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February 13, 2015

Speaking of "who" and the death penalty...

check out what new Pennsylvania Gov Tom Wolf did on Friday the 13th.  Turns out it was a lucky day for those on death row in the state.

Thoughts?  The Marshall Hypothesis as applied by a Governor?

February 13, 2015 in Clemency, Who decides | Permalink


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As a PA resident (and opponent of the death penalty), I'm definitely happy to see Gov. Wolf taking this action for my home state. Wolf defeated (a very unpopular) incumbent PA Governor Tom Corbett in November 2014 with 55% of the vote. It is significant that, after taking office a mere six weeks ago, the decision to place a moratorium on the state's death penalty was one of his first major actions. Wolf's prompt actions were no doubt in response to one of Corbett's last actions in office: the '11th hour' signing of several death warrants (see: http://www.yorkdispatch.com/breaking/ci_27318779/corbett-signs-11th-hour-death-warrants-prisoners-including). Dissecting Wolf's statement shows concerns similar to those we have discussed in class: state expenses, DNA exonerations, concerns over wrongful convictions, and the racially unequal application of the death penalty. Interestingly, Wolf cites a lack of statewide data in the assessment of proportionality as a concern.

Notable quote from Wolf's statement:
-"Pennsylvania's system is riddled with flaws, making is error prone, expensive, and anything but infallible." (Ironic, coming from a man that contributed $10 million of his own funds to run his campaign ads, in a race that surpassed any other governor's race (in terms of expenses) in PA history.

Expense concerns aside, it seems prudent that Gov. Wolf is issuing a temporary stay on the death penalty in PA until all of the 'whos' involved can better understand the full scope of how it is (dis)proportionately administered from Pittsburgh to Philadelphia and in every city in between.

Posted by: Kelly Flanigan | Feb 15, 2015 9:12:27 PM

One aspect of Wolf's press release that I found particularly interesting is his assertion of what is required for the death penalty to be Constitutional (it's ambiguous as to whether he means the US or PA Constitution). He states "we must take further steps to ensure that defendants have appropriate counsel at every stage of their prosecution, that the sentence is applied fairly and proportionally, and that we eliminate the risk of executing an innocent. Anything less fails to live up to the requirements of our Constitution. . ." Particularly notable in my opinion is the assertion that PA must "eliminate the risk of executing an innocent." In addition to being an application of the Marshall hypothesis, this statement also appears to be an appeal towards the New Abolitionist viewpoint of the death penalty. I find it interesting, however, to say that the Constitution requires absolute certainty. If an incredibly costly and almost endless stream of appeals is not enough to eliminate the risk, what will be? Does this mean that the death penalty MUST be unconstitutional, at least in PA? By drawing a hard line at absolute certainty for the death penalty's constitutionality, it appears that Wolf likely has already made up his mind, no matter what the Task Force ultimately finds. While the Governor, as an elected official, might be more appropriately situated to take such a stance than an un-elected official of the judicial branch, it means that the ultimate question still is not be answered by the one "who" that is truly supposed to represent the people, the Legislature of PA.

Posted by: Josh Eckert | Feb 16, 2015 10:03:47 PM

I find the geography of the death penalty particularly noteworthy. The Northeast and the West Coast are pretty uniformly against; the Midwest and the South are generally in favor. I was actually surprised to discover that PA still had the death penalty on the books, let alone the 5th largest death row in the U.S. Nonetheless, I think the end result of either permanently placing a moratorium on the death penalty in PA or ruling it unconstitutional under state law is probably inevitable given its location on the map.

The real interesting question is what impact that has on its neighbor state, Ohio. Given the Ohio legislature's recent push to pass secrecy laws for manufacturers of lethal injection drugs, I do not believe it desires abolition right now. Further, it did not respond so definitively to a Task Force's report that the death penalty is impractical and needs many changes to be workable. Because of this inaction following the Task Force's report in Ohio, I would not be shocked if PA followed suit by failing to take action. However, PA has a governor who seems to oppose capital punishment -- perhaps, that will make the difference. Or maybe PA and Ohio will just go to the firing squad like Utah. See, http://jurist.org/paperchase/2015/02/utah-lawmakers-approve-bill-allowing-execution-by-firing-squad.php. Who knows.

Posted by: Ryan Semerad | Feb 17, 2015 10:58:07 AM

I agree with Governor Wolf's contention that the current system is "drawn out, expensive, and painful." If the goal is to expedite the process while still providing the fail-safes of appellate review, why not implement "death courts"? These would be like specialized courts in other areas (e.g., drug courts, bankruptcy courts) where the docket is limited to capital cases. Put judges on the courts that have special expertise in dealing with capital punishment. Limit the number of appeals. Make attorneys who argue before the court pass a special Bar (like they do with patent lawyers). This would improve the system by cutting down on costs and increasing justice. Just spitballing here.

On another note, how can the death penalty be this expensive? Governor Wolf references a study estimating that "the capital justice apparatus has cost taxpayers at least $315 million. . . . Other estimates have suggested the cost to be $600 million or more." Yet he also mentions how rare it is these days to actually execute someone (Pennsylvania has only executed three inmates in the past 40 years). What on earth is costing so much?

Posted by: Collin Flake | Feb 17, 2015 2:02:09 PM

One interesting 'who' that we haven't talked a whole lot about since the first few weeks of class is the role of the Sentencing Commissioner/Sec. of Corrections, or whoever is the head of the Department of Corrections in PA, OH, UT, etc. While this individual, as a player, might not have quite as much influence as a Governor or as the legislature, this person is presumably in constant communication with all of these power-wielding parties. If we're in search of someone who has their finger on the pulse of public opinion re: DP commutation, the legality/administration of capital punishment, reform ideas, etc., I think it's very important to consider their role.

Pennsylvania deems this role the "Secretary of Corrections." The end of this York Dispatch article (http://www.yorkdispatch.com/breaking/ci_27318779/corbett-signs-11th-hour-death-warrants-prisoners-including) discusses what will happen to a criminal who ex-Gov. Corbett sentenced to death if Gov. Wolf places a temporary moratorium on executions, as he did. The man, Kevin "Yummy" Mattison, was scheduled to die on March 12th. The article goes on to state: "But because state law allows for lethal injection, if Wolf fails to carry out the punishment, the responsibility to carry out the death penalty would fall to the Secretary of Corrections, according to the Office of General Counsel."

This part of the article confused me a little bit. The article seems to imply that even in light of Wolf's moratorium on the death penalty, Mattison could still be executed via lethal injection by the PA Sec. of Corrections? I'm curious as to how this power dynamic works. And, if I am interpreting this correctly, then we should start being MUCH more concerned with the 'who' of Correction Secretaries, and the role they might play in the case of two dueling state governors and agenda/policy-setting.

Posted by: Kelly Flanigan | Feb 20, 2015 2:56:24 PM

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