is applied unreliably and arbitrarily, violating the state constitution's ban on cruel punishment.

To reach its conclusions, the Philadelphia District Attorney's Office reviewed every case where a Philadelphia defendant received a death sentence between 1978 and 2017. The study found that 72 percent of those 155 sentences were ultimately overturned—more than half of them for ineffective legal assistance.

"Where nearly three out of every four death sentences have been overturned—after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires," the office wrote in its brief. "Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the 'worst of the worst.'"

The brief was filed in the case of Jermont Cox and Kevin Marinelli, who were sentenced to death for three drug-related murders in 1992 and a fatal 1994 shooting, respectively. Their petition argues that the Pennsylvania Supreme Court should strike down the state's capital punishment system because of its "pervasive unreliability" and "systemic dysfunction," citing the scores of reversed death penalty sentences, as well as six death row exonerations.

Cox and Marinelli's petition has attracted amici briefs from groups like the Pennsylvania chapter of the American Civil Liberties Union (ACLU) and the NAACP Legal Defense Fund.

Meanwhile, the Pennsylvania attorney general, the Philadelphia chapter of the Fraternal Order of Police, and several groups of Republican state lawmakers filed briefs opposing the petition. But it appears to be the first time, at least as far as several criminal justice experts can tell, that a district attorney has argued broadly in court against a state death penalty. 

"There have been individual cases where a particular defendant challenges the death penalty and a prosecutor who reviews the case on appeal decides, you know, we can't defend what happened here," says David Rudovsky, a professor at the University of Pennsylvania Law School. "I don't know of any case of a broad-scale attack like this on the whole system, where a prosecutor agreed that the death penalty, at least in application here in Pennsylvania, is unconstitutional."

Last year, the prosecuting attorney for King County, Washington, wrote an op-ed calling on the state to end the death penalty.

Krasner, a former civil rights attorney, was elected in 2017 and is one of the most high-profile members of a wave of progressive candidates who have run for prosecutor offices in major cities in recent years, promising to roll back policies they say contribute to mass incarceration.

Krasner pledged during his campaign to never seek the death penalty. That decision, along with others, has led to intense opposition from police unions and critical local news coverage.

Although Pennsylvania is one of 30 states where the death penalty is still on the books, there have only been three executions in the state since 1978. The last took place in 1999. Four years ago, Pennsylvania Democratic Gov. Tom Wolf announced a moratorium on the death penalty that still remains in place.

Nationwide, the use of capital punishment has steadily declined and become more geographically isolated over the past few decades. Only a handful of counties in the U.S. are responsible for the majority of new death penalty sentences. Last year, the Washington Supreme Court struck down the state's death penalty "because it is imposed in an arbitrary and racially biased manner"—much the same argument that Cox and Marinelli, as well as Krasner, make.

However, the extraordinary cost of death penalty trials and near non-existence of executions have not stopped Pennsylvania prosecutors from pursuing capital punishment. A 2016 analysis by the Reading Eagle found that the state had spent $816 million on the death penalty since 1978.

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  1. I am the first to comment. Yay!

    1. Seriously, Krasner is bad on a number of issues, but I find myself largely agreeing with him about the death penalty. It makes me question myself that I agree with him. I’ve spent a good bit of time in Philly over the past 2 years and I hear things. I hear things.

      1. Most libertarians oppose the death penalty.

        1. and District Attorneys.

      2. A good death penalty is important to any truly civilized nation. However, it must only be employed in severe capital cases where guilt is not in doubt.

  2. I’m surprised the progressives aren’t full throated defenders of the death penalty – they love post birth abortion, this is just another step.

    Ive become more pro-life as I’ve gotten older, and this extends to the death penalty. If they try to gas/fry/inject Richard Glossip down in Oklahoma again, I’m driving down there to pray and protest outside the hoosegow next to Sister Helen Prejean and whoever else wants to stand up against that bull shit.

  3. 1) Death penalty opponents convince Supreme Court to declare that the death penalty can, as a Constitutional matter, only be handed out in an unreliable and arbitrary manner, where both prosecutors must specifically seek it and a jury, in a special penalty phase, specifically approves of it. Death penalty opponents then turn around and argue that it’s unconstitutional to have the death penalty applied in the only manner allowed by the Supreme Court.

    2) Death penalty opponents make the death penalty massively expensive to administer by making it so that all death penalty appeals are fully Federally funded without regard to merit. Death penalty opponents then turn around and argue that the death penalty is too expensive to administer.

    So, y’all, stop lying your fucking asses off. You are in favor of it being arbitrary and expensive, as a second-best to abolished. If someone tried to makes it less arbitrary (like automatic for first-degree murder) or less expensive (like abolishing Federal funding for the appeals), you would oppose them. You would, if you could, be entirely in favor of making it more arbitrary (“current procedure, except also the judge has to roll a 2, 3, or 12”) and a hundred times more expensive wherever you can’t manage to abolish it. Arbitrariness and expense are not why you oppose the death penalty; they are your allies in your fight against the death penalty, which you oppose entirely for other reasons.

    1. I’m confused Reason. You regularly go after anti-abortion activists for de-facto prohibiting abortion in many areas by making it unreasonably expensive and impractical to get one, but then you turn around and leap in bed with anti-death penalty activists who do literally the same thing with the death penalty.

      Is it okay to abort fetuses who have proven no ill intent to society but not okay to abort cold blooded killers?

      I really like this line:
      “Where nearly three out of every four death sentences have been overturned—after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires,”
      This is some Grade A bullshittery right here. No matter what you think of the death penalty the rhetorical sleight of hand here should make you roll your eyes. Not three out of four convictions overturned. Three out of four SENTENCES. He’s clearly trying to imply that three quarters of people sentenced to death were later found innocent but that is straight up not true.

      If you oppose the death penalty, fine, I can respect that position; but for the love of god and all that is holy be intellectually honest about your opposition to it and don’t try to kill it with a death by a thousand cuts. No one wants to live in a world where policies are enacted that way. We’ve just somehow managed to settle for it because we’re dumb.

      1. That bit you quote is particularly ridiculous because the facts described could trivially be spun the other way. How about,

        “We can be confident to the limits of human ability that capital punishment is applied to the most culpable, because, even after all the effort to convict someone and sentence them to death, we then, at great and entirely public expense, extensively review every case for any possible irregularity, setting such a stringently high bar that only a quarter of those sentenced are executed.

        “Instead, the great injustice of our system instead is that so many people, represented by court-appointed attorneys as poorly compensated and poorly supported as those in death penalty cases, go to prison for long terms or even life, with no real hope of a review of the case because they cannot afford the skilled appellate lawyers that those the public pays for in death penalty cases.”

        I mean, if you were genuinely worried about unjust sentences due to inadequate representation, the plight of those sentenced to death under the current legal regime would be way down on your priority list, because they’re the ones that have federally-funded appeals teams. The guy sentenced to life without parole, he’s the one who is stuck with sending in pro se motions for four decades now that his public defender lost the trial.

    2. DRM: I’m pretty sure that death penalty opponents had nothing to do with 72% of the defense counsel, who lost death penalty cases, being ineffective. That’s a gaping flaw in our court system, and if our Constitution means anything at all, it means this must be fixed before we can sentence people to death…

      Or to prison at all.

      1. Or to prison at all.

        Yeah, uh, like I said in the reply just above, made eight hours before your reply here:

        I mean, if you were genuinely worried about unjust sentences due to inadequate representation, the plight of those sentenced to death under the current legal regime would be way down on your priority list, because they’re the ones that have federally-funded appeals teams. The guy sentenced to life without parole, he’s the one who is stuck with sending in pro se motions for four decades now that his public defender lost the trial.

        Which is to say, those who say they oppose the death penalty on the grounds of public defenders being inadequate are also lying sacks of shit. They oppose the death penalty on the grounds of it being the death penalty, and are talking about inadequate counsel only because it’s a convenient club to use against the death penalty.

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    1. I don’t know if this is a scam, but even if it is, I wouldn’t support the death penalty for it.

      1. death penalty is absurd = and it’s too bad we have to make an economic argument for many to realize it.

        i’m with Eddy, zxsad should simply be imprisoned for a long time

      2. I don’t support the death penalty but I might make an exception for scammers like these because death would be a mercy compared to the punishment they really deserve. Put telemarketers in that bucket, too.

      3. privatize the telemarketer-execution field.

  5. Is the problem the death penalty, or ineffective counsel in PA for criminals eligible for the death penalty? It sounds like the latter.

    Across the river, in the People’s Republic of New Jersey, they did away with the death penalty. And NJ’s cities are cesspools.

    1. Like New Jersey cities weren’t cesspools before they eliminated the death penalty.

  6. If libertarians can’t at least come together to trust the government to apply a final and irreversible action on those it has, with all its usual aplomb, accused of things, then what’s the point of being libertarian at all?

    And Filthadelphia is still the third worst place in the universe.

    1. Since Kenney got elected Mayor and the once steady working class Northeast has become a shithole Section 8 dumping ground, bump it to 2nd.

  7. […] what happened here,” David Rudovsky, a professor at the University of Pennsylvania Law School, told Reason magazine of Krasner’s move. “I don’t know of any case of a broad-scale attack like this on the whole […]

  8. “155 sentences were ultimately overturned—more than half of them for ineffective legal assistance.”

    So it is PA lawyers that are unconstitutional? Not so much the constitution?

  9. As a matter of practicality, I don’t see a problem with periodic executions. Even in Libertopia, someone like Breivik or Tarrant should be executed quickly and cheaply. There’s no doubt at all about what they did and it’s absurd to think Norway and the Kiwis are using tax dollars, especially tax dollars from the victims, so these degenerates can live under a roof and be fed.

  10. […] Some additional good discussion of this brief and its context can be found in discussions at The Appeal and Reason. […]

  11. […] happened here,” David Rudovsky, a professor at the University of Pennsylvania Law School, told Reason magazine of Krasner’s move. “I don’t know of any case of a broad-scale attack like this on […]

  12. […] what happened here,” David Rudovsky, a professor at the University of Pennsylvania Law School, told Reason magazine of Krasner’s move. “I don’t know of any case of a broad-scale attack like this on the whole […]

  13. He looks like he ran Shawshank — or am I being too obtuse?

    1. He keeps a .38 revolver in his desk, just in case.

  14. The death penalty should be rightly reserved for people who plan and execute plots to murder other people, traitors, child molesters and telemarketers.
    Especially telemarketers.
    We all know what a bunch of evil fuck wads THEY are!

    1. What about robocall scam operators?

      Calling people to tell them they owe money to the IRS or their computer has been hacked should be followed by summary execution.

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