PHILADELPHIA — The American Civil Liberties Union and the ACLU of Pennsylvania filed a friend-of-the-court brief today asking the state Supreme Court to hold Pennsylvania’s capital punishment system in violation of the state constitution, given the vast disparities across the commonwealth in the quality of representation for capital case defendants who are unable to pay.
Pennsylvania is the only state in the country that fails to provide any state funding towards the representation of defendants who are too poor to pay for private attorneys. As a result, the responsibility to fund public defense is relegated to the counties, resulting in the highest disparity in capital sentences between counties of any state in the country. More than 80 percent of the people accused of crimes in the commonwealth can’t afford to pay for their own defense.
The brief states, “Pennsylvania’s condemned prisoners have not received the death penalty for committing the most heinous crimes or for being the most culpable offenders, but because they had deplorable representation.” It goes on to site an observation by U.S. Supreme Court Justice Ruth Bader Ginsburg: “People who are well represented at trial do not get the death penalty.”
Over one-third of the death sentences imposed in Pennsylvania since the state’s death penalty was reinstated in 1978 have been reversed on the basis of poor lawyering alone. Many more have been reversed on other grounds, in which poor lawyering likely also played a part. Court-appointed committees and task forces have been examining the use of death penalty in the commonwealth since 1989, but the issues highlighted and recommendations have been ignored.
“The Legislature has failed to address the problems with capital punishment in Pennsylvania, despite the recommendations of every group that has ever looked at it,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “We can’t wait for the Legislature to fix this unconstitutional system. The court needs to act.”
The burden of these disparities falls disproportionately on the state’s most vulnerable populations, particularly people of color and the poor. People of color make up more than half of the state’s death row population. Stories in the brief include those of defendants who were represented by lawyers who were drunk, extremely overburdened, or otherwise ill-equipped to defend capital cases. One anecdote cites a civil lawyer with no experience on capital cases who didn’t even realize that capital punishment was a potential outcome until the trial was well underway.
“Given the numerous, well-documented flaws with the death penalty nationwide — from racial bias to arbitrary application, and the execution of innocent people — it’s time for the United States to abolish it,” said Anna Arceneaux, senior staff attorney for the ACLU’s Capital Punishment Project. “But what’s happening in Pennsylvania is extraordinary. It is state-sanctioned death sentencing for people who had the worst representation, and they are almost all poor and from the most vulnerable communities.”