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<\/p>\nOn September 11, the Pennsylvania Supreme Court heard argument in two cases raising a challenge to the death penalty process in this Commonwealth as so dysfunctional as to violate the Pennsylvania Constitution.\u00a0 It will decide first whether to exercise its King\u2019s Bench authority and hear the substantive claims; and if so whether the system is indeed so broken that it requires action by the Court.\u00a0 Whatever it decides, it must confront the indisputable fact that in Pennsylvania race was and remains a thumb on the capital case scales \u2013 in the decision of who faces the death penalty; in the selection of jurors; and in jurors\u2019 ultimate decision of whether to vote for death.<\/p>\n
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That conclusion was one of several submitted to the Court in the pleadings of the two petitioners, and was emphasized in an Amicus Brief co-authored by this writer and submitted on behalf of concerned academics and social scientists.\u00a0 But the findings supporting this are neither abstract nor theoretical \u2013 and regarding race directly impacting who gets sentenced to death those findings come directly from the report commissioned by Pennsylvania\u2019s legislature.<\/p>\n
After years of study, the Joint State Government Commission issued a report in June 2018 titled CAPITAL PUNISHMENT IN PENNSYLVANIA.\u00a0 Submitted to the Legislature, the report details an abundance of deficiencies in the capital punishment process in Pennsylvania.\u00a0 These included, but were not limited to, problems of geographic disparity in capital punishment within Pennsylvania; inadequate funding for defense counsel; counsel who were too-often under-resourced or ill-suited to the task of capital case representation; and problems of disparate treatment due to race.<\/p>\n
At its simplest, the data conclusively show the following – white victim cases result in the imposition of a sentence of death at over twice the rate where the victim is black.\u00a0 The data are compelling.\u00a0 The Report shows based on the court system\u2019s own data that death sentences returned at penalty trials were at 45% (31\/69) in cases with white victims and 20% (15\/74) in cases with Black victims.<\/p>\n
Were this the only area in the capital case process where race played a role, it would be enough to warrant the intervention of the Court.\u00a0 But other data show that race is also a factor in prosecutorial decision-making on whether to classify a case as capital-eligible; and the disparate use of peremptory challenges to exclude Blacks a from jury service in capital cases is shown to have a long and ignoble history in Pennsylvania.<\/p>\n
The Brief Amici Curiae<\/em> showed that researchers have found similar racial effects in the capital process in other states, again at the charging, juror selection, and sentencing stages.\u00a0 The importance of this is clear \u2013 it confirms that the Pennsylvania findings are not anomalies or inaccurately depicting the capital case landscape.<\/p>\n Concerns that race has infected the capital case scheme are not new \u2013 they can be traced back at least to 1932.\u00a0\u00a0 See<\/em> Powell v. Alabama<\/em>, 287 U.S. 45, 50 (1932)\u00a0(noting that one of the claims raised was that \u201cthey were tried before juries from which qualified members of their own race were systematically excluded\u201d); Norris v. Alabama<\/em>, 294 U.S. 587 (1935)\u00a0(reversing the second conviction and death sentence of one of the Powell v. Alabama<\/em> defendants because blacks were systematically excluded from his jury venire).\u00a0 The United States Supreme Court confronted this head-on in 1978 when a claim of racial disparity was presented.\u00a0 In McCleskey v. Kemp<\/em>, 481 U.S. 279, 292 (1978) the Court, 5-4, concluded the proof was not yet there.<\/p>\n The Pennsylvania Supreme Court faces that same question now, with the advantage of 41 years of additional research.\u00a0 While much progress has been made in this nation, the sad truth is that race reminds a decider in many arenas and a decisive factor in that most critical of determinations \u2013 who will live and who will die.<\/p>\n This racial influence compromises fairness, creates arbitrariness, and undermines confidence in the criminal justice system. The consistency and power of these findings raise the fundamental question of whether the death penalty is imposed arbitrarily, i.e.<\/em>, without the \u201creasonable consistency\u201d required by the Constitution\u2019s commands.\u00a0 When deciding whether and how to exercise its King\u2019s Bench power, the matter of race must be front and center.<\/p>\n \u201cReprinted with permission from the September 9, 2019 issue of THE LEGAL INTELLIGENCER. \u00a9 [2019] ALM Media Properties, LLC. Further duplication without permission is prohibited.\u00a0 All rights reserved.\u201d\u00a0 The September 9 article was published before the argument in the case \u2013 this version has been modified solely to reflect that it is being published online after<\/em> the argument.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" On September 11, the Pennsylvania Supreme Court heard argument in two cases raising a challenge to the death penalty process in this Commonwealth as so dysfunctional as to violate the Pennsylvania Constitution.\u00a0 It will decide first whether to exercise its King\u2019s Bench authority and hear the substantive claims; and if so whether the system is<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,6],"tags":[],"coauthors":[238],"class_list":["post-2422","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-criminal-law"],"yoast_head":"\n