JOINT STATE

GOVERNMENT COMMISSION
General Assembly of the Commonwealth of Pennsylvania

CAPITAL PUNISHMENT IN PENNSYLVANIA:

The Report of the Task Force
and Advisory Committee

June 2018

Serving the General Assembly of the

Commonwealth of Pennsylvania Since 1937

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 JOINT STATE GOVERNMENT COMMISSION

Telephone: 717-787-4397
Room 108 Finance Building
Fax: 717-783-9380
613 North Street
E-mail: [email protected]
Harrisburg, PA 17120-0108
Website: http://jsg.legis.state.pa.us

The Joint State Government Commission was created in 1937 as the primary and central
non-partisan, bicameral research and policy development agency for the General Assembly of
Pennsylvania.1

A fourteen-member Executive Committee comprised of the leadership of both the House

of Representatives and the Senate oversees the Commission. The seven Executive Committee
members from the House of Representatives are the Speaker, the Majority and Minority Leaders,
the Majority and Minority Whips, and the Majority and Minority Caucus Chairs. The seven
Executive Committee members from the Senate are the President Pro Tempore, the Majority and
Minority Leaders, the Majority and Minority Whips, and the Majority and Minority Caucus Chairs.
By statute, the Executive Committee selects a chairman of the Commission from among the
members of the General Assembly. Historically, the Executive Committee has also selected a Vice-
Chair or Treasurer, or both, for the Commission.

The studies conducted by the Commission are authorized by statute or by a simple or joint
resolution. In general, the Commission has the power to conduct investigations, study issues, and
gather information as directed by the General Assembly. The Commission provides in-depth
research on a variety of topics, crafts recommendations to improve public policy and statutory law,
and works closely with legislators and their staff.

A Commission study may involve the appointment of a legislative task force, composed of
a specified number of legislators from the House of Representatives or the Senate, or both, as set
forth in the enabling statute or resolution. In addition to following the progress of a particular
study, the principal role of a task force is to determine whether to authorize the publication of any
report resulting from the study and the introduction of any proposed legislation contained in the
report. However, task force authorization does not necessarily reflect endorsement of all the
findings and recommendations contained in a report.

Some studies involve an appointed advisory committee of professionals or interested

parties from across the Commonwealth with expertise in a particular topic; others are managed
exclusively by Commission staff with the informal involvement of representatives of those entities
that can provide insight and information regarding the particular topic. When a study involves an
advisory committee, the Commission seeks consensus among the members.2 Although an advisory
committee member may represent a particular department, agency, association, or group, such
representation does not necessarily reflect the endorsement of the department, agency, association,
or group of all the findings and recommendations contained in a study report.

1
Act of July 1, 1937 (P.L.2460, No.459); 46 P.S. §§ 65-69.
2
Consensus does not necessarily reflect unanimity among the advisory committee members on each
individual policy or legislative recommendation. At a minimum, it reflects the views of a substantial majority
of the advisory committee, gained after lengthy review and discussion.

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 Over the years, nearly one thousand individuals from across the Commonwealth have
served as members of the Commission’s numerous advisory committees or have assisted the
Commission with its studies. Members of advisory committees bring a wide range of knowledge
and experience to deliberations involving a particular study. Individuals from countless
backgrounds have contributed to the work of the Commission, such as attorneys, judges, professors
and other educators, state and local officials, physicians and other health care professionals,
business and community leaders, service providers, administrators and other professionals, law
enforcement personnel, and concerned citizens. In addition, members of advisory committees
donate their time to serve the public good; they are not compensated for their service as members.
Consequently, the Commonwealth of Pennsylvania receives the financial benefit of such
volunteerism, along with their shared expertise in developing statutory language and public policy
recommendations to improve the law in Pennsylvania.

The Commission periodically reports its findings and recommendations, along with any
proposed legislation, to the General Assembly. Certain studies have specific timelines for the
publication of a report, as in the case of a discrete or timely topic; other studies, given their complex
or considerable nature, are ongoing and involve the publication of periodic reports. Completion of
a study, or a particular aspect of an ongoing study, generally results in the publication of a report
setting forth background material, policy recommendations, and proposed legislation. However,
the release of a report by the Commission does not necessarily reflect the endorsement by the
members of the Executive Committee, or the Chair or Vice-Chair of the Commission, of all the
findings, recommendations, or conclusions contained in the report. A report containing proposed
legislation may also contain official comments, which may be consulted to construe or apply a
statute.3

Since its inception, the Commission has published almost 400 reports on a sweeping range
of topics, including administrative law and procedure; agriculture; athletics and sports; banks and
banking; commerce and trade; the commercial code; crimes and offenses; decedents, estates, and
fiduciaries; detectives and private police; domestic relations; education; elections; eminent domain;
environmental resources; escheats; fish; forests, waters, and state parks; game; health and safety;
historical sites and museums; insolvency and assignments; insurance; the judiciary and judicial
procedure; labor; law and justice; the legislature; liquor; mechanics’ liens; mental health; military
affairs; mines and mining; municipalities; prisons and parole; procurement; state-licensed
professions and occupations; public utilities; public welfare; real and personal property; state
government; taxation and fiscal affairs; transportation; vehicles; and workers’ compensation.

Following the completion of a report, subsequent action on the part of the Commission
may be required, and, as necessary, the Commission will draft legislation and statutory
amendments, update research, track legislation through the legislative process, attend hearings, and
answer questions from legislators, legislative staff, interest groups, and constituents.

3
1 Pa.C.S. § 1939.

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 TASK FORCE MEMBERS

Senator Lisa M. Boscola

Senator Stewart J. Greenleaf

Senator Daylin B. Leach

Senator John C. Rafferty, Jr.

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 ADVISORY COMMITTEE MEMBERS

Member Affiliation

Jean M. Bickmire
Justice & Mercy, Inc.
Criminal Justice Specialist
Scott L. Bohn
West Chester Police Department
Chief of Police
Dana Cook, MSW
Atlantic Center for Capital Representation
Co-Director
Charles A. Cunningham, Esq.
James McHugh, Esq. Defender Association of Philadelphia
First Assistant Defender
Harry R. Dammer, Ph.D.
The University of Scranton
Professor and Chair
Marshall Dayan, Esq.
Capital Habeas Unit Western District of Pennsylvania
Assistant Federal Public Defender
Daniel M. Filler, Esq.
Drexel University Kline School of Law
Dean, Professor of Law
Rev. Donald B. Green, D.Min.
Christian Associates of Southwest Pennsylvania
Executive Director
Pamela Grosh Victim Witness Services Office of the District Attorney
Program Director Lancaster County
Robert Jolley
Dallas Township Police
Chief of Police

Spero T. Lappas, Esq. Serratelli Schiffman and Brown, PC

Carol L. Lavery Office of the Victim Advocate

(former) Victim Advocate Commonwealth of Pennsylvania
Hon. Mary Hannah Leavitt Commonwealth Court of Pennsylvania
President Judge Pennsylvania Judicial Center

Hon. Jason J. Legg 34th Judicial District of Pennsylvania

President Judge* Court of Common Pleas

Hon. Richard A. Lewis 12th Judicial District of Pennsylvania

President Judge Court of Common Pleas

Matthew Mangino, Esq. Luxenberg, Garbett, Kelly and George, P.C.

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 Member Affiliation

12th Judicial District of Pennsylvania

Hon. Edward M. Marsico Jr.*
Court of Common Pleas

Lisette M. McCormick, Esq. Interbranch Commission for Gender, Racial and Ethnic Fairness
Executive Director

John Kramer, Ph.D. Penn State U. Department of Sociology & Criminology

Jeffery Ulmer, Ph.D. Penn State U. Department of Sociology & Criminology
Gary Zajac, Ph.D. Justice Center for Research

Vicki Schieber
Executive Deputy Secretary (Ret.)
John S. Shaffer, Ph.D.
Pennsylvania Department of Corrections
Reginald T. Shuford, Esq.
ACLU of Pennsylvania
Executive Director

1st Judicial District of Pennsylvania

Hon. Carolyn Engel Temin**
Court of Common Pleas (Ret.)

Hon. Seth Williams***

City of Philadelphia
District Attorney
Bradley A. Winnick, Esq.
Dauphin County Public Defender’s Office
Chief Public Defender

Hon. Stephen A. Zappala, Jr. Allegheny County District Attorney’s Office

* When originally appointed, these judges were district attorneys.

** Resigned from the committee in January 2018.

*** During his term in office, he originally participated, but mostly was represented
on the committee by a subordinate. Subsequently, the interim district attorney and
elected successor each later had a subordinate either attend a conference or
participate in a teleconference.

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 TABLE OF CONTENTS

EXECUTIVE SUMMARY ..................................................................................................... 001

Summaries of the 17 Subjects from Senate Resolution No. 6 ................................. 003
Conclusions ............................................................................................................. 024
Recommendations ................................................................................................... 030

INTRODUCTION .................................................................................................................... 033

SUBJECTS .............................................................................................................................. 035

Cost ..................................................................................................................................... 035
Cost Analyses from Elsewhere ...................................................................................... 036
California ................................................................................................................ 036
Colorado .................................................................................................................. 039
Connecticut ............................................................................................................. 040
Idaho ....................................................................................................................... 041
Kansas ..................................................................................................................... 042
Maryland ................................................................................................................. 043
Nebraska ................................................................................................................. 045
Nevada .................................................................................................................... 046
New Jersey .............................................................................................................. 048
North Carolina ........................................................................................................ 048
Oklahoma ................................................................................................................ 050
Oregon ..................................................................................................................... 050
Tennessee ................................................................................................................ 051
Washington ............................................................................................................. 052
Cost Analyses for Pennsylvania .................................................................................... 054
Pretrial phase ........................................................................................................... 054
Trial phase ............................................................................................................... 054
Penalty phase .......................................................................................................... 055
Postconviction phase ............................................................................................... 055
Extra costs ............................................................................................................... 055
Guilty pleas ............................................................................................................. 056
Department of Corrections ...................................................................................... 056
Supplemental sample of costs from 1st Judicial District ......................................... 057
Conclusion .............................................................................................................. 058
Bias and Unfairness .......................................................................................................... 058
Racial bias .................................................................................................................... 062
Pennsylvania Supreme Court Bias Committee Report ................................................. 065
Geographical bias ......................................................................................................... 067
Sexual bias .................................................................................................................... 068
Bias in the death penalty process .................................................................................. 068

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 Prosecutorial discretion ................................................................................................ 072
Unfairness of the legal system ...................................................................................... 075
Legal representation ..................................................................................................... 075
Death qualification ....................................................................................................... 075
Justice Center for Research .......................................................................................... 075
Response to Furman v. Ga. ............................................................................... 077
Focal concerns theory ....................................................................................... 078
Prior studies ...................................................................................................... 078
Murder of the first degree ................................................................................. 079
Pennsylvania data .............................................................................................. 082
Recommendation .............................................................................................. 090
Proportionality .................................................................................................................. 090
Federal law ........................................................................................................ 091
Pennsylvania statutory law ............................................................................... 092
Constitutional requirements .............................................................................. 092
Aggravating Circumstances .............................................................................. 098
Aggravating Circumstances in Plea Bargaining ............................................... 101
Suggested Reform to Pa. Aggravating Circumstances ..................................... 101
Mitigation .......................................................................................................... 104
Moral desert ...................................................................................................... 105
Residual doubt .................................................................................................. 106
Specific and Comparative Proportionality Review ........................................... 107
Evaluation of Proportionality Review .............................................................. 111
Impact on and Services for Family Members ................................................................ 113
Services ......................................................................................................................... 113
Cost of services ............................................................................................................. 114
Victims of Crime Act of 1984 (VOCA) ........................................................... 115
Rights and Services Act (RASA) ...................................................................... 118
Victims of Juvenile Offenders (VOJO) ............................................................ 118
Mental Retardation ........................................................................................................... 119
Recommendation .............................................................................................. 123
Mental Illness .................................................................................................................... 123
Mentally disabled and juveniles ........................................................................ 127
Severe mental illness ......................................................................................... 129
American Bar Association Proposal
to Exempt the Seriously Mentally Ill from the Death Penalty ....................... 130
Defenses based on mental illness ...................................................................... 133
The Insanity Defense and Guilty but Mentally Ill ............................................ 134
Diminished capacity .......................................................................................... 136
Mitigation .......................................................................................................... 136
Proposed Procedure under the American Bar Association’s Resolution .......... 137
Competency to waive appeals ............................................................................ 137
Competency to assist defense ........................................................................... 137
Competency to be executed .............................................................................. 138
Recommendation .............................................................................................. 143

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Juries .................................................................................................................................. 143
Recommendation ................................................................................................... 149
Recommendation ................................................................................................... 152
State Appeals and Postconviction .................................................................................... 152
61 Pa.C.S. § 4302 .................................................................................................. 156
Recommendation .................................................................................................... 158
Clemency ............................................................................................................................ 158
Penological Intent .............................................................................................................. 160
Uniqueness of the Death Penalty .................................................................................. 161
Retribution .................................................................................................................... 162
Deterrence ..................................................................................................................... 166
Incapacitation and Public Safety .................................................................................. 169
Innocence ........................................................................................................................... 171
Alternatives ........................................................................................................................ 174
Constitutional Standard for Conditions of Incarceration ............................................. 175
Life Imprisonment without Parole ................................................................................ 176
Prison Conditions in the U.S. ....................................................................................... 178
Prison Conditions in Pennsylvania ............................................................................... 179
General Population .................................................................................................. 179
Death in Prison ............................................................................................................. 181
Counsel ............................................................................................................................... 183
Recommendation ..................................................................................................... 186
Secondary Trauma ............................................................................................................ 186
Judges, prosecutors, public defenders
& victim advocates ..................................................................................................... 186
Correctional officers, victim family members
& inmate loved ones ................................................................................................... 187
Length and Conditions of Confinement on Death Row ................................................ 189
Length of Confinement on Death Row .......................................................................... 190
Conditions of Confinement on Death Row .................................................................... 192
Constitutional requirements .......................................................................................... 192
Standards of International Law .................................................................................... 193
International Perspective: Conditions on Death Row ................................................. 195
Prison Conditions in Pennsylvania ............................................................................... 197
Capital Case Unit .................................................................................................... 197
Lethal Injection ................................................................................................................. 199
Recommendation .................................................................................................... 203
Public Opinion ................................................................................................................... 203
National Polls ............................................................................................................... 204
State Polls ..................................................................................................................... 206
Conclusions ................................................................................................................... 210
A Sample of Religious Positions
on the Death Penalty .................................................................................................. 212

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APPENDICES ......................................................................................................................... 215
Appendix A:
Senate Resolution No. 6 ................................................................................................ 217
Appendix B:
State-By-State Survey of Aggravating Circumstances for Capital Punishment ........... 223
Appendix C:
State-By-State Survey of Mitigating Circumstances for Capital Punishment .............. 227
Appendix D:
State-By-State Survey of State Clemency Process
in Death Penalty Sentences ...................................................................................... 229
Appendix E:
State-By-State Survey of Clemency Actions – Commutation
in Capital Cases During The Time Period 1977-2018 ............................................. 235
Appendix F:
Pennsylvania Capital Cases .......................................................................................... 237
Appendix G:
State-By-State Survey of Prohibition Against Capital Punishment
for Defendants With Intellectual Disabilities ............................................................. 239
Appendix H:
Zajac and Winger Report .............................................................................................. 243
Appendix I:
Profile of Pa. Inmates Under Death Sentence ............................................................... 255
Appendix J:
Amounts Appropriated to Supplement the Sum Appropriated
for Pa. Commission on Crime & Delinquency .......................................................... 257
Appendix K:
Ratio of Execution to Life Sentences by Pa. County .................................................... 261
Appendix L:
Timeline of Capital Punishment Study by Justice Center for Research ....................... 263
Appendix M:
Pa. Sup. Ct. Comm. on Racial & Gender Bias
in the Justice Systems, Selected Recommendations ................................................. 265

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 EXECUTIVE SUMMARY

In the fall of 1607, a blacksmith named James Read was sentenced to hang for
striking a representative of King James I in the Jamestown colony in Virginia. But
at the top of the ladder that led to the gallows, he offered up details about a supposed
mutiny in the making. Shortly thereafter, he was back at work and George Kendall,
the putative leader of the plot, was tried, convicted, placed before a firing squad
and shot. He was shot rather than hanged because of his higher social standing.

With that, Kendall became the first person executed after a legal proceeding in what
would become the United States of America, and we've been wrestling with the
practice ever since—including the fundamental questions of whether there is ever
any justification for taking another life, and if so, how to do the deed.4

“Capital punishment is currently authorized in 31 states, by the federal government and the
U.S. military.”5 The Commonwealth is one of these 31 states.6 During the last 56 years, the
Commonwealth executed three condemnees even though it has had a death penalty for
approximately 50 of those years.7 These three condemnees, who had psychiatric problems, waived

4
L.A. Times Ed. Bd., Execution Is Inhumane, No Matter What Method States Use, L.A. Times (Mar. 16, 2018),
http://www.latimes.com/opinion/editorials/la-ed-oklahoma-executions-nitrogen-lethal-injection-20180315-
story.html.
5
Nat’l Conf. of State Legiss., States & Capital Punishment (June 1, 2018), http://www.ncsl.org/research/civil-and-
criminal-justice/death-penalty.aspx.
6
42 Pa.C.S. § 9711.
7
Keith Zettlemoyer & Leon Moser were executed in 1995; Gary Heidnik was executed in 1999. Pa. Dep’t of
Corrections, Execution Warrants/Notices Issued by Governor (1985 to Present),
http://www.cor.pa.gov/Initiatives/Documents/Death%20Penalty/Warrants.pdf (last updated Apr. 5, 2018). The death
penalty was ruled unconstitutional in 1972 & reenacted by the Commw. in 1978.

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their appeals,8 which dates the last involuntary execution in the Commonwealth back to 1962.9
Since 1985, at least 466 warrants of execution were issued in the Commonwealth, which resulted
in those three executions.10 Since 1987, approximately 35 inmates died while on death row while
still under a sentence of execution (but not from being executed).11 Since the death penalty was
reinstated in 1978, the subsequent judicial dispositions of the Commonwealth’s condemnees’
convictions and sentences resulted in more than 97% of them being resentenced to life
imprisonment or less.12 Also since 1978, the number of the Commonwealth’s inmates under a
sentence of death peaked at 243 in 2002.13 As of June 2018, the number of the Commonwealth’s
inmates under a sentence of death had been reduced to 150.14 Finally, during that same time frame,
six condemnees were fully exonerated of the crime(s) for which they were convicted and sentenced
to death.15

8
“Zettlemoyer was taking an anti-depressant/anti-psychotic drug when he testified before the district court and when
he wrote a letter on March 28, 1995, indicating that he wanted no further appeals. . . . . [T]he record is clear that
Zettlemoyer voluntarily took the medication as part of a course of treatment for his medical problems. He testified
before the district court that ‘I have a number of health problems, and the psychiatrist and the psychologist at the SCI
Pittsburgh Institution have recommended a variety of medications for me to take. . . . . [S]o I always take it.’” In re
Zettlemoyer, 53 F.3d 24, 28-29 (3d Cir. 1995). “Throughout the proceedings, Leon Moser maintained that he wanted
to die. From all indications, he still does. . . . . Moser had been hospitalized . . . for depression . . .; and . . . takes a
common anti-depressant, Imipramine.” In re Moser, 69 F.3d 691, 693-94 (3d Cir. 1995) (Nygaard, J., dissenting).
“Moser . . . underwent psychiatric treatment while in prison”. Associated Press, Killer of His Ex-Wife & 2 Daughters
Is Executed, N.Y. Times (Aug. 17, 1995), https://www.nytimes.com/1995/08/17/us/killer-of-his-ex-wife-and-2-
daughters-is-executed.html. “Dr. Bernstein stated that it was his opinion within a reasonable degree of medical
certainty that Heidnik suffered from paranoid schizophrenia, and described him as a seriously disturbed, cognitively
impaired, psychotic individual. . . . . Dr. McKenzie opined with a reasonable degree of medical certainty that Heidnik
suffers from schizophrenia, is actively psychotic, and is not in contact with reality. . . . . Heidnik indicated in response
to questioning . . . that he did not wish the attorneys to appeal. . . . . The court stated that Heidnik's paranoid
schizophrenia does not substantially affect his capacity to appreciate his position and make a rational choice with
respect to continuing or abandoning habeas corpus proceedings in federal court.” In re Heidnik, 720 A.2d, 1016,
1024-26 (Pa. 1998).
9
This was Elmo Smith. Associated Press, Pa. Execution 1st Since ’62, N.Y. Times (May 3, 1995),
https://www.nytimes.com/1995/05/03/us/pennsylvania-execution-first-since-62.html.
10
Pa. Dep’t of Corrections, supra note 7. From these warrants, this amounts to an execution rate of .006%.
11
E-mail from Kristofer B. Bucklen, Ph.D., Dir. of Research & Statistics, Pa. Dep’t of Corrections (May 8, 2018) (on
file with Pa. J. State Gov’t Comm’n). The average number of condemnees dying but before being executed during
this 31-year period is 1.13/year.
12
Robert Brett Dunham, Pa. Capital Post-conviction Reversals & Subsequent Dispositions (Death Penalty Information
Ctr. 2018).
13
Appdx. I, infra p. 255.
14
Pa. Dep’t of Corrections, Persons Sentenced to Execution in Pa. as of June 1, 2018,
http://www.cor.pa.gov/Initiatives/Documents/Death%20Penalty/Current%20Execution%20list.pdf. Later in May
2018, a man was condemned, making him the 150th. Myles Snyder, York Cnty. Gets Death Sentence in 2016 Double-
murder, abc 27 News (May 24, 2018), http://www.abc27.com/news/local/york/york-county-gets-death-sentence-in-
2016-double-murder/1197032992.
15
Infra p. 171.

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 Some of the deficiencies identified and recommendations contained in this study are not
new and remain a concern. Several earlier reports have found our system to be deficient in some
of the same areas and addressed them as well, notably: Final Report of the Supreme Court
Committee on Racial and Gender Bias in the Justice System; 16 The Pennsylvania Death Penalty
Assessment Report published by American Bar Association in 2007,17 which evaluated fairness
and accuracy by analyzing Pennsylvania’s laws, procedures and practices; Report of the Advisory
Committee on Wrongful Convictions;18 and, Report of the Task Force and Advisory Committee
on Services to Indigent Criminal Defendants.19

“[W]e can start with the obvious—the current state of Pennsylvania’s capital jurisprudence
is impaired. . . . . [T]he question arises: Just what is wrong?”20

Summaries of the 17 subjects from Senate Resolution No. 621

(1) Cost: Whether there is a significant difference between the cost of the death
penalty from indictment to execution and the cost of life in prison without parole;
in considering the overall cost of the death penalty in Pennsylvania, the cost of all
the capital trials that result in life sentences as well as death sentences that are
reversed on appeal must be factored into the equation;22

There is a significant difference between the cost of the death penalty compared to life in
prison without parole,23 primarily because of more extensive litigation and higher correctional cost
for those sentenced to execution; however, Department of Corrections is changing its housing of
condemned inmates and it is premature to calculate if higher correctional costs will persist for
condemnees. An example of a systematic cost difference at trial between capital and non-capital
cases is the penalty trial, which does not occur in non-capital cases. “It is a simple fact that seeking
the death penalty is more expensive. There is not one credible study . . . that presents evidence to
the contrary.”24

16
Pa. Sup. Ct. Comm. on Racial & Gender Bias in the Just. Sys., Final Rep. (2003), http://www.pa-
interbranchcommission.com/_pdfs/FinalReport.pdf.
17
Am. Bar Ass’n, Evaluating Fairness & Accuracy in State Death Penalty Syss.: The Pa. Death Penalty Assessment
Rep. (2007),
https://www.americanbar.org/content/dam/aba/migrated/moratorium/assessmentproject/pennsylvania/finalreport.aut
hcheckdam.pdf.
18
Pa. J. State Gov’t Comm’n, Rep. of the Advisory Comm. on Wrongful Convictions (2011),
http://jsg.legis.state.pa.us/resources/documents/ftp/publications/2011-212-9-15-11%20rpt%20-
%20Wrongful%20Convictions.pdf.
19
Id., A Constitutional Default: Servs. to Indigent Crim. Defendants in Pa. (2011),
http://jsg.legis.state.pa.us/resources/documents/ftp/publications/2011-265-Indigent%20Defense.pdf.
20
Thomas G. Saylor, Death-Penalty Stewardship & the Current State of Pa. Capital Jurisprudence, 23 Widener L.J.
1 (2013).
21
(Sess. of 2011), appdx. A, infra pp. 217-22. Material for this rep. was developed by the subcomms., infra p. 33.
22
Infra pp. 35-58.
23
“Extant literature on the costs of capital punishment unambiguously finds that capital cases are more expensive to
prosecute from beginning to end than non-capital cases.” John Roman et al., The Cost of the Death Penalty in Md.
29 (2008), available at https://www.urban.org/sites/default/files/publication/31526/411625-The-Cost-of-the-Death-
Penalty-in-Maryland.PDF.
24
Okla. Death Penalty Rev. Comm’n, Rep. 234 (2017), available at https://drive.google.com/file/d/0B-
Vtm7xVJVWONmdNMmM5bzk3Qnc/view.

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 The studies from other jurisdictions used a combination of actual cost data, actual resource
data and estimates of both to compare cumulative and partial costs of the death penalty with
sentences of life imprisonment without parole among the different stages of the process that result
in either sentence. As is true elsewhere, no reliable data exists to comprehensively and accurately
assess this difference in Pennsylvania. The process includes different levels and branches of
government which are independently budgeted. It involves fixed and variable costs, and the
budgeting would neither typically nor uniformly reflect different projections and allowances to
pursue these two penalties among others. To try to assess whether there are significantly different
costs between these two penalties, surveys were electronically distributed to judges, prosecutors,
public defenders and victim advocates in nine Pennsylvania judicial districts of varying population
sizes and caseloads that had past or current capital murder cases.

(2) Bias and unfairness: Whether the selection of defendants for capital trials in
Pennsylvania is arbitrary, unfair or discriminatory in any way and whether there is
unfair, arbitrary or discriminatory variability at any stage in the process including
in the sentencing phase;25

The subcommittee on policy could not answer the question relating to the selection of
defendants for capital trials because the only recent study was limited to examining cases resultant
in convictions for murder of the first degree. This limitation means that the influence of race or
ethnicity on the decision of charging the homicide or on “whether to retract the motion to seek the
death penalty in any case that did not result in a first-degree murder conviction” was not studied.26
The Pennsylvania State University researchers spent approximately eight years 27 developing,
researching, accessing and collecting data, and drafting a report in which it found disparate
variability within those cases based on the race of the victim, the type of the defendant’s legal
representation, and the variation among counties in the selection of those defendants for the death
penalty.28 The largest and most prominent differences were those “among counties in death
penalty outcomes and the effects of other variables on death penalty outcomes”.29 Contrasting
with the Baldus and other literature, “Black defendants with White victims were not at greater risk
to receive the death penalty”.30 The notable differences based upon the race of the victim were
“not in combination with the race/ethnicity of defendant.”31 The likelihood of seeking the death
penalty was more when there was a Hispanic victim and there was less likelihood for receiving the
death penalty when the victim was Black than when the victim was White, which differences were

25
Infra pp. 58-90.
26
John Kramer et al., Capital Punishment Decisions in Pa.: 2000-2010, at 39 (2017), available at
http://justicecenter.psu.edu/research/projects/files/the-administration-of-the-death-penalty-in-pennsylvania-pdf. The
study was also limited to the “18 counties that had ten or more first-degree murder convictions” which “was more
than 80% of all first-degree murder convictions in the Commonwealth in” the study’s “time frame.” Id.
27
Appdx. L, infra p. 263.
28
The advisory committee is grateful to have had the opportunity to collaborate with both the university’s Justice
Center for Research and Pennsylvania Interbranch Commission on Gender, Racial and Ethnic Fairness and will
summarize the center’s research, infra pp. 75-90.
29
Kramer et al., supra note 26, at 121. E.g., “prosecutors in Allegheny County and Philadelphia were less likely to
seek the death penalty against defendants represented by public defenders than” in the other 16 counties in the field
study. Id. at 120-21.
30
Id. at 122.
31
Id. at 121. Regardless of the defendant’s race or ethnicity, cases with White victims were 8% more likely to receive
the death penalty; conversely, cases with Black victims were 6% less likely to receive the death penalty. Id.

-4-
not “attributed to the many factors” measured by the control variables used in the study.32
“[D]ifferences among counties in death penalty outcomes, and the effects of other variables on
death penalty outcomes, were the largest and most prominent differences found in” the study.33

In a very real sense, a given defendant’s chance of having the death penalty sought,
retracted, or imposed depends on where that defendant is prosecuted and tried. In
many counties of Pennsylvania, the death penalty is simply not utilized at all. In
others, it is sought frequently. If uniform prosecution and application of the death
penalty under a common statewide framework of criminal law is a goal of
Pennsylvania’s criminal justice system, these findings raise questions about the
administration of the death penalty in the Commonwealth.34

To the extent convictions were studied via multivariate analyses, the impact found based
upon race was on victims rather than on defendants.

When we control for a wide variety of factors that could impact the decisions, we
find that the likelihood of having the death penalty filed, retracted, or given does
not differ by race of defendant, but the likelihood of having the death sentence given
does vary by race of victim. And, we didn’t find disparity specific to black
defendants with white victims, but rather, disparity connected to race of victim
regardless of race of defendant.35

However, there was no examination of possible bias associated with any other stage of the process,
including arrest, charging and plea bargaining.36 Regarding unfairness in general and racial or
ethnic bias in particular, the subcommittee on policy supports including a recommendation that
Pennsylvania consider replicating what other states have done in this area to statutorily provide for
proportionality review, which would routinely and systematically collect relevant data for review.

(3) Proportionality: Whether there is a significant difference in the crimes of

those selected for the punishment of death as opposed to those who receive life in
prison and whether there is an adequate process for determining when death
sentences are excessive or out of line with sentences imposed in other cases where
a sentence other than death was imposed;37

32
Id. at 123.
33
Id. at 124. Compared to defendants represented by public defenders, those represented by privately-retained counsel
were “significantly less likely to receive the death penalty”, but defendants represented by public defenders were “less
likely to have the death penalty filed against them than other defendants”. Id. n.33.
34
Id. at 125. Appdx. K, infra p. 261, shows the ratio of execution to life sentences by county based on the inmate
population in 2015.
35
E-mail from Jeffery T. Ulmer, Ph.D., Prof. & Assoc. Head, Dep’t of Sociology & Criminology. Pa. State U. (June
12, 2018) (on file with Pa. J. State Gov’t Comm’n).
36
Kramer et al., supra note 26, at ii, 114. Just. Ctr. for Research plans to follow its study with one focusing on possible
bias in the pre-trial stages of prosecution in potential capital cases.
37
Infra pp. 90-112.

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 The subcommittee on policy could not answer the question relating to selection because
there is no process for determining whether the crimes for which defendants receive the death
penalty differ from the crimes for which defendants receive life imprisonment (without parole).
The statute lists aggravating circumstances, which would allow the death penalty for one convicted
of murder of the first degree, but charging and plea bargaining are done at the county level. The
Commonwealth’s large number (18) of statutory aggravating circumstances38 is at the high end of
that count nationally,39 and this numerosity, along with the numerosity of Pennsylvania’s 67
counties, can easily result in significant differences in proportionality. The only available recent
data is from the study detailed under the issue of bias and unfairness, which was limited to those
cases that had convictions for first-degree murder. Justice Center for Research is seeking funding
to follow that study with one to directly address this inquiry, but it will take years to accomplish.

The Pennsylvania statutory provision that mandated a process to determine if the death
sentence is comparatively and (dis)proportionately excessive was repealed in 1997.40 To reduce
differences in the crimes selected for the punishment of death would require the reduction of
aggravating circumstances. To determine if death sentences are comparatively and
(dis)proportionately excessive would require reinstatement of the former statutory mandate or a
comparable one to routinely and systematically collect useful data on the circumstances of
individual murder cases.

(4) Impact on and services for family members: The impact of the death penalty
on family members and loved ones of murder victims and the availability and cost
of services currently being provided in Pennsylvania for family members and loved
ones of murder victims and whether these services are sufficient to meet the needs
of surviving families;41

Services for family members and loved ones of murder victims in this Commonwealth are
provided on a county-by-county basis. Predominantly, those services are provided within the
county’s Office of District Attorney.42 Some counties have one or more private, not-for-profit
victims’ support offices that operate in conjunction with or in lieu of a victim’s witness advocate
working for a district attorney. These services are funded through a mix of public and private
sources. The services are generally but not precisely uniformly available throughout the counties.
When staff from Joint State Government Commission spoke with staff from various advocacy
offices to determine the sufficiency of the services provided, there was a wide range of responses.
One third of the providers said that the services were insufficient. Conversely, almost half of the
advocates felt that the services were sufficient, although this group of responders often
acknowledged that the loss of a family member or loved one through homicide left a hole that
could never be fully filled.

38
42 Pa.C.S. § 9711(d).
39
Appdx. B, infra pp. 223-26.
40
The provision directed Pa. Supreme Court to vacate a sentence of death if “excessive or disproportionate to the
penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the
defendant.” Former 42 Pa.C.S. § 9711(h)(3)(iii).
41
Infra pp. 113-19.
42
Prosecutors have statutory responsibilities to some victims. Act of Nov. 24, 1998 (P.L.882, No.111), § 213; 18 P.S.
§ 11.213. “A family member of a homicide victim” is a victim. Id. § 103; 18 P.S. § 11.103.

-6-
 The cost of services that are provided to family members and loved ones of murder victims
can only be provided as part of the larger picture of state and federal funding for victims within
this Commonwealth.43 In other words, at the service provider level, the grants are not typically
broken down by type of victim44 so that family members and loved ones of murder victims receive
support services as part of a larger group of victims of violent crimes within this Commonwealth.45
Staff from Joint State Government Commission questioned staff from various offices of victims’
witness advocates to get their opinion about the cost of these services, specifically how they were
reflected in homicide cases rather than other crimes with which the office dealt. As a follow up to
the original questions, they were then asked if the costs were “more, less or about the same as
those services that you provide to victims of other crimes.” The responses could be categorized
into two distinct approaches of calculating or envisioning service cost. The first type of responses
indicated that the services provided for family members and loved ones of murder victims cost
more than the services that the office provided for other types of crime. In the second category of
responses, the advocates indicated that they believed that the services cost the same amount as
they would for the victim of a different sort of crime, because they viewed the fixed operating
costs of the office and the fixed costs of the salaries to be the same regardless of the service
provided.

(5) Mental retardation: Whether, in light of the Supreme Court ruling in Atkins
v. Virginia, there are adequate procedural protections in place to assure that people
with mental retardation are not in fact being sentenced to death and executed;46

The subcommittee on procedure47 sought to reply to this factual inquiry by obtaining

readily available data, which was the intelligence quotient (IQ) scores supplied by Department of
Corrections for the inmates on death row and those serving life imprisonment for first-degree
murder. Notwithstanding a recognition of the standard error of measurement,48 some states
statutorily prescribed a score for the IQ and the Commonwealth would argue that the intellectual
disability is below 70.49 For this reason, data obtained from Department of Corrections was
initially analyzed using a score of 70 or below as an imperfect proxy for intellectual disability.
Since IQ is relatively static, whether the scores closely replicated scores before age 18 is unknown
but presumed. Information on substantially deficient adaptive functioning also remains unknown,

43
Appdx. J, infra pp. 257-59.
44
Pa. Comm’n on Crime & Delinquency recently awarded requested grants totaling $2,346,175 for four recipients in
Phila. to serve survivors of homicide victims. McMahon, infra note 799.
45
Beginning in 2016, VOCA recipients have been required to keep confidential records on each crime victim that
receives services to report as Victim Assistance Program Performance Measures. Pt. of this data includes the total no.
of survivors of homicide victims served during the reporting period, but this data is too new to develop numbers for
this report.
46
Infra pp. 119-23; appdcs. G, H, infra pp. 239-53.
47
The data was collected and analyzed for the subcomm. by Dr. Gary Zajac & Laura Winger from The Pa. State U.
Just. Ctr. for Research. Appdx. H, infra p. 243.
48
“Reporting the range within which the person’s true score falls, rather than only a score, underlies both the
appropriate use of intellectual and adaptive behavior assessment instruments and best diagnostic practices in the field
of” intellectual disability. Kevin S. McGrew, Ph.D., APPLIED PSYCHOMETRICS 101, 1 (2009),
http://www.iapsych.com/iapap101/iapap1015.pdf. An IQ of 70 is roughly two standard deviations below the norm,
the definition for intellectual disability (formerly “mental retardation”) employed by the American Association on
Intellectual and Developmental Disabilities (“AAIDD”) and the American Psychological Association (“APA”).
49
E.g., Commw. v. Sanchez, 36 A.3d 24, 51 (Pa. 2011).

-7-
which is why using a score for IQ alone is unreliable to determine intellectual disability. When an
IQ score of 70 or below was used as the classification for intellectual disability, “4.1% of the death
row inmates” fell within that classification as compared to 8.7% of those serving life imprisonment
for first-degree murder.50 Although it was partially reassuring that the percentage of potentially
intellectually disabled inmates51 was lower for condemnees than for those imprisoned for life,
judicial rulings after this analysis was done subsequently clarified that using a score of 70 or below
for this possible classification is too low, based on the standard error or measurement.52 Aside
from that, it still meant that as many as approximately 4% of the death row inmates were under an
unconstitutional sentence if they are in fact intellectually disabled, due to the application of the
other two components of the diagnosis.53

With further clarification from these judicial rulings, the same data was re-analyzed using
the score of 75 instead of 70.54 The higher score more than tripled the percentage of death row
inmates from 4.1% to 14%, and almost doubled the percentage for those serving life imprisonment
for murder of the first degree, from 8.7% to 15%.55 The troubling revelation from this inquiry is
that as many as 14% of the Commonwealth’s condemnees could be constitutionally ineligible for
this sentence.56 As a result, the subcommittee on procedure could not conclude that procedural
protections are adequate to ensure that people with intellectual disability are neither being nor have
been sentenced to death. As a comparison with the general population, it appears that an IQ score
of 75 or below represents the bottom 5% of the population,57 but is approximately triple that
percentage for inmates on death row or serving life imprisonment for murder of the first degree.

The subcommittee recommends that the Rules of Criminal Procedure be amended to

require a judge to determine mental retardation at the pre-trial stage instead of the jury determining
it post-trial. It would resolve the issue early in the process; if the defendant is determined to be
intellectually disabled pre-trial, it would save a significant amount of money and many days of
court time because the case would not proceed capitally.

(6) Mental illness: Whether persons suffering from mental illness constitute a
disproportionate number of those on death row, what criteria should be used in
judging the level of mental illness involved and whether people with mental illness
who are convicted of murder should be executed;58

50
Appdx. H, infra p. 245.
51
The scores can only indicate potential mental retardation because the other two diagnostic criteria of early onset &
deficient, adaptive functioning were neither available nor obtained.
52
E.g., Hall v. Florida, 134 S.Ct. 1986 (U.S. 2014).
53
Adaptive deficits and onset prior to age 18.
54
Appdx. H, infra p. 246.
55
Id.
56
The most recent data obtained places almost 13% of the death row prisoners and 12% inmates serving life
imprisonment for murder of the first degree at an IQ score of 75 or below. Bucklen, supra note 11 (Apr. 26, 2018).
57
Edublox Online Tutor, IQ Test Scores: The Basics of IQ Score Interpretation, https://www.edubloxtutor.com/iq-
test-scores/ (last visited Apr. 15, 2018).
58
Infra pp. 123-43.

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 The subcommittee on policy59 sought to reply to this factual inquiry of disproportionality
by obtaining readily available data, which was the mental health status supplied by Department of
Corrections for the inmates on death row and those serving life imprisonment for first-degree
murder. Inmates’ mental health was assessed and classified into four categories, two of which
reflected either no current mental health issues or need to be medicated, and two of which reflected
a current need for active treatment or close psychiatric monitoring for serious mental health issues.
Since mental health is more dynamic than IQ, this data and classification would be expected to be
more variable than IQ scores. It is understood that Department of Corrections used Diagnostic
and Statistical Manual of Mental Disorders, a “handbook used by health care professionals in the
United States . . . as the authoritative guide to the diagnosis of mental disorders” that “has been
periodically reviewed and revised since it was first published in 1952.”60 In 2013, Department of
Corrections classified almost 10% of those on death row with an active mental disorder and double
that proportion for those serving life imprisonment for first-degree murder.61 When this data was
updated in 2018, the department classified approximately one quarter of the inmates on death row
and a similar (albeit slightly higher) percentage of those serving life imprisonment with an active
mental disorder.62 A smaller difference in this data between those years is that more than half of
death row inmates had a recent (albeit not current) need for mental health treatment, while less
than a third of the life prisoners for first-degree murder had a recent (albeit not current) need for
mental health treatment when checked in 2013.63 When checked in 2018, the recent (albeit not
current) need for mental health treatment, was below half for death row inmates and almost the
same 30% for the life prisoners for first-degree murder.64 This begs the question of how the
inmates in these two groups compare to the overall human population with respect to prevalence
of mental disorder. As of 2016, 4.2% of U.S. adults were seriously mentally ill and 18.3% had
some type of mental illness.65 The subcommittee agreed that the proportion of inmates on death
row suffering from some type of mental illness is likely much greater than in the general
population.

Because the question regarding the criteria to judge mental illness also requires a certain
level of psychiatric expertise to answer, the subcommittee cannot authoritatively comment on the
requested criteria. However, the subcommittee determined that the current standard that is

59
The data was collected and analyzed for the subcomm. by Dr. Gary Zajac & Laura Winger from The Pa. State U.
Just. Ctr. for Research. Appdx. H, infra pp. 243-53.
60
Am. Psychiatric Ass’n, DSM–5: Frequently Asked Questions,
https://www.psychiatry.org/psychiatrists/practice/dsm/feedback-and-questions/frequently-asked-questions (2018).
61
Appdx H, infra p. 246.
62
Buklen, supra note 11 (Apr. 26, 2018). The difference between the percentages from 2013 to 2018 is approximately
150% higher for the inmates on death row now classified with an active mental disorder, compared to five years earlier
& approximately 25% higher for those serving life imprisonment for first-degree murder, now classified with an active
mental disorder than five years earlier.
63
Appdx. H, infra p. 246.
64
Bucklen, supra note 11 (June 13, 2018).
65
Nat’l Inst. of Mental Health, Mental Illness, http://www.nimh.nih.gov/health/statistics/prevalence/serious-mental-
illness-smi-among-us-adults.shtml (last updated 2017). Citing a study from 2004, Ctrs. for Disease Control &
Prevention publishes an estimated 25% of adult Americans “reported having a mental illness within the previous” yr..
Ctrs. for Disease Control & Prevention, CDC Mental Illness Surveillance,
https://www.cdc.gov/mentalhealthsurveillance/faqs.html (last reviewed 2013).

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commonly used by practitioners to diagnose the level of mental illness is Diagnostic and Statistical
Manual of Mental Disorders (DSM—5) from American Psychiatric Association.66

The subcommittee noted that the inquiry on executing a mentally ill inmate has been
partially judicially resolved. A sentence of death may not be carried out “upon a prisoner who is
insane.”67 A defendant who was legally insane at the time of the crime may use that as a valid
defense to the charge.68 If the defendant was not legally insane at the time of the crime but becomes
unable “to comprehend the nature of the penalty” and “the reasons for” it “or its implications”, he
cannot then be executed.69 In their study detailed in this report under the section on bias and
unfairness, The Pennsylvania State University researchers found that in 35 cases in which
defendants presented evidence of a serious mental illness at trial, the jury accepted only 11 of these
arguments. Even if a defendant is not legally insane, the subcommittee recommends extending a
version of guilty but mentally ill as a bar to imposition of the death penalty for the same reasons
that legal insanity would excuse a crime, or because the defendant’s severe mental disorder
significantly impaired his exercise of rational judgment or conformance to legal requirements.
This would allow a severely mentally ill murderer to be punished in the same way that an
intellectually disabled murderer is, rather than subject the former to condemnation but not the
latter.70

(7) Juries: The impact on the reliability and fairness of capital trials of death
qualifying jurors and the impact of this practice on the ability of women, people of
color and people of faith to serve on capital juries; whether there are adequate
procedural protections and remedies in place to make sure that women and African
Americans are not excluded from serving as jurors in capital cases; and whether
there are adequate procedural protections in place to assure that jurors are able to
understand and apply instructions in determining guilt or innocence and the
appropriate punishment in a capital case;71

Assuming that social science studies “are both methodologically valid and adequate to
establish that ‘death qualification’ in fact produces juries somewhat more ‘conviction-prone’ than
‘non-death-qualified’ juries”, U.S. Supreme Court ruled “that the Constitution does not prohibit
the States from ‘death qualifying’ juries in capital cases.” 72 The concern raised in the question
was the same raised in these cases, namely “that the death qualification process potentially results

66
This “authoritative volume . . . defines and classifies mental disorders in order to improve diagnoses, treatment, and
research.” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders (DSM–5),
https://www.psychiatry.org/psychiatrists/practice/dsm (2018).
67
Ford v. Wainwright, 477 U.S. 399, 409-10 (1986).
68
18 Pa.C.S. § 315. To be excused for the crime due to legal insanity, it would mean that at the time of the offense,
the defendant did not “know the nature and quality of the act he was doing or, if the actor did know the quality of the
act, that he did not know that what he was doing was wrong.” Id.
69
Ford, 477 U.S. at 417.
70
All three condemnees who were executed in Pa. since 1962 voluntarily dropped their resistance to execution by
relinquishing their appeals and all three had psychiatric problem, supra pp. 1-2 notes 7, 8.
71
Infra pp. 143-52.
72
Lockhart v. McCree, 476 U.S. 162, 173 (1986). This assumption was made after the Court pointed out “several
serious flaws in the evidence” introduced via the social science studies. Id. at 168-73.

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in biased juries”73 because of the resultant composition. There is no limitation to challenging
jurors for cause, but peremptory challenges “[i]n trials involving a capital felony . . . when there is
only one defendant” are limited to 20 per side.74 A challenge for cause occurs when a juror
demonstrates bias in his responses to questioning or when he says something that indicates that he
will not follow instructions or be impartial. A peremptory challenge is used to exclude a juror
because of a suspected or presumed bias, instead of an expressed one.75 Peremptory challenges
are restricted to race because “the Equal Protection Clause forbids a party to challenge potential
jurors solely on account of their race or on the assumption that black jurors as a group will be
unable impartially to consider the State's case against a black defendant.”76 It was subsequently
ruled that in the exercise of peremptory challenges, “gender, like race, is an unconstitutional proxy
for juror competence and impartiality.”77 “Research examining the effects of death qualification
on jury composition suggests that death qualification often results in juries that are biased in ways
that consistently disadvantage capital defendants.”78 Because of General Social Survey and other
social science research, “research suggests that death qualification is more likely to eliminate
members of some groups than others.”79 Systematic exclusion of specific social groups could
occur because some groups might be “consistently more in favor of the death penalty than
another”, who then could be excluded by “prosecutors who know such statistics”.80 As noted
elsewhere in the report, some religions have official stances on the death penalty which might
impact “jury selection practices”.81 In short, “findings support the idea that the death qualification
process systematically eliminates jurors who belong to certain social and demographic groups”
and “can also change the way in which case facts are interpreted and discussed by a jury.”82 To
exclude potential jurors, attorneys, who know statistical research on demographics and attitudes,
might rely on that knowledge to “exclude potential jurors . . . to increase the possibility of creating
a jury that will decide in their favor.”83 Maybe more often, “attorneys are likely to base their
exclusions on intuitions related to certain attitudes and beliefs associated with individuals and their
group statuses.”84 The concern “related to death-qualified jurors is that the death qualification
process itself influences jurors such that jurors who experience the death qualification process hold
more pro-prosecution or anti-defendant perceptions of the trial information than jurors who do not
experience death qualification.”85 Repeatedly asking jurors “whether they are able to give the
death penalty, assuming the defendant is guilty . . . reiterates the statement that the defendant is

73
Logan A. Yelderman et al., Capital-izing Jurors: How Death Qualification Relates to Jury Composition, Jurors’
Perceptions, & Trial Outcomes, in Advances in Psychology & Law: Vol. 2, 27, 32 (B.H. Bornstein & M.K. Miller
eds. 2016).
74
Pa. R. Crim. P. 634(A)(3). For alternate jurors, each side has one peremptory challenge for every two alternate
jurors selected. Id. 633(B).
75
Yelderman et al., supra note 73, at 32.
76
Batson v. Ky., 476 U.S. 79, 89 (1986).
77
J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 129 (1994). “[T]he Equal Protection Clause forbids peremptory challenges
on the basis of gender as well as on the basis of race.” Id. at 130.
78
Yelderman et al., supra note 73, at 33 (citation omitted).
79
Id. at 35-36.
80
Id. at 35.
81
Id. at 36. A sample of some religious stances appears infra pp. 212-13
82
Yelderman et al., supra note 73, at 36.
83
Id. at 43.
84
Id. “Specifically, attorneys might try to identify and exclude jurors who would vote against their side.” Id.
85
Id. at 43-44.

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guilty.”86 If “specific social groups and individuals with shared attitudes or beliefs that are thought
of as prejudicial” are excluded, the “death-qualified juries . . . might actually be more susceptible
to systemic biases”.87 Effects of death qualification “on juries and trial outcomes . . . should
continue to be studied”, especially because of “findings that demonstrate that the death
qualification process produces conviction prone juries”.88

In 2003, Joint State Government Commission published Minority Representation in the

Jury Selection Process in Pennsylvania.89 The data gathered for this report did not reveal counties
excluding large, distinctive groups from the jury pool in unconstitutional proportions but showed
that “some counties could stand to improve their representation of minorities on juries.”90 This
analysis was not limited to juries in capital cases. Since this report was published, Pennsylvania
law was amended to add exemptions from jury duty,91 authorize expansion of the master list of
prospective jurors92 and establish a statewide jury information system.93 This report has not been
updated so that it is unknown whether and how much the statutory amendments have impacted the
representation of minorities on juries, capital or otherwise. One of the recommendations in the
report is for “[t]he judicial system” to

voluntarily, routinely monitor itself to determine if it is fulfilling its constitutional

obligation to draw jurors from a cross section of the community. . . . . As the
constitutional obligation to draw jurors from a representative cross section of the
community is an essential component of a right to a jury trial, it would seem that
the judicial system itself could and should make it easier for parties to learn relevant
numerical information specifying demographic data about whom courts summon
rather than leave it up to aggrieved individuals or classes to try to calculate
information the court could easily collect.94

One remedy supported by the subcommittee on procedure would be enactment of a Racial

Justice Act to statutorily allow death sentences to be challenged on a statistical basis instead of on
the basis of purposeful discrimination.

“Prior research has repeatedly revealed that jurors (1) base their decisions on erroneous
assumptions about the early release of those who are not sentenced to death, (2) prematurely decide
the punishment before hearing sentencing evidence and instructions, and (3) fail to understand
sentencing instructions.”95 The Commonwealth “is one of only two states with life” imprisonment
“without parole . . . that does not require that juries be told in every capital case that there is no

86
Id. at 44. If so, “death-qualified jurors enter the trial with a biased presumption of innocence instead of a complete
presumption of innocence.” Id. at 46.
87
Id.
88
Id.
89
http://jsg.legis.state.pa.us/resources/documents/ftp/publications/2003-52-JURY.PDF.
90
Id. at 3, 81, 87.
91
42 Pa.C.S. § 4503(a)(5)-(8).
92
Id. § 4521(a)(3)(v).
93
Id. § 4521.1.
94
Id. at 3, 87. Presumably, this would be done by court administrators. Id.
95
Wanda D. Foglia, They Know Not What They Do: Unguided & Misguided Discretion in Pa. Capital Cases, 20 Just.
Q. 187, 188 (2003).

- 12 -
possibility of parole”.96 This research has been partially updated since then, both in Pennsylvania
and elsewhere; however, because the researcher who was updating this died, it might not be
completed. Nonetheless, “the percentages getting things wrong was remarkably similar to what”
was “found in the original study. . . . . The only improvement was that the median estimate for
how long someone usually spends in prison if they don't get death went from 15 years to 25 years,
but 25 years is still underestimating the reality.”97 The membership of the subcommittee writing
these suggested standard criminal jury instructions is comprised of attorneys and judges.
Linguists, social scientists and psychologists have not been employed to revise these standard
suggested instructions. It would seem to the subcommittee that if the Commonwealth decides to
assure that jurors are able to understand and apply instructions in determining guilt or innocence
and the appropriate punishment in a capital case, there would need to be formal, empirical feedback
on a routine basis. If jurors are unable to understand and apply these instructions as research
discussed above indicates, the subcommittee on procedure advocates that suggested standard
instructions be rewritten by attorneys and judges with the assistance of linguists, social scientists
and psychologists, as well as the data disclosing the misunderstanding and misapplication. Even
with routine, empirical feedback and additional professional assistance drafting these standard
instructions, they would still be suggested rather than mandated.

(8) State appeals and postconviction: Whether there are adequate procedures in
place to assure that serious error in capital cases is identified and corrected and to
what extent procedural doctrines, such as waiver or forfeiture, operate to prevent
judicial review of serious constitutional claims on the merits;98

There are both adequate and inadequate procedures to assure that serious error in capital
cases is identified and corrected, and procedural doctrines sometimes prevent, but perhaps more
often, delay judicial review of serious constitutional claims on their merits. The procedures and
procedural doctrines that are probably intended to limit judicial review for systematic efficiency
and effectiveness of the death penalty likely more often generate systematic inefficiency and
ineffectiveness of the death penalty. This is borne out by the fact that the Commonwealth has
executed three condemnees during the last 56 years, and all three of them relinquished their
appeals.99 There are other data showing that less than 3% of condemnees who had their original
death sentences judicially vacated and subsequently disposed of since 1995 were resentenced to
death.100

The subcommittee on procedure advocates reinstating the practice of relaxed waiver on

direct capital appeals as it was employed in the 1980s and 1990s, in which Pennsylvania’s Supreme
Court would have a “duty to transcend procedural rules” in capital cases, 101 and to “address and,
if possible from the record, resolve all significant issues perceived by this Court or raised by the

96
Id.
97
E-mail from Wanda D. Foglia, Professor of L. & Just. Studies, Rowan U. (Aug. 2, 2015) (on file with Pa. J. State
Gov’t Comm’n).
98
Infra pp. 152-58.
99
Supra pp. 1-2, notes 7, 8.
100
Supra p. 2.
101
Commw v. McKenna, 383 A.2d 174, 181 (Pa. 1978).

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parties” irrespective of waiver.102 Generally, “on capital direct appeals, claims that were not
properly raised and preserved in the trial court are waived and unreviewable” but “may be pursued
under the” Post Conviction Relief Act “as claims sounding in trial counsel's ineffectiveness or, if
applicable, a statutory exception to the” act’s “waiver provision.”103 Delaying review of a
potentially dispositive issue until the petitioner reaches post-conviction proceedings, when that
issue could have been resolved on the record on direct appeal, is inefficient for the judiciary and
everyone else involved in proceedings.104 When Pennsylvania’s Supreme Court dropped relaxed
waiver, it did “not foreclose the possibility that a capital appellant may be able to describe why a
particular waived claim is of such primary constitutional magnitude that it should be reached on
appeal.”105 By dropping the relaxed waiver rule in a self-contradictory manner to rely on a self-
contradictory Post Conviction Relief Act, one does not arrive at judicial efficiency. Moreover, the
Court’s justification for abrogating relaxed waiver overlooks the statutory authority it has “to
correct errors at trial” regardless of waiver, when it automatically reviews death sentences.106 It
also completely overlooks the practical reality that more than 97% of post-conviction reversals
disposing of death sentences in Pennsylvania since 1978 have subsequently resulted in a sentence
of life imprisonment or less. The same judicial opinion that rejected the justification of “relaxation
of waiver principles on direct appeal . . . on grounds of judicial economy because it reduces the
number and necessity of post-conviction relief petitions” because the “efficient use of the resources
of this court’s resources” were frustrated by the relaxed waiver doctrine also contended that
abrogation of relaxed waiver would do no harm because “[a]ny meritorious claims which escape
counsel’s recognition on direct appeal can then be raised on grounds of counsel’s
ineffectiveness.”107 But preserving judicial resources on direct appeal by limiting the scope of
direct review does not serve judicial economy, the public fisc, or the interests of justice by
burdening post-conviction review with claims that could have been earlier resolved, by
unnecessarily burdening the post-conviction process with claims of ineffectiveness for prior
counsel’s failures to preserve for appeal claims that could have been decided under the relaxed
waiver rule, and by keeping prisoners who have meritorious claims in death-row confinement for
the extra years needed for post-conviction review and appeal. Neither judicial economy nor
fairness is served when the more than 97% of cases in which death sentences are converted to life
sentences or less leave death row only after post-conviction review. Finally, since the statute
provides for automatic judicial review of death penalties to correct errors at trial, the judiciary

102
Commw. v. Frey, 475 A.2d 700, 707 n.4 (Pa. 1984). The Court later described the relaxed waiver rule as
discretionary, Commw. v. Malloy, 856 A.2d 767, 778 (Pa. 2004), but for more than twenty years, it was “this Court’s
practice to address all issues arising in a death penalty case irrespective of a finding of waiver.” Commw. v. Banks,
656 A.2d 467, 470 n.7 (Pa. 1995); Commw. v. Jermyn, 709 A.2d 849, 856 n.20 (Pa. 1998); Commw. v. Morales, 701
A.2d 516, 520 n.13 (Pa. 1997); Commw. v. Morris, 684 A.2d 1037, 1042 n.11 (Pa. 1996). The Court said the relaxed
waiver rule “requires us to examine” technically waived issues, Commw. v. Simmons, 662 A.2d 621, 636 (Pa. 1995),
and stressed that, in a death penalty case, an issue “cannot be considered waived,” Commw. v. Baker, 511 A.2d 777,
790 n.10 (Pa. 1986).
103
Commw. v. Freeman, 827 A.2d 385, 402 (Pa. 2003).
104
The joint trial of co-defendants Kelley O’Donnell and William Gribble illustrates this point. O’Donnell was
awarded a new sentencing hearing in 1999 after being granted penalty-phase relief on a claim raised and decided under
the relaxed waiver rule. Commw. v. O’Donnell, 740 A.2d 198 (Pa. 1999). Gribble’s lawyer failed to raise the issue—
equally applicable to his case—on direct appeal, and it took eight more years, including a remand by the Pennsylvania
Supreme Court for further post-conviction proceedings, before Gribble’s post-conviction petition was resolved.
105
Freeman, 827 A.2d at 402.
106
42 Pa.C.S. § 9711(h).
107
Commw. v. Albrecht, 720 A.2d 693, 700 (Pa. 1998).

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should not insist on a timely notice of appeal to consider any claims unassociated with the
statutorily-mandated review of the sufficiency of the evidence. This would be a corollary to
Pennsylvania Rules of Civil Procedure that are liberally construed and applied “to secure the just,
speedy and inexpensive determination of every action”.108 The imposition of capital punishment
might be a penalty that is unique enough for “an appellate court” to “consider the interests of
society as a whole in seeing to it that justice is done, regardless of what might otherwise be the
normal procedure” by upholding “the mandates of the constitution over the countervailing
considerations of normal appellate procedure”, especially since the doctrine of waiver’s purported
“means of promoting jurisprudential efficiency by avoiding appellate court determinations of
issues which the appealing party had failed to preserve” has not been realized in the capital
context.109

(9) Clemency: Whether the current clemency process has procedures in place to
assure that it functions as a safety net to assure that factual and procedural errors
that directly undermine the reliability and fairness of a capital sentence are
remedied;110

The short answer is, simply, no. The Governor may exercise this authority for any reason
or no reason, and this includes the circumstance where he believes the capital sentence is unreliable
or unfair. However, the Governor can commute or pardon a capital sentence only upon receipt of
a written and unanimous recommendation from the Board of Pardons.111 The Board may likewise
base its recommendation on any consideration, including the innocence of the convicted criminal
or the unfairness of the sentence. The Board of Pardons serves as a check on any Governor that
might wield the clemency power unwisely, arbitrarily or for political gain. The Board of Pardons
was not established to provide a “safety net” where the criminal justice system has failed to
produce an accurate and fair judgment of guilt in a capital case. Accordingly, the Board of Pardons
has only limited power, i.e., to make recommendations. Further, its recommendation can be
ignored by the Governor.

Were the General Assembly to decide to develop a “safety net” to address unreliable or
unfair capital sentences, it could amend the Post Conviction Relief Act,112 which already “provides
for an action by which persons convicted of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief.”113 These amendments could confer additional authority
upon the judiciary, beyond that which presently exists, to order relief in a particular circumstance.
The Constitution could also be amended to reduce the requirement of the board’s unanimity to its
majority recommendation for the Governor to consider clemency; however, the Board could still
base its recommendation on any consideration and the Governor could still ignore a favorable
recommendation.

108
Pa. R. Civ. P. 126.
109
Commw. v. McKenna, 383 A.2d 174, 180-81 (Pa. 1978).
110
Infra pp. 158-60.
111
Id.
112
42 Pa.C.S. §§ 9541-9546.
113
Id. § 9542. See also, Pa. R. Crim. P. 900-910, which govern capital and noncapital cases under the Post Conviction
Relief Act.

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 (10) Penological intent: Whether the death penalty rationally serves a legitimate
penological intent such as public safety or deterrence;114

For the most part, the debate concerning capital punishment centers on the aims of
deterrence, incapacitation and retribution—increasingly the last of these. There is a great deal of
disagreement about whether the death penalty meaningfully advances the deterrence purpose; it
certainly advances the aims of retribution and incapacitation, and the debate largely centers on
whether it does this more effectively than alternatives. Insofar as advancing these latter two
purposes, the death penalty is no more effective than life imprisonment if executions do not occur.
Whether the death penalty deters first-degree murder has long been a matter of debate between
proponents and opponents of the death penalty. The evidence relating to deterrence is inconclusive,
and leading advocates on both sides treat this issue as one of more or less secondary importance.
In a state like Pennsylvania, with a relatively large number of death sentences but almost no
executions, the deterrent effect of the death penalty is attenuated, regardless of whether a more
vigorously applied death penalty would have a deterrent effect.115 A prominent research study of
the death penalty’s effectiveness as a deterrent reached this sound but noncommittal conclusion:

[R]esearch to date on the effect of capital punishment on homicide is not

informative about whether capital punishment decreases, increases, or has no effect
on homicide rates. Therefore, . . . these studies [should] not be used to inform
deliberations requiring judgments about the effect of the death penalty on homicide.
Consequently, claims that research demonstrates that capital punishment decreases
or increases the homicide rate by a specified amount or has no effect on the
homicide rate should not influence policy judgments about capital punishment.116

(11) Innocence: Whether there is a risk of execution of an innocent person and

whether there are adequate procedural protections in place to prevent an innocent
person from being sentenced to death and executed;117

Since 1973, 162 United States’ condemnees turned out to be innocent after having been
exonerated via subsequent acquittals or dismissals of the charges of the crime for which they were
originally condemned, and pardons granted for innocence.118 The “[a]verage number of years
between being sentenced to death and exoneration” is “11.3 years”.119 Six of these exonerees are
from Pennsylvania, where they averaged just over nine years between being condemned and then
exonerated.120

114
Infra pp. 160-70.
115
Carol S. & Jordan M. Steiker, A Tale of Two Nations: Implementation of the Death Penalty in ‘Executing’ v.
‘Symbolic’ States in the U.S., 84 Tex. L. Rev. 1869, 1922 (2006).
116
Nat’l Research Council of the Nat’l Acads., Deterrence & the Death Penalty 102 (Daniel S. Nagin & John V.
Pepper, eds., 2012), available at http://www.nap.edu/download.php?record_id=13363.
117
Infra pp. 171-74.
118
Death Penalty Information Ctr., The Innocence List, https://deathpenaltyinfo.org/innocence-list-those-freed-death-
row (last updated Apr. 19, 2018).
119
Id.
120
Id.

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 If the Commonwealth were executing condemnees, the possibility that one or more
factually innocent persons might be condemned and executed could not be eliminated,
notwithstanding procedural safeguards intended to minimize and reduce this possibility. It might
be better stated that the procedural safeguards are really intended to eliminate this possibility, but
an assurance of 100% effectiveness would be difficult to establish and unlikely to occur. Our
Commonwealth has executed three condemnees during the last 56 years. Since all three
condemnees relinquished their resistance to execution, one would presume they were factually
guilty. The only certain way to eliminate the risk of condemning and executing a factually
innocent person would be to eliminate the sentence and not execute any convict.

(12) Alternatives: Whether alternatives to the death penalty exist that would
sufficiently ensure public safety and address other legitimate social and penological
interests;121

While the topics of penological purpose are analytically distinct, to consider the
penological purpose of the death penalty without regard to alternatives inserts the artificial
assumption that the only alternative to the death penalty would be to set the perpetrator free.
Because the severely punitive alternative of life imprisonment without parole is available, the
subcommittee on policy concludes that the death penalty is unnecessary, given the many objections
to its use, the number of innocent persons wrongfully convicted and sentenced to death, and the
effectiveness of the alternative.

(13) Counsel: The quality of counsel provided to indigent capital defendants and
whether such counsel and the process for providing counsel assures the reliability
and fairness of capital trials;122

The subcommittee on procedure generally endorses a report of the task force and advisory
committee on services to indigent criminal defendants123 but focused on indigent capital
defendants and limits its comments to that subset. The advisory committee that prepared that
report found some indigent defense practitioners failed to meet professional standards, partially
because the system delivering that service is not standardized to train or supervise statewide but
does so on a county-by-county basis.124 The Commonwealth’s lack of support for these services
undermines “the effectiveness of indigent defense”,125 which is borne out by successful challenges
to death penalties based upon ineffective assistance of counsel. As of May 2018, 150 Pennsylvania
death-row inmates sentenced to death under Pennsylvania’s 1978 death-penalty statute have had
their convictions or sentences overturned on the basis of ineffective assistance of counsel. 126 Death
sentences in 93 of these cases were overturned because of counsel’s failure to investigate and
present mitigating evidence in the penalty phase.127 The inadequate remuneration of assigned

121
Infra pp. 174-83.
122
Infra pp. 183-86.
123
Pa. J. State Gov’t Comm’n, supra note 19.
124
Id. at 5.
125
Id.
126
Robert Brett Dunham, Pa. Capital Convictions & Death Sentences Rev’d as a Result of Ineffectiveness of Counsel
(Death Penalty Information Ctr. 2018).
127
Of these 93, 68 were reversed by state courts & 25 by federal courts. Id., Pa. Capital Case Cite List of Reversals
Because of Ineffective Assistance of Counsel (Death Penalty Information Ctr. 2018). Other reversals related to

- 17 -
counsel can “result in poor quality representation.”128 “Poor systems of defense do not make
economic sense.”129

“[T]he quality of the defense representation provided by the Commonwealth to indigent

capital defendants is an issue” that Chief Justice Saylor has “written on many times in appellate
decisions.”130

I am unable to agree with the suggestion that the presumption of effectiveness by

and large reflects the actual state of capital defense representation in Pennsylvania.
I would submit that, in fact, we have seen more than enough instances of deficient
stewardship to raise very serious questions concerning the presumption's accuracy.
It is my considered position, like that of many others, that a contributing factor may
be the pervasive underfunding of indigent defense.131

Justice Saylor called for “a collaborative conversation among the judicial, legislative, and
executive branches to institutionalize statewide remedies and facilitate ongoing improvements”
and noted “[t]he importance of legislative involvement”.132 The right to counsel is grounded in
both our Commonwealth’s and national constitutions.133

The subcommittee generally endorses Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases that were published in 2003 by American Bar Association
“to set forth a national standard of practice . . . to ensure high quality legal representation” within
“any jurisdiction.”134

(14) Secondary trauma: The impact of the death penalty process on law
enforcement, prosecutors, defense counsel, judges, jurors, correctional officers,
family members and loved ones of victims and family members of the accused;135

To try to assess the impact of the death penalty process on judges, prosecutors, public
defenders and victim advocates, surveys were distributed in nine judicial districts of varying
population sizes and caseloads that had past or current capital murder cases.136

failures to investigate & present guilt-stage defenses, failures to request or object to instructions, failures to object to
improper evidence or argument, failures relating to guilty pleas or trial waiver and making a deficient or affirmatively
harmful argument. Id.
128
Pa. J. State Gov’t Comm’n, supra note 19, at 5, 47-48.
129
Saylor, supra note 20, at 38.
130
Id.at 3.
131
Commw. v. King, 57 A.3d 607, 636 (Pa. 2012) (Saylor, J., concurring).
132
Id. at 811 n.3.
133
Pa. Const. art. I, § 9; U.S. Const. amend. VI.
134
Am. Bar Ass’n, Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases, 31
Hofstra L. Rev. 913, 919 (2003). Am. Bar Ass’n also published Ten Principles of a Pub. Defense Delivery Sys. (2002),
https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinci
plesbooklet.authcheckdam.pdf. These principles provide a guide of “valuable measures of the prevailing professional
norms of effective representation”. Padilla v. Ky., 599 U.S. 356, 367 (2010).
135
Infra pp. 186-89.
136
Counties of Adams, Allegheny, Berks, Dauphin, Lancaster, Montgomery, York & Westmoreland & City of Phila.
Judges were surveyed in 2015. Prosecutors, public defenders and victim advocates were surveyed in 2013.

- 18 -
 Cumulatively, more than 64% of the responses indicated that a typical, capital murder case
causes more stress or anxiety than a typical, noncapital murder case. This conclusion was reached
by a majority or 100% for each category of respondents except for victim service providers, more
than 53% of whom indicated that a typical, capital murder case causes about the same amount of
stress or anxiety.

Cumulatively, 70% of the responses indicated that a typical, capital murder case causes no
difference in adverse health conditions or consequences compared to a typical, noncapital murder
case. Cumulatively, more than 73% of the responses indicated that a typical, capital murder case
causes no difference in consumption of alcohol and other drugs or medications, compared to a
typical, noncapital murder case.

Cumulatively, more than 54% of the responses indicated that a typical, capital murder case
causes no difference in adverse consequences on one’s family, home or social life, compared to a
typical, noncapital murder case. This conclusion was reached by a majority for each category of
respondents except for public defenders, 80% of whom indicted that a typical, capital murder case
cause more adverse consequences on one’s family, home or social life.

Cumulatively, more than 70% of the responses indicated that a typical, capital murder case
causes more emotional strain than a typical, noncapital murder case. This was a majority or 100%
of responses for each category of respondents except for prosecutors, half of whom indicated that
a typical, capital murder case causes more emotional strain compared to a typical, noncapital
murder case and the other half indicated no difference in emotional strain between the two.

Cumulatively, more than 58% of the responses indicated that a typical, capital murder case
causes no difference in religious, spiritual or moral consideration, introspection or counsel,
compared to a typical, noncapital murder case.

In 2013, The Pennsylvania State University and Department of Corrections staff

administered surveys to State Correctional Institution Greene correctional officers, victims’ family
members, and inmates’ loved ones.137 The correctional officers’ hardcopy survey consisted of 35
questions designed to measure their workplace conditions, stress, anxiety and background
characteristics. The victims’ family member survey was administered via an online survey with
over 80 questions covering post-traumatic stress disorder, depression, views on the death penalty
and demographic/background characteristics. Survey requests were sent to 440 eligible
participants with valid addresses on file at the Office of Victim Advocate. The inmates’ loved
ones’ survey was administered via a hardcopy survey of 31 questions covering post-traumatic
stress disorder, depression, views on the death penalty and demographic/background
characteristics. Eligible participants were loved ones (one per inmate) who were visiting inmates.
Eligible participants were provided survey packets in visitation waiting rooms by prison staff.

137
There is a gap in services because convicts relatives have traditionally been disregarded. Historically, law and
practice did not recognize victims of crime as victims when it came to services either. One might not be too
sympathetic towards inmates’ relatives; however, their children are typically adversely impacted by the incarceration
of parent. Dep’t of Corrections’ initiatives relating to children of incarcerated parents appear at
http://www.cor.pa.gov/About%20Us/Initiatives/Pages/Children-of-Incarcerated-Parents.aspx (2018).

- 19 -
 The survey revealed that in no instance was the capital punishment condition associated
with statistically higher PTSD, depression or stress than the non-capital punishment condition. For
correctional officers and victims’ family members, overall reports of PTSD, depression and stress
were low to moderate, suggesting that few of the respondents were suffering from mental health
difficulties. This was not the case for inmates’ loved ones and their children. Inmates’ family
members reported relatively high rates of PTSD and depression compared to national and high-
risk (e.g., deployed military) populations. Although the mental health challenges of inmates’
families do not appear to be directly connected to capital punishment, they do warrant additional
attention and point to a vulnerable population that might not be receiving adequate therapeutic
services.

The relatively small sample sizes did not provide the statistical power to detect small
differences between the experimental (i.e., capital punishment) and control (i.e., non-capital
punishment) conditions. However, although the samples were relatively small, the observed
differences were small enough that it is unlikely they would have reached significance even with
greater numbers of respondents.

(15) Length and conditions of confinement on death row: Whether the

conditions comply with the requirements of the United States Constitution, the
Constitution of the Commonwealth of Pennsylvania and standards of international
law and the impact of those conditions on correctional officers;138

Each facility of Department of Corrections audited to date has achieved initial accreditation
or reaccreditation by American Correctional Association.139 It is under no judicial orders or
consent decrees regarding conditions of confinement in Capital Case Units, otherwise known as
death row.140 So far as the subcommittee on impact is aware, the department complies with
constitutional requirements for confinement. The only way to know for certain is after an inmate
has challenged the department, claiming a constitutional violation, and the judiciary rules
accordingly.141 An example of learning about a constitutional violation occurred last year, when
the judiciary announced “a clearly established due process right under” U.S. Const. amend. XIV
“to avoid unnecessary and unexamined solitary confinement on death row.”142 This was a recently
recognized “due process right” that meant that the departmental policy of keeping an inmate in
“the Capital Case unit” after being resentenced to life imprisonment while the district attorney
appealed the resentencing is unconstitutional when “reflexively imposed without individualized
justification.”143 The department is currently defending a class action lawsuit challenging the

138
Infra pp. 189-99.
139
Am. Correctional Ass’n, Accredited Facilities,
http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Standards_and_Accreditation/SAC_AccFacHome.aspx?Websi
teKey=139f6b09-e150-4c56-9c66-284b92f21e51&hkey=f53cf206-2285-490e-98b7-66b5ecf4927a&CCO=2#CCO
(last visited June 5, 2018).
140
E-mail from Diana Woodside, Dir. of Policy, Grants & Legis. Affairs, Pa. Dep’t of Corrections (June 11 & 15,
2018) (on file with Pa. J. State Gov’t Comm’n).
141
An example of how this might arise, is the mental health investigation by U.S. Dep’t of Just., infra p. 125-26.
142
Williams v. Pa. Sec’y of Corrections, 848 F.3d 549, 574 (3d Cir. 2017).
143
Id. at 556-57, 572, 574. In other words, there must be “procedural protections” afforded inmates to “ensure that
continuing this level of deprivation is required for penological purposes”. Id. at 574.

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conditions of confinement on death row as an unconstitutional violation of the U.S. constitutional
prohibition on cruel and unusual punishment.144

It is more difficult to assess whether confinement on death row in Pennsylvania meets the
standards of international law. The department does not officially recognize these standards and
departmental staff were unable to indicate one way or the other whether the conditions of
confinement on death row meet these standards. It seems as though the consensus of developed
countries is that the punishment of execution should be abolished. To the extent that other
countries use capital punishment, it appears that Pennsylvania largely comports with the standards
of confinement conditions, other than the lengthy interval between condemnation and execution.
This would be due to the presumptive stress of awaiting one’s own execution; however,
condemnees do not seem to be eager to advance their own executions to relieve the presumptive
stress of the wait.

Correctional officers were surveyed on the impact of conditions of confinement on death

row.145

Length of confinement varies per inmate, primarily due to their date of conviction.
Currently, the longest serving inmate on death row resides at State Correctional Institution Greene.
Inmate No. AM-5999 was sentenced to death in 1983; later this year, this inmate will have
completed his thirty-fifth year on Pennsylvania’s death row.146 The average length of confinement
for all inmates on death row is 17.49 years.

The general understanding of constitutional compliance is framed by a ruling applying the

U.S. constitution to prison conditions.147 The constitution “’does not mandate comfortable
prisons,’ but neither does it permit inhumane ones, and it is now settled that ‘the treatment a
prisoner receives in prison and the conditions under which he is confined are subject to scrutiny
under the Eighth Amendment’.”148 This amendment restrains “prison officials, who may not, for
example, use excessive physical force against prisoners.”149 Prison officials must supply essential
items to the inmates, including food, clothing, shelter, medical care, and adequate steps to ensure
those measures are met.150

Although the department makes no representations about conformity with international

standards, several trends have emerged throughout Europe and other developed countries over the
years. European Union nations have abolished capital punishment. Issues in Europe include
arguments that capital punishment is torture, violating provisions against freedom from torture and
inhuman and degrading treatment or punishment.151

144
Reid v. Wetzel, No. 1:18-cv-00176 (M.D.Pa. 2018).
145
Infra pp. 187-89.
146
Pa. Dep’t of Corrections, supra note 14.
147
Farmer v. Brennan, 511 U.S. 825 (1994).
148
Id. at 832 (citation omitted).
149
Id.
150
Id.
151
Equality & Human Rights Comm’n, Art. 3, http://www.equalityhumanrights.com/about-us/our-work/human-
rights/human-rights-review-2012/articles/article-3 (2012).

- 21 -
 [I]n the Court’s view, having regard to the very long period of time spent on death
row in such extreme conditions, with the ever present and mounting anguish of
awaiting execution of the death penalty, and to the personal circumstances of the
applicant, especially his age and mental state at the time of the offence, the
applicant’s extradition to the United States would expose him to a real risk of
treatment going beyond the threshold set by Article 3 (art. 3).152

Earlier this year, the department changed the operation of its capital case units by allowing
capital case inmates to have the opportunity to participate in out-of-cell congregate activities for
at least 20 hours per week. Previously, the policy only generally provided capital case inmates
with the opportunity to have 10-12 hours of yard time out of cell per week in a setting that was
less conducive to congregate activity. Capital case inmates will continue to have the opportunity
to work as unit block workers, to have access to the law library, showers, telephone calls, non-
contact visits and medical and mental health services in accordance with policy. Capital case
inmates who have serious mental illness will continue to have enhanced opportunity to participate
in out-of-cell treatment services.

(16) Lethal injection: Whether there are adequate procedures and protocols in
place to assure that the death sentence is administered in accordance with
requirements of the United States Constitution and the Constitution of the
Commonwealth of Pennsylvania; and153

Based upon a U.S. Supreme Court ruling154 and its application by U.S. Court of Appeals
for the Third Circuit to Delaware’s lethal injection procedures and protocols,155 Pennsylvania’s
similar procedures and protocols appear to be constitutional. Bolstering this assessment is the U.S.
District Court grant of summary judgment to Secretary Wetzel because Pennsylvania’s protocol
did not have identified risks “very likely to cause . . . needless suffering in violation of” U.S. Const.
amend. VIII.156

Based upon a U.S. Court of Appeals ruling,157 Pennsylvania’s observational protocol

appeared to be unconstitutional. Bolstering this assessment is the U.S. District Court’s grant of a
preliminary injunction forbidding the Commonwealth’s secretary of corrections from obscuring
parts of an execution because the plaintiff was likely to succeed on the merits of its claim of

152
Soering v. U.K., 11 Eur. Ct. H.R. (1989), ¶ 111, available at
http://www.uio.no/studier/emner/jus/jus/JUR5710/h10/undervisningsmateriale/5nov_Soering-v-UK.pdf.
153
Infra pp. 199-203.
154
Baze v. Rees, 553 U.S. 35 (2008). “It is not disputed that Pennsylvania uses the same three-drug protocol that
Kentucky uses.” Chester v. Beard, 657 F.Supp.2d 534, 543 n.9 (M.D.Pa. 2009). But by 2012, Department of
Corrections “revised its lethal injection protocol”. Id., 2012 WL 4758346. (The protocol was revised in Aug. 2012.
Id., 2012 WL 5386129. It “supersedes all prior versions”. Id., 2012 WL 5389319.) This controlling opinion has
subsequently been applied to a similar method of execution using a substituted drug. Glossip v. Gross, 135 S.Ct.
2726, 2732-34 (U.S. 2015). This subsequent ruling found that petitioners’ did not prove a substantial risk posed by
the substituted drug compared to available alternative methods and the district court was not clearly erroneous in its
factual finding that the substituted drug would not “result in severe pain and suffering.” Id. at 2737-38.
155
Jackson v. Danberg, 594 F.3d 210, 222-23, 230 (3d Cir. 2010). Delaware’s capital sentencing scheme was
subsequently ruled unconstitutional on different grounds. Rauf. v. Del., 145 A.3d 430 (Del. 2016).
156
Chester v. Wetzel, 2015 WL 632374 at 10 (M.D.Pa. 2015).
157
Cal. 1st Amend. Coalition v. Woodford, 299 F.3d 868, 875 (9th Cir. 2002).

- 22 -
unconstitutionality.158 This suit was settled by the parties so that the protocol was changed. Now
“witnesses would be permitted to see and hear inside the lethal injection chamber from the time
the condemned inmate enters the chamber until the time he/she is pronounced dead. During the
last completed execution, in the late 1990’s, witnesses were only permitted to see the inmate
immediately before the administration of the lethal injection. They did not see the inmate enter
the chamber, they did not see the inmate strapped down, etc.”159

Pennsylvania’s constitutional prohibition against cruel punishments is co-extensive with

the U.S. constitutional prohibition against cruel and unusual punishment160 so that any distinction
between the two authorities would be factual rather than legal. Factors that have not been analyzed
for this are whether internal, departmental procedures suffice instead of regulations and the
continued availability of the drugs in the current protocol.

The Commonwealth’s lethal injection protocol is confidential so that the subcommittee on

procedure is uncertain what the current protocol is. Statutory confidentiality applies to the identity
of departmental employees, contractors and victims participating in the execution.161 The protocol
that the subcommittee considered was the information published in judicial opinions ruling on
litigation over its constitutionality.162 Some of these opinions are not reported but available
electronically via a subscription to Westlaw. The protocol revealed in these judicial opinions do
not violate the statute’s confidentiality requirement and could be public, which the subcommittee
on procedure advocates rather than a confidential one. The drugs used should appropriately be
selected by qualified, professional expertise to be delivered humanely and ethically.

There are potential, practical problems with the current protocol so far as the subcommittee
perceives it to be. Department of Corrections might not have or be able to obtain these drugs.
Perhaps further affecting the viability of the lethal injection protocol, is the fact that numerous
relevant organizations have taken positions that could hamper this method of execution.

(17) Public opinion: The opinions of Pennsylvania residents regarding capital

punishment, including whether it is a just and appropriate punishment and, if so,
under what circumstances should it be imposed;163

To determine Pennsylvania residents’ opinions about capital punishment, six public

opinion polls were analyzed about the death penalty. Two were conducted nationally: the 2016
Pew Research Center poll and the 2017 Gallup poll; and four surveyed only Pennsylvania
residents: the 2013 Pennsylvania State University poll, the 2015 Public Policy Polling poll, the
2015 Office of Victim Advocate poll, and the 2016 Pennsylvania State University poll.

158
The Phila. Inquirer v. Wetzel, 906 F.Supp.2d 362, 375 (M.D.Pa. 2012).
159
E-mail from Andrew Barnes, Legis. Liaison, Pa. Dep’t of Corrections (Nov. 13, 2013) (on file with Pa. J. State
Gov’t Comm’n).
160
Commw. v. Zettlemoyer, 454 A.2d 937, 967 (Pa. 1982).
161
61 Pa.C.S. § 4305(c).
162
Chester v. Wetzel, 2012 WL 5439054 (M.D.Pa. 2012), 2015 WL 632374 (M.D.Pa. 2015); The Phila. Inquirer v.
Wetzel, 906 F.Supp.2d 362 (M.D.Pa. 2012).
163
Infra pp. 203-13.

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 The questions in the Spring 2013 Pennsylvania State University Poll were sponsored by
Joint State Government Commission as part of this study. Overall, almost three quarters of
Pennsylvanians surveyed (72.3%) thought that the death penalty is a just and appropriate penalty
for intentional murder in the Commonwealth. Most respondents indicated they would change their
attitude towards the death penalty for those convicted of intentional murder based on how the
murder was carried out (21.6%) and the reasons for the murder (18.3%). Over half of
Pennsylvanians surveyed (53.5%) stated that the circumstances of an intentional murder would
determine what type of sentence they would ultimately choose. Due to the fact that this poll is
from 2013, it is unknown if these percentages reflect current perspectives.

Office of Victim Advocate’s survey of registered crime victims whose offenders were
under a sentence of death showed overwhelming support for the death penalty, but this was not a
survey of the general population nor a survey of registered crime victims in first-degree murder
cases in which the death penalty was sought but not returned and registered crime victims in first-
degree murder cases in which the death penalty was not sought.

The Spring 2016 Pennsylvania State University Poll showed less support for the death
penalty than the Spring 2013 poll; however, the questions differed. It can be difficult and imprecise
to compare polling from different years, asking different questions and sampling different
populations, but they could be perceived as collectively showing:

1) A majority of Pennsylvanians support the death penalty.

2) Support for the death penalty is declining.
3) A significant proportion of the population supports the idea of the death penalty but is
opposed to the death penalty as a matter of public policy because more respondents
favor the death penalty when asked for or against, but that percentage drops when given
the option of life imprisonment or death as a penalty.

Conclusions164

 Cost: There is a significant difference between the cost of the death penalty and the
cost of life in prison without parole.

 Bias and unfairness: The subcommittee on policy could not answer the question
relating to the selection of defendants for capital trials because the only recent study
was limited to examining cases resultant in convictions for murder of the first degree.

As for convictions of murder of the first degree, The Pennsylvania State University
researchers found disparate variability within those cases based on the race of the
victim, the type of the defendant’s legal representation, and the variation among
counties in the selection of those defendants for the death penalty. The largest and

164
Material for this report was developed by the subcommittees, infra p. 33.

- 24 -
 most prominent differences were those “among counties in death penalty outcomes and
the effects of other variables on death penalty outcomes”.165

 Proportionality: There is no process for determining whether the crimes for which
defendants receive the death penalty differ from the crimes for which defendants
receive life imprisonment (without parole). The statute lists aggravating
circumstances, which would allow the death penalty for one convicted of murder of the
first degree, but charging and plea bargaining are done at the county level.

The only available data is from the study detailed under the issue of bias and
unfairness, which was limited to those cases that had convictions for first-degree
murder. Justice Center for Research might be able to follow that study with one to
directly address this inquiry, but it will take years to accomplish.

 Impact on and services for family members: These services are paid for from a mix
of public and private funding. The services are generally but not precisely uniformly
available throughout the counties. When asked by staff, almost half of the advocates
felt that the services were sufficient, although this group of responders often
acknowledged that the loss of a family member or loved one through homicide left a
hole that could never be fully filled.

The cost of services that are currently provided to family members and loved ones
of murder victims can only be provided as part of the larger picture of state and federal
funding for victims within this Commonwealth. When asked if the costs were “more,
less or about the same as those services that you provide to victims of other crimes”,
the responses categorized costs for services provided for family members and loved
ones of murder victims cost as more than the services that the office provided for other
types of crime or the same amount as they would cost in response to the victim of a
different sort of crime, because they viewed the fixed operating costs of the office and
the fixed costs of the salary to be the same regardless of the service provided.

 Mental retardation: It could not be determined if procedural protections are adequate

to assure that people with intellectual disability are not being sentenced to death. The
percentage of inmates on death row with an IQ low enough to be diagnosed as
intellectually disabled is approximately the same as those serving life imprisonment for
murder of the first degree, both of which are between two and three times the
percentage with that low of an IQ in the general population.

 Mental illness: In 2018, Department of Corrections classified approximately a quarter

of the inmates on death row and a similar albeit slightly higher percentage of the life
prisoners for first-degree murder with an active mental disorder.166 In 2018, the recent

165
Kramer et al., supra note 26, at 121. E.g., “prosecutors in Allegheny County and Philadelphia were less likely to
seek the death penalty against defendants represented by public defenders than” in the other 16 counties in the field
study. Id. at 120-21.
166
Buklen, supra note 11 (Apr. 26, 2018). The difference between the percentages from 2013 to 2018 is approximately
150% higher for the inmates on death row now classified with an active mental disorder compared to five years earlier

- 25 -
 (albeit not current) need for mental health treatment, was approximately 43% for death
row inmates and almost 30% for the life prisoners for first-degree murder.167 As of
2016, 4.2% of U.S. adults in the U.S. were seriously mentally ill and 18.3% had some
kind of mental illness.168 It is believed that the proportion of inmates on death row
suffering from some type of mental illness is likely greater than in the general
population.

The current standard that is commonly used by practitioners to diagnose the level
of mental illness is Diagnostic and Statistical Manual of Mental Disorders (DSM—5)
from American Psychiatric Association.169

The inquiry on executing a mentally ill inmate has been partially judicially
resolved. A sentence of death may not be carried out “upon a prisoner who is
insane.”170 Even if a defendant is not legally insane, the subcommittee on policy
recommends extending a version of guilty but mentally ill as a bar to imposition of the
death penalty for the same reasons that legal insanity would excuse a crime or because
the defendant’s severe mental disorder significantly impaired his exercise of rational
judgment or conformance to legal requirements. This would allow a severely mentally
ill murderer to be punished in the same way that an intellectually disabled murderer is
rather than subject the former to condemnation but not the latter.171

 Juries: “Research examining the effects of death qualification on jury composition

suggests that death qualification often results in juries that are biased in ways that
consistently disadvantage capital defendants.”172 In short, “findings support the idea
that the death qualification process systematically eliminates jurors who belong to
certain social and demographic groups” and “can also change the way in which case
facts are interpreted and discussed by a jury.”173

The data gathered for a 2003 report did not reveal counties excluding large,
distinctive from the jury pool in unconstitutional proportions but showed that “some
counties could stand to improve their representation of minorities on juries.”174 This

and approximately 25% higher for those serving life imprisonment for first-degree murder now classified with an
active mental disorder than five years earlier.
167
Id. (June 13, 2018).
168
Nat’l Inst. of Mental Health, Mental Illness, http://www.nimh.nih.gov/health/statistics/prevalence/serious-mental-
illness-smi-among-us-adults.shtml (last updated 2017). Citing a study from 2004, Ctrs. for Disease Control &
Prevention publishes an estimated 25% of adult Americans “reported having a mental illness within the previous”
year. Ctrs. for Disease Control & Prevention, CDC Mental Ilness Surveillance,
https://www.cdc.gov/mentalhealthsurveillance/faqs.html (last reviewed 2013).
169
This “authoritative volume . . . defines and classifies mental disorders in order to improve diagnoses, treatment,
and research.” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders (DSM–5),
https://www.psychiatry.org/psychiatrists/practice/dsm (2018).
170
Ford v. Wainwright, 477 U.S. 399, 409-10 (1986).
171
All three condemnees who were executed in Pa. since 1962 voluntarily dropped their resistance to execution by
relinquishing their appeals and all three had psychiatric problems.
172
Yelderman et al., supra note 73, at 33 (citation omitted).
173
Id.
174
Id. at 3, 81, 87.

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 analysis was not limited to juries in capital cases. Since this report was published,
Pennsylvania law was amended to add exemptions from jury duty, 175 authorize
expansion of the master list of prospective jurors176 and establish a statewide jury
information system.177 This report has not been updated so that it is unknown whether
and how much the statutory amendments have impacted the representation of
minorities on juries, capital or otherwise.

“Prior research has repeatedly revealed that jurors (1) base their decisions on
erroneous assumptions about the early release of those who are not sentenced to death,
(2) prematurely decide the punishment before hearing sentencing evidence and
instructions, and (3) fail to understand sentencing instructions.”178 The membership of
the committee writing these suggested standard criminal jury instructions is attorneys
and judges. Linguists, social scientists and psychologists are not employed to revise
these standard suggested instructions. It would seem to the subcommittee on procedure
that if the Commonwealth decides to assure that jurors are able to understand and apply
instructions in determining guilt or innocence and the appropriate punishment in a
capital case, there would need to be formal, empirical feedback on a routine basis.

 State appeals and postconviction: There are both adequate and inadequate procedures
to assure that serious error in capital cases is identified and corrected and procedural
doctrines sometimes prevent but maybe more often delay judicial review of serious
constitutional claims on their merits. The procedures and procedural doctrines that are
probably intended to limit judicial review for systematic efficiency and effectiveness
of the death penalty likely more often generate systematic inefficiency and
ineffectiveness of the death penalty. This is borne out by the fact that the
Commonwealth has executed three condemnees during the last 56 years, and all three
of them relinquished their appeals showing that less than 3% of condemnees who got
their original death sentences judicially vacated and subsequently disposed since 1978
were resentenced to death.

 Clemency: The current clemency process does not have procedures in place to assure
that it functions as a safety net to assure that factual and procedural errors that directly
undermine the reliability and fairness of a capital sentence are remedied.

 Penological intent: For the most part, the debate concerning capital punishment
centers on the aims of deterrence, incapacitation and retribution—increasingly the last
of these. There is a great deal of disagreement about whether the death penalty
meaningfully advances the deterrence purpose; it certainly advances the aims of
retribution and incapacitation, and the debate largely centers on whether it does this
more effectively than alternatives. Insofar as advancing these latter two, it is no more
effective than life imprisonment if executions do not occur.

175
42 Pa.C.S. § 4503(a)(5)-(8).
176
Id. § 4521(a)(3)(v).
177
Id. § 4521.1.
178
Foglia, supra note 95, at 188 (2003).

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  Innocence: If the Commonwealth were executing condemnees, a possibility that one
or more factually innocent persons might be condemned and executed could not be
eliminated notwithstanding procedural safeguards intended to minimize and reduce this
possibility. The only certain way to eliminate the risk of condemning and executing a
factually innocent person would be to eliminate the sentence and not execute any
convict.

 Alternatives: Because the severely punitive alternative of life imprisonment without

parole is available, the subcommittee on policy concludes that an alternative to the
death penalty exists that would sufficiently ensure public safety and address other
legitimate social and penological interests.

 Counsel: The subcommittee on procedure generally endorses a report of the task force
and advisory committee on services to indigent criminal defendants 179 but focused on
indigent capital defendants and limits its comments to that subset. The advisory
committee that prepared that report found some indigent defense practitioners failed to
meet professional standards, partially because the system delivering that service is not
standardized to train or supervise statewide but does so on a county-by-county basis.180
The Commonwealth’s lack of support for these services undermines “the effectiveness
of indigent defense”,181 which is borne out by successful challenges to death penalties
based upon ineffective assistance of counsel.

 Secondary trauma: To try to assess the impact of the death penalty process on judges,
prosecutors, public defenders and victim advocates, surveys were distributed in nine
judicial districts of varying population sizes and caseloads that had past or current
capital murder cases.182 A typical, capital murder compared to a typical, noncapital
murder case resulted in cumulative supermajorities indicating more stress or anxiety
and emotional strain but no difference in adverse health conditions or consequences.
For the same comparison, cumulative simple majorities reported no difference in
adverse consequences on one’s family, home or social life nor in religious, spiritual or
moral consideration, introspection or counsel.

In 2013, The Pennsylvania State University and Department of Corrections

staff administered surveys to State Correctional Institution Greene correctional
officers, victims’ family members, and inmates’ loved ones.183 The survey revealed
that in no instance was the capital punishment condition associated with statistically

179
Pa. J. State Gov’t Comm’n, supra note 19.
180
Id. at 5.
181
Id.
182
Counties of Adams, Allegheny, Berks, Dauphin, Lancaster, Montgomery, York & Westmoreland & City of Phila.
Judges were surveyed in 2015. Prosecutors, public defenders and victim advocates were surveyed in 2013.
183
There is a gap in services because convicts relatives have traditionally been disregarded. Historically, law and
practice did not recognize victims of crime as victims when it came to services either. One might not be too
sympathetic towards inmates’ relatives; however, their children are typically adversely impacted by the incarceration
of parent. Dep’t of Corrections’ initiatives relating to children of incarcerated parents appear at
http://www.cor.pa.gov/About%20Us/Initiatives/Pages/Children-of-Incarcerated-Parents.aspx (2018).

- 28 -
 higher PTSD, depression or stress than the non-capital punishment condition. For
correctional officers and victims’ family members, overall reports of PTSD, depression
and stress were low to moderate, suggesting that few of the respondents were suffering
from mental health difficulties. This was not the case for inmates’ loved ones and their
children. Inmates’ family members reported relatively high rates of PTSD and
depression compared to national and high-risk (e.g., deployed military) populations.

 Length and conditions of confinement on death row: Department of Corrections is

under no judicial orders or consent decrees regarding conditions of confinement in
Capital Case Units, otherwise known as death row.184 So far as the subcommittee on
impact is aware, the department complies with constitutional requirements for
confinement. The only way to know for certain is after an inmate has challenged the
department, claiming a constitutional violation, and the judiciary rules accordingly.185

It is more difficult to assess whether confinement on death row in Pennsylvania

meets the standards of international law. The department does not officially recognize
these standards and departmental staff were unable to indicate one way or the other
whether the conditions of confinement on death row meet these standards. It seems as
though the consensus of developed countries is that the punishment of execution should
be abolished. To the extent that other countries use capital punishment, it appears that
Pennsylvania largely comports with the standards of confinement conditions, other
than the lengthy interval between condemnation and execution.

Correctional officers were surveyed on the impact of conditions of confinement on

death row.186

The average length of confinement for all inmates on death row is 17.49 years.
Earlier this year, the department changed the operation of its capital case units by
allowing capital case inmates to have the opportunity to participate in out-of-cell
congregate activities for at least 20 hours per week. Previously, policy only generally
provided capital case inmates with the opportunity to have 10-12 hours of yard time
out of cell per week in a setting that was less conducive to congregate activity.

 Lethal injection: Based upon a U.S. Supreme Court ruling187 and its application by
U.S. Court of Appeals for the Third Circuit to Delaware’s lethal injection procedures

184
Woodside, supra note 140.
185
An example of how this might arise, is the mental health investigation by U.S. Dep’t of Just., infra pp. 125-26.
186
Infra pp. 187-89.
187
Baze v. Rees, 553 U.S. 35 (2008). “It is not disputed that Pennsylvania uses the same three-drug protocol that
Kentucky uses.” Chester v. Beard, 657 F.Supp.2d 534, 543 n.9 (M.D.Pa. 2009). But by 2012, Department of
Corrections “revised its lethal injection protocol”. Id., 2012 WL 4758346. (The protocol was revised in Aug. 2012.
Id., 2012 WL 5386129. It “supersedes all prior versions”. Id., 2012 WL 5389319.) This controlling opinion has
subsequently been applied to a similar method of execution using a substituted drug. Glossip v. Gross, 135 S.Ct.
2726, 2732-34 (2015). This subsequent ruling found that petitioners’ did not prove a substantial risk posed by the
substituted drug compared to available alternative methods and the dist. ct. was not clearly erroneous in its factual
finding that the substituted drug would not “result in severe pain and suffering.” Id. at 2737-38.

- 29 -
 and protocols,188 Pennsylvania’s similar procedures and protocols appear to be
constitutional. Based upon a U.S. Court of Appeals ruling,189 Pennsylvania’s
observational protocol but has been changed. The Commonwealth’s lethal injection
protocol is confidential so that the subcommittee on procedure is uncertain what the
current protocol is. There are potential, practical problems with the current protocol so
far as the subcommittee perceives it to be.

 Public opinion: A majority of Americans and Pennsylvanians favor the death penalty.
In all six polls, respondents most frequently indicated that they support or prefer the
death penalty. In four of the six polls, a majority of respondents (greater than 50%)
supported or preferred the death penalty. Support for the death penalty is declining.
The polls presented show that support and preference for the death penalty is declining.
This decline has been steady since the late 1990s, but has been more pronounced over
the past few years. Support for the death penalty is higher in theory than in practice.
Most of the polls discussed only provided the option to choose whether they support or
oppose the death penalty. However, some polls allow respondents to select the
punishment that they prefer for those convicted of murder (e.g. death penalty or life in
prison without parole). Support for the death penalty might be higher among
respondents when given the either-or option of favoring or opposing the death penalty
than it is in polls where respondents are able to select their preferred punishment.

Recommendations190

 Bias and unfairness: The subcommittee on policy supports including a

recommendation that Pennsylvania consider replicating what other states have done in
this area to statutorily provide for proportionality review, which would routinely and
systematically collect relevant data for review that can reveal unfair, arbitrary or
discriminatory variability in outcomes.191 This could also determine whether death
sentences are excessive of out of line with sentences imposed in other cases where a
sentence other than death was imposed.

 Proportionality: The subcommittee on policy supports including a recommendation

to amend statutory aggravating and mitigating circumstances to reduce any significant
difference in the crimes of those selected for the punishment of death as opposed to
those who receive life in prison.192

 Mental retardation: The subcommittee on procedure recommends that the Rules of

Criminal Procedure be amended to require a judge to determine intellectual disability
at the pre-trial stage instead of the jury determining it post-trial. It would resolve the

188
Jackson v. Danberg, 594 F.3d 210, 222-23, 230 (3d Cir. 2010). Delaware’s capital sentencing scheme was
subsequently ruled unconstitutional on different grounds. Rauf. v. Del., 145 A.3d 430 (Del. 2016).
189
Cal. 1st Amend. Coalition v. Woodford, 299 F.3d 868, 875 (9th Cir. 2002).
190
Material for this report was developed by the subcommittees, infra p. 33.
191
Infra pp. 59, 90.
192
Infra pp. 101-05.

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 issue early in the process; if the defendant is determined to be intellectually disabled
pre-trial, it would save a significant amount of money and many days of court time
because the case would not proceed capitally.193

 Mental illness: Even if a defendant is not legally insane, the subcommittee on policy
recommends extending a version of guilty but mentally ill as a bar to imposition of the
death penalty for the same reasons that legal insanity would excuse a crime, or because
the defendant’s severe mental disorder significantly impaired his exercise of rational
judgment or conformance to legal requirements. This would allow a severely mentally
ill murderer to be punished in the same way that an intellectually disabled murderer is,
rather than subject the former to condemnation but not the latter.194

 Juries: One remedy supported by the subcommittee on procedure would be enactment

of a Racial Justice Act to statutorily allow death sentences to be challenged on a
statistical basis in addition to the purposeful discrimination.195

It would seem to the subcommittee on procedure that if the Commonwealth decides

to assure that jurors are able to understand and apply instructions in determining guilt
or innocence and the appropriate punishment in a capital case, there would need to be
formal, empirical feedback on a routine basis. If jurors are unable to understand and
apply these instructions as research discussed above indicates, the subcommittee on
procedure advocates that suggested standard instructions be rewritten by attorneys and
judges with the assistance of linguists, social scientists and psychologists, as well as
the data disclosing the misunderstanding and misapplication.196

 State appeals and postconviction: The subcommittee on procedure advocates

reinstating the previous practice of relaxed waiver on direct capital appeals as it was
employed in the 1980s and 1990s. Also, since the statute provides for automatic
judicial review of death sentences to correct errors at trial, the judiciary should not
insist on a timely notice of appeal to consider any claims unassociated with the
statutorily-mandated review of the sufficiency of the evidence. Finally, the statutory
trigger that mandates issuance of a warrant of execution should be amended to the more
realistic, statutory timeliness mandating the warrant’s issuance only following state
post-conviction proceedings, if any, when the capital defendant failed to file a timely
petition for writ of habeas corpus in the appropriate federal district court, or failed to
timely appeal or petition an adverse habeas corpus decision to the United States Court
of Appeals for the Third Circuit.197

 Counsel: The subcommittee recommends the creation of a state-funded capital

defender office to represent all persons charged with or convicted of capital crimes at
the trial, appellate, and state post-conviction levels. Such an office will save money

193
Infra p. 123.
194
Infra p. 143.
195
Infra p. 149.
196
Infra p. 152.
197
Infra p. 158.

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 for the counties, be cost efficient by reducing the number of cases that require reversal
in post-conviction proceedings at either the state or federal level, and improve the
quality of representation, thereby reducing the likelihood of error at the trial level.198

 Lethal injection: The subcommittee on procedure recommends that the lethal

injection protocol:199

1) Be public rather than confidential information.

2) Use an appropriate and effective drug selected by qualified professional expertise

to execute humanely and be ethically delivered.

3) Comply with applicable statutory law.

198
Infra p. 186.
199
Infra p. 203.

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 INTRODUCTION

After its initial conference, the advisory committee divided into subcommittees on impact,
policy and procedure. Justice Center for Research at The Pennsylvania State University
collaborated with the subcommittees on impact and policy; Pennsylvania Interbranch Commission
for Gender, Racial and Ethnic Fairness collaborated with all three subcommittees. The advisory
committee reconvened via teleconference shortly before reporting to the task force; however, the
material for this report was developed by the subcommittees.

The advisory committee was to have reported its findings and recommendations to the
Senate at end of 2013, but that was an unrealistic deadline because of the ambitious scope of the
17 interrelated but separate topics in the resolution, the funding challenges for part of the research
and unanticipated delays in selected areas, most especially collecting data from the field, which
was quite tedious for Justice Center for Research.200 Collecting usable data when there is no
systematic or rational collection of data statewide is a difficulty that can be insurmountable when
resources are spare.

The subcommittee on impact collaboratively developed the material in this report on cost,
impact on and services for family members, secondary trauma, length and conditions of
confinement on death row and public opinion. From 2012-2015, it convened in person or via
teleconference at least five times.

The subcommittee on policy collaboratively developed the material in this report on bias
and unfairness, proportionality, mental illness, penological intent and alternatives. From 2012-
2018, it convened in person or via teleconference at least 15 times.

The subcommittee on procedure collaboratively developed the material in this report on

mental retardation, juries, state appeals and postconviction, clemency, innocence, counsel and
lethal injection. From 2012-2018, it convened in person or via teleconference at least 10 times.

“Capital punishment is currently authorized in 31 states, by the federal government and the
U.S. military.”201 The Commonwealth is one of these 31 states.202

200
Appdx. L, infra p. 263.
201
Nat’l Conf. of State Legiss., supra note 5.
202
42 Pa.C.S. § 9711.

- 33 -
- 34 -
 SUBJECTS

Cost

The question that serves as the basis of the study of cost to administer the death penalty in
our Commonwealth is:

Whether there is a significant difference between the cost of the death penalty from
indictment to execution and the cost of life in prison without parole; in considering
the overall cost of the death penalty in Pennsylvania, the cost of all the capital trials
that result in life sentences as well as death sentences that are reversed on appeal
must be factored into the equation;203

As described below, the death penalty is much more expensive than sentences of life
imprisonment without parole because of the long and complex process for capital cases and the
increased costs for incarceration on death row.

Capital punishment is an inefficient, bloated program that has bogged down law
enforcement, delayed justice for victims’ families, and devoured millions of crime-
fighting resources that could save lives and protect the public. . . . . More than a
dozen states have tried to capture the cost of death penalty cases and found evidence
that they are up to 10 times more expensive than other comparable cases. In
California, a 2011 study showed death penalty cases are 20 times more expensive.
That state has spent over $4 billion on the death penalty since 1978. . . . . Many of
the extra costs are legally mandated to reduce the risk of executing an innocent
person. And even these safeguards are not enough. At least 160 people have been
exonerated from death row after waiting years for the truth to come out.
Streamlining the process would virtually guarantee the execution of an innocent
person.204

The death penalty costs more than life imprisonment. With its many appeals it is an
expensive way to deal with violent crime. The lengthy trial and appeal procedures
and the cost of maintaining maximum security on death row have led to prohibitive
expenses in an already burdened criminal justice system. The appeal process costs
taxpayers millions of dollars which could be better spent on more effective crime
control.205
203
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 219.
204
Conservatives Concerned About the Death Penalty, Wasteful & Inefficient: The alarming costs of the death
penalty, https://conservativesconcerned.org/why-were-concerned/cost/ (last visited May 20, 2018).
205
Memo from Amnesty Int’l Group 39 (Pittsburgh) addressed to Members of the Commw. Capital Punishment
Advisory Comm. (Apr. 15, 2013) (on file with Pa. J. State Gov’t Comm’n).

- 35 -
 The cost issue has received far more attention now than previously. The extra process
constitutionally required since the 1970’s has made it more expensive to pursue a death penalty
case as compared to cases where the death penalty is not sought. Bifurcated trial proceedings with
a focused punishment phase have become the national norm, and emerging judicial capital
doctrines substantially altered “state capital practices, including voir dire, the use of experts, the
expectations of defense counsel, and, especially the investigation and presentation of mitigating
evidence. In addition, post-trial litigation costs would become vastly greater in capital cases.”206
The additional litigation further resulted in greatly extending the period between sentence and
execution, bringing with it the increased expense of maintaining a large death row.207

The combination of increased trial and postconviction litigation costs, and

increased incarceration costs in capital cases, together with the absence of
significant numbers of executions in many states, has changed the way in which the
‘costs’ of the death penalty are understood and discussed. The relative cost of the
death penalty is no longer captured by a simple comparison of the cost of a capital
trial together with the cost of carrying out an execution, on the one hand, versus the
cost of a non-capital trial and the cost of a lengthy imprisonment, on the other.
Rather, the relative cost of administering the death penalty . . . now often requires
a comparison of the cost of multiple capital trials and the cost of lengthy, often
indefinite imprisonment on death row versus the cost of a single non-capital trial
and the cost of a lengthy (non-capital) imprisonment.208

At the same time, some costs might be avoided if the prospect of a capital sentence induces
one to plead guilty to avoid that sentence.

Cost Analyses from Elsewhere

Every published study that analyzed the cost of another state’s death penalty has found it
to be substantially higher when compared with non-death-prosecuted murder cases. The
methodology of these studies has varied, but the results are consistent enough to persuasively
establish that the cost differential is significant. The next few pages summarize the methodology
and results from these other analyses.

California. “[I]t is impossible to ascertain the precise costs of the administration of

California’s death penalty law”.209 Noting “quite consistent results” from other states’
comparisons of the costs of murder trials seeking the death penalty with those in which that penalty
was not sought, California Commission on the Fair Administration of Justice conservatively
estimated “that seeking the death penalty adds $500,000 to the cost of a murder trial”.210 At the
time, spending for “post-trial review of death cases in California” was “at least” $54,400,000 per
year to cover the Supreme Court’s appointment of private lawyers, the State Public Defender for

206
Carol S. & Jordan M. Steiker, Capital Punishment: A Century of Discontinuous Debate, 100 J. Crim. L. &
Criminology 643, 669 (2010).
207
Id. at 669-70.
208
Id. at 670-71.
209
Cal. Comm’n on the Fair Admin. of Just., Final Rep. 144 (2008).
210
Id. at 144-45. “The costs of a second defense lawyer, the background investigation for the penalty phase, and the
added duration and expense of the trial would easily add up to the $500,000 in most cases.” Id. at 145.

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death penalty appeals, habeas representation by California Habeas Corpus Resource Center and
the Attorney General’s criminal division devoted to capital cases. 211 The cost of confinement on
California’s death row was estimated by Department of Corrections to add $90,000 per year
beyond the normal cost.212 The “conservative, rough” estimate was that it was costing
$137,700,000 year for its “dysfunctional system”.213 Conversely, to convert this punishment to a
maximum of lifetime incarceration, the additional cost would amount to $11,500,000 per year to
cover the trials, appeals and habeas corpus proceedings as well as confinement.214

A more detailed study calculated that California state and federal taxpayers spent
$4,000,000,000 to administer that state’s death penalty from 1978 to 2011 with an additional
$619,000,000 to be spent on federal habeas corpus petitions, plus additional spending to house
condemned inmates despite carrying “out only 13” executions during that period while housing
“over 714 condemned inmates”.215 Of those whose “whose petitions for federal habeas corpus
relief” had “been reviewed, nearly 70% had “been granted relief”.216

“[O]btaining data concerning how much the administration of California’s death penalty
actually costs state and federal taxpayers has not been easy.”217 Amounts spent to litigate “capital
habeas corpus petitions in federal court . . . are ‘not made public.’”218 California Commission on
the Fair Administration of Justice confirmed “the need for more comprehensive collection of data
and the continual monitoring and analysis of that data”.219 As with other jurisdictions, “[t]he
categories of costs associated with California’s capital punishment system can be broken down as
follows: (1) pre-trial and trial costs, (2) costs related to direct appeals and state habeas corpus
petitions, (3) costs related to federal habeas corpus petitions, and (4) costs of incarceration.”220
The “easily identifiable costs incurred in every death penalty trial that are not incurred in non-
death penalty homicide trials” are: two rather than one “death penalty-qualified attorneys per
side”, multiple investigators and experts, a longer “jury selection process”, the separately tried
penalty phase, the certified, daily trial transcript and the length of time in the criminal court.221

211
Id. at 146. For 2009-10, another source calculated this amount to be $58,543,000 with conservatively estimated
annual spending on these costs associated with automatic appeals and capital state habeas proceedings at $37,000,000
during the immediately preceding quarter century. Alarcón & Mitchell, infra note 215, at S88.
212
Cal. Comm’n on the Fair Admin. of Just., supra note 209, at 146. The amount is per condemnee.
213
Id.
214
Id. at 147. California executed 13 condemnees since 1978 with 746 other condemnees remaining on death row so
that based on this 2008 calculation, the state could have spent $126,200,000 less per year to achieve almost the same
outcome. See Cal. Dep’t of Corrections & Rehabilitation, Capital Punishment, Inmates Executed, 1978 to Present
(2017), https://www.cdcr.ca.gov/Capital_Punishment/Inmates_Executed.html; Div. of Adult Operations Death Row
Tracking Sys. (2018),
https://www.cdcr.ca.gov/Capital_Punishment/docs/CondemnedInmateListSecure.pdf?pdf=Condemned-Inmates.
215
Judge Arthur L. Alarcón & Paula M. Mitchell, Executing the Will of the Voters?: A Roadmap to Mend or End the
Cal. Legis.’s Multi-Billion-Dollar Death Penalty Debacle, 44 Loy. L.A. L. Rev. S41, S51 n.14 (2011).
216
Id. at S55. This would have been a new trial for guilt or the penalty. Id.
217
Id. at S62.
218
Id. at S63.
219
Cal. Comm’n on the Fair Admin. of Just., supra note 209, at 154.
220
Alarcón & Mitchell, supra note 215, at S69. The costs to litigate suits challenging the method of execution are
omitted. Id. n.62.
221
Id. at S75-S79.

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“Based on the foregoing, we have calculated that an average death penalty trial consumes
approximately $1 million in publically funded resources”.222

Extrapolating from calculated, average cost estimates for “federal habeas corpus
proceedings” worked out to $1,107,142.85 per petition in federal court.223 “Almost . . . every
capital prisoner seeks habeas corpus relief in federal court after the” state “Supreme Court has
rejected his or her federal constitutional claims”, which is paid “by federal . . . rather than state
taxpayers.”224 When “claims of federal constitutional violations that have not yet been reviewed
by the” state “Supreme Court” are discovered,225 federal law requires the exhaustion of remedies
in state court before “[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court” may “be granted”. 226 This typically results with the
federal proceedings being “stayed while the newly discovered claims are filed in state court for
exhaustion”.227 At the time of this study, the rate at which federal habeas corpus relief has been
granted, was 68.25%.228 The “full investigation into the inmate’s alleged federal constitutional
violations does not occur until many years after the judgment of death was imposed, when the
petitioner’s claims are presented in a federal habeas corpus petition.”229 Because state and local
governmental entities did not provide actual cost data, estimated “costs associated with death
penalty trials that took place between 1983 and 2006 averaged about $1 million more per trial than
the costs of average non-death penalty homicide trials.”230 Court-appointed counsel staffing
federal habeas corpus cases “averaged a total of $635,000 per case, including appeals.”231 A
conservatively estimated cost of litigation by Federal Public Defender Capital Habeas Units in two
U. S. District Courts in California averaged $1,580,000 during the corresponding period and this
average amount excludes “costs to the state Attorney General’s Office to respond to these
challenges in federal court.”232 These “cost calculations” also exclude amounts for “death penalty
law clerks, court accountants, and clerical workers.”233

As has occurred in some other jurisdictions during recent decades, since the early 1980’s,
California’s annual spending percentage from its general fund on its “prison system” increased
from 4% to 11% while its “budget for the University of California system” decreased from 5% to
2.5%.234 In fiscal year 2007-08, California’s Department of Corrections and Rehabilitation’s
“average annual cost to incarcerate an adult inmate” was $49,300. 235 In 2005, a departmental
spokesperson was quoted saying that “[t]he additional cost of confining an inmate to death row,
as compared to the maximum security prisons where those sentenced to life without possibility of

222
Id. at S79.
223
See id. at S93.
224
Id. at S89.
225
Id.
226
28 U.S.C. § 2254(b)(1)(A).
227
Alarcón & Mitchell, supra note 215, at S89-S90.
228
Id. at S55 n.26.
229
Id. at S89.
230
Id. at S75.
231
Id. at S94.
232
Id. at S97-S98.
233
Id. at S99.
234
Id. at S99-S100.
235
Id. at S103.

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parole ordinarily serve their sentences, is $90,000 per year per inmate.”236 Omitting “funds
expended defending the death penalty in federal court in actions based on civil rights violations . .
. challenging methods used in carrying out execution or related delays”, research for 2009
estimated that “administering the death penalty in California . . . cost . . . approximately”
$184,000,000 “above what taxpayers would have spent without the death penalty.”237

A year after this study was published, California voters were offered the proposition to
retain or reject the death penalty. “The major fiscal effects of the measure” to reject the death
penalty would save costs to “state and local governments” associated with murder trials, “state
expenditures” associated with appellate litigation and “state prison costs”.238 According to that
state’s Legislative Analyst’s Office, eliminating that state’s death penalty would result in net
savings that “would likely be about $100 million annually in the first few years, growing to about
$130 million annually thereafter.”239 In anticipation of the voting on this proposition, the study’s
authors wrote more about costs of capital punishment in California, characterizing the “current
death-penalty scheme” as essentially life imprisonment (without parole), “but—according to our
calculations—it costs taxpayers roughly an additional” $200,000,000 “per year to maintain the
illusion that California has a functioning death penalty.”240

Colorado. This analysis compared “the time required by the trials and pleas of death
penalty cases to the time required for the prosecution of the most serious of the first-degree murders
during the same timeframe.”241 This comparison measured the cost figure via an “objectively
verifiable” number of days rather than via “a set dollar figure”.242 The comparison was between
death penalty prosecutions resultant in either jury trials or plea bargains and first-degree murder
cases with one or more aggravating circumstances that were tried resultant in convictions with
nonparolable life sentences.243

Excluding appeals and post-conviction proceedings, death prosecutions averaged 148 days
in court while the other murder cases averaged 24½ days in court, so that the death prosecutions
took approximately six times longer in court days.244 In the last 48 years, Colorado executed one
inmate; in the last four decades, the reversal or vacation of sentence rate for its death penalties is

236
Cal. Comm’n on the Fair Admin. of Just., supra note 209, at 141, n.94. This increased expenditure to house
condemnees on death row was spent on a number of those who were not executed because “their sentences were later
vacated on appeal . . . or because they died of natural causes . . . or died . . . awaiting the outcomes of their petitions
for federal habeas corpus relief.” Alarcón & Mitchell, supra note 215, at S108.
237
Id. at S109. For this estimate and the lower estimate from Cal. Comm’n on the Fair Admin. of Just., supra p. 36,
the highest extra cost for the death penalty in 2008-09 was attributed to incarceration; however, the biggest cumulative
cost estimated for 1978-2010 was for pre-trial investigation & trial costs. Alarcón & Mitchell, supra note 215, at
S110.
238
Cal. Legis. Analyst’s Office, Proposition 34 (2012), http://www.lao.ca.gov/ballot/2012/34_11_2012.aspx.
239
Id.
240
Judge Arthur L. Alarcón & Paula M. Mitchell, Costs of Capital Punishment in Cal.: Will Voters Choose Reform
this Nov.?, 46 Loy. L.A. L. Rev. S1, S34-S35 (2012).
241
Justin F. Marceau & Hollis A. Whitson, The Cost of Colo.’s Death Penalty, 3 U. Denv. Crim. L. Rev. 145, 147
(2013). The time was the number of court days for pretrial proceedings, voir dire, trial and sentencing; which excluded
appeals and post-conviction proceedings. Id. at 151-52.
242
Id. at 149.
243
Id. at 150-51.
244
Id. at 152-53.

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75%.245 Colorado Department of Corrections estimates that the appeals would minimally delay
an inmate’s execution for a decade, during which time the inmate is housed in Administrative
Segregation and incurs higher costs than inmates housed at a lower level of security.246

There were only a few pleas of guilty to first-degree murder in prosecutions for the death
penalty, but they cost about the same as a nonparolable life sentence case “as measured in court
days required.”247 In other words, the threat of a death sentence did not induce “a swift or less
expensive guilty plea to a first degree murder charge. . . . These results reveal no empirical support
for the claim that the death penalty is cost-effective based on its ability to induce guilty pleas to
first degree murder.”248 Aside from the lack of empirical support for this proposition, the cost of
these cases (and potential savings or not) must be considered with “the cost of maintaining the
entire death penalty machinery, without which there is no . . . prerequisite to inducing the guilty
plea.”249 In Colorado’s case, it saved approximately six court days by inducing guilty pleas, but
these were more than offset by the hundreds of additional court days on failed death penalty
prosecutions.250 After citing research finding no evidence in support of a deterrence thesis, the
authors deem it to “be implausible that the death penalty could have any deterrent effect in a state
where only one person has been executed since 1967.”251 This study concludes that “the death
penalty imposes a major cost without yielding any measurable benefits.”252

Connecticut. Because Connecticut Commission on the Death Penalty had “limited

resources available” and many state agencies’ record keeping was of a “limited nature”, a precise
comparison could not be obtained; however, “the [c]ommission solicited information from several
state agencies involved in various aspects of administering the death penalty” to estimate costs
compared to those incurred in “imposing a sentence of life imprisonment without release.”253
Division of Criminal Justice did not quantify or separately track any added costs in death penalty
cases but reported increased costs “spread out over several different agencies.”254 Plus, “[p]ost-
conviction review of death sentences involves additional costs that are not found in serious, non-
death felony cases.”255 Conversely, Division of Public Defender Services tracked its “cost
information on an ongoing basis through its “Capital Defense and Trial Services Unit” devoted “to
representing indigent defendants in capital felony cases”.256 “[D]efense costs for capital felony

245
Id. at 155; Colo. Dep’t of Corrections, http://www.doc.state.co.us/death-row (last visited July 13, 2015).
246
Colo. Dep’t of Corrections, http://www.doc.state.co.us/death-row-faq (last visited July 13, 2015). These inmates
are in a single for 23 hours/day and are fully restrained and accompanied by at least two correctional officers when
moved. Id., http://www.doc.state.co.us/daily-routine (last visited July 13, 2015).
247
Marceau & Whitson, supra note 241, at 156-58.
248
Id. at 158. “[T]here is a distinct probability that the death prosecutions that result in guilty pleas would have cost
the State the least to try.” Id.
249
Id. at 159.
250
Id. at 160. These failures placed the net cost at an extra 696 days. Id. When a death penalty prosecution resulted
in a plea of life without parole instead of a trial, the approximate savings was one less court day required and there
were only six of these pleas. Id.
251
Id. at 161-62.
252
Id. at 162.
253
Conn. Comm’n on the Death Penalty, Study Pursuant to Pub. Act No. 01-151 of the Imposition of the Death
Penalty in Conn. 12 (2003), available at
http://www.ct.gov/redcjs/lib/redcjs/documents/commission_on_the_death_penalty_final_report_2003.pdf.
254
Id. at 13.
255
Id.
256
Id.

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cases” averaged “88% higher than the defense costs incurred for those sentenced to life
imprisonment without release.”257 The Judicial Branch could not specify cost estimates but
predicted “additional costs” and acknowledged that “capital felony cases are more time-consuming
than other serious felony cases”.258 Overall, the commission found “that as a general rule, capital
felony cases are more expensive to adjudicate than non-capital cases.”259 A “more comprehensive
analysis of cost factors associated with the death penalty would require” the assignment of
dedicated staff “as well as improved documentation relating to cost factors”.260

Additionally, condemnees were housed at a level five, maximum security institution in

which support and sustenance of these offenders averaged approximately twice the annual expense
it cost to house “offenders sentenced to life without parole . . . in less expensive facilities”.261

Idaho. “Legislators wanted to know whether costs of sentencing defendants to death could
be compared with costs of sentencing them to life in prison.”262 Because cost data was unavailable,
“the total financial cost of the death penalty” could not be quantified. 263 Since 1977, more than
half of condemnees have been resentenced.264 This report concluded that capital cases are more
expensive than noncapital ones, aligning its findings with studies nationally.265 “[W]e found
consensus that death penalty cases are more complex and involved.”266

In the 15-year period analyzed, less than one fifth of first-degree murder cases were capital
ones.267 A substantially higher percentage of noncapital cases did not go to trial compared to the
capital cases; however, the share was a majority for both.268 An overwhelming percentage of the
capital cases resulted in life rather than death sentences.269 Most of the death sentences since 1977
have subsequently been changed to life sentences.270

257
Id. at 14.
258
Id.
259
Id. at 16.
260
Id.
261
Id. at 15. When this information was submitted to the comm’n, Dep’t of Correction housed seven men on death
row. Id. Subsequently, that number increased to 10. Conn. Dep’t of Correction, 2013 Annual Rep. 1, available at
http://www.portal.ct.gov/DOC/Common-Elements/Common-Elements/Publications. The last execution occurred in
in 2005. Id. Before that, the last execution in this state was 1960. Id., Annual Rep. 2002-2003 2. In 2012, Conn.
prospectively abolished its death penalty, which was judicially extended its retrospective abolition. Conn. Gen. Stat.
§ 53a-46a(a); Conn. v. Santiago, 122 A.3d 1 (Conn. 2015).
262
Office of Performance Evaluations, Idaho Legis., Financial Costs of the Death Penalty iii (2014), available at
http://legislature.idaho.gov/wp-content/uploads/OPE/Reports/r1402.pdf.
263
Id. E.g., salaried staff do not track time working on types of cases. Id. at iv. Cost data is described as “minimal”
or “nearly nonexistent.” Id.
264
Id. Idaho has nine offenders under a sentence of death, who remain in their cells 23 hours/day & are restrained
when moved. Idaho Dep’t of Correction, Death Row, http://www.idoc.idaho.gov/content/prisons/death_row (last
visited Apr. 6, 2018). Since 1977, three inmates have been executed. Id. To execute a condemnee in 2011 and 2012,
the department spent almost $170,000 to remodel a building and improve the ground. Office of Performance
Evaluations, supra note 262, at 32. The executions themselves cost an average of $51,283.50 with approximately
80% of that amount being spent on staff overtime as well as medical supplies, training and other expenses. Id. at 33.
265
Id. at vi.
266
Id. at 7.
267
Id. at 10.
268
Id. 76% for noncapital cases and 55% for capital cases. Id.
269
Id. at 13.
270
Id. at 14. “Four offenders originally sentenced to death have been released.” Id.

- 41 -
 During the 15-year period analyzed, both the direct and post-conviction appeals for capital
cases averaged more than a year longer for the State Appellate Public Defender’s Office to
complete than the noncapital cases.271 During a 13-year period, this office averaged 7,918 billable
hours/defendant sentenced to death and 179 hours/defendant with a life sentence. 272 “[L]aw
enforcement costs do not typically differ between capital and noncapital first-degree murder cases
. . . .”273

Kansas. In 2013, “the Judicial Council assigned the Death Penalty Advisory Committee
to update its previous 2009 study on costs of the death penalty.”274 The committee sought
additional costs incurred since 2003 for 22 cases, comparing costs then as well as surveyed the
judiciary and the executive about 41 capital-eligible cases filed between 2004 and 2011.275 Of
these 63 cases, cost estimates were received from less than one third of prosecutors and police
surveyed.276 Because of dismissals and ineligibility for capital punishment due to youth, the 41
capital-eligible cases between 2004 and 2011 were reduced to 34, of which 16 were tried and 18
were pled.277 The hours spent on the cases were “generally estimated”, but “actual cost
information” otherwise associated with these cases was “often provided”.278 Since these cases
were selected by Kansas Board of Indigent Defense Services, the reported costs exclude those
cases in which a defendant was represented by his own, private attorney.279 Future costs were
excluded from the survey because they had not yet been incurred and remained unprojected
notwithstanding the likelihood of their incursion.280 The number of cases is small, some costs
were estimates and some cases were at different stages than others when the survey was done, but
Board of Indigent Defense Services reported that its defense costs averaged $296,799 higher for
cases in which the death penalty was sought, compared to cases in which that penalty was not
sought.281 For cases that resulted in a guilty plea, the average difference in the board’s defense
costs was $65,884 higher in cases in which the death penalty was sought, compared to cases in
which that penalty was not sought.282 Similarly, district court costs averaged $50,976 higher for
cases in which a death penalty was sought compared to cases in which that penalty was not
sought.283 For cases that resulted in a guilty plea, the average difference in district court costs was
$8,879 higher for cases in which a death penalty was sought compared to cases in which that
penalty was not sought.284

271
Id. at 26-27.
272
Id. at 31.
273
Id. at 30. Law enforcement costs refer to the cost of criminal investigation. Id.
274
Kan. Jud. Council, Rep. of Death Penalty Advisory Comm. 2 (2014), available at
http://kansasjudicialcouncil.org/Documents/Studies%20and%20Reports/2015%20Reports/death%20penalty%20cost
%20report%20final.pdf.
275
Id. at 3.
276
Id. Office of Att’y Gen. considered cost estimates too speculative to provide; however, police indicated that
homicides would be investigated similarly “regardless of whether” it would be prosecuted as a death penalty. Id. at
4.
277
Id. at 5.
278
Id.
279
Id.
280
Id.
281
Id. at 5-7.
282
Id. at 7.
283
Id. at 8.
284
Id.

- 42 -
 To update the earlier audit of the other 22 cases, the advisory committee surveyed the same
respondents, asking for “any additional costs incurred since January 1, 2004.”285 Board of Indigent
Defense Services reported that its defense costs averaged $137,658 higher for cases in which the
death penalty was sought, compared to cases in which that penalty was not sought.286 District
court costs averaged $2,885 higher for cases in which a death penalty was sought compared to
cases in which that penalty was not sought.287

Kansas Supreme Court “estimated that justices spend approximately 20 times more hours
on a death penalty case versus a non-death case when the justice is assigned to write the opinion
and 5 times more hours when the justice is not writing.”288 It also has a death penalty unit with
two research attorneys “who work exclusively on death penalty appeals”.289

Comparing the number of district court days from first appearance through sentencing,
cases in which the death penalty was sought averaged 23 days more than cases in which that
penalty was not sought.290 For cases that resulted in a guilty plea, the number of district court days
for cases in which a death penalty was sought averaged five days more than the cases in which that
penalty was not sought.291

Inmates sentenced to death are incarcerated in administrative segregation, which

Department of Corrections calculates to cost double the average annual cost to incarcerate an
inmate among the general population of prisoners.292

“Death penalty cases simply take more time and resources than non-death cases.”293 Based
upon survey responses, the advisory committee found that costs triple or quadruple for Board of
Indigent Services and district courts for cases in which the death penalty is sought compared to
those in which that penalty is not sought.294 And, in cases that resulted in a guilty plea, “costs are
roughly twice as high in cases where the death penalty is sought than in cases where it is not.”295

Maryland. “[T]he lifetime costs of all homicides eligible to receive the death penalty
where the homicide occurred between 1978 and 1999” were studied.296 “A capital-eligible case in
which prosecutors unsuccessfully sought the death penalty . . . cost . . . $700,000 more than a
comparable case in which the death penalty was not sought. . . . An average capital-eligible case

285
Id. at 9. One of these cases involved a juvenile at the time of the crime so that the number was reduced from 22 to
21. Id.
286
Id. at 10.
287
Id.
288
Id. at 11.
289
Id.
290
Id. at 12-13.
291
Id. at 13.
292
Id. at 11-12. Kan. has 10 inmates sentenced to death but has not executed anyone “since 1965.” Kan. Dep’t of
Corrections, Annual Rep. Fiscal Yr. 2017 64, available at https://www.doc.ks.gov/publications/Reports/2017.
293
Id. at 15.
294
Id.
295
Id.
296
John Roman et al., supra note 23, at abstract.

- 43 -
resulting in the death penalty . . . cost” $1,900,000 “more than a case where the death penalty was
not sought.”297 These costs “were estimated for each stage of case processing.”298

For case costs, “[a]bout 70% of the added cost of a death notice case occurs during the trial
phase.”299 This difference is attributed to

a greater number of pre-trial motions, longer and more intensive voir dire, longer
trials and a greater amount of general preparation time. In addition, a typical capital
case involves two attorneys on each side of the aisle while a case in which a death
notice is not filed usually involves a single attorney. Another systematic cost
difference between capital and non-capital cases is the penalty trial.300

Previous “research on the costs of capital punishment in other states unambiguously finds
that capital cases are more expensive to prosecute than non-capital cases.”301 The “two key costs”
estimated were “1) those associated with the filing of a death notice; and 2) those associated with
the imposition of a death sentence.”302

This study did “not estimate the effects of deterrence” because “the literature gives no
consensus on the effect of the death penalty on deterrence” and “research studies are unlikely to
correctly estimate a deterrent effect of the death penalty”.303 From 1979-1999, “[n]early “80% of
capital eligible cases” were from City of Baltimore and two counties.304

“Death sentence cases have a higher average number of trial days, hearing days, and overall
length of phase at every stage of the trial except for post-conviction.”305 The stages of case
processing in which death notice cases were “significantly more expensive” were the guilt and

297
Id.
298
Id.
299
Id. at 2. “[T]he average death notice cases cost $474,000 more than no death notice cases just through the trial
stage.” Id. at 29.
300
Id. at 30. “[T]he average length of voir dire for a capital case is five days and two days for a non-capital case.” Id.
at 49.
301
Id. at 1. Notwithstanding the “substantial variation” in estimates from earlier studies, “the extant literature
consistently finds that capital punishment adds costs to case processing when compared to capital eligible cases where
the death penalty is not sought.” Id. at 5, 8.
302
Id. Estimated costs exclude “additional pre-trial costs of cases in which a death notice is filed but subsequently
waived, the costs of cases tried under a death notice that resulted in a not guilty verdict, and costs of appeals to” U.S.
Sup. Ct.. Id. at 3. Filing and withdrawing a notice of aggravating circumstances was at the State Attorney’s discretion.
Id. at 10-11.
303
Id. at 9.
304
Id. at 21. The two counties are Baltimore & Prince Georges. Id. “Twenty-three counties and Baltimore City make
up the twenty-four main local jurisdictions found in Maryland.” Md. Manual On-line, Local Gov’t,
http://msa.maryland.gov/msa/mdmanual/01glance/html/county.html (2018). Death notices and sentences were
“substantially underrepresented” from City of Baltimore but “substantially overrepresented” from neighboring County
of Baltimore. Roman et al., supra note 23, at 23. This study omitted acquittals, which were 7% of the “death noticed
cases”. Id. at 31.
305
Id. at 23-24.

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penalty trials plus the state-level appellate phase.306 These three phases of case processing plus
“the lifetime cost of prison . . . explain the majority of differences in cost.”307

Nebraska. During the 41 years between 1973 and 2014, 1.1% of “murder convictions” in
Nebraska “resulted in an execution.”308 In 2015, “Nebraska’s maintenance of the death penalty
cost the state . . . approximately” $14,600,000 “annually and each additional death penalty
arraignment costs the state almost” $1,500,000.309 Goss & Associates Economic Solutions
concluded that in “2012 and 2013, the average U.S. state with the” death penalty “would have
saved $46,474,823 had the state eliminated the” death penalty and replaced it with life
imprisonment without parole.310

“[N]ationally, defendants in” death penalty “states are more likely to plead guilty to longer
sentences, but the rate of guilty pleas was not different.”311 Perversely, “[p]lea bargaining
combined with the use of the” death penalty “can increase the cost to the taxpayer.”312 In one case
from this state, five individuals falsely confessed to avoid a threatened death penalty, after which
they and the sixth defendant, who was also convicted but did not confess, were exonerated through
DNA evidence and were awarded $28,100,000 in damages.313 “Furthermore, past data indicate
that the existence of the” death penalty “has no negative impact on state murder rates.”314

During the 41 years between 1973 and 2014, approximately 1.8% of all murders in
Nebraska resulted in a death sentence but almost half of these death sentences were judicially
reduced to a lesser sentence or vacated.315 Other studies identified “five major factors driving the
cost of the” death penalty “over and above” life imprisonment without parole:316

1. Defense costs
2. Pretrial/jury selection/trial/sentencing
3. Court days and court costs
4. Incarceration/prison system costs
5. Appeals costs

306
Id. at 24. “Death notice cases are also more likely to incur costs during the appellate phase even where a death
sentence is not handed down.” Id. at 30.
307
Id. at 25.
308
Goss & Assoc. Econ. Solutions, The Econ. Impact of the Death Penalty on the State of Neb.: A Taxpayer Burden?
i (2016), available at
https://bloximages.newyork1.vip.townnews.com/omaha.com/content/tncms/assets/v3/editorial/a/6d/a6de772c-7515-
11e6-8138-1f408072cffb/57d03c36d04e9.pdf.pdf. There were three executions. Id. at 2.
309
Id. at 1.
310
Id. at 2. This estimate used “multivariate statistical analysis”. Id.
311
Id. at 23. “What this demonstrates is that using the death penalty to plea bargain does not save money since the
same number of cases would be resolved through a plea bargain without the death penalty.” Alarcón & Mitchell,
supra note 240, at S22 n.96.
312
Id. at 3.
313
Id.
314
Id. at 24.
315
Id. at 4. Elsewhere in this rep., it says that “more than half of those death sentences” between 1973 and 2014 “were
reversed”. Id. at 25.
316
Id. at 5-8.

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 “[T]he length of the appeals process, pre-trial costs, and court costs . . . thwart . . . efforts”
to contain costs incurred by “the capital punishment process”.317 The direct and post-conviction
appeals averaged 6.76 “on behalf of Nebraska capital defendants, versus 1.64 appeals for those
who received” life imprisonment without parole.318

Nevada. “[F]rom arrest through the end of incarceration,” the death penalty was
estimated to cost “about $532,000 more than other murder cases where the death penalty is not
sought.”319 The average for trial and appellate case costs of the death penalty was triple that of
non-death penalty cases.320 Because they are housed at a higher cost facility, the death penalty is
a slightly more expensive sentence than “those sentenced to life without the possibility of
parole.”321 Plea bargains among those facing a sentence of death occurred “14% less often than in
non-death penalty cases.”322 This audit focused on the difference of costs prosecuting a death
penalty versus a non-death penalty case and “the potential savings attributable to the death penalty
through plea bargaining and strategic litigation choices.”323

Since 1977, more than a quarter of this state’s death sentences were overturned with those
individuals resentenced or released and more died while in prison awaiting execution than were
executed.324

“The legal process for the death penalty differs from other types of murder . . . charges.
Typical death penalty process differences include longer jury selection, bifurcated trials . . ., and a
complex appeals process for both conviction and sentence. Further, two attorneys are provided”
to defend “an individual facing the death penalty.”325

This study was done using a sample of cases, and costs could not be completely accounted
for because “agencies with significant roles in the death penalty process could not provide actual
staff time attributable to any specific case” and were “hesitant . . . to provide estimates of time”.326
Cost information either was not accumulated or was limited for “Nevada Supreme Court, the
Judicial District Courts, and county district attorneys.”327 Nonetheless, estimates of staff time were
used and believed to result in an understated cost.328 The case costs that were obtainable showed
that death penalty cases averaged triple the cost of non-death penalty cases.329

317
Id. at 10.
318
Id. at 18. “[T]his contributes to a higher likelihood of a successful appeal”. Id.
319
Nev. Legis. Auditor, Perf. Audit (2014), available at
https://www.leg.state.nv.us/Division/Audit/Full/BE2014/Costs%20of%20Death%20Penalty,%20LA14-
25,%20Full.pdf.
320
Id.
321
Id.
322
Eleven of the 12 inmates executed since 1977 gave up their rights to continue their appeals.
323
Id. This audit focused on death penalty and non-death penalty murder cases from the two most populous counties
from 2000-2012. Id. at 8, 10.
324
Id. at 4.
325
Id. at 6.
326
Id. at 8-9.
327
Id. at 12.
328
Id. at 9, 12.
329
Id. at 12.

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 “Adjudicating death penalty cases takes more time and resources compared to murder cases
where the death penalty sentence is not pursued as an option. These cases are more costly because
there are more procedural safeguards in place to ensure the sentence is just and free from error.”330
Included in this are the appointment of two attorneys to represent indigent defendants, death
qualification of the jury, separate hearings for the penalty, and an automatic appeal for review by
the state Supreme Court.331 It took almost twice as long for a decision on a direct appeal of a death
sentence than for one when a death sentence wasn’t sought.332 In the cases sampled, “death penalty
trials transpired over 7 to 15 days. Correspondingly, non-death penalty trials ranged from 3 to 10
days to complete.”333

Prosecutors strongly suggested the death penalty is not used as a strategic litigation
choice to reduce or avoid a trial and its associated costs through plea bargaining.
Nevertheless, plea bargains are made with defendants who are facing the possibility
of death; however, the rate at which this occurs is lower than for non-death penalty
murder cases.334

When a death sentence was pursued, trial costs were “generally the same” regardless of
whether death was the sentence; however, “total appeal costs” were lower between the two when
the sentence was not death.335 At the trial stage, the biggest additional cost accounted for in death
penalty trials compared to non-death penalty trials was for defense and a longer detention period.336
“Total pretrial costs were as much as nine times more when the death penalty was sought.”337
Pretrial defense costs averaged “as much as 11 times” higher for cases with a death penalty being
sought and obtained compared to those with the death penalty not being sought.338

During the trial phase of a death penalty case whether or not that was the sentence, defense
costs for experts, witnesses, investigators and other expenses cost more than the attorneys and their
staff, which is the inverse of cases in which a death penalty cost was not sought.339 The cost
difference for appeals of a death penalty compared to a penalty other than death (whether sought
or not) averaged “nearly triple the cost.”340

330
Id. at 10.
331
Id. at 12. “[W]hether the cost was an estimate or based on actual verifiable data”, it was higher on death penalty
cases for almost every cost information accumulated. Id. at 16.
332
Id. at 13.
333
Id. at 24.
334
Id. at 15. The rates are 53% and 67%. Id.
335
Id. at 16-17.
336
Id. at 17-18.
337
Id. at 19-20. The quoted statement compares average pretrial costs for a death penalty sought but not sentenced to
a death penalty not sought.
338
Id. at 20-21. Due to “the limited availability of actual cost data”, most “defense costs were determined based upon
estimates provided by staff”. Id. at 21.
339
Id. at 25. Other costs were for travel, records & small incidentals. Id.
340
Id. at 38. The appeals were direct and both state and federal postconviction. Id. The death penalty cases on direct
appeal “cost about twice as much as other cases in” the sample. Id. at 39. “The average defense counsel cost in the
direct appeal segment on death penalty cases” was about double that when no death penalty was obtained, whether
sought or not. Id. at 41. For a death penalty, state postconviction cost for Cnty. of Washoe Dist. Att’y was estimated
to be quintuple the amount when the penalty was not death. Id. at 47.

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 New Jersey. New Jersey Death Penalty Study Commission found the costs of the death
penalty to be “greater than the costs of life in prison without parole, but it is not possible to measure
these costs with any degree of precision.”341 The commission obtained “detailed cost estimates”
from Office of the Public Defender and Department of Corrections but nothing from prosecutors
or the judiciary.342 If the death penalty were eliminated (in 2006), Office of Public Defender
expected to save $1,460,000 per year.343 Department of Corrections was spending $32,481 more
per year for an inmate in the Capital Sentence Unit than it would have if the inmate was in the
general population.344 Administrative Office of the Courts expected savings for trial court costs
and the proportionality reviews if the death penalty would be eliminated.345 Office of Attorney
General did not expect “measurable cost savings” if the death penalty were eliminated because of
other prosecutions.346 The commission noted that unmeasured cost savings would still be
savings.347

North Carolina. Had the death penalty been abolished in this state approximately a decade
ago, “the state would have spent almost $11 million less each year on criminal justice activities”
in fiscal years 2005 and 2006.348 Implementing special due-process protections accorded to capital
defendants “is costly to the state and federal government, since in practice both sides of the
adversarial process are publicly financed.”349 Abolition of the death penalty would save “cash and
in-kind costs.”350 Defense attorneys’ and expert fees were calculated to be $48,600 higher for a
capital trial compared to a noncapital trial that could have been tried capitally.351 “Remarkably,
noncapital cases that went to trial had lower defense expenditures . . . than capital cases that were
disposed of by pleas.”352 The capital cases that resulted in a guilty plea also had higher defense
attorneys’ and expert fees than the noncapital cases that resulted in a guilty plea.353 Excluding
“extra payments for the jury pool during voir dire, or the reimbursement for parking and meals”,
extra juror payments were estimated to be $224,640 for the almost 12 days per trial that capital
trials averaged longer than noncapital trials.354

341
N.J. Death Penalty Study Comm’n, Rep. 1, 31 (2007), available at
http://www.njleg.state.nj.us/committees/dpsc_final.pdf.
342
Id. at 31.
343
Id. Capital murder trials cost more pretrial (preparation, investigation, motions, jury selection), for staffing (add’l
& pool att’ys), penalty phase (mitigation investigation) & for appeals (transcripts, proportionality rev. & post-
conviction relief). Id. at 31-32.
344
Id. at 32. This difference in cost would amount to approximately $1,136,835 extra/inmate over a lifetime. Id.
345
Id. “[E]ach proportionality review costs an average of $93,018 in additional salary costs for court staff.” Id.
346
Id. at 33.
347
Id. Additional spending in capital cases “for pretrial investigation and preparation; . . . experts for penalty phase
testimony; enhanced transcript fees and travel expenses, and additional post-conviction litigation” are borne by both
prosecution and defense. Id.
348
Philip J. Cook, Potential Savings from Abolition of the Death Penalty in N.C., 11 Am. L. & Econ. Rev. 498 (2009).
This is an estimate of “net savings”. Id. at 504-05.
349
Id. at 502. From 1977-2008, almost 72% of condemnees had been removed from N.C.’s death row because of
successful appeals. Id. at 503.
350
Id. at 516.
351
Id. at 517. These attorneys were appointed “and financed by the Office of Indigent Defense Services”. Id. at 511.
352
Id. The defense expenditures were attorneys’ and expert fees. Id. The difference was $24,600. Id.
353
Id. The difference was $34,900. Id.
354
Id. at 520.

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 North Carolina Supreme Court justices spent 10-15% of their time on capital cases.355
Office of the Appellate Defender estimated that 10% of staff attorneys’ time is spent on capital
cases “after the end of the trial phase”.356

At the time of this analysis, condemnees were held in close custody and those serving
unparolable life sentences were held in close custody or “medium security, which is less costly.”357
As is true now, close custody is more costly than medium custody.358

Tallying the expenditures for extra defense costs for capital cases in the trial phase, extra
payments to jurors, capital post-conviction costs, resentencing hearings and prison system
spending, “abolition of the death penalty would have reduced state expenditures on murder cases
by about $10.8 million per year” for fiscal years 2005 and 2006.359 Uncalculated in a monetary
amount, in-kind costs include “nine assistant prosecutors each year, as well as 345 days of trial
court time and something like 10% of the resources of the Supreme Court and the Office of the
Appellate Defender” would also have been freed up.360 “The true cost consequences of abolition
would depend on such factors as how district attorneys responded to the loss of leverage in plea
bargaining, how they chose to utilize the resources freed up if no more cases were prosecuted
capitally, and how potential killers would respond to the new regime . . . .”361

Based upon the 1,034 murder cases disposed of in fiscal years 2005 and 2006,362 any loss
of leverage in plea bargains would not seem to present much of a cost burden. Almost 61% of all
the murder cases resulted in a guilty plea, with almost 72% of those pleas coming in noncapital
cases obtaining pleas for murder in the first or second degree or for a lesser crime. 363 More than
half of these pleas in noncapital cases were for murder of the second degree.364 Similarly, almost
65% of the capital cases resulted in a guilty plea (versus 59% pleading in noncapital cases) to
murder in the first or second degree or a lesser crime.365 Also similarly, more than half of these
pleas in capital cases were for murder of the second degree.366 “The bottom line is that the death
penalty is a financial burden on the state and a resource-absorbing burden on trial courts.”367

355
Id. at 525 n.27.
356
Id. at 525.
357
Id. at 524. For the fiscal yr. ending June 30, 2011, close custody cost $5,939 more/inmate annually than medium
security. N.C. Dep’t of Pub. Safety, http://www.doc.state.nc.us/DOP/cost/index.htm. From 1910-61, N.C. executed
362 condemnees; from 1984-2006, it executed an additional 43 condemnees. Id. at https://www.ncdps.gov/adult-
corrections/prisons/death-penalty/list-of-persons-executed (last visited Apr. 24, 2018).
358
N.C. has 143 condemnees on death row, which is eight less than 2004, the year used in the study. Id. at
https://www.ncdps.gov/Index2.cfm?a=000003,002240,002327,002328 (last visited Apr. 24, 2018); Cook, supra note
348, at 523-24.
359
Cook, supra note 348, at 525-26.
360
Id. at 525.
361
Id. at 526-27.
362
Id. at 511.
363
Id. at 513.
364
Id.
365
Id.
366
Id.
367
Id. at 528. “[T]here is no basis for predicting whether abolition of the death penalty would increase or reduce the
murder rate, and good reason to believe that the effect in either direction would be small.” Id.

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 Oklahoma. “[C]onsistent with all previous research on death penalty costs, . . . seeking
and imposing the death penalty is more expensive than not seeking it” in Oklahoma.368 “The main
objective . . . is to measure the difference in enumerated costs between first degree murder cases
where the prosecutor seeks the death penalty and similar first degree murder cases in which the
death penalty is not sought.”369 This study relied on “all cases in which a formal bill of particulars
. . . was filed” from 2004 through 2010 and compared them to a random “sample of first degree
murder cases in which the death penalty was not sought” during the same period and categorized
costs for jail, defense, prosecution and appeals.370

“[T]he estimated average per-case difference in total costs when the death penalty is sought
is approximately $110,000” with “post-conviction incarceration costs . . . about twice as much . .
. on death row than off of death row.”371 A defendant spent “over one and a half times as many
days in jail” between arrest and sentencing when the death penalty was sought compared to “first
degree murder cases in which the death penalty was not sought”.372 Pretrial through trial defense
costs were “nearly ten times more” when a formal bill of particulars was filed, compared to when
it was not, and prosecution costs were triple when compared in the same context.373 “[S]tate capital
appeals . . . costs incurred by” defense “ran at an average of . . . over five times more than the non-
capital appeals did.”374 Activities in each docket category “were almost three times more
depending on whether there was a” formal bill of particulars filed. 375 “[A]ll case-level studies,
including the present study, have shown that pursuing the death penalty costs more on average
than when it is not pursued in similar cases.”376

The authors of this study reviewed 15 past economic studies from 2001 to 2016 among 14
jurisdictions to conservatively average a $700,000 “difference in case-level costs for seeking the
death penalty” or not.377 “[O]n average, seeking the death penalty incurs significantly more time,
effort, and costs, than when the death penalty is not sought in the first degree murder cases included
in this study.”378

Oregon. In a comparison of death sentences to life sentences, costs associated with the
former ranged “from about $800,000 to over $1,000,000 more per case” on average. 379 Since

368
Okla. Death Penalty Rev. Comm’n, supra note 24, at 224. “It is a simple fact that seeking the death penalty is
more expensive. There is not one credible study . . . that presents evidence to the contrary.” Id. at 227.
369
Id. at 223.
370
Id. at 224.
371
Id. at 225. “[H]istorically, about half of those sentenced to death have their sentences reduced to life without
parole, or . . . are acquitted.” Id. at 226, 242, 249. The estimate is “extremely conservative” and “lacks many costs
incurred by the system, especially by the courts and appeals costs linked to the prosecution.” Id. at 228.
372
Id. at 225.
373
Id. at 225, 245, 253, 260.
374
Id. at 225, 246. “This situation, in which the defender resources are stretched, results in spending less time on their
cases than they think they should. It also results in a distorted perspective on the real costs of death penalty cases,
because the amount of time the state defenders are able to spend on their case is less than it should be.” Id. at 249.
375
Id. at 225.
376
Id. at 227.
377
Id. at 233. The average is given in 2017 dollars. Id.
378
Id. at 260.
379
Aliza B. Kaplan et al., Or.’s Death Penalty: A Cost Analysis iii, https://law.lclark.edu/live/files/22888-oregons-
death-penalty-a-cost-analysis-2016 (2016). “The main reason cited in many . . . of the more empirically rigorous
studies, relate to increased case complexity, increased time to complete all phases of the trial process including

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1984, Oregon condemned 62 individuals and executed two who dropped their appeals.380 Appeals
are continuing for almost 55% of these condemnees, but approximately 35% of the condemnees
have been resentenced to life imprisonment or less.381

The average number of hearings and court filings by defense and prosecution was more
than double for aggravated murder death penalty cases compared to the aggravated murder non-
death penalty cases.382

Tennessee. Comptroller of the Treasury compared “the costs of first-degree murder cases
in Tennessee” and concluded that death penalty “cases cost more than life without parole and life
with the possibility of parole cases.”383 The principal reasons for this are: duration of trials, extra
trial phase for sentencing in a capital trial, capital case attorneys employed to assist trial judges,
privately appointed counsel, two attorneys for each capital defendant, additional peremptory
challenges of jurors and more sequestration of juries.384

Because “incarceration costs for . . . death row inmates are the same as other maximum-
security inmates”, executing an inmate would save the state on correctional costs.385 Department
of Correction spent $11,668 on its most recent execution, which was by lethal injection.386

“Death penalty cases cost more because:

 they are more complex;

 more agencies and people are involved in the adjudication;
 both the prosecution and defense spend more time in preparation;
and
 the appellate process has more steps.”387

appeals, and increased effort in the form of human capital, all of which are constitutional requirements.” Id. at 20.
The data set for this study included aggravated murder cases from 2000-2013, murder cases during the same period
and aggravated murder cases resultant in a death sentence from 1984-2000. Id. at 22.
380
Id. at vi. “The last involuntary execution . . . occurred in 1962 . . . .” Id. at 9.
381
Id. at vi. Four condemnees died naturally rather than by execution, but another two were subsequently released
from prison altogether. Id.
382
Id. at vii.
383
Office of Research, Tenn. Comptroller of the Treasury, Tenn.’s Death Penalty: Costs & Consequences i (2004),
available at http://www.comptroller.tn.gov/Repository/RE/deathpenalty.pdf.
384
Id. at ii. Juries were present for 79% of capital cases and 74% of life without parole cases revealed in the survey.
Id. at 20. Juries were sequestered in 70% of the sample’s capital trials and 57% “of the life without parole trials”. Id.
at 21.
385
Id. at iii. Since 1960, Tennessee has executed six inmates but has 67 condemnees on death row now. Tenn. Dep’t
of Correction, https://www.tn.gov/correction/statistics-and-information/executions/tennessee-executions.html;
https://www.tn.gov/correction/statistics-and-information/death-row-facts.html (last visited Apr. 25, 2018).
386
Office of Research, supra note 383, at iii. This expenditure was for “additional security, medical supplies” and
personnel and chemicals plus some exterior lighting and portable toilets. Id. It excludes costs for the department’s
central office staff, Tenn. Highway Patrol, Tenn. Bureau of Investigation, Tenn. Emergency Mgmt., pub. information
officers “from various state agencies”, and the metropolitan police dep’t. Id. at 38.
387
Id. at 11.

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 Costs of a capital cases averaged $15,297 more than costs of a life without parole case, by
calculating the costs of public defenders, prosecution, judges and other costs.388 Compensation
for appointed lead counsel in capital trials exceed that of lead counsel in non-capital trials.389 In
the 10-year sample of cases, judicially appointed private attorneys represented 47% of the capital
defendants and 71% of the life without parole defendants.390 Appointed counsel for direct appeals
cost more for capital cases than the counsel appointed for life-without-parole cases because of the
complexity of the issues, more preparation time and an additional attorney’s appointment.391 This
difference per case amounted to $18,849.392

“Tennessee Bureau of Investigation provides more investigative services in capital cases

than in other non-capital first-degree murder cases.”393

Washington. “The purpose of this study was to estimate the costs associated with pursuit
of the death penalty, as compared to cases where the death penalty was not sought, for aggravated
first-degree murder cases in” the state.394 The difference between the average costs for a case
seeking the death penalty versus a case not seeking the death penalty totaled $1,152,808.395 The
costs that were more expensive pursuing the death penalty were for jail, trial level defense and
prosecution costs, judicial, sheriff and miscellaneous costs, as well as personal restraint petitions
and appeals.396 “Combining all cost categories, the average total costs to the justice system related
to pursuit of the death penalty are about . . . 1.5 times more expensive than” cases not seeking the
death penalty.397

388
Id. at 16. Other costs “includes witness fees, jury per diem, lodging, and food expenses.” Id.
389
Id. at 19. Appointed counsel, other than public defenders, are allowed up to $40/hour for trial preparation & up to
$50/hour in ct. for non-capital cases. Tenn. Sup. Ct. R. 13, § 2(c)(1). The hourly rate for appointed counsel, other
than pub. defenders, in capital cases is $75/hour out of ct. & $100/hour in ct.. Id. at § 3(k). Co-counsel and post-
conviction counsel get an hourly rate of $60/out of ct. & $80/in ct. while “[c]o-counsel or associate attorneys in non-
capital cases” are uncompensated. Id. at §§ 2(b), 3(k). Private attorneys are appointed if a public defender is
unqualified or has a conflict of interest. Office of Research, supra note 383, at 19. Since capital cases have “much
longer” records than non-capital first-degree murder cases, times are longer for these cases whether on direct or post-
conviction appeal. Id. at 27.
390
Id. at 18, 19.
391
Id. at 22, 23.
392
Id. at 23. The prosecution costs for the direct appeals “do not vary significantly among case types”. Id. The
reversal rate on direct appeal was 29%. Id.
393
Id. at 38. This bureau “has the only full-service laboratory in” the state. Id.
394
Peter A. Collins et al., An Analysis of the Econ. Costs of Seeking the Death Penalty in Wash. State 3 (2015),
available at
http://www.law.seattleu.edu/Documents/korematsu/deathpenalty/The_Economic_Costs_of_Seeking_the_Death_Pen
alty_in_WA_FINAL.pdf.
395
Id. at 4, 5.
396
Id. at 4.
397
Id. at 5. Since 1904, State of Washington executed 78 condemnees, five of whom were executed since 1963. Wash.
Dep’t of Corrections, http://www.doc.wa.gov/docs/publications/reports/100-SR002.pdf (2016). Three of the five
condemnees executed dropped their resistance to execution by discontinuing judicial challenges. Collins et al., supra
note 394, at 71.

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 Three prior studies in Washington “concluded that the cost of death penalty cases is greater
than those in which the prosecutor seeks a sentence of life without parole.”398 For this analysis,
costs were tied to cases “within general stages of the case process”. 399 Jail costs associated with
cases seeking the death penalty were significantly higher than the same costs associated with cases
not seeking the death penalty.400 “The median defense cost” associated with cases seeking the
death penalty was “substantially higher . . . as compared to” cases not seeking the death penalty.401
“The median prosecution cost is about double for” cases seeking the death penalty “as compared
to” cases in which the death penalty was not sought.402 The median cost for court, police/sheriff
and miscellaneous costs for cases seeking the death penalty were almost 3½ times higher than
cases in which the death penalty was not sought.403 The median “[c]osts associated with post-
conviction personal restraint petitions and appeals” were almost eight times higher for cases
seeking the death penalty “as compared to” cases in which the death penalty was not sought.404
Curiously, “[p]ost-sentence lifetime incarceration costs were lower on average for” cases seeking
the death penalty “as compared to” cases in which the death penalty was not sought; 405 however,
“there are many reasons to support a conclusion that post-sentencing incarceration costs for ‘death
row’ inmates are greater than for non-death-sentenced inmates.”406 Death penalty cases had “total
combined costs” higher than the total associated with “cases where the death penalty was not
sought.”407

Either the conviction or the death sentence or both have been reversed in 75% “of cases
involving death sentences” since 1981.408 This compares “to the 7.5% reversal rate of the 201
non-death penalty appeals” during the same period.409 The court and parties spend “substantially
more time and resources . . . addressing pre-trial motions and challenges not found in non-capital
cases.”410 Jury selection for death penalty cases is “significantly prolonged and more expensive .
. . than the jury selection process in a non-capital aggravated murder case.”411 Capital trials have
two phases.412 The state Supreme Court is “statutorily required to review four issues” on direct
appeal.413

398
Id. at 12.
399
Id. at 28. “These primarily identified stages included police response/investigation, pre-trial, trial, direct appeal,
state post-conviction . . ., federal habeas, federal appeals, and clemency.” Id. at 35.
400
Id. at 42.
401
Id. at 43.
402
Id. at 44.
403
Id. at 45.
404
Id. at 46.
405
Id. at 47. “[T]hese figures are based on a very conservative cost estimation method.” Id. at 51.
406
Id. at 38.
407
Id. at 48.
408
Id. at 57, 70. “Reversals of capital cases are predominately due to inadequate mitigation investigation.” Id. at 61.
409
Id. at 70.
410
Id. at 63.
411
Id. More summons are “mailed to prospective jurors for a capital case far” exceeding “those mailed for a non-
capital aggravated murder trial.” Id. The capital cases have lengthier questionnaires for jurors than the non-capital
cases. Id. at 64.
412
Id. at 65. The phases are for pronouncing guilt or innocence and then the penalty if the verdict is guilty. Id.
413
Id. at 66. Sufficiency of the evid., prejudice in sentencing, proportionality of the sentence and whether the
condemnee is intellectually disabled. Id.

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Cost Analyses for Pennsylvania

The studies from other jurisdictions used a combination of actual cost data, actual resource
data and estimates of both to compare cumulative and partial costs of the death penalty with
sentences of life imprisonment without parole among the different stages of the process that results
in either sentence. As is true elsewhere, no reliable data exists to comprehensively and accurately
assess this difference in Pennsylvania. The process includes different levels and branches of
government which are independently budgeted. It involves fixed and variable costs, and the
budgeting would neither typically nor uniformly reflect different projections and allowances to
pursue these two penalties among others.

To try to assess whether there are significantly different costs between these two penalties,
surveys were electronically distributed to judges, prosecutors, public defenders and victim
advocates in nine Pennsylvania judicial districts of varying population sizes and caseloads that had
past or current capital murder cases.414 Cumulatively, the response rate was approximately 75%;
however, not everyone answered all questions. Since the survey responses were returned
anonymously, it is unknown how and whether particular recipients responded. The surveys
focused on the resources required at various stages of the process.

Pretrial phase. The responses from victim services staff estimated that they spent a higher
number of hours, on average, working with clients on a typical, capital murder case than a typical,
non-capital murder case. The responses were widely distributed but they skewed higher for the
typical, capital murder case. Also skewing higher in average number of hours or days estimated
for the pretrial phase of a typical, capital murder case compared to a typical, noncapital murder
case were lead and additional public defense attorney, lead and additional prosecutor, and public
defender and prosecution paralegal. Similarly, responding judges estimated that the average
number of hours or days for the pretrial phase of a typical, capital murder case compared to a
typical, non-capital murder phase skewed higher for judges, tipstaff, secretary and minute and law
clerks.

Judges, prosecutors and public defenders all replied that jury selection required more days
for typical, capital murder cases compared to typical, non-capital murder cases. Prosecutors and
public defenders estimated five or fewer days for a typical, non-capital murder case and almost
70% of them estimated six or more days for a typical, capital murder case.

Trial phase. The responses from victim services staff estimated that they spent a higher
number of hours, on average, working with clients on a typical, capital murder case than a typical,
non-capital murder case. The responses skewed higher for the typical, capital murder case. Also
skewing higher in average number of hours or days estimated for the trial phase of a typical, capital
murder case compared to a typical, non-capital murder case were lead and additional public
defense attorney, lead and additional prosecutor, and public defender and prosecution paralegal.
Similarly, responding judges estimated that the average number of hours or days for the trial phase
of a typical, capital murder case compared to a typical, non-capital murder phase skewed higher
for judges, secretary minute clerks and deputy sheriffs (if assigned to a court room).

414
Counties of Adams, Allegheny, Berks, Dauphin, Lancaster, Montgomery, York & Westmoreland & City of Phila.
Judges were surveyed in 2015. Prosecutors, public defenders and victim advocates were surveyed in 2013.

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 Judges, prosecutors and public defenders all replied that there are more jury days for
typical, capital murder cases compared to typical, non-capital murder cases. Almost two-thirds of
the respondents estimated five or fewer days for a typical, non-capital murder case and more than
94% of them estimated six or more days for a typical, capital murder case.

Penalty phase. Since there is no separate penalty phase trial following a conviction in a
non-capital, murder case, the time spent by lead and additional public defense and prosecution
attorneys and their paralegals in this phase could be a significant difference in cost for a capital
conviction. Even if a defendant were to be acquitted, the public defense would have already
incurred the costs of preparation for a potential penalty phase that would have occurred had the
capital defendant been convicted. Similarly, any hours spent by victim service staff working with
clients during this phase is additional time that is not consumed in non-capital, murder trials. The
same could be said for the time spent on this phase by judges, their secretaries, law and minute
clerks, tipstaff and deputy sheriffs (if assigned to a court room).

More than 88% of the responding judges, prosecutors and public defenders replied that this
phase typically takes one to five jury days. The remaining respondents estimated six or more jury
days to be typical for this phase.

Postconviction phase. The differences in responses during this phase were not as
pronounced as in the preceding phases, which is unexpected because capital convictions are
seemingly more active during this phase than non-capital, murder convictions. For public defense,
the estimated average number of hours or days skewed higher only for the additional attorneys in
typical, capital murder cases than typical, non-capital murder cases. For the prosecution, the
estimated average number of hours or days skewed higher for the lead and additional prosecutors
in typical, capital murder cases compared to typical, non-capital murder cases. Conversely, the
estimated number of hours or days skewed slightly higher for the prosecution paralegal in a typical
non-capital, murder case than in a typical, capital murder case.

The estimated average number of hours or days for a typical, capital murder case compared
to a typical, non-capital murder case skewed higher for judges, their secretaries, tipstaff, minute
and law clerks and deputy sheriffs (if assigned to a court room). The estimates from victim service
staff was about the same during this phase regardless of whether it was for a capital or non-capital
murder case.

Extra costs. For prosecution and public defense, extra costs could be spent on consultants,
experts, supplemental technology, etc..415 In estimating extra costs for a typical, capital murder
case, public defenders placed them as equal to or greater than $50,001 compared to mostly equal
to or less than $10,000 for typical, non-capital murder cases. Prosecutors estimated extra costs as
equal to or less than $50,000, for a typical murder case regardless of whether it is capital or non-
capital, but the capital ones skew equal to or greater than $10,001 and the noncapital ones skew
equal to or less than $10,000.416

415
They could be investigatory, jury, translational, mental health, scientific, medical, pathological, technological,
mitigatory, etc..
416
This survey was done in 2013. Adjusted for inflation from that time to Mar. 2018, $50,000 would amount to
$53,351.55; $10,000 would amount to $10,670.31; $2,000 would amount to $2,141.46. Bureau of Labor Statistics,

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 Extra costs for victim advocates would be for assisting victims and exclude salaries but
include, e.g., travel, overtime, etc.. Similarly, extra costs estimated by responding victim
advocates skewed equal to or greater than $2,001 for typical, capital murder cases and equal to or
less than $2,000 for typical, non-capital murder cases.

Guilty pleas. Some speculate that the prospect of a death sentence induces some
defendants to plead guilty to avoid that sentence and that this offsets the extra costs and other
resources that would be otherwise incurred in seeking a death sentences. Responses varied among
judges, prosecutors and public defenders, but estimates were generally higher for the percentage
of typical, non-capital murder cases resultant in guilty pleas, compared with typical, capital murder
cases.417 Although answers varied widely, responding prosecutors and public defenders indicated
that a higher percentage of guilty pleas skewed in the pretrial phase, regardless of whether the
murder case was a typical capital or non-capital one.

Department of Corrections. Because of segregation and close supervision, in fiscal year

2016-17, it cost $15,010 more per year to house an inmate in the capital case unit than in general
population.418 This differential represents a 47% premium and is for the average, departmental
general population inmate compared to State Correctional Institution Greene’s capital case inmate
cost.419 As for the average length of stay, those sentenced to death have spent an average of 17.49
years awaiting their execution.420 Using constant dollars, the differential amount spent per inmate
in the capital case unit would total $262,524.90 per inmate during a period of 17.49 years.
Multiplying that amount by the 150 inmates in the capital case unit would equal an aggregate
difference of $39,378,735 during the same period of 17.49 years. Clearly, this is a significant
difference in correctional costs.

This differential is attributed to security, food delivery, medical costs, utilities, the
execution complex and transport.421 The differential, however, has varied in recent years. The
differential in fiscal year 2013-14 between a capital case inmate the average for a general
population inmate was $20,103 per year.422 The same differential for fiscal year 2011-12 was
$11,796 per year.423 For fiscal year 2010-11, the same differential was $10,956 per year.424 These
figures demonstrate that there is a significant difference in cost for the department’s capital case
unit compared to its general population.

U.S. Dep’t of Labor, CPI Inflation Calculator, https://www.bls.gov/data/inflation_calculator.htm (last visited May 16,
2018).
417
One responding lead prosecutor commented that there are rarely guilty pleas to noncapital, 1 st degree murder
charges.
418
Woodside, supra note 140 (Apr. 18, 2018). Id., Capital Case Inmate Costs (Nov. 30, 2014) (on file with J. State
Gov’t Comm’n).
419
Id.
420
Pa. Dep’t of Corrections, supra note 14; calculations conducted by Pa. J. State Gov’t Comm’n staff.
421
Woodside, supra note 418.
422
Barnes, supra note 159 (July 6, 2015).
423
Bucklen, supra note 11 (Feb. 11, 2013).
424
Id. (Jan. 22, 2013).

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 Prospectively, whether this differential persists and by how much is unclear because the
department is changing the housing on its capital case unit. This change is too new to determine
its cost differential. Retrospectively, this has been a significant cost differential.

Supplemental sample of costs from 1st Judicial District.425 For fiscal years 2012 through
2015, the subject provided the amounts of fees spent on attorneys, expert witnesses, investigators
and jurors for capital and non-capital homicide cases.426 For fiscal year 2012, these fees averaged
$522.40 higher for the non-capital homicide cases than the capital homicide cases. For fiscal year
2013, these fees averaged $3,060.07 higher for the capital homicide cases than the non-capital
homicide cases. For fiscal year 2014, these fees averaged $29,888.68 higher for the capital
homicide cases than the non-capital homicide cases. For fiscal year 2015, these fees averaged
$54,569.09 higher for the capital homicide cases than the non-capital homicide cases.
From fiscal year 2012 to fiscal year 2015, the fees spent on attorneys, expert witnesses,
investigators and jurors for capital homicide cases increased from an average of $2,787 per case
to $59,169 per case. During the same fiscal years, the fees spent on attorneys, expert witnesses,
investigators and jurors for non-capital homicide cases ranged from an average of $3,309 per case
to $5,177 per case.
In fiscal year 2012, this judicial district was paying appointed counsel $2,000 to prepare
for the disposition of a homicide at trial plus per diems of $200 or $400 depending upon whether
the trial day was three hours or less or over three hours.427 Mitigation homicide appointment/co-
counsel was paid $1,700 to prepare for the disposition of homicide at trial plus per diems of $100
or $200 depending upon whether the day during the mitigation trial was three hours or less or over
three hours. Beginning in fiscal year 2013, this judicial district’s Administrative Governing Board
decided428 to compensate the appointed counsel in capital cases a flat fee of $10,000 for lead
counsel and $7,500 for penalty phase counsel regardless of the circumstances of the case’s
disposition and resolution plus a per diem payment of $400 for each day of representation at trial
beyond one week.429

425
These costs exclude the 20% of all Philadelphia homicide cases that are handled by the Defender Association. The
Defender Association homicide unit staffs each case with two attorneys, a mitigation specialist and an
investigator. The Defender Association homicide unit has been in existence since 1993 and has never had a client
receive the death penalty.
426
Office of Budget & Fiscal, 1st Judicial Dist. of Pa., Homicide Counsel Fees for Capital & Non–Capital Cases (on
file with Pa. J. State Gov’t Comm’n).
427
C.P., 1st Judicial Dist. of Pa., Trial Div. Payment Voucher (on file with Pa. J. State Gov’t Comm’n).
428
That decision directly resulted from a legal challenge to the low fees in death penalty cases in Philadelphia that
was filed in 2011. Joseph A. Slobodzian, Petition Critical of Low Pay for Ct.-appointed Death Penalty Lawyers,
Phila. Inquirer (Apr. 7, 2011),
http://www.philly.com/philly/news/local/20110407_Petition_critical_of_low_pay_for_court-appointed_death-
penalty_lawyers_1.html.
429
Admin. Governing Bd., 1st Judicial Dist. of Pa., Admin. Order No. 01 (2013) (on file with Pa. J. State Gov’t
Comm’n).

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 Conclusion. The survey sample is small, but responses seem to confirm observations from
elsewhere that pretrial, trial and post-conviction phases consume more resources for typical,
capital murder cases than typical, non-capital murder cases. Plus, the capital murder cases require
an additional penalty phase upon conviction. The extra costs are also higher for typical, capital
murder cases in comparison with typical, non-capital murder cases. There is no data to conclude
guilty pleas for capital murder cases offset the extra costs incurred and other resources consumed
for capital cases that do not result in a guilty plea. Responses indicate that guilty pleas are also
obtained in non-capital murder cases. Also, while efficiency in criminal justice would be preferred
to inefficiency, purely financial motivation to pursue one punishment or another would be
improper and can create unjust results.

Over the past 56 years, the Commonwealth has executed three condemnees. In 2016, The
Reading Eagle published its “revised analysis of the death penalty's cost” and calculated that each
execution effectively cost $272,000,000 under the system since 1978. 430 One of the advisors on
this study is quoted in that newspaper article acknowledging “more costs” but disputing the
extent.431 This analysis reported that “a death sentence adds about $2 million to a murder case”,
attributing “[n]early 45%” of this amount to “prison costs”.432 Almost all of the 150 condemnees
incarcerated now have judicial challenges to their death sentences pending. The reason that only
three condemnees have been executed is that more than 97% of them have been successful in
getting their death sentences judicially vacated and others died in prison while awaiting execution.
The difference in costs between capital and non-capital trials becomes more significant when one
considers the cumulative totals of capital trials over a period of decades and the unlikelihood of an
execution.433 If the differential in costs for capital case unit inmates compared to general
population inmates persists, Department of Corrections can expect to spend an extra $39,378,735
or more to incarcerate condemnees, who are unlikely to be executed.434 Most of the staffing costs
for the judiciary, prosecution and defense are salaried, fixed costs; however, when staff is spending
more time on particular cases, they are spending less time on other cases. The difference in costs
could be characterized as both actual, extra cost and opportunity cost.

Bias and Unfairness

The question that serves as the basis of the study of bias and unfairness in the administration
of the death penalty in our Commonwealth is:

430
Nicole C. Brambila & Liam Migdail-Smith, Executing Just.: A Look at the Cost of Pa.’s Death Penalty, Reading
Eagle, June 19, 2016, http://www.readingeagle.com/news/article/executing-justice-a-look-at-the-cost-of-
pennsylvanias-death-penalty.
431
Id. The newspaper’s analysis “extrapolated from the method” in the Maryland study, which is summarized infra
pp. 43-45. Brambila & Migdail-Smith, supra note 430.
432
Id.
433
The three condemnees who were executed all dropped their resistance to imposition of the sentence so that some
refer to these as volunteers. Supra pp. 1-2, notes 7, 8.
434
If the capital case unit were no longer used or if its prospective differential is lower, the Commw. could either save
that money by not spending it or it could be redirected elsewhere within or without that dep’t to fund unmet needs.

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 Whether the selection of defendants for capital trials in Pennsylvania is arbitrary,
unfair or discriminatory in any way and whether there is unfair, arbitrary or
discriminatory variability at any stage in the process including in the sentencing
phase;435

The subcommittee on policy could not answer this question because the only recent
study was limited to examining cases resultant in convictions for murder of the first degree. The
Pennsylvania State University researchers spent approximately eight years developing,
researching, accessing and collecting data, and drafting a report in which it found disparities within
those cases based on the race of the victim, the type of the defendant’s legal representation, and
the variation among counties in the selection of those defendants for the death penalty.436
However, there was no examination of possible bias associated with any other stage of the process,
including arrest, charging and plea bargaining.437 Justice Center for Research is seeking funding
to follow that study with one to examine earlier stages of the process, but it will take years to
accomplish. The advisory committee is grateful to have had the opportunity to collaborate with
both the university’s Justice Center for Research and Pennsylvania Interbranch Commission for
Gender, Racial and Ethnic Fairness and will detail the center’s research below.438

Regarding unfairness in general and racial or ethnic bias in particular, the subcommittee on
policy supports including a recommendation that Pennsylvania consider replicating what other
states have done in this area, such as Washington State, that statutorily provides for proportionality
review (although the statute is limited to cases that resulted in convictions for aggravated first-
degree murder), which would routinely and systematically collect and review relevant data:

In all cases in which a person is convicted of aggravated first degree murder, the
trial court shall, within thirty days after the entry of the judgment and sentence,
submit a report to the clerk of the supreme court of Washington, to the defendant
or his or her attorney, and to the prosecuting attorney which provides the
information specified under subsections (1) through (8) of this section. The report
shall be in the form of a standard questionnaire prepared and supplied by the
supreme court of Washington and shall include the following:

(1) Information about the defendant, including the following:

(a) Name, date of birth, gender, marital status, and race and/or ethnic
origin;
(b) Number and ages of children;
(c) Whether his or her parents are living, and date of death where
applicable;
(d) Number of children born to his or her parents;
(e) The defendant's educational background, intelligence level, and
intelligence quotient;

435
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 219.
436
Kramer et al., supra note 26.
437
Id. at ii, 114.
438
Infra pp. 75-90.

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 (f) Whether a psychiatric evaluation was performed, and if so,
whether it indicated that the defendant was:
(i) Able to distinguish right from wrong;
(ii) Able to perceive the nature and quality of his or her act;
and
(iii) Able to cooperate intelligently with his or her defense;
(g) Any character or behavior disorders found or other pertinent
psychiatric or psychological information;
(h) The work record of the defendant;
(i) A list of the defendant's prior convictions including the offense,
date, and sentence imposed; and
(j) The length of time the defendant has resided in Washington and
the county in which he or she was convicted.
(2) Information about the trial, including:
(a) The defendant's plea;
(b) Whether defendant was represented by counsel;
(c) Whether there was evidence introduced or instructions given as
to defenses to aggravated first degree murder, including excusable
homicide, justifiable homicide, insanity, duress, entrapment, alibi,
intoxication, or other specific defense;
(d) Any other offenses charged against the defendant and tried at the
same trial and whether they resulted in conviction;
(e) What aggravating circumstances were alleged against the
defendant and which of these circumstances was found to have been
applicable; and
(f) Names and charges filed against other defendant(s) if tried jointly
and disposition of the charges.
(3) Information concerning the special sentencing proceeding, including:
(a) The date the defendant was convicted and date the special
sentencing proceeding commenced;
(b) Whether the jury for the special sentencing proceeding was the
same jury that returned the guilty verdict, providing an explanation if it was
not;
(c) Whether there was evidence of mitigating circumstances;
(d) Whether there was, in the court's opinion, credible evidence of
the mitigating circumstances as provided in RCW 10.95.070;
(e) The jury's answer to the question posed in RCW 10.95.060(4);
(f) The sentence imposed.
(4) Information about the victim, including:
(a) Whether he or she was related to the defendant by blood or
marriage;
(b) The victim's occupation and whether he or she was an employer
or employee of the defendant;
(c) Whether the victim was acquainted with the defendant, and if so,
how well;

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 (d) The length of time the victim resided in Washington and the
county;
(e) Whether the victim was the same race and/or ethnic origin as the
defendant;
(f) Whether the victim was the same sex as the defendant;
(g) Whether the victim was held hostage during the crime and if so,
how long;
(h) The nature and extent of any physical harm or torture inflicted
upon the victim prior to death;
(i) The victim's age; and
(j) The type of weapon used in the crime, if any.
(5) Information about the representation of the defendant, including:
(a) Date counsel secured;
(b) Whether counsel was retained or appointed, including the reason
for appointment;
(c) The length of time counsel has practiced law and nature of his or
her practice; and
(d) Whether the same counsel served at both the trial and special
sentencing proceeding, and if not, why not.
(6) General considerations, including:
(a) Whether the race and/or ethnic origin of the defendant, victim,
or any witness was an apparent factor at trial;
(b) What percentage of the county population is the same race and/or
ethnic origin of the defendant;
(c) Whether members of the defendant's or victim's race and/or
ethnic origin were represented on the jury;
(d) Whether there was evidence that such members were
systematically excluded from the jury;
(e) Whether the sexual orientation of the defendant, victim, or any
witness was a factor in the trial;
(f) Whether any specific instruction was given to the jury to exclude
race, ethnic origin, or sexual orientation as an issue;
(g) Whether there was extensive publicity concerning the case in the
community;
(h) Whether the jury was instructed to disregard such publicity;
(i) Whether the jury was instructed to avoid any influence of
passion, prejudice, or any other arbitrary factor when considering its verdict
or its findings in the special sentencing proceeding;
(j) The nature of the evidence resulting in such instruction; and
(k) General comments of the trial judge concerning the
appropriateness of the sentence considering the crime, defendant, and other
relevant factors.
(7) Information about the chronology of the case, including the date that:
(a) The defendant was arrested;
(b) Trial began;
(c) The verdict was returned;

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 (d) Post-trial motions were ruled on;
(e) Special sentencing proceeding began;
(f) Sentence was imposed;
(g) Trial judge's report was completed; and
(h) Trial judge's report was filed.
(8) The trial judge shall sign and date the questionnaire when it is
completed.439

Another way to address potential bias and unfairness in the administration of the death
penalty would be to statutorily allow individual death sentences to be challenged on the basis of
systemic bias via statistically-based evidence.440 Kentucky has this provision, but it requires the
claim to be raised pre-trial and places the burden of proof on the defendant at a clear and
convincing standard.441 Almost a decade after Kentucky enacted its provision, North Carolina
enacted a more expansive version, applying it retroactively. However, after being used
successfully by defendants, the state amended the law three years after enactment before repealing
it the next year.442

This section will focus on the central claim of unfairness lodged against the death penalty,
namely, that it is administered in a manner that is biased against individuals on the basis of their
race, ethnicity or socio-economic status. It will also discuss the role of the death penalty in plea
negotiations and the assertion that the prosecution has too much discretion over the selection of
defendants who are charged with the death penalty. The problems regarding ineffective
representation of capital defendants will be addressed in the section relating to counsel.

The justice system demands that fairness apply to the taking of human life. Not only must
the factual guilt of the accused be established beyond a reasonable doubt, but it must be reliably
determined “that death is the appropriate punishment in a specific case.”443

Racial bias

Perhaps the most prevalent charge against the death penalty is that it is unfair to African-
Americans. “Two types of discrimination plague our capital punishment system: (1) a capital
sentence influenced by the defendant's race (race-of-defendant discrimination) and (2) a death
sentence impacted by the victim's race (race-of-victim discrimination).”444

An important, if not the major reason for the U.S. Supreme Court’s intervention in death
penalty cases was racial bias. “Between 1930, when the Department of Justice started keeping

439
Wash. Rev. Code § 10.95.120.
440
An example of this type of legis. is Pa. H.R. No. 1996 (Sess. of 2009).
441
Ky. Rev. Stat. § 532.300. Because there are no notes of decisions published on this, it might not have been used
during the 20 years in which it has been enacted.
442
Former N.C. Gen. Stat. §§ 15A-2010, 15A-2011.
443
Woodson v. N.C., 428 U.S. 280, 305 (1976)
444
Maxine Goodman, A Death Penalty Wake-Up Call: Reducing the Risk of Racial Discrimination in Capital
Punishment, 12 Berkeley J. Crim. L. 29, 32 (2007). “Race-of-victim discrimination typically occurs when racial bias
by a judge, jury, or prosecutor renders the capital defendant more likely to be sentenced to death because the defendant
is a minority and the victim is white.” Id.

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statistics, and 1972 when Furman was decided, 455 people were put to death for the crime of rape;
405 were African American . . . .”445 Unfair application of the death penalty was one of the driving
forces in the Court’s ruling the death penalty unconstitutional. “[W]hatever the justices may have
intended, everyone understood Furman as having been about race.”446 Racial and class bias was
the deciding factor for Justice William Douglas:

In a Nation committed to equal protection of the laws there is no permissible ‘caste’

system of law enforcement. Yet we know that the discretion of judges and juries
in imposing the death penalty447 enables the penalty to be selectively applied,
feeding prejudices against the accused if he is poor and despised, and lacking
political clout, or if he is a member of a suspect or unpopular minority, and saving
those who by social position may be in a more protected position. In ancient Hindu
law a Brahman was exempt from capital punishment, and under that law
‘(g)enerally, in the law books, punishment increased in severity as social status
diminished.’ We have, I fear, taken in practice the same position, partially as a
result of making the death penalty discretionary and partially as a result of the
ability of the rich to purchase the services of the most respected and most
resourceful legal talent in the Nation. . . . .

A law that stated that anyone making more than $50,000 would be exempt from the
death penalty would plainly fail, as would a law that in terms said that blacks, those
who never went beyond the fifth grade in school, those who made less than $3,000
a year, or those who were unpopular or unstable should be the only people executed.
A law which in the overall view reaches that result in practice has no more sanctity
than a law which in terms provides the same.

Thus, these discretionary statutes are unconstitutional in their operation. They are
pregnant with discrimination and discrimination is an ingredient not compatible
with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and
unusual’ punishments. 448

Since Furman, the Supreme Court’s most extensive discussion of racial bias as it relates to
the death penalty appears in McCleskey v. Kemp.449 The case involved a challenge to a death
sentence based on a statistical study by Professor Baldus and others “that purports to show a
disparity in the imposition of the death sentence in Georgia based on the race of the murder victim
and, to a lesser extent, the race of the defendant.”450 Because of this, the petitioner argued that the
death sentence was invalid under the Eighth and Fourteenth Amendments.451 The Court rejected
these claims by noting that even if the study was accepted as proof of the biases claimed, it failed
to show both that the defendant himself had suffered from such bias in his own case and that such

445
Stephen B. Bright, The Role of Race, Poverty, Intellectual Disability, & Mental Illness in the Decline of the Death
Penalty, 49 U. Rich. L. Rev. 671, 678 (2015).
446
Evan J. Mandery, A Wild Justice: The Death & Resurrection of Capital Punishment in Am. 276 (2013).
447
The statutes under review in Furman did not prescribe aggravating or mitigating circumstances.
448
Furman, 408 U.S. 238, 255-57 (Douglas, J., concurring).
449
481 U.S. 279 (1987).
450
Id. at 286.
451
Id.

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discrimination was purposeful; proof of both of these points was necessary to sustain an equal
protection claim.452 The Court added that petitioner’s position undermined the credibility of the
entire criminal justice system, and that overturning his verdict on such broad grounds would
require a legislative judgment by the Court.453 The states, however, could eliminate or modify
their own death penalty laws on the basis of statistical evidence.

McCleskey's arguments are best presented to the legislative bodies. It is not the
responsibility—or indeed even the right—of this Court to determine the appropriate
punishment for particular crimes. It is the legislatures, the elected representatives
of the people, that are ‘constituted to respond to the will and consequently the moral
values of the people.’ Legislatures also are better qualified to weigh and ‘evaluate
the results of statistical studies in terms of their own local conditions and with a
flexibility of approach that is not available to the courts.’ Capital punishment is
now the law in more than two-thirds of our States. It is the ultimate duty of courts
to determine on a case-by-case basis whether these laws are applied consistently
with the Constitution. Despite McCleskey's wide-ranging arguments that basically
challenge the validity of capital punishment in our multiracial society, the only
question before us is whether in his case, the law of Georgia was properly
applied.454

The weight of this case may be diminished because after his retirement Justice Powell, who
wrote the opinion for the majority of five justices, publicly repudiated the result in this case and
came out against the death penalty, telling his biographer that he did not understand statistics.455
Justice Scalia, who joined the majority opinion, “was persuaded in the McCleskey case itself that
Baldus had proved racial discrimination in the administration of the death penalty in Georgia” but
that this did not require reversal (since it was only shown by statistical evidence).456

In this case, only a minority of the Justices directly acknowledged the truth of the
Baldus study, but none of them has ever tried to deny it. . . . No single
accomplishment, however impressive, does justice to a person as remarkable as
David Baldus. What Baldus achieved in McCleskey, however, is worth dwelling
on, and not only because of its historic importance. David Baldus forced reluctant
judges to face up to facts they would have preferred to ignore.457

452
Id. at 292, 298-99, 308.
453
Id. at 293, 297, 311-19.
454
Id. at 319 (citations omitted).
455
Samuel R. Gross, David Baldus & the Legacy of McCleskey v. Kemp, 97 Iowa L. Rev. 1905, 1918-19, 1921 (2012).
456
Id. at 1921.
457
Id. at 1923.

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Pennsylvania Supreme Court Committee
on Racial and Gender Bias in the Justice System Report

Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in
the Justice System458 (Final Report) stands as the most comprehensive study of bias in the
administration of the justice in Pennsylvania. While acknowledging a lack of comprehensive
data,459 it concluded that the evidence suggested pervasive discrimination, particularly against
African Americans:

Based on existing data and studies, the [Supreme Court] Committee concluded that
there are strong indications that Pennsylvania’s capital justice system does not
operate in an evenhanded manner. . . . After controlling for the seriousness of the
offense and other non-racial factors, researchers [in Philadelphia] found that
African American defendants were sentenced to death at a significantly higher rate
than similarly situated non-African Americans; researchers further concluded that
one-third of African-Americans on death row in Philadelphia . . . would have
received life sentences if they were not African American. Race was also shown
to be a major factor in capital jury selection, with the prosecution striking African
Americans from the jury twice as often as non-African Americans, and with the
defense doing just the opposite. Also, both sides routinely, but to a lesser degree,
discriminate on the basis of gender, with the prosecution favoring men and the
defense favoring women.460

In reaching these conclusions, the Supreme Court Committee relied on a study of

conducted by David C. Baldus and George Woodworth and a second study led by William Bowers,
assisted in Pennsylvania by Wanda Foglia.461

In testimony before the Committee, Baldus summarized four principal findings

from his research in Philadelphia. First, in Philadelphia capital trials, African
American defendants are at higher risk of receiving the death sentence than are
similarly situated non-African American defendants. Second, in the selection of
capital juries, Philadelphia prosecutors and defense counsel systematically exclude
venire members on the basis of their race and gender, in spite of federal law
prohibiting such discrimination. Third, this jury selection strategy skews jury
sentencing decisions towards increasing the frequency of death sentences. It also
enhances the level of race discrimination against African American defendants.
Fourth, this skewing effect is principally the product of high prosecutorial strike
rates against African American venire members that are not offset or counteracted
by high defense counsel strike rates against non-African American members.462

458
Pa. Sup. Ct. Comm. on Racial & Gender in the Just. Sys., supra note 16, hereinafter Final Rep..
459
Id. at 201, 203-04.
460
Id at 201.
461
Id. at 205.
462
Id. The statistical support for these conclusions is described id., at 206-07.

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 Using “standard statistical methodology . . . commonly used in employment discrimination
cases,” Baldus “likened the impact of being African American” in Philadelphia to having an
additional aggravating circumstance on one’s chances for a death sentence, that one third of
Philadelphia residents on death row would not have been put there had they been white, and that
juries were significantly more likely to find mitigating circumstances for white defendants than
for African-American defendants.463

In the aforementioned Final Report, “the racial composition of juries” was associated with
“the frequency with which death sentences were imposed” along with “the level of race-of-
defendant discrimination in . . . sentencing.”464 The report cited a complementary study by Dr.
Bowers who researched “juror decision-making” as part of the Capital Jury Project.465 This study
was based on detailed interviews with jurors who had served on death penalty cases. 466 It found
that jurors with six or more white men were more likely to hand down a death sentence; jurors
prejudged the case more often if the defendant was not white; lingering doubt was more likely to
factor into the sentencing if the defendant was white; and African American jurors were more
likely than white jurors to find that the defendant was remorseful.467

The Final Report further cited an important national study by James S. Liebman.468 He
looked at appellate reversals of death cases and found that 41% of death cases reviewed by state
appellate courts were reversed on grounds that called into question “the reliability of the guilt
finding or death sentence imposed at trial.”469 Adding in reversals upon post-conviction review
and federal habeas corpus review, the rate of reversal for such error was 68%.470 By far the
predominant cause of these reversals on state post-conviction was “egregiously incompetent
defense lawyering”.471

In response to these findings, the Supreme Court Committee on Racial and Gender Bias in
the Justice System recommended that the General Assembly adopt a Racial Justice Act that would
in effect countermand McCleskey v. Kemp in Pennsylvania. Such legislation would allow “a court
to consider legitimate statistical data as evidence of racial bias in the imposition of the death
sentence within a particular jurisdiction. Upon a demonstration of such bias by the defense, the
burden would [shift] to the prosecution to demonstrate that race was not a significant factor in
seeking the death sentence in the specific case.”472 Similar legislation was enacted was enacted in
Kentucky in 1998 and in North Carolina in 2009 before its repeal there in 2013. The Kentucky

463
Id. at 206. For a complete discussion of the findings of the Baldus study, see David C. Baldus et al., Racial
Discrimination & the Death Penalty in the Post-Furman Era: An Empirical & Legal Overview, with Recent Findings
from Phila.,” 83 Cornell L. Rev. 1638 (1998).
464
Final Rep., supra note 16, at 207.
465
Id.
466
Id.
467
Id. at 208-09.
468
Id. at 209.
469
Id.
470
Id.
471
Id.
472
Id. at 214.

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statute was restricted in application and has had little impact, while the North Carolina statute had
been successfully used to show racial bias, which might have contributed to its repeal.473

Other recommendations from the Supreme Court Committee on Racial and Gender Bias
relating to sentencing disparities in the criminal justice system, indigent defense in Pennsylvania
and racial and ethnic disparities in the imposition of the death penalty appear in Appendix M.474
These recommendations were made to the judiciary, the legislature and the executive.

Geographical bias475

Nationally, the use of the death penalty is highly concentrated in a “small handful of
counties”.476 As of 2010, Pennsylvania had the highest intrastate disparity between population and
death penalty cases of any state nationally, because Philadelphia County accounted for 106 of the
223 inmates on death row, while only eleven death row inmates were from Allegheny County,
although its population was about as large as Philadelphia’s.477 (More recently, Philadelphia has
cut down drastically on its use of the death penalty; e.g., in 2010 there were over 100 pending
capital cases in Philadelphia with that number steadily declining to 13 that were resolved pre-trial
in 2017 with the number of capital trials there during the years 2011-2017 ranging from nine in
2011 to one in 2017.478 Philadelphia has generated only three death sentences since 2010 with the
last one in 2016.479 Of those three, one was remanded on appeal and the defendant is no longer on
death row.480 Currently, of the 150 inmates on Pennsylvania’s death row, 50 are from Philadelphia
and nine are from County of Allegheny.481) Texas showed a similar pattern, with four of its 254
counties accounting for more than half of its death row, while 130 counties had not used the death
penalty in 30 years.482 Similar disparities existed between City and County of Baltimore in
Maryland, New York City and upstate New York, Hamilton County (Cincinnati) and Franklin

473
Rees Alexander, A Model State Racial Just. Act: Fighting Racial Bias without Killing the Death Penalty, 24 Geo.
Mason U. C.R. L.J. 113 (2014); Anne Blythe, N.C. Sup. Ct. Vacates Racial Just. Act Decisions, News & Observer,
Dec. 18, 2015, http://www.newsobserver.com/news/politics-government/state-politics/article50478335.html.
474
Infra pp. 265-70.
475
Appdx. K., infra p. 261, shows the ratio of execution to life sentences by county based upon the 2015 inmate
population.
476
“Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed
five or more death sentences between 2010 and 2015.” Fair Punishment Project, New Rep. Finds Counties that Use
Death Penalty the Most are Plagued by Prosecutorial Misconduct, Bad Lawyers, & Racial Bias,
http://fairpunishment.org/new-report-finds-counties-that-use-death-penalty-the-most-are-plagued-by-prosecutorial-
misconduct-bad-lawyers-and-racial-bias/ (posted 2016). By June 2018, the total no. of persons sentenced to execution
in Pa. was 150. Pa. Dep’t of Corrections, supra note 14.
477
Adam M. Gershowitz, Statewide Capital Punishment: The Case for Eliminating Counties’ Role in the Death
Penalty,” 63 Vand. L. Rev. 307, 314-15 (2010).
478
E-mail from Atl. Ctr. for Capital Representation (May 16, 2018).
479
Id. (June 5, 2018).
480
Id. (May 16, 2018).
481
Pa. Dep’t of Corrections, supra note 14. Phila.’s estimated population for 2016 is 1,567,872 or approximately
12¼% of the Commw.’s estimated 12,784,227 population; Cnty. of Allegheny’s estimated population for 2016 is
1,225,365 of approximately 9½% of the Commw.’s estimated population; compared to their percentages on Pa.’s
death row of approximately 33% for Phila. & 6% for Cnty. of Allegheny. Further discussion of this appears infra p.
86.
482
Gershowitz, supra note 477, at 315-16.

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County (Columbus) in Ohio, and Davidson County (Nashville) and Shelby County (Memphis) in
Tennessee.483

“[N]et of legally relevant factors,” death penalty outcomes in our Commonwealth are
shaped more by differences among counties, the victim’s race and type of defense counsel, rather
than by the defendant’s race or ethnicity.484 The most prominent difference found in this study is
the differences in death penalty outcome among the counties.485 Appendix F has the disposition
of capital cases in the Commonwealth for the years 2011-2017.486 In more than half of the cases,
the notice of aggravating circumstances was withdrawn; a death sentence was imposed in less than
6% of the cases.487

Sexual bias

Nationally, the patterns of sentencing suggest that the death penalty regime has been
considerably harsher toward men as compared to women:

Studies of gender and the death penalty have, for the most part, focused on the
gender of the defendant and have consistently found that women are sentenced to
death and executed at significantly lower rates than men. A study of the death
penalty applied to women from 1973-2005 found that at every stage of the process
female defendants appear to be diverted away from the death penalty at a greater
rate than men. While 10% of people arrested for murder are women, only 2% of
death sentences imposed at trial are imposed upon women, and women account for
only 1.1% of persons actually executed. Men arrested for murder are six times
more likely to be sentenced to death than are women arrested for murder.488

As of 2011, Texas had executed 464 men and only three women since the reinstatement of
the death penalty, although women commit nearly ten percent of death eligible crimes. 489 The
probability of a death sentence is also higher where the murder victim is a woman than where the
victim is a man.490

Bias in the death penalty process

Murder differs from other crimes in important respects. It is often more difficult to solve
a capital murder than other crimes because the victim is unable to assist in the investigation, and

483
Id. at 315-18.
484
Infra pp. 76, 86-87.
485
Id. “A given defendant’s chance of having the death penalty sought, retracted, or imposed depends a great deal on
where that defendant is prosecuted and tried.” Infra p. 90.
486
Infra p. 237.
487
Id.
488
Steven F. & Naomi R. Shatz, Chivalry Is Not Dead: Murder, Gender, & the Death Penalty, 27 Berkeley J. Gender
L. & Just. 64, 84 (2012).
489
Jessica Salvucci, Femininity & the Elec. Chair: An Equal Prot. Challenge to Tex.’s Death Penalty Statute, 31 B.C.
Third World L.J. 405, 407 (2011).
490
Shatz & Shatz, supra note 488, at 85-86, 107-10.

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it is more likely that the perpetrator is unknown to the victim.491 At the same time, there is more
pressure from the public to clear murder cases than other crimes. Murder cases receive more
attention and effort from law enforcement, which has mixed consequences for the accuracy of the
investigation.492 With more resources and staff devoted to the case, there may be more likelihood
of an accurate investigation, but public pressure to solve the case may induce law enforcement to
cut corners or even falsify evidence.493 The prosecution may go to trial on a murder case with an
uncertain probability of conviction, while it would drop an equally iffy armed robbery case.494 The
conviction rate for murder is about 70 percent, roughly the same as for other felonies.495

We turn from the types of bias that may be exercised to the process by which it may emerge.
The prosecution has the most important role in selecting the murders that will be deemed death
eligible.

The two most important decisions made in every death penalty case—whether to
seek the death penalty, and whether to offer a plea bargain—are completely in the
hands of prosecutors. They are unregulated and subject to no judicial review.
There are many prosecutors who never seek the death penalty, others who seldom
seek it, and others who seek it in every case in which it could be imposed. Most
death penalty cases are resolved with plea bargains (depending on whether the
prosecution is willing to offer it and whether the defendant is willing to accept it).
Some prosecutors will offer a plea bargain allowing the defendant to plead guilty
in exchange for a sentence less than death, usually life imprisonment without the
possibility of parole. Mentally impaired and intellectually limited defendants may
not understand their options. They may reject the plea offer and end up on death
row.

A small number of aggressive prosecutors in the counties that account for so many
death sentences refuse to offer plea bargains and try to obtain the death penalty at
every opportunity. They are usually successful in jurisdictions in which defendants
facing the death penalty receive very poor legal representation. Between 1976 and
the end of 2014, 122 people sentenced to death in Harris County, which includes
Houston, have been executed, more people than executed by any state except Texas
itself. Harris County judges have made the job easier by appointing incompetent
lawyers to represent people facing the death penalty. And, after they are sentenced
to death, the condemned are assigned equally bad lawyers to represent them in post-
conviction proceedings.496

The use of the death penalty charge to induce a murder defendant to plead guilty or waive
a jury trial has come under attack in the legal academy and by other observers, largely on the
ground that the threat of the death penalty is likely to coerce innocent defendants to plead guilty.

491
Samuel R. Gross, Lost Lives: Miscarriages of Just. in Capital Cases, 61 Law & Contemp. Probs. 125, 127 (1998).
492
Id. at 127-28.
493
Id. at 135.
494
Id. at 143-44.
495
Bureau of Just. Statistics, U.S. Dep’t of Just., http://www.bjs.gov/index.cfm?ty=qa&iid=403 (last visited Apr. 26,
2018).
496
Bright, supra note 445, at 680-81.

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At the same time, some may defend the practice on the ground that such pleas save substantial
time and money for law enforcement.

The U.S. Supreme Court has conditionally authorized plea bargains, both in general and
in death penalty cases. Plea bargains are analyzed as a waiver issue and pass constitutional
muster if the waiver is voluntary and informed.

That a guilty plea is a grave and solemn act to be accepted only with care and
discernment has long been recognized. Central to the plea and the foundation for
entering judgment against the defendant is the defendant's admission in open court
that he committed the acts charged in the indictment. He thus stands as a witness
against himself and he is shielded by the Fifth Amendment from being compelled
to do so—hence the minimum requirement that his plea be the voluntary expression
of his own choice. But the plea is more than an admission of past conduct; it is the
defendant's consent that judgment of conviction may be entered without a trial—a
waiver of his right to trial before a jury or a judge. Waivers of constitutional rights
not only must be voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely consequences. . . . .
The issue we deal with is inherent in the criminal law and its administration because
guilty pleas are not constitutionally forbidden, because the criminal law
characteristically extends to judge or jury a range of choice in setting the sentence
in individual cases, and because both the State and the defendant often find it
advantageous to preclude the possibility of the maximum penalty authorized by
law. For a defendant who sees slight possibility of acquittal, the advantages of
pleading guilty and limiting the probable penalty are obvious—his exposure is
reduced, the correctional processes can begin immediately, and the practical
burdens of a trial are eliminated. For the State there are also advantages—the more
promptly imposed punishment after an admission of guilt may more effectively
attain the objectives of punishment; and with the avoidance of trial, scarce judicial
and prosecutorial resources are conserved for those cases in which there is a
substantial issue of the defendant's guilt or in which there is substantial doubt that
the State can sustain its burden of proof. It is this mutuality of advantage that
perhaps explains the fact that . . . criminal convictions in this country rest on pleas
of guilty, a great many of them no doubt motivated at least in part by the hope or
assurance of a lesser penalty than might be imposed if there were a guilty verdict
after a trial to judge or jury. 497

As Brady was a death penalty case, the Court added that “a plea of guilty is not invalid
merely because entered to avoid the possibility of a death penalty.”498 A guilty plea is unlikely to
be invalid if the defendant was represented by competent counsel.499

497
Brady v. U.S., 397 U.S. 742, 748, 751-52 (1970).
498
Id. at 755.
499
Mabry v. Johnson, 467 U.S. 504, 508-11 (1984).

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 Pennsylvania law is similar to federal law in that a guilty plea to first-degree murder is
constitutionally valid if it is “knowingly, voluntarily and intelligently entered.”500 The plea is not
rendered invalid by the fact that it helps clear the way for a death sentence.501

It has been argued that plea bargaining with the death penalty results in a sentencing
procedure that creates a substantial risk that the death penalty will be inflicted in an arbitrary and
capricious manner, in violation of Gregg v. Georgia.502 To critics, an accused who receives the
death penalty does so as much for insisting on exercising his or her right to a jury trial as for the
underlying crime. Plea bargaining a death case seems contrary to the policy underlying the
penalty.

Plea bargaining undermines the most common rationale for the death penalty.
Proponents of this penalty maintain that some crimes are so horrible that they
simply require it. They insist that no lesser punishment can adequately express the
community's condemnation. But the actions of American prosecutors convey an
entirely different message: No lesser punishment can adequately express the
community's condemnation unless the accused pleads guilty. For defendants who
agree to save the government the costs of a trial, lesser punishments are just fine.
These defendants' horrible crimes do not demand death after all. In the immortal
words of Gilda Radner, “Never mind.” Plea bargaining devalues the death penalty.
It changes what the death penalty is about.503

As many as one half to three-quarters of death defendants turned down a plea bargain that
would have taken the death penalty out of the case.504

United States Attorneys are forbidden to seek or threaten to seek the death penalty “solely
for the purpose of obtaining a more desirable negotiating position.”505 It would appear almost
impossible to enforce this standard because an admixture of any motive, other than a purely tactical
one, would render it inapplicable. A statistical study of the use of plea bargaining in murder cases
concluded that “the threat of the death penalty increases the plea-bargaining rate from
approximately 40% to 60%” and thus “deters roughly two out of ten death-noticed defendants from
pursuing a trial.”506 Very little systematic research has been done on this issue, however.507
Observers note that plea bargaining is pervasively central to the administration of the criminal
justice system. “Ninety-seven percent of federal convictions and ninety-four percent of state
convictions are the result of guilty pleas.”508

Whether specifically intended or not, it is argued that prosecutors obtain considerable

strategic advantages by charging death. They can empanel a death-qualified jury, and there is

500
Commw. v. Fears, 836 A.2d 52, 62 (Pa. 2003).
501
Id. at 62-63; 42 Pa.C.S. § 9711(b).
502
Gregg v. Ga., 428 U.S. 153, 188 (1976).
503
Albert W. Alschuler, Plea Bargaining & the Death Penalty, 58 DePaul L. Rev. 671, 674 (2009).
504
Id. at 671-72.
505
U.S. Attorneys’ Manual 9-10.120 (1997).
506
Sherod Thaxton, Leveraging Death, 103 J. Crim. L. & Criminology 475, 483 (2013).
507
Id. at 480-81.
508
Mo. v. Frye, 566 U.S. 134, 143 (2012).

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evidence that such juries are more likely to convict.509 A death case increases the burden on the
defense by expanding the attorney’s responsibilities and the demands on the defender’s “skill set
and financial resources” needed to take on the case, markedly diminishing the pool of attorneys
willing to undertake the case, thereby increasing the odds for an outcome favorable to the
prosecution.510 The chances of an acquittal diminish because defense attorneys deemphasize
evidence of innocence in the guilt phase, where they are unlikely to win, in order to preserve
credibility in the penalty phase; this is because juries are likely to view an aggressive defense on
the facts as inconsistent with remorse. Such a defense strategy reduces the possibility of an
acquittal.511 If this analysis is correct, more innocent defendants are induced to plead, and those
who do go to trial are more likely to be wrongfully convicted.

There are factors that can make a plea bargain more difficult to arrive at in death cases, as
compared to other serious crimes. There may be pressure from the victim’s family and community
to pursue the maximum penalty. The statutory minimum for a death case in Pennsylvania is life
imprisonment, so the defendant has less to lose if he goes to trial and the prosecutor has less to
offer, especially because the likelihood of execution has been low during the last 56 years. This
consideration inhibits plea bargaining even where life with parole exists as an alternative. 512
Capital defendants are likely to be more risk seeking and more skeptical of their attorney’s good
faith than other defendants, perhaps because of mental health issues or racial or cultural differences
if the defendant is a member of a minority group and the attorney is white.513

Defendants who have committed crimes that have traditionally been considered
deathworthy are unlikely to plead to a life sentence, except to avoid a death sentence. If these
cases go to trial, the cost is four times as high for the prosecution and ten times for the defense.
Cost considerations are particularly important in districts affected by a high crime rate (including
murder), combined with severely overburdened resources. Prosecutors consult the victim’s family
for their views on whether to accept a plea bargain to life imprisonment. Some prosecutors might
decide to obtain the acquiescence of the bereaved family before it proceeds with a plea bargain,
and the family might prefer that the murderer suffer more severe punishment than life
imprisonment affords.

Prosecutorial discretion

Legal academic John Horowitz wrote that “American prosecutors have long possessed
unrestrained power in the criminal process.”514 He does not claim that an American prosecutor
can simply order that the accused be shot, and he acknowledges that the Supreme Court has upheld
the death penalty against arguments that it is vitiated by excessive prosecutorial discretion. 515
Rather, he is troubled by the “essentially unrestricted” discretion of the prosecutor to charge the

509
Thaxton, supra note 506, at 484.
510
Id. at 485.
511
Id. at 486.
512
Id. at 489. At least if parole is distant and parole bds. are perceived to be reluctant to release. Id.
513
Id. at 490.
514
John A. Horowitz, Prosecutorial Discretion & the Death Penalty: Creating a Comm. to Decide Whether to Seek
the Death Penalty, 65 Fordham L. Rev. 2571, 2573 (1997).
515
Id. at 2577.

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defendant, which allows him or her to apply the law selectively.516 Horowitz emphasizes the
breadth of the prosecutor’s power to choose who is faced with a death charge:

[D]espite the constitutionality of vesting the discretionary decision of whether to

seek the death penalty in one person, this power subjects each defendant to the
whims of local prosecutors. Prosecutors may introduce other factors into the
decision--most likely their religious, ethical, or philosophical beliefs. Hence,
whether defendants will face the death penalty may be more a result of prosecutors'
belief systems than the characteristics of the criminal's conduct. This subjective
system for such a serious decision is fundamentally unfair to the defendant.517

“The United States Supreme Court has long been concerned about the role of discretion in
the imposition of the death penalty, in particular the possibility that unchecked discretion can lead
to arbitrary and inconsistent application of the penalty.”518 Of course, after Coker v. Georgia, a
death penalty charge cannot be filed unless the prosecutor has probable cause to charge the
defendant with aggravated first-degree murder.

Prosecutors elected by individual counties may apply the law disproportionately in

different parts of the state, especially because constituencies differ in their acceptance of the death
penalty.519 The Governor of New York State has the power to supersede the District Attorney
(usually for conflicts of interest, not for policy differences).520 This fails to solve the problem,
because it merely removes the discretion from the prosecutor to the Governor. California and
Colorado also have supersedure provisions.521 To Horowitz, “[t]he risk of supersedure and
subsequent litigation highlights the dangers of placing the decision to seek the death penalty in a
single individual.”522 Pennsylvania empowers the Attorney General to supersede the district
attorney upon the latter’s request or with judicial approval.523

Horowitz argues that the best way to control prosecutorial discretion to seek the death
penalty is to create a review committee by statute in each county with power to decide whether a
defendant, whom the prosecutor has charged with first-degree murder, should face the possibility
of the death penalty. United States Attorneys seeking authority to pursue a death penalty confer
with a departmental Capital Review Committee, which considers material submitted by both the
prosecution and defense to recommend the grant or denial of this authority. 524 Supreme Court
Committee on Racial and Gender Bias in the Justice System recommended that “[t]he Attorney
General empanel a statewide committee of county district attorneys to review each decision by a

516
Id.
517
Id. at 2579.
518
Amanda S. Hitchcock, Using the Adversarial Process to Limit Arbitrariness in Capital Charging Decisions, 85
N.C. L. Rev. 931, 932 (2007).
519
Horowitz, supra note 514, at 2579-80.
520
Id. at 2580-87.
521
Id. at 2588-92.
522
Id. at 2592.
523
Act of Oct. 15, 1980 (P.L.950, No.164), § 205(a); 71 P.S. 732.205(a). A dist. att’y may request to be superseded
if he lacks the resources to adequately investigate or prosecute a crim. matter or envisions a potential conflict of
interest; the Att’y Gen. may ask a judge to supersede if a dist. att’y abused his discretion by failing to prosecute. Id.
524
U.S. Attorneys’ Manual 9-10.130 (1997).

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district attorney to seek the death penalty with the goal of ensuring geographic consistency in” its
application.525 Horowitz’s plan envisions a seven-member committee, with three members
appointed by the Governor, three by the district attorney, and the remaining member by the six
selected as aforesaid.

The entire process will benefit by removing the discretionary decision to seek the
death penalty from an elected official and placing it with a committee. The
committee will ensure a less political decision, increase the legitimacy of the
system, increase the public accountability of the decision maker, and avoid
discriminatory application of the death penalty.526

In particular, committees would reduce discriminatory use of the death penalty by making
it more likely that the decision maker will reflect the diversity of the community. Part of the
information that U.S. Department of Justice’s Capital Review Committee would consider includes
“any allegation of individual or systemic racial bias in the Federal administration of the death
penalty.”527 Both the Governor and the district attorney will be impelled by political pressures to
ensure balanced representation.528

Another commentator decries excessive prosecutorial discretion:

Prosecutorial discretion plays a pervasive role in the administration of criminal

justice. Limited resources and crowded criminal dockets force prosecutors to make
quasi-judicial decisions, regarding whom to charge, the severity of the charge,
whether to offer a plea bargain, and whether to proceed to trial. Prosecutors
exercise this extensive power beyond public view, without objective criteria, and
in an “essentially unreviewable” manner. In fact, the presumption that prosecutors
act in good faith gives prosecutors virtual impunity in their pretrial decisions.529

Because almost all district attorneys are white, unconscious bias can enter the system
because of “the racial disparity between the prosecutors and the death row population” and “the
similarity between the prosecutor and the victim populations.”530 A statistical analysis of the
respective populations shows that the racial and ethnic composition of the prosecutorial staff is
much closer to the victim population. This may help explain the racial disparities found by the
Baldus study.531

525
Final Rep., supra note 16, at 221.
526
Horowitz, supra note 514, 2605-06.
527
U.S. Attorneys’ Manual 9-10.130 (1997).
528
Horowitz, supra note 514, at 2609.
529
Jeffrey J. Pokorak, Probing the Capital Prosecutor’s Perspective: Race of the Discretionary Actors, 83 Cornell L.
Rev. 1811, 1813 (1998).
530
Id. at 1818-19.
531
Id. at 1817-19.

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Unfairness of the legal system

The death penalty reflects aspects of the American legal system that can be characterized
as arbitrary or unfair (if not necessarily discriminatory). These may include the dependence of the
outcome on the ability and experience of the lawyers for the respective sides, disparities in
resources, differences among judges, regional disparities,532 and the application of rules of
evidence. The general issues that may make the American justice system unfair are beyond the
scope of this study, but those that have a particularly strong impact in the death penalty context
are addressed here or elsewhere as indicated below.

Legal representation

About 80% of capital defendants are indigent and are represented by the public defender
or other free counsel.533 Some observers have argued that many of the lawyers who represent
death defendants are unqualified to meet the heavy demands of capital cases; consequently,
defendants receive poor representation, resulting in reversible errors and, in some cases, the risk
of convicting an innocent person.534

Death qualification

Death qualification refers to the exclusion for cause of prospective jurors who indicate at
the jury selection (voir dire) phase that because of their opposition to the death penalty, they will
refuse to vote for a death verdict regardless of the evidence. This practice has been upheld by the
U.S. Supreme Court, but some observers claim it predisposes the jury toward a verdict of guilt.535

Justice Center for Research

Pennsylvania Interbranch Commission for Gender, Racial, and Ethnic Fairness initiated
and partially funded this study by Justice Center for Research at Penn State University. Both
generously collaborated with the advisory committee and task force as it considered the topics
under this resolution.536 This section summarizes its research on bias and unfairness.

“Blacks are highly disproportionately represented among those individuals who receive
capital sentences in Pennsylvania, leading one to question whether this is the result of unwanted
disparity in the administration of the death penalty.”537 The “primary research goal was to
determine the impact . . . a defendant’s or a victim’s race, ethnicity, or other social characteristics
has on a prosecutor’s decision to seek the death penalty; to retract it if sought; and the . . . decision

532
Death penalty cases vary significantly geographically.
533
The percentage would increase to almost 100% after condemnation.
534
Infra pp. 183-86.
535
This topic is discussed in more detail, infra pp. 144-48.
536
Just. Ctr. researchers were involved in several research topics from the resolution including fairness, public opinion,
secondary trauma, and role of mental disorder in capital punishment. Pa. Interbranch Comm’n for Gender, Racial &
Ethnic Fairness was involved in all research topics from the resolution. Pa. J. State Gov’t Comm’n highly valued this
collaboration and is grateful for the assistance of both.
537
Kramer et al., supra note 26.

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to impose the death penalty.”538 The type of the defendant’s legal representation was also
examined to determine its effect on “death penalty case-processing”.539 Due to resource and time
constraints, the main analysis of disparity was on cases resultant in convictions for first-degree
murder.540

Statewide data was obtained from Administrative Office of Pennsylvania Courts,

Pennsylvania Commission on Sentencing and Department of Corrections.541 This data was
supplemented and refined by a field data collection of “offenders convicted of first-degree murder”
in “the 18 counties with 10 or more first-degree murder convictions.”542 In almost half of the cases
in which a Notice of Aggravating Circumstances was filed by an attorney for the Commonwealth,
the notice was retracted.543 In almost a third of the cases in which a Notice of Aggravating
Circumstances was filed and unretracted, the sentence was death.544 Juries decided the sentencing
in 70% of the death penalty trials.545 In City of Philadelphia, Notices of Aggravating
Circumstances were retracted “far more often” and defendants in that city were also “less likely to
receive the death penalty” than in the other 17 counties in this field study. 546 “[N]et of legally
relevant factors,” death penalty outcomes in our Commonwealth are shaped more by differences
among counties, the victim’s race and type of defense counsel, rather than by the defendant’s race
or ethnicity.547 The most prominent difference found in this study is the differences in death
penalty outcome among the counties.548

More than half of the inmates under a sentence of death in our Commonwealth are black,
while almost 12% of the overall state population is black, which makes blacks “highly
overrepresented on Pennsylvania’s death row relative to their proportion in the state
population.”549 During the last year of data collection for this study, more than half of those
arrested for murder in Pennsylvania were young, black males.550 “[T]he key research issue was to
determine whether this disproportionality resulted from racial bias in decision-making, or whether
legally relevant factors . . . accounted for this disproportionality.” 551 The legally relevant factors

538
Id.
539
Id.
540
Id. Subsequent research might analyze the arrest and charging stages for disparity. Id.
541
Id. at ii-iii.
542
Id. at iii. One important limitation is case selection bias because the included ones are based on ex post outcomes
rather than ex ante attributes. In other words, all cases eligible for first-degree murder were not collected because the
selection point was conviction for first-degree murder.
543
Id. at iv. (The percentage is 47%. Id.) Unless the existence of aggravating circumstances is unknown to the
attorney for the Commonwealth at the time of arraignment or the judiciary extends to time to file this notice, it is
required to be filed “at or before the time of arraignment”. Pa. R. Crim. P. 802.
544
Kramer et al., supra note 26, at iv. (The percentage is 31%. Id.)
545
Id.
546
Id. at v. Similarly, “[d]efendants with public defenders were much less likely to receive the death penalty in
Philadelphia, than their counterparts in the other 17 counties in the field study.” Id.
547
Id.
548
Id. “A given defendant’s chance of having the death penalty sought, retracted, or imposed depends a great deal on
where that defendant is prosecuted and tried.” Id.
549
Id. at 1. Approximately 51% of Pennsylvania’s condemnees are black. Infra p. 191; U.S. Census Bureau, Dep’t
of Commerce, Quick Facts Pa.,
https://www.census.gov/quickfacts/fact/table/PA,US/PST045217 (2016).
550
Kramer et al., supra note 26, at 3. (92% male; 68% black; almost 52% under age 25: id.)
551
Id.

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were accounted for and then sought to determine if they “predict the prosecutor’s decision to seek
death for first-degree murder charges, or . . . subsequently retract” that notification and to predict
the sentencing decision if the notification was not retracted: race, ethnicity or other characteristics
of the defendant and victim.552 Legally relevant factors were accounted for and then it was
determined if outcomes differed “across counties” and “according to the type of legal
representation a defendant had”.553

Response to Furman v. Georgia. In a 1972 opinion, U.S. Supreme Court ruled “that the
imposition and carrying out of the death penalty in these cases constitute cruel and unusual
punishment in violation of” U.S. Constitutional amendments VIII and XIV.554 There were five
opinions supporting this judgment, including differing as well as similar rationales for the per
curium opinion, but a key consideration is that no standards governed the selection of the
penalty.555 This meant that the death penalty could be administered arbitrarily or discriminatorily
because of its discretionary imposition. To remedy the “[t]he basic concern of Furman” centering
“on those defendants who were being condemned to death capriciously and arbitrarily”, Georgia
enacted procedures to “focus the jury's attention on the particularized nature of the crime and the
particularized characteristics of the individual defendant.”556 The jury's discretion “is always
circumscribed by the legislative guidelines” in the form of statutory aggravating factors and
mitigating circumstances.557

[C]oncerns . . . that the penalty of death not be imposed in an arbitrary or capricious

manner can be met by a carefully drafted statute that ensures that the sentencing
authority is given adequate information and guidance. As a general proposition
these concerns are best met by a system that provides for a bifurcated proceeding
at which the sentencing authority is apprised of the information relevant to the
imposition of sentence and provided with standards to guide its use of the
information.558

The responsive “Georgia statutory scheme” provided “for automatic appeal of all death
sentences to the State’s Supreme Court”, which was “required by statute to review each sentence
of death and determine whether it was imposed under the influence of passion or prejudice,
whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and
whether the sentence is disproportionate compared to those sentences imposed in similar cases.”559
Since “the statutory system under which Gregg was sentenced to death” was ruled
constitutional,560 other jurisdictions561 seeking to enact constitutional death penalties copied

552
Id. at 3-4.
553
Id. at 4.
554
Furman v. Ga., 408 U.S. 238, 239-40 (1972).
555
Id. at 253 (Douglas, J., concurring). Three justices agreed “that the statutes then before the Court were invalid as
applied” and two justices would have held capital punishment unconstitutional per se. Gregg v. Georgia, 428 U.S.
153, 169 (1976)).
556
Gregg, 428 U.S. at 206.
557
Id. at 206-07.
558
Id. at 195.
559
Id. at 198.
560
Id. at 207.
561
Our Commw. was one of these jurisdictions. 42 Pa.C.S. § 9711.

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Georgia’s statutory system. “It remains unclear whether these procedures approved in Gregg v.
Georgia—and used in Pennsylvania—have reduced or eliminated these unwarranted
disparities.”562

Focal concerns theory. “Focal concerns theory holds that decisions regarding the
processing of alleged and convicted offenders draw on three key ingredients”: an assessment of
the defendant’s blameworthiness and dangerousness, along with “the practical implications of”
criminal justice “processing decisions.”563 This “theory highlights the complexity of decision-
making, in that it indicates the importance of the characteristics of the offender, the victim, and
the local normative culture within which decision-makers are elected or appointed.”564

Prior studies. Prior “studies of potential death penalty cases have focused on the effect of
. . . race”, with one governmental review characterizing “race-of-victim” to be an “influence” on
“the likelihood of being charged with capital murder or receiving a death sentence” with “[t]his
finding” being “remarkably consistent across data sets, states, data collection methods, and
analytic techniques.”565 As for race, “research has generally supported the notion that prosecutors
are more likely to seek the death penalty in cases involving a White victim, and particularly when
the defendant is Black and the victim was White.”566 In the only study located examining plea
bargain acceptances, “black offenders charged with killing a white victim were much less likely
to benefit from a plea in a capital case”.567 For two studies about the victim’s social class, one
“found that prosecutors were more likely to seek the death penalty,” which “was more likely to be
imposed, on defendants who were accused of killing victims of higher socio-economic status.”568
The other study similarly attributed a higher likelihood of seeking “the death penalty when the
victim had higher education.”569 Another “important factor” is the “judicial district” because
“prosecutorial decisions about the death penalty vary among courts and jurisdictions.”570 The type
of legal representation of defendants has not generally been a research focus of prosecutorial
decisions on the death penalty.571

“A considerable body of research has found that Black defendants who are convicted of
killing White victims are the most likely to receive the death penalty.”572 Despite “concerns with
the quality of legal representation in capital cases”, the “research to date has generally failed to”

562
Kramer et al., supra note 26, at 5.
563
Id.
564
Id. at 7. “Local courts develop distinctive formal and informal case processing and sentencing norms.” Id. at 6.
“Research in social psychology and criminal justice shows that implicit racial bias can indeed operate in contemporary
criminal justice decision-making, including arrests, prosecution, and sentencing.” Id.
565
Id. at 7-8. The governmental study is one by U.S. Gen. Accountability Office in 1990, noting race-of-victim to be
this influence “[i]n 82% of the studies”. Id. at 8.
566
Id. at 8 (citations omitted).
567
Id. at 9. This was a study in Ky., id..
568
Id. at 9-10.
569
Id. at 10. “Studies generally conclude that female defendants are less likely to be prosecuted for the death penalty”,
with other studies finding “that offenses involving female victims are more likely to result in prosecution for the death
penalty.” Id. n.3.
570
Id. at 10.
571
Id. at 11.
572
Id. Some “research has failed to find a race-of-defendant/race-of-victim effect.” Id. at 12.

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analyze this variable.573 A study published in 2012, “found that defendants with Philadelphia
public defenders had a reduced conviction rate and significantly lower sentence severity compared
with defendants represented by court-appointed attorneys.”574 Data for this study was analyzed
“using standard logistic regression” and re-analyzed “using propensity score weighting/matching”
because different methods may affect the accuracy “of the relationship between variables”
studied.575

“Prior to this study, in Pennsylvania there was only one study of decision-making in the
application of the death penalty and another study consisting of interviews with jurors in capital
trials.”576 For cases with victims who were not Black, the jury was less likely to find mitigation;
when the victim was from a “low socio-economic status”, the prosecution was less likely to pursue
the death penalty and when it did, there was a lower likelihood of the imposition of the death
penalty.577 The study of jurors revealed that they misunderstood the “instructions regarding
mitigation” and erroneously assumed that those “given a life sentence” would subsequently be
released.578

Murder of the first degree. There are three degrees of murder in our Commonwealth.579
A “sentence of death” is only available if there is “a verdict of murder of the first degree” and
one or more aggravating circumstances is proven beyond a reasonable doubt, which outweigh
any mitigating circumstances.580

(d) Aggravating circumstances.--Aggravating circumstances shall be limited

to the following:
(1) The victim was a firefighter, peace officer, public servant concerned in
official detention, as defined in 18 Pa.C.S. § 5121 (relating to escape), judge of any
court in the unified judicial system, the Attorney General of Pennsylvania, a deputy
attorney general, district attorney, assistant district attorney, member of the General
Assembly, Governor, Lieutenant Governor, Auditor General, State Treasurer, State
law enforcement official, local law enforcement official, Federal law enforcement
official or person employed to assist or assisting any law enforcement official in
the performance of his duties, who was killed in the performance of his duties or as
a result of his official position.
(2) The defendant paid or was paid by another person or had contracted to
pay or be paid by another person or had conspired to pay or be paid by another
person for the killing of the victim.
(3) The victim was being held by the defendant for ransom or reward, or as
a shield or hostage.

573
Id. at 13.
574
Id.
575
Id. at 14.
576
Id. at 15.
577
Id. at 16.
578
Id. at 17.
579
18 Pa.C.S. § 2502. First is “an intentional killing”; second “is committed while defendant was engaged as a
principal or an accomplice in the perpetration of a felony”; third is “[a]ll other kinds of murder”. Id.
580
Or there are no mitigating circumstances. 42 Pa.C.S. § 9711. If a jury does not unanimously agree “as to the
sentence”, the sentence is “life imprisonment.” Id.

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 (4) The death of the victim occurred while defendant was engaged in the
hijacking of an aircraft.
(5) The victim was a prosecution witness to a murder or other felony
committed by the defendant and was killed for the purpose of preventing his
testimony against the defendant in any grand jury or criminal proceeding involving
such offenses.
(6) The defendant committed a killing while in the perpetration of a felony.
(7) In the commission of the offense the defendant knowingly created a grave
risk of death to another person in addition to the victim of the offense.
(8) The offense was committed by means of torture.
(9) The defendant has a significant history of felony convictions involving
the use or threat of violence to the person.
(10) The defendant has been convicted of another Federal or State offense,
committed either before or at the time of the offense at issue, for which a sentence
of life imprisonment or death was imposable or the defendant was undergoing a
sentence of life imprisonment for any reason at the time of the commission of the
offense.
(11) The defendant has been convicted of another murder committed in any
jurisdiction and committed either before or at the time of the offense at issue.
(12) The defendant has been convicted of voluntary manslaughter, as defined
in 18 Pa.C.S. § 2503 (relating to voluntary manslaughter), or a substantially
equivalent crime in any other jurisdiction, committed either before or at the time of
the offense at issue.
(13) The defendant committed the killing or was an accomplice in the killing,
as defined in 18 Pa.C.S. § 306(c) (relating to liability for conduct of another;
complicity), while in the perpetration of a felony under the provisions of the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug,
Device and Cosmetic Act, and punishable under the provisions of 18 Pa.C.S. § 7508
(relating to drug trafficking sentencing and penalties).
(14) At the time of the killing, the victim was or had been involved,
associated or in competition with the defendant in the sale, manufacture,
distribution or delivery of any controlled substance or counterfeit controlled
substance in violation of The Controlled Substance, Drug, Device and Cosmetic
Act or similar law of any other state, the District of Columbia or the United States,
and the defendant committed the killing or was an accomplice to the killing as
defined in 18 Pa.C.S. § 306(c), and the killing resulted from or was related to that
association, involvement or competition to promote the defendant's activities in
selling, manufacturing, distributing or delivering controlled substances or
counterfeit controlled substances.
(15) At the time of the killing, the victim was or had been a nongovernmental
informant or had otherwise provided any investigative, law enforcement or police
agency with information concerning criminal activity and the defendant committed
the killing or was an accomplice to the killing as defined in 18 Pa.C.S. § 306(c),
and the killing was in retaliation for the victim's activities as a nongovernmental
informant or in providing information concerning criminal activity to an
investigative, law enforcement or police agency.

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 (16) The victim was a child under 12 years of age.
(17) At the time of the killing, the victim was in her third trimester of
pregnancy or the defendant had knowledge of the victim's pregnancy.
(18) At the time of the killing the defendant was subject to a court order
restricting in any way the defendant's behavior toward the victim pursuant to 23
Pa.C.S. Ch. 61 (relating to protection from abuse) or any other order of a court of
common pleas or of the minor judiciary designed in whole or in part to protect the
victim from the defendant.
(e) Mitigating circumstances.--Mitigating circumstances shall include the
following:
(1) The defendant has no significant history of prior criminal convictions.
(2) The defendant was under the influence of extreme mental or emotional
disturbance.
(3) The capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was substantially impaired.
(4) The age of the defendant at the time of the crime.
(5) The defendant acted under extreme duress, although not such duress as
to constitute a defense to prosecution under 18 Pa.C.S. § 309 (relating to duress),
or acted under the substantial domination of another person.
(6) The victim was a participant in the defendant's homicidal conduct or
consented to the homicidal acts.
(7) The defendant's participation in the homicidal act was relatively minor.
(8) Any other evidence of mitigation concerning the character and record of
the defendant and the circumstances of his offense.581

The process can be divided into 10 steps:582

(1) Homicide occurs;
(2) Homicide recognized by authorities;
(3) Investigation by law enforcement and facts discovered/generated;
(4) Homicide suspect identified and arrested;
(5) Prosecution charges 1st-degree murder [or criminal homicide];
(6) Prosecution indicts [or informs] for 1st-, 2d-, or 3d-degree murder [or criminal
homicide];
(7) If indicted [or informed] for 1st-degree murder, prosecution decides whether to
seek death penalty;
(8) Prosecution and defense disagree on a plea;
(9) Defendant is convicted of murder;
(10) If convicted of 1st-degree murder & the prosecutor pursued the death penalty, the
sentencing authority considers the aggravating and mitigating circumstances for
sentencing.

581
Id.
582
Kramer et al., supra note 26, at 20-21, 24.

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 “At each stage in the process, some attrition occurs and the universe of cases that could result
in a death sentence narrows” with “a . . . small fraction of the number of people who commit a
homicide” sentenced to death.583

Pennsylvania data.

Data sets: It “took several years” for the authors of this study to build this “data set”.584
An “eleven-year time frame of 2000-2010” provided “a large enough pool of death-eligible
offenders to result in a strong and reliable statistical analysis. . . . [W]e estimated that
approximately 60 offenders received the death sentence during this time frame, and another 1,200
offenders received a life sentence, with the vast majority of these life sentences imposed for first-
degree murder.”585 The “source of data to identify cases entering the criminal justice system and
. . . the starting point for” the study was Common Pleas Case Management System within
Administrative Office of Pennsylvania Courts (AOPC), but that “data does not provide information
that would have allowed” identification of “death-eligible defendants that are central to this
study.”586 To verify data from AOPC, “data for sentences imposed during the period 2000 through
2014” was obtained from Pennsylvania Commission on Sentencing. 587 Data for “all offenders
incarcerated for” murder “during the period of 2000 through” 2012 was received from Department
of Corrections.588

Racial disproportionality of defendants: Prosecutions can commence with a charge for

criminal homicide, which is “classified as murder, voluntary manslaughter, or involuntary
manslaughter.”589 Since the death penalty is limited to murder of the first degree,590 this study
sampled “only cases with a first-degree murder conviction, as representative of cases that were
potentially death-eligible.”591 For “defendants prosecuted during the 2000-2010 time period,”
AOPC listed “1,115 docket cases with at least one first-degree murder conviction.”592 Of those
“charged with murder/criminal homicide”, 53% of the cases involved Black defendants, “highly
disproportionate to their proportion of Pennsylvania’s population.”593 An overwhelming
percentage of these defendants was male.594

583
Id. at 22.
584
Id. at 25. Appdx. L, infra p. 263.
585
Kramer et al., supra note 26, at 27. A recent period was chosen to reflect “contemporary capital sentencing
practices”. Id.
586
Id. at 27-28. “[I]t was necessary to verify the accuracy of the information whenever possible”, which originated
“in each of 540 Magisterial District Courts, the Philadelphia Municipal Courts, and the 12 Pittsburgh Municipal
Courts.” Id. at 28.
587
Id. at 29.
588
Id. This data was then updated in 2014 and 2015. Id. at 30.
589
18 Pa.C.S. § 2501.
590
42 Pa.C.S. § 9711.
591
Kramer et al., supra note 26, at 30. This decision ignored the acceptance of “a guilty plea to a lesser offense” than
“first-degree murder” and “the overlap among the statutory grades of murder”, namely that murder of the second
degree is ineligible for the death penalty, although a killing under the same circumstance is an aggravating
circumstance for the death penalty if the conviction is for murder of the first degree. Id. at 30-31.
592
Id. at 31-32.
593
Id. at 34.
594
89%, id..

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 Limitations of study’s scope: After compiling data from AOPC, Pennsylvania
Commission on Sentencing and Department of Corrections, coding the departmental data “and
linking the three data sets”, missing information was “obtained from local county files.” 595 The
“data collection instrument” was tested in County of Blair and then substantially revised. 596 After
estimating the workload and affordability of the data collection from counties “across the
Commonwealth”, the number of cases was reduced to “those who were convicted of first-degree
murder.”597 This limitation means that the influence of race or ethnicity on the decision of charging
the homicide or on “whether to retract the motion to seek the death penalty in any case that did not
result in a first-degree murder conviction” was not studied.598 The study was also limited to the
“18 counties that had ten or more first-degree murder convictions” which “was more than 80% of
all first-degree murder convictions in the Commonwealth in” the study’s “time frame.”599 Because
“the most detailed information was likely to be found in each county’s District Attorney’s files”,
those offices were contacted, resulting in 14 of them assisting with the field sample.600 “The time
to code . . . files varied from” 30 “minutes to several hours” after which “local news reports and
appellate documents” were used “to verify and to fill-in information”.601 Errors found in AOPC’s
data classification of murders was corrected based upon the field research.602 Data collection from
the field took 31 months instead of the anticipated 18 months.603 Data sets from AOPC,
Department of Corrections, Pennsylvania Commission on Sentencing and the field were reviewed
to identify “inconsistent or missing information.”604 It took “several months” to “gain access to .
. . death certificate information” from Department of Health.605 The data was merged to remove
duplicates “and locate and correct” missing and invalid data, after which the analysis began. 606
The period from the development of the research design and original request for data from AOPC
to the analysis of that data was approximately six years.607

Field data: The field data did not allow an assessment of “the process . . . by which some
criminal homicide cases that are death-eligible result in first-degree murder convictions and”
others “do not.”608 The 18 counties in this study encompassed “87% of the first-degree murder
convictions in the . . . docket data”, with “[t]he majority of cases” involving “first-degree murder

595
Id. at 35-36.
596
Id. at 37-38.
597
Id. This “reduced the number of cases to review in the field from 4,274 to 1,115.” Id. at 38.
598
Id. at 39.
599
These were Allegheny, Berks, Bucks, Chester, Dauphin, Del., Fayette, Lackawanna, Lancaster, Lehigh, Luzerne,
Monroe, Montgomery, Northampton, Phila., Wash., Westmoreland & York. Id.
600
Id. at 40-41. Offices in Chester, Westmoreland, Fayette & Northampton did not reply to the request for assistance
so that information was alternatively sought, e.g., via the cnty. clerk, defense attorneys and local newspaper coverage.
Id. at 41-42. After initial rejection for assistance from Phila.’s Office of Dist. Att’y, the request was repeated with a
reduction by half in the number of years sampled and the approval for data collection was obtained, but that process
took 18 months. Id. at 42-43.
601
Id. at 44.
602
Id.
603
Id. at 45-46.
604
Id. at 48.
605
Id.
606
Id. at 49.
607
Id. at 50.
608
Id. at 51-52. This is potentially significant because a charge of criminal homicide could “involve first-degree
murder and exposure to the possibility of the death penalty.” Id. at 51.

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conviction by juries.”609 Most of these “cases involved an additional felony conviction”.610 Of
these first-degree murder convictions from the field data, notices of aggravating circumstances
were filed to seek the death penalty in 35.5% of them but then later retracted in 46.7% of that
subset.611 Of the remaining “cases with defendants ultimately exposed to death at sentencing,”
30.5% received that sentence, with the remaining 69.5% sentenced to life imprisonment.612
Prosecutors filed notices of aggravating circumstances, including ones for murders committed in
perpetration of a felony and knowingly creating a grave risk of death each in approximately 15%
of these notices.613 In approximately 2.5% of these cases, the judge or jury found either of these
same, two aggravating circumstances or that the defendant was convicted of another murder.614
Prosecutors filed notices of aggravating circumstances containing one circumstance in 17% of
these cases.615 In approximately 3.5% of these cases, the judge or jury found either one or two
aggravating circumstances.616 In approximately 24% of the death penalty trials, “not one
mitigating circumstance” was “presented.”617 The defense presented age as a mitigating
circumstance in 7.4% of the cases, but the judge and jury found that to be a mitigating circumstance
in only 1.8% of the cases.618 In almost 6% of the cases, the defense presented the mitigating
circumstance of no significant history of prior crime, but the judge and jury found that to be a
mitigating circumstance in only 2.5% of the cases.619 In 3.6% of the cases, the defense presented
two mitigating circumstances, but the judge and jury found two mitigating circumstances in only
1.4% of the cases.620 The defense presented eight or more mitigating circumstances in 2.1% of
the cases, but the judge and jury did not find that many mitigating circumstances in any of the
cases.621 The judge and jury found one mitigating circumstance in 2.6% of the cases. 622 The
sentencing was decided by the jury in 70.1% of these cases.623

Type of defense counsel: “[T]he type of defense counsel” was ‘roughly evenly split
among” privately-retained counsel, public defenders and judicially-appointed counsel for all of
these convictions.624 When the death penalty was sought, defendants were represented by
privately-retained counsel in 38.9% of those cases, with the public defender acting as counsel in a
little over 30% of the cases and judicially-appointed counsel representing the defendant in a little
under 30% of the cases.625 Defendants in these cases were overwhelmingly male; approximately
two-thirds of the defendants were Black and almost one quarter were White.626 For the females

609
Id. at 52. The majority is 75%. Id.
610
59.1%, id.
611
Id. at 53.
612
Id. at 53-54. The data is limited to convictions meaning that any acquittal was not analyzed. Id. at 53.
613
Id. at 56.
614
Id.
615
Id. at 57.
616
Id.
617
Id.
618
Id. at 58.
619
Id.
620
Id.
621
Id.
622
Id.
623
Id. at 59.
624
Id. at 59.
625
Id.
626
Id. at 60. Males were defendants in 96.1% of these cases. Id. at 61.

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convicted of first-degree murder, almost a quarter of them were notified of aggravating
circumstances, but they were retracted for most so that 8.8% of them remained “exposed to a death
penalty trial.”627 “[I]t appears that females are much less likely to be exposed to, or receive, the
death penalty”, but the “numbers of first-degree murder cases involving female defendants” was
inadequate to further analyze any impact of the defendant’s sex on “the processing and sentencing
of” first-degree murder cases.628

Ethnicity: Black defendants comprised a greater proportion of those with “a concurrent

felony conviction of any kind compared to White . . . and Hispanic . . . defendants. Also, White
defendants in the field data . . . had a smaller proportion of convictions for robbery, than Black . .
. or Hispanic . . . defendants.”629

Comparatively, a “greater proportion of Hispanic defendants had the death penalty sought
against them”; the death penalty was sought against Black and White defendants in “nearly equal
proportions”.630 The death penalty was retracted in a greater proportion of the cases involving
“Black or Hispanic defendants, as opposed to White defendants.”631 Among those who faced the
death penalty, almost 40% of White and Hispanic defendants and 25% of Black defendants
received it.632 While the population of first-degree murder charges and convictions are a “very
racially disproportionate population”, “the proportions of defendants within race/ethnicity
categories reveal that proportionally more White defendants are exposed to and receive the death
penalty, compared to the percentages of Black defendants exposed to and receiving the death
penalty.”633

Race and aggravating and mitigating circumstances: Approximately 80% of the cases had
Black defendants in which prosecutors asserted the aggravating circumstances of the victim being
a peace officer, creating a grave risk of death to another and being convicted of another murder.634
Prosecutors listed greater numbers of aggravating circumstances per case against Black
defendants.635 Because “aggravating circumstances are found far less often than they are filed”,
“Black defendants do not dominate the percentages for the aggravating circumstances found by
the judge or jury, as much as they do for those filed by the prosecutor.”636 The distribution of
statutory mitigating circumstances “filed tended to be distributed between White, Black, and, to a
lesser extent, Hispanic defendants, more equally than the aggravating circumstances filed by
prosecutors” with “Black defendants” tending “to have greater numbers of mitigating
circumstances presented per case.”637

627
Id. at 61-62. One of the females was sentenced to death, comprising 1.9% of the females convicted of first-degree
murder. Id. at 62.
628
Id.
629
Id. at 62-63.
630
Id. at 64.
631
Id. at 65.
632
Id. at 66.
633
Id. at 66.
634
Id. at 67.
635
Id. at 68.
636
Id.
637
Id. at 72.

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 Almost two-thirds of Black and Hispanic defendants “were represented by either public
defenders or court-appointed attorneys”, with that percentage dropping to 55% for the same
representation “[a]mong White defendants”.638 A higher proportion of White defendants “facing
the death penalty were sentenced by judges, compared to” Black and Hispanic defendants.639 Most
of the defendants and victims were Black males.640 “[I]t appears that cases involving Black
defendants and White victims have a greater probability of receiving the death penalty, compared
to the average overall probability of receiving the death penalty for all cases.”641

Propensity score weighting: The Pennsylvania State University researchers used

propensity score weighting to balance error variance.642 For one thing, Black, White and Hispanic
defendants are imbalanced on control variables “such as aggravating circumstances, concurrent
convictions, case characteristics, etc.”643 Whether selection bias exists “affecting the likelihood
of being arrested, charged, and/or convicted of first-degree murder” could not be directly assessed”
so that the “weighting on the propensity score is a way to balance the comparison groups, or render
them more similar and comparable, on the control variables.”644

County variations:645 White defendants had “a 7% smaller probability of having a motion

for the death penalty filed against them” when county differences were controlled.646 For “each
type of defendant, victim, and defendant/victim combination”, the likelihood of “a motion for the
death penalty filed against them in Allegheny County” was significantly less than in the other 17
judicial districts.647 “[C]ases with Hispanic victims . . . had a 21% greater probability of having
the death penalty filed.”648 White defendants were “16% less likely to have a death filing
retracted” when county differences were controlled.649 For “cases with Black defendants, Black
victims, and any defendant/victim combination involving Black individuals were very highly
likely to have a death filing retracted” with “cases with White defendants . . . comparatively much
less likely to have a death filing retracted”, making this a significant difference between
Philadelphia and the other 17 counties.650 Controlling for county differences, cases with White
victims were 6% more likely to receive a death sentence, which demonstrates “clear evidence of
race-of-victim effects”.651 The odds of receiving the death penalty were lower for “nearly all
defendant types and defendant/victim combinations” in Philadelphia than in the other 17

638
Id. at 74.
639
Id. at 75. These percentages are: White-45%, Black-38%, Hispanic-29%. Id.
640
Id.
641
Id. at 79.
642
Id. at 85-86.
643
Id. at 85.
644
Id. at 85, 87.
645
Appdx. K., infra p. 261, shows the ratio of execution to life sentences by county based upon the 2015 inmate
population.
646
Kramer et al., supra note 26, at 92.
647
Id.
648
Id.
649
Id. at 95.
650
Id. at 96.
651
Id. at 97-98.

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counties.652 “Additionally, the death penalty was notably less likely to be imposed in cases with
White victims in Allegheny County . . . than in the other 17 counties”.653

Even for cases that are highly similar on the variables, “[p]rosecutors in Allegheny County
are notably . . . less likely . . . to file motions to seek the death penalty” than in the other counties.654
Compared to County of Allegheny and Philadelphia, defendants in the other judicial districts “have
a 5% greater probability of being sentenced to death”.655 The cases in Philadelphia had “a 31%
greater probability of a death filing being retracted” than in the other judicial districts.656

Compared to the other 16 counties, public defenders in County of Allegheny and

Philadelphia had “significantly lower odds of having the death penalty filed against their clients
than public defenders” elsewhere.657 “[T]he odds of securing the retraction of a death penalty
filing relative to the type of legal representation afforded a defendant likely varies widely among
counties.”658 Controlling for county differences, defendants represented by public defenders were
“5% more likely” to receive the death penalty, but those in Philadelphia represented by public
defenders had “significantly smaller odds . . . of receiving the death penalty” than in the other 17
judicial districts.659 Depending on the controlling for county differences, “White defendants
represented by a public defender are 16% to 19% less likely to have the death penalty filed against
them”.660 Compared to defendants with other types of legal representation, “Black defendants
with court-appointed attorneys had an 18% greater probability of having the death penalty filing
retracted”.661 For White defendants represented by public defenders, prosecutors sought the death
penalty in 31% of those cases before dropping that penalty in 35% of those cases; of the “remaining
cases with White defendants represented by public defenders, the death penalty was imposed” in
69% of them.662

Summary:

 The data set from 18 counties “represents 87% of all first-degree murder convictions” from
2000-2010 “in the Commonwealth.”663

 “Black defendants are very disproportionately charged with and convicted of murder
overall and first-degree murder particularly, relative to White defendants. One of the

652
Id. at 99.
653
Id.
654
Id. at 100.
655
Id.
656
Id. In Phila., the motions filed for a death penalty in cases involving Black defendants, victims or both were “much
more likely to be retracted than in cases involving White defendants, victims or both. Id.
657
Id. at 102. Overall, “defendants represented by public defenders are 7-8% less likely to have motions for the death
penalty filed against them”. Id.
658
Id. at 104.
659
Id. at 105.
660
Id. at 107.
661
Id. at 109. “[T]he likelihood of retraction of a death penalty filing in cases involving Black defendants with
privately-retained attorneys varies a great deal among counties.” Id.
662
Id. at 111.
663
Id. at 113.

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 important limitations of this study, however, is that we were not able to analyze the early
stages of this process–the decision to detain, arrest, and charge a suspect.”664

 “First-degree murder victimization was largely intra-racial.”665

 Defendants were overwhelmingly male “especially for first-degree murder,” and “[t]he
large majority of defendants in first-degree murder cases do not face the death penalty.”666

 At least one aggravating circumstance was filed in “39% of the cases” with the most
common ones being creating a grave risk of death to somebody other than the victim and
killing while in perpetration of a felony.667

 “[W]ithin racial groups, 37% of Black defendants had one or more aggravating
circumstances filed, compared to 43% of White defendants.”668

 In nearly a quarter of the cases, “no mitigating circumstances were filed by the defense”
raising “questions about the effectiveness with which defense counsel pursued those
cases”.669

 A jury decided “70% of death sentencing trials” instead of the judge, and juries were
“significantly more likely to impose the death penalty than judges.”670

 The odds of eventually obtaining a guilty plea to first-degree murder is “nearly three times”
higher for “cases in which the death penalty is filed”.671

 This research did “not find an overall pattern of disparity to the disadvantage of Black or
Hispanic defendants in the decision to seek the death penalty, the decision to retract the
death penalty once filed, or the decision to impose the death penalty.” 672 Nor did it “find
disparity in these decisions to the disadvantage of defendants in cases with Black
defendants and White victims.”673

664
Id. at 113-14. “Consequently, we cannot comment on whether disparity, discrimination or arbitrariness played any
role in the disproportionately large number of Black defendants charged with murder.” Id. at 114.
665
Id.
666
Id. “Prosecutors filed notices of aggravating circumstances in 39% of first-degree murder cases,” but retracted
them “in 47% of cases in which they were filed.” Id. Of the remaining ones, “[a]pproximately 31% of defendants
received the death penalty”. Id.
667
Id. at 115.
668
Id.
669
Id.
670
Id. at 116. This study was unable “to examine the actual jury process and dynamics”. Id.
671
Id.
672
Id. at 117.
673
Id.

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  In cases with Hispanic victims, the prosecutor was “21% more likely to . . . seek the death
penalty.”674

 Findings in this study contrast with Baldus’s study of capital case processing in
Philadelphia from 1983-1993, but this study used statewide data, more advanced data
analysis, had access to district attorneys’ files and prosecutorial practices might differ since
then.675

 “Overall, we find that defendants represented by public defenders are less likely than
defendants with privately-retained or court-appointed attorneys to have the death penalty
filed against them, but there is no clear indication that the type of representation affects the
decision to retract the motion for the death penalty.”676

 When privately-retained attorneys represented defendants, “they were 4%-5% less likely
to receive the death penalty, while defendants represented by public defenders were 5%-
7% more likely to receive the death penalty. . . . On the other hand, defendants represented
by public defenders in Philadelphia were much less likely to receive the death penalty than
defendants represented by public defenders in the other 17” judicial districts “in the field
study.”677

 Compared to the other judicial districts, “prosecutors in Allegheny County were much less
likely to seek the death penalty” and “prosecutors in Philadelphia were much more likely
to retract the death penalty”.678

 The largest and most prominent differences among the counties were “in death penalty
outcomes and the effects of other variables on death penalty outcomes”.679

 The notable differences based upon the race of the victim were “not in combination with
the race/ethnicity of defendant.”680

 Contrasting with the Baldus and other literature, “Black defendants with White victims
were not at greater risk to receive the death penalty”.681

674
Id. at 118.
675
Id.
676
Id. at 119.
677
Id. at 120.
678
Id.
679
Id. at 121. E.g., “prosecutors in Allegheny County and Philadelphia were less likely to seek the death penalty
against defendants represented by public defenders than” in the other 16 counties in the field study. Id. at 120-21.
680
Id. at 121. Regardless of the defendant’s race or ethnicity, cases with White victims were 8% more likely to receive
the death penalty; conversely, cases with Black victims were 6% less likely to receive the death penalty. Id.
681
Id. at 122.

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  The likelihood of seeking the death penalty was more when there was a Hispanic victim
and there was less likelihood for receiving the death penalty when the victim was Black
than when the victim was White, which differences were not “attributed to the many factors
measures by” the control variables listed in the study.682

 “[D]ifferences among counties in death penalty outcomes, and the effects of other variables
on death penalty outcomes, were the largest and most prominent differences found in” the
study.683

In a very real sense, a given defendant’s chance of having the death penalty
sought, retracted, or imposed depends on where that defendant is prosecuted and
tried. In many counties of Pennsylvania, the death penalty is simply not utilized at
all. In others, it is sought frequently. If uniform prosecution and application of the
death penalty under a common statewide framework of criminal law is a goal of
Pennsylvania’s criminal justice system, these findings raise questions about the
administration of the death penalty in the Commonwealth.”684

Recommendation

Regarding unfairness in general and racial or ethnic bias in particular, the subcommittee
on policy supports including a recommendation that Pennsylvania consider replicating what other
states have done in this area, such as Washington State, that statutorily provides for proportionality
review.

Proportionality

The question that serves as the basis of the study of proportionality in the administration
of the death penalty in our Commonwealth is:

Whether there is a significant difference in the crimes of those selected for the
punishment of death as opposed to those who receive life in prison and whether
there is an adequate process for determining when death sentences are excessive or
out of line with sentences imposed in other cases where a sentence other than death
was imposed;685

Whether there is a significant difference in the crimes of those selected for the
punishment of death as opposed to those who receive life in prison.

682
Id. at 123.
683
Id. at 124. Compared to defendants represented by public defenders, those represented by privately-retained
counsel were “significantly less likely to receive the death penalty”, but defendants represented by public defenders
were “less likely to have the death penalty filed against them than other defendants”. Id. n.33.
684
Id. at 125. Appdx. K, infra p. 261, shows the ratio of execution to life sentences by county based on the 2015
inmate population.
685
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 219.

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 The subcommittee on policy could not answer this because there is no process for
determining whether the crimes for which defendants receive the death penalty differ from the
crimes for which defendants receive life imprisonment (without parole). The only available data
is from the study detailed under the issue of bias and unfairness, which was limited to those cases
that had convictions for first-degree murder. Justice Center for Research is seeking funding to
follow that study with one to directly address this inquiry, but it will take years to accomplish.

Whether there is an adequate process for determining when death sentences are excessive or
out of line with sentences imposed in other cases where a sentence other than death was
imposed.

The Pennsylvania statutory provision that mandated this process was repealed in 1997.686
Once again, the subcommittee members agreed that there is no such process for making such a
determination. The Pennsylvania State University research reveals disparities among counties in
seeking and obtaining the death penalty, as well as other disparities, but does not directly answer
the question, and is limited to cases of defendants convicted of first-degree murder.

Federal law. The U.S. Supreme Court has held “that the Eighth Amendment bars not only
those punishments that are ‘barbaric’ but also those that are ‘excessive’ in relation to the crime
committed.”687 The death penalty imposed “for the crime of murder, and when a life has been
taken deliberately by the offender,” could be proportionate under suitable circumstances of the
offense, considering the character of the offender following appropriate procedures.688 On the
other hand, “with respect to rape of an adult woman, . . . a sentence of death is grossly
disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the
Eighth Amendment as cruel and unusual punishment.”689 When this ruling was extended to find
death penalty unconstitutionally excessive for the rape of a child, U.S. Supreme Court
distinguished “between intentional first-degree murder . . . and nonhomicide crimes against
individual persons”, regarding the latter to be incomparable to murder in severity and
irrevocability.690 Ignoring crimes against the state, this ruling effectively limited the death penalty
to homicide crimes against individual persons.691 Death penalty statutes must prescribe objective
factors so that they are applied non-discriminatorily to differentiate and narrow murders that are
eligible for the death penalty and the murders that are not. 692 These cases assure that the death
penalty is applied in at least a broadly proportional fashion; it does not apply to a selection of
criminal offenses chosen at random. Indeed, the fundamental premise that should guide this aspect

686
Infra pp. 108-11.
687
Coker v. Ga., 433 U.S. 584, 592 (1977)). “Under Gregg, a punishment is ‘excessive’ and unconstitutional if it (1)
makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless
and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A
punishment might fail the test on either ground.” Id.
688
Gregg v. Ga., 428 U.S. 153, 187.
689
Coker, 433 U.S. at 592. When Coker was decided, Ga. was “the sole jurisdiction in the United States” that
authorized “a sentence of death when the rape victim is an adult woman”. Id. at 595-96. The uniquely severe and
irrevocable death penalty “is an excessive penalty for the rapist who, as such, does not take human life.” Id. at 598.
690
Kennedy v. La., 554 U.S. 407, 438 (2008).
691
“We do not address . . . crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity,
which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not
be expanded to instances where the victim's life was not taken.” Id. at 437.
692
Gregg, 428 U.S. at 196-98.

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of the inquiry is that the death penalty, if retained at all, should be reserved for only “the most
heinous offenses and most culpable offenders.”693

The subcommittee on policy further assumes that federal authorities will deal with extreme
mass murder cases similar to those involving Timothy McVeigh (the Oklahoma City bombing)
and Khalid Sheikh Mohammed (the 9/11 attack).

Pennsylvania statutory law. Pennsylvania statutory law prescribes the manner in which
the judicial system differentiates between murders that deserve the death penalty and other
murders. The death penalty only applies to murder of the first degree, 694 defined as “[a] criminal
homicide . . . committed by an intentional killing.”695 “Criminal homicide” requires that the
accused cause “the death of another human being.”696 A murder is “intentional” when it is done
“by means of poison, or by lying in wait, or by any other kind of willful, deliberate and
premeditated killing.”697

To qualify for the death penalty, at least one of the 18 statutory aggravating circumstances
must apply, and the aggravating circumstances supporting the death penalty must outweigh the
statutory mitigating circumstances cutting against the death penalty. 698 Like guilt of first-degree
murder, each aggravator must be proved beyond a reasonable doubt, while mitigators need only
be proved by a preponderance of the evidence.699 Unlike other crimes, trials for first-degree
murder proceedings are bifurcated, with the first proceeding addressing whether the defendant is
guilty of first-degree murder and, the second, which takes place only if the defendant is convicted,
addresses whether the defendant should be sentenced to death. 700 This bifurcation is intended to
ensure that relevant evidence the defendant may wish to introduce in mitigation of the death
penalty will not prejudice the question of his guilt.701

The issue of whether each death penalty case should be reviewed to determine whether the
penalty is applied consistently on the particular facts of each case is discussed below under
“Comparative and Specific Proportionality.” There is presently no such requirement under
Pennsylvania law.

Constitutional requirements. In Gregg v. Georgia, the U.S. Supreme Court set forth the
broad guidelines to determine whether a punishment violates the Cruel and Unusual Punishment
Clause of the Eighth Amendment:

693
The Const. Project, Mandatory Justice: The Death Penalty Revisited, xvii (2005), available at
https://static.prisonpolicy.org/scans/MandatoryJusticeRevisited-2-09.pdf.
694
42 Pa.C.S. § 9711.
695
18 Pa.C.S. § 2502(a).
696
Id. § 2501(a).
697
Id. § 2502(d).
698
42 Pa.C.S. § 9711(c)(1)(iv).
699
Id. § 9711(c)(1)(iii). The prosecution has the burden to prove guilt and aggravating circumstances; the defendant
has the burden to prove mitigating circumstances.
700
42 Pa.C.S. § 9711(a)(1).
701
Gregg v. Ga., 428 U.S. 153, 191-92.

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 When a form of punishment in the abstract (in this case, whether capital punishment
may ever be imposed as a sanction for murder) rather than in the particular (the
propriety of death as a penalty to be applied to a specific defendant for a specific
crime) is under consideration, the inquiry into “excessiveness” has two aspects.
First, the punishment must not involve the unnecessary and wanton infliction of
pain. Second, the punishment must not be grossly out of proportion to the severity
of the crime.702

The plurality opinion held that the death penalty is not necessarily disproportionate for
murder.

[W]e are concerned here only with the imposition of capital punishment for the
crime of murder, and when a life has been taken deliberately by the offender, we
cannot say that the punishment is invariably disproportionate to the crime. It is an
extreme sanction, suitable to the most extreme of crimes.

We hold that the death penalty is not a form of punishment that may never be
imposed, regardless of the circumstances of the offense, regardless of the character
of the offender, and regardless of the procedure followed in reaching the decision
to impose it.703

At the same time, a state death penalty statute must ensure that the verdicts rendered under
it are reasonably consistent:

[W]here discretion is afforded a sentencing body on a matter so grave as the

determination of whether a human life should be taken or spared, that discretion
must be suitably directed and limited so as to minimize the risk of wholly arbitrary
and capricious action.704

The use of aggravating and mitigating circumstances was one of the reasons the Gregg
Court upheld the Georgia statute under review. That statute required the jury to identify
aggravating circumstances and to weigh them against mitigating circumstances. In addition, the
statute required an automatic appeal to the Georgia Supreme Court and that the reviewing court
ensure that the accused’s death sentence was in line with sentences applied to similar crimes.

In short, Georgia's new sentencing procedures require, as a prerequisite to the

imposition of the death penalty, specific jury findings as to the circumstances of the
crime or the character of the defendant. Moreover, . . . the Supreme Court of
Georgia compares each death sentence with the sentences imposed on similarly
situated defendants to ensure that the sentence of death in a particular case is not
disproportionate. On their face these procedures seem to satisfy the concerns of
Furman. No longer should there be “no meaningful basis for distinguishing the few

702
Id. at 173 (citations omitted).
703
Id. at 187.
704
Id. at 189.

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 cases in which (the death penalty) is imposed from the many cases in which it is
not.”705
....

The petitioner next argues that the requirements of Furman are not met here because
the jury has the power to decline to impose the death penalty even if it finds that
one or more statutory aggravating circumstances are present in the case. This
contention misinterprets Furman. . . . Moreover, it ignores the role of the Supreme
Court of Georgia which reviews each death sentence to determine whether it is
proportional to other sentences imposed for similar crimes. Since the
proportionality requirement on review is intended to prevent caprice in the decision
to inflict the penalty, the isolated decision of a jury to afford mercy does not render
unconstitutional death sentences imposed on defendants who were sentenced under
a system that does not create a substantial risk of arbitrariness or caprice.706

The use of aggravating and mitigating circumstances was thus one of the grounds on which
the Supreme Court distinguished the Georgia statute that was upheld in Gregg v. Georgia from the
Georgia statute that was struck down four years earlier in Furman v. Georgia. The controlling
opinion in Gregg explained the distinction in these terms:

Furman held only that, in order to minimize the risk that the death penalty would
be imposed on a capriciously selected group of offenders, the decision to impose it
had to be guided by standards, so that the sentencing authority would focus on the
particularized circumstances of the crime and the defendant.707

More specifically, the Court elaborated on how the statute guided the jury’s discretion:

These procedures require the jury to consider the circumstances of the crime and
the criminal before it recommends sentence. No longer can a Georgia jury do as
Furman’s jury did: reach a finding of the defendant’s guilt and then, without
guidance or direction, decide whether he should live or die. Instead, the jury’s
attention is directed to the specific circumstances of the crime: Was it committed
in the course of another capital felony? Was it committed for money? Was it
committed upon a peace officer or judicial officer? Was it committed in a
particularly heinous way, or in a manner that endangered the lives of many persons?
In addition, the jury’s attention is focused on the characteristics of the person who
committed the crime: Does he have a record of prior convictions of capital
offenses? Are there any special facts about this defendant that mitigate against
imposing capital punishment (E.g., his youth, the extent of his cooperation with the
police, his emotional state at the time of the crime). As a result, while some jury
discretion still exists, “the discretion to be exercised is controlled by clear and
objective standards so as to produce nondiscriminatory application.”708

705
Id. at 198.
706
Id. at 203.
707
Id. at 199.
708
Id. at 197-98.

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 The U.S. Supreme Court further refined the proportionality requirement in Woodson v.
North Carolina709 and Coker v. Georgia.710 “North Carolina . . . responded to the Furman decision
by making death the mandatory sentence for all persons convicted of first-degree murder.”711 U.S.
Supreme Court ruled that “North Carolina's mandatory death sentence statute violated the Eighth
and Fourteenth Amendments”.712 Decided the same day as Gregg v. Georgia, Woodson concluded
that categorical death penalty provisions are unconstitutional:

It is now well established that the Eighth Amendment draws much of its meaning
from “the evolving standards of decency that mark the progress of a maturing
society.” . . . . [O]ne of the most significant developments in our society's treatment
of capital punishment has been the rejection of the common-law practice of
inexorably imposing a death sentence upon every person convicted of a specified
offense. North Carolina's mandatory death penalty statute for first-degree murder
departs markedly from contemporary standards respecting the imposition of the
punishment of death and thus cannot be applied consistently with the Eighth and
Fourteenth Amendments' requirement that the State's power to punish “be exercised
within the limits of civilized standards.”713
....

A process that accords no significance to relevant facets of the character and record
of the individual offender or the circumstances of the particular offense excludes
from consideration in fixing the ultimate punishment of death the possibility of
compassionate or mitigating factors stemming from the diverse frailties of
humankind. It treats all persons convicted of a designated offense not as uniquely
individual human beings, but as members of a faceless, undifferentiated mass to be
subjected to the blind infliction of the penalty of death. . . . . While the prevailing
practice of individualizing sentencing determinations generally reflects simply
enlightened policy rather than a constitutional imperative, we believe that in capital
cases the fundamental respect for humanity underlying the Eighth Amendment
requires consideration of the character and record of the individual offender and the
circumstances of the particular offense as a constitutionally indispensable part of
the process of inflicting the penalty of death. 714

In Coker v. Georgia, the U.S. Supreme Court mandated a significant measure of

proportionality by forbidding the death penalty for rape.715

Rape is without doubt deserving of serious punishment; but in terms of moral

depravity and of the injury to the person and to the public, it does not compare with
murder, which does involve the unjustified taking of human life. Although it may

709
428 U.S. 280 (1976).
710
433 U.S. 584 (1977).
711
Woodson v. N. C., 428 U.S. at 286-87.
712
Id. at 305.
713
Id. at 301 (citation omitted).
714
Id. at 304 (citation omitted).
715
433 U.S. 584, 592 (1977).

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 be accompanied by another crime, rape by definition does not include the death of
or even the serious injury to another person. The murderer kills; the rapist, if no
more than that, does not. Life is over for the victim of the murderer; for the rape
victim, life may not be nearly so happy as it was, but it is not over and normally is
not beyond repair. We have the abiding conviction that the death penalty, which
‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist
who, as such, does not take human life.716

In Lockett v. Ohio, the U.S. Supreme Court set forth the test for whether a death penalty
statute gives the trier of fact sufficient latitude to render an individualized and proportionate
sentence:

[W]e conclude that the Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant proffers as a basis
for a sentence less than death. . . . Given that the imposition of death by public
authority is so profoundly different from all other penalties, we cannot avoid the
conclusion that an individualized decision is essential in capital cases. The need
for treating each defendant in a capital case with that degree of respect due to the
uniqueness of the individual is far more important than in noncapital cases. . . . .

There is no perfect procedure for deciding in which cases governmental authority

should be used to impose death. But a statute that prevents the sentencer in all
capital cases from giving independent mitigating weight to aspects of the
defendant’s character and record and to circumstances of the offense proffered in
mitigation creates the risk that the death penalty will be imposed in spite of factors
which may call for a less severe penalty. When the choice is between life and death,
that risk is unacceptable and incompatible with the commands of the Eighth and
Fourteenth Amendments. 717

Following this direction, Pennsylvania and other jurisdictions provide for individualized
determinations of deathworthiness by statutorily specifying aggravating and mitigating
circumstances. Appendix B shows statutory aggravating circumstances nationally.718 The current,
statutory list of the Commonwealth’s aggravators reads as follows:719

(d) Aggravating circumstances.--Aggravating circumstances shall be

limited to the following:
(1) The victim was a firefighter, peace officer, public servant concerned in
official detention, as defined in 18 Pa.C.S. § 5121 (relating to escape), judge of any
court in the unified judicial system, the Attorney General of Pennsylvania, a deputy
attorney general, district attorney, assistant district attorney, member of the General

716
Coker, 433 U.S. at 598 (citation omitted).
717
438 U.S. 586, 604-05 (1978).
718
Infra pp. 223-26.
719
42 Pa.C.S. § 9711.

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Assembly, Governor, Lieutenant Governor, Auditor General, State Treasurer, State
law enforcement official, local law enforcement official, Federal law enforcement
official or person employed to assist or assisting any law enforcement official in
the performance of his duties, who was killed in the performance of his duties or as
a result of his official position.
(2) The defendant paid or was paid by another person or had contracted to
pay or be paid by another person or had conspired to pay or be paid by another
person for the killing of the victim.
(3) The victim was being held by the defendant for ransom or reward, or as
a shield or hostage.
(4) The death of the victim occurred while defendant was engaged in the
hijacking of an aircraft.
(5) The victim was a prosecution witness to a murder or other felony
committed by the defendant and was killed for the purpose of preventing his
testimony against the defendant in any grand jury or criminal proceeding involving
such offenses.
(6) The defendant committed a killing while in the perpetration of a felony.
(7) In the commission of the offense the defendant knowingly created a grave
risk of death to another person in addition to the victim of the offense.
(8) The offense was committed by means of torture.
(9) The defendant has a significant history of felony convictions involving
the use or threat of violence to the person.
(10) The defendant has been convicted of another Federal or State offense,
committed either before or at the time of the offense at issue, for which a sentence
of life imprisonment or death was imposable or the defendant was undergoing a
sentence of life imprisonment for any reason at the time of the commission of the
offense.
(11) The defendant has been convicted of another murder committed in any
jurisdiction and committed either before or at the time of the offense at issue.
(12) The defendant has been convicted of voluntary manslaughter, as defined
in 18 Pa.C.S. § 2503 (relating to voluntary manslaughter), or a substantially
equivalent crime in any other jurisdiction, committed either before or at the time of
the offense at issue.
(13) The defendant committed the killing or was an accomplice in the killing,
as defined in 18 Pa.C.S. § 306(c) (relating to liability for conduct of another;
complicity), while in the perpetration of a felony under the provisions of the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug,
Device and Cosmetic Act, and punishable under the provisions of 18 Pa.C.S. § 7508
(relating to drug trafficking sentencing and penalties).
(14) At the time of the killing, the victim was or had been involved,
associated or in competition with the defendant in the sale, manufacture,
distribution or delivery of any controlled substance or counterfeit controlled
substance in violation of The Controlled Substance, Drug, Device and Cosmetic
Act or similar law of any other state, the District of Columbia or the United States,
and the defendant committed the killing or was an accomplice to the killing as
defined in 18 Pa.C.S. § 306(c), and the killing resulted from or was related to that

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 association, involvement or competition to promote the defendant's activities in
selling, manufacturing, distributing or delivering controlled substances or
counterfeit controlled substances.
(15) At the time of the killing, the victim was or had been a nongovernmental
informant or had otherwise provided any investigative, law enforcement or police
agency with information concerning criminal activity and the defendant committed
the killing or was an accomplice to the killing as defined in 18 Pa.C.S. § 306(c),
and the killing was in retaliation for the victim's activities as a nongovernmental
informant or in providing information concerning criminal activity to an
investigative, law enforcement or police agency.
(16) The victim was a child under 12 years of age.
(17) At the time of the killing, the victim was in her third trimester of
pregnancy or the defendant had knowledge of the victim's pregnancy.
(18) At the time of the killing the defendant was subject to a court order
restricting in any way the defendant's behavior toward the victim pursuant to 23
Pa.C.S. Ch. 61 (relating to protection from abuse) or any other order of a court of
common pleas or of the minor judiciary designed in whole or in part to protect the
victim from the defendant.

Aggravating Circumstances. Statutory aggravating circumstances should be drafted to

ensure that the death penalty is limited to a narrow class of the worst murders of the first degree.
Aggravators should differentiate murders that genuinely deserve the death penalty from the
majority that do not; in other words, the aggravators should distinguish “garden variety” murder
from “the worst of the worst.” They should identify crimes that affect the Commonwealth as a
whole. At the same time, aggravators should not have a discriminatory effect against racial and
ethnic minorities. Selection of the aggravating circumstances should reflect the subcommittee on
policy’s considered views regarding whether they identify especially heinous factors, significantly
narrow eligibility for the penalty, and apply to cases that are likely to actually occur. Consideration
should be given to retaining aggravating circumstances that our Commonwealth has and which
have been adopted in many other jurisdictions; at the same time, aggravating circumstances that
would be unique or that are used in only a few other jurisdictions should not be enacted here.

In its comprehensive, national review, The Constitution Project recommends the following,
limited list:720

 The murder of a police officer killed in the performance of his or her official duties
when done to prevent or retaliate for that performance.
 The murder of any person (including . . . inmates, staff, and visitors) occurring at a
correctional facility.
 The murder of two or more persons, regardless of whether the deaths occurred as the
result of the same act or . . . unrelated acts, as long as (a) the deaths were the result of
an intent to kill more than one person, or (b) the defendant knew the act or acts would
cause death or create a strong probability of death or great bodily harm to the
murdered individual or others.

720
The Const. Project, supra note 693, at 10.

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  The intentional murder of a person involving the infliction of torture. In this context,
torture means the intentional and depraved infliction of extreme physical pain for a
prolonged period of time prior to the victim’s death; depraved means that the defendant
relished the infliction of extreme physical pain upon the victim, evidencing debasement
or perversion, or that the defendant evidenced a sense of pleasure in the infliction of
extreme physical pain.
 The murder by a person who is under investigation for, or has been charged with or
convicted of a felony; or the murder of anyone involved in the investigation,
prosecution, or defense of that crime, including . . . witnesses, jurors, judges,
prosecutors, and investigators.

The Constitution Project emphasizes criminal intent and deemphasizes the result of the
crime, when it may not have been intended.721 The aggravators should target “the fewest, most
heinous and shocking first degree murders, for which any lesser response would minimize the
magnitude of the offense”.722 They should promote public safety by protecting law enforcement
personnel and should avoid singling out murders that are likely to reveal “racial or class bias”,
such as gang activity.723 California Commission on the Fair Administration Justice noted that “a
narrowing of the California special circumstances to” these “five factors . . . could largely eliminate
the geographic variation in use of the death penalty” in that state.724

A study about mistakes in death verdicts that were judicially reversed “due to serious
errors” was followed by another study to address why so many mistakes were made and how to
prevent them.725 This comprehensive, statistical study observes that “expanded and indiscriminate
use of the death penalty,” which is often extended “to weakly aggravated cases as a way of
demonstrating a firm resolve to fight crime”, results in “a greatly increased risk of serious capitol
mistake, reversal and costly retrials.”726 It is common to enact additional aggravating
circumstances to address a crime that slips through the cracks of the preexistent ones. “New
aggravating circumstances should be resisted on principle. If consideration is given to them, any
change should not proceed piecemeal, but should be part of an overall revamping of the statute
that removes other, less appropriate circumstances at the same time.”727 Primarily to be avoided
are vague, “catch-all aggravating circumstances that . . . apply to essentially all first-degree
murders . . . ;”728 others “that simply duplicate the definition of murder . . .;”729 and ones “that
treat the same fact as two different reasons to impose death”.730

721
Id. at 13.
722
Id. at 15.
723
Id. at 14-16.
724
Cal. Comm’n on the Fair Admin. of Just., supra note 209, at 140.
725
James S. Liebman et al., A Broken System, Pt. II: Why There Is So Much Error in Capital Cases, & What Can Be
Done About It, http://www2.law.columbia.edu/brokensystem2/report.pdf (2002).
726
Id. at 362.
727
Id. at 420.
728
Id., e.g., atrocious, depraved, etc..
729
Id., e.g., occurred in the course of a felony, etc..
730
Id., e.g., a single aggravating circumstances is effectively double-counted: in the course of a robbery & for
pecuniary gain.

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The authors of this study advocate that the statute should require aggravating circumstances to
substantially outweigh the mitigators. Accordingly, jurors would be required

to impose a lesser sentence unless they are convinced that the case is so aggravated,
after taking mitigating factors into account, that only the death penalty will suffice
to punish the offender and protect society. By limiting the death penalty to the
strongest cases for that punishment, these policies are well calculated to avoid the
high rates of unreliable error that our regression analyses associate with broad
death-sentencing policies.731

Due to the likelihood of inflated “capital-sentencing rates—and, as a result, rates of serious

capital error”, these authors are critical of provisions from “California and Pennsylvania” that
impose the death penalty whenever:

the aggravating circumstances outweigh the mitigating circumstances by any

amount, however minor or miniscule. . . . It is hard to imagine sentencing
policies that are more likely than those of California, Pennsylvania and
Arizona to inflate capital sentencing rates—and, as a result, rates of serious
capital error—through imposition of death verdicts in marginal cases.732

Another author divides aggravators into aggravating circumstances and aggravating

motives, cautioning that these two categories overlap. He advises using the following:

 especially heinous, atrocious, or cruel killing (as in sadistic pleasure, extended pain and
suffering, or torture)
 vulnerable victim due to age or mental condition
 deliberate killing of law enforcement or emergency medical personnel
 serial killer (three or more people on three or more unrelated occasions)
 mass murder (four or more victims in a single incident)
 contract killer or paid assassin, or other killing for pecuniary gain
 hate crimes (motivated by the victim’s race, religion, national origin, or sexual
orientation)
 killing of an unresisting robbery victim or a potential witness
 knowing endangerment of several persons733

This author would remove the felony murder aggravator because it “ensnares a shocking
number of innocents” and because it can operate in a racially biased way.734

731
Id. at 399-400.
732
Id. at 400 (bolded in original). This study excludes a numerical estimate of the impact of this suggested
change.
733
Robert Blecker, The Death of Punishment: Searching for Just. Among the Worst of the Worst 279-80 (2013).
734
Id. at 46.

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 Aggravating Circumstances in Plea Bargaining.735 Not only are aggravating
circumstances considered for sentencing, but they are also used by prosecutors in plea bargaining.
Prosecutors may pose the possibility of the death penalty to induce an accused into a guilty plea,
in return for which the prosecutor removes the death penalty from the case. The Constitution
requires that a death charge should be reserved only for particularly deserving crimes, for which
some would contend that plea bargaining is inappropriate. The use of the death penalty charge as
a plea bargaining tool is unfair to the accused if it used coercively. The greater the number and
more broadly worded statutory aggravating circumstances, the easier it is for a prosecutor to extract
a plea. Some of our Commonwealth’s aggravating circumstances are overbroad in that they are
vulnerable to the complaint that almost any murder can be charged as a capital murder; this is
particularly true of the felony murder736 and grave risk737 aggravators. At the same time, the
statutory list does include all of the crimes that the death penalty could possibly apply to, and
should not be broadened to include any crime that could not currently be charged as aggravated
murder without a compelling reason.

Suggested Reforms to Pennsylvania’s Aggravating Circumstances. The consensus of the

subcommittee on policy is that the following aggravating circumstances identify particularly
deserving murders and are therefore appropriate if the death penalty is retained: (1) murder of
specified, public officials and employees; (2) paid murder; (3) murder of a hostage; (5) murder
of a prosecution witness to prevent testimony; (8) torturous murder; (15) retaliatory murder of a
nongovernmental informant; (16) murder of a child under age 12; (17) murder of a woman in the
third trimester of pregnancy; and (18) murder of a person while violating Protection from Abuse
Act.738

With respect to the remainder of the statutory aggravating circumstances, the subcommittee
on policy recommends consideration of these possible amendments.

1. The aggravating circumstance of a murder during an (4) aircraft hijacking should be

repealed because it insufficiently specifies the circumstances under which it would
apply and is more appropriately within the purview of a federal prosecution.

2. The aggravating circumstance for (5) murder of a prosecution witness to prevent

testimony should be clarified to apply to any person who murders a prosecution
witness. It appears to be limited to the defendant who murders a prosecution witness
to prevent the witness from testifying against the defendant himself. If that defendant
induces a third party to murder a witness, this aggravating circumstance might not
apply to the witness’s murderer, although it does apply to the defendant against whom
witness would have testified.

3. The aggravating circumstance for (6) murder in perpetration of a felony is equivalent

to murder of the second degree, which carries a sentence of life imprisonment (without
parole).739 At common law, felony murder could apply even though the offender had

735
A more general discussion of plea bargaining death cases appears supra pp. 68-72.
736
42 Pa.C.S. § 9711(d)(6).
737
Id. § 9711(d)(7).
738
42 Pa.C.S. § 9711(d).
739
18 Pa.C.S. §§ 1102(b), 2502(b).

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 no specific intent to kill, under a legal fiction known as transferred intent: the intent to
commit the felony supplied the intent to commit murder. More recently, the U.S.
Supreme Court narrowed felony murder to cases where the defendant either took life,
attempted to take life, or intended or contemplated that a life would be taken.740 It can
also apply where the accused had a major participation in the felony and acted with
reckless indifference to human life.741 Under Pennsylvania law, this aggravating
circumstance is restricted to persons who actually “’commit’ the killing” and “may not
be applied to an accomplice who does not”.742 However, even with these limitations,
this aggravating circumstance is overbroad and should be repealed. A large proportion,
or even a majority, of murders fall under this category, and the fact that the murder is
committed in the perpetration of a felony does not by itself create the level of
blameworthiness that is particularly deserving of the death penalty.

4. The aggravating circumstance of (7) creating a grave risk of death to another in addition
to the victim is overbroad; it can apply to any murder committed in the presence of a
third person and does not require that the murderer intend any death other than the
victim’s. However, eliminating it entirely would leave out heinous crimes, such as
where the murderer kills one person and simultaneously inflicts multiple gunshots on
a second person who happens to survive, often because of heroic medical care. To limit
this aggravating circumstance to genuinely deathworthy offenses, it should further
require that the perpetrator caused serious injury to at least two bystanders or one or
more persons other than the murder victim, either intentionally, knowingly, or with
extreme or depraved indifference to the value of human life.

5. The aggravating circumstance for (8) tortuous murder is rarely seen in Pennsylvania
but might occur from time to time. The term is vague, but it has been judicially
interpreted: “Torture is the intentional infliction of a considerable amount of pain and
suffering on a victim which is unnecessarily heinous, atrocious or cruel manifesting
exceptional depravity. There must be an indication that the killer was not satisfied with
the killing alone.”743 Given this interpretation, this aggravating circumstance should
be retained.

6. The aggravating circumstances set forth in paragraphs (9) through (12)744 apply to
felonies committed prior to or simultaneously with the offense at issue. Evidence of
prior offenses is typically excluded at the guilt stage of a criminal trial, but may be
considered at the sentencing stage and likely would be if there was evidence to present
attributable to these aggravating circumstances. Juries and the public believe that prior
serious offenses are important in considering the gravity of the offense, just as a clean
criminal record is considered an important mitigating factor.745

740
Enmund v. Fla., 458 U.S. 782, 801 (1982).
741
Tison v. Ariz., 481 U.S. 137, 158 (1987).
742
Commw. v. Lassiter, 722 A.2d 657, 662 (Pa. 1998).
743
Commw. v. Whitney, 708 A.2d 471, 480 (Pa. 1998) (citations omitted).
744
42 Pa.C.S. § 9711(d).
745
Id. § 9711(e)(1).

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 Paragraph (9)746 is an aggravating circumstance applicable if “[t]he defendant has a
significant history of felony convictions involving the use or threat of violence to the person.”
Other than the facts of the crime itself, the criminal history of a defendant is probably the most
important factor in sentencing. This aggravating circumstance has been judicially construed to
require at least two prior convictions within the ambit of that paragraph.747 Subsequently,
paragraphs (11) and (12) were enacted to apply the aggravating circumstance in paragraph (9) if
the single prior conviction is for murder or voluntary manslaughter.748 Thus, a previous conviction
for murder would support an aggravating circumstance under paragraph (11) instead of (9). The
phrase “felony convictions involving the use or threat of violence to the person” refers to the nature
of the other offenses that form the basis for applying this aggravating circumstance; a conviction
for “burglary has always been and continues to be viewed as a crime involving the use or threat of
violence to the person” when graded “as a felony of the first degree . . . consistent with the theory
that the unprivileged entries into buildings and structures where people are likely to be found is a
clear threat to their safety.”749

The subcommittee on policy recommended that paragraph (9) be redrafted to clarify and
narrow its application by requiring two or more felonies of the first class, with each predicate
offense involving either serious injury to an individual other than the victim of the offense at issue
or an imminent threat of death or serious injury to the other individual. This change is intended to
ensure that the predicate offense is sufficiently grave to constitute an appropriate ground for
seeking the death penalty, as well as to remove the possibility that this aggravating circumstance
would be predicated on a verbal threat.

Paragraphs (10) and (11) apply to a defendant who is under or potentially serving under a
prior life or death sentence or was convicted of another murder. The significant difference between
them is that paragraph (10) applies to any offense that was punishable by life imprisonment, which
could be an aggravated murder of the first degree or a third crime of violence,750 whereas paragraph
(11) is limited to murder. An aggravating circumstance on a “third strike” offense, instead of
murder, might be overbroad, in which case it should be restricted to murders committed before or
simultaneously with the murder at issue. Since paragraph (11) states this, the subcommittee
suggested that it be retained and paragraph (10) be repealed.

The subcommittee concluded that the aggravating circumstance in paragraph (12) for a
prior voluntary manslaughter should be removed. Whether it involved a serious provocation
resulting in a crime of passion or imperfect self-defense, voluntary manslaughter requires an
intentional killing, which makes it arguably more appropriate than paragraph (9).751 Some would
favor retaining the aggravating circumstance for a prior voluntary manslaughter because it often
represents a case where the prosecution unsuccessfully sought a murder conviction. Whenever a

746
Id. § 9711(d).
747
Commw. v. Goins, 495 A.2d 527, 534 (Pa. 1985).
748
See Commw. v. Moran, 636 A.2d 612, 613 n.1 (Pa. 1993).
749
Commw. v. Rolan, 549 A.2d 553, 559 (Pa. 1988). “What makes burglary more serious in nature is the added
element of intent to commit a crime while inside the building or occupied structure.” Commw. v. Thomas, 561 A.2d
699, 709 (Pa. 1989).
750
42 Pa.C.S. § 9714(a)(2).
751
This could also be a negligent or accidental killing of somebody else instead of the intended victim. 18 Pa.C.S. §
2503.

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prior conviction is proposed as an aggravating circumstance, the prosecution must bring the
specific facts of the prior case before the jury, through witnesses, stipulation of counsel, or
otherwise. This enables the jury to make an informed decision as to whether the prior offense is
serious enough to support a death verdict. Characterizing the prior voluntary manslaughter
conviction as if it were for murder would unfairly ignore the earlier verdict.

7. The aggravating circumstances dealing with drug offenses in paragraphs (13) and (14)
should also be repealed. Other states do not have similar language, and the paragraphs
do not seem to describe a murder so particularly deserving of the death penalty.

8. The aggravating circumstance for the retaliatory murder of an informant in paragraph

(15) should be retained. Removing it may hamper murder investigations, as it is
intended to be protective of both an ordinary citizen who comes forward with
information and a regular, nongovernmental informant. The criminal justice system
sometimes faces problematic witness resistance and intimidation. Paragraphs (5) and
(15) are attempts to address this problem.

The subcommittee on policy considered several other, potential aggravating circumstances

but rejected them under the general policy presumption that the number of aggravating
circumstances should not be expanded absent a compelling reason.

Mitigation. To narrow the application of the death penalty to the particularly deserving
offenders, the statute specifies mitigating circumstances that permit the jury to consider factors
that may make the death penalty inappropriate. While “[a]ggravating circumstances must be
proved by the Commonwealth beyond a reasonable doubt; mitigating circumstances must be
proved by the defendant by a preponderance of the evidence”,752 which is a lower burden of proof.

Appendix C shows statutory mitigating circumstances nationally.753 The current list of

mitigating circumstances under Pennsylvania law reads as follows:

(e) Mitigating circumstances.--Mitigating circumstances shall include the

following:
(1) The defendant has no significant history of prior criminal convictions.
(2) The defendant was under the influence of extreme mental or emotional
disturbance.
(3) The capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was substantially impaired.
(4) The age of the defendant at the time of the crime.
(5) The defendant acted under extreme duress, although not such duress as
to constitute a defense to prosecution under 18 Pa.C.S. § 309 (relating to duress),
or acted under the substantial domination of another person.
(6) The victim was a participant in the defendant's homicidal conduct or
consented to the homicidal acts.
(7) The defendant's participation in the homicidal act was relatively minor.

752
42 Pa.C.S. § 9711(c)(iii).
753
Infra pp. 227-28.

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 (8) Any other evidence of mitigation concerning the character and record of
the defendant and the circumstances of his offense.754

Except as noted below, the subcommittee on policy recommends that the mitigating
circumstances paragraphs (1) through (7) be retained. However, it also recommends that the words
bracketed below in bold be repealed because they limit the consideration of mitigating evidence:

(2) The defendant was under the influence of [extreme] mental or

emotional disturbance.
(3) The capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was [substantially] impaired.
* * *
(5) The defendant acted under [extreme] duress, although not such duress
as to constitute a defense to prosecution under 18 Pa.C.S. § 309 (relating to duress)
or acted under the [substantial] domination of another person.

These statutory modifiers do not unconstitutionally limit “the range of mitigating

circumstances that the jury could consider through its use of the words extreme and substantial.”755
Nonetheless, whether they “serve to inform, rather than hinder, the jury regarding its discretion
with respect to the specific mitigating circumstances”,756 not all jurisdictions use such qualifiers,
which casts some doubt on whether they are necessary.757

Moral desert. The mitigating circumstance in paragraph (8), permits the capital case jury
to consider “[a]ny other evidence of mitigation concerning the character and record of the
defendant and the circumstances of the offense.”758 In connection with mitigation, a proposal from
American Bar Association on the Pennsylvania death penalty would expand the jury’s discretion
to refuse the death penalty. The subcommittee on policy recommends that the following
recommendation be adopted and reflected in § 9711:

Trial courts should instruct jurors that a juror may return a life sentence, even in
the absence of any mitigating factor and even where an aggravating factor has been
established beyond a reasonable doubt, if the juror does not believe that the
defendant should receive the death penalty.759

The principle should also apply where the jury finds that the aggravating circumstances
outweigh the mitigating ones. It is probably rare for a jury to hand down a death sentence when
one or more jurors believes the sentence to be inappropriate; however, it could clear up potential
juror confusion over the requirement on unanimity for a finding of an aggravating circumstance
that does not apply to a finding of a mitigating circumstance.

754
42 Pa.C.S. § 9711(e).
755
Commw. v. Williams, 615 A.2d 716, 723-24 (Pa. 1992), following Blystone v. Pa., 494 U.S. 299, 308-09 (1990).
756
Id.
757
E.g., N.C. Gen. Stat. § 15A-2000 (f)(2) (mental or emotional disturbance), (f)(5) (duress or domination), & (f)(6)
(impaired capacity).
758
42 Pa.C.S. § 9711(e).
759
Am. Bar Ass’n, supra note 17, at 218.

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 In prepared testimony, a professor proposed that a defendant should not be sentenced to
death unless the jury “feels morally certain that he deserves to die”.760 This criterion should apply
even when “a jury may have found that aggravating circumstances outweigh mitigating
circumstances . . . notwithstanding no reasonable or residual doubts of . . . guilt”.761 In his view,
moral desert is independent of the factual issue of guilt of the offense and the weighing of
aggravating and mitigating circumstances.

While some members of the subcommittee on policy found his proposal persuasive, the
majority rejected it because it evades the careful analysis that the current law prescribes. Such a
direct approach carries too great a risk that the jury will make a snap decision on the basis of
emotion, especially because it is couched in terms of “moral certainty.”

Residual doubt. Doubt that may still exist, even when proof beyond a reasonable doubt is
satisfied, is called “lingering” or “residual” doubt. For instance, there might be doubt about the
perpetrator’s intent where it is difficult to conclude definitively. Strictly speaking, residual doubt
is a matter of the quantum of proof rather than the defendant’s “character and record,” but it is
similar to the mitigating circumstances in that it constitutes a reasonable basis for handing down a
life sentence. Some research suggests that residual doubt is the single most common mitigating
factor that leads juries to recommend a life sentence.762

Defense attorneys commonly argue residual doubt generally as a mitigating circumstance,

and it is appropriate to do so in view of the following conclusion by U.S. Supreme Court:

[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the
rarest kind of capital case, not be precluded from considering, as a mitigating
factor, any aspect of a defendant's character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less than death.763

Despite this conclusion, U.S. Supreme Court “has never held that a capital defendant has a
constitutional right to an instruction telling the jury to revisit the question of his identity as
the murderer as a basis for mitigation”, while repeating “the simple truism” that states “could allow
defendants to capitalize on ‘residual doubts,’” inuring to his benefit.764

Nevertheless, if the trier of fact is convinced that residual doubt of the defendant’s guilt
applies, it should either be treated as a mitigating circumstance or bar a death sentence. Model
Penal Code no longer has a section relating to capital punishment765 but formerly recommended
that the defendant be sentenced “for a felony of the first degree” where the evidence sufficed to

760
Pa. H.R. Comm. on the Judiciary (June 11, 2015) (statement of Prof. Robert Blecker).
761
Id.
762
Margery Malkin Koosed, Averting Mistaken Executions by Adopting the Model Penal Code’s Exclusion of Death
in the Presence of Lingering Doubt, 21 N. Ill. U. L. Rev. 41, 54-60 (2001). “More recent studies repeatedly confirm
that jurors focus on lingering doubt during their deliberations, and that this is by far the most significant factor in their
deliberations. . . . . The primacy of lingering doubt in life-sentencing decisions is universal. ” Id. at 56, 60.
763
Lockett v. Ohio, 438 U.S. 586, 604 (1978) (emphasis in original).
764
Franklin v. Lynaugh, 487 U.S. 164, 172-73 (1988).
765
Am. Law Inst., Model Penal Code, https://www.ali.org/publications/show/model-penal-code/ (2018).

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sustain the verdict but “not foreclose all doubt respecting the defendant’s guilt.”766 Use of residual
doubt in either of these ways reduces the possibility of imposing a death sentence on a factually
innocent defendant. And it is consistent with the principle that “[g]iven the irrevocable nature of
the penalty of death, a decision to impose the penalty requires a greater degree of reliability than
is required for the imposition of other penalties.”767

Specific and Comparative Proportionality Review. As mentioned above, one of the bases
on which the death penalty statute in Gregg v. Georgia was upheld was that it mandated state
Supreme Court review of the death sentence to “determine whether it is imposed under the
influence of passion or prejudice, whether the evidence supports the jury’s finding of a statutory
aggravating circumstance, and whether the sentence is disproportionate compared to sentences
imposed in similar cases.”768 (Appellate review under the italicized standard is referred to here as
“comparative proportionality review.”) These standards, along with prescribed aggravating and
mitigating circumstances, assured the Court that the death penalty would not be applied in an
impermissibly arbitrary and capricious manner.769

Under comparative proportionality review, the state Supreme Court “compares each death
sentence with the sentences imposed on similarly situated defendants to ensure that the sentence
of death in a particular case is not disproportionate.”770 In other words, the state Supreme Court
must review a death verdict that meets the statutory requirements for the death penalty to determine
whether it should nevertheless be overturned because it is out of line with the results in prior death
penalty cases. Using this standard, the Georgia Supreme Court invalidated death sentences in
cases of rape and armed robbery when they were capital offenses on the ground that persons
convicted of these crimes were almost always given lesser sentences.771

In Pulley v. Harris, the U.S. Supreme Court held that comparative proportionality review
is not necessary to make a death penalty scheme constitutional if other features were present “to
promote the evenhanded, rational, and consistent imposition of death sentences.” 772 Although
proportionality review is “an additional safeguard against arbitrarily imposed death sentences,”773
constitutional checks on arbitrariness could be met by other features, such as a definition narrowing
capital murder to a sub-class, prompt and automatic review by the state Supreme Court, and
defined aggravating and mitigating factors (with the aggravating ones proven beyond a reasonable
doubt).774

766
Id., Rep. of the Council to the Membership of the Am. Law Inst. on the Matter of the Death Penalty, Annex A
(2009), available at https://www.ali.org/media/filer_public/3f/ae/3fae71f1-0b2b-4591-ae5c-
5870ce5975c6/capital_punishment_web.pdf.
767
The Const. Project, supra note 693, at 90.
768
Gregg v. Ga., 428 U.S. 153, 198 (1976), citing Ga. Stat. § 27-2537(c) (emphasis added.)
769
Id. at 198.
770
Id.
771
Id. at 205.
772
Pulley v. Harris, 465 U.S. 37, 45, 49-51 (1984).
773
Id. at 50.
774
Id. at 49-53.

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 When Pennsylvania’s death penalty statute was rewritten in 1978 (in response to Gregg v.
Georgia), it included a provision mandating comparative proportionality review. The provision
directed our Supreme Court to vacate a sentence of death if “excessive or disproportionate to the
penalty imposed in similar cases, considering both the circumstances of the crime and the character
and record of the defendant.”775 This provision was repealed in 1997776 because it had never been
used to overturn a death sentence and its existence created a concern related to a then-pending
challenge to a judicial procedure applying that provision.777 Those favoring repeal perceived this
challenge as a threat to the death penalty itself; however, the judicial review found the sentence
neither “excessive or disproportionate to the penalty imposed in similar cases” and the judiciary
in compliance with the statutory provision.778

When the Commonwealth’s statute required a judicial, comparative proportionality review,

Pennsylvania’s Supreme Court independently evaluated “all cases of murder of the first degree
convictions which were prosecuted or could have been prosecuted under . . . 42 Pa.C.S.A. §
9711.”779 To be able to do this, each “President Judge of each county” was ordered

to supply to the Administrative Office of Pennsylvania Courts (the AOPC)

information pertaining to each such conviction and imposed a continuing obligation
on the President Judges to update the AOPC with data pertaining to future cases.
This information includes the facts and circumstances of the crimes, the
aggravating and mitigating circumstances arguably presented by the evidence, the
gender and race of the defendant and the victim, and other information pertaining
to the conduct and prosecution of the case. The data will be compiled and
monitored by the AOPC to insure that the body of ‘similar cases’ is complete and
to expedite our proportionality review.780

775
Former 42 Pa.C.S. § 9711(h)(3)(iii).
776
Act of June 25, 1997 (P.L.293, No.28), § 1.
777
Commw. v. Gribble, 703 A.2d 426, 440 (Pa. 1997).
778
Id. at 441.
779
Commw. v. Frey, 475 A.2d 700, 707 (Pa. 1984).
780
Id. at 707-08.

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The form that was developed to collect the data is set forth below:781

ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS

REVIEW FORM
MURDER OF THE FIRST DEGREE
IN THE COURT OF COMMON PLEAS OF _____ COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA : CASE NO. _____:
vs. : _____

1. Defendant's: (a) date of birth: _____

(b) race: _____
(c) sex: _____

2. Victim's: (a) date of birth: _____

(b) race: _____
(c) sex: _____

3. Guilt determined by: jury ( )

trial court ( )
guilty plea ( )

4. Was the death penalty sought?

Yes ( )
No ( )

5. If No. 4 is answered yes,

(a) sentencing disposition: death penalty ( )
life imprisonment ( )
(b) sentence determined by: jury ( )
trial court ( )
(c) List all aggravating circumstances, see 42 Pa.C.S. § 9711(d), presented at the
sentencing hearing by the Commonwealth and briefly set forth the facts and evidence
relevant to each such circumstance: _____
(d) List all mitigating circumstances, see 42 Pa.C.S. § 9711(e), presented at the sentencing
hearing by the defendant and briefly set forth the facts and evidence relevant to each such
circumstance: _

6. List all other offenses which were tried at the same trial and indicate which offenses stemmed
from or related to the charge of murder of the first degree, and whether defendant was convicted
or acquitted on these other offenses: ___

781
Id. at 711. Challenges “arguing that the AOPC's proportionality database is flawed” were “consistently rejected”
by rulings “particularly noting that the data compiled by the AOPC is neither defective nor flawed.” Commw. v. Spotz,
896 A.2d 1191, 1249 (Pa. 2006).

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7. If there were any co-defendants involved in this case, complete the following:
(a) Name: _____
Information/Indictment No(s).: _____
Offenses charged:
Disposition:
Status of case:
(b) Name: _____
Information/Indictment No(s).:_____
Offenses charged:
Disposition:
Status of case:
(c) Name: _____
Information/Indictment No(s).: _____
Offenses charged:
Disposition:
Status of case:

8. Status of case, including date of most recent action: _____

(E.g., verdict returned on _____ but formal sentencing delayed pending disposition of post-verdict
motions; notice of appeal filed on _____; etc.)

9. If any opinions have been written in this case, attach to this Review Form. Otherwise, please
forward when available.

10. If a transcript of the sentencing hearing is available in this case, attach a certified copy to the
Review Form; if not immediately available, transmit a certified copy to the AOPC upon receipt.

END OF FORM

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 While the ruling of Pulley v. Harris rejected comparative proportionality review as a
constitutional requirement, there remains the question of whether it should be adopted as a matter
of policy. Proportionality review is used in sixteen states and was used in other states before they
abolished the death penalty.782

Evaluation of Proportionality Review. Proponents of proportionality review, such as The

Constitution Project, argue that it can achieve three goals: “(1) ensure that the death penalty is
being administered in a rational, non-arbitrary, and even-handed manner, (2) provide a check on
broad prosecutorial discretion, and (3) prevent discrimination from playing a role in the capital
decision-making process”.783

Professor James Liebman supports the use of comparative review as an important tool to
ensure that the death penalty will apply to “core capital murders” and will exclude “outlier”
cases.784 This will help promote consistency while reducing the possibility of error.785
Comparative review excludes weak cases and cases where the death verdict may be significantly
affected by political pressure on prosecutors and trial judges.786

Professor Barry Latzer, however, regards comparative proportionality review as

conceptually unsound because if a case deserves the death penalty, it does so regardless of whether
it was applied in a similar case. Regarding two specific cases he comments:

Most . . . prosecutors and jurors, and I daresay most people who are not absolutely
opposed to the death penalty, would agree that a man who committed more than
one murder in separate incidents is prima facie deathworthy. The fact that other
serial killers, e.g. [Defendant A], the multiple rape-murderer may have been more
deathworthy is of no moment: [Defendant B] clearly meets the threshold
requirement for a death sentence.787

A different version of proportionality review, called specific proportionality review, is

proposed by Professor Evan J. Mandery. The test is whether contemporary standards of decency
permit or forbid the use of the death penalty in the case reviewed.788 The standard of decency can
be objectively determined by examining dispositions where the same factor was present that forms
the ground for the claim for relief.

782
Ala. Code § 13A-5-53(b)(3), Ga. Code Ann. § 17-10-35(c)(3), Ky. Rev. Stat. Ann. § 532.075(3)(c), La. Code Crim.
Proc. Ann. art. 905.9.1 § (1)(c), Miss. Code Ann. § 99-19-105(3)(c), Mo. Ann. Stat. § 565.035(3)(3), Mont. Code.
Ann. § 46-18-310(1)(c), Neb. Rev. Stat. § 29-2521.03, N.H. Rev. Stat. Ann. § 630:5(XI)(c), N.C. Gen. Stat. § 15A-
2000(d)(2), Ohio Rev. Code. Ann. § 2929.05(A), S.C. Code Ann. § 16-3-25(C)(3), S.D. Codified Laws § 23A-27A-
12(3), Tenn. Code Ann. § 39-13-206(c)(1)(D), Wash. Rev. Code Ann. § 10.95.130(2)(b), & Sinclair v. Fla., 657 So.
2d 1138, 1142 (Fla. 1995).
783
The Const. Project, Mandatory Justice: Eighteen Reforms to the Death Penalty 27 (2001), available at
https://constitutionproject.org/wp-content/uploads/2012/08/MandatoryJustice.pdf.
784
Liebman supra note 725, at 407.
785
Id.
786
Id.
787
Barry Latzer, The Failure of Comparative Proportionality Rev. of Capital Cases (w/Lessons from N.J.), 64 Alb. L.
Rev. 1161, 1232 (2001). Latzer thinks that comparative proportionality review creates “an unrealistic standard”
because “[p]erfectly evenhanded enforcement of the death penalty is unattainable.” Id. at 1243-44.
788
Evan J. Mandery, In Defense of Specific Proportionality Rev., 65 Alb. L. Rev. 883, 887-88 (2002).

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 Unlike comparative review, . . . specific review does not concern itself with how
defendants sentenced to die are treated vis à vis similar defendants given a life
sentence. Rather, the question is similar to that asked under inherent review:
whether death is ever appropriate for this type of criminal. But whereas, in
determining appropriateness, inherent review inquires only into the nature of the
offense committed, specific review considers other factors. Under inherent review,
a court would ask only whether death were an appropriate punishment for
murderers. Under specific review, a court would go on to ask, for example, whether
death is an appropriate punishment for convicted murderers who did not pull the
trigger, or for murderers who operated under a significant level of mental
impairment.789

Opponents of proportionality review might suspect that abolitionists advance it primarily

as another hurdle for a death penalty case to clear.790 If the death penalty statute is constitutional,
it would seem to provide both a reasonably consistent set of criteria for separating death eligible
murderers from others and, given the opportunity to present mitigating evidence of the defendant’s
character and record along with the circumstances of the offense, an opportunity for the jury to
examine each crime individually. Thus proportionality review, whether specific or comparative,
might strike the death penalty supporter as less of an omission. A possibly genuine problem may
be that the aggravators are so broad and so numerous that most murders are arguably death eligible,
which thwarts consistency in sentencing.791 Repeal of overly broad aggravating circumstances
could address that concern, but so can comparative proportionality review. “Courts could mitigate
the influence of race, for instance, with the application of an objective, neutral standard. Likewise,
a state supreme court could eliminate the influence of geography, at least within a state, by
applying a consistent statewide standard.”792

One key argument and justification often overlooked by commenters on both sides of the
issue is the usefulness of comparative proportionality review as a safeguard to prevent racial,
ethnic or socio-economic unfairness. For instance, it may overturn a verdict where an African-
American was given a death sentence, while a similarly-situated White defendant was given life
imprisonment. In such cases, one may infer that conscious or unconscious racism played a part in
the disparity. Proportionality review also encourages the collection of useful data on the
circumstances of individual murder cases. On the other hand, proportionality review calls upon
the judiciary to invade a province that is otherwise assigned to the jury. For all other crimes, the
criminal justice system tolerates differences in outcomes arising from differences among juries,
but it could be argued that in this issue, as in others, death should be treated differently.

789
Id. at 894-95.
790
Professor Berry forthrightly recognizes the possibility that “adopting meaningful comparative proportionality
review could ultimately lead to the abolition of the death penalty.” William W. Berry III, Practicing Proportionality,
64 Fla. L. Rev. 687, 718 (2012).
791
Id. at 702, 705, 718.
792
Id. at 718.

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 Impact on and Services for Family Members

The question that serves as the basis of the study of impact on and services for family
members in the administration of the death penalty in our Commonwealth is:

The impact of the death penalty on family members and loved ones of murder
victims and the availability and cost of services currently being provided in
Pennsylvania for family members and loved ones of murder victims and whether
these services are sufficient to meet the needs of surviving families;793

Services

Services for family members and loved ones of murder victims in this Commonwealth are
provided on a county-by-county basis. Predominantly, those services are provided within the
county’s Office of District Attorney.794 Some counties have one or more private, not-for-profit
victims’ support offices that operate in conjunction with or in lieu of a victim’s witness advocate
working for a district attorney. These services are paid for from a mix of public and private
funding.

There are a broad range of services available to family members and loved ones impacted
by homicides,795 including crisis counseling, intervention and group support, as well as referrals
to on-going therapy. Advocates will also help them to understand the legal process and work with
them to navigate each aspect of the criminal and juvenile justice systems. This type of assistance
goes beyond explaining the system, in that they accompany victims to judicial proceedings and
help them register for various notifications. The advocate will also help victims write their impact
statements to clearly and appropriately state how the crime changed their and their family’s life
financially, physically and emotionally. Victims Compensation Assistance Program796 will
provide financial help to deal with expenses, such as funeral costs, loss of earnings and support,
and medical and counseling expenses among other eligible expenses.

793
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra pp. 219-20.
794
Prosecutors have statutory responsibilities to some victims. Act of Nov. 24, 1998 (P.L.882, No.111), § 213; 18
P.S. § 11.213. “A family member of a homicide victim” is a victim. Id. § 103; 18 P.S. § 11.103.
795
Pa. Office of Victim Servs., Pa. Comm’n on Crime & Delinquency, http://pcv.pccd.pa.gov/available-
services/Pages/Interactive-Map.aspx#.VBB2X_ldVyx (2018); Pa. Office of Victim Advocate, Locate a Victim Serv.
Agency, http://www.ova.pa.gov/Services/Resources/LocateaVictimServiceAgency/Pages/default.aspx (2018).
Victims of crime have statutory rights. Act of Nov. 24, 1998 (P.L.882, No.111), § 201; 18 P.S. § 11.201.
796
Pa. Office of Victim Servs., Victims Compensation, http://pcv.pccd.pa.gov/available-services/Pages/Victims-
Compensation.aspx (2018). Act of Nov. 24, 1998 (P.L.882, No.111), §§ 701-710; 18 P.S. §§ 11.701-11.710.

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 The services are generally but not precisely uniformly available throughout the counties;
there are reporting requirements for services receiving grants. In some cases, because of the
geographical size of a county, there may be a challenge to obtain the services. In other words, it
may be difficult for a family member or loved one of a homicide victim to travel to get the service.
There also may be a delay in providing the services due to insufficient staffing. In some cases,
where size of the county would impact availability or the infrequency of homicides means that
counties do not maintain certain services on an ongoing basis, counties share or pool services to
improve availability.

Staff from Joint State Government Commission spoke with staff from various advocacy
offices to determine the sufficiency of the services provided. There was a wide range of responses.
One third of the providers said that the services were insufficient. Some of those expounded that
their services were meant to help family members navigate the criminal justice system. Others
referenced family members’ ongoing counseling needs as being beyond their office’s scope of
service. One advocate reported that her county had no support group specifically for families of
murder victims. Another said that because of funding cuts over the last 15 years, there was often
a delay of up to 24 hours in responding to victims’ families. Funding cuts were mentioned several
times as the reason that services were insufficient.797

Conversely, almost half of the advocates felt that the services were sufficient, although this
group of responders often acknowledged that the loss of a family member or loved one through
homicide left a hole that could never be fully filled. One particular advocate stated that the services
were sufficient and if there was something else that was needed, she would take care of it.

Cost of services

The cost of services that are provided to family members and loved ones of murder victims
can only be provided as part of the larger picture of state and federal funding for victims within
this Commonwealth.798 In other words, at the service provider level, the grants are not typically
broken down by type of victim799 so the funding listed below covers victims of all crimes that
would be provided services through these offices.800 Family members and loved ones of murder
victims receive support services as part of a larger group of victims of violent crimes within this
Commonwealth. “On average, the Victims Compensation Assistance Program receives over 8,600
new claims and pays an average $13 million per year on behalf of crime victims”801

797
Since then, some of the funding might have rebounded a bit.
798
Appdx. J, infra pp. 257-59.
799
Pa. Comm’n on Crime & Delinquency recently awarded requested grants totaling $2,346,175 for four recipients in
Phila. to serve survivors of homicide victims. Telephone interview w/Valerie Barbin McMahon, Dir., Office of Victim
Servs. (Apr. 27, 2018).
800
Beginning in 2016, VOCA recipients have been required to keep confidential records on each crime victim that
receives services to report as Victim Assistance Program Performance Measures. Pt. of this data includes the total no.
of survivors of homicide victims served during the reporting period, but this data is too new to develop information
on it for this report.
801
Pa. Comm’n on Crime & Delinquency, Helping Crime Victims, http://www.pccd.pa.gov/Victim-
Services/Pages/Victims-Compensation-Assistance-Program-(VCAP).aspx (2018).

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 With some exceptions, the total amount of an award in this program is limited to
$35,000.802 Within this limitation, the maximum aggregate award for “loss of earnings or support”
for a direct victim of homicide is limited to $20,000.803 Since awards from this program are a last
resort, they would be reduced by the amount received from other sources, such as restitution,
insurance, other public funds, pension benefits and other legal settlements.804 When “two or more
individuals claim” an award for the death of a direct victim, the award is apportioned. 805 These
awards are administered by Office of Victims’ Services in Pennsylvania Commission on Crime
and Delinquency.806

Victims of Crime Act of 1984 (VOCA). This is a federal grant program through U.S.
Department of Justice that supports direct assistance services to victims of all types of crime.

This includes a broad array of services for victims of violence ranging from crisis
intervention, shelter, counseling, and criminal justice advocacy. The Crime
Victims Fund is comprised of fines, forfeitures, and penalty assessments on
offenders of federally prosecuted cases. County allocations are determined by
formula using the county’s population (75%) and target crimes (25%). Eligible
activities are those direct services which respond to the emotional and physical
needs of crime victims; assist victims of crime in stabilizing their lives after a
victimization; assist victims in understanding and supporting them through the
criminal and juvenile justice process; or provide victims of crime with a safe and
secure environment. Ineligible activities include, but are not limited to, procedural
services, prosecution and law enforcement activities, fundraising, crime prevention,
and lobbying and administrative advocacy. PCCD has made a policy decision to
limit the use of VOCA for procedural services. Funds in 2014/15 were awarded to
103 community-based agencies and 15 system-based agencies in the 67 counties.807

802
Act of Nov. 24, 1998 (P.L.882, No.111), § 707(b); 18 P.S. § 11.707(b). The limitation of $35,000 dates from the
statute’s original enactment in 1998. Exceptions were added in 2002 to cover up to either $5,000 or $10,000 in
counseling, up to $1,000 for a forensic rape examination and up to $500 to clean the crime scene of a private residence.
Act of June 28, 2002 (P.L.496, No.85), § 4. The schedule of reimbursement rates and compensation limits appears in
37 Pa. Code §§ 411.41-411.44.
803
Act of Nov. 24, 1998 (P.L.882, No.111), § 707(b)(2); 18 P.S. § 11.707(b)(2).
804
Id. § 707(e); 18 P.S. § 11.707(e).
805
Id. § 707(d); 18 P.S. § 11.707(d).
806
Id. §§ 311(a), 312(5); 18 P.S. §§ 11.311(a), 11.312(5).
807
Pa. Comm’n on Crime & Delinquency, Rights, Servs., Technology & Training, http://www.pccd.pa.gov/Victim-
Services/Pages/Victim-Services--Rights,-Services,-Technology-and-Training.aspx (2018).

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 VOCA Victim Compensation Formula Awards to
Pennsylvania Commission on Crime and Delinquency from
Office for Victims of Crime808 for VOCA Victim Compensation809

Fiscal Year Amount

2017 $4,152,000

2016 $4,480,000

2015 $4,475,000

2014 $2,353,000

2013 $3,564,000

2012 $4,386,000

2011 $4,089,000

2010 $4,448,000

2009 $5,885,000810

2008 $6,752,000

2007 $5,083,000

2006 $4,491,000

2005 $3,817,000

2004 $2,071,000

2003 $3,863,000

“No more than 5 percent of each year's VOCA compensation formula grant may be used for
administration and training; the rest must be used for awards of compensation to crime victims.”811

808
“[A] a component of the Office of Justice Programs, U.S. Department of Justice.” Office for Victims of Crime,
U.S. Dep’t of Just., Grants & Funding, https://www.ovc.gov/grants/grant_award_search.html (last visited Mar. 29,
2018). “From the Fund deposits available for victim compensation grants, the Director shall make an annual grant
from the Fund to an eligible crime victim compensation program of 60 percent of the amounts awarded during the
preceding fiscal year (two years prior to the grant year).” Id., https://ojp.gov/ovc/grants/cvfa2017.html (last visited
Mar. 29, 2018).
809
“Crime victim compensation is a direct reimbursement to or on behalf of a crime victim for the following statutorily
identified crime-related expenses:” med. costs, mental health counseling, lost wages or support, etc.. “Although each
state administers its own program independently, most programs have similar eligibility requirements and offer
comparable types of benefits.” Id., Crime Victims Fund,
https://ojp.gov/ovc/pubs/crimevictimsfundfs/intro.html#VictimAssist (last visited Apr. 6, 2018).
810
There was an additional grant from the recovery act for this fiscal year in the amount of $1,536,233.
811
Id., Crime Victims Fund, https://ojp.gov/ovc/pubs/crimevictimsfundfs/intro.html (last visited Mar. 29, 2018).

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 VOCA Victim Assistance Formula awards to
Pennsylvania Commission on Crime and Delinquency from
Office for Victims of Crime812 for VOCA Victim Assistance813

Fiscal Year Amount

2017 $71,649,740

2016 $86,776,184

2015 $77,028,140

2014 $17,604,722

2013 $16,479,712

2012 $14,730,846

2011 $16,779,293

2010 $16,086,343

2009 $14,088,213814

2008 $12,048,000

2007 $14,666,000

2006 $15,858,000

2005 $14,987,000

2004 $14,364,000

2003 $14,239,000

“VOCA allows state grantees to use no more than 5 percent of each year's grant for training
and administering the VOCA victim assistance grant at the state grantee level with the remaining
portion being used exclusively for direct service providers.”815

812
“[A] a component of the Office of Justice Programs, U.S. Department of Justice.” Office for Victims of Crime,
U.S. Dep’t of Just., Grants & Funding, https://www.ovc.gov/grants/grant_award_search.html (last visited Mar. 29,
2018). “From the Fund deposits available for victim assistance grants, each state grantee receives a base amount of
$500,000, . . . . After the victim compensation allocations are determined, the remaining Fund deposits are allocated
to victim assistance grants based upon the state's population in relation to all other states, as determined by current
census data.” Id., https://ojp.gov/ovc/grants/cvfa2017.html (last visited Apr. 6, 2018).
813
“Victim assistance includes, but is not limited to, the following services:” crisis intervention, emergency shelter,
emergency transp., counseling, crim. justice advocacy, etc.. “In each state and territory, VOCA assistance funds are
awarded to local community-based organizations and public agencies that provide services directly to victims of
crime.” Id., Crime Victims Fund, https://ojp.gov/ovc/pubs/crimevictimsfundfs/intro.html#VictimAssist (last visited
Apr. 6, 2018).
814
There was an additional grant from the recovery act for this fiscal year in the amount of $1,323,000.
815
Id.

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 Rights and Services Act (RASA). This is state funding that supports victim notification,
accompaniment, assistance with victim impact statements and crime victims compensation
assistance.

RASA provides financial support, training and technical assistance to county-based

victim service agencies to promote the rights and services under Pennsylvania's
Crime Victims Act. This funding source provides the primary financial support for
the victim/witness offices within the District Attorneys’ Offices. The source of
funds for RASA is the Victim/Witness Fund which is comprised of a $25 penalty
assessment on convicted/diverted offenders. County allocations are determined by
a formula using the county’s population (75%) and target crimes (25%). Eligible
activities support the full range of rights, services, and responsibilities within the
criminal justice system outlined in the Crime Victims Act. (e.g. notification,
accompaniment, assistance with victim impact statements, and crime victims
compensation assistance.) Examples of ineligible activities include, but are not
limited to, counseling/therapy, community/prevention education, prosecution
activities, and restitution collection. Funds in 2005 were awarded to 56 system-
based agencies, 3 county juvenile probation offices and 2 community-based
agencies in the 67 counties.816

Victims of Juvenile Offenders (VOJO). This supports the same activities as RASA but is
directed to victims of juvenile offenders.

VOJO provides financial support, training, and technical assistance to county-based

victim service agencies to promote the rights and services to victims in the juvenile
justice system. VOJO is funded by an Annual State Appropriation. County
allocations are determined by a formula using the county’s juvenile population
(75%) and juvenile dispositions at (25%). Eligible activities support the the full
range of rights, services, and responsibilities within the juvenile justice system
outlined in the Crime Victims Act. (e.g. notification, accompaniment, assistance
with victim impact statements and crime victims compensation assistance.)
Examples of ineligible activities include, but are not limited to, counseling/therapy,
community/prevention education, prosecution activities, victim/offender mediation
programs, and restitution collection. Funds in 2014/15 were awarded to 42 system-
based agencies, 11 county juvenile probation offices and 16 community-
based agencies in 65 counties.817

Staff from Joint State Government Commission questioned staff from various offices of
victims’ witness advocates to get their opinion about the cost of these services, specifically how
they were reflected in homicide cases rather than other crimes with which the office dealt. As a
follow up to the original questions, they were then asked if the costs were “more, less or about the
same as those services that you provide to victims of other crimes.” The responses could be
categorized into two distinct approaches of calculating or envisioning service cost.

816
Pa. Comm’n on Crime & Delinquency, supra note 807.
817
Id.

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 The first type of responses indicated that costs for services provided for family members
and loved ones of murder victims were greater than the services that the office provided for other
types of crime. The responses frequently indicated that there would naturally be more costs
because there was more of everything.818 One advocate responded:

[W]e are often engaged with family members of homicides much longer than other
crimes. It is probably fair to say that other crimes, such as robbery – they are short
term. Then the next level would be sexual assault and victims of other types of
crime who are engaged in the system such as juvenile justice system. But with the
homicides, the investigation takes longer and the court case takes longer (both to
prepare and when they are actually in a trial). The death penalty is even longer
because they will have hearings around the death penalty right after the sentencing
and it will be much more intense. It is long days and a lot of staff assigned to it. I
would guess those cases can often cost 3 to 4 times as much staff time as other types
of crime.

In the second category of responses, the advocates indicated that they believed that the
services cost the same amount as they would in response to the victim of a different sort of crime,
because they viewed the fixed operating costs of the office and the fixed costs of the salaries to be
the same, regardless of the service provided. In one office, an advocate stated “we provide those
services to every victim if it is something that they need and it is at no cost to them. It is sort of
built into our costs. So – the cost is the same.” Many providers stated that attributing cost by type
of crime was difficult, as the following quote demonstrates: “That’s hard to say because some
people want nothing to do with the court system–but other people are very needy–I think they even
each other out cost-wise. Somebody who had their house broken into could be more needy than a
homicide victim. I can’t break it out cost-wise.” And from an advocate in a different county, “For
my office, it doesn’t cost any more than services that you provide to anybody. You could look at
it that way, but cost is a hard thing to measure because I am grant funded. I can only give my staff
comp time–I can’t pay them more if they stay extra. I don’t spend any more money because I
don’t have it to spend.”

Mental Retardation

The question that serves as the basis of the study of intellectual disability in the
administration of the death penalty in our Commonwealth is:

Whether, in light of the Supreme Court ruling in Atkins v. Virginia, there are
adequate procedural protections in place to assure that people with mental
retardation are not in fact being sentenced to death and executed;819

818
Time spent in one-on-one and family contact, court hearings, accompaniments, appeals, etc..
819
Pa. S. Res. No. 6 (Sess. of 2011); appdx A, infra p. 220.

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 In 2002, U.S. Supreme Court ruled that death is an unconstitutionally excessive punishment
for “a mentally retarded offender.”820 As it did for insanity, “the task of developing appropriate
ways to enforce this constitutional restriction” was left to the states.821 Subsequently,
Pennsylvania’s Supreme Court specified that intellectual disability is to be established under either
a classification system from American Psychiatric Association or American Association of Mental
Retardation,822 both of which shared “three core components: (1) substantial intellectual
impairment; (2) impact of that impairment on the everyday life of the individual (i.e., substantial
deficits in adaptive functioning); and (3) appearance of the disability prior to age 18.”823 At the
time, American Psychiatric Association used an intelligence quotient (IQ) score “of approximately
70 or below” to signify the “subaverage intellectual functioning” for this diagnosis. 824 American
Association of Mental Retardation took into account a “standard error of measurement . . .
estimated to be three to five points”.825 Two standard deviations below the mean IQ scores would
place this in the range of 65 to 75 when applying a standard error of measurement. 826 Because
“the interaction between limited intellectual functioning and deficiencies in adaptive skills . . .
establish mental retardation”, a “cutoff” for the IQ score was not adopted.827 The preponderant
evidence from this early ruling in Pennsylvania, placed the appellee’s IQ “between 70 and 75, or
below, placing him in the mild mental retardation range.”828

To reply to the resolution’s factual inquiry on this subject, the subcommittee on

procedure829 sought readily available data, which was the IQ scores supplied by Department of
Corrections for the inmates on death row and those serving life imprisonment for first-degree
murder. Notwithstanding a recognition of the standard error of measurement, some states
statutorily prescribed a score for IQ and the Commonwealth would argue that the intellectual
disability range is below 70.830 For these reasons, data obtained from Department of Corrections
was initially analyzed using a score of 70 or below as an imperfect proxy for intellectual disability.
Since IQ is relatively static, whether the scores closely replicated scores before age 18 are unknown
but presumed. Information on substantially deficient adaptive functioning also remains unknown,
which is why using a score for IQ made this an imperfect effort. When an IQ score of 70 or below
was used to classify an inmate for possible intellectual disability, “4.1% of the death row inmates”
compared to 8.7% of those serving life imprisonment for first-degree murder831 fell within that
classification.

820
Atkins v. Va., 326 U.S. 304, 321 (2002).
821
Id. at 317 n.22.
822
This is now Am. Ass’n on Intellectual & Dev. Disabilities. Aaidd, About Us, https://aaidd.org/about-
aaidd#.Wx_VCu4vyUk (2018).
823
Commw. v. Miller, 888 A.2d 624, 627, 631 (Pa. 2005).
824
Id. at 629.
825
Id. at 630.
826
Id.
827
Id. at 631.
828
Id. at 632.
829
The data was collected and analyzed for the subcomm. by Dr. Gary Zajac & Laura Winger from The Pa. State U.
Just. Cen. for Research. Appdx. H, infra pp. 243-53.
830
E.g., Commw. v. Sanchez, 36 A.3d 24, 51 (Pa. 2011).
831
Appdx. H, infra p. 245.

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 Although it is partially reassuring that the percentage of potentially intellectually disabled
inmates832 was lower for condemnees than for those imprisoned for life, judicial rulings after this
analysis was done subsequently clarified that a score of 70 or below for this possible classification
is too low. Nevertheless, the fact that as many as 4% of the death row inmates should not have
been sentenced to death is concerning if they were in fact intellectually disabled retarded with the
application of the other two components of the diagnosis.833

Approximately six months after this analysis, Florida’s rigid rule that foreclosed “further
exploration of intellectual disability” unless one could “show an IQ test score of 70 or below” was
ruled unconstitutional by U.S. Supreme Court.834 This is because “clinical definitions . . . take into
account that IQ scores represent a range, not a fixed number, . . . [a]nd those clinical definitions
have long included the” standard error of measurement.835 A little over a year after that ruling by
U.S. Supreme Court, Pennsylvania’s Supreme Court reiterated that its earlier ruling in 2005
“allows an IQ score of 75 or below” and declined “the Commonwealth’s request to prohibit
individuals with a prior IQ score of 76 or above from asserting intellectual disability.”836 Two
days after Pennsylvania Supreme Court reiterated its support of the higher score, U.S. Supreme
Court accounted for the same margin of error by characterizing a “reported IQ test result of 75” as
“squarely in the range of potential intellectual disability” saying that the conclusion that
subaverage intelligence could not be demonstrated by a “reported score IQ of 75 . . . reflected an
unreasonable determination of the facts.”837

With further clarification from these judicial rulings, the same data was re-analyzed by The
Pennsylvania State University researchers using the IQ score of 75 instead of 70.838 The higher
score more than tripled the percentage of death row inmates from 4.1% to 14% and almost doubled
the percentage for those serving life imprisonment for murder of the first degree from 8.7% to
15%.839 The troubling revelation from this inquiry is that since as many as 14% of the
Commonwealth’s condemnees could be constitutionally ineligible for this sentence,840 the
subcommittee on procedure could not conclude that procedural protections are adequate to ensure
that people with intellectual disability are not being nor have been sentenced to death. As a
comparison with the general population, it appears that an IQ score of 75 or below represents the
bottom 5% of the population841 but is approximately triple that percentage for inmates on death
row or serving life imprisonment for murder of the first degree.

832
The scores can only indicate potential mental retardation because the other two diagnostic criteria of early onset &
deficient, adaptive functioning were neither available nor obtained.
833
Adaptive deficits and onset prior to age 18.
834
Hall v. Fla., 134 S.Ct. 1986, 1990, 1992 (2014).
835
Id. at 1999.
836
Commw. v. Bracey, 117 A.3d 270, 283, 287 (Pa. 2015), abrogated on other grounds, Moore v. Tex., 137 S.Ct. 1039
(2016). The other grounds are factors placing “undue emphasis on adaptive strengths”, which are superseded
standards. Moore, 137 S.Ct. at 1051.n.9-1053. These superseded and now disallowed standards had been
discretionary in Pa..
837
Brumfield v. Cain, 135 S.Ct. 2269, 2278 (U.S. 2015).
838
Appdx. H, infra pp. 245-46.
839
Id. at 246.
840
The most recent data obtained places almost 13% of the death row prisoners and 12% inmates serving life
imprisonment for murder of the first degree at an IQ score of 75 or below. Bucklen, supra note 11 (Apr. 26, 2018).
841
Edublox Online Tutor, IQ Test Scores: The Basics of IQ Score Interpretation, https://www.edubloxtutor.com/iq-
test-scores/ (last visited Apr. 15, 2018).

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 The earliest cases involving this issue were brought on behalf of prisoners already
sentenced to death, who raised the issue by filing petitions under the Post Conviction Relief Act.842
As usual, the hearings held in these matters were conducted before a judge sitting alone. In
Commonwealth v. Bracey, Pennsylvania Supreme Court held that an appellant is not entitled to
have a jury decide a claim of intellectual disability “presented in collateral proceedings.”843 To
the surprise of many, Pennsylvania Supreme Court subsequently approved the procedure of a trial
court submitting the intellectual disability “issue to the jury for a penalty phase decision” instead
of having the trial court determine the claims (unless the parties “agree to waive a jury and ask the
trial court to decide the . . . claim”).844 The Court also approved “the placement of the burden of
proof on the defendant by a preponderance of evidence”845 and indicated that the jury had to agree
unanimously846 that the defendant had successfully borne that burden as to each of the three factors.
The Court further indicated that a defendant whose claim of intellectual disability “is rejected by
the jury still has the right to present or argue the same competent evidence in mitigation at the
selection phase of the trial, in conjunction with other relevant evidence of mitigation (including
other evidence bearing on his mental state and condition independent of mental retardation).”847

This subsequent ruling that judicially established the procedure for a trial court to submit
the intellectual disability issue to the jury went beyond what was necessary to rule on that case.
The request for a determination of intellectual disability was not made until “the morning of the
first day of trial, before jury selection began.”848 Since the judge was unable to provide the
Commonwealth with expert reports until sometime during jury selection, the Commonwealth did
not have sufficient time for review of the reports by its own experts.849 Ordinarily, the issue of a
defendant’s intellectual disability would have been raised as soon as possible to avoid having to
face a capital trial. A judge would likely then hold a hearing pre-trial and decide the issue as early
as possible in the process to avoid the additional costs and additional time required for a capital
trial where the defendant prevailed.

Legislation that would have effectively reversed this procedure to determine intellectual
disability by moving it from the post- to pre-trial phase and having the judge determine it was not
enacted.850 Under that legislation, the defendant who lost before the judge still was free to submit
the evidence to a jury at the penalty phase hearing as a mitigating circumstance. Approximately
two years after Pennsylvania Supreme Court established via opinion the procedures for seeking to
preclude imposition of a sentence of death by reason of the defendant’s intellectual disability, it
adopted those judicially announced procedures as Rules of Criminal Procedure.851

842
42 Pa.C.S. ch. 95 subch. B.
843
986 A.2d 128, 130, 146 (Pa. 2009).
844
Commw. v. Sanchez, 36 A.3d 24, 64, 67 (Pa. 2011).
845
Id. at 68, 76.
846
Id. at 77.
847
Id. at 79.
848
Id. at 51.
849
Id.
850
Pa. S. Bill No. 937 (Sess. of 2011).
851
Pa. R. Crim. P. ch. 8, pt. B.

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 Appendix G shows the procedural options in each state along with the decisional
authority.852

Recommendation
The subcommittee on procedure recommends that the adopted Rules of Criminal Procedure
be amended to allow the judge to determine intellectual disability at the pre-trial phase instead of
the jury determining it at the post-trial phase. This change would resolve the issue early in the
process; if the defendant is determined to be intellectually disabled pre-trial, it would save a large
amount of money and many days of court time because the case would not proceed capitally. A
decision on this issue made pre-trial by a judge is likely to be more fair and just than a decision
made on this issue by a jury that has just found the defendant guilty of first-degree murder. It
would put this important decision in the hands of a qualified, experienced judge rather than leaving
it to a group of people who may never have been exposed to anything like the complicated issues
involved in determining intellectual disability. Civil cases often have juries deciding cases that
are factually very complicated, but these cases never involve the question of whether one of the
parties to the suit is qualified for execution. Jury verdicts in civil cases are usually simplified by
the judge via submission of a series of interrogatories to the jury, but this is not the practice in
criminal cases. Moreover, judges’ determinations of intellectual disability would be detailed in
writing explaining why the determination was made and be subject to appeal by either side. A
jury decision cannot be questioned this way.853

Mental Illness

The question that serves as the basis of the study of mental illness in the administration of
the death penalty in our Commonwealth is:

Whether persons suffering from mental illness constitute a disproportionate number

of those on death row, what criteria should be used in judging the level of mental
illness involved and whether people with mental illness who are convicted of
murder should be executed;854

852
Infra pp. 239-41.
853
For an example of the detailed considerations that go into such a decision, read the opinion: Commw. v. Williams,
61 A.3d 979 (Pa. 2013).
854
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 220.

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Whether persons suffering from mental illness constitute a disproportionate number of those
on death row.

This inquiry does not specify with whom the number of inmates on death row should be
compared: the general population, those inmates serving life imprisonment without parole
sentences or some other group. To reply to this factual inquiry, the subcommittee on policy sought
readily available data,855 which was the mental health status supplied by Department of
Corrections for the inmates on death row and those serving life imprisonment for first-degree
murder.856 Inmates’ mental health was assessed and classified into four categories, two of which
reflected either no current mental health issues or need to be medicated and two of which reflected
a current need for active treatment or close psychiatric monitoring for serious mental health issues.
Mental health is more dynamic than intelligence so that this data and classification would be
expected to be more variable than scores for IQ. In making its assessments, it is understood that
Department of Corrections used Diagnostic and Statistical Manual of Mental Disorders, a
“handbook used by health care professionals in the United States . . . as the authoritative guide to
the diagnosis of mental disorders” that “has been periodically reviewed and revised since it was
first published in 1952.”857

In Ford v. Wainwright, U.S. Supreme Court ruled that a sentence of death may not be
carried out “upon a prisoner who is insane.”858 The data from Department of Corrections is too
temporal to determine how many inmates are insane; however, these two groups were selected to
try to reply to the inquiry about the disproportionality of mental illness on death row. In 2013,
Department of Corrections classified almost 10% of those on death row with an active mental
disorder and the proportion was double that for those serving life imprisonment for first-degree
murder.859 Due to the diagnostic categories used, at least for 2013, the percentages might be
understated.860 Another big difference in this data then is that more than 50% of death row inmates
had a recent (albeit not current) need for mental health treatment while approximately 30% of the
prisoners serving a life sentence for first-degree murder had such a need.861 When this data was
updated in 2018, the department classified approximately 25% of the inmates on death row and a
similar albeit slightly higher percentage of those serving life imprisonment with an active mental
disorder.862 When checked in 2018, the recent (albeit not current) need for mental health treatment,

855
The data was collected and analyzed for the subcomm. by Dr. Gary Zajac & Laura Winger from The Pa. State U.
Just. Ctr. for Research. Appdx. H, infra pp. 243-53.
856
Id.
857
Am. Psychiatric Ass’n, DSM–5: Frequently Asked Questions,
https://www.psychiatry.org/psychiatrists/practice/dsm/feedback-and-questions/frequently-asked-questions (2018).
858
Ford v. Wainwright, 477 U.S. 399, 409-10 (1986).
859
Appdx. H, infra p. 246.
860
Pa. J. State Gov’t Comm’n, Mental Health Servs. & the Crim. Just. Sys. in Pa. 4, 35 (2014),
http://jsg.legis.state.pa.us/resources/documents/ftp/publications/2014-370-
Final%20HR226%20Mental%20Health%20Services%20Report%20May%2016%202014%20updated%207.30.15%
204pm.pdf.
861
Appdx. H, infra p. 246.
862
Buklen, supra note 11 (Apr. 26, 2018). The difference between the percentages from 2013 to 2018 is that
approximately 150% higher for the inmates on death row are now classified with an active mental disorder compared
to five yrs. earlier & approximately 25% higher for those serving life imprisonment for first-degree murder are now
classified with an active mental disorder than five years earlier.

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was below half for death row inmates and almost the same 30% for the life prisoners for first-
degree murder.863

“This begs the question of how the inmates in these two groups compare to the overall
human population with respect to prevalence of mental disorder. It is reasonably well established
that prison inmates in general have higher levels of many mental disorders than is the case for the
general human population (Fazel and Danesh, 2002).”864 As of 2016, 4.2% of U.S. adults in the
U.S. were seriously mentally ill and 18.3% had some type of mental illness.865 The subcommittee
on policy agreed that the proportion of inmates on death row suffering from some type of mental
illness is likely much greater than in the general population. There are various studies on this
matter, but one from approximately a dozen years ago estimated that “more than half of all prison
and jail inmates had a mental health problem”, defined as “a recent history or symptoms of a
mental health problem”, compared to “[a]n estimated 11% of the U.S. population” of adults in
general.866

Among prisoners sentenced to life or death, there was little variation in sentence
length by mental health status . . . . About 8% of State prisoners who had a mental
health problem and 9% of those without were sentenced to life or death. Among
Federal prisoners, 3% of both those who had a mental health problem and those
without were sentenced to life or death.867

In 2015, Pennlive estimated that nearly a third of Pennsylvania’s inmates were mentally ill
“on an average day”, and a third of those seriously.868

Assuming that the comparable group was meant to be those serving life imprisonment
without parole sentences, subcommittee members discussed the results of a study on this issue that
was conducted for the subcommittee, which was based exclusively on data received from
Department of Corrections comprised of the numbers of inmates who had been assigned to groups
based upon their perceived degree of mental illness. Before, during and after the study was
concluded, the department’s diagnoses, assignment and treatment of its mentally ill inmates was
challenged by two entities as under-representative of the true number of inmates suffering from
serious mental illness.869 The department ultimately settled the lawsuit, agreeing to address its
problematic handling of inmates with mental illness, making the data used in the study too

863
Id. (June 13, 2018).
864
Appdx. H, infra p. 247.
865
Nat’l Inst. of Mental Health, Mental Illness, http://www.nimh.nih.gov/health/statistics/prevalence/serious-mental-
illness-smi-among-us-adults.shtml (last updated 2017). Citing a study from 2004, Ctrs. for Disease Control &
Prevention publishes an estimated 25% of adult Ams. “reported having a mental illness within the previous” yr.. Ctrs.
for Disease Control & Prevention, CDC Mental Illness Surveillance,
https://www.cdc.gov/mentalhealthsurveillance/faqs.html (last reviewed 2013).
866
Bureau of Just. Statistics, U.S. Dep’t of Just., Mental Health Problems of Prison & Jail Inmates 1, 3 (2006),
available at https://www.bjs.gov/content/pub/pdf/mhppji.pdf.
867
Id. at 8. These findings were based upon a survey of inmates. Id. at 11.
868
Daniel Simmons-Ritchie, Why are so many mentally ill people imprisoned in Pa.?, Pennlive, July 21, 2015,
http://www.pennlive.com/midstate/index.ssf/2015/07/post_764.html#incart_m-rpt-2.
869
U.S. Dep’t of Just. investigated the “prison system’s mental health services for seriously mentally ill inmates”
beginning in 2013. Pa. Dep’t of Corrections, News Release (Feb. 24, 2014).

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questionable to be reliable.870 After finding that Department of Corrections violated prisoners’
constitutional and statutory rights by subjecting those with serious mental illness and intellectual
disability to solitary confinement, U.S. Department of Justice’s Civil Rights Division closed its
investigation based upon improvements and planned reform.871 Additionally, mental health
problems can vary for each individual over time. For the reasons stated above, the subcommittee
cannot answer this part of the question.

What criteria should be used in judging the level of mental illness involved?

Because the question also requires a certain level of psychiatric expertise to answer, the
subcommittee on policy cannot authoritatively comment on the requested criteria. However, the
subcommittee determined that the current standard that is commonly used by practitioners to
diagnose the level of mental illness is Diagnostic and Statistical Manual of Mental Disorders
(DSM—5) from American Psychiatric Association.872 This standard is one that the American Bar
Association has included in a resolution it produced on the issue of determining the level of mental
illness of criminal defendants and inmates. The American Bar Association’s resolution also raises
a related question regarding of the application of the death penalty to defendants whose mental
illness reduces their culpability for the crime. They pointed to the reasoning of the Supreme Court
in its line of juvenile life imprisonment without parole cases, in which the justices determined that
the underdevelopment of the juvenile brain renders the juveniles less culpable for crimes they have
committed, specifically murder. Subcommittee members concluded that the requirement that the
death penalty be reserved for the worst of the worst cases should operate as a type of exemption
for mentally ill defendants, whose illness prevents them from being among the most culpable
defendants and deserving of the death penalty. The subcommittee also noted that currently,
“extreme mental disability” can be raised as a mitigating circumstance in capital cases.

Whether people with mental illness who are convicted of murder should be executed.

The subcommittee on policy noted that the use of the word, should, makes this a policy
question, albeit one that has been partially judicially resolved by U.S. Supreme Court’s ruling that

870
Disability Rights Network v. Wetzel (M.D.Pa. 2015), Settlement Agreement & Gen. Release,
http://www.cor.pa.gov/About%20Us/Newsroom/Documents/2015%20Press%20Releases/DOC-
DRN%20Agreement%2001-05-2015.pdf. This settlement agreed on screening & dev. of an individual recovery plan
@ Diagnostic & Classification Cen. reception, hous. of inmates w/serious mental illness, residential treatment units,
secure residential treatment units, diversionary treatment units, disciplinary process for inmates w/serious mental
illness, placement of inmates w/serious mental illness in disciplinary or admin. custody status during the transition
period, evaluation of inmates who have not been identified as having serious mental illness in a housed in a restricted
hous. unit in either admin. or disciplinary custody status, suicide prevention & use of psychiatric observation cells,
use of force & restraints, training, staffing, designation of a tech. compliance consultant, & independent assessment
& reporting. Compliance Rep. 1 (2016) is available at
http://www.cor.pa.gov/About%20Us/Newsroom/Documents/2016%20Press%20Releases/DRN%20of%20PA%20vs
%20John%20Wetzel%20-%20Compliance%20Report%201%20-%20%20January%2025,%202016.pdf.
871
Letter from Civ. Rights Div., U.S. Dep’t of Just., to Governor Wolf (Apr. 14, 2016), available at
http://www.cor.pa.gov/General%20Information/Documents/Mental%20Health%20Services/DOJ%20Letter%20to%
20Governor%20Wolf%20April%2014%202016%20-%20closing%20DOC%20investigation.pdf.
872
This “authoritative volume . . . defines and classifies mental disorders in order to improve
diagnoses, treatment, and research.” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders
(DSM–5), https://www.psychiatry.org/psychiatrists/practice/dsm (2018).

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a sentence of death may not be carried out “upon a prisoner who is insane.”873 A defendant who
was legally insane at the time of the crime may use that as a valid defense to the charge. 874 If the
defendant was not legally insane at the time of the crime but becomes unable “to comprehend the
nature of the penalty” and “the reasons for” it “or its implications”, he could not then be
executed.875 In their study detailed in this report under the section on bias and unfairness, The
Pennsylvania State University researchers found that in 35 cases in which defendants presented
evidence of a serious mental illness at trial, the jury accepted only 11 of these arguments. But
many capital cases have been overturned on appeal for inadequate representation due to defense
counsel not raising mental health issues at trial.

Mentally disabled and juveniles. “[I]n conjunction with the American Psychiatric
Association, American Psychological Association and National Alliance on Mental Illness”,
American Bar Association “adopted a policy opposing the death penalty for individuals with
severe mental disorders or disabilities present at the time a crime is committed”. 876 This position
must be seen in light of key U.S. Supreme Court rulings defining categories of persons who are
constitutionally exempt from the death penalty. Thus, in Atkins v. Virginia,877 the Court forbid
condemning the intellectually disabled, and, in Roper v. Simmons,878 the Court similarly exempted
juveniles under the age of 18.

In Atkins, the U.S. Supreme Court held that the Eighth Amendment precludes the execution
of the “intellectually disabled,” formerly referred to as the “mentally retarded.” The Court
reasoned that the application of the death penalty to such defendants fails to advance the penalty’s
rational purposes. Unless the imposition of the death penalty measurably contributes to the valid
goals of retribution or deterrence, “it ‘is nothing more than the purposeless and needless imposition
of pain and suffering,’ and hence an unconstitutional punishment.”879 As explained below, mental
disability reduces the murderer’s degree of guilt.

[C]linical definitions of mental retardation require not only subaverage intellectual

functioning, but also significant limitations in adaptive skills such as
communication, self-care, and self-direction that become manifest before age 18.
Mentally retarded persons frequently know the difference between right and wrong
and are competent to stand trial. Because of their impairments, however, by
definition they have diminished capacities to understand and process information,
to communicate, to abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses, and to understand the reactions of others.
There is no evidence that they are more likely to engage in criminal conduct than

873
Ford v. Wainwright, 477 U.S. 399, 409-10 (1986).
874
18 Pa.C.S. § 315. To be excused for the crime due to legal insanity, it would mean that at the time of the offense,
the defendant did not “know the nature and quality of the act he was doing or, if the actor did know the quality of the
act, that he did not know that what he was doing was wrong.” Id.
875
Ford, 477 U.S. at 417.
876
Am. Bar Ass’n, Severe Mental Illness & the Death Penalty 1 (2016), available at
https://www.americanbar.org/content/dam/aba/images/crsj/DPDPRP/SevereMentalIllnessandtheDeathPenalty_Whit
ePaper.pdf. Mental Health Am. subsequently adopted a similar policy. Id.
877
536 U.S. 304 (2002).
878
543 U.S. 551 (2005).
879
Atkins, 536 U.S. at 319.

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 others, but there is abundant evidence that they often act on impulse rather than a
premeditated plan, and that in group settings they are followers rather than leaders.
Their deficiencies do not warrant an exemption from criminal sanctions, but they
do diminish their personal culpability.880

“With respect to retribution,” the Court has “consistently confined the imposition of the
death penalty to a narrow category of the most serious crimes.”881

If the culpability of the average murderer is insufficient to justify the most extreme
sanction available to the State, the lesser culpability of the mentally retarded
offender surely does not merit that form of retribution. Thus, pursuant to our
narrowing jurisprudence, which seeks to ensure that only the most deserving of
execution are put to death, an exclusion for the mentally retarded is appropriate.882

With respect to deterrence, the Court observed that this purpose assumes that the would-
be murderer is capable of planning his actions in advance, but the mentally disabled largely lack
this capability.

The theory of deterrence in capital sentencing is predicated upon the notion that the
increased severity of the punishment will inhibit criminal actors from carrying out
murderous conduct. Yet it is the same cognitive and behavioral impairments that
make these defendants less morally culpable—for example, the diminished ability
to understand and process information, to learn from experience, to engage in
logical reasoning, or to control impulses—that also make it less likely that they can
process the information of the possibility of execution as a penalty and, as a result,
control their conduct based upon that information.883

The Court added that exempting the intellectually disabled will not diminish deterrence for
those of normal intelligence because they “are unprotected by the exemption and will continue to
face the threat of execution.”884 The Court concluded that maintaining death penalty eligibility for
the retarded, therefore, does not advance the aim of deterrence.885

The Court further noted that the intellectually disabled are impaired in their ability to resist
inducements to make a false confession and to assist in their own defense, to give testimony in
court, and to express remorse.886 For these reasons, they are at greater risk for wrongful
execution.887 Along with the reasons based on the purposes of the death penalty, the Court
concluded that a constitutional rule, deeming the mentally disabled as unsuited for the death
penalty, is justified.888

880
Id. at 318.
881
Id. at 319.
882
Id.
883
Id. at 320.
884
Id.
885
Id.
886
Id. at 320-21.
887
Id. at 321.
888
Id. at 321.

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 Decided three years after Atkins, Roper v. Simmons also established a bright-line rule,
exempting juveniles under the age of 18 (when their crimes were committed) from eligibility for
the death penalty.889 In doing so, the Court extended the exemption it had already established for
persons under the age of 16 in Thompson v. Oklahoma.890 The Roper Court also emphasized “that
juvenile offenders cannot with reliability be classified among the worst offenders.” 891 The
culpability of juveniles is diminished by three factors: their natural “lack of maturity and . . .
underdeveloped sense of responsibility” with resultant “impetuous and ill-considered actions and
decisions”; their greater susceptibility to “negative influences and outside pressures, including peer
pressure”; and the fact that their character “is not as well formed as that of an adult” being “more
transitory, less fixed.”892 Therefore, juveniles are not among the worst offenders.

Using reasoning similar to Atkins, the Court argued that the diminished culpability of the
juvenile undermines the pertinence of retribution.

Whether viewed as an attempt to express the community’s moral outrage or as an

attempt to right the balance for the wrong to the victim, the case for retribution is
not as strong with a minor as with an adult. Retribution is not proportional if the
law’s most severe penalty is imposed on one whose culpability or blameworthiness
is diminished, to a substantial degree, by reason of youth and immaturity. . . . .

[T]he absence of evidence of deterrent effect is of special concern because the same
characteristics that render juveniles less culpable than adults suggest as well that
juveniles will be less susceptible to deterrence. In particular . . . ‘[t]he likelihood
that the teenage offender has made the kind of cost-benefit analysis that attaches
any weight to the possibility of execution is so remote as to be virtually
nonexistent.’ To the extent the juvenile death penalty might have residual deterrent
effect, it is worth noting that the punishment of life imprisonment without the
possibility of parole is itself a severe sanction, in particular for a young person.893

Severe mental illness. Although the Court has never held that severe mental illness renders
a death penalty condemnee ineligible for the death penalty,894 parallels exist between intellectual
disability and the diminished capacity of juveniles and the effects of severe mental illnesses:

889
543 U.S. at 575, 578.
890
487 U.S. 815, 838 (1988).
891
Roper, 543 U.S. at 569.
892
Id. at 569-70.
893
Id. at 571-72.
894
A sentence of death may not be carried out “upon a prisoner who is insane.” Ford v. Wainwright, 477 U.S. 399,
409-10 (1986). If the defendant was not legally insane at the time of the crime but becomes unable “to comprehend
the nature of the penalty” and “the reasons for” it “or its implications”, he could not then be executed. Ford, 477 U.S.
at 417. A defendant who was legally insane at the time of the crime may use that as a valid defense to the charge. 18
Pa.C.S. § 315. To be excused for the crime due to legal insanity, it would mean that at the time of the offense, the
defendant did not “know the nature and quality of the act he was doing or, if the actor did know the quality of the act,
that he did not know that what he was doing was wrong.” Id.

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 [A]lthough the Court has construed the Eighth Amendment to protect from
execution teenagers, mentally retarded offenders, and persons deemed “insane” at
the time of their execution, the Eighth Amendment currently does not protect all or
even a substantial majority of severely mentally ill capital defendants. Yet, such
severely mentally ill prisoners, those suffering from psychosis or schizophrenia,
possess many of the same attributes, including diminished culpability and
blameworthiness, as others who have been exempted from the death penalty. For
example, schizophrenia is defined by the National Institute of Mental Health as “a
chronic, severe, and disabling brain disorder.” Individuals diagnosed with
schizophrenia suffer from hallucinations, delusions, thought disorders, movement
disorders, with hearing voices being the most common hallucination. Moreover,
cognitive symptoms that can accompany this disability include a “poor . . . ability
to understand information and use it to make decisions,” “[t]rouble focusing or
paying attention,” and “[p]roblems with . . . the ability to use information
immediately after learning it.” Often individuals with schizophrenia display a lack
of understanding of the consequence of their actions, particularly when the
individual suffers from delusions or hallucinations, and a lack or limited control of
impulses, which can arise from the limits the illness imposes on the individual's
ability to process and use information or to control behavior, particularly behavior
resulting from delusions caused by their mental illness. These attributes are not
unlike the limited judgment, reasoning and impulse control of mentally retarded
and juvenile offenders. Moreover, these qualities provide strong evidence of
diminished culpability or blameworthiness, which should place those who suffer
these illnesses outside the category of the worst of the worst.

Further, the defendant who suffers from severe mental illness may be at greater risk
of an unfair trial or inadequate defense. For example, a jury may very well view
the defendant's mental illness as an aggravating factor, which could increase the
risk that a jury would impose an excessive or inappropriate sentence. Likewise, a
defendant who suffers from severe mental illness may lack or have a limited ability
to assist in his defense, make rational legal decisions, or adequately advise his
lawyer about meaningful defenses. Particularly during the capital sentencing phase
of trial, a severely mentally ill defendant may be unable to meaningfully assist his
lawyer in developing and presenting mitigating evidence to the jury. These same
concerns also plagued the sentencing process of juvenile and mentally retarded
offenders.895

Death penalty defendants who are competent to stand trial but become “insane” thereafter
are exempt from execution, as will be further discussed below.

American Bar Association Proposal to Exempt the Seriously Mentally Ill from the Death
Penalty. American Bar Association, American Psychiatric Association, American Psychological
Association, and National Alliance on Mental Illness all oppose “the death penalty for individuals

895
Lyn Entzeroth, The Challenge & Dilemma of Charting a Course to Constitutionally Protect the Severely Mentally
Ill Capital Defendant from the Death Penalty, 44 Akron L. Rev. 529, 557-59 (2011).

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with severe mental disorders or disabilities present at the time a crime is committed”.896 In 2006,
American Bar Association adopted a resolution that couples that exemption with a proposal for
defining the mental disorder’s significant impairment.897 The linchpin of the argument for
exempting the mentally ill is the analogy between their condition and that of juveniles and
especially the intellectually disabled.898 “This approach rests on the traditional understanding that
significant cognitive or volitional impairment attributable to a severe disorder or disability often
renders the death penalty disproportionate to the defendant’s culpability, even though the offender
may still be held accountable for the crime.”899

The American Bar Association’s resolution will be taken as representative of the approach
favored by those who support this exemption. It reads as follows:

RESOLVED, That the American Bar Association, without taking a position

supporting or opposing the death penalty, urges each jurisdiction that imposes
capital punishment to implement the following policies and procedures:
1. Defendants should not be executed or sentenced to death if, at the time of the
offense, they had significant limitations in both their intellectual functioning and
adaptive behavior, as expressed in conceptual, social, and practical adaptive skills,
resulting from mental retardation, dementia, or a traumatic brain injury.
2. Defendants should not be executed or sentenced to death if, at the time of the
offense, they had a severe mental disorder or disability that significantly impaired
their capacity (a) to appreciate the nature, consequences, or wrongfulness of their
conduct; (b) to exercise rational judgment in relation to conduct, or (c) to conform
their conduct to the requirements of the law. A disorder manifested primarily by
repeated criminal conduct or attributable solely to the acute effects of voluntary use
of alcohol or other drugs does not, standing alone, constitute a mental disorder or
disability for purposes of this provision.
3. Mental Disorder or Disability after Sentencing
(a) Grounds for Precluding Execution. A sentence of death should not be carried
out if the prisoner has a mental disorder or disability that significantly impairs his
or her capacity (i) to make a rational decision to forgo or terminate post-conviction
proceedings available to challenge the validity of the conviction or sentence; (ii) to
understand or communicate pertinent information, or otherwise assist counsel, in
relation to specific claims bearing on the validity of the conviction or sentence that
cannot be fairly resolved without the prisoner's participation; or (iii) to understand
the nature and purpose of the punishment, or to appreciate the reason for its
imposition in the prisoner's own case. Procedures to be followed in each of these
categories of cases are specified in (b) through (d) below.
(b) Procedure in Cases Involving Prisoners Seeking to Forgo or Terminate Post-
Conviction Proceedings. If a court finds that a prisoner under sentence of death

896
Am. Bar Ass’n, supra note 876, at 1.
897
Id., Recommendation 122A, 1 (2006),
https://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_moratorium/mental_illness_poli
cies.authcheckdam.pdf.
898
In Atkins v. Va., the Court uses the term, mentally retarded, for those who suffer from abnormally low intelligence.
The term currently used by mental health professionals is intellectually disabled.
899
Am. Bar Ass’n, supra note 897, at 10.

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 who wishes to forgo or terminate post-conviction proceedings has a mental disorder
or disability that significantly impairs his or her capacity to make a rational
decision, the court should permit a next friend acting on the prisoner's behalf to
initiate or pursue available remedies to set aside the conviction or death sentence.
(c) Procedure in Cases Involving Prisoners Unable to Assist Counsel in Post-
Conviction Proceedings. If a court finds at any time that a prisoner under sentence
of death has a mental disorder or disability that significantly impairs his or her
capacity to understand or communicate pertinent information, or otherwise to assist
counsel, in connection with post-conviction proceedings, and that the prisoner's
participation is necessary for a fair resolution of specific claims bearing on the
validity of the conviction or death sentence, the court should suspend the
proceedings. If the court finds that there is no significant likelihood of restoring the
prisoner's capacity to participate in post-conviction proceedings in the foreseeable
future, it should reduce the prisoner's sentence to the sentence imposed in capital
cases when execution is not an option.
(d) Procedure in Cases Involving Prisoners Unable to Understand the Punishment
or its Purpose. If, after challenges to the validity of the conviction and death
sentence have been exhausted and execution has been scheduled, a court finds that
a prisoner has a mental disorder or disability that significantly impairs his or her
capacity to understand the nature and purpose of the punishment, or to appreciate
the reason for its imposition in the prisoner's own case, the sentence of death should
be reduced to the sentence imposed in capital cases when execution is not an
option.900

A report was published with these recommendations.901 The report points out that the
exemption requires a “severe” disorder or disability, such as

schizophrenia and other psychotic disorders, mania, major depressive disorder, and
dissociative disorders — with schizophrenia being by far the most common
disorder seen in capital defendants. In their acute state, all of these disorders are
typically associated with delusions (fixed, clearly false beliefs), hallucinations
(clearly erroneous perceptions of reality), extremely disorganized thinking, or very
significant disruption of consciousness, memory, and perception of the
environment.902

The disorder must “significantly impair cognitive or volitional functioning at the time of
the offense.”903 Unlike mental disability, the exemption should apply on a case-by-case basis,
“because the symptoms of these disorders are much more variable than those associated with
retardation or other disabilities”.904

900
Id. at 1-2.
901
Id. at 3-18.
902
Id. at 6.
903
Id. at 7.
904
Id.

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 The report explains the carve-out for offenses due “‘solely to the acute effects of alcohol
or other drugs.’”905 Voluntary intoxication may be taken into account to reduce the grade of the
offense or in mitigation of a potential capital sentence.

However, in light of the wide variability in the effects of alcohol and other drugs
on mental and emotional functioning, voluntary intoxication alone does not warrant
an automatic exclusion from the death penalty. At the same time, this
recommendation is not meant to prevent exemption from the death penalty for those
offenders whose substance abuse has caused organic brain disorders or who have
other serious disorders that, in combination with the acute effects of substance
abuse, significantly impaired appreciation or control at the time of the offense.906

The report adds that the proposal contemplates a categorical exclusion for defendants
whose impairment meets the description included therein.907 The jury may exclude defendants
with less severe impairments through mitigation.908

“Numerous studies document” that juries harbor negative attitudes toward the mentally ill
and that they are prone to treating mental illness as an aggravating rather than a mitigating factor,
partly because they erroneously view mentally ill defendants as more dangerous than other
defendants.909 The American Bar Association recommendation would “ensure that . . . the most
severe types of mental disorder” are treated as a disability and could only be considered as a
mitigating circumstance when they are not an exemption.910

Defenses based on mental illness. Pennsylvania law does not categorically exempt the
severely mentally ill from the death penalty, but there are several possible grounds whereby a
murder defendant can respond to a death charge by claiming that he or she is suffering from a
mental illness: the insanity defense, a defense of guilty but mentally ill (GBMI), a defense of
diminished capacity, and mitigation. Despite these defenses, Pennsylvania Supreme Court Justice
Debra Todd’s concurring opinion noted the similarities between the severely mentally ill and the
categories of persons recently exempted under the Eighth Amendment and called on the General
Assembly to reexamine this issue.911 When Connecticut still had capital punishment, it exempted
the severely mentally ill from the death penalty with the statutory test that “the defendant's mental
capacity was significantly impaired or the defendant's ability to conform the defendant's conduct
to the requirements of law was significantly impaired but not so impaired in either case as to
constitute a defense to prosecution[.]”912

905
Id. at 9.
906
Id. at 9-10.
907
Id. at 10.
908
Id. at 10-11.
909
Christopher Slobogin, Mental Disorder as an Exemption from the Death Penalty: The ABA-IRR Task Force
Recommendations, 54 Cath. U. L. Rev. 1133, 1150-51 (2005).
910
Id. at 1150-52.
911
Commw v. Baumhammers, 960 A.2d 59, 102-08 (Pa. 2008).
912
Former Conn. Gen. Stat. § 53a-46a(3).

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 The Insanity Defense and Guilty but Mentally Ill. In Pennsylvania, the statutory
provisions for the insanity defense913 and for a verdict of guilty but mentally ill914 may apply in
some cases to exempt a severely mentally ill defendant from the death penalty. The provision
regarding the insanity defense reads as follows:

§ 315. Insanity.
(a) General rule.--The mental soundness of an actor engaged in conduct
charged to constitute an offense shall only be a defense to the charged offense when
the actor proves by a preponderance of evidence that the actor was legally insane
at the time of the commission of the offense.
(b) Definition.--For purposes of this section, the phrase "legally insane" means
that, at the time of the commission of the offense, the actor was laboring under such
a defect of reason, from disease of the mind, as not to know the nature and quality
of the act he was doing or, if the actor did know the quality of the act, that he did
not know that what he was doing was wrong.

The provision for a verdict of “guilty but mentally ill” could apply to a defendant who is
mentally ill instead of legally insane:

§ 314. Guilty but mentally ill.

(a) General rule.--A person who timely offers a defense of insanity in
accordance with the Rules of Criminal Procedure may be found "guilty but mentally
ill" at trial if the trier of facts finds, beyond a reasonable doubt, that the person is
guilty of an offense, was mentally ill at the time of the commission of the offense
and was not legally insane at the time of the commission of the offense.
(b) Plea of guilty but mentally ill.--A person who waives his right to trial may
plead guilty but mentally ill. No plea of guilty but mentally ill may be accepted by
the trial judge until he has examined all reports prepared pursuant to the Rules of
Criminal Procedure, has held a hearing on the sole issue of the defendant's mental
illness at which either party may present evidence and is satisfied that the defendant
was mentally ill at the time of the offense to which the plea is entered. If the trial
judge refuses to accept a plea of guilty but mentally ill, the defendant shall be
permitted to withdraw his plea. A defendant whose plea is not accepted by the court
shall be entitled to a jury trial, except that if a defendant subsequently waives his
right to a jury trial, the judge who presided at the hearing on mental illness shall not
preside at the trial.
(c) Definitions.--For the purposes of this section and 42 Pa.C.S. § 9727
(relating to disposition of persons found guilty but mentally ill):
(1) "Mentally ill." One who as a result of mental disease or defect, lacks
substantial capacity either to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of the law.
(2) "Legal insanity." At the time of the commission of the act, the defendant
was laboring under such a defect of reason, from disease of the mind, as not to

913
18 Pa.C.S. § 315. The common law M'Naghten's Rule is preserved by § 314(d), which is the definition for legally
insane. Commw. v. Woodhouse, 164 A.2d 98, 103 (Pa. 1960).
914
Id. § 314.

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 know the nature and quality of the act he was doing or, if he did know it, that he
did not know he was doing what was wrong.
(d) Common law M'Naghten's Rule preserved.--Nothing in this section shall
be deemed to repeal or otherwise abrogate the common law defense of insanity
(M'Naghten's Rule) in effect in this Commonwealth on the effective date of this
section.

The verdict of GBMI applies if the defendant’s proffered insanity defense fails the
necessary M’Naghten standard but meets the definition for mentally ill. “In a capital case,
evidence tending to show a defendant was ‘guilty but mentally ill’ is properly admitted only at the
penalty phase—not the guilt phase.”915 Thus, a criminal trial where an insanity defense is proffered
has four possible verdicts: guilty, GBMI, not guilty by reason of insanity, or not guilty. 916 In a
murder trial, the jury must first consider whether defendant commotted the acts charged; if not,
the defendant is acquitted. The next issue is whether the defendant is insane. If he is, the verdict
is not guilty by reason of insanity. If not, the defendant may still be found GBMI or guilty.

The verdict of not guilty by reason of legal insanity labels a defendant as sick rather
than bad. It signifies that in the eyes of the law the person, because of mental
abnormality at the time of the crime, does not deserve to be blamed and treated as
a criminal for what he or she did. The verdict of guilty but mentally ill labels a
defendant as both bad and sick. It means that in the law's eyes that person, at the
time of the crime, was not so mentally abnormal as to be relieved from blame and
criminal punishment for what he or she did, but that the defendant was abnormal
enough to make him or her a likely candidate for special therapeutic treatment.917

Commonwealth v. Trill918 includes a thorough discussion of the background and theory of

GBMI legislation in Pennsylvania. The addition of the verdict of GBMI arose because of the
desire to include a disposition responsive to cases where the defendant is mentally ill, but his
impairment is not the complete cognitive breakdown described in § 315. The first state to adopt
GBMI was Michigan, after its Supreme Court held that automatic commitment of defendants who
were acquitted by reason of insanity was unconstitutional.919 It was feared that defendants
acquitted under an insanity excuse would be freed and endanger the community. 920 The acquittal
of John Hinckley by reason of insanity for the attempted assassination of then-President Reagan
spurred nationwide interest in the passage of GBMI legislation, including Pennsylvania’s
enactment of section 315.921 There was a public demand for a sentence for persons whose offenses
arose in part from mental illness, but were considered, nevertheless, in some degree responsible
for their actions. There was also a perception that the insanity defense was being raised too
broadly, and that offenders who should have been severely punished were walking away after a
brief and undemanding period in therapy. GBMI also seemed the appropriate disposition for
defendants who merited some punishment but also needed psychiatric treatment.

915
Commw. v. Faulkner, 595 A.2d 28, 36 (Pa. 1991).
916
Commw. v. Andre, 17 A.3d 951, 962 (Pa. Super. Ct. 2011).
917
Pa. Suggested Standard Crim. Jury Instructions 5.01A(1) (2016).
918
Commw. v. Trill, 543 A.2d 1106 (Pa. Super. Ct. 1988).
919
Id. at 1116.
920
Id. at 1116-17.
921
Id. at 1117, 1120.

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 Under the provision that governs the sentencing of persons found to be GBMI, the
defendant “may have any sentence imposed on him which may lawfully be imposed on any
defendant convicted of the same offense.”922 With respect to sentencing, the only advantage to the
defendant over a verdict of guilty is that before the sentencing, the court is directed to “hear
testimony and make a finding on the issue of whether the defendant at the time of sentencing is
severely mentally disabled and in need of treatment pursuant to the . . . ‘Mental Health Procedures
Act’.”923 If he is, the court is directed to order treatment “consistent with available resources.”924
The treatment may be provided by Departments of Corrections or Human Services or the county,
in accordance with that act.925 Since a verdict of GBMI necessarily implies that mental illness was
a partial cause in fact of the crime, it would seem that such a defendant would not be appropriate
for the death penalty, as he would not be among the worst of the worst.

Diminished capacity. “Diminished capacity is an extremely limited defense, which

requires extensive psychiatric testimony establishing a defendant suffered from one or more
mental disorders which prevented him from formulating the specific intent to kill.”926 If
successful, diminished capacity reduces the crime from first-degree to third-degree murder,
thereby negating the applicability of the death penalty.927 It is sometimes asserted that “[a] defense
of diminished capacity is only available to a defendant who admits criminal liability but contests
the degree of guilt”;928 however, “a defendant, merely by introducing expert testimony of
diminished capacity or by requesting a diminished capacity charge, does not automatically and
inevitably (i) admit that he or she killed the victim, (ii) admit that he or she committed third-degree
murder, or (iii) waive other possible defenses.”929

Mitigation. Pennsylvania’s statutory mitigating circumstances include as grounds for

mitigation that “the defendant is under the influence of extreme mental and emotional
disturbance”930 and substantial impairment of the defendant’s “capacity . . . to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law”.931 This is similar
to the American Bar Association resolution that would exempt a defendant from a death sentence
if the defendant’s “severe mental disorder . . . significantly impaired” the defendant’s “capacity
(a) to appreciate the nature, consequences, or wrongfulness of their conduct; (b) to exercise rational
judgment in relation to conduct; or (c) to conform their conduct to the requirements of the law.”932

922
42 Pa.C.S. § 9727(a).
923
Id.
924
Id. § 9727(b)(1).
925
Id.
926
Commw. v. Cuevas, 832 A.2d 388, 393 (Pa. 2003).
927
Commw. v, Faulkner, 595 A.2d 28, 35 n.4 (Pa. 1991).
928
Commw. v. Laird, 726 A.2d 346, 353 (Pa. 1999).
929
Pa. Suggested Standard Crim. Jury Instructions 5.01B, subcomm. n. (2016).
930
42 Pa.C.S. § 9711(e)(2).
931
Id. § 9711(e)(3).
932
Am. Bar Ass’n, supra note 897, at 1.

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 Proposed Procedure under the American Bar Association’s Resolution. Procedurally,
the American Bar Association’s resolution divides the consideration of severe mental illness into
three stages of competency to: 1) waive appeals from the death sentence; 2) assist in the
condemned’s defense; and 3) understand the reason why he is being executed.933

Competency to waive appeals. A competent defendant can refuse legal assistance and
permit the execution to take place, as did all three of the condemned inmates in Pennsylvania who
were executed since the ruling in Gregg v. Georgia did; however, all three had psychiatric
problems.934 Commentators have identified two issues in these voluntary cases: determining that
the condemned’s waiver of defense is knowing, intelligent, and voluntary and is not primarily the
product of mental illness; and assuring that the condemned genuinely deserves the death penalty.

The American Bar Association’s resolution applies when the condemned “wishes to forgo
or terminate post-conviction proceedings.”935 This language implies that the condemned is not
permitted to waive the trial and the appeal. The reason for this limitation is that if such waivers
are permitted, there is no judicial determination regarding the facts of the case; it is never decided
that the defendant is actually guilty and that death is the appropriate penalty.936 One commentator
argues that the volunteer situation entails the balancing of the state’s interest in fair and reliable
use of the death penalty against the defendant’s interest in autonomy and free choice.937 This
balance shifts from the state to the individual defendant as the proceeding moves from the earlier
to the later stages.938 According to this view, the condemned should not be permitted to waive
trial and presentation of mitigating evidence but should be able to waive post-conviction review.939

“[T]he appropriate standard for assessing . . . competency to proceed with collateral review
. . . would be whether the defendant is able to understand the nature of the proceedings and able to
communicate with and assist his counsel”.940 The American Bar Association’s standard for a next
friend to substitute for an incompetent prisoner would be if the “mental disorder . . . significantly
impairs” the prisoner’s “capacity to make a rational decision,”941 which would supplement the
current, appropriate standard.

Competency to assist defense. The strong possibility that a severely mentally ill defendant
is incapable of assisting in his or her own defense was advanced as a reason for exempting the
“insane” from capital punishment as far back as Blackstone’s Commentaries in the 17th century.942
Since the reliability of capital convictions has come under stricter scrutiny, the possibility of the
execution of a defendant who was unable to recognize or communicate a defense because of mental

933
Id. at 1-2.
934
Supra pp. 1-2, notes 7, 8.
935
Am. Bar Ass’n, supra note 897, at 1-2.
936
See Stephen Skaff, Chapman v. Commw.: Death Row Volunteers, Competency, & “Suicide by Court”, 53 St. Louis
U. L.J. 1353, 1365-66 (2009).
937
Anthony J. Casey, Maintaining the Integrity of Death: An Argument for Restricting a Defendant’s Right to
Volunteer for Execution at Certain Stages in Capital Proceedings, 30 Am. J. Crim. L. 75, 76 (2002).
938
Id. at 77.
939
Id. at 105-06.
940
Commw. v. Zook, 887 A.2d 1218, 1225 (Pa. 2005).
941
Am. Bar Ass’n, supra note 897, at 1.
942
Ford v. Wainwright, 477 U.S. 399, 406-07 (1986).

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illness has become more widely recognized. Due Process does not exempt such defendants from
the death penalty, but in the subcommittee on policy’s view, it arguably should, both on human
dignity and reliability grounds.943

The American Bar Association’s proposal includes a procedure specifically applicable to

capital defendants who have “a mental disorder or disability that significantly impairs his or her
capacity to understand or communicate pertinent information, or otherwise to assist counsel, in
connection with post-conviction proceedings” where “the prisoner's participation is necessary for
a fair resolution of specific claims bearing on the validity of the conviction or death sentence”. 944
In such cases, the court is directed to “suspend the proceedings” and reduce the punishment to the
alternative sentence “when execution is not an option” upon a finding “that there is no significant
likelihood of restoring the prisoner's capacity to participate in post-conviction proceedings in the
foreseeable future.”945

This proposed procedure has a standard similar to the Commonwealth’s;946 however,

instead of reducing the punishment, the Commonwealth would likely permit a next friend and
counsel to represent the incompetent prisoner947 or compel the involuntary administration of
antipsychotic medication to render the appellee competent.948

Competency to be executed. In some cases, the defendant manifests serious mental illness
after the initial murder conviction, or the mental illness has been found by the trier of fact to be
insufficiently mitigating, and the defendant advances mental illness as grounds for exemption,
often years after conviction. While exemption can in the first instance be decided as part of the
sentencing phase of the trial, the same issue after the trial raises the thorny question of what
additional proceedings are necessary to decide the issue. The American Bar Association resolution
identifies the most important issues and suggests how to resolve them.949

Competency for execution was addressed by the Supreme Court in Ford v. Wainwright950
and Panetti v. Quarterman,951 where the Court held that the Eighth Amendment forbids execution
of a person who is “insane” at the time he or she is scheduled to be executed.952 In Ford, the four
justice plurality opinion noted that no state permits the execution of the insane and that the
prohibition of such executions under various rationales goes back to common law.953 Such
executions go against contemporary penal theory as well. “[T]oday, no less than before, we may
seriously question the retributive value of executing a person who has no comprehension of why

943
Christopher Seeds, The Afterlife of Ford & Panetti: Execution Competence & the Capacity to Assist Counsel, 53
St. Louis U. L.J. 309, 343-48 (2009).
944
Am. Bar Ass’n, supra note 897, at 2.
945
Id.
946
Commw. v. Zook, 887 A.2d 1218, 1225 (Pa. 2005).
947
Commw. v. Haag, 809 A.2d 271, 278, 284-85 (Pa. 2002). “[A] putative next friend must demonstrate that the
prisoner is incompetent” to rationally decide “whether to pursue PCRA relief.” Id. at 280.
948
Commw. v. Sam, 952 A.2d 565, 588-89 (Pa. 2008).
949
Am. Bar Ass’n, supra note 897, at 1-2.
950
477 U.S. 399 (1986).
951
551 U.S. 930 (2007)
952
Ford, 477 U.S. at 409-10.
953
Id. at 408-09.

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he has been singled out and stripped of his fundamental right to life.”954 The plurality opinion did
not address the test for insanity in this context, holding that the state procedure under review did
not satisfy due process.955 The narrower and therefore controlling opinion by Justice Lewis Powell
alone, proposed that “the Eighth Amendment forbids the execution only of those who are unaware
of the punishment they are about to suffer and why they are to suffer it.”956 Panetti applied or
extended the Ford exclusion to persons who lack a rational understanding of the connection
between the offense and the punishment by execution due to a severe mental illness, as in Panetti’s
case, paranoid schizophrenia.957 Both cases emphasize that once the condemned makes a sufficient
showing of incompetence to be executed, a full and fair judicial hearing must be afforded.

In the plurality opinion in Ford, Justice Marshall insisted that the death penalty context
called for a stringent application of due process.958 The procedure under review in Ford fell short
because it failed “to include the prisoner in the truth-seeking process” in that it did “not permit any
material relevant to the ultimate decision to be submitted on behalf of the prisoner facing
execution.”959 The condemned must have the opportunity to present psychiatric evidence.

We recently had occasion to underscore the value to be derived from a factfinder's

consideration of differing psychiatric opinions when resolving contested issues of
mental state. In Ake v. Oklahoma, 470 U.S. 68 . . . (1985), we recognized that,
because ‘psychiatrists disagree widely and frequently on what constitutes mental
illness [and] on the appropriate diagnosis to be attached to given behavior and
symptoms,’ the factfinder must resolve differences in opinion within the psychiatric
profession ‘on the basis of the evidence offered by each party’ when a defendant's
sanity is at issue in a criminal trial. The same holds true after conviction; without
any adversarial assistance from the prisoner's representative—especially when the
psychiatric opinion he proffers is based on much more extensive evaluation than
that of the state-appointed commission—the factfinder loses the substantial benefit
of potentially probative information. The result is a much greater likelihood of an
erroneous decision.960

For the same reason, the failure of the state to permit the condemned to cross-examine the state’s
psychiatrist denied him due process.961

Even more damaging was the assignment of the determination to the executive branch:

Under this procedure, the person who appoints the experts and ultimately decides
whether the State will be able to carry out the sentence that it has long sought is the
Governor, whose subordinates have been responsible for initiating every stage of
the prosecution of the condemned from arrest through sentencing. The commander

954
Id. at 409.
955
Id. at 413-18.
956
Id. at 422 (Powell, J., concurring).
957
Panetti, 551 U.S. at 954-56.
958
Ford, 477 U.S. at 411-12.
959
Id. at 413.
960
Id. at 414.
961
Id. at 415.

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 of the State's corps of prosecutors cannot be said to have the neutrality that is
necessary for reliability in the factfinding proceeding.

Historically, delay of execution on account of insanity was not a matter of executive

clemency . . . or judicial discretion . . .; rather, it was required by law . . . . Thus,
history affords no better basis than does logic for placing the final determination of
a fact, critical to the trigger of a constitutional limitation upon the State's power, in
the hands of the State's own chief executive. In no other circumstance of which we
are aware is the vindication of a constitutional right entrusted to the unreviewable
discretion of an administrative tribunal.962

Justice Powell’s concurring opinion in Ford agreed with Justice Marshall that competency
must be determined by a judge after a fair hearing.963 The determination under review fell short
of the applicable requirement of a “full and fair hearing,” as it was made by the Governor on the
basis of examination and reports by state-appointed psychiatrists.964 But Powell stopped short of
requiring a “full-scale ‘sanity trial.’”965 He noted that due process is a flexible concept that
depends on the situation addressed by the case and that the issue in a competency hearing “is not
whether, but when [the] execution may take place.”966 A post-trial competency hearing must have
grounds to overturn the determination at the trial that the condemned was competent, so that the
state could presume competency and require “a substantial threshold showing of insanity merely
to trigger the hearing process.”967 Finally, the issue of “sanity calls for a basically subjective
judgment” in which the procedures of an adversarial hearing “are not necessarily the best means
of arriving at sound, consistent judgments as to a defendant’s sanity.”968

We need not determine the precise limits that due process imposes in this area. In
general, however, my view is that a constitutionally acceptable procedure may be
far less formal than a trial. The State should provide an impartial officer or board
that can receive evidence and argument from the prisoner's counsel, including
expert psychiatric evidence that may differ from the State's own psychiatric
examination. Beyond these basic requirements, the States should have substantial
leeway to determine what process best balances the various interests at stake. As
long as basic fairness is observed, I would find due process satisfied, and would
apply the presumption of correctness of [28 U.S.C.] § 2254(d) on federal habeas
corpus.969

Beyond the invalidity of executing the severely mentally ill and locating the responsibility
for the decision in the judicial branch, many issues were not addressed or left unclear by Ford and
Panetti, and implicitly left to the states to resolve, including the following:

962
Id. at 416 (citations omitted).
963
Id. at 423 (Powell, J., concurring).
964
Id. at 423-24.
965
Id. at 425.
966
Id.
967
Id. at 426.
968
Id.
969
Id. at 427.

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 The criteria for insanity or mental illness in this context
Who may initiate an inquiry into competency for execution
The evidence needed to initiate a competency proceeding
Who decides whether there should be a competency hearing and on what standard
Right to appeal a decision granting or denying a competency hearing
Nature of the competency hearing
o Burden of proof
o Right to counsel
o Live testimony
o Expert testimony (including designation of impartial experts)
o Cross-examination
o Oral argument
o Standard of review
Appeal from decision
Renewal of proceedings upon alleged change in competency status
Disposition of defendant upon determination of incompetency970

A description of an execution competency procedure that is thoroughly protective of the

rights of the condemned has been developed.971 “Procedurally, states must, at a minimum, provide
an impartial decision maker regarding the competency determination who can receive evidence
and argument presented on behalf of the offender, including expert mental health evidence.”972
States are free to provide more ample protections.973

The determination of competency should take place after the execution date has been set
and after the other appeals and the initial collateral review challenges have been exhausted.974
Multiple parties should be allowed to raise the competency issue, including correctional officers,
family members, the condemned himself or his attorney, or the court on its own motion.975 To
avoid frivolous or repetitive claims, the defendant must make a showing of reasonable cause by a
verified petition accompanied by supporting documentary evidence.976 There should then be a
preliminary hearing before the sentencing judge or a trial judge of the county where the prison
housing capital defendants is located to determine whether a formal competency hearing is
justified; the judge may hold a hearing or decide the threshold question on the pleadings.977 If the
judge denies a competency hearing, the defendant should get an expedited appeal. 978 The
determination should be upheld unless clearly erroneous or against the overwhelming weight of
the evidence.979

970
Peggy M. Tobolowsky, To Panetti & Beyond--Defining & Identifying Capital Offenders Who Are Too “Insane”
to Be Executed, 34 Am. J. Crim. L. 369, 417-28 (2007).
971
Id. at 420-28.
972
Id. at 428.
973
Id. at 417.
974
Id. at 421.
975
Id. at 421-22.
976
Id. at 422.
977
Id. at 423.
978
Id.
979
Id.

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 If a competency hearing is granted, it should be an adversarial process including live
testimony, cross-examination, and oral argument.980 The defendant should be afforded counsel,
and if the defendant is not represented, an attorney should be appointed for him or her as soon as
possible.981 Both sides should be able to present expert testimony, and there should be at least one
state-appointed independent expert to examine the defendant and testify.982 The defendant should
have the burden of proving incompetence by a preponderance of the evidence.983 The judge should
make written findings.984 Either side should have the right to an expedited appeal. 985 On appeal,
the determination should be upheld unless clearly erroneous or against the overwhelming weight
of the evidence.986 If the condemned is found competent, a further appeal on competency must
include a showing of changed circumstances.987

If the defendant is found incompetent for execution, he should be transferred to a prison or

state mental health facility.988 “The chief mental health officer of the facility . . . should provide
an annual status report” on his mental condition to the judge and counsel for both sides.989 If the
officer finds that the defendant has become competent to be executed, he should report this finding
to the judge and counsel.990 Another evidentiary hearing should be held, with the state bearing the
burden of proof of competency by preponderance of the evidence.991 The losing side should have
the right to an expedited appeal.992 If the defendant remains incompetent after two status reports,
the judge should hold a hearing on whether he or she will remain incompetent for the foreseeable
future, with the burden of proof on the state.993 If the judge finds there is no reasonable probability
of restored competence, the defendant should be given the strictest sentence other than death.994
If the court rules otherwise, the defendant would retain his current status and the process would be
repeated at two-year intervals, with the loser having the right of expedited appeal.995

Finally, there is the difficult issue of medical intervention to restore the condemned to
competency in order to permit him to be executed:

An additional concern surfaces when the state seeks to execute the severely
mentally ill. . . . Ford and Panetti give constitutional effect to the long-standing
common law prohibition of the execution of the insane. This exemption, however,
raises the specter of the government forcibly medicating the condemned prisoner
with anti-psychotic drugs to render the “insane” capital defendant “sane” enough

980
Id. at 424.
981
Id.
982
Id. at 424-25.
983
Id. at 425-26.
984
Id. at 426.
985
Id.
986
Id.
987
Id.
988
Id. at 427.
989
Id.
990
Id.
991
Id.
992
Id.
993
Id. at 427-28.
994
Id. at 428.
995
Id.

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 to execute. Because anti-psychotic drugs exist to treat mental illness such as
schizophrenia, a defendant, who otherwise is exempt from execution under Ford
and Panetti, may be forced to take medication for the sole purpose of rendering him
ready for execution. Further adding to the moral dilemmas created by this macabre
situation, a capital defendant may actually forgo medically appropriate and humane
treatment for his mental illness to avoid execution.996

In Pennsylvania, execution of the insane was held unconstitutional in Commonwealth v.

Moon and reaffirmed in Commonwealth v. Jermyn.998 There is no procedure in place regarding
997

the determination of whether a condemned prisoner must be exempted from the death penalty on
the grounds of mental illness.

Recommendation

The subcommittee on policy recommends treating what would approximate a guilty but
mentally ill situation in a noncapital trial as a disqualification for capital punishment rather than
as a mitigating circumstance. This is what is recommended by American Bar Association,
American Psychiatric Association, American Psychological Association and National Alliance on
Mental Illness. It is based upon the same or similar judicial rationale that exempt juvenile and
intellectually disabled murderers from the death penalty. Instead of relying upon insanity as a
disqualification for the penalty, it would extend the disqualification to one whose severe mental
illness significantly impaired his capacity to: (i) appreciate the nature, consequences, or
wrongfulness of his conduct in the criminal offense; (ii) exercise rational judgment in relation to
the criminal offense; or (iii) conform the person's conduct to the requirements of the law in
connection with the crime.

Juries
The question that serves as the basis of the study of the selection of juries in the
administration of the death penalty in our Commonwealth is:

The impact on the reliability and fairness of capital trials of death qualifying jurors
and the impact of this practice on the ability of women, people of color and people
of faith to serve on capital juries; whether there are adequate procedural protections
and remedies in place to make sure that women and African Americans are not
excluded from serving as jurors in capital cases; and whether there are adequate
procedural protections in place to assure that jurors are able to understand and apply
instructions in determining guilt or innocence and the appropriate punishment in a
capital case;999

996
Entzeroth, supra note 895, at 559.
997
117 A.2d 96, 100-01 (1955).
998
652 A.2d 821, 822-23 (1995).
999
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 220.

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The impact on the reliability and fairness of capital trials of death qualifying jurors and the
impact of this practice on the ability of women, people of color and people of faith to serve on
capital juries

If there is “a verdict of murder of the first degree” recorded from a jury in a trial in which
the Commonwealth is pursuing the death penalty, the jury then determines whether the defendant
is “sentenced to death or life imprisonment.”1000 The criminally accused enjoy a constitutional
right to be tried by an impartial jury.1001 “[L]arge, distinctive groups” may not be “excluded from
the pool” of jurors.1002 These large groups are distinguished “on the basis of some immutable
characteristic such as race, gender, or ethnic background” as opposed to “any other group defined
solely in terms of shared attitudes”.1003 To clarify, “petit juries, as opposed to jury panels or
venires,” are not required “to reflect the composition of the community at large” because that
would be “unworkable and unsound”.1004 A “group defined solely in terms of shared attitudes that
render members of the group unable to serve as jurors in a particular case, may be excluded from
jury service without contravening any of the basic objectives of the fair-cross-section
requirement”, which means that “those who cannot and will not conscientiously obey the law with
respect to one of the issues in a capital case,” are not unfairly or unconstitutionally prohibited from
serving as a juror on a capital case.1005 “The essence of a ‘fair-cross-section’ claim is the
systematic exclusion of “a ‘distinctive’ group in the community.”1006 At voir dire, removal for
cause of “prospective jurors who stated that they could not under any circumstances vote for the
imposition of the death penalty . . . hardly can be said to create an ‘appearance of unfairness’” and
excludes a fair-cross-section claim from this type of death qualification.1007

“The process of death qualification is considered to be a necessary component in capital

trials because it minimizes the possibility that a jury would consist of individuals who are unable
to evaluate evidence appropriately and impartially; however, research suggests that the process
itself might bias various aspects of the trial.”1008

Exclusion of jurors opposed to capital punishment began with a recognition that

certain of those jurors might frustrate the State's legitimate interest in administering
constitutional capital sentencing schemes by not following their oaths. . . . . [T]he

1000
42 Pa.C.S. § 9711(a).
1001
U.S. Const. amend. VI; Pa. Const. art. I, § 9. The U.S. Const. amend. VI provision is extended to state criminal
cases via amend. XIV. Duncan v. La., 391 U.S. 145, 149 (1968).
1002
Taylor v. La., 419 U.S. 522, 530 (1975). In this case, the group was women. Id. at 525. Most simply stated, this
requirement forbids systematically excluding large, distinctive groups from the jury pool so that the pool reasonably
represents the community; however, chosen petit juries do not have to be a particular composition. Id. at 538. Stated
another way, a jury must be “drawn from a fair cross section of the community”. Id. at 535-37.
1003
Lockhart v. McCree, 476 U.S. 162, 175-76 (1986).
1004
Id. at 173-74.
1005
Id. at 173-76. “The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not
a representative jury (which the Constitution does not demand), but an impartial one (which it does).” Holland v. Ill.,
493 U.S. 474, 480 (1990).
1006
Lockhart, 476 U.S. at 174.
1007
Id. at 166-74. “We simply cannot conclude . . . that the exclusion of jurors opposed to capital punishment results
in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.” Witherspoon v. Ill.,
391 U.S. 510, 517-18 (1968).
1008
Yelderman et al., supra note 73, at 27, 30.

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 proper standard for determining when a prospective juror may be excluded for
cause because of his or her views on capital punishment . . . is whether the juror's
views would ‘prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.’1009

Assuming that social science studies “are both methodologically valid and adequate to
establish that ‘death qualification’ in fact produces juries somewhat more ‘conviction-prone’ than
‘non-death-qualified’ juries”, U. S. Supreme Court ruled “that the Constitution does not prohibit
the States from ‘death qualifying’ juries in capital cases.”1010 It would also seem that those
potential jurors who would automatically vote either for or against the death penalty would be
removable for cause because “such jurors-whether they be unalterably in favor of, or opposed to,
the death penalty in every case-by definition are ones who cannot perform their duties in
accordance with law, their protestations to the contrary notwithstanding.”1011

Capital defendants have the right to be sentenced by an impartial jury. The State
may not infringe this right by eliminating from the venire those whose scruples
against the death penalty would not substantially impair the performance of their
duties. Courts reviewing claims of Witherspoon–Witt error, however, especially
federal courts considering habeas petitions, owe deference to the trial court, which
is in a superior position to determine the demeanor and qualifications of a potential
juror.1012

The concern in the question was the same raised in these cases, namely “that the death
qualification process potentially results in biased juries”1013 because of their resultant composition.
There is no limitation to challenging jurors for cause, but peremptory challenges “[i]n trials
involving a capital felony . . . when there is only one defendant” are limited to 20 per side.1014 A
challenge for cause occurs when a juror demonstrates bias by his responses to questioning or when
he says something that indicates that he will not follow instructions or be impartial. A peremptory
challenge is used to exclude a juror because of a suspected or presumed bias instead of an
expressed one.1015 Peremptory challenges are restricted on race because “the Equal Protection
Clause forbids a party to challenge potential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable impartially to consider the State's case
against a black defendant.”1016 In the exercise of peremptory challenges, “gender, like race, is an
unconstitutional proxy for juror competence and impartiality.”1017

1009
Wainwright v. Witt, 469 U.S. 412, 423 (1985).
1010
Lockhart, 476 U.S. at 173. This assumption was made after the court pointed out “several serious flaws in the
evidence” introduced via the social science studies. Id. at 168-73.
1011
Morgan v. Ill., 504 U.S. 719, 735 (1992).
1012
Uttecht v. Brown, 551 U.S. 1, 22 (2007).
1013
Yelderman et al., supra note 73, at 32.
1014
Pa. R. Crim. P. 634(A)(3). For alternate jurors, each side has one peremptory challenge for every two alternate
jurors selected. Id. 633(B).
1015
Yelderman et al., supra note 73, at 32.
1016
Batson v. Ky., 476 U.S. 79, 89 (1986).
1017
J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 129 (1994). “[T]he Equal Protection Clause forbids peremptory challenges
on the basis of gender as well as on the basis of race.” Id. at 130.

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 Research examining the effects of death qualification on jury composition suggests
that death qualification often results in juries that are biased in ways that
consistently disadvantage capital defendants. It is possible to argue that as long as
those who are extremely against and extremely for the death penalty are excluded,
that risk would be minimal. However, this is not necessarily true because . . . the
process likely excludes those who strongly oppose the death penalty at a higher rate
than those who strongly support the death penalty.1018

This is because it is procedurally easier to ask for a yes/no response to disqualify a potential
juror as death qualified while harder to elicit a disqualifying response from a potential juror who
says he would consider life imprisonment without parole while harboring “attitudes and beliefs”
leading him “to always vote for the death penalty if a defendant was found guilty of a capital
crime”1019 Because of General Social Survey and other social science research, “research suggests
that death qualification is more likely to eliminate members of some groups than others.”1020
Systematic exclusion of specific social groups could occur because some groups might be
“consistently more in favor of the death penalty than another”, who then could be excluded by
“prosecutors who know such statistics”.1021 As noted elsewhere in the report, some religions have
official stances on the death penalty which might impact “jury selection practices”.1022 In short,
“findings support the idea that the death qualification process systematically eliminates jurors who
belong to certain social and demographic groups” and “can also change the way in which case
facts are interpreted and discussed by a jury.”1023

If death qualification can affect the composition of a jury, the same effect “likely shapes
the ways in which jurors view and evaluate aggravating and mitigating circumstances”. 1024 If
death qualification increases both negative perceptions of the defendant and positive perceptions
of the victim as some research suggests, it could result in jurors being more accepting of
aggravating circumstances and less accepting of mitigating evidence. 1025 Some research also
found that “death- qualification resulted in retaining jurors who tended to process information . . .
using less systematic and analytical cognitive strategies when compared to excludables”.1026 There
is some relatively recent social science research “that death-qualified individuals . . . perceive
individuals differently in death penalty trials” and “perceive and process the evidence
differently.”1027

1018
Yelderman et al., supra note 73, at 33 (citation omitted).
1019
Id. at 34. A co-author of this source observed that “it took much longer to identify and exclude jurors who were
extremely in favor of the death penalty” than those “who were against the death penalty” during the voir dire phase.
Id.
1020
Id. at 35-36.
1021
Id. at 35.
1022
Id. at 36. A sample of some religious stances appears infra pp. 212-13.
1023
Yelderman et al., supra note 73, at 36.
1024
Id. at 38.
1025
Id. Pretrial publicity might similarly bias jurors. Id. at 40.
1026
Id. at 39.
1027
Id. at 40.

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 Some of this research reveals that “the death qualification process is a suggestive and
influential process that leads to conviction prone juries by creating juries that are less likely to
share attitudes in opposition of giving a death penalty and reaffirming jurors’ willingness and
expectations to convict the defendant and sentence him to death.”1028 The contention is that
systematically excluding “jurors who are considered unable to be impartial” uses a process that
reinforces jurors’ “willingness to give the death penalty” and leads to “increased receptivity to
guilt confirming evidence and aggravating factors while simultaneously rejecting innocence
confirming evidence and mitigating factors.”1029

To exclude potential jurors, attorneys, who know statistical research on demographics and
attitudes, might rely on that knowledge to “exclude potential jurors . . . to increase the possibility
of creating a jury that will decide in their favor.”1030 Maybe more often, “attorneys are likely to
base their exclusions on intuitions related to certain attitudes and beliefs associated with
individuals and their group statuses.”1031 The concern “related to death-qualified jurors is that the
death qualification process itself influences jurors such that jurors who experience the death
qualification process hold more pro-prosecution or anti-defendant perceptions of the trial
information than jurors who do not experience death qualification.”1032 Repeatedly asking jurors
“whether they are able to give the death penalty, assuming the defendant is guilty . . . reiterates the
statement that the defendant is guilty.”1033 Some research reveals that “[d]eath qualification might
exclude jurors who naturally process information more rationally, resulting in a jury that process
information more experientially.”1034

This research suggests that “the death qualification process facilitates convictions and
death sentences” because the potentially more punitive individuals would be selected for capital
juries, whose interpretation of trial information differs compared to the excluded ones, and “the
process of death qualification and the individual traits of those selected through death qualification
both relate to higher rates of convictions and death sentences.”1035 This research has not yet been
judicially accepted so that futures studies might “need to use actual trials, trial videos, or
reenactments . . . to increase the realism related to participating in a capital trial.”1036 It would also
help to study deliberations between jurors that are death-qualified and those that are not.1037

Ironically, instead of death qualification resulting in a “jury absent any extreme death
penalty biases, it might instead . . . perpetuate such biases.”1038 If “specific social groups and
individuals with shared attitudes or beliefs that are thought of as prejudicial” are excluded, the
“death-qualified juries . . . might actually be more susceptible to systemic biases”. 1039 Effects of

1028
Id. at 41.
1029
Id. at 42.
1030
Id. at 43.
1031
Id. “Specifically, attorneys might try to identify and exclude jurors who would vote against their side.” Id.
1032
Id. at 43-44.
1033
Id. at 44. If so, “death-qualified jurors enter the trial with a biased presumption of innocence instead of a complete
presumption of innocence.” Id. at 46.
1034
Id. at 45.
1035
Id. at 47.
1036
Id. at 48.
1037
Id.
1038
Id. at 49.
1039
Id.

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death qualification “on juries and trial outcomes . . . should continue to be studied”, especially
because of “findings that demonstrate that the death qualification process produces conviction
prone juries”.1040

Whether there are adequate procedural protections and remedies in place to make sure that
women and African Americans are not excluded from serving as jurors in capital cases

The Commonwealth’s declared policy is that:1041

(1) All persons entitled to a jury trial in a . . . criminal proceeding . . . have the right
to jurors selected at random from a representative cross section of the eligible
population of the county.
(2) All qualified citizens . . . have the opportunity to be considered for service as
jurors in the courts of this Commonwealth and . . . have an obligation to serve as
jurors when summoned for that purpose.
(3) A citizen shall not be excluded from service as a juror on the basis of race,
color, religion, sex, national origin or economic status.

In 2003, Joint State Government Commission published Minority Representation in the

Jury Selection Process in Pennsylvania.1042 The data gathered for this report did not reveal
counties excluding large, distinctive from the jury pool in unconstitutional proportions but showed
that “some counties could stand to improve their representation of minorities on juries.” 1043 This
analysis was not limited to juries in capital cases. Since this report was published, Pennsylvania
law was amended to add exemptions from jury duty,1044 authorize expansion of the master list of
prospective jurors1045 and establish a statewide jury information system.1046 Because this report
has not been updated, it is unknown whether and to what extent much the statutory amendments
have impacted the representation of minorities on juries, capital or otherwise. One of the
recommendations in the report is for “[t]he judicial system” to
voluntarily, routinely monitor itself to determine if it is fulfilling its constitutional
obligation to draw jurors from a cross section of the community. . . . . As the
constitutional obligation to draw jurors from a representative cross section of the
community is an essential component of a right to a jury trial, it would seem that
the judicial system itself could and should make it easier for parties to learn relevant
numerical information specifying demographic data about whom courts summon
rather than leave it up to aggrieved individuals or classes to try to calculate
information the court could easily collect.1047

1040
Id.
1041
42 Pa.C.S. § 4501.
1042
Pa. J. State Gov’t Comm’n, http://jsg.legis.state.pa.us/resources/documents/ftp/publications/2003-52-JURY.PDF.
1043
Id. at 3, 81, 87.
1044
42 Pa.C.S. § 4503(a)(5)-(8).
1045
Id. § 4521(a)(3)(v).
1046
Id. § 4521.1.
1047
Pa. J. State Gov’t Comm’n, supra note 1042, at 3, 87. Presumably, this would be done by court administrators.
Id.

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Recommendation

One remedy supported by the subcommittee on procedure would be enactment of a Racial

Justice Act to statutorily allow death sentences to be challenged on a statistical basis, in addition
to purposeful discrimination.

Whether there are adequate procedural protections in place to assure that jurors are able to
understand and apply instructions in determining guilt or innocence and the appropriate
punishment in a capital case

“Prior research has repeatedly revealed that jurors (1) base their decisions on erroneous
assumptions about the early release of those who are not sentenced to death, (2) prematurely decide
the punishment before hearing sentencing evidence and instructions, and (3) fail to understand
sentencing instructions.”1048 The Commonwealth “is one of only two states with life”
imprisonment “without parole . . . that does not require that juries be told in every capital case that
there is no possibility of parole”.1049

To determine whether jurors understand instructions, previous studies used both mock
jurors and interviewed actual jurors from capital cases.1050 National Science Foundation sponsored
Capital Jury Project, in which jurors from capital cases in 14 states were interviewed
afterwards.1051 As part of this project, a professor and trained graduate students interviewed scores
of jurors from 27 capital cases in Pennsylvania.1052 These jurors were asked:1053

(1) to estimate the duration of a life sentence;

(2) to indicate which punishment was considered at four different stages1054 and how and
when that was decided;
(3) to answer three questions each about aggravating and mitigating circumstances to
reveal if jurors understood the instructions; and
(4) the acceptability of death for nine crimes.

Almost 75% of the jurors estimated that life-sentenced prisoners would be paroled or
otherwise released.1055 Most jurors discussed, considered, were concerned about and agreed that
convicted murderers who were not sentenced to death would be a societal danger and are released
too soon.1056 Most discussed punishment and future dangerousness of the accused while

1048
Foglia, supra note 95, at 188.
1049
Id.
1050
Id. at 193.
1051
Id. at 194. The interviews occurred one to two years after trial but the results were consistent with responses from
mock juries who were tested immediately after being instructed. Id. at 206.
1052
Id.
1053
Id. at 195-96.
1054
“(1) after the guilt phase but before the sentencing phase, (2) after they were given sentencing instructions but
before the deliberations, (3) at the first vote, and (4) at the final vote.” Id. at 195.
1055
Id. at 196.
1056
Id. at 197.

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deliberating guilt.1057 An overwhelming percentage believed that the crime, rather than the kind
of person the convict is, should determine the punishment.1058

Moreover, most jurors in the study incorrectly thought that a mitigating circumstance
required unanimity to consider.1059 For aggravating circumstances, most jurors correctly answered
the query on the burden of proof and requisite unanimity. 1060 Of the 70 questioned, “[t]he one
juror who got all the answers correct on the questions related to sentencing instructions did not
believe that a life sentence really meant life in prison.”1061 Most jurors disbelieved that life in
prison really means life, decided the punishment before beginning the sentencing phase and
incorrectly answered more than half of the questions about the sentencing instructions. 1062 The
more accurate the responses were to the estimates for life sentences and the lower prematurity of
decision corresponded to a higher the likelihood that the juror voted for life instead of death.1063
More than twice as many respondents estimating life sentences to be 15 or fewer years considered
death the only acceptable punishment for most of the crimes asked about (in comparison to those
estimating longer periods for a life sentence).1064

This research has been partially updated since then, both in Pennsylvania and elsewhere.
The results were that “the percentages getting things wrong was remarkably similar to what” was
“found in the original study. . . . . The only improvement was that the median estimate for how
long someone usually spends in prison if they don't get death went from 15 years to 25 years, but
25 years is still underestimating the reality.”1065

[T]he law that should be guiding jurors’ discretion and eliminating arbitrary
decisions often does not work. The underestimates of life sentences, premature
decision making, and failure to understand sentencing instructions found in
Pennsylvania are the same problems that were found in the national CJP data,
interviews with capital jurors reported for other individual states, and prior research
using different methodologies discussed in the literature review. . . . . Nearly half
had at least one of these problems, and over 40% revealed multiple problems to a
prejudicial or extreme level. . . . . The finding that considering death the only
acceptable punishment was more strongly related to estimates of life sentences and
a premature stance than to the final vote support this interpretation of how the
process works. . . . . [I]f jurors tried to follow the law, they would have difficulty
because many fail to understand the guidelines.1066

1057
Id. at 198.
1058
Id.
1059
Id. at 200.
1060
Id.
1061
Id. at 199.
1062
Id. at 201.
1063
Id. at 202.
1064
Id. at 203.
1065
Foglia, supra note 97.
1066
Id. at 204-05.

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 Pennsylvania Suggested Standard Jury Instructions

carry no official imprimatur of the Supreme Court of Pennsylvania. The goal of

the committee is to have these instructions accurately reflect the law of
Pennsylvania and provide meaningful guidance to courts in the critical task of
instructing jurors in the performance of their constitutional duty. Trial judges, . . .
maintain the final responsibility to craft accurate instructions and may certainly
invite suggestions from the advocates to make sure that clear and accurate
instructions are provided to the trial jury.1067

Pennsylvania Supreme Court appoints the leadership of Committee for Proposed Standard
Jury Instructions, with a subcommittee for civil and another for criminal.1068 “Each subcommittee
ensures that a proper statement of law is conveyed to jurors in language that is understandable.
Committees update the instructions every 18 to 24 months.”1069 Presumably, this committee of
experts accurately incorporate statutory and case law in its proposed standard jury instructions, but
those are just suggestions to the trial judges, who exercise the final authority to instruct the jury as
suggested or otherwise. Pointedly, the relevant subcommittee strives to suggest standardized jury
instructions to properly reflect the law of Pennsylvania in a way that would be understandable to
jurors in both the guilt and penalty phases of a death penalty prosecution. In a given case, trial
judges must modify or replace these suggested instructions to provide greater guidance where the
trial court believes it is necessary to ensure that the jurors are properly advised in the critical
determinations the law requires them to make.

The subcommittee on criminal jury instruction works with Pennsylvania Bar Institute,
which publishes these suggested standard criminal jury instructions. Historically, the
subcommittee has not studied jurors’ responses to their instructions by use of empirical surveys or
other formal, scientific, analytical techniques. That subcommittee always invites feedback on the
accuracy and efficacy of the suggested instructions from the bench and the bar, but neither that
subcommittee nor The Unified Judicial System of Pennsylvania formally survey jurors.

The membership of the subcommittee drafting these suggested standard instructions

organization is comprised of attorneys and judges. Linguists, social scientists and psychologists
have not been employed to revise these standard suggested instructions.

The criminal jury instruction subcommittee is starting to explore opportunities for studying
jurors’ interactions with all of the suggested standard instructions. The Director of the Center for
Jury Studies at the National Center for State Courts addressed the subcommittee last year on the
topic of juror use and comprehension of jury instructions. Recently, the subcommittee has
contacted other jury scholars with the goal of developing a durable framework of jury research in
Pennsylvania that will inform the drafting of the suggested standard instructions.

1067
Pa. Suggested Standard Crim. Jury Instructions, Introduction to 3d Ed. (2016).
1068
Unified Judicial Sys. of Pa., Comm. for Proposed Standard Jury Instructions,
http://www.pacourts.us/courts/supreme-court/committees/supreme-court-boards/committee-for-proposed-standard-
jury-instructions (2018).
1069
Id.

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Recommendation

It would seem to the subcommittee on procedure that if the Commonwealth decides to

assure that jurors are able to understand and apply instructions in determining guilt or innocence
and the appropriate punishment in a capital case, there would need to be formal, empirical feedback
on a routine basis. If jurors are unable to understand and apply these instructions as research
discussed above indicates, it is possible that standard suggested instructions would need to be
rewritten by attorneys and judges with the assistance of linguists, social scientists and
psychologists and the data disclosing the misunderstanding and misapplication. To that end, the
subcommittee on procedure supports the nascent efforts of the criminal subcommittee of the
Committee for Proposed Standard Jury Instructions to partner with jury researchers as it drafts and
revises the suggested standard jury instructions.

State Appeals and Postconviction

The question that serves as the basis of the study of state appeals and postconviction in the
administration of the death penalty in our Commonwealth is:

Whether there are adequate procedures in place to assure that serious error in capital
cases is identified and corrected and to what extent procedural doctrines, such as
waiver or forfeiture, operate to prevent judicial review of serious constitutional
claims on the merits;1070

Whether there are adequate procedures in place to assure that serious error in capital
cases is identified and corrected

Data was obtained summarizing capital post-conviction reversals and subsequent

dispositions on all post-conviction reversals of convictions or death sentences or both imposed
under the contemporary death-penalty statute dating from 1978, with the first of those post-
conviction reversals coming in 1988.1071 For post-conviction reversals in state court during this
period, 116 death-row prisoners have obtained post-conviction relief from their convictions or
death sentences—and, in some instances, both—in Pennsylvania state courts. Of these, new trials
were granted for 18 post-conviction petitioners and 91 were granted new sentencing hearings. In
17 cases, petitioners were declared ineligible for the death penalty, 15 as a result of intellectual
disability and two because they were younger than age 18 at the time of the offense.1072 For post-
conviction reversals in federal court during the same period, 58 death-row prisoners have obtained
relief from their capital convictions or death sentences or both in federal habeas corpus
proceedings, with the federal courts granting new trials in 24 cases and overturning death sentences
in 44 cases. Three death-row prisoners who were granted penalty-phase relief in state court later
had their convictions overturned in federal court. One prisoner who was granted a new penalty-

1070
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A., infra p. 220-21.
1071
Dunham, supra note 12.
1072
Multiple trials and multiple reversals are counted as cases separately from counting the same defendant so a
defendant who was tried twice and obtained two reversals would count twice instead of once.

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phase trial by the federal courts also had his conviction overturned after the case was remanded
back to the state courts. Collectively, 170 Pennsylvania death-row prisoners have had either their
convictions or death sentences overturned in state or federal post-conviction proceedings.

For subsequent dispositions from capital post-conviction reversals of either the conviction,
death sentence or both in both state and federal court dating from 1978, with the first of those
dispositions coming in 1996, 137 of the 170 cases reached a subsequent disposition. Almost all--
133 of the cases--resulted in a sentence of life or less or an exoneration. Of these 133 defendants,
two were exonerated, 13 pled guilty to third-degree murder, eight of whom have been released or
completed their sentence, and the remainder were re-sentenced to life imprisonment. For
subsequent dispositions from capital post-conviction reversals in state court since 1995, six
defendants were resentenced to death, two of whom then had their death sentences reversed again
and are serving life imprisonment so that four of these six remain sentenced to death. In sum,
97.1% of these dispositions following post-conviction reversals resulted in a sentence of life
imprisonment or less. Specifically, approximately 86% were resentenced to life imprisonment and
almost 11% received less than that with two completely exonerated. Thus, the percentage of those
who were resentenced to death following post-conviction reversals is less than 3%.

There are both adequate and inadequate procedures to assure that serious error in capital
cases is identified and corrected and procedural doctrines sometimes prevent, but perhaps more
often, delay judicial review of serious constitutional claims on their merits. Similarly, the
procedures and procedural doctrines that appear to be intended to limit judicial review for
systematic efficiency and effectiveness of the death penalty often generate systematic inefficiency
and ineffectiveness of the death penalty. This is borne out by the fact that the Commonwealth has
executed only three condemnees during the last 56 years, and all three had psychiatric problems
and relinquished their appeals,1073 demonstrating that less than 3% of condemnees who had their
original death sentences judicially vacated and then subsequently disposed were resentenced to
death.

1073
“Zettlemoyer was taking an anti-depressant/anti-psychotic drug when he testified before the district court and
when he wrote a letter on March 28, 1995, indicating that he wanted no further appeals. . . . . [T]he record is clear
that Zettlemoyer voluntarily took the medication as part of a course of treatment for his medical problems. He testified
before the district court that ‘I have a number of health problems, and the psychiatrist and the psychologist at the SCI
Pittsburgh Institution have recommended a variety of medications for me to take. . . . . [S]o I always take it.’” In re
Zettlemoyer, 53 F.3d 24, 28-29 (3d Cir. 1995). “Throughout the proceedings, Leon Moser maintained that he wanted
to die. From all indications, he still does. . . . . Moser had been hospitalized . . . for depression . . .; and . . . takes a
common anti-depressant, Imipramine.” In re Moser, 69 F.3d 691, 693-94 (3d Cir. 1995) (Nygaard, J., dissenting).
“Moser . . . underwent psychiatric treatment while in prison”. Associated Press, Killer of His Ex-Wife & 2 Daughters
Is Executed, N.Y. Times (Aug. 17, 1995), https://www.nytimes.com/1995/08/17/us/killer-of-his-ex-wife-and-2-
daughters-is-executed.html. “Dr. Bernstein stated that it was his opinion within a reasonable degree of medical
certainty that Heidnik suffered from paranoid schizophrenia, and described him as a seriously disturbed, cognitively
impaired, psychotic individual. . . . . Dr. McKenzie opined with a reasonable degree of medical certainty that Heidnik
suffers from schizophrenia, is actively psychotic, and is not in contact with reality. . . . . Heidnik indicated in response
to questioning . . . that he did not wish the attorneys to appeal. . . . . The court stated that Heidnik's paranoid
schizophrenia does not substantially affect his capacity to appreciate his position and make a rational choice with
respect to continuing or abandoning habeas corpus proceedings in federal court.” In re Heidnik, 720 A.2d, 1016,
1024-26 (Pa. 1998).

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 The subcommittee on procedure advocates reinstating the previous practice of relaxed
waiver on direct capital appeals as it was employed in the 1980s and 1990s. During that period,
Pennsylvania’s Supreme Court had a “duty to transcend procedural rules” in capital cases, 1074 and
to “address and, if possible from the record, resolve all significant issues perceived by this Court
or raised by the parties”, irrespective of waiver.1075 Generally, “on capital direct appeals, claims
that were not properly raised and preserved in the trial court are waived and unreviewable” but
“may be pursued under the” Post Conviction Relief Act “as claims sounding in trial counsel's
ineffectiveness or, if applicable, a statutory exception to the” act’s “waiver provision.”1076

These are several problems with not having relaxed waiver in effect any more. When a
potentially dispositive issue could have been resolved on the record on direct appeal, delaying its
review until the petitioner reaches post-conviction proceedings is inefficient for the judiciary and
everyone else involved in the proceedings.1077 Although Post Conviction Relief Act “is not
intended to . . . provide a means for raising issues waived in prior proceedings”, it specifically
provides otherwise1078 if “the failure to litigate the issue prior to or during trial, during unitary
review or on direct appeal could not have been the result of any rational, strategic or tactical
decision by counsel.”1079 Nonetheless, “an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.”1080 When Pennsylvania’s Supreme Court dropped the relaxed waiver
practice, it did “not foreclose the possibility that a capital appellant may be able to describe why a
particular waived claim is of such primary constitutional magnitude that it should be reached on
appeal.”1081 By dropping the relaxed waiver rule in a self-contradictory manner to rely on a self-
contradictory Post Conviction Relief Act, one does not arrive at judicial efficiency.

Recognizing “the undeniable fact that a death penalty appeal is different in quality and kind
because of the final and irrevocable nature of the penalty,” Pennsylvania’s Supreme Court claimed
that “our abrogation of relaxed waiver does not eliminate or diminish other substantial safeguards,
. . . not available in other criminal matters,” serving

1074
Commw v. McKenna, 383 A.2d 174, 181 (Pa. 1978).
1075
Commw. v. Frey, 475 A.2d 700, 707 n.4 (Pa. 1984). The Court later described the relaxed waiver rule as
discretionary, Commw. v. Malloy, 856 A.2d 767, 778 (Pa. 2004), but for more than twenty years, it was “this Court’s
practice to address all issues arising in a death penalty case irrespective of a finding of waiver.” Commw. v. Banks,
656 A.2d 467, 470 n.7 (Pa. 1995); Commw. v. Jermyn, 709 A.2d 849, 856 n.20 (Pa. 1998); Commw. v. Morales, 701
A.2d 516, 520 n.13 (Pa. 1997); Commw. v. Morris, 684 A.2d 1037, 1042 n.11 (Pa. 1996). The Court stated that the
relaxed waiver rule “requires us to examine” technically waived issues, Commw. v. Simmons, 662 A.2d 621, 636 (Pa.
1995), and stressed that, in a death penalty case, an issue “cannot be considered waived,” Commw. v. Baker, 511 A.2d
777, 790 n.10 (Pa. 1986).
1076
Commw. v. Freeman, 827 A.2d 385, 402 (Pa. 2003).
1077
The joint trial of co-defendants K. O’Donnell and W. Gribble illustrates this point. O’Donnell was awarded a new
sentencing hearing in 1999 after being granted penalty-phase relief on a claim raised and decided under the relaxed
waiver rule. Commw. v. O’Donnell, 740 A.2d 198, 201, 204, 214 (Pa. 1999). Gribble’s lawyer failed to raise the
issue—equally applicable to his case—on direct appeal, and it took eight more years, including a remand by the Pa.
Sup. Ct. for further post-conviction proceedings, before Gribble’s post-conviction petition was resolved.
1078
42 Pa.C.S. § 9542.
1079
Id. § 9543. This is true unless the delay in filing the petition prejudices the Commonwealth. Id.
1080
Id. § 9544(b).
1081
Freeman, 827 A.2d at 402.

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 a function similar to the relaxed waiver rule. First, this Court performs a self-
imposed duty to review the sufficiency of the evidence underlying the first-degree
murder conviction in all capital direct appeals, regardless of whether the appellant
has raised the issue. The Court is also required to conduct a statutory review of the
death sentence itself to determine whether it was the product of passion, prejudice
or any other arbitrary factor, and to determine whether the evidence adduced at trial
was sufficient to support the aggravating circumstance(s) found by the jury. . . . In
addition to these special protections afforded capital appellants, the

Post Conviction Relief Act “exists for them, as for other criminal defendants, as a vehicle for a
full and fair, counseled proceeding through which they may challenge the stewardship of trial
counsel and pursue other appropriate collateral claims.”1082

But this explanation belies the reality of the Court’s current interpretation of its duty to
review the record under 42 Pa. C.S. § 9711(h)(3) and unpersuasively prioritizes a strict,
contemporaneous objection rule as a form over the substance of a life at stake. In the 1980s,
“passion, prejudice or any other arbitrary factor” under 42 Pa. C.S. § 9711(h)(3)(i) was “quite
broad and [went] beyond the normal constraints of an adversary system.”1083 At that time, the
Court understood this provision as an “explicit requirement that an automatic, searching and
independent review of all death sentences would be available in this Court on a mandatory
basis.”1084 It believed at that time that it was required to review the entire record for constitutional
error1085 and to sua sponte address all constitutional issues it perceived as present, even if they had
not been raised by the defendant1086 and even if the defendant brought no appeal at all.1087
However, following the legislative repeal of proportionality review and its own abrogation of the
relaxed waiver rule, the Court, also on its own, severely curtailed the scope of its independent
review of the record. In 2009, in Commonwealth v. VanDivner, 1088 it wrote that section 9711(h)(3)
only authorized the Court “to identify and raise claims . . . in narrow circumstances where it
appears that the sentence of death is a ‘product of passion, prejudice or an arbitrary factor.’ Not all
claims of error, or even all claims of constitutional error,” it wrote, “implicate passion, prejudice,
or arbitrariness.”1089 Two years later, the Court ironically told the same litigant, whom it had
previously said was entitled to “an automatic, searching and independent review” of his death

1082
Id. at 402-03 (citations omitted).
1083
Commw. v. Holcomb, 498 A.2d 833, 837 n.6 (Pa. 1985).
1084
Commw. v. Lesko, 501 A.2d 200, 204 (Pa. 1985).
1085
E.g., Commw. v. Szuchon, 484 A.2d 1365, 1381-82 (Pa. 1984; see also Commw. v. Breakiron, 571 A.2d 1035,
1046 (Pa. 1990) (Nix, C.J., with Zappala, J., dissenting) (“It is understood we are to examine the total record for
constitutional compliance.”).
1086
Commw. v. Zettlemoyer, 454 A.2d 937, 955 n.19 (Pa. 1982); Commw. v. Stoyko, 475 A.2d 714, 720-21 (Pa. 1984);
Commw. v. Beasley, 475 A.2d 730, 742 n.1 (Pa. 1984); see also Commw. v. Williams, 615 A.2d 716, 729-30 (Pa.
1992) (Nix, C.J., dissenting) (would have granted relief for ineffectiveness of counsel’s sentencing-stage closing
argument, not raised by the appellant).
1087
Commw. v. Appel, 539 A.2d 780, 781, 784 (Pa. 1988) (the court “conducted an independent review of the entire
record in the present case and considered all possible bases for overturning the conviction or the sentence”); Commw.
v. Michael, 674 A.2d 1044, 1046-47 (Pa. 1997); Commw v. Graham, 661 A.2d 1367, 1369 (Pa. 1995); Commw. v.
Heidnik, 587 A.2d 687, 689 (Pa. 1991).
1088
983 A.2d 1199 (Pa. 2009).
1089
Id. at 1203.

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sentence, that he “fails to recognize the very limited purpose of review pursuant to Section
9711(h)(3)(i).” 1090

Moreover, the Court’s justification for abrogating relaxed waiver overlooks the statutory
authority it has “to correct errors at trial”, regardless of waiver, when it automatically reviews
death sentences.1091 It also completely overlooks the practical reality that more than 97% of post
conviction reversals disposing of death sentences in Pennsylvania since 1978 have subsequently
resulted in a sentence of life imprisonment or less. The same judicial opinion that rejected the
justification of “relaxation of waiver principles on direct appeal . . . on grounds of judicial economy
because it reduces the number and necessity of post-conviction relief petitions” because the
“efficient use of” this court’s resources were frustrated by the relaxed waiver doctrine also
contended that abrogation of relaxed waiver would do no harm since “[a]ny meritorious claims
which escape counsel’s recognition on direct appeal can then be raised on grounds of counsel’s
ineffectiveness.”1092 But preserving judicial resources on direct appeal by limiting the scope of
direct review does not serve judicial economy, the public fisc, or the interests of justice by
burdening post-conviction review with claims that could have been earlier resolved, by
unnecessarily burdening the post-conviction process with claims of ineffectiveness for prior
counsel’s failures to preserve for appeal claims that could have been decided under the relaxed
waiver rule, and by keeping prisoners who have meritorious claims in death-row confinement for
the extra years needed for post-conviction review and appeal. Neither judicial economy nor
fairness is served when the more than 97% of cases in which death sentences are converted to life
sentences or less leave death row only after post conviction disposition.

Finally, since the statute provides for automatic judicial review of death sentences to
correct errors at trial, the judiciary should not insist on a timely notice of appeal to consider any
claims unassociated with the statutorily-mandated review of the sufficiency of the evidence. This
would be a corollary to Pennsylvania Rules of Civil Procedure that are liberally construed and
applied “to secure the just, speedy and inexpensive determination of every action”. 1093 The
imposition of capital punishment might be a penalty that is unique enough for “an appellate court”
to “consider the interests of society as a whole in seeing to it that justice is done, regardless of
what might otherwise be the normal procedure” by upholding “the mandates of the constitution
over the countervailing considerations of normal appellate procedure”, especially since the
doctrine of waiver’s purported “means of promoting jurisprudential efficiency by avoiding
appellate court determinations of issues which the appealing party had failed to preserve” has not
been realized in the capital context.1094

61 Pa.C.S. § 4302. From 1985 through April 2018, 466 warrants specifying a day for
execution have been signed by the Commonwealth’s executive.1095 Those 466 warrants resulted
in three executions occurred, representing .006% of them. During this period, the largest number
of warrants signed by an executive were the 220 warrants signed by Governor Ridge. He was also

1090
Commw. v. Lesko, 15 A.3d 345, 411 (Pa. 2011).
1091
42 Pa.C.S. § 9711(h).
1092
Commw. v. Albrecht, 720 A.2d 693, 700 (Pa. 1998).
1093
Pa. R. Civ. P. 126.
1094
Commw. v. McKenna, 383 A.2d 174, 180-81 (Pa. 1978).
1095
Pa. Dep’t of Corrections, supra note 7.

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the only governor in this period whose signed warrants resulted in executions. Three executions
out of 220 warrants represents .014%. Thus, all the other governors executed nobody from the
other 246 warrants of execution they signed. It took a total of six warrants of execution to execute
the three condemnees during Governor Ridge’s tenure. Under the current administration, 28 of
the 32 warrants of execution signed by Secretary Wetzel have been judicially stayed, which
amounts to almost 88% of them; this percentage was 100 for some other administrations.1096 This
indicates that the statutory time to issue these warrants is unrealistically premature and
ineffective.1097

The statute requires the executive to issue a warrant specifying a day for execution “within
90 days” after receiving “a full and complete record of the trial, sentencing hearing, imposition of
sentence, opinion and order by the Supreme Court”1098 or “within 30 days” of being notified of
termination of a judicial stay of execution.1099 Rather than making the procedure for an execution
more effective, the statute is systematically causing serious inefficiencies. The problem with this
statutory trigger’s ineffectiveness is that it disregards Post Conviction Relief Act and federal
habeas litigation and appeals, which can each have multiple rounds of review. Registered
survivors of homicide victims are notified when a warrant of execution is signed and stayed, which
itself can be a roller coaster of emotions for them. Statutorily mistimed warrants of execution help
neither survivors of homicide victims nor victim advocates. The following outline demonstrates
that the statute typically mandates at least two, mistimed or almost certainly premature warrants
of execution.

1. Conviction
2. Automatic appeal to Supreme Court of Pennsylvania
3. Supreme Court affirms
4. Petition for Certiorari in the Supreme Court of the United States
5. U.S. Supreme Court denies
6. Death Warrant issued
7. PCRA and Death Warrant stayed
8. PCRA petition denied
9. PCRA appealed to Supreme Court of Pennsylvania
10. Supreme Court affirms
11. Petition for Certiorari in the Supreme Court of the United States
12. U.S. Supreme Court denies
13. Death Warrant issued
14. Federal habeas petition and Death Warrant stayed
15. Federal habeas denied
16. Federal habeas appealed to Third Circuit
17. Third Circuit affirms denial
18. Petition for Certiorari in the Supreme Court of the United States
19. U.S. Supreme Court denies
20. Death Warrant issued

1096
Id.
1097
61 Pa.C.S. § 4302(a). The day specified for the execution must be within 60 days of the warrant’s signing. Id.
1098
42 Pa.C.S. § 9711(i).
1099
61 Pa.C.S. § 4302(a). The day specified for the execution must be within 60 days of the warrant’s reissuance Id.

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 A more realistic, statutory trigger that mandates issuance of a warrant of execution would
not occur until one year after the date a judgment becomes final because post-conviction relief
remains statutorily available until then.1100 Even that timing would be a premature, statutory
trigger because the more realistic, statutory timeliness mandating issuance of a warrant of
execution still would not occur at that point but only following state post conviction proceedings,
if any, when the capital defendant failed to file a timely petition for writ of habeas corpus in the
appropriate federal district court, or failed to timely appeal or petition an adverse habeas corpus
decision to the United States Court of Appeals for the Third Circuit or the United States Supreme
Court. One condemnee has had six warrants of execution judicially stayed, and the overwhelming
percentage of judicial stays of warrants of execution for the other condemnees indicates that the
statutory time to issue a warrant of execution should be more realistically based.

Recommendation

The subcommittee on procedure advocates reinstating the previous practice of relaxed

waiver on direct capital appeals as it was employed in the 1980s and 1990s. Also, since the statute
provides for automatic judicial review of death sentences to correct errors at trial, the judiciary
should not insist on a timely notice of appeal to consider any claims unassociated with the
statutorily-mandated review of the sufficiency of the evidence. Finally, the statutory trigger that
mandates issuance of a warrant of execution should be amended to the more realistic, statutory
timeliness mandating the warrant’s issuance only following state post-conviction proceedings, if
any, when the capital defendant failed to file a timely petition for writ of habeas corpus in the
appropriate federal district court, or failed to timely appeal or petition an adverse habeas corpus
decision to the United States Court of Appeals for the Third Circuit.

Clemency

The question that serves as the basis of the study of clemency in the administration of the
death penalty in our Commonwealth is:

Whether the current clemency process has procedures in place to assure that it
functions as a safety net to assure that factual and procedural errors that directly
undermine the reliability and fairness of a capital sentence are remedied;1101

The short answer is, simply, no. The Pennsylvania Constitution has vested exclusive
authority in the Governor to grant reprieves, commutations and pardons.1102 The Governor may
exercise this authority for any reason or no reason, and this includes the circumstance where he
believes the capital sentence is unreliable or unfair. However, the Governor can commute or
pardon a capital sentence only upon receipt of a written and unanimous recommendation from the

1100
42 Pa.C.S. § 9545(b)(1).
1101
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 221.
1102
Pa. Const. art. IV, § 9(a) (Governor has “power to . . . grant reprieves, commutation of sentences and pardons.”).

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Board of Pardons.1103 Likewise, the Board may base its recommendation on any consideration,
including the innocence of the convicted criminal or the unfairness of the sentence.

The composition of the Board of Pardons is a matter of constitutional law.1104 It consists

of the Attorney General; the Lieutenant Governor and three persons appointed by the Governor,
with the approval of the Senate. One appointee “shall be a crime victim, one a corrections expert
and the third a doctor of medicine, psychiatrist or psychologist.”1105 The Administrative Code of
1929 implements Article IV, Section 9.1106 This statute places some limits on the Board, such as
requiring it to notify crime victims of any clemency application and to give victims an opportunity
to comment. The statute also authorizes the Board of Pardons to promulgate regulations. The
Board’s regulations focus on the application process by which a criminal defendant may seek
clemency; they do not articulate the standards by which the Board will exercise its discretion to
recommend that the Governor grant a pardon or commutation of any criminal sentence, capital or
otherwise.

The Board of Pardons serves as a check on any Governor who might wield the clemency
power unwisely, arbitrarily or for political gain. The Board also functions as a clearing house for
clemency applications. The Board of Pardons was not established to provide a “safety net” where
the criminal justice system has failed to produce an accurate and fair judgment of guilt in a capital
case. Accordingly, the Board of Pardons has only limited power, i.e., to make recommendations.
Further, its recommendation can be ignored by the Governor.

The General Assembly could amend the Administrative Code of 1929 to require the Board
of Pardons to consider the reliability or unfairness of a capital sentence in its review of a clemency
application. This would have little efficacy in changing the current state of the clemency process.
First, the recommendation for clemency must be unanimous. Given the diversity in the
composition of the Board, this will be difficult to achieve in any but the most compelling of
circumstances. This is particularly true where the applicant asserts that the capital sentence is
legally invalid because only one Board member, the Attorney General, is required to have legal
training. Second, the Pennsylvania Constitution limits the power of the Board of Pardons. It lacks
the capacity to issue orders; it can only make recommendations. The Board’s governmental power
lies in its ability to prevent the Governor from exercising his clemency power. Third, even if the
Board of Pardons developed specific processes to address unfair and unreliable capital sentences,
and somehow all five members agreed on this point, its clemency recommendation can be rejected
by the Governor, for any reason or no reason.

Were the General Assembly to decide to develop a “safety net” to address unreliable or
unfair capital sentences, it could amend the Post Conviction Relief Act,1107 which already
“provides for an action by which persons convicted of crimes they did not commit and persons

1103
Id.
1104
Id. § 9(b).
1105
Id.
1106
See the acts of Apr. 9, 1929 (P.L.177, No.175), §§ 403, 909, & of Apr. 24, 1931 (P.L.71, No.53) § 1; 71 P.S. §§
113, 299 & 299a.
1107
42 Pa.C.S. §§ 9541-9546.

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serving illegal sentences may obtain collateral relief.”1108 These amendments could confer
additional authority upon the judiciary, beyond that which presently exists, to order relief in a
particular circumstance. Notably, the Governor does not need a recommendation from the Board
of Pardons to grant a reprieve.1109 The Governor’s reprieve power functions as a short-term safety
net to prevent the injustice of an execution of a person whose capital sentence has been entered
improperly. To vest the Board of Pardons with authority to grant pardons or commutation would
require substantial amendments to Article IV, Section 9, of the Pennsylvania Constitution and to
The Administrative Code of 1929.

“Prior to November 4, 1997,” this constitutional provision required a majority instead of a

unanimous recommendation of the Board before the Governor could pardon or commute the
sentence of an individual sentenced in a criminal case to death or life imprisonment.1110 Its
membership also had an attorney instead of a crime victim and a penologist instead of a corrections
expert as board members.1111 To reduce the number of votes needed to support the Board's
recommendation to the Governor that a life sentence or condemnation be commuted or pardoned
would require another amendment. If amended accordingly, which the subcommittee supports,
the Governor would remain free to accept or reject the recommendation for any reason or no
reason.

Appendix D shows the clemency options in each state along with the decisional
authority.1112

Penological Intent

The question that serves as the basis of the study of penological intent in the administration
of the death penalty in our Commonwealth is:

Whether the death penalty rationally serves a legitimate penological intent such as
public safety or deterrence;1113

Four of the generally accepted purposes of criminal punishment include retribution,

deterrence, rehabilitation, and incapacitation.1114 Retribution is based on the premise that “society
has an interest in imposing merited suffering upon offenders proportional to the harm that their
crime caused society.”1115 Deterrence “justifies punishment as a means to prevent future

1108
Id. § 9542. See also, Pa. R. Crim. P. 900-910, which govern capital and noncapital cases under the Post Conviction
Relief Act.
1109
Pa. Const. art. IV, § 9(a).
1110
Pa. Prison Soc’y v. Cortes, 622 F.3d 215, 220-21 (3d Cir. 2010).
1111
Id. at 221.
1112
Infra pp. 229-34.
1113
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 221.
1114
“A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation.”
Ewing v. Cal., 538 U.S. 11, 25 (2003).
1115
Stephen M. LeBlanc, Cruelty to the Mentally Ill: An Eighth Amend. Challenge to the Abolition of the Insanity
Defense, 56 Am. U. L. Rev. 1281, 1314 (2007).

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crimes.”1116 “Rehabilitation is the interest in preventing recidivism through assisting and
facilitating the offender’s transition to a lawful lifestyle”1117 and therefore is obviously not a
justification for the death penalty. Incapacitation justifies punishment “to protect the rest of society
from the danger [criminal offenders] pose.”1118

For the most part, the debate concerning capital punishment centers on the aims of
deterrence, incapacitation and retribution—increasingly the last of these. There is a great deal of
disagreement about whether the death penalty meaningfully advances the deterrence purpose; it
certainly does advance the aims of retribution and incapacitation, and the debate largely centers
on whether it does this more effectively than alternatives. (The death penalty obviously does not
advance the aim of rehabilitation; by definition, it eliminates any possibility that the condemned
person will be rehabilitated.)

Another possible purpose for the death penalty is labeled denunciation, which pronounces
society’s condemnation of the accused for committing a terrible crime. The subcommittee on
policy found little material on this purpose as it applies to the death penalty. In a straightforward
sense, to give the supreme penalty for an offense undoubtedly denounces it in the strongest possible
terms. But death penalty opponents are quick to point out that execution sends a mixed message
by replicating the very act that is the classic—and virtually the only—capital crime.

Uniqueness of the Death Penalty

The U.S. Supreme Court has emphasized that the death penalty is a uniquely severe
punishment, qualitatively different from all other criminal sanctions. The classic articulation of
the “Death Is Different” principle is Justice William J. Brennan’s concurring opinion in Furman
v. Georgia.

Death is today an unusually severe punishment, unusual in its pain, in its finality,
and in its enormity. No other existing punishment is comparable to death in terms
of physical and mental suffering. Although our information is not conclusive, it
appears that there is no method available that guarantees an immediate and painless
death. Since the discontinuance of flogging as a constitutionally permissible
punishment, death remains as the only punishment that may involve the conscious
infliction of physical pain. In addition, we know that mental pain is an inseparable
part of our practice of punishing criminals by death, for the prospect of pending
execution exacts a frightful toll during the inevitable long wait between the
imposition of sentence and the actual infliction of death. . . . .

Death is truly an awesome punishment. The calculated killing of a human being

by the State involves, by its very nature, a denial of the executed person's humanity.
The contrast with the plight of a person punished by imprisonment is evident. An
individual in prison does not lose ‘the right to have rights.’ A prisoner retains, for
example, the constitutional rights to the free exercise of religion, to be free of cruel

1116
Id. at 1317.
1117
Id. at 1319.
1118
Id. at 1321.

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 and unusual punishments, and to treatment as a ‘person’ for purposes of due process
of law and the equal protection of the laws. A prisoner remains a member of the
human family. Moreover, he retains the right of access to the courts. His
punishment is not irrevocable. Apart from the common charge, grounded upon the
recognition of human fallibility, that the punishment of death must inevitably be
inflicted upon innocent men, we know that death has been the lot of men whose
convictions were unconstitutionally secured in view of later, retroactively applied,
holdings of this Court. The punishment itself may have been unconstitutionally
inflicted, yet the finality of death precludes relief. An executed person has indeed
‘lost the right to have rights.’1119

The logical conclusion of this premise, and the one Justice Brennan supported, is that the
death penalty is a “cruel and unusual punishment” prohibited by the Eighth Amendment. Short of
that, the uniqueness of death is recognized by a number of procedural distinctions between it and
any other criminal punishment in Pennsylvania and most other states that use the death penalty,
including special qualifications for legal representation,1120 bifurcation of the guilt and punishment
stages,1121 and automatic appeal to the state Supreme Court.1122 In several states, the supreme
court must conduct a proportionality review to ensure that the death sentence in a case under review
is consistent with sentences in similar cases—a review not mandated for sentences from other
criminal convictions. Acceptance of the principle does not necessarily mandate that a distinction
between death and other sentences must be made regarding every issue, but it does tend in that
direction. In concert with the consensus of the commentators on the death penalty within the legal
academy,1123 this report adopts Justice Brennan’s Death Is Different principle.

Retribution

Louis P. Pojman provides the following summary of the retributivist view: “The
retributivist holds three propositions: (1) that all of the guilty deserve to be punished; (2) that only
the guilty deserve to be punished; and (3) that the guilty deserve to be punished in proportion to
the severity of the crime.”1124 He distinguishes retribution from impermissible vengeance:
“Vengeance signifies inflicting harm on the offender out of anger at what he has done. Retribution
is the rationally supported theory that the criminal deserves a punishment fitting the gravity of the
crime.”1125

1119
408 U.S. 238, 287-88, 290 (1972) (citations omitted).
1120
Pa. R. Crim. P. 801.
1121
42 Pa.C.S. § 9711(a)(1).
1122
Id. § 9711(h)(1).
1123
See Jeffrey L. Kirchmeier, Aggravating & Mitigating Factors: The Paradox of Today’s Arbitrary & Mandatory
Capital Punishment Scheme, 6 Wm. & Mary Bill Rts. J. 345, 457-59 (1998); Jeffrey Abramson, Death-Is-Different
Jurisprudence & the Role of the Capital Jury, 2 Ohio St. J. Crim. L. 117, 164 (2004); Dr. Saby Ghoshray, Tracing the
Moral Contours of the Evolving Standards of Decency: The Sup. Ct.’s Capital Jurisprudence Post-Roper, 45 J. Cath.
Leg. Stud. 561, 627-29 (2006); William W. Berry III, Repudiating Death, 101 J. of Crim. L. & Criminology 441, 492
(2011).
1124
Louis P. Pojman, Why the Death Penalty Is Morally Permissible, in Debating the Death Penalty 56 (Hugo Bedau
& Paul Cassell eds., 2004).
1125
Id. at 57.

- 162 -
 A recent book by Professor Thane Rosenbaum argues that a reasonable measure of
vengeance is an essential element of justice:

The call for justice is always a call for revenge. Despite all the wordplay and mind
games, there is no difference between justice and vengeance. They are one and the
same no matter how much we run away from revenge while falling into the arms
of justice. There is no justice if wrongdoers go unpunished and victims do not feel
avenged; and revenge—restoring honor, evening the score, ensuring that
wrongdoers receive their just deserts—is inseparably linked to living in a just
society, one that is honest about what must be done to those who do harm, and the
opportunity that must be given to individuals to redress the indignity caused by
another. . . . .

[An] objection to revenge and its relationship to capital punishment is the idea that
revenge forces the avenger to stoop to the same level as the wrongdoer. But it’s
really the other way around. It is the wrongdoer’s act that has devalued the victim,
making him low. Vengeance merely brings him back to where he was before the
injury led to his descent. Suggesting that vengeance brings the avenger down to
the same level of the wrongdoer misses the point entirely. The victim is already in
the gutter. Vengeance is the elevator that restores him to his former stature.
Revenge is an action of upward mobility with the avowed purpose of making things
even again. The avenger is neither debased nor dehumanized; there is nothing
downgrading about settling the score. Vengeance is restorative, not diminishing.
1126

The late Hugo Adam Bedau, a leading opponent of the death penalty, explained his
rejection of retribution as a proper aim of the criminal justice system. His view of justice centered
on the Minimum Invasion Principle, which he described as follows:

Given a compelling state interest in some goal or purpose, the government in a

constitutional democracy built on the principle of equal freedom and human rights
for all must use the least restrictive means sufficient to achieve that goal or purpose.
More expansively, the principle . . . holds that if individual privacy, liberty, and
autonomy (or other fundamental values) are to be invaded and deliberately violated,
it must be because the end to be achieved is of undeniable importance to society,
and no less severe interference will suffice.1127

In Bedau’s view, this principle requires the abolition of the death penalty because “[l]ong-
term imprisonment is sufficient as an invasion of individual liberty, privacy, and autonomy (and
other fundamental values) to achieve valid social goals.”1128

1126
Thane Rosenbaum, Payback: The Case for Revenge 27, 200 (2013). Rosenbaum uses “vengeance” in a different
sense from Pojman, perhaps as punishment motivated by the anger of the survivors, but regulated by law.
1127
Hugo Bedau, An Abolitionist’s Survey of the Death Penalty in Am. Today, in Bedau & Cassell, supra note 1124,
at 32.
1128
Id. at 33.

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 Considering the goal of retribution within this conceptual framework, he first argues that
retribution is supplied by the application of the punitive measure specifically to the guilty person:

[P]unishment . . . is a retributive act, insofar as the only persons deemed eligible

for punishment are persons judged to be guilty of a crime and thought to be
deserving of punishment because of their guilt. A system of inflicting deprivations
on persons in the name of punishment that lacked this retributive element would be
a danger to us all.

Second, I do not believe it is rational to assign as one of the legitimate goals of a

system of punishment the exaction of retribution in some special fashion or further
degree that goes beyond the inherently retributive nature of any system of
punishment, as described above. Thus life imprisonment for murder is every bit as
retributive as the death penalty for murder, even if it is less severe.1129

Bedau argues that the principles relied on by retributivists lend no substantial support to
the death penalty:

I will not quarrel with appeal to a general principle of desert: “Wrongdoers deserve
to be punished.” But by itself, this principle provides no defense of the death
penalty; it is fully satisfied by a lesser punishment, such as imprisonment. The
proposition that “murderers deserve to die” obviously does support the death
penalty, but it does so by essentially begging the question. Why do murderers
deserve to die when rapists do not deserve to be raped (or do they? and by whom?)?
. . . Retributive considerations rightly tell us who deserves to be punished—it is the
guilty. But it does not tell us what the punishment ought to be. Relying on some
version of lex talionis is of no help in building a systematic and comprehensive
schedule of punishments for crimes. . . . .

A similar conclusion is reached if we invoke another retributive principle: “The

graver the crime, the greater the punishment deserved.” No doubt some such
principle of proportionality will be incorporated into any reasonable theory of
punishment. By itself, however, this principle does not defend the death penalty.
If murder is the gravest crime, then under this principle it warrants the severest
punishment. But that punishment could surely be (as it is in the typical abolition
jurisdiction) some form of long-term imprisonment.1130

Bedau does not deny that the death penalty advances the aim of retribution as he defines
it: execution meets his test by identifying the perpetrator for special punitive treatment. He objects
to the death penalty because it violates the Minimal Invasion Principle. Long-term imprisonment
also singles out the guilty for substantial punishment and does so in a less severe, and therefore, a
less invasive manner than the death penalty.

1129
Id. at 41.
1130
Id. at 41-42.

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 Like other opponents of the death penalty, Justice Thurgood Marshall argued that
retribution, as Rosenbaum defines it, is not a proper purpose for a contemporary penal system. In
his dissenting opinion in Gregg v. Georgia, he identified four meanings of retribution. The first is
similar to Bedau’s in that it requires that punishment be directed against the perpetrator. 1131
Secondly, retribution satisfies the instinctive need to punish one who has committed a serious
crime, and the punishment must be severe enough to satisfy the public that the murderer has
received the punishment he deserves.1132 Marshall denied this justified the death penalty: “It
simply defies belief that the death penalty is necessary to prevent the American people from taking
the law into their own hands.”1133 Thirdly, retribution expresses society’s moral outrage and
demonstrates to the public that the perpetrator’s crime is wrong (similar to the concept of
denunciation).1134 Again, for Marshall, this theory lends no support for the death penalty: “It is
inconceivable that any individual concerned about conforming his conduct to what society says is
‘right’ would fail to realize that murder is ‘wrong’ if the penalty were simply life
imprisonment.”1135

Most disturbing to Justice Marshall were the indications from some members of the Gregg
Court that they accepted the fourth view of retribution: the “purely retributive justification for the
death penalty that the death penalty is appropriate, not because of its beneficial effect on society,
but because the taking of the murderer’s life is in itself morally good.”1136 Marshall considered
this idea to be “fundamentally at odds with the Eighth Amendment.”1137

To be sustained under the Eighth Amendment, the death penalty must ‘compor(t)
with the basic concept of human dignity at the core of the Amendment,’ the
objective in imposing it must be ‘(consistent) with our respect for the dignity of
(other) men.’ Under these standards, the taking of life ‘because the wrongdoer
deserves it’ surely must fall, for such a punishment has as its very basis the total
denial of the wrong-doer’s dignity and worth.1138

Underlying Marshall’s view is the Court’s seminal statement in Trop v. Dulles1139 that the Eighth
“Amendment must draw its meaning from the evolving standards of decency that mark the
progress of a maturing society.”1140

The death penalty advances the purpose of retribution, but, as we shall see, life
imprisonment without parole does this sufficiently to obviate the need for the death penalty.

1131
Gregg v. Georgia, 428 U.S. 153, 237 (1976) (Marshall, J., dissenting).
1132
Id. at 238.
1133
Id.
1134
Id.
1135
Id.
1136
Id. at 239.
1137
Id. at 240.
1138
Id. at 240-41 (citations omitted).
1139
356 U.S. 86 (1958).
1140
Id. at 101.

- 165 -
Deterrence

Whether the death penalty deters first-degree murder has long been a matter of debate
between proponents and opponents of the death penalty. The evidence relating to deterrence is
inconclusive, and leading advocates on both sides treat this issue as one of more or less secondary
importance. In a state like Pennsylvania with a relatively large number of death sentences but
almost no executions, the deterrent effect of the death penalty is attenuated, regardless of whether
a more vigorously applied death penalty would have a deterrent effect.1141

A prominent research study of the death penalty’s effectiveness as a deterrent reached this
noncommittal conclusion:

[R]esearch to date on the effect of capital punishment on homicide is not

informative about whether capital punishment decreases, increases, or has no effect
on homicide rates. Therefore, . . . these studies [should] not be used to inform
deliberations requiring judgments about the effect of the death penalty on homicide.
Consequently, claims that research demonstrates that capital punishment decreases
or increases the homicide rate by a specified amount or has no effect on the
homicide rate should not influence policy judgments about capital punishment.1142

This study identified three flaws that characterize the research into this issue:

 The studies do not factor in the effects of noncapital punishments that may also
be imposed.

 They use incomplete or implausible models of potential murderers’ perceptions

of and response to the use of capital punishment, such as the assumption that
would-be murderers accurately perceive the likelihood of execution.

 Estimates of the effect of capital punishment are based on statistical models that
make assumptions that are not credible, such as the assumption that the effect
of capital punishment is the same regardless of place and time.1143

An opinion survey of criminal law scholars conducted late in the 1990s concluded that
“there is a wide consensus among America’s top criminologists that scholarly research has
demonstrated that the death penalty does, and can do, little to reduce rates of criminal violence.”1144
A more recent analysis of the research on the causes of the decline in the crime rates concluded
that “the death penalty does not have an effect on bringing down crime.”1145

1141
Steiker & Steiker, supra note 115, at 1922.
1142
Nat’l Research Council of the Nat’l Acads., supra note 116, at 102.
1143
Id. at 101-02.
1144
Michael L. Radelet & Ronald L. Akers, Deterrence & the Death Penalty: The Views of the Experts, 87 J. Crim.
L. & Criminology 1, 10 (1996).
1145
Dr. Oliver Roeder et al., What Caused the Crime Decline? 43 (2015), available at
https://www.brennancenter.org/sites/default/files/analysis/What_Caused_The_Crime_Decline.pdf. “The findings
show a very weak negative relationship between the use of the death penalty and crime that is essentially zero. The
same is true for the effect of the use of the death penalty on homicides specifically.” Id. at 45.

- 166 -
 A meticulous examination of the various studies on the deterrent effect of the death penalty
by John B. Donahue and Justin Wolfers, scholars affiliated with Yale Law School and the Wharton
School respectively, also concluded that the evidence is inconclusive:

We find that the existing evidence for deterrence is surprisingly fragile, and even
small changes in specifications yield dramatically different results. Our key insight
is that the death penalty—at least as it has been implemented in the United States
since Gregg ended the moratorium on executions—is applied so rarely that the
number of homicides it can plausibly have caused or deterred cannot be reliably
disentangled from the large year-to-year changes in the homicide rate caused by
other factors. Our estimates suggest not just “reasonable doubt” about whether
there is any deterrent effect of the death penalty, but profound uncertainty. We are
confident that the effects are not large, but we remain unsure even of whether they
are positive or negative. The difficulty is not just one of statistical significance:
whether one measures positive or negative effects of the death penalty is extremely
sensitive to very small changes in econometric specifications. Moreover, we are
pessimistic that existing data can resolve this uncertainty.1146

This study is very critical of studies that purport to show a substantial deterrent
effect for the death penalty.1147

One opposing point of view is offered by Kent Scheidegger of the Criminal Justice Legal
Foundation, one of the Nation’s leading proponents of the death penalty, who claims that the
Donahue and Wolfers study was published in a law review, not a social science journal, and thus,
he claims, avoided peer review by scholars with the relevant expertise.1148 Scheidegger claims
that most of the studies support a deterrence effect, and his foundation has posted a purportedly
complete list of all the relevant studies and their conclusions on its website.1149

Another related argument made by opponents of the death penalty is that there is no proof
that the death penalty is a better deterrent than life imprisonment without parole. If this is the case,
then the Minimum Invasion Principle, or any other principle that forbids the infliction of
unnecessary harm, mandates the use of life imprisonment without parole in all cases in preference
to the death penalty. One such opponent was Hugo Bedau:

[F]or the sake of argument, let us suppose that the death penalty as currently
employed does have a marginally superior deterrent effect. Such an effect is of
little use in defending the death penalty because the supposed benefit is obtained at
an unacceptable cost. . . . [T]he more a jurisdiction uses the death penalty, the

1146
John J. Donahue & Justin Wolfers, Uses & Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan.
L. Rev. 791, 794 (2006).
1147
Id. at 842-43.
1148
Kent Scheidegger, Legal Director, Crim. Just. Legal Found., Statement to the Cal. Comm’n on the Fair Admin. of
Just. 2 (Apr. 11, 2008), available at http://www.cjlf.org/deathpenalty/ScheideggerCCFAJStatement.pdf. (The real or
apparent knowledge of statistical method displayed in the article at issue was sufficient to impress J. State Gov’t
Comm’n staff.)
1149
Crim. Just. Legal Found., Tally of Death Penalty Deterrence Studies,
http://www.cjlf.org/deathpenalty/dpdeterrence.htm (last visited May 13, 2018).

- 167 -
 greater the likelihood it will make mistakes—notably, the mistake of convicting the
innocent or the mistake of sentencing to death offenders whose crimes should not
have made them death-eligible.1150

The subcommittee on policy agrees with this analysis.

Conversely, Paul Cassell vigorously defends the deterrent effect of capital punishment on
a slightly different basis.1151 He appeals to common sense, anecdotal evidence and social science
studies in concluding that the death penalty may deter at least those who carefully calculate the
homicidal act.1152 (Even Bedau concedes that the death penalty can have some deterrent effect:
“Common sense assures us that punishments generally serve to deter some persons from some
crimes on some occasions. There is no reason to think that the death penalty is an exception.”1153)
In particular, Cassell emphasizes the importance of the death penalty for deterring murder by
prisoners serving life imprisonment without parole since they have a “‘license to kill’ if there is no
death penalty.”1154

In further support of his argument, former Judge Cassell cites statistical comparisons that
may show a deterrent effect for the death penalty. Because of the many factors that affect the
murder rate in different states, the lack of a difference between death and non-death states does
not settle the issue. Comparing murder rates for 1968 through 1976 (when there were no
executions) with 1995-2002, there was a decline in the murder rate that was largest in the states
that used the death penalty most vigorously. Several other studies found that the death penalty
may deter five to 18 murders per execution.1155 At the same time, conservative death penalty
supporter Jonah Goldberg observes: “Deterrence may have some validity, but it cannot alone
justify the death penalty. It is wrong to kill a man just to send a message to others.”1156

The consensus of the subcommittee on policy is that there is no definitive proof whether
capital punishment deters murder. Because of this, there is no substantial evidence that the death
penalty significantly advances the deterrence purpose. Plenty of murderers fail to fully calculate
the consequences of their actions. Many of them offer mitigating circumstances, such factors as
poverty, low intelligence, child abuse or neglect by their parents, mental illness, or brain damage.
Consequently, they act out of impulse, or, if the crime is planned in advance, they delude
themselves that they are unlikely to be caught. When they are formulating the intent to murder,
they do not fully take account of consequences. In particular, it is unlikely that any difference in
deterrent effect between life imprisonment without parole and the death penalty will dissuade a
significant proportion of would-be murderers from carrying out the act.

1150
Hugo Bedau, supra note 1124, at 39. Bedau relies for his factual premise on research by James S. Liebman.
1151
Hon. Paul G. Cassell, In Defense of the Death Penalty in Bedau & Cassell, supra note 1124, 189-97.
1152
Hon. Paul G. Cassell, In Defense of the Death Penalty, IAJC J. 14, 17 (Summer 2008).
1153
Bedau, supra note 1124, at 39.
1154
Cassell, supra note 1124, at 190-92.
1155
Id. at 192-97.
1156
Jonah Goldberg, In Defense of Capital Punishment, Nat’l Rev. (May 7, 2014),
http://www.nationalreview.com/article/377351/defense-capital-punishment-jonah-goldberg.

- 168 -
 To know the effectiveness of deterrence, one would need to understand “how potential
murderers perceive sanction regimes.”1157 The perception of the risk of these regimes is
“subjective, but researchers have no direct measurements of the perceptions of potential
murderers.”1158 Instead, researchers “use publicly available statistical data on homicides and
executions to construct statistics that purport to measure the objective risk of execution” and “then
assume that potential murderers . . . carefully assess the risk of execution.”1159 This assumption
“has no empirical foundation. Indeed, it hardly seems credible.”1160 Keep in mind that a relatively
small percentage of condemnees are executed and a larger percentage of death sentences are
vacated.1161 The availability of plea bargains, instability of a state’s sanction regimes and
geographical variability within a state further complicate any purported or assumed perceptions of
potential murderers.1162

Incapacitation and Public Safety

A classic aim of criminal justice is to ensure that a person who has committed a crime is
rendered powerless to do further injury to the public for the duration of the sentence. An execution
assures that the person executed will never harm anyone else. However, life imprisonment without
parole also provides a substantial assurance for the general public and even for prison inmates and
the correctional personnel who supervise them.

There is a considerable consensus among observers that, in most cases, convicts potentially
subject to the death penalty pose little threat to other inmates and are model, or at least manageable,
prisoners.1163 “As a general matter . . . self-interest guides lifers to avoid trouble because trouble
jeopardizes the few privileges they can secure in the prison world and, moreover, can land them
in very grim living environments.”1164

However, others point out that a minority of life imprisoned without parole inmates are
extremely dangerous: they have murdered prison guards, fellow inmates, and (through associates)
witnesses.

[P]rison murders, escapes, and retaliation murders illustrate the difficulty in

segregating and controlling all of the violent offenders who will kill even with
limited resources. Because they have little to lose, the control of an inmate serving
life without parole is a formidable challenge. Life without parole is simply no
panacea.1165

1157
Nat’l Research Council of the Nat’l Acads., supra note 116, at 105.
1158
Id. at 106.
1159
Id.
1160
Id.
1161
Id.
1162
Id. at 104, 106. States’ sanction regimes can be unstable due, e.g., to legal decision; geographical variability
within a state refers the variance of “prosecutorial vigor in the use of the death penalty”. Id. at 106.
1163
Robert Blecker, supra note 733, at 94; Robert Johnson & Sandra McGunigall-Smith, Life without Parole, Am.’s
Other Death Penalty: Notes on Life under Sentence of Death by Incarceration, 88 Prison J. 328, 329 (2008).
1164
Johnson & McGunigall-Smith, supra note 1163, at 331.
1165
Richard B. Roper, The Death Penalty at the Intersection of Reality & Just., 41 Tex. Tech L. Rev. 15, 25 (2008).

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 Life imprisonment without parole represents a compromise between the death penalty and
life with parole:

In the future, wrongful convictions in death penalty cases should be even more
remote. With most states and the federal government adding life without parole,
death penalty prosecutions in which guilt/innocence is a genuine issue should
diminish. From my observations, when parole is available to defendants who
receive a “life” sentence, many prosecutors more aggressively pursue capital
charges in an effort to guarantee that the defendant does not return to society. The
fear of paroling brutal murderers gives prosecutors a greater incentive to pursue
capital charges where proof, although sufficient to convict, is less than
overwhelming. Conversely, life without parole provides an option for prosecutors
who wish to avoid the rigors of a death penalty trial but, at the same time, provide
some measure of protection to society outside of prison.1166

The subcommittee on policy concludes that while the death penalty clearly advances the
aim of incapacitation, it is little better in that regard than life imprisonment without parole.

Legitimate Penological Intent of Death Penalty

Penological intent Rationally serve

Retribution yes1167
Specific--yes1168
Deterrence (pub. safety)
Gen.--possibly1169
Incapacitation Yes1170
Denunciation Yes1171
Restoration No1172
Rehabilitation No1173

1166
Id. at 27-28. The author served as U.S. Att’y (N.D.Tex. 2004-2008).
1167
Supra pp. 162-65.
1168
Supra pp. 166-69. Specific deterrence applies to the person sentenced. “Perhaps the most straightforward
argument for the death penalty is that it saves innocent lives by preventing convicted murderers from killing again.”
Cassell, supra note 1152, at 16.
1169
Supra pp. 166-69. General deterrence applies to potential murderers among the general public.
1170
Supra p. 169-70.
1171
Supra p. 161. This is public censure, which condemnation would exemplify in the strongest of terms.
1172
“[R]estorative justice processes ideally allow for a voluntary, face-to-face dialogue between the person who
committed the harm, the victim, and community members supporting the person who harmed and the victim. This
dialogue is intended for the victim to identify his needs, and for the person who harmed to take accountability for her
actions and to come up with ways in which she can meet the victim’s needs. Restorative justice does not seek to
alienate or isolate people who commit crimes, but instead to offer community support that will allow the person who
harmed to successfully meet her obligations to the victim. Restorative justice is not punitive.” Nat’l Council on Crime
& Delinquency, What Is—and Is Not—Restorative Justice? (Aug. 20, 2013),
https://www.nccdglobal.org/newsroom/nccd-blog/what-and-not-restorative-justice.
1173
Supra pp. 160-61.

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 Innocence

The question that serves as the basis of the study of innocence in the administration of the
death penalty in our Commonwealth is:

Whether there is a risk of execution of an innocent person and whether there are
adequate procedural protections in place to prevent an innocent person from being
sentenced to death and executed;1174

It is not possible to put adequate procedural protections in place to prevent the execution
of an innocent person. There is a conceivable possibility that the Commonwealth could execute
an innocent person.

Since 1973, 162 inmates sentenced to death in the United States have been exonerated of
their charges.1175 These inmates spent an average of 11.3 years on death row before their
exonerations.1176 The six Pennsylvania exonerees -- Neil Ferber, Jay Smith, William Nieves,
Thomas Kimbell, Nicholas Yarris, and Harold Wilson -- spent, on average, nine years on death
row before being exonerated.1177 There have been 20 exonerations in the U.S. based on DNA
evidence, including Nicholas Yarris, who spent 21 years on Pennsylvania’s death row.1178

Whether or not the Commonwealth may execute an innocent person is a two-prong

question:

1) Is it possible for adequate procedural protections to be put in place so as to make

executing an innocent person impossible?
2) If these protections are not possible, is there a foreseeable risk that the
Commonwealth could execute an innocent person, or is it a theoretical one-in-a-
million possibility?

There is no way to put procedural safeguards in place that will guarantee with 100%
certainty that the Commonwealth will not execute an innocent person. Following the U.S.
Supreme Court’s decision in Gregg v. Georgia, the resumption of executions was predicated on
the fact that the Court believed that states were able to build capital punishment systems that would
be applied fairly and in accordance with the Eighth Amendment of the U.S. Constitution.1179 Most
modern capital cases, including those in the Commonwealth, require a unanimous jury verdict for

1174
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A., infra p. 221.
1175
Death Penalty Information Ctr., The Innocence List, https://deathpenaltyinfo.org/innocence-list-those-freed-
death-row (last updated Apr. 19, 2018). This number includes those who were “acquitted of all charges related to the
crime that placed them on death row, or . . . [h]ad all charges related to the crime that placed them on death
row dismissed by the prosecution or the courts, or” were pardoned “based on evidence of innocence.” Id. For the
Commonwealth’s six, four of them were acquitted and the charges were dismissed for the remaining two.
1176
Id.
1177
Id.
1178
Id.
1179
428 U.S. 153, 195.

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both conviction of the crime and the sentence of death,1180 in which the jurors must weigh
aggravating and mitigating factors.1181 Despite these safeguards, the 162 national exonerations,
including the six Pennsylvania exonerations, show that states have been unsuccessful in their
efforts to create capital punishment systems capable of guaranteeing with 100% certainty that an
innocent person will not be sentenced to death.

Whether or not wrongful death sentences translate into wrongful executions is a more
controversial question. Procedural safeguards built into the appeals process were able to prevent
the wrongful executions of the 162 exonerees, although it averaged more than a decade for these
individuals to be exonerated. However, several executions have been carried out in the U.S.
despite significant evidence of innocence. For example, Cameron Todd Willingham was
convicted and sentenced to death in Texas based on debunked forensic arson evidence.1182 He was
executed in 2004.1183 Carlos DeLuna was executed in Texas in 1989.1184 Evidence emerged that
the actual killer was Carlos Hernandez, and that official misconduct allowed Texas to execute “the
other Carlos”.1185

These cases, along with the number of exonerations, shows that states have failed to put
into place procedural safeguards that can guarantee with 100% certainty that innocent individuals
will not be sentenced to death and executed. It is important to note that Pennsylvania has not
recently had the type of controversial execution seen in the Willingham or DeLuna cases. All
three individuals executed by the Commonwealth in the modern death penalty era were only
executed after foregoing further appeals.1186 There is no reason to believe that the absence of
controversial executions in the Commonwealth is the result of its systematic superiority. An
unavoidable fact of capital punishment is that as long as it exists, it remains possible that an
innocent person will be executed. Pennsylvania is not exempt from this.

The prevalence of capital exonerations and controversial executions shows that the chance
of executing an innocent person is a conceivable possibility. Further evidence of this possibility
is found in studies of wrongful convictions. In 2014, a report published in the Proceedings of the
National Academy of Sciences concluded that 4.1% of individuals convicted and sentenced to
death in the U.S. were wrongfully convicted during the time period from 1973-2004.1187 The
authors note that this is a “conservative estimate” of the proportion of wrongful capital convictions,
and that the real proportion may be higher.1188

1180
Death Penalty Information Ctr., State by State Database, https://deathpenaltyinfo.org/state_by_state (2018).
1181
Appdcs. B, C, infra pp. 223-28.
1182
Steve Mills & Maurice Possley, Man Executed on Disproved Forensics, Chicago Tribune (Dec. 9, 2004),
http://www.chicagotribune.com/news/nationworld/chi-0412090169dec09-story.html.
1183
Id.
1184
Death Penalty Information Ctr., Executed but Possibly Innocent, https://deathpenaltyinfo.org/executed-possibly-
innocent#carlos (2018).
1185
Id.
1186
Death Penalty Information Ctr., Pa., https://deathpenaltyinfo.org/pennsylvania-1 (2018). “The three prisoners
executed since 1978 have all been volunteers with serious mental health issues, whom courts found to have waived
their rights to an appeals process.” Id., supra notes 7, 8.
1187
Samuel R. Gross et al., Rate of False Conviction of Crim. Defendants Who Are Sentenced to Death, PNAS 7230,
7231, 7234 (May 20, 2014), available at http://www.pnas.org/content/pnas/111/20/7230.full.pdf.
1188
Id at 7230, 7234.

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 The implications of this study are sobering. Over the time period analyzed in the study,
1.6% of death row inmates were exonerated of their charges.1189 This suggests that 2.5% of death
row inmates were wrongfully convicted but not exonerated. According to the study’s lead author,
University of Michigan Law School professor Samuel Gross, “[t]here are a large number of people
who are sentenced to death, and despite our best efforts some of them have undoubtedly been
executed.”1190

Applied to Pennsylvania, this analysis suggests that there are wrongfully convicted inmates
on the Commonwealth's death row. In 2004, the last year covered in the study, Pennsylvania had
225 inmates on its death row.1191 Assuming the rate of wrongful capital convictions is 4.1%,
Pennsylvania would have had approximately 9.2 wrongfully convicted inmates on its death row.
Yet since 2004, we have only had one death row exoneration, that of Harold Wilson in 2005.1192
If the proportion of wrongful convictions held true over time, then there would be an estimated
seven wrongfully convicted inmates on Pennsylvania’s death row in 2017.1193

It is important to note that the estimate of 4.1% of wrongfully convicted death row inmates
assumes that “all death-sentenced defendants remained under sentence of death indefinitely”.1194
Death row inmates have far more resources at their disposal to fight their convictions than those
not under a sentence of death.1195 As a result, a disproportionate number of U.S. exonerations
come from death row.1196

Death sentences represent less than one-tenth of 1% of prison sentences in the

United States, but they accounted for about 12% of known exonerations of innocent
defendants from 1989 through early 2012, a disproportion of more than 130 to 1. A
major reason for this extraordinary exoneration rate is that far more attention and
resources are devoted to death penalty cases than to other criminal prosecutions,
before and after conviction.1197

“Death sentences are different”, and therefore are subject to additional judicial scrutiny.1198
Death sentences frequently do not meet the standards of this scrutiny and are overturned, with
inmates being re-sentenced to a different disposition. From 1973-2013, there were 188 overturned
death sentences in the Commonwealth,1199 or about 45% of all death sentences imposed during

1189
Id at 7231.
1190
Ed Pilkington, US Death Row Study: 4% of Defendants Sentenced to Die are Innocent, Guardian (Apr. 28, 2014),
https://www.theguardian.com/world/2014/apr/28/death-penalty-study-4-percent-defendants-innocent.
1191
Appdx. I, infra p. 255.
1192
“Wilson was convicted of triple homicide in 1989 and sentenced to death. He was thereafter granted a new trial
and ultimately acquitted after spending approximately fifteen years in prison.” Wilson v. City of Phila., 415 Fed.
Appx. 434, 435 (3d Cir. 2011) (citation omitted).
1193
Based on 169 death row inmates. Death Penalty Information Center, The Death Penalty in 2017: Yr. End Rep.
3, https://deathpenaltyinfo.org/documents/2017YrEnd.pdf.
1194
Gross et al., supra note 1187, at 7230.
1195
Id.
1196
Id. at 7231.
1197
Id. at 7230.
1198
Id.
1199
Bureau of Just. Statistics, U.S. Dep’t of Just., Capital Punishment, 2013-Statistical Tables 20,
https://www.bjs.gov/content/pub/pdf/cp13st.pdf (last revised Dec. 19, 2014).

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this time period.1200 Once individuals are no longer “under threat of execution”, it is less likely
that they will be exonerated because their cases are no longer subject to the judicial scrutiny and
legal resources of a capital case.1201 There is a strong possibility that wrongfully convicted death
row inmates have had their death sentences overturned but have not been exonerated: “the great
majority of innocent defendants who are convicted of capital murder in the United States are
neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then
forgotten”.1202 Given the high number of overturned death sentences in the Commonwealth, it is
likely true that wrongfully convicted individuals sentenced to death have been re-sentenced to a
term of incarceration. While these individuals are no longer at risk of being wrongfully executed,
they are wrongfully imprisoned by Pennsylvania’s capital punishment system.

“[T]he most fundamental principle of American jurisprudence” is “that an innocent man

not be punished for the crimes of another.”1203 The subcommittee on procedure generally endorses
Report of the Advisory Committee on Wrongful Convictions and particularly points to its
proposals as a roadmap to justice.1204 These proposals have received legislative consideration
since publication of this report but have not been enacted. If implemented, they would operate
both as a prophylaxis to prevent wrongful convictions and also enhance the ability of an innocent
convict to obtain relief if the prophylaxis was not in place or failed.1205 “[I]n the first instance, it
is law enforcement—not the courts—that can best ensure against an undue risk of convicting the
innocent”; however, “the integrity of the criminal justice system demands that we do better”,1206
which requires continuing reconsideration of the adequacy procedural protections by all branches
of government. “The source of public confidence in our criminal justice system resides in its
ability to separate those who are guilty from those who are not.”1207

Alternatives

The question that serves as the basis of the study of alternatives in the administration of the
death penalty in our Commonwealth is:

1200
Based on 417 total death sentences from 1973-2013. Id.
1201
Gross et al., supra note 1187, at 7231.
1202
Id. at 7235.
1203
Commw. v. Conway, 14 A.3d, 101, 114 (Pa. Super. Ct. 2011).
1204
Pa. J. State Gov’t Comm’n, supra note 18, at 167-207.
1205
Pa. Dist. Att’ys Ass’n has an ad hoc comm. on best practices “to identify best practices, research, and legal methods
to assist in the proper and just evolution of the criminal justice system. Created in 2014, the committee formalized
PDAA’s long history of identifying and promoting reforms and efficiencies in order to protect the innocent, convict
the guilty, and ensure justice for the victims of crime.” Pa. Dist. Att’ys Ass’n, Pa. Dist. Att’ys Issue Best Practices on
Body-Worn Cameras (May 23, 2018), http://www.pdaa.org/pennsylvania-district-attorneys-issue-best-practices-on-
body-worn-cameras/#. These practices, however, are not binding.
1206
Dennis v. Pa. Sec’y of Corrections, 834 F.3d 343-44 (3d Cir. 2016) (McKee, C.J., concurring).
1207
Pa. J. State Gov’t Comm’n, supra note 18, at 1.

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 Whether alternatives to the death penalty exist that would sufficiently ensure public
safety and address other legitimate social and penological interests;1208

While the topics of penological purpose are analytically distinct, to consider the
penological purpose of the death penalty without regard to alternatives inserts the artificial
assumption that the only alternative to the death penalty would be to set the perpetrator free.
Because the severely punitive alternative of life imprisonment without parole is available, the
subcommittee on policy concludes that the death penalty is unnecessary, given the many objections
to its use and the effectiveness of the alternative.

Since our judicial system does not tolerate severe corporal punishment (other than the death
penalty), the only serious alternative to the death penalty is a lengthy term of imprisonment. Under
current Pennsylvania law, the penalty for aggravated first-degree murder is either death or life
imprisonment.1209 There are alternative sentences, such as a very lengthy prison term (e.g., 30 or
40 years) or life with the possibility of parole, but the subcommittee on policy views a sentence
less harsh than life imprisonment as probably insufficiently severe for a crime that could qualify
for the death penalty.

Constitutional Standard for Conditions of Incarceration

The leading case on the Eighth Amendment standard applied to imprisonment is Farmer
v. Brennan.1210 A transsexual prisoner was attacked by another inmate in a federal prison.1211 He
sued the prison administration for damages under 42 Pa.C.S. § 1983, which makes a state liable
when it denies a citizen his or her constitutional rights, in this case, the right to be free from cruel
and unusual punishment. The Supreme Court applied the Cruel and Unusual Punishment Clause
to prison conditions in these terms:

The Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones, and it is now settled that “the treatment a prisoner receives in prison
and the conditions under which he is confined are subject to scrutiny under the
Eighth Amendment.” In its prohibition of “cruel and unusual punishments,” the
Eighth Amendment places restraints on prison officials, who may not, for example,
use excessive physical force against prisoners. The Amendment also imposes
duties on these officials, who must provide humane conditions of confinement;
prison officials must ensure that inmates receive adequate food, clothing, shelter,
and medical care, and must “take reasonable measures to guarantee the safety of
the inmates.”

In particular, as the lower courts have uniformly held, and as we have assumed,
“prison officials have a duty to . . . protect prisoners from violence at the hands of
other prisoners.” . . . .

1208
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 221.
1209
42 Pa.C.S. § 9711.
1210
511 U.S. 825 (1994).
1211
Id. at 829-30.

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 The second requirement follows from the principle that “only the unnecessary and
wanton infliction of pain implicates the Eighth Amendment.” To violate the Cruel
and Unusual Punishments Clause, a prison official must have a “sufficiently
culpable state of mind.” In prison-conditions cases that state of mind is one of
“deliberate indifference” to inmate health or safety. . . .

[A] prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference. . . . The Eighth
Amendment does not outlaw cruel and unusual “conditions”; it outlaws cruel and
unusual “punishments.” An act or omission unaccompanied by knowledge of a
significant risk of harm might well be something society wishes to discourage, and
if harm does result society might well wish to assure compensation. The common
law reflects such concerns when it imposes tort liability on a purely objective basis.
But an official's failure to alleviate a significant risk that he should have perceived
but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.1212

In propounding these principles, the Court balanced the Constitution’s prohibition of brutal
and inhumane conditions against the interest of the State and its citizens in maintaining the
penological purposes of punishing the offense and deterring would-be offenders from committing
similar crimes. Prison conditions may be punitive, but they are forbidden to be abusive.

Life Imprisonment without Parole

In the U.S. penal system, life imprisonment without parole is the most severe sentence
short of the death penalty. In Graham v. Florida, the U.S. Supreme Court compared these
sentences:

[L]ife without parole is “the second most severe penalty permitted by law.” It is
true that the death penalty is “unique in its severity and irrevocability,” yet life
without parole sentences share some characteristics with death sentences that are
shared by no other sentences. The State does not execute the offender sentenced to
life without parole, but the sentence alters the offender’s life by a forfeiture that is
irrevocable. It deprives the convict of the most basic liberties without giving hope
of restoration, except by executive clemency—the remote possibility of which does
not mitigate the harshness of the sentence. As one court observed . . ., this sentence
means “denial of hope; it means that good behavior and character improvement are
immaterial; it means that whatever the future might hold in store for the mind and
spirit of [the convict], he will remain in prison for the rest of his days."1213

1212
Id. at 832-33, 834, 837-38 (citations omitted).
1213
560 U.S. 48, 69-70 (2010) (citations omitted).

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 When poll respondents who support the death penalty are told that life imprisonment
without parole can be an alternative, support for capital punishment drops below 50%. Because
of the problems associated with the death penalty, life imprisonment without parole is gaining
more attention and support:

As a practical matter, it is life without parole that is the sure and swift penalty, not
the death penalty. Moreover, life without parole is increasingly popular with the
public—more popular in recent years than the death penalty. Support for the death
penalty drops dramatically when the sanction of life without parole is an option.
The popularity of life without parole appears to reflect the belief that this sanction
may be a better deterrent than the death penalty (because it is more certain) and,
moreover, that life without parole is a penalty that spares us the risk of executing
an innocent man or woman. There is also the belief held by many that a life
sentence without the possibility of parole guarantees that the offender will suffer
greatly for the remaining days of his or her life.1214

The late James Q. Wilson, a prominent sociologists and supporter of the death penalty,
advocated that capital juries be given the alternative of life imprisonment without parole, so that
jurors could “hedge their bets” if they had “some doubts about the strength of the evidence or some
other plausible worry.”1215 Former judge and director of Federal Bureau of Investigation William
Sessions advocated a sentence short of death that jurors believed was sufficiently protective of
society.1216 James Liebman proposed that life imprisonment without parole should be clearly
presented to capital juries as an alternative.

Providing support for [Wilson’s and Sessions’s] views, analyses show that (1)
jurors are capable of identifying offenders for whom the death penalty is not
warranted as long as there are strong assurances that the offender will remain in
prison until he is no longer a threat to society, but that (2) jurors usually will not
impose life verdicts in such cases—even though they believe the death penalty is
not required—unless they are assured by the trial judge that the defendant will not
be eligible for parole.1217

Life imprisonment without parole is not a lenient punishment. For almost all inmates, the
permanent or extended deprivation of liberty is undoubtedly a severe hardship.
Offenders sentenced to death by incarceration suffer “a civil death.” Their freedom—the
essential feature of our civil society—has come to a permanent end. These prisoners are physically
alive, of course, but they live only in prison. It might be better to say they “exist” in prison, as
prison life is but a pale shadow of life in the free world. Their lives are steeped in suffering. The
prison is their cemetery, a cell their tomb.1218

1214
Johnson & McGunigall-Smith, supra note 1163, at 332.
1215
Liebman et al., supra note 725, at 404.
1216
Id.
1217
Id.
1218
Johnson & McGunigall-Smith, supra note 1163, at 329.

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 Certainly it is irrational to believe that LWOP is too commodious for inmates. For
many inmates, the pains of imprisonment—whether those contemplated by law—
like loss of freedom and loss of outside relationships, or illegitimate ones such as
predation by other inmates—make prison such a painful experience that whatever
minimal pleasures are available effectively make no dent in the prisoner’s misery.
For these inmates, prison is an earthly “hell” that is highly retributive. (It bears
emphasizing that to the extent the pain is imposed by other inmates rather than
official policy, such retribution is illegitimate.)1219

Prison Conditions in the U.S.

The soundness of the claim that life imprisonment without parole supplies the deterrence
and retribution purposes of criminal justice depends in large part on whether prison conditions
reasonably satisfy those purposes.

In maximum security prisons in the U.S., the freedoms that ordinary citizens take for
granted are severely curtailed. The cells are tiny and are usually shared with another inmate, who
may pose a constant, physical threat. Personal effects are restricted and subject to frequent,
unannounced searches for weapons, drugs, alcohol, and other contraband. Convicted murderers
are often housed in units that are more restrictive than those applicable to the general inmate
population. Contact with family members and other outside persons is limited and strictly
controlled. There is a constant cat-and-mouse game between the prison administration and the
inmates for control, in which the prison administration is hampered by overcrowding and
understaffing. Conflict can involve rivalries between prison gangs whose membership breaks
down according to racial or ethnic identity.

The following account comparing prison conditions with life in the outside world is
representative of the literature:

Many Americans want prison to be a miserable experience for inmates, even if it

conflicts with rehabilitation efforts. They think prison life is not all bad, that
prisoners have it too easy. This is based largely upon the old public perception of
a few federal prisons. The public does not view the insides of state penitentiaries
much. Many bad things happen in state prisons and local jails that are never
reported to the outside world. Out of sight, out of mind. Television coverage of
crime skews the public's perception. Crime is decreasing nationwide, yet a large
percent of the public believe it is on the increase. Probation and parole are
considered slaps on the wrist. Public anger rises when a probationer or parolee
commits a serious crime.

Reality differs from public perception. Most members of the public will never visit
a prison or talk to anyone who has experienced life behind bars. Prison takes
offenders away from their families, marriages, jobs, friends, communities, and
churches and puts them in an extremely bad moral environment for years at a time.
Social organization in prison revolves around vicious prison gangs, motivated by
1219
David McCord, Imagining a Retributivist Alternative to Capital Punishment, 50 Fla. L. Rev. 1, 80 (1998).

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 racism, hate, satanic influences and violence. Life among these mostly uneducated
felons, including opposing gang members, the insane and the diseased, is generally
unpleasant. Overcrowding makes it all worse in most prisons today. Many
prisoners are beaten, raped, brutalized or live in fear. Deviant and forced sex
increases because members of the opposite sex are unavailable. Guards can be
unpleasant and brutal. Annoying noises and bad odors are everywhere; sunlight
and fresh air are limited. In most prisons today, overcrowding makes everything
worse. Bland and unappealing food, clothing and extremely confining shelter are
the norm. Freedom is gone. Some 16% of prisoners are mentally ill, and high
percentages suffer from communicable diseases, including HIV-AIDS, hepatitis C,
staph infections and tuberculosis. Families and friends often stop communicating
with incarcerated family members. Boredom and inactivity take their toll.
Depression is common. Suicide is 5 to 15 times greater than in the U.S.
generally.1220

Without undertaking a detailed study of prison conditions for inmates serving life
imprisonment without parole, which is beyond the scope of this resolution, it is presumed that this
description applies to them. Life in prison is “not a walk in the park.”

Prison Conditions in Pennsylvania

General Population. Unlike death row inmates, all life-sentenced prisoners are eligible to
be housed in the general population units. Department of Corrections operates under the theory
that incarceration constitutes the legal punishment, and it is not the proper purpose of correctional
staff to punish the prisoners beyond what is necessary to administer the sentence. Prison
management determines the privileges granted or denied inmates on the basis of their behavior in
the institution and not the nature of the offense they committed. The department does not make
conditions unnecessarily punitive because making life miserable for the inmates makes the prison
more dangerous for both the inmates and correctional staff.

General population inmates have the following privileges:1221

 Three meals a day, two of them hot
 Purchase of goods from the commissary, including TV and radio
 Access to a law library
 Purchase of books and magazines
 Visitation, including limited contact visitation
 Telephone
 Recreation and yard

1220
John Dewar Gleissner, corrections.com, The Myth That Prisoners Have It Easy (May 23, 2011),
http://www.corrections.com/news/article/28634-the-myth-that-prisoners-have-it-easy.
1221
Pa. Dep’t of Corrections, Inmate Handbook 12, 15, 16, 19, 25, 29, 42 (2017),
http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/2017%20DOC%20Inmate%20Handbook.pdf.

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 The granting and withholding of privileges is a useful means by which correctional staff
can maintain control over the inmates. Inmates who violate prison rules may be reassigned to a
restricted housing unit under disciplinary or administrative custody status.1222 The inmate is given
a hearing before a hearing examiner or through a prison administrative committee through which
he or she may contest the transfer.1223 Prisoners in general population have more freedom of
movement than inmates in the capital case unit (CCU). General population prisoners are usually
housed with a cellmate. They are served their meals in the cafeteria,1224 while CCU inmates
receive their meals in the CCU, either in or out of their cell for specified meals. There are more
jobs available to general population inmates because they can work anywhere on the prison
grounds.1225 They earn1226 19 to 45 cents per hour.1227 If an inmate owes unpaid court costs, 20%
of the earnings are applied to defray those costs.1228 Earnings may be used to purchase items from
the commissary.1229 Most inmates rely on money deposited into their accounts by family
members.1230 Personal property, such as a TV set, is subject to confiscation for certain types of
misbehavior.

To be sure, incarceration in general population constitutes a far more restrictive

environment than life outside prison. Inmates spend much of their time in a cell, which they share
with another inmate, who is chosen for him or her by correctional staff.1231 Except for group
movements, such as meals, recreation, or work lines, inmates must have a signed pass to go from
one part of the facility to another.1232 Inmates are restricted regarding how much and what kinds
of personal property they may own.1233 Their personal effects are frequently searched for
contraband.1234 Any unauthorized goods are seized by the staff, and possession of contraband is
grounds for disciplinary action. Some ordinary items are deemed contraband because they can be
converted into weapons or can otherwise raise security concerns.1235

In the last five years (2013 to 2017), there have been six inmates who have killed another
inmate (so roughly about one per year), and there have been two breach or walkaway escapes from
a State Correctional Institution.1236 Seven departmental or Bureau of Corrections employees were
killed in the line of duty since the establishment of the Bureau of Corrections in 1952; the first
such death since 1979 occurred earlier this year. Since the enactment of the federal Prison Rape

1222
Id. at 33.
1223
Id. at 33-34.
1224
Id. at 12-13.
1225
Id. at 47.
1226
Id. at 47-48.
1227
Pa. Dep’t of Corrections, Policy Statement, Attach. 1-B (2012),
http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/816%20Inmate%20Compensation.pdf.
1228
Pa. Dep’t of Corrections, supra note 1221, at 3; 42 Pa.C.S. § 6602(c).
1229
Pa. Dep’t of Corrections, supra note 1221, at 29.
1230
Id. at 1.
1231
Id. at 11.
1232
Id. at 4.
1233
Id. at 28-29.
1234
Id. at 4-6.
1235
Id. at 30.
1236
Bucklen, supra note 11 (June 13, 2018).

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Elimination Act, there have been increasing efforts by Pennsylvania and other states to cut down
on prison rape.1237

John Shaffer, a former official at the Department of Corrections and a member of the
advisory committee, summarizes the basic conditions for Pennsylvania inmates serving life
imprisonment without parole as follows:

[M]urderers, rapists, and lifers (in non-capital cases) are permitted to engage in
vocational, educational, recreational, and therapeutic activities in prison unless
their institutional conduct warrants placement in the restricted housing unit. They
can purchase TVs, radios, and commissary items at their own expense.1238

Conditions for death row inmates are described in the section on that subject.1239 In both
the general population and the CCU, prison management complies with constitutional and
statutory law, such as the Prison Rape Elimination Act of 2003.1240

Conceivably, aggravated murderers could be housed in conditions that duplicate or closely

resemble those of the current death row, with its greater isolation and more limited privileges. But
the subcommittee on policy finds that life imprisonment without parole in general population
constitutes, in and of itself, appropriate punishment for murder because it entails the loss of
freedom for the remainder of the offender’s entire life.1241 There is no need to institute a harsher
regime.

Death in Prison

One commentator has suggested a variant of life imprisonment without parole, called
“death in prison” as a suitable alternative to the death penalty because it furthers the aims of
deterrence, retribution and protection of the public without incurring the severe disadvantages that
accompany the death penalty. Under this proposal, the jury in the penalty phase would choose
between a lengthy term of years and life imprisonment without parole. By renaming life

1237
E-mails from Pa. Dep’t of Corrections (Feb. 11, 2015 & July 14, 2014). The Department’s audit reps. under PREA
are available at
http://www.cor.pa.gov/Facilities/Prison_Rape_Elimination_Act/Pages/DOC-Audits.aspx.
1238
E-mail from John S. Shaffer (Mar. 27, 2014). Dr. Shaffer was Executive Deputy Secretary of the department.
1239
Infra pp. 197-99.
1240
34 U.S.C.A. §§ 30301-30309.
1241
Life imprisonment without parole means that the inmate may not be paroled. The only ways to be released from
this sentence would be by a subsequent judicial ruling vacating the sentence or the conviction, clemency or a transfer
if the inmate needs med. treatment. 42 Pa.C.S. § 9777. Statutory authority for this med. transfer is ltd. to a temporary
period & subject to approval from the sentencing court. To qualify, the inmate could not be ambulatory, must suffer
from a terminal illness & likely be near death. The medical propriety of the transfer, the life expectancy of the inmate
& the notification to the gov’t & registered crime victim along with their opportunity to be heard must be established
by clear & convincing evidence. The Commw., registered crime victim & correctional facility would be notified of a
petition for this transfer & allowed to be heard. After the grant of a transfer, the prosecuting att’y or Dep’t of
Corrections could request recommittal if circumstances change. At any time, the sentencing court could also terminate
its earlier grant of the transfer’s life expectancy would be one year or less. Dep’t of Corrections “only have about 2
to 3 such transfers for medical treatment per year” and had “10 over that four year timeframe from 2014 to 2017.”
Bucklen, supra note 11 (June 12, 2018) (on file with Pa. J. State Gov’t Comm’n).

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imprisonment without parole as death in prison, the state would emphasize that its maximum
penalty is equivalent to a death sentence, although the death sentence would be abolished because
the state would take no action to bring about the condemned murderer’s death.

Death-in-prison . . . would not suffer [the defects of the death penalty]. Far more
defendants could be sentenced to death-in-prison. Indeed, most of the large number
of capital defendants who currently receive LWOP could be sentenced to death-in-
prison with no impact on the current allocation of prison resources. This would
ensure that all persons who commit capital murder could be sentenced comparably.
By adopting death-in-prison as a jurisdiction's highest penalty, the arbitrary
selection of a small handful of unlucky defendants for execution would come to an
end. Rather than sentence a few defendants to death and most others to LWOP,
both groups of defendants could be sentenced to death-in-prison upon an adequate
showing of desert. Exercise of the state's highest penalty would then look less like
a lottery and more like a predictable, and fairly distributed, penal sanction. This
would not only improve the proportionality of punishment, it would enhance
deterrence by clearly communicating to the entire class of would-be offenders that
the state's ultimate punishment will be imposed with certainty.1242

The substitution of life imprisonment without parole (or death in prison) for the death
penalty, theoretically culminating in execution, eliminates the possibility than an innocent
defendant will be executed. Because of that, most of the exacting due process requirements
imposed under existent law, and the excruciatingly protracted and expensive litigation required to
implement them, will become unnecessary. The focus of the penalty phase will shift to the more
substantive, if less melodramatic, issue of whether the case calls for the permanent separation of
the condemned murderer from society. The victim’s survivors will receive the closure they are
almost always denied under the current procedure.1243

Alternatives to the Death Penalty

Sufficient Addresses
Addresses Other Legitimate
Imprisonment for Public Legitimate Social
Penological Interests
Safety Interests

Retribution—yes
Deterrence—specific, yes; gen. possibly
Life sans Public Incapacitation—yes
Yes
parole1244 opinion--possibly Denunciation—yes
Restoration—no
Rehabilitation--no

1242
Russell D. Covey, Death in Prison: The Right Death Penalty Compromise, 28 Ga. St. U. L. Rev. 1085, 1093
(2012).
1243
Id. at 1099-1101.
1244
Supra pp. 176-78, 181-82.

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 Alternatives to the Death Penalty

Sufficient Addresses
Addresses Other Legitimate
Imprisonment for Public Legitimate Social
Penological Interests
Safety Interests

Retribution—yes
Deterrence—specific, yes; gen. possibly
Life Public Incapacitation—yes
Possibly
w/possible parole opinion--possibly Denunciation—yes
Restoration—no
Rehabilitation--possibly
Retribution—yes
Deterrence—specific, yes; gen. possibly
Public Incapacitation—yes
Term of years Possibly
opinion--possibly Denunciation—yes
Restoration—no
Rehabilitation--no

Counsel

The question that serves as the basis of the study of counsel in the administration of the
death penalty in our Commonwealth is:

The quality of counsel provided to indigent capital defendants and whether such
counsel and the process for providing counsel assures the reliability and fairness of
capital trials;1245

The subcommittee on procedure generally endorses a report of the task force and advisory
committee on services to indigent criminal defendants1246 but focused on indigent capital
defendants and limits its comments to that subset. The advisory committee that prepared that
report found some indigent defense practitioners failed to meet professional standards, partially
because the system delivering that service is not standardized to train or supervise statewide but
does so on a county-by-county basis.1247 The Commonwealth’s lack of support for these services
undermines “the effectiveness of indigent defense”,1248 which is borne out by successful challenges
to death penalties based upon ineffective assistance of counsel. As of May 2018, 150 Pennsylvania
death-row inmates sentenced to death under Pennsylvania’s 1978 death-penalty statute have had
their convictions or sentences overturned on the basis of ineffective assistance of counsel.1249

1245
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 221.
1246
Pa. J. State Gov’t Comm’n, supra note 19.
1247
Id. at 5.
1248
Id.
1249
Robert Brett Dunham, Pa. Capital Convictions & Death Sentences Rev’d as a Result of Ineffectiveness of Counsel
(Death Penalty Information Ctr. 2018).

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Death sentences in 93 of these cases were overturned because of counsel’s failure to investigate
and present mitigating evidence in the penalty phase.1250 The inadequate remuneration of assigned
counsel can “result in poor quality representation.”1251 Two years ago, Pennsylvania Supreme
Court ruled that “a cause of action exists entitling a class of indigent criminal defendants to allege
prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain
an injunction forcing a county to provide adequate funding to a public defender's office.” 1252 To
avoid justice by geography, “a predominance of state funding is necessary to a successful
system.”1253 There is no data to use to systematically evaluate the delivery of these services.1254
The cost of retrials and inappropriate or unjust sentences could presumably be partially offset by
more effective representation more consistently delivered ab initio.1255 “Poor systems of defense
do not make economic sense.”1256

“[T]he quality of the defense representation provided by the Commonwealth to indigent

capital defendants is an issue” that Chief Justice Saylor has “written on many times in appellate
decisions.”1257

I am unable to agree with the suggestion that the presumption of effectiveness by

and large reflects the actual state of capital defense representation in Pennsylvania.
I would submit that, in fact, we have seen more than enough instances of deficient
stewardship to raise very serious questions concerning the presumption's accuracy.
It is my considered position, like that of many others, that a contributing factor may
be the pervasive underfunding of indigent defense.1258

Significantly, Pennsylvania has long been on notice that leaders of national, state,
and local bar associations do not believe that capital litigation is being conducted
fairly and evenhandedly in the Commonwealth, not the least because of the ad
hoc fashion by which indigent defense services are funded from the local
government level. Such concerns are consistent with vast compilations of literature
containing evidence of long-standing, chronic underfunding of public defense
systems in the United States. . . . Nevertheless, this Court seems unable to attend
to the apparent systemic difficulties in individual capital cases considered on
appeal, as, doctrinally, the adjudicatory focus is on the facts at hand relative to an
array of widely disparate claims of deficient stewardship.1259

1250
Of these 93, 68 were reversed by state courts & 25 by federal cts.. Robert Brett Dunham, Pa. Capital Case Cite
List of Reversals Because of Ineffective Assistance of Counsel (Death Penalty Information Ctr. 2018). Other reversals
related to failures to investigate & present guilt-stage defenses, failures to request or object to instructions, failures to
object to improper evidence or argument, failures relating to guilty pleas or trial waiver and making a deficient or
affirmatively harmful argument. Id.
1251
Pa. J. State Gov’t Comm’n, supra note 19, at 5, 47-48.
1252
Kuren v. Luzerne Cnty., 146 A.3d 715, 718 (Pa. 2016).
1253
Pa. J. State Gov’t Comm’n, supra note 19, at 59-60.
1254
Id. at 47-48.
1255
Id. at 6.
1256
Saylor, supra note 20, at 38.
1257
Id.at 3.
1258
Commw. v. King, 57 A.3d 607, 636 (Pa. 2012) (Saylor, J., concurring).
1259
Commw. v. McGarrell, 87 A.3d 809, 810-11 (Pa. 2014) (Saylor, J., dissenting) (citations and footnotes omitted).

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 Justice Saylor called for “a collaborative conversation among the judicial, legislative, and
executive branches to institutionalize statewide remedies and facilitate ongoing improvements”
and noted “[t]he importance of legislative involvement”.1260 While delivering the 2013 Widener
Law and Government Institute Jurist in Residence Lecture, Justice Saylor focused on mitigation
because he thought that it “yields the most vivid example of a debilitating deficiency in the death-
penalty regime, which remains in sore need of improvement for the system to work properly.”1261

The right to counsel is grounded in both our Commonwealth’s and national

constitutions.1262 To avoid “judicial murder”, counsel would be appointed in a capital case under
the due process clause applying U.S. Const. amend. VI’s assistance of counsel for one’s
defense.1263 This guarantee of counsel was extended to indigent defendants facing felonies when
it was recognized as a fundamental safeguard “of liberty . . . protected against state invasion by
the Due Process Clause of the Fourteenth Amendment.”1264 The assistance of counsel requires
adequate legal assistance, which is considered to be effective.1265 Defective assistance of counsel
requires “reversal of a conviction or death sentence”.1266

Each county has a public defender appointed by its Board of County Commissioners.1267
Within the Commonwealth’s 67 counties, 23 of them have no attorneys who have “met the CLE
qualifying standards for appointment as capital defense counsel as detailed in” Pa. R. Crim. P.
801.1268 “In all cases in which the attorney for the Commonwealth has filed a Notice of
Aggravating Circumstances pursuant to Rule 802, before an attorney may participate in any stage
of the case either as retained or appointed counsel, the attorney must meet the educational and
experiential criteria set forth in this rule.”1269

The subcommittee generally endorses Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases that were published in 2003 by American Bar Association
“to set forth a national standard of practice . . . to ensure high quality legal representation” within
“any jurisdiction.”1270 One of its guidelines is that “[e]ach jurisdiction . . . adopt and implement a
plan formalizing the means by which high quality legal representation in death penalty cases is to

1260
Id. at 811 n.3.
1261
Saylor, supra note 20, at 4.
1262
Pa. Const. art. I, § 9; U.S. Const. amend. VI.
1263
Powell v. Ala., 287 U.S. 45, 63, 65 (1932). “[T]he right to counsel, as guaranteed by” Pa. Const. art. I, § 9 “is
coterminous with the Sixth Amendment right to counsel for purposes of determining when the right attaches.”
Commw. v. Arroyo, 723 A.2d 162, 170 (Pa. 1999).
1264
Gideon v. Wainwright, 372 U.S. 335, 336, 340-41 (1963).
1265
Strickland v. Wash., 466 U.S. 668, 686 (1984).
1266
Id. at 687.
1267
Act of Dec. 2, 1968 (P.L.1144, No.358), §§ 3, 4: 16 P.S. §§ 9960.3, 9960.4.
1268
Pa. Sup. Ct. Continuing Legal Educ. Bd., Capital Counsel CLE, https://www.pacle.org/services/cap_counsel.asp
(last visited June 11, 2018). Armstrong, Cameron, Carbon, Clarion, Clearfield, Clinton, Crawford, Elk, Forest, Fulton,
Greene, Huntingdon, Juniata, Mifflin, Potter, Snyder, Sullivan, Susquehanna, Tioga, Venango, Warren, Wayne &
Wyo.. Id.
1269
Pa. R. Crim. P. 801.
1270
Am. Bar Ass’n, Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases, 31
Hofstra L. Rev. 913, 919 (2003). Am. Bar Ass’n also published Ten Principles of a Pub. Defense Delivery Sys. (2002),
https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinci
plesbooklet.authcheckdam.pdf. These principles provide a guide of “valuable measures of the prevailing professional
norms of effective representation”. Padilla v. Ky., 599 U.S. 356, 367 (2010).

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be provided in accordance with these Guidelines . . . .”1271 Another guideline is that “lawyers for
specific cases” should be selected by a defender organization or independent authority rather than
“the judiciary or elected officials”.1272 Another guideline sets the minimum of two, qualified
attorneys, “an investigator, and a mitigation specialist.”1273 Workload needs to be “maintained at
a level that enables counsel to provide each client with high quality legal representation”.1274
Funds should provide for comprehensive and “effective training, professional development, and
continuing education of all members of the defense team.”1275

Recommendation

The subcommittee recommends the creation of a state-funded capital defender office to

represent all persons charged with or convicted of capital crimes at the trial, appellate, and state
post-conviction levels. Such an office will save money for the counties, be cost efficient by
reducing the number of cases that require reversal in post-conviction proceedings at either the state
or federal level, and improve the quality of representation, thereby reducing the likelihood of error
at the trial level. An alternative option to this would be to have a state-funded capital defender
office leaving Defender Association of Philadelphia to continue to represent indigent, capital
defendants; however, the association there now represents only 20% of those cases now.1276

Secondary Trauma

The question that serves as the basis of the study of secondary trauma in the administration
of the death penalty in our Commonwealth is:

The impact of the death penalty process on law enforcement, prosecutors, defense
counsel, judges, jurors, correctional officers, family members and loved ones of
victims and family members of the accused;1277

Judges, prosecutors, public defenders and victim advocates

To try to assess the impact of the death penalty process on judges, prosecutors, public
defenders and victim advocates, surveys were distributed in nine judicial districts of varying
population sizes and caseloads that had past or current capital murder cases.1278 Cumulatively, the
response rate was approximately 75%; however, not everyone answered all questions. The survey

1271
Am. Bar Ass’n Guidelines, supra note 1270, at 939.
1272
Id. at 944-45.
1273
Id. at 952.
1274
Id. at 965.
1275
Id. at 976. Funding should also extend to “outside experts selected by counsel.” Id. at 981.
1276
Pa. J. State Gov’t Comm’n, supra note 19, at 64.
1277
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A., infra p. 221.
1278
Counties of Adams, Allegheny, Berks, Dauphin, Lancaster, Montgomery, York & Westmoreland & City of Phila.
Judges were surveyed in 2015. Prosecutors, public defenders and victim advocates were surveyed in 2013.

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responses were returned anonymously, so it is unknown how and whether particular recipients
responded. The surveys focused on the resources required at various stages of the process.

Cumulatively, more than 64% of the responses indicated that a typical, capital murder case
causes more stress or anxiety than a typical, noncapital murder case. This conclusion was reached
by a majority or 100% for each category of respondents except for victim service providers, more
than 53% of whom indicated that a typical, capital murder case causes about the same amount of
stress or anxiety.

Cumulatively, 70% of the responses indicated that a typical, capital murder case causes no
difference in adverse health conditions or consequences compared to a typical, noncapital murder
case. This conclusion was reached by half or more for each category of respondents except for
public defenders, 60% of whom indicated that a typical, capital murder case causes more adverse
health conditions or consequences than a typical, noncapital murder case.

Cumulatively, more than 73% of the responses indicated that a typical, capital murder case
causes no difference in consumption of alcohol and other drugs or medications, compared to a
typical, noncapital murder case.

Cumulatively, more than 54% of the responses indicated that a typical, capital murder case
causes no difference in adverse consequences on one’s family, home or social life, compared to a
typical, noncapital murder case. This conclusion was reached by a majority for each category of
respondents except for public defenders, 80% of whom indicted that a typical, capital murder case
cause more adverse consequences on one’s family, home or social life.

Cumulatively, more than 70% of the responses indicated that a typical, capital murder case
causes more emotional strain than a typical, noncapital murder case. This was a majority or 100%
of responses for each category of respondents except for prosecutors, half of whom indicated that
a typical, capital murder case causes more emotional strain compared to a typical, noncapital
murder case and the other half indicated no difference in emotional strain between the two.

Cumulatively, more than 58% of the responses indicated that a typical, capital murder case
causes no difference in religious, spiritual or moral consideration, introspection or counsel,
compared to a typical, noncapital murder case.

Correctional officers, victim family members and inmate loved ones

In 2013, The Pennsylvania State University and Department of Corrections staff

administered surveys to State Correctional Institution Greene correctional officers, victims’ family
members, and inmates’ loved ones.1279

1279
There is a gap in services because convicts’ relatives have traditionally been disregarded. Historically, law and
practice did not recognize victims of crime as victims when it came to services either. One might not be too
sympathetic towards inmates’ relatives; however, their children are typically adversely impacted by the incarceration
of parent. Dep’t of Corrections’ initiatives relating to children of incarcerated parents appear at
http://www.cor.pa.gov/About%20Us/Initiatives/Pages/Children-of-Incarcerated-Parents.aspx (2018).

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 The correctional officers’ hardcopy survey was delivered to their institutional mailboxes.
The hardcopy survey consisted of 35 questions designed to measure their workplace conditions,
stress, anxiety and background characteristics. The response rate was 56%. Of these respondents,
39% were from the capital unit, 44% were from the maximum security unit, 12% were from the
L2/L3 units/pods, and 5% did not report their unit assignment.1280

The victims’ family member survey was administered via an online survey with over 80
questions covering post-traumatic stress disorder, depression, views on the death penalty and
demographic/background characteristics. Survey requests were sent to 440 eligible participants
with valid addresses on file at the Office of Victim Advocate. The response rate was 29%.

The inmates’ loved ones’ survey was administered via a hardcopy survey of 31 questions
covering post-traumatic stress disorder, depression, views on the death penalty and
demographic/background characteristics. Eligible participants were loved ones (one per inmate)
who were visiting inmates. Eligible participants were provided survey packets in visitation waiting
rooms by prison staff. During the survey administration period, 72 surveys were provided to
eligible respondents in inmate-visitation waiting areas. The response rate was 33%.

Analyses compared self-reported post-traumatic stress disorder (PTSD) and depression

symptoms from those respondents associated with capital punishment and those associated with
non-capital cases. For correctional officers, additional variables, including occupational stress,
emotional exhaustion, work-family conflict, and perceived job dangerousness were also analyzed.

The primary hypotheses were as follows:

 Correctional officers working in a prison’s capital case unit would have greater
psychological trauma (i.e., PTSD, depression, work-related stress) than working in a
prison’s general population or maximum security units.

 Victims’ family members with the murderer sentenced to capital punishment would
have greater psychological trauma (i.e., PTSD, stress, and/or depression) than those
where the murderer was sentenced to life imprisonment.

 Inmates’ loved ones who had a loved one sentenced to capital punishment would have
greater psychological trauma (i.e., PTSD, anxiety, and/or depression) than those having
a loved one sentenced to life imprisonment for murder.

The survey revealed that in no instance was the capital punishment condition associated
with statistically higher PTSD, depression or stress than the non-capital punishment condition. For
correctional officers and victims’ family members, overall reports of PTSD, depression and stress
were low to moderate, suggesting that few of the respondents were suffering from mental health
difficulties. This was not the case for inmates’ loved ones and their children.

1280
The total exceeds 100% because the percentage is rounded.

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 Inmates’ family members reported relatively high rates of PTSD and depression compared
to national and high-risk (e.g., deployed military) populations. Although the mental health
challenges of inmates’ families do not appear to be directly connected to capital punishment, they
do warrant additional attention and point to a vulnerable population that might not be receiving
adequate therapeutic services.

Limitations of the study include the following:

 The relatively small sample sizes did not provide the statistical power to detect small
differences between the experimental (i.e., capital punishment) and control (i.e., non-
capital punishment) conditions.
 There is a potential bias resulting from non-representative samples.
 There is potential response bias associated with the sensitive items in the self-report
surveys.
 The study focused on only three categories listed in the resolution (correctional officers,
family members and loved ones of victims, and family members of the accused);
although these groups are arguably the most impacted by capital punishment over time,
other research would be required to assess the potential secondary trauma experienced
by law enforcement, prosecutors, defense counsel, judges, and jurors resulting from
Pennsylvania’s capital punishment laws.

However, although the samples were relatively small, the observed differences were small
enough that it is unlikely they would have reached significance even with greater numbers of
respondents.

Length and Conditions of Confinement on Death Row

The question that serves as the basis of the study of length and conditions of confinement
on death row in the administration of the death penalty in our Commonwealth is:

Whether the conditions comply with the requirements of the United States
Constitution, the Constitution of the Commonwealth of Pennsylvania and standards
of international law and the impact of those conditions on correctional officers;1281

Each facility of Department of Corrections audited to date has achieved initial accreditation
or reaccreditation by American Correctional Association.1282 It is under no judicial orders or
consent decrees regarding conditions of confinement in Capital Case Units, otherwise known as
death row.1283 So far as the subcommittee on impact is aware, the department complies with
1281
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra pp. 221-22.
1282
Am. Correctional Ass’n, Accredited Facilities,
http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Standards_and_Accreditation/SAC_AccFacHome.aspx?Websi
teKey=139f6b09-e150-4c56-9c66-284b92f21e51&hkey=f53cf206-2285-490e-98b7-66b5ecf4927a&CCO=2#CCO
(last visited June 5, 2018).
1283
Woodside, supra note 140.

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constitutional requirements for confinement. The only way to know for certain is after an inmate
has challenged the department, claiming a constitutional violation, and the judiciary rules
accordingly.1284 An example of learning about a constitutional violation occurred last year, when
the judiciary announced “a clearly established due process right under” U.S. Const. amend. XIV
“to avoid unnecessary and unexamined solitary confinement on death row.”1285 This was a
recently recognized “due process right” that meant that the departmental policy of keeping an
inmate in “the Capital Case unit” after being resentenced to life imprisonment while the district
attorney appealed the resentencing is unconstitutional when “reflexively imposed without
individualized justification.”1286 The department is currently defending a class action lawsuit
challenging the conditions of confinement on death row as an unconstitutional violation of the
U.S. constitutional prohibition on cruel and unusual punishment.1287

It is more difficult to assess whether confinement on death row in Pennsylvania meets the
standards of international law. The department does not officially recognize these standards and
departmental staff were unable to indicate one way or the other whether the conditions of
confinement on death row meet these standards. It seems as though the consensus of developed
countries is that the punishment of execution should be abolished. To the extent that other
countries use capital punishment, it appears that Pennsylvania largely comports with the standards
of confinement conditions, other than the lengthy interval between condemnation and execution.
This would be due to the presumptive stress of awaiting one’s own execution; however,
condemnees do not seem to be eager to advance their own executions to relieve the presumptive
stress of the wait.

Correctional officers were surveyed on the impact of conditions of confinement on death

row.1288

Length of Confinement on Death Row

Length of confinement varies per inmate, primarily due to their date of conviction.
Currently, the longest serving inmate on death row resides at State Correctional Institution Greene.
Inmate No. AM-5999 was sentenced to death in 1983; later this year, this inmate will have
completed his thirty-fifth year on Pennsylvania’s death row.1289

Using information compiled by Department of Corrections, quantitative data for specific

variables of inmates currently on death row was analyzed as of June 1, 2018.1290 Pennsylvania’s
death row was comprised of 150 total inmates, of which 76 (51 percent) are Black, 57 (38 percent)
are White, 14 (9.3 percent) are Hispanic and 3 (2 percent) are Asian. No women were on death
row at the time of the latest available DOC data profile.

1284
An example of how this might arise, is the mental health investigation by U.S. Dep’t of Just., supra pp. 125-26.
1285
Williams v. Pa. Sec’y of Corrections, 848 F.3d 549, 574 (3d Cir. 2017).
1286
Id. at 556-57, 572, 574. In other words, there must be “procedural protections” afforded inmates to “ensure that
continuing this level of deprivation is required for penological purposes”. Id. at 574.
1287
Reid v. Wetzel, No. 1:18-cv-00176 (M.D.Pa. 2018).
1288
Supra pp. 187-89.
1289
Pa. Dep’t of Corrections, supra note 14.
1290
Id.

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 Death Row Inmates By Race
Pennsylvania
June 2018

Race Number of Inmates Percent

Asian 3 2.0

Black 76 50.7

Hispanic 14 9.3
White 57 38.0

Total 150 100.0

Source: Pennsylvania Department of Corrections, “Persons Sentenced to Execution as of June 1, 2018,”
www.cor.pa.gov/Initiatives/Documents/Death%20Penalty/Current%20Execution%20list.pdf. Accessed June 14,
2018.

The average length of confinement for all inmates on death row is 17.49 years. Average
length of confinement, analyzed by race, showed the Black inmate population having a slightly
higher average length of stay on death row at 18.57 years, compared to 16.6 for White, 16.86 for
Hispanic, and 10.0 for Asian. SPSS was used to compute a One-Way ANOVA to compare the
different races’ average years spent on death row. The results show no statistically significant
differences and, therefore, the June 1, 2018 data do not provide evidence that can be used to make
broader inferences about race and average time spend on death row.

Average Years on Death Row by Race

Pennsylvania
June 2018

Race Number of inmates Mean Std. Deviation

Asian 3 10.00 13.892

Black 76 18.57 8.698

Hispanic 14 16.86 6.724

White 57 16.60 8.668

Total 150 17.49 8.656

Source: Pennsylvania Department of Corrections, “Persons Sentenced to Execution as of June 1, 2018,”
www.cor.pa.gov/Initiatives/Documents/Death%20Penalty/Current%20Execution%20list.pdf. Accessed June 14,
2018.

The average age of individuals residing on death row was 50, with the average age at
conviction being 32 years old.

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 Inmates Current Age, Age At Conviction, Average Years Spent on Death Row
Pennsylvania
June 2018

Period Minimum Maximum Mean Std. Deviation

Current age 25 75 49.55 10.310

Age at conviction 19 52 31.53 7.823

Average years
<1 34 17.49 8.656
on death row
Source: Pennsylvania Department of Corrections, “Persons Sentenced to Execution as of June 1, 2018,”
www.cor.pa.gov/Initiatives/Documents/Death%20Penalty/Current%20Execution%20list.pdf. Accessed June 14,
2018.

Conditions of Confinement on Death Row

Conditions of confinement must satisfy U.S. Const. amend. VIII and Pa. Const. art. I, § 13,
which prohibit cruel and unusual punishments.1291 Department of Corrections policies and mission
statement specify the guiding principles for inmates and facility staff alike, including conditions
within the facility. These policies cover reasonable accommodations for inmates with disabilities,
use of force, food service, inmate discipline, administrative custody, inmate grooming, access to
health care and mental health care, and other relevant provisions.1292 The departmental mission
statement reflects the importance of public safety.1293 Facility staff must also adhere to a Code of
Ethics, with violators subject to immediate disciplinary action.1294

Constitutional requirements

The general understanding of compliance is framed by a ruling applying the federal

constitution to prison conditions.1295 The constitution “’does not mandate comfortable prisons,’
but neither does it permit inhumane ones, and it is now settled that ‘the treatment a prisoner
receives in prison and the conditions under which he is confined are subject to scrutiny under the
Eighth Amendment’.”1296 This amendment restrains “prison officials, who may not, for example,
use excessive physical force against prisoners.”1297 Prison officials must supply essential items to
the inmates, including food, clothing, shelter, medical care, and adequate steps to ensure those
measures are met.1298

1291
The Pa. constitutional provision is interpreted as “coextensive” with the U.S. one. Commw. v. Yasipour, 957 A.2d
734, 742-43 (Pa. Super. Ct. 2008).
1292
Pa. Dep’t of Corrections, Policies, http://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx (2018).
1293
Id., Mission Statement, http://www.cor.pa.gov/About%20Us/Pages/Mission-Statement.aspx (2018).
1294
Id., Code of Ethics,
http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/Code%20of%20Ethics.pdf (last visited June 7,
2018).
1295
Farmer v. Brennan, 511 U.S. 825 (1994).
1296
Id. at 832 (citation omitted).
1297
Id.
1298
Id.

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Standards of International Law

Although the department makes no representations about conformity with international

standards, several trends have emerged throughout Europe and other developed countries over the
years. European Union nations have abolished capital punishment. Issues in Europe include
arguments that capital punishment is torture, violating provisions against freedom from torture and
inhuman and degrading treatment or punishment.1299 United Kingdom of Great Britain and
Northern Ireland’s abolished the death penalty in 1965 with the passage of the Murder (abolition
of Death Penalty) Act of 1965 and other European nations followed suit.1300 In the United
Kingdom, the Equality and Human Rights Commission is a non-departmental public body
established by the Equality Act of 2006.1301 The commission’s work includes international and
domestic based advocacy against current and future use of the capital punishment.1302

A leading case elaborating on the United Kingdom’s current international viewpoint on

capital punishment is Soering v. United Kingdom, which addresses “death row phenomena” or the
results of waiting on death row.1303 In Soering, the European Court of Human Rights was asked
to determine whether the applicant, a West German national, should be extradited to the United
States to stand trial on a charge of capital murder in Virginia pending possible violation of Article
3 of the United Kingdom’s Human Rights Act of 1998 if the Commonwealth of Virginia
implemented the death penalty.1304

The Human Rights Act of 1998 outlines the rights and freedoms to which citizens of the
United Kingdom are entitled.1305 Article 2 details a basic right to life protected by law, while
Article 3 provides for the prohibition of torture or inhumane or degrading treatment or
punishment.1306 Basing its decision on Article 3 of the Human Rights Act, the court ruled that, if
capital punishment were to be implemented, extraditing the applicant to Virginia to face capital
murder charges would result in the so-called “death row phenomenon” and thereby violate this
article.
[I]n the Court’s view, having regard to the very long period of time spent on death
row in such extreme conditions, with the ever present and mounting anguish of
awaiting execution of the death penalty, and to the personal circumstances of the
applicant, especially his age and mental state at the time of the offence, the
applicant’s extradition to the United States would expose him to a real risk of
treatment going beyond the threshold set by Article 3 (art. 3).1307

1299
Equality & Human Rights Comm’n, Art. 3, http://www.equalityhumanrights.com/about-us/our-work/human-
rights/human-rights-review-2012/articles/article-3 (2012).
1300
Murder (Abolition of Death Penalty) Act 1965, available at http://www.legislation.gov.uk/ukpga/1965/71/contents
(last visited July 7, 2015).
1301
Equality & Human Rights Comm’n, supra note 1299, at 7.
1302
Id.
1303
Soering v. U.K., 11 Eur. Ct. H.R. (1989)
1304
Id.
1305
Equality & Human Rights Comm’n, The Human Rights Act, https://www.equalityhumanrights.com/en/human-
rights/human-rights-act (last updated Jan. 29, 2018).
1306
Id.
1307
Soering, at ¶ 111, available at

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 Soering further set forth a framework for countries that have abolished capital punishment,
while still exercising valid extradition treaties, to retain individuals within their borders in
accordance with their laws.
In the case of a fugitive requested by the United States who faces a charge carrying
the death penalty, if is the Secretary of State’s practice, pursuant to Article IV of
the United Kingdom-United States Extradition Treaty, to accept an assurance from
the prosecuting authorities of the relevant State that a representation will be made
to the judge at the time of sentencing that is it the wish of the United Kingdom that
the death penalty should be neither imposed no carried out.1308

The Court then added clarification from a parliamentary debate, citing David Mellor, then
Minister of State at the Home Office:

The written undertakings about the death penalty that the Secretary of State obtains
from the Federal authorities amount to an undertaking that the views of the United
Kingdom will be represented to the judge. At the time of sentencing he will be
informed that the United Kingdom does not wish the death penalty to be imposed
or carried out. That means the United Kingdom authorities render up a fugitive or
are prepared to send a citizen to face an American court on the clear understanding
that the death penalty will not be carried out – it has never been carried out in such
cases. It would be a fundamental blow to the extraditions arrangements between
our two countries if the death penalty were carried out on an individual who has
been returned under those circumstances.1309

The Court then concluded that any extradition to the United States would, in this
circumstance, violate Article 3 of the Human Rights Act.1310 Furthermore, the practice of
extradition(s) only on the assurances the death penalty will not be pursued is not uncommon for
countries that have abolished the death penalty and have extradition treaties with the United States.

For any prisoner condemned to death, some element of delay between imposition
and execution of the sentence and the experience of severe stress in conditions
necessary for strict incarceration are inevitable. The democratic character of the
Virginia legal system in general and the positive features of Virginia trial,
sentencing and appeal procedures in particular are beyond doubt. The Court agrees
with the Commission that the machinery of justice to which the applicant would be
subject to in the United States is in itself neither arbitrary nor unreasonable, but,
rather, respects the rule of law and affords not inconsiderable procedural safeguards
to the defendant in a capital trial. Facilities are available on death row for the
assistance of inmates, notably through provision of psychological and psychiatric
services.

http://www.uio.no/studier/emner/jus/jus/JUR5710/h10/undervisningsmateriale/5nov_Soering-v-UK.pdf.
1308
Id. ¶ 37.
1309
Id.
1310
Id. ¶ 111.

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 However, in the Court’s view, having regard to the very long period of time spent
on death row in such extreme conditions, with the ever present and mounting
anguish of awaiting execution of the death penalty, and to the personal
circumstances of the applicant, . . . the applicant’s extradition to the United States
would expose him to a real risk of treatment going beyond the threshold set by
Article 3.1311

International Perspective: Conditions on Death Row

There are roughly 10,100,000 people imprisoned worldwide, an untold number of whom
have been sentenced to death.1312 In 2012, U.S. Department of State reported on international
prison conditions.1313 Conditions on death row vary among the countries that have not abolished
this punishment. Unlike the practice of segregating death row inmates in the U.S., inmates
sentenced to death in many countries are exposed to the same environment as the general prison
population.1314 In many countries, prolonged pretrial detention exacerbates prison overcrowding,
prisons are understaffed, and death row inmates are reportedly undertreated or treatment is delayed
when sick while waiting their pending death sentence.1315 Torture on death row has been reported
in several countries, with corruption of prison officials widespread in many countries.1316

Prison conditions in many countries lack adequate safeguards and policies have not been
implemented to protect incarcerated individuals from cruel, inhumane or degrading treatment or
punishment. In 1955, the First United Nations (UN) Congress on the Prevention of Crime and the
Treatment of Offenders, held in Geneva, adopted the Standard Minimum Rules for the Treatment
of Prisoners.1317 The following illustrates the purpose of these rules:

The following rules are not intended to describe in detail a model system of penal
instructions. They seek only, on the basis of the general consensus of contemporary
thought and the essential elements of the most adequate system of today, to set out
what is generally accepted as being good principle and practice in the treatment of
prisoners and the management of institutions.1318

Set forth under Part 1, the General Rules of Application, an underlying principle for these
rules is an anti-discriminatory, impartially implemented penal system:

1311
Id. (reference omitted).
1312
Bureau of Democracy, Human Rights & Labor, U.S. Dep’t of State, Rep. on Int’l Prison Conditions 1, available
at http://www.state.gov/documents/organization/210160.pdf (last visited June 12, 2018).
1313
Id.
1314
Cornell L. Sch. Ctr. on the Death Penalty Worldwide, Death Row Conditions,
http://www.deathpenaltyworldwide.org/death-row-conditions.cfm, (last updated Sept. 4, 2012).
1315
Id.
1316
Id.
1317 st
1 U. Nations Congress on the Prevention of Crime & the Treatment of Offenders, Standard Min. Rules for the
Treatment of Prisoners,
http://www.ohchr.org/Documents/ProfessionalInterest/treatmentprisoners.pdf (last visited June 11, 2018).
1318
Id. at 1.

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 The following rules shall be applied impartially. There shall be no discrimination
on the grounds of race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. . . . On the other hand, it is
necessary to respect the religious beliefs and moral precepts of the group to which
a prisoner belongs.1319

The Standard Minimum Rules for the Treatment of Prisoners outlines key categories for
the care of prisoners, including: accommodation, personal hygiene, clothing and bedding, food,
exercise and sport, medical services, discipline and punishment, instruments of restraint,
information to and complaints by prisoners, contact with the outside world, books, religion,
retention of prisoners’ property, notification of death or illness, removal of prisoners, institutional
personnel, and inspections.1320 Further, there are rules for special categories, which include:
guiding principles, treatment, classification and individualization, privileges, work, education and
recreation, social relations and after-care, insane and mentally abnormal prisoners, prisoners under
arrest or awaiting trial, civil prisoners and persons arrested or detained without charge.1321

For example, the rules for sleeping accommodation call for one inmate per cell, stating it
is not desirable to have two prisoners in a cell or room, and sets basic expectations for air flow,
light, heating and ventilation, and minimum floor space provided to inmates.1322 The rules for
food call for proper nutritional value with drinking water available to every inmate whenever the
need arises.1323 In regard to discipline and punishment, the rules state:

Discipline and order shall be maintained with firmness, but with no more restriction
than is necessary for safe custody and well-ordered community life. . . . . Corporal
punishment, punishment by placing in a dark cell, and all cruel, inhumane or
degrading punishments shall be completely prohibited as punishments for
disciplinary offences. . . . Punishments by close confinement or reduction of diet
shall never be inflicted unless the medical officers has examined the prisoner and
certified in writing that he is fit to sustain it. . . . The same shall apply to any other
punishment that may be prejudicial to the physical or mental health of a prisoner. .
. . . The medical officer shall . . . shall advise the director if he considers the
termination or alteration of the punishment necessary on grounds of physical or
mental health.1324

The UN Office of the High Commissioner for Human Rights, acknowledged the growing
number of Member States abolishing the death penalty, stating the action “undermines human
dignity and that its abolition, or a moratorium of its use, contributes to the enhancement and
progressive development of human rights.”1325 More than 160 Member States have either
abolished or do not practice the death penalty; the office further argues that individuals have a

1319
Id.
1320
Id. at 2-9.
1321
Id. at 9-14.
1322
Id. at 2-3.
1323
Id. at 3.
1324
Id. at 4-5.
1325
U. Nations Office of the High Commissioner for Human Rights, Human Rights: Death Penalty,
http://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx, (last visited June 12, 2018).

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fundamental right to life, there is great risk to executing innocent people, and cites “absence of
proof that the death penalty” deters crime.1326

From the early 1960s, drafters of the International Covenant on Civil and Political Rights
(ICCPR) had begun their movement to abolish the death penalty in international law. Interestingly,
however, Article 6 of the ICCPR states every human being has an inherent right to life but permits
the use of the death penalty in limited circumstances.1327 In the years following, many resolutions
and protocols were adopted to limit the use of the death penalty in international law. In 1984, the
UN Economic and Social Council adopted Safeguards guaranteeing protection of the rights of
those facing the death penalty, followed in 1989 by the adoption of the Second Optional Protocol
to the ICCPR.1328 Most recently the council adopted four resolutions urging states to respect
international standards protecting the rights of those sentenced to death and progressively reduce
the number of death eligible crimes within Member States.

Prison Conditions in Pennsylvania

To obtain an account of prison conditions in Pennsylvania, Commission staff interviewed

staff of Department of Corrections regarding conditions for death row inmates (Capital Case Unit)
as compared with general population inmates, which includes all other inmates sentenced to life
without parole. The Capital Case Unit described below will increase the opportunities for inmates
to participate in out-of-cell congregate activities. Instead of being out of the cell for one or two
hours a day, the capital case inmates will be out a minimum of 20 hours weekly. The inmates at
State Correctional Institution Graterford will be relocated the institution replacing it next door that
is identified as Phoenix and is opening this season. The new Capital Case Unit is too new to
estimate its effect on the cost differential between housing inmates in this unit compared to the
general population.

Capital Case Unit. At this time, most capital case inmates (129) are housed at State
Correctional Institution Greene, and most of the remainder (20) are at State Correctional Institution
Graterford.1329 The Capital Case Unit or “death row” is separate from the rest of the prison. The
unit is not solitary confinement because, as stated above, death row inmates have the opportunity
to participate in a minimum of twenty hours per week of congregate, out-of-cell activity. Activities
include indoor or outdoor yard or recreation, meals and limited programs. Capital case inmates
also have the opportunity to work as unit block workers, to have access to the law library, showers,
telephone calls, non-contact visits and medical and mental health services in accordance with
policy. Capital case inmates who have serious mental illness will continue to have enhanced
opportunity to participate in out-of-cell treatment services. The increased out-of-cell opportunities
may be restricted for individual inmates for disciplinary or administrative reasons.

1326
Id.
1327
Id., Int’l Covenant on Civ. & Political Rights, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
(1966).
1328
Id., 2d Optional Protocol to the Int’l Covenant on Civ. & Political Rights
https://www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx (1989).
1329
Pa. Dep’t of Corrections, supra note 14. The Graterford ones are expected to be moved next door to Phoenix.

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 Death row inmates are housed in close proximity to each other. There is one inmate per
cell. Contact between inmates is restricted. The walls are constructed so that almost no sound can
travel from one cell to the next. Passing of materials from cell to cell is prohibited. Prisoners must
present themselves for counting four times per day. It costs $15,010 more per year to house an
inmate in the capital case unit than in general population.1330

All of an inmate’s personal property must fit within two record boxes and a footlocker that
fits under the bed. Any item an inmate receives must be handed back to the guard. For instance,
the inmate can brush his teeth only with a toothbrush supplied by a correctional officer. When the
inmate finishes, he must hand the brush to the correctional officer for inspection. This is to prevent
an inmate from making the toothbrush into a weapon by, for example, sawing the handle into a
point. Shaving razors must be closely inspected because inmates remove razor blades to make
shanks. Inmates are permitted to shower three times per week.

Inmates are given three meals per day. Specific opportunities exist for inmates to have
congregate meals on the unit. All other meals are provided to the inmates in their cells. As with
general population inmates, there is one menu item available for each course. They may also have
one piece of fruit in the cell.

The exercise periods are two hours per day. The floor of the exercise area is entirely
concrete. Recreational equipment includes tennis balls, basketballs, playing cards and board
games. There is also an In-Cell Art Program.

Three phone calls per week are permitted and must be requested from staff at least one day
in advance of the call. Inmates are permitted one non-contact visit per week. Phone calls between
the inmate and his lawyer do not count against the weekly quota, but they must be arranged in
advance between the inmate and the lawyer at a specific time.

Much of the activity on death row is related to each inmate’s legal cases. There is a law
library within the unit, and inmates may visit the library in two-hour increments. They are
permitted to bring along only their legal materials, and inspections ensure compliance with this
rule. Mail related to legal work is inspected in the presence of the inmate to ensure that no
contraband is being smuggled in and to prevent the staff from reading confidential
communications.

If the death penalty was abolished and no statutory provision was included regarding the
disposition of death row inmates, death row would be abolished as well, and the inmates would be
merged into the general prison population. Departmental staff would evaluate each of the inmate’s
behavioral and mental health to determine their respective housing arrangements. Most would
likely be housed in one or more arrangements that are less restrictive than death row, but more
restrictive than general population, and if the inmate adjusted to the intermediate environment, he
would be merged into the general population. Only prisoners whose record indicated major
behavioral problems would continue under conditions similar to those that now obtain on death
row.

1330
Woodside, supra note 418.

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 The foregoing description of description of the Capital Case Unit was obtained in 2014 but
is consistent with a description from a judicial ruling last year.1331

The record establishes that, unlike those confined on death row, inmates in the
general population have: Access to open air activities without strip searches;
regular access to windows and natural light; daily access to showers; and the right
to more frequent visits where contact is permitted. General population inmates also
have access to group religious services, while death row inmates are limited to
religious tapes. A variety of jobs and vocational programs—including clothing
factory jobs, culinary training, and barbershop training—are limited to inmates in
the general population. Likewise, group sport activities are reserved for the general
population. General population inmates can make phone calls as frequently as their
funds allow. On death row, outside of attorney calls, only three fifteen minute calls
are allowed per week.1332

In March of 2018, the department changed the operation of its capital case units that allow
capital case inmates to have the opportunity to participate in out-of-cell congregate activities for
at least twenty (20) hours per week. The foregoing description includes these changes. Previously,
the policy only generally provided capital case inmates with the opportunity to have 10-12 hours
of yard time out of cell per week in a setting that was less conducive to congregate activity. Capital
case inmates who have serious mental illness will continue to have enhanced opportunity to
participate in out-of-cell treatment services. The capital case inmates remain separate from the
remainder of the inmate population.

Lethal Injection

The question that serves as the basis of the study of lethal injection in the administration
of the death penalty in our Commonwealth is:

Whether there are adequate procedures and protocols in place to assure that the
death sentence is administered in accordance with requirements of the United States
Constitution and the Constitution of the Commonwealth of Pennsylvania;1333

1331
Williams v. Pa. Sec’y of Corrections, 848 F.3d 549, 554-55, 563 (3d. Cir. 2017)
1332
Id. at 563.
1333
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 222.

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 Based upon a U.S. Supreme Court ruling1334 and its application by U.S. Court of Appeals
for the Third Circuit to Delaware’s lethal injection procedures and protocols,1335 Pennsylvania’s
similar procedures and protocols appear to be constitutional. Bolstering this assessment is the U.S.
District Court grant of summary judgment to Secretary Wetzel because Pennsylvania’s protocol
did not have identified risks “very likely to cause . . . needless suffering in violation of” U.S. Const.
amend. VIII.1336

These rulings are based upon particular facts related to the identification of the drugs used
and the qualifications of those who administer the drugs. Although factual findings for
Pennsylvania could differ from those found for Delaware and Kentucky, there is no obvious reason
to expect them to. E.g., one of the drugs used by Pennsylvania is commonly used to euthanize
terminally ill patients. The staff volunteering to execute condemnees routinely inject prisoners
intravenously with other controlled substances and would seemingly have the training and
qualification to similarly inject a lethal dosage of the prescribed agent.1337

Based upon a U.S. Court of Appeals ruling,1338 Pennsylvania’s observational protocol

appeared to be unconstitutional. Bolstering this assessment is the U.S. District Court’s grant of a
preliminary injunction forbidding the Commonwealth’s secretary of corrections from obscuring
parts of an execution because the plaintiff was likely to succeed on the merits of its claim of
unconstitutionality.1339 The recent protocol opens and closes curtains throughout the procedure so
that observers would have only seen the condemnee strapped to a gurney and would never have
seen any interaction between the condemnee and the executioners.1340 This suit was settled by the
parties so that the protocol was changed. Now “witnesses would be permitted to see and hear
inside the lethal injection chamber from the time the condemned inmate enters the chamber until
the time he/she is pronounced dead. During the last completed execution, in the late 1990’s,
witnesses were only permitted to see the inmate immediately before the administration of the lethal
injection. They did not see the inmate enter the chamber, they did not see the inmate strapped
down, etc.”1341

1334
Baze v. Rees, 553 U.S. 35 (2008). “It is not disputed that Pennsylvania uses the same three-drug protocol that
Kentucky uses.” Chester v. Beard, 657 F.Supp.2d 534, 543 n.9 (M.D.Pa. 2009). But by 2012, Department of
Corrections “revised its lethal injection protocol”. Id., 2012 WL 4758346. (The protocol was revised in Aug. 2012.
Id., 2012 WL 5386129. It “supersedes all prior versions”. Id., 2012 WL 5389319.) This controlling opinion has
subsequently been applied to a similar method of execution using a substituted drug. Glossip v. Gross, 135 S.Ct.
2726, 2732-34 (2015). This subsequent ruling found that petitioners’ did not prove a substantial risk posed by the
substituted drug compared to available alternative methods and the dist. ct. was not clearly erroneous in its factual
finding that the substituted drug would not “result in severe pain and suffering.” Id. at 2737-38.
1335
Jackson v. Danberg, 594 F.3d 210, 222-23, 230 (3d Cir. 2010). Delaware’s capital sentencing scheme was
subsequently ruled unconstitutional on different grounds. Rauf. v. Del., 145 A.3d 430 (Del. 2016).
1336
Chester v. Wetzel, 2015 WL 632374 at 10 (M.D.Pa. 2015).
1337
Id., 2012 WL 5439054 at 12 (M.D.Pa. 2012).
1338
Cal. 1st Amend. Coalition v. Woodford, 299 F.3d 868, 875 (9th Cir. 2002).
1339
The Phila. Inquirer v. Wetzel, 906 F.Supp.2d 362, 375 (M.D.Pa. 2012).
1340
Id. at 364-65.
1341
Barnes, supra note 159.

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 Pennsylvania’s constitutional prohibition against cruel punishments is co-extensive with
the U.S. constitutional prohibition against cruel and unusual punishment1342 so that any distinction
between the two authorities would be factual rather than legal. Factors that have not been analyzed
for this are whether internal, departmental procedures suffice instead of regulations and the
continued availability of the drugs.

A judicial challenge to the killing components of Pennsylvania’s execution procedures and

protocols is continuing in Commonwealth Court under a statutory rather than constitutional
challenge; however, the subcommittee is unaware of any facts that would lead us it conclude that
either ruling1343 on either constitutional challenge is incorrect.

The Commonwealth’s lethal injection protocol is confidential so that the subcommittee on

procedure is uncertain what the current protocol is. Statutory confidentiality applies to the identity
of departmental employees, contractors and victims participating in the execution.1344 The
protocol the subcommittee considered was the information published in judicial opinions ruling
on litigation over its constitutionality.1345 Some of these opinions are not reported but available
electronically via a subscription to Westlaw. The protocol revealed in these judicial opinions do
not violate the statute’s confidentiality requirement and could be public, which the subcommittee
on procedure advocates rather than a confidential one. The drugs used should appropriately be
selected by qualified, professional expertise to be delivered humanely and ethically.

There are potential, practical problems with the current protocol so far as the subcommittee
perceives it to be. The statute specifies “an ultrashort-acting barbiturate in combination with
chemical paralytic agents”.1346 Sodium thiopental is an ultrashort-acting barbiturate1347 but
unavailable.1348 The alternative, pentobarbital, is a short-acting barbiturate.1349 Pancurium
bromide is a chemical paralytic agent,1350 but potassium chloride does not seem to be either an
ultrashort-acting barbiturate or a chemical paralytic agent.1351 These are the three drugs that might
remain in the confidential protocol.1352

Department of Corrections might not have or be able to obtain these drugs. In September
2014, Governor Corbett issued a reprieve for Hubert Michael because the department did not have

1342
Commw. v. Zettlemoyer, 454 A.2d 937, 967 (Pa. 1982).
1343
The summary judgment for the execution; the other granting an injunction to expand the observational component.
1344
61 Pa.C.S. § 4305(c).
1345
Chester v. Wetzel, 2012 WL 5439054 (M.D.Pa. 2012), 2015 WL 632374 (M.D.Pa. 2015); The Phila. Inquirer v.
Wetzel, 906 F.Supp.2d 362 (M.D.Pa. 2012).
1346
61 Pa.C.S. § 4304(a)(1).
1347
U.S. Nat’l Library of Med., Nat. Insts. of Health, PubChem,
https://pubchem.ncbi.nlm.nih.gov/compound/thiopental (last visited June 12, 2018).
1348
Am. Soc’y of Anesthesiologists, ASA Statement on Sodium Thiopental’s Removal From the Market (Jan. 21,
2011).
1349
U.S. Nat’l Library of Med., supra note 1300, https://pubchem.ncbi.nlm.nih.gov/compound/pentobarbital (last
visited June 12, 2018).
1350
Id., https://pubchem.ncbi.nlm.nih.gov/compound/pancuronium_bromide#section=Top (last visited June 12,
2018).
1351
Id., https://pubchem.ncbi.nlm.nih.gov/compound/potassium_chloride (last visited June 12, 2018).
1352
Chester v. Wetzel, 2015 WL 632374, at 2 (M.D.Pa. 2015).

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the drugs to execute him.1353 Hampering the availability of lethal injection drugs for correctional
departments is the denial of importation of misbranded and unapproved drugs.1354

Perhaps further affecting the viability of the lethal injection protocol, is the fact that
numerous relevant organizations have taken positions that could hamper this method of execution.

 International Academy of Compounding Pharmacists “discourages its members from

participating in the preparation, dispensing, or distribution of compounded medications
for use in legally authorized executions.”1355
 “The American Pharmacists Association discourages pharmacist participation in
executions on the basis that such activities are fundamentally contrary to the role of
pharmacists as providers of health care.”1356
 “No physician should be compelled to participate in the process of establishing a
prisoner’s competence or be involved with treatment of an incompetent, condemned
prisoner if such activity is contrary to the physician’s personal beliefs.”1357
 “[I]t is the ABA’s position that an anesthesiologist should not participate in an
execution by lethal injection and that violation of this policy is inconsistent with the
Professional Standing criteria required for ABA Certification and Maintenance of
Certification in Anesthesiology or any of its subspecialties. As a consequence, ABA
certificates may be revoked if the ABA determines that a diplomate participates in an
execution by lethal injection.”1358
 “The American Nurses Association . . . opposes both capital punishment and nurse
participation in capital punishment.”1359
 “NAEMT is strongly opposed to participation in capital punishment by an EMT,
paramedic or other emergency medical practitioners. Participation in executions is
viewed as contrary to the fundamental goals and ethical obligations of emergency
medical services.”1360

1353
Pa. Dep’t of Corrections, supra note 7; Mark Berman, Pa. Execution Delayed Because the State Doesn’t Have
Lethal Injection Drugs, Wash. Post, Sept. 12, 2014, https://www.washingtonpost.com/news/post-
nation/wp/2014/09/12/pennsylvania-execution-delayed-because-the-state-doesnt-have-lethal-injection-
drugs/?noredirect=on&utm_term=.b1f41438a977.
1354
Cook v. Food & Drug Admin., 733 F.3d 1, 10, 12 (D.C.Cir. 2013).
1355
Int’l Acad. of Compounding Pharmacists, IADC Adopts Position on Compounding of Lethal Injection Drugs
(Mar. 24, 2015),
https://c.ymcdn.com/sites/www.iacprx.org/resource/resmgr/Media/Press_Release_Compounding_fo.pdf.
1356
APhA, APhA House of Delegates Adopts Policy Discouraging Pharmacist Participation in Execution (Mar. 30,
2015), https://www.pharmacist.com/press-release/apha-house-delegates-adopts-policy-discouraging-pharmacist-
participation-execution.
1357
Am. Med. Ass’n, Code of Med. Ethics Opinion 9.7.3, https://www.ama-assn.org/delivering-care/capital-
punishment (last visited June 13, 2018).
1358
The Am. Bd. of Anesthesiology, Inc., Anesthesiologists & Capital Punishment Commentary (2014),
http://www.theaba.org/PDFs/BOI/CapitalPunishmentCommentary.
1359
Am. Nurses Ass’n, Capital Punishment & Nurses’ Participation in Capital Punishment Position Statement (2016),
https://www.nursingworld.org/~4af078/globalassets/docs/ana/ethics/capital-punishment-position-
statement_2017.pdf.
1360
NAEMT, NAEMT Position Statement: EMT or Paramedic Participation in Capital Punishment (Jan. 26, 2010),
http://www.naemt.org/docs/default-source/advocacy-documents/positions/1-26-
10_EMT_or_Paramedic_Participation_in_Capital_Punishment.pdf?sfvrsn=3718628f_0.

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  “Because of ancient and modern principles of medical ethics, legal execution should
not necessitate participation by an anesthesiologist or any other physician. . . . ASA
continues to agree with the position of the American Medical Association on physician
involvement in capital punishment. ASA strongly discourages participation by
anesthesiologists in executions.”1361
 “The correctional health professional should: . . . [n]ot be involved in any aspect of
execution of the death penalty.”1362

Apparently, the protocol requires all members of the lethal injection team to “be trained
health care professionals”, and Department of Corrections obtains drugs from a compounding
pharmacy if they are unavailable from a pharmaceutical factory.1363

Recommendation

The subcommittee on procedure recommends that the lethal injection protocol:

1) Be public rather than confidential information.

2) Use an appropriate and effective drug selected by qualified professional expertise to
execute humanely and be ethically delivered.
3) Comply with applicable statutory law.

Public Opinion

The question that serves as the basis of the study of public opinion in the administration of
the death penalty in our Commonwealth is:

The opinions of Pennsylvania residents regarding capital punishment, including

whether it is a just and appropriate punishment and, if so, under what circumstances
should it be imposed;1364

To determine Pennsylvania residents’ opinions about capital punishment, six public

opinion polls were analyzed about the death penalty. Two were conducted nationally: the 2016
Pew Research Center poll and the 2017 Gallup poll; and four surveyed only Pennsylvania
residents: the 2013 Pennsylvania State University poll, the 2015 Public Policy Polling poll, the
2015 Office of Victim Advocate poll, and the 2016 Pennsylvania State University poll. Below is
a detailed breakdown of the findings of all six of these polls.

1361
Am. Soc’y of Anesthesiologists, Statement on Physician Nonparticipation in Legally Authorized Executions (last
amended Oct. 26, 2016), http://www.asahq.org/quality-and-practice-management/standards-guidelines-and-related-
resources/statement-on-physician-nonparticipation-in-legally-authorized-executions.
1362
Am. Correctional Health Servs. Ass’n, Mission & Ethics Statement, http://www.achsa.org/mission-ethics-
statement/ (last visited June 14, 2018).
1363
Chester v. Wetzel, 2015 WL 632374, at 1, 2 (M.D.Pa. 2015).
1364
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 222.

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 It can be difficult and imprecise to compare polling from different years, asking different
questions and sampling different populations, but they could be perceived as collectively showing:

1) A majority of Pennsylvanians support the death penalty.

2) Support for the death penalty is declining.
3) A significant proportion of the population supports the idea of the death penalty but is
opposed to the death penalty as a matter of public policy because more respondents
favor the death penalty when asked for or against, but that percentage drops when
given the option of life imprisonment or death as a penalty.

National polls

2016 Pew Research Center Poll. Pew Research Center has conducted a national poll on
the death penalty periodically since 1996, with the most recent edition of the poll conducted in
2016.1365 The poll asks respondents “Do you strongly favor, favor, oppose or strongly oppose the
death penalty for persons convicted of murder?”1366 The 2016 edition of the survey was conducted
by random telephone interviews of “1,201 adults . . . living in all 50 U.S. states and the District of
Columbia”.1367 The poll had a margin of error of 3.2%.1368

The 2016 edition of the poll found that 49% of respondents favored the death penalty, and
42% of respondents opposed it.1369 This was the lowest level of support and highest level of
opposition for the death penalty in any edition of the poll.1370 It was also the first edition where a
majority of respondents did not indicate that they support the death penalty. 1371 Comparing the
2016 edition of the poll to the 2011 edition shows that support for the death penalty declined 13%
and opposition for the death penalty increased by 11% over this time period.1372

Other findings from the survey include:

● The most common response given by respondents was that they “oppose” the death
penalty (28%), followed closely by “favor” (27%), “strongly favor” (21%), and
“strongly oppose” (14%).1373

● Men (55%) were more likely to favor the death penalty than women (43%).1374

1365
Pew Research Ctr., Late Aug. 2016 RDD Nonresponse Survey: Final Topline, http://assets.pewresearch.org/wp-
content/uploads/sites/12/2016/09/Death-penalty-topline-for-release.pdf.
1366
Id.
1367
Id., Methodology (2016), http://assets.pewresearch.org/wp-content/uploads/sites/12/2016/09/Death-penalty-
methodology.pdf.
1368
Id at 2.
1369
Id., Support for the Death Penalty Lowest in More than Four Decades (Sept. 29, 2016),
http://www.pewresearch.org/fact-tank/2016/09/29/support-for-death-penalty-lowest-in-more-than-four-decades/.
1370
Id., supra note 1365, at 1.
1371
Id.
1372
Id.
1373
Id.
1374
Id., supra note 1369.

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 ● White respondents were most likely to favor the death penalty (57%), followed by
Hispanic respondents (36%) and Black respondents (29%).1375

● Respondents age 50-64 were most likely to favor the death penalty (54%). Respondents
age 18-29 were least likely to support the death penalty (42%). Fifty percent of
respondents both age 30-49 and 65 or older favored the death penalty.1376

● College graduates were less likely to favor the death penalty (42%) than respondents
with a high school degree or less (51%) or some college experience but no degree
(52%).1377

● Republicans were most likely to favor the death penalty (72%), followed by
Independents (44%) and Democrats (34%).1378 However, the percentage of
respondents who favor the death penalty has decreased for all three political affiliations.
The percentage of respondents who favor the death penalty in the 2016 edition of the
poll was 15 percentage points lower for Republicans, 35 percentage points lower for
Independents, and 37 percentage points lower for Democrats.1379

● Respondents who indicated that they are Catholic were more likely to oppose the death
penalty (46%) than favor it (43%).1380 Respondents identifying as white Evangelicals
were more likely to favor the death penalty (69%) than respondents identifying
themselves as white mainline Christians (60%).1381

2017 Gallup Poll. Gallup has conducted a national poll on the death penalty periodically
since 1937, and at least once per year since 1999.1382 The poll asks respondents “Are you in favor
of the death penalty for a person convicted of murder?”1383 The 2017 edition of the poll was
conducted by random telephone interviews of 1,028 “adults . . . living in all 50 U.S. states and the
District of Columbia.”1384 The poll had a margin of error of 4.0%.1385

The 2017 edition of the poll found that a majority (55%) of respondents favor the death
penalty.1386 However, this is lowest level of support in any edition of the poll since 1972. 1387
There have been 35 editions of the poll since the two in 1972.1388 The percentage of respondents
indicating that they support the death penalty has steadily declined since 1994, when 80% of

1375
Id.
1376
Id.
1377
Id.
1378
Id.
1379
Id.
1380
Id.
1381
Id.
1382
Gallup, The Death Penalty, http://news.gallup.com/poll/1606/Death-Penalty.aspx (last visited June 11, 2018).
1383
Id.
1384
Id., U.S. Death Penalty Support Lowest Since 1972, Gallup, (Oct. 26, 2017),
http://news.gallup.com/poll/221030/death-penalty-support-lowest-1972.aspx.
1385
Id.
1386
Id.
1387
Id.
1388
Gallup, supra note 1382.

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respondents indicated that they support the death penalty.1389 The majority of this decline has
occurred over the last ten years.1390

Additional findings of the 2017 edition of the poll include:

● A slight majority (51%) of respondents believe that the death penalty is being applied
fairly, with 43% of respondents believing that it is being applied unfairly.1391

● When asked about the frequency with which the death penalty is being imposed, 39%
of respondents said that it is being imposed “not enough.” The same proportion of
respondents (26%) indicated that it is being imposed “too often” or the “right
amount”.1392

● Respondents indicating that they were Republicans were most likely to support the
death penalty (72%), followed by Independents (58%) and Democrats (39%).1393

State polls

2015 Public Policy Polling (PPP) Poll. The 2015 PPP poll was commissioned by Eric
Ling, Associate Professor of Criminal Justice at York College of Pennsylvania.1394 A total of 632
Pennsylvanians were surveyed by telephone.1395 The poll had a margin of error of 4.2%.1396

Respondents were asked “Which punishment do you prefer for people convicted of murder:
life in prison with no possibility of parole, life in prison with a chance of parole after at least 40
years, life in prison with a chance of parole after at least 20 years, or the death penalty?” 1397 The
death penalty received the most responses (42%).1398 However, the majority of respondents (54%)
indicated that they would prefer a sentence other than the death penalty: 32% prefer life in prison
with no possibility of parole, 13% prefer life in prison with a chance of parole after at least 40
years, and 9% prefer life in prison with a chance of parole after at least 20 years.1399

1389
Id.
1390
Id.
1391
Id.
1392
Id.
1393
Gallup, supra note 1384.
1394
Jan Murphy, Death Penalty Losing Public Support in Pa., Poll Shows, PennLive, (Mar. 25, 2015),
http://www.pennlive.com/politics/index.ssf/2015/03/life_in_prison_preferred_over.html.
1395
Id.
1396
Id.
1397
Pub. Policy Polling, Pa. Results, at 1, https://www.scribd.com/document/259858723/Pennsylvania-Death-
Penalty-Results-3-23-15.
1398
Id.
1399
Id.

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Other findings of the study include:

● The majority of respondents (70%) believed that the death penalty was cheaper than
life in prison without parole.1400 As discussed in this report, the evidence suggests that
the death penalty is in fact more expensive than life in prison without parole.1401

● More than three-quarters of respondents (78%) indicated that they would be “very
likely” or “somewhat likely” to support a candidate for political office if they disagreed
with the candidate’s position on the death penalty, provided that the respondent and
candidate agreed on most other issues and were members of the same political party.1402
Only 4% of respondents indicated that they would be “very unlikely” to support a
candidate under these parameters.1403

● Men (48%) were more likely to prefer the death penalty than women (37%).1404

● Republicans (56%) were most likely to prefer the death penalty, followed by
Independents (41%) and Democrats (30%).1405

● Republicans (80%) were more likely than Democrats (65%) to believe that the death
penalty costs taxpayers more than life in prison without parole.1406

● More than twice as many white respondents (45%) prefered the death penalty than did
African American respondents (22%).1407

● Respondents identifying as age “18-45” were most likely to prefer the death penalty
(46%). Respondents identifying as “older than 65” were least likely to prefer the death
penalty (36%).1408

● When broken down into demographic groups by sex, age, race, and political affiliation,
Republicans were the only demographic group with a majority of respondents
indicating that they prefer the death penalty (56%).1409

The Spring 2016 Pennsylvania State University Poll. The Spring 2016 Pennsylvania State
University Poll randomly surveyed 600 adult Pennsylvania residents, generating 517 unique
responses to two questions: 1. “Do you favor o[r] oppose the death penalty for persons convicted

1400
Id.
1401
Supra pp. 35-58.
1402
Pub. Policy Polling, supra note 1397.
1403
Id.
1404
Id. at 3.
1405
Id. at 4.
1406
Id.
1407
Id. at 5.
1408
Id. at 6.
1409
Id. at 1-6.

- 207 -
of murder?”, and 2. “What is the main reason or reasons for your position on the death
penalty?”1410 The poll was conducted by telephone and had a margin of error of 4.0%.1411

The majority of respondents (58%) indicated that they favored the death penalty for persons
convicted of murder.1412 Nearly one-third (31%) of respondents indicated that they opposed the
death penalty, and 11% of respondents neither favored nor opposed the death penalty.1413 Among
respondents who favored the death penalty, the majority (57%) indicated that “crime severity,
deterrence, and/or revenge” was the reason for their position.1414 Among respondents who
opposed the death penalty, the majority (54%) indicated that “religion and/or what they considered
to be moral” was the reason for their position.1415 Justice and cost were cited by both those who
supported the death penalty (25%) and those who opposed it (29%) as reasons for their position.1416

The Spring 2013 Pennsylvania State University Poll. The Spring 2013 Pennsylvania State
University Poll (Poll) was conducted by the Center for Survey Research (CSR) at The
Pennsylvania State University Harrisburg.1417 A total of 604 adult Pennsylvanians were
interviewed by telephone.1418 To ensure that the results of the Poll were not biased toward any
demographic group, the results of the survey were checked against the known occurrences of the
demographic characteristics of the population using data from the U.S. Bureau of the Census.1419

The questions in this poll were sponsored by Joint State Government Commission as part of this
study. The first question asked, “Do you think the death penalty is ever just and appropriate as the penalty
for intentional murder in Pennsylvania?”1420 This question was based upon the question in the resolution
but inserted the word, ever, to try to reflect the current practice of its relatively rare use. Whether and how
much this extra word impacted the results is unknown. The second question asked, “Does your attitude
towards the death penalty for persons convicted of intentional murder depend on any of the following
circumstances?”1421 The circumstances offered were the characteristics of the victim and the murderer as
well as the reasons for the murder and how it was carried out.1422 The final question asked, “If a person is
convicted of intentional murder, which sentence would you choose?”1423 The sentencing options were life
imprisonment with no chance of parole, the death penalty and it depends on the circumstances.1424 Before
the questions were asked, intentional murder was explained.1425

1410
Pa. State Harrisburg, Pennsylvanians Perspectives on Capital Punishment 1,
https://csr.hbg.psu.edu/Portals/44/Research%20Brief_Capital%20Punishment_2017.pdf (last visited June 12, 2018).
1411
Id at 3.
1412
Id at 1.
1413
Id
1414
Id at 2.
1415
Id.
1416
Id.
1417
Ctr. for Survey Research, Pa. State Harrisburg, Spring 2013 Pa. State Poll: Rep. of Findings & Methodology 1
(2013) (on file with Pa. J. State Gov’t Comm’n).
1418
Id.
1419
Id. at 12-14.
1420
Id. at 18.
1421
Id.
1422
Id.
1423
Id.
1424
Id.
1425
Id. at 17.

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 Overall, “almost three quarters of Pennsylvanians surveyed (72.3%)” thought that

the death penalty is a just and appropriate penalty for intentional murder in the
Commonwealth. Most respondents indicated they would change their attitude
towards the death penalty for those convicted of intentional murder based on how
the murder was carried out (21.6%) and the reasons for the murder (18.3%). Over
half of Pennsylvanians surveyed (53.5%) stated that the circumstances of an
intentional murder would determine what type of sentence they would ultimately
choose.1426

Other findings of the survey include the following:1427

 Men (77.9%) were more likely than women (67.0%) to support the death penalty for
intentional murder.

 Regardless of age, most respondents felt the death penalty was an appropriate penalty
for intentional murder. Respondents age 45-54 had the highest proportion of support
for the death penalty for intentional murder (79.3%).

 White respondents (75.2%) were more likely to support the death penalty for
intentional murder than African American respondents (51.9%). However, African
American respondents stated that their attitude toward the death penalty would change
based on how the murder was carried out (45.3%).

 Non-Hispanic respondents (73.1%) were much more likely to support the death penalty
for intentional murder than Hispanic respondents (37.0%). However, Hispanic
respondents stated that their attitude toward the death penalty would change based on
the characteristics of the victim (32.0%).

 Respondents who resided in households with a higher annual income were more likely
to support the death penalty for intentional murder. Respondents with a household
income of $75,000 to $99,999 annually had the highest proportion of support for the
death penalty for intentional murder (87.9%).

 Respondents with less education were more likely to support the death penalty for
intentional murder. Over three quarters of respondents with a high school diploma or
GED (82.8%) supported the death penalty for intentional murder. Only 61.6% of
respondents with graduate level education felt the same way.

 Respondents in northern Pennsylvania (regions 3 (91.6%) and 6 (79.8%)) were most

likely to support the death penalty for intentional murder.

1426
Id. at 2.
1427
Id.

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 Office of Victim Advocate. In spring 2015, Office of Victim Advocate sent surveys to 418
registered crime victims whose offenders were under a sentence of death. The response rate was
approximately 40%.1428 This poll had overwhelming support for the death penalty, but this was
not a survey of the general population nor a survey of registered crime victims in first-degree
murder cases in which the death penalty was sought but not returned and registered crime victims
in first-degree murder cases in which the death penalty was not sought.

Survey Statement Response Rates

80.1% Strongly Agree

I support the death penalty. 91% Strongly Agree or Agree
5.1% Disagree or Strongly Disagree

87.2% Strongly Agree

I feel the sentence imposed by the courts in my
93.6% Strongly Agree or Agree
case should be carried out.
3.8% Disagree or Strongly Disagree

I had the opportunity to voice my wishes

60.7% Strongly Agree or Agree
during the sentencing phase of my trial
23.6% Disagree or Strongly Disagree
regarding the execution of the offender.

I would support abolishing the death penalty if

it means the offender would remain separate
from general population (i.e., a version of 63.2% Disagree or Strongly Disagree
death row would remain), and that the offender 28.4% Strongly Agree or Agree
would receive a life sentence without the
possibility of parole.

There should be specific timeframe on the 91.6% Strongly Agree or Agree

appeals process for death penalty cases. 3.9% Disagree or Strongly Disagree

Conclusions

1. A majority of Americans and Pennsylvanians favor the death penalty. In all six polls,
respondents most frequently indicated that they support or prefer the death penalty. In
four of the six polls, a majority of respondents (greater than 50%) supported or
preferred the death penalty.

2. Support for the death penalty is declining. The polls presented show that support and
preference for the death penalty is declining. This decline has been steady since the

1428
The Office of Victim Advocate Testimony, Pa. H.R. Comm. on the Judiciary (June 11, 2015),
http://www.legis.state.pa.us/WU01/LI/TR/Transcripts/2015_0113_0006_TSTMNY.pdf.

- 210 -
 late 1990s, but has been more pronounced over the past few years. Between 2014 and
2017, respondents who “favor” the death penalty in Gallup’s poll declined by 8
percentage points.1429 Between 2011 and 2016, the percentage of respondents who
favor the death penalty in Pew Research Center’s poll declined by 13 percentage
points.1430 The decline in support for the death penalty seen in the last two editions of
both the Gallup and Pew Research Center poll is particularly steep. The percentage of
respondents who favored the death penalty was 5 percentage points lower in the 2017
Gallup poll than it was in the 2016 edition.1431 Support for the death penalty was 7
percentage points lower in the 2016 Pew Research Center poll than it was in the 2015
edition.1432

The decline in support for the death penalty is most obvious in the Pennsylvania
State University poll. In the 2016 edition of the poll, support for the death penalty
among Pennsylvanians was 14 percentage points lower than it had been in the 2013
edition of the poll, but the questions differed.

3. Support for the death penalty is higher in theory than in practice. Most of the polls
discussed only provided the option to choose whether they support or oppose the death
penalty. However, some polls allow respondents to select the punishment that they
prefer for those convicted of murder (e.g. death penalty or life in prison without parole).
Support for the death penalty might be higher among respondents when given the
either-or option of favoring or opposing the death penalty than it is in polls where
respondents are able to select their preferred punishment. The 2015 Public Policy Poll
offered respondents the ability to select a preferred punishment and showed
significantly lower support for the death penalty than did the other polls examined.

This difference persists in the different editions of the Gallup poll. In some
years the Gallup poll asked respondents to indicate if they prefer the death penalty or
life in prison without parole as a punishment for murder. The most recent instance was
in 2014, but it goes back to 1985.1433 In that edition, the percentage of respondents
who said they “favor” the death penalty (63%) was 13 percentage points higher than
the percentage of respondents who said that they preferred the death penalty when
given the option to choose the death penalty or life in prison without parole (50%).1434

This suggests that a significant proportion of the population might favor the
idea of the death penalty as a punishment for murder, but does not support it as a matter
of public policy. Evidence from the 2015 Public Policy Polling poll and the 2014
Gallup poll, combined with the recent decline in support for the death penalty found
across some polls in the last few years, indicate a growing preference among some for
a punishment other than death for murder.

1429
Gallup, supra note 1382.
1430
Pew Research Ctr., supra note 1365.
1431
Gallup, supra note 1382.
1432
Pew Research Center, supra note 1365.
1433
Gallup, supra note 1382.
1434
Id.

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A Sample of Religious Positions on the Death Penalty

The subcommittee on impact is including a sample of the religious perspective of different

faiths and denominations to supplement the including polling data to further reflect the opinions
of Pennsylvania residents. It is also partially informative of and responsive to the resolution’s
inquiry relating to the death qualification of jurors at capital trials “and the impact of this practice
on the ability of . . . people of faith to serve on capital juries”.1435

 Reform Judaism: “Since 1959, the Central Conference of American Rabbis . . . and
the Union for Reform Judaism . . . have formally opposed the death penalty.”1436

 Pennsylvania Catholic Conference: “We oppose capital punishment not just for what
it does to those guilty of horrible crimes but for what it does to all of us as a society.
Increasing reliance on the death penalty diminishes all of us and is a sign of growing
disrespect for human life.”1437

 American Baptist Churches: “[T]he General Board of the American Baptist

Churches recommends the abolition of capital punishment in those states which still
practice it and urges churches and members of our American Baptist constituency to
support groups and agencies working for the abolition of capital punishment in those
governmental jurisdictions of the U.S. where it is still authorized by law.”1438

 “The Church of Jesus Christ of Latter-day Saints regards the question of whether
and in what circumstances the state should impose capital punishment as a matter to be
decided solely by the prescribed processes of civil law. We neither promote nor oppose
capital punishment.”1439

 Episcopal Church: “Resolved, That this 70th General Convention of the Episcopal
Church urge the provinces, dioceses, parishes, missions, and individual members of
this Church to engage in serious study on the subject of capital punishment and work
actively to abolish the death penalty in their states.”1440

1435
Pa. S. Res. No. 6 (Sess. of 2011); appdx. A, infra p. 220. Supra pp. 11, 146.
1436
Religious Action Ctr. of Reform Judaism, Position of the Reform Movement on the Death Penalty (2018),
https://rac.org/position-reform-movement-death-penalty.
1437
Pa. Catholic Conf., Death Penalty: Choose Life (2017), https://www.pacatholic.org/bishops-statements/death-
penalty-choose-life/.
1438
Am. Baptist Resolution on Capital Punishment (last modified Sept. 2000), http://www.abc-usa.org/wp-
content/uploads/2012/06/Capital-Punishment.pdf.
1439
The Church of Jesus Christ of Latter-day Saints, Newsroom: Capital Punishment (2018),
https://www.mormonnewsroom.org/official-statement/capital-punishment.
1440
The Archives of the Episcopal Church, The Acts of Convention (1991), https://episcopalarchives.org/cgi-
bin/acts/acts_resolution.pl?resolution=1991-D056.

- 212 -
  Evangelical Lutheran Church of America: “The Death Penalty stands in the
Lutheran tradition recognizing that God entrusts the state with the power to take human
life when failure to do so constitutes a clear danger to the common good. Never-the-
less, it expresses ELCA opposition to the use of the death penalty, one that grows out
of ministry with and to people affected by violent crime.

The statement acknowledges the existence of different points of view within the
church and society on this question and the need for continued deliberation, but it
objects to the use of the death penalty because it is not used fairly and has failed to
make society safer.”1441

 Religious Society of Friends: “The Friends Committee on National Legislation seeks

abolition of the death penalty because we believe that state-sanctioned killing denies
the sacredness of human life and violates our belief in the human capacity for
change.”1442

 The United Methodist Church: “We believe the death penalty denies the power of
Christ to redeem, restore and transform all human beings. . . . . For this reason, we
oppose the death penalty . . . and urge its elimination from all criminal codes.”1443

1441
Evangelical Lutheran Church in Am., Death Penalty (adopted 1991), http://www.elca.org/Faith/Faith-and-
Society/Social-Statements/Death-Penalty?_ga=2.54176872.196555638.1529000761-89576762.1529000761.
1442
Friends Comm. on Nat’l Legis., Moral & Practical Reasons to End the Death Penalty (2018),
https://www.fcnl.org/updates/moral-and-practical-reasons-to-end-the-death-penalty-114.
1443
The U. Methodist Church, Social Principles: The Political Community (2018),
http://www.umc.org/what-we-believe/political-community.

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- 214 -
 APPENDICES

Appendix A:
Senate Resolution No. 6 ............................................................................................... 217
Appendix B:
State-By-State Survey of Aggravating Circumstances for Capital Punishment .......... 223
Appendix C:
State-By-State Survey of Mitigating Circumstances for Capital Punishment ............. 227
Appendix D:
State-By-State Survey of State Clemency Process
in Death Penalty Sentences ..................................................................................... 229
Appendix E:
State-By-State Survey of Clemency Actions – Commutation
in Capital Cases During The Time Period 1977-2018 ............................................ 235
Appendix F:
Pennsylvania Capital Cases ......................................................................................... 237
Appendix G:
State-By-State Survey of Prohibition Against Capital Punishment
for Defendants With Intellectual Disabilities ............................................................ 239
Appendix H:
Zajac and Winger Report ............................................................................................. 243
Appendix I:
Profile of Pennsylvania Inmates Under Death Sentence ............................................. 255
Appendix J:
Amounts Appropriated to Supplement the Sum Appropriated
for Pa. Commission on Crime & Delinquency ......................................................... 257
Appendix K:
Ratio of Execution to Life Sentences by Pa. County ................................................... 261
Appendix L:
Timeline of Capital Punishment Study by Justice Center for Research ...................... 263
Appendix M:
Pa. Sup. Ct. Comm. on Racial & Gender Bias
in the Justice System, Selected Recommendations .................................................. 265

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- 216 -
 PRIOR PRINTER'S NO. 131 PRINTER'S NO. 1833
THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE RESOLUTION
No. 6
Session of
2011

INTRODUCED BY GREENLEAF, ERICKSON, PIPPY, D. WHITE, LEACH,

FERLO, WASHINGTON, WILLIAMS AND WOZNIAK, JANUARY 12, 2011

SENATOR GREENLEAF, JUDICIARY, AS AMENDED, DECEMBER 6, 2011

A RESOLUTION
1 Directing the Joint State Government Commission to establish a
2 bipartisan task force and an advisory committee to conduct a
3 study of capital punishment in this Commonwealth and to
4 report their findings and recommendations.
5 WHEREAS, In 1972, the Pennsylvania Supreme Court declared
6 Pennsylvania's capital sentencing procedure unconstitutional
7 based on the United States Supreme Court's Furman v. Georgia
8 decision; and
9 WHEREAS, In 1978, the Pennsylvania General Assembly responded
10 by reinstating capital punishment in compliance with United
11 States and Pennsylvania Supreme Court rulings; and
12 WHEREAS, Since 1978, 352 people have been sentenced to death
13 in Pennsylvania but only three people have been executed; and
14 WHEREAS, Each of the three people executed waived the right
15 to appeal; and
16 WHEREAS, There are more than 220 existing capital sentences;
17 and
18 WHEREAS, Questions are frequently raised regarding the costs,
19 deterrent effect and appropriateness of capital punishment; and

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 1 WHEREAS, The American Bar Association has identified several
2 areas in which Pennsylvania's death penalty system falters in
3 guaranteeing each capital defendant fairness and accuracy in all
4 proceedings; and
5 WHEREAS, The Pennsylvania Supreme Court Committee on Racial
6 and Gender Bias in the Justice System has determined that
7 racial, ethnic and gender biases exist and that those biases
8 significantly affect the way parties, witnesses, litigants,
9 lawyers, court employees and potential jurors are treated; and
10 WHEREAS, THE JUSTICE CENTER FOR RESEARCH AT THE PENNSYLVANIA ç
11 STATE UNIVERSITY, IN CONJUNCTION WITH THE PENNSYLVANIA
12 INTERBRANCH COMMISSION ON GENDER, RACIAL AND ETHNIC FAIRNESS, IS
13 CONDUCTING A STUDY OF THE ADMINISTRATION OF THE DEATH PENALTY IN
14 PENNSYLVANIA AND HAS EXPRESSED INTEREST IN COLLABORATING WITH
15 THE TASK FORCE AND ADVISORY COMMITTEE ESTABLISHED BY THIS
16 RESOLUTION; AND
17 WHEREAS, Postconviction DNA testing has shown that there are
18 wrongful convictions, even in capital cases; therefore be it
19 RESOLVED, That the Senate direct the Joint State Government
20 Commission to establish a bipartisan task force of four members
21 of the Senate to conduct a study of capital punishment in this
22 Commonwealth; and be it further
23 RESOLVED, That the President pro tempore of the Senate
24 appoint two members of the task force and the Minority Leader of
25 the Senate appoint two members of the task force; and be it
26 further
27 RESOLVED, That the Joint State Government Commission oversee
28 the creation of an advisory committee to assist the task force
29 in conducting the study and making recommendations; the advisory
30 committee to have approximately 30 members and be comprised of

20110SR0006PN1833 - 2 -
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 1 representatives from those groups most likely to make useful and
2 insightful contributions, such as representatives of the
3 judiciary, prosecution, defense, law enforcement, corrections,
4 victim assistance organizations and also representatives of
5 academia, the faith community, private and public organizations
6 involved in criminal justice issues and other criminal justice
7 experts; and be it further
8 RESOLVED, That the task force, with the assistance of the
9 advisory committee, conduct a study of the following subjects
10 including:
11 (1) Cost: Whether there is a significant difference
12 between the cost of the death penalty from indictment to
13 execution and the cost of life in prison without parole; in
14 considering the overall cost of the death penalty in
15 Pennsylvania, the cost of all the capital trials that result
16 in life sentences as well as death sentences that are
17 reversed on appeal must be factored into the equation;
18 (2) Bias and unfairness: Whether the selection of
19 defendants for capital trials in Pennsylvania is arbitrary,
20 unfair or discriminatory in any way and whether there is
21 unfair, arbitrary or discriminatory variability at any stage
22 in the process including in the sentencing phase;
23 (3) Proportionality: Whether there is a significant
24 difference in the crimes of those selected for the punishment
25 of death as opposed to those who receive life in prison and
26 whether there is an adequate process for determining when
27 death sentences are excessive or out of line with sentences
28 imposed in other cases where a sentence other than death was
29 imposed;
30 (4) Impact on and services for family members: The

20110SR0006PN1833 - 3 -
- 219 -
 1 impact of the death penalty on family members and loved ones
2 of murder victims and the availability and cost of services
3 currently being provided in Pennsylvania for family members
4 and loved ones of murder victims and whether these services
5 are sufficient to meet the needs of surviving families;
6 (5) Mental retardation: Whether, in light of the Supreme
7 Court ruling in Atkins v. Virginia, there are adequate
8 procedural protections in place to assure that people with
9 mental retardation are not in fact being sentenced to death
10 and executed;
11 (6) Mental illness: Whether persons suffering from
12 mental illness constitute a disproportionate number of those
13 on death row, what criteria should be used in judging the
14 level of mental illness involved and whether people with
15 mental illness who are convicted of murder should be
16 executed;
17 (7) Juries: The impact on the reliability and fairness
18 of capital trials of death qualifying jurors and the impact
19 of this practice on the ability of women, people of color and
20 people of faith to serve on capital juries; whether there are
21 adequate procedural protections and remedies in place to make
22 sure that women and African Americans are not excluded from
23 serving as jurors in capital cases; and whether there are
24 adequate procedural protections in place to assure that
25 jurors are able to understand and apply instructions in
26 determining guilt or innocence and the appropriate punishment
27 in a capital case;
28 (8) State appeals and postconviction: Whether there are
29 adequate procedures in place to assure that serious error in
30 capital cases is identified and corrected and to what extent

20110SR0006PN1833 - 4 -
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 1 procedural doctrines, such as waiver or forfeiture, operate
2 to prevent judicial review of serious constitutional claims
3 on the merits;
4 (9) Clemency: Whether the current clemency process has
5 procedures in place to assure that it functions as a safety
6 net to assure that factual and procedural errors that
7 directly undermine the reliability and fairness of a capital
8 sentence are remedied;
9 (10) Penological intent: Whether the death penalty
10 rationally serves a legitimate penological intent such as
11 public safety or deterrence;
12 (11) Innocence: Whether there is a risk of execution of
13 an innocent person and whether there are adequate procedural
14 protections in place to prevent an innocent person from being
15 sentenced to death and executed;
16 (12) Alternatives: Whether alternatives to the death
17 penalty exist that would sufficiently ensure public safety
18 and address other legitimate social and penological
19 interests;
20 (13) Counsel: The quality of counsel provided to
21 indigent capital defendants and whether such counsel and the
22 process for providing counsel assures the reliability and
23 fairness of capital trials;
24 (14) Secondary trauma: The impact of the death penalty
25 process on law enforcement, prosecutors, defense counsel,
26 judges, jurors, correctional officers, family members and
27 loved ones of victims and family members of the accused;
28 (15) Length and conditions of confinement on death row:
29 Whether the conditions comply with the requirements of the
30 United States Constitution, the Constitution of the

20110SR0006PN1833 - 5 -

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 1 Commonwealth of Pennsylvania and standards of international
2 law and the impact of those conditions on correctional
3 officers;
4 (16) Lethal injection: Whether there are adequate
5 procedures and protocols in place to assure that the death
6 sentence is administered in accordance with requirements of
7 the United States Constitution and the Constitution of the
8 Commonwealth of Pennsylvania; and
9 (17) Public opinion: The opinions of Pennsylvania
10 residents regarding capital punishment, including whether it
11 is a just and appropriate punishment and, if so, under what
12 circumstances should it be imposed;
13 and be it further
14 RESOLVED, THAT THE TASK FORCE AND ADVISORY COMMITTEE ç
15 COLLABORATE WITH THE JUSTICE CENTER FOR RESEARCH AT THE
16 PENNSYLVANIA STATE UNIVERSITY IN CONDUCTING A STUDY OF THE
17 ADMINISTRATION OF THE DEATH PENALTY IN THIS COMMONWEALTH; AND BE
18 IT FURTHER
19 RESOLVED, THAT THE COLLABORATION BETWEEN THE TASK FORCE AND
20 ADVISORY COMMITTEE AND THE JUSTICE CENTER BE FORMALIZED THROUGH
21 A MEMORANDUM OF UNDERSTANDING SPECIFYING WHAT EACH ORGANIZATION
22 WILL PROVIDE TO THE OTHER IN CONDUCTING THIS STUDY; AND BE IT
23 FURTHER
24 RESOLVED, That the task force and advisory committee hold
25 public hearings as necessary to receive testimony about any of
26 the subjects of study enumerated in this resolution; and be it
27 further
28 RESOLVED, That the task force and advisory committee report
29 their findings and recommendations to the Senate no later than
30 two years after the date this resolution is adopted.

20110SR0006PN1833 - 6 -

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 APPENDIX B

State-by-State Survey of
Aggravating Circumstances for Capital Punishment
May 2018
Circumstances States
Ala., Ariz., Ark., Colo., Fla., Ga., Ind., Kan., Ky., La.,
Prisoners: incarcerated, in custody, or on probation Miss., Mo., Mont., Nev., N.C., Ohio, Okla., Pa., Tenn.,
Tex., Utah, Wash., Wyo.
Ala., Ariz., Ark., Cal., Fla., Ga., Idaho, Ind., Kan., Ky.,
Previous conviction of a capital offense or other violent
La., Miss., Mo., Mont., Nev., N.H., N.C., Ohio, Okla.,
crime
Pa., S.C., S.D., Tenn., Utah, Wyo.
Ala., Ark., Cal., Colo., Fla., Ga., Kan., Miss., Mo.,
Avoiding arrest or escaping from custody; escaped
Nev., N.H., N.C., Ohio, Okla., S.D., Tenn., Tex., Utah,
felon
Wash., Wyo.
Ala., Cal., Colo., Fla., Ga., Idaho, Ind., Ky., La., Miss.,
Offense is felony murder1444 Nev., N.H., N.C., Ohio, Pa., S.C., Tenn., Tex., Utah,
Wash., Wyo.
Knowingly created a risk of death to many others/more Ala., Ariz., Ark., Colo., Fla., Ga., Idaho, Kan., La.,
than one person – adjectives include great or grave; Miss., Mo., Nev., N.H., N.C., Okla., Pa., S.C., S.D.,
frequently includes “by means of a destructive device” Tenn., Utah, Wyo.
Ala., Ariz., Ark., Cal., Colo., Fla., Ga., Idaho, Ind.,
For pecuniary gain Kan., Ky., La., Miss., Mo., Nev., N.H., N.C., Ohio,
Okla., Pa., S.C., S.D., Tenn., Tex., Utah, Wash., Wyo.
Contract killing: defendant engaged a third person to Ariz., Colo., Idaho, Ga., Ind., Kan. , Ky., La., Mo.,
murder the victim Okla., Pa., S.C., S.D., Tenn., Tex., Utah
Disrupt or hinder governmental function, political
Ala., Ark., Fla., Miss., N.C., Utah
function or enforcement of law
Murder was especially reprehensible: brutal, heinous,
atrocious, cruel,1445 depraved, outrageous, wantonly
vile, horrible, inhuman, manifesting exceptional
depravity, dismemberment; in a cold, calculated Ala., Ariz., Ark., Cal., Colo., Fla., Ga., Idaho, Ind.,
manner without pretense of moral or legal justification; Kan., La., Miss., Mo., Mont., Nev., N.H., N.C., Okla.,
premeditated; utter disregard for human life; evidences Ore., Pa., S.D., Tenn., Utah, Va., Wyo.
a sense of pleasure in the murder; torture; at random
and without apparent motive; unreasonable response to
the provocation
Multiple murders in the same occurrence; series of Ala., Ariz., Ark., Cal., Colo., Idaho, Ky., La., Mo.,
intentional killings; act in a course of violent conduct; Mont.1446, Nev., N.C. Pa., S.C., Tenn., Tex., Utah,
mass murder Wash.
Defendant will constitute a continuing threat to society Idaho, Okla., Ore., Tex., Va., Wyo.
Victim was held as hostage Colo, Pa., Utah

1444
Defendant was engaged in or was an accomplice in the commission of, or attempt to commit or flight after
committing, or attempting to commit statutorily enumerated felonies.
1445
“Heinous, atrocious and cruel” has been found to be unconstitutionally vague in Okla. and Cal..
1446
Part of a scheme or operation that if completed would result in multiple deaths.

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 State-by-State Survey of
Aggravating Circumstances for Capital Punishment
May 2018
Circumstances States
Felonious possession of the weapon used to commit the
Colo.
offense
Defendant committed another murder at any time,
Ind.
whether convicted or not
Ritualistic mutilation, dismemberment, or torture of a
human as part of a ceremony, rite, initiation, La.
observance, performance, or practice
Incident to desecration of a dead human body Utah
Ala., Ariz., Ark., Colo., Fla., Ind., La., Nev., N.H.,
Children and youth1447
Ohio, Pa., S.C., S.D., Tenn., Tex., Utah, Wyo.
Unborn child Ariz., Ind.
Severe intellectual, mental or physical
Ark., Fla., N.H., Tenn., Wyo.
Vulnerable disability
victims Elderly person1448 Ariz., Fla., La., N.H., Tenn., Wyo.
Pregnant woman Colo., Ind., Pa., Tenn.
Victim covered by a protective order Fla., Ky., Pa., Wash.
Familial or custodial authority over
Fla., Wash.
victim; family or household members
Ariz., Cal., Colo., Fla., Ga., Idaho, Ind., Ky., La., Mo.,
Law enforcement officer or official 1450 Mont., Nev., N.C., Ohio, Okla., Pa., S.C., S.D., Tenn.,
Tex., Utah, Wash.
Murder of a family member of a law
enforcement officer or official, a S.C.
judicial officer or a fireman
Ga., Ind., Ky., La., Mo., Nev., N.C., Okla., Pa., S.C.,
Corrections official or employee1451
S.D., Tenn., Tex., Utah, Wash.
Cal., Colo., Ga., Ind., La., Mo., Nev., N.C., Pa., S.C.,
Firefighter, fire marshal, fire police
Official S.D., Tenn., Tex., Utah, Wash.
victims1449 Paramedic, EMT1452 Colo., Tenn., Utah

Judicial officer: judge, prosecutor, Cal., Colo., Idaho, Ga., Ind., Mo., N.C., Pa., S.C., S.D.,
Attorney General, special investigator Tenn., Tex., Utah, Wash., Wyo.

Juror Cal., N.C., Utah, Wash., Wyo.

Government official Cal., Colo., Fla., Idaho, Ky., Mo., Pa., Tenn., Utah
Witnesses: to prevent testimony or Ariz., Cal., Colo., Idaho, Ind., Kan., La., Mo., N.C.,
retaliate for the same1453 Ohio, Pa., S.C., Utah, Wyo.

1447
Under age 15 (Ariz.); under age 13 (Ark., Ohio, S.D.); under age 12 (Colo., Fla., Ind., La., Pa.); under age 14
(Ala., Nev., Utah); under 11 years of age (S.C.); child less than 12 years of age/defendant at least 18 (Tenn.); child
under age 10 (Tex.); under age 17 (Wyo.); if a child under 14 is present when his/her parent or guardian is murdered
(Ala.).
1448
70 years of age or older (Ariz., Tenn.); 65 years of age or older (La.); older than 65 years of age (Wyo.).
1449
Victim was engaged in official duties when killed.
1450
Any peace officer and security officers (Utah, eff. July 1, 2019).
1451
If murderer was a prisoner (Ky., Tex.).
1452
Includes ambulance personnel, and search and rescue personnel (Utah, eff. July 1, 2019).
1453
Includes an informant (Pa.).

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 State-by-State Survey of
Aggravating Circumstances for Capital Punishment
May 2018
Circumstances States
Victim was a news reporter Wash.

Remote stun gun Ariz.

Specific Ark., Cal., Colo., Ind., Ky., Miss., N.C., Tenn., Utah,
Destructive or explosive device1454
weapons Wyo.
Chemical, biological or radiological
Colo.
weapon
Poison Cal., S.C., Utah
School or secondary educational
Specific Ind., Nev.
institution1455
locations
Place of worship Ind.
Victim had been kidnapped for ransom
Colo., Mont., N.C., Pa., Utah
or reward
Hate crimes: race; color; religion;
Cal., Colo., Miss.1456, Nev.1457
ancestry; nationality; country of origin
Sexual predator; infamous crime
against nature, lewd and lascivious
behavior, sexual abuse of a child; Fla., Idaho, Mont., Nev., S.C.
during nonconsensual sexual
penetration
Organized crime: Criminal street gang
Specific or criminal syndicate promotion or Ariz., Cal., Fla., Ind., Mo., Wash.
crimes initiation
Defendant was lying in wait or
Cal., Colo., Mont.
ambushed the victim
Drive-by shooting or discharging
Cal., Ind., Wash.
firearm into inhabited dwelling
During a hijacking Mo., N.C., Pa., Tenn., Utah, Wyo.
As part of an act of terrorism Ga. (domestic terrorism), Nev., Ohio, Utah 1458
Assassination of political leader or
Ohio
candidate
Crime involved controlled
La., N.H., Pa., S.C., S.D.
substances1459

1454
Weapons of mass destruction (Ky., Utah).
1455
On a school bus (Nev.).
1456
To intimidate or coerce a civilian population.
1457
Physical or mental disability or sexual orientation or gender identity or expression.
1458
“Targeting a law enforcement officer”--to intimidate or coerce a civilian population for political or social purposes.
1459
During a drug deal (La.); prior drug convictions (N.H.); drug trafficking (S.C.).

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Citations:

Alabama: Ala. Code § 13A-5-49

Arizona: Ariz. Rev. Stat. §13-751(F)
Arkansas: Ark. Code § 5-4-604
California: Cal. Penal Code § 190.2
Colorado: Colo. Rev. Stat. § 18-1.3-1201(5)
Florida: Fla. Stat. § 921.141(5)
Georgia: Ga. Code 17-10-30(b)
Idaho: Idaho Code § 19-2515(9)
Indiana: Ind. Code § 35-50-2-9(b)
Kansas: Kan. Stat. § 21-6624
Kentucky: Ky. Rev. Stat. § 532.025(2)(a)
Louisiana: La. C. Crim. Proc. § art. 905.4
Mississippi: Miss. Code § 99-19-101(5)
Missouri: Mo. Rev. Stat. § 565.032(2)
Montana: Mont. Code § 46-18-303
Nebraska: Death penalty repealed in 2015, reinstated by reference in 2016; no statutory provisions enacted
Nevada: Nev. Rev. Stat. § 200.033
New Hampshire: N.H. Rev. Stat. § 630:5(VII)
North Carolina: N.C. Gen. Stat. §15A-2000(e)
Ohio: Ohio Rev. Code § 2929.04(A)
Oklahoma: Okla. Stat. §21-701.12
Oregon: Ore. Rev. Stat. § 163.150(1)(b)
Pennsylvania: 42 Pa.C.S. § 9711(d)
South Carolina: S.C. Code § 16-3-20(C)(a)
South Dakota: S.D. Codified Laws § 23a-27a-1
Tennessee: Tenn. Code § 39-13-204(1)
Texas: Tex. Penal Code § 19.03; Tex. C. Crim. Proc. Art. 37.071 Sec. 2 (b)(1)
Utah: Utah Code §§ 76-30207(3); 76-5-202(1) & (2); 76-5-210
Virginia: Va.Code §§ 19.2-264.2 & 19.2-264.4(C)
Washington: Wash. Rev. Code § 10.95.020
Wyoming: Wyo. Stat. § 6-2-102(h)

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 APPENDIX C

State-by-State Survey of
Mitigating Circumstances for Capital Punishment
May 2018

Specific Circumstances States

Ala., Ark., Colo., Fla., Ind., Kan., Ky., La., Miss., Mo.,
No significant history of prior criminal activity Mont., Nev., N.H., N.C., Ohio, Okla., Ore., Pa., S.C.,
Tenn., Va., Wash., Wyo.
Ala., Ark., Cal., Colo., Fla., Ind., Kan., Ky., La., Miss.,
Under influence of extreme mental or emotional
Mo., Mont., Nev., N.H., N.C., Okla., Ore., Pa., S.C.,
disturbance at time offense committed
Tenn., Va., Wash., Wyo.
Ala., Ariz., Ark., Cal., Colo., Fla., Ind., Kan., Ky., La.,
Accomplice with relatively minor participation Miss., Mo., Mont., Nev., N.H., N.C., Ohio, Pa., S.C.,
Tenn., Wash., Wyo.
Ala., Ariz., Ark., Cal., Colo., Fla., Ind., Kan., Ky., La.,
Under extreme duress or substantial domination of
Miss., Mo., Mont., Nev., N.H., N.C., Ohio, Okla., Pa.,
another person; unusual or substantial duress
S.C., Tenn., Wash.
Capacity to appreciate the criminality of the conduct or Ala., Ariz., Ark., Cal., Colo., Fla., Ind., Kan., Ky., La.,
to conform conduct to the law was substantially Miss., Mo., Mont., N.H., N.C., Ohio, Okla., Pa., S.C.,
impaired1460 Va., Wash., Wyo.
Ala., Ariz., Ark., Cal., Colo., Fla., Ind., Kan., Ky., La.,
Age of defendant at time of offense 1461 Miss., Mo., Mont., Nev., N.H., N.C., Ohio, Okla., Ore.,
Pa., S.C., Tenn., Va., Wash., Wyo.
Ala., Cal., Fla., Ind., Kan., Ky., Miss., Mo., Mont.,
Victim a participant in defendant’s conduct or
Nev., N.H., N.C., Ohio, Okla., Pa., S.C., Tenn., Va.,
consented to it
Wash., Wyo.
Defendant reasonably believed conduct was morally
Cal., Colo., Ky., La., Okla., Tenn.
justified; believed in good faith
Defendant’s propensity to violence; record of violent
Ariz., Cal.
behavior
Cooperation with law enforcement and prosecutors Colo., N.C., Okla.
Evidence of mental retardation or subaverage
Okla., S.C., Va.
intellectual functioning
Could not reasonably have foreseen that conduct would
Ariz., Colo.
cause or create a grave risk of causing death
Defendant provoked Ohio, S.C.
At the time of the offense, defendant was suffering
from post-traumatic stress syndrome caused by Kan.
violence or abuse by the victim
Other equally culpable defendants will not be punished
N.H.
by death
Personal moral culpability of the defendant Tex.

1460
As a result of mental disease or defect, intoxication or drug abuse (Ark.); mental disease or defect or intoxication
(Cal., Ind., La., Tenn.); influence of drugs or alcohol (Colo.); mental illness, intellectual disability or intoxication
(Ky.); mental disease or defect (Ohio, Wash.).
1461
Defendant was under age 18 at the time offense committed (Ind., Mont., S.C.); defendant was youthful, but not
under the age of 18 (N.H.); youth or advanced age (Tenn.).

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 State-by-State Survey of
Mitigating Circumstances for Capital Punishment
May 2018

General Circumstances States

Ariz., Cal., Fla., N.H., Ohio, Okla., Pa., Tex., Utah,
Defendant’s character, background, history
Va., Wyo.
Nature and circumstances of the offense Ariz., Cal., Ohio, Pa., Tex., Utah, Va., Wyo.

Defendant’s mental or physical condition Cal., S.C., Utah

Defendant not a continuing threat to society1462 Colo., Okla., Wash.

Cal., Colo., Ind., La., Mont., Nev., N.C., Ohio, Okla.,
Any other mitigating circumstances
Ore., Tenn., Utah
General proviso for any mitigating circumstances Ga., Idaho, S.D.

Citations:

Alabama: Ala. Code § 13A-5-51 Oregon: Ore. Rev. Stat. § 163.150(1)(c)

Arizona: Ariz. Rev. Stat. §13-751(G) Pennsylvania: 42 Pa.C.S. § 9711(e)
Arkansas: Ark. Code § 5-4-605 South Carolina: S.C. Code § 16-3-20(C)(b)
California: Cal. Penal Code § 190.3 South Dakota: S.D. Codified Laws § 23a-27a-1
Colorado: Colo. Rev. Stat. § 18-1.3-1201(4) Tennessee: Tenn. Code § 39-13-204(j)
Florida: Fla. Stat. § 921.141(7) Texas: Tex. C. Crim. Proc. Art. 37.071
Georgia: Ga. Code 17-10-30(b) Sec. 2 (a)(1), (d)(1) and (e)(1)
Idaho: Idaho Code § 19-2515(3) Utah: Utah Code §§ 76-3-207(2)
Indiana: Ind. Code § 35-50-2-9(c) Virginia: Va. Code § 19.2-264.4(B)
Kansas: Kan. Stat. § 21-6625 Washington: Wash. Rev. Code § 10.95.070
Kentucky: Ky. Rev. Stat. § 532.025(2)(b) Wyoming: Wyo. Stat. § 6-2-102(j)
Louisiana: La. C. Crim. Proc. § art. 905.5
Mississippi: Miss. Code § 99-19-101(6)
Missouri: Mo. Rev. Stat. § 565.032(3)
Montana: Mont. Code § 46-18-304
Nebraska: Death penalty repealed in 2015;
reinstated by referendum; statute not amended
to reflect mitigating circumstances
Nevada: Nev. Rev. Stat. § 200.035
New Hampshire: N.H. Rev. Stat. § 630:5(VI)
North Carolina: N.C. Gen. Stat. §15A-2000(f)
Ohio: Ohio Rev. Code § 2929.04(B)
Oklahoma: Okla. Uniform Jury Instructions:
OUJI- CR 4-79

1462
Defendant likely to be rehabilitated (Okla.).

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 APPENDIX D

State-by-State Survey of
State Clemency Process in Death Penalty Sentences
April 2018
Clemency Options
Decision-Maker
Available
State Citation
Com-
Pardon Reprieve Pardon Commutation Reprieve
mutation
Board of Pardons and
Paroles, if Governor has
Ala. Const. art. V, § commuted the death
124; Ala. Code §§ penalty sentence, person
Alabama X X X Governor Governor
15-22-27(a) and 15- has proven innocence,
22-36(a) Board unanimously votes
for pardon, and Governor
concurs
Board of Executive
Clemency makes
Board of Executive Board of Executive
affirmative recommendation
Ariz. Const. art. V, Clemency makes Clemency make
to the Governor; unanimous
Arizona § 5; Ariz. Rev. Stat. X X X affirmative affirmative
vote for commutation not
§§ 31-402, 31-443 recommendation to the recommendation to the
signed by Governor within
Governor Governor
90 days’ is automatically
effective
Ark. Const. art. VI, Governor; Parole Board Governor; Parole Board Governor; Parole Board
Arkansas § 18; Ark. Code § X X X may make nonbinding may make nonbinding may make nonbinding
16-93-204 recommendations recommendations recommendations
Cal. Const. art. V, § Governor; Board of Parole Governor; Board of Parole Governor; Board of
California 8; Cal. Penal Code X X X Hearings may make Hearings may make Parole Hearings may
§ 4800 recommendations recommendations make recommendations
Colo. Const. art.
Colorado IV, § 7; Col. Rev. X X X Governor Governor Governor
Stat. § 16-17-101

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 State-by-State Survey of
State Clemency Process in Death Penalty Sentences
April 2018
Clemency Options
Decision-Maker
Available
State Citation
Com-
Pardon Reprieve Pardon Commutation Reprieve
mutation
Conn. Const. art. 4,
Board of Pardons Board of Pardons
Connecticut* § 13; Conn. Gen. X Governor
and Paroles and Paroles
Stat. § 54-130a
Board of Pardons makes Board of Pardons makes
Board of Pardons makes
Del. Const. art. VII affirmative affirmative
Delaware** X X X affirmative recommendation
§1 recommendation to recommendation to
to Governor
Governor Governor
Fla. Const. art. IV § Board of Executive Board of Executive
Florida 8; Fla. Stat. § X X X Clemency (Governor and Clemency (Governor and Governor
940.01 two Cabinet members) two Cabinet members)
Ga. Const. art. IV,
State Board of Pardons and State Board of Pardons and State Board of Pardons
Georgia § 2, ¶ 2; Ga. Code § X X X
Paroles Paroles and Paroles
42-9-1 et seq.
Commission for Pardons
Idaho Const. art. IV Commission for Pardons and Paroles recommends to Governor, until next
Idaho § 7; Idaho Code §§ X X X and Paroles recommends to Governor; if not approved session of Commission
20-210 and 20-240 Governor within 30 days, deemed for Pardons and Paroles
denied
Ind. Const. art. V § Governor; Parole Board Governor; Parole Board Governor; Parole Board
17; Ind. Code §§ receives applications and receives applications and receives applications
Indiana X X X
11-9-1-2 and 11-9- makes advisory makes advisory and makes advisory
2-1 et seq. recommendations recommendations recommendations
Governor; must consult
Kan. Const. art. I § Governor; must consult with Governor may postpone
with Prisoner Review
Kansas 7; Kan. Stat. §§ 22- X X Prisoner Review Board but execution for a limited
Board but not bound by its
3701 and 22-3704 not bound by its advice time
advice
Ky. Const. § 77;
Governor; may consult Governor; may consult Governor; may consult
Kentucky Ky. Rev. Stat. § X X X
Parole Board Parole Board Parole Board
439.450

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 State-by-State Survey of
State Clemency Process in Death Penalty Sentences
April 2018
Clemency Options
Decision-Maker
Available
State Citation
Com-
Pardon Reprieve Pardon Commutation Reprieve
mutation
La. Const. art. IV §
Board of Pardons Board of Pardons
Louisiana 5; La. Rev. Stat. § X X X Governor
recommends to Governor recommends to Governor
15:572 et seq.
Governor; State Parole
Governor; State Parole
Miss. Const. art. V Board may investigate
Board may investigate
Mississippi § 124; Miss. Code X X -- clemency
clemency recommendations
§ 47-7-5(3) recommendations upon
upon request of Governor
request of Governor
Governor; Board of
Governor; Board of Governor; Board of Probation and Parole
Mo. Const. art. IV Probation and Parole Probation and Parole receives and
Missouri § 7; Mo. Rev. Stat. X X X receives and investigates receives and investigates investigates
§ 217.800.1 applications; makes non- applications; makes non- applications; makes
binding recommendations binding recommendations non-binding
recommendations
Governor; applications
Governor; applications Governor; applications
made to Board of
Mont. Const. art. made to Board of Pardons made to Board of Pardons
Pardons and Paroles,
Montana VI § 12; Mont. X X X and Paroles, board makes and Paroles, board makes
board makes non-
Code § 46-23-301 non-binding non-binding
binding
recommendations recommendations
recommendations
Governor, Attorney
Governor, Attorney Governor, Attorney General
General and Secretary
General and Secretary of and Secretary of State,
Neb. Const. art. IV, of State, sitting as a
Nebraska X X X State, sitting as a board; sitting as a board; Board of
§ 13 board; Board of Parole
Board of Parole may give Parole may give non-
may give non-binding
non-binding advice binding advice
advice
State Board of Pardons State Board of Pardons
State Board of Pardons
Nev. Const. art. V § Commissioners (Governor, Commissioners
Commissioners (Governor,
Nevada 13; Nev. Rev. Stat. X X X justices of the Supreme (Governor, justices of
justices of the Supreme
§ 213.010 et seq. Court and Attorney the Supreme Court and
Court and Attorney General)
General) Attorney General)

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 State-by-State Survey of
State Clemency Process in Death Penalty Sentences
April 2018
Clemency Options
Decision-Maker
Available
State Citation
Com-
Pardon Reprieve Pardon Commutation Reprieve
mutation
N.H. Const. Part 2nd Governor with advice of
Governor with advice of Governor with advice of
New arts. 52, 60; N.H. Executive Council
X X X Executive Council (five- Executive Council (five-
Hampshire Rev. Stat. § 4:21 et (five-person elected
person elected body) person elected body)
seq. body)
N.M. Const. art. V Governor; Governor
New Governor; Governor may Governor; Governor may
§ 6; N.M. Stat. § X X X may consult Parole
Mexico*** consult Parole Board consult Parole Board
31-21-17 Board
Governor; Post-Release Governor; Post-Release Governor; Post-Release
N.C. Const. art. III
North Supervision and Parole Supervision and Parole Supervision and Parole
§ 5; N.C. Gen. Stat. X X X
Carolina Commission may assist Commission may assist Commission may assist
§ 143B-720
Governor Governor Governor
Ohio Const. § 3.11; Governor; Adult Parole Governor; Adult Parole
Governor; Adult Parole
Ohio Rev. Code §§ Authority/Parole Board Authority/Parole Board
Ohio X X X Authority/Parole Board may
2967.01 et seq., may make may make
make recommendations
5149.10 recommendations recommendations
Pardon and Parole
Pardon and Parole Board Pardon and Parole Board
Ok. Const. § VI-10; Board makes
makes affirmative makes affirmative
Oklahoma Okla. Stat. § 57- X X X affirmative
recommendation to recommendation to
332 recommendation to
Governor Governor
Governor

Or. Const. art. V §

14; Or. Rev. Stat.
Oregon X X X Governor Governor Governor
§§ 144.649 to
144.670

Pa. Const. art. IV §

9; Administrative
Board of Pardons makes Board of Pardons makes Board of Pardons makes
Code of 1929, §§
Pennsylvania X X X recommendations to recommendations to recommendations to
403 and 909 (71
Governor Governor Governor
P.S. §§ 113 and
299)

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 State-by-State Survey of
State Clemency Process in Death Penalty Sentences
April 2018
Clemency Options
Decision-Maker
Available
State Citation
Com-
Pardon Reprieve Pardon Commutation Reprieve
mutation
Governor; Board of Governor; Board of
S.C. Const. art. IV, Board of Probation, Parole Probation, Parole and Probation, Parole and
South
§ 14; S.C. Code §§ X X X and Pardon Services by Pardon Services may make Pardon Services may
Carolina
24-21-910 et seq. 2/3rds vote non-binding make non-binding
recommendations recommendations
Governor; Governor
Governor; Governor may Governor; Governor may
S.D. Const. art. 4 § may ask Board of
ask Board of Pardons and ask Board of Pardons and
South 3; S.D. Codified Pardons and Paroles to
X X X Paroles to review Paroles to review
Dakota Laws Ch. 24-14-1 review applications and
applications and make non- applications and make non-
et seq. make non-binding
binding recommendations binding recommendations
recommendations
Governor –on his own or
upon certificate from the Governor; Board of
Tenn. Const. art. III Governor; Board of Parole Supreme Court re Parole may make
§ 6; Tenn. Code § may make nonbinding extenuating circumstances; nonbinding
Tennessee X X X
40-27-101 et seq.; § recommendations upon the Board of Parole may make recommendations upon
40-28-104 request of the Governor nonbinding the request of the
recommendations upon the Governor
request of the Governor
Boards of Pardons and
Tex. Const. art. 4 § Boards of Pardons and Boards of Pardons and Paroles makes
11; Tex. Code Paroles makes affirmative Paroles makes affirmative affirmative
Texas X X X
Crim. Proc. art. recommendation to recommendation to recommendation to
48.01 et seq. Governor Governor Governor; one 30-day
reprieve permitted
Governor; reprieves
Utah Const. art. VII may not extend beyond
Board of Pardons and
Utah § 12: Utah Code § X X X Board of Pardons and Parole the next session of the
Parole
77-27-1 et seq. Board of Pardons
and Parole
Va. Const. art. V § Governor; Parole Board Governor; Parole Board Governor; Parole Board
Virginia X X X
12; Va. Code §§ may be consulted may be consulted may be consulted

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 State-by-State Survey of
State Clemency Process in Death Penalty Sentences
April 2018
Clemency Options
Decision-Maker
Available
State Citation
Com-
Pardon Reprieve Pardon Commutation Reprieve
mutation
53.1-229 to 53.1-
231
Wash. Const. art. Governor; Clemency and Governor; Clemency and
III § 9; Wash. Rev. Pardons Board to review Pardons Board to review
Washington X X X Governor
Code §§ 9.94a.885 petitions and make petitions and make
and 10.01.120 recommendations recommendations
Governor; death penalty
Wyo. Const. art. 3
may be commuted to life
§53 and Art. 4 § 5;
Wyoming X X X Governor imprisonment without Governor
Wyo. Stat. § 7-13-
parole, but LWOP cannot be
801 et seq.
further commuted

* Connecticut: “[F]ollowing its prospective abolition, this state's death penalty no longer comports with contemporary standards of decency and no longer serves
any legitimate penological purpose. For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state
constitutional prohibition against cruel and unusual punishment.” Conn. v. Santiago, 122 A.3d 1, 10 (Conn. 2015).
** Delaware: The Delaware Supreme Court declared the state death penalty statute unconstitutional. Rauf v. Del., 145 A.3d 430 (Del. 2016). Legislators in
Delaware are attempting to amend the death penalty statute to meet constitutional muster. House Bill 125 (2017) passed the House of Representatives by a vote
of 24-16 on May 9, 2017 and was referred to the Senate Judiciary and Community Affairs Committee on May 10, 2017.
*** New Mexico: Death penalty repealed prospectively only, leaving two inmates on death row (eff. 7.1.2009; 2009 H.B. 285). The New Mexico Supreme Court
heard oral arguments on April 10, 2018 on the men’s petitions for habeas corpus. Fry v. Lopez (N.M. S-1-SC-34372, filed Oct. 22, 2013) and Allen v. LeMaster
(N.M. S-1-SC-34386, filed Oct. 28, 2013).

Note: Nebraska abolished the death penalty in 2015, but it was reinstated following a statewide referendum in 2016. A lawsuit challenging the referendum was
dismissed in 2018.

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 APPENDIX E

State-by-State Survey of
Clemency Actions - Commutation in Capital Cases
During the Time Period 1977-2018
April 2018

Grounds AL AR DE FL GA ID IL IN KY LA MD MO MT NV NJ NM NC OH OK TN TX VA Total

Possible innocence/doubt about guilt 2 1 4 2 1 2 1 2 5 1 1 4 24

Disproportionate sentence 1 4 3 1 1 2 1 1 12
Governor’s position on death penalty 5 5
Inmate illness 1 1
Inmate rehabilitation 1 1 2
Inmate mental illness 1 1 3 4
Inmate intellectual disability 1 1 1 3
Death penalty abolished 15 4 8 27
Ineffective counsel 1 1 1 1 4
Flawed process 167 1 1 169
No reason given 1 2 1 4
Other 1 1 2 1 1 3 12 1 1 1 23
Total* 1 2 1 6 9 1 187 3 2 1 6 4 1 1 8 5 6 20 4 3 3 10 284

Source: Death Penalty Information Center, “Clemency.” www.deathpenaltyinfo.org/clemency.

* Excludes three persons on federal or military death row whose sentences were commuted.

- 235 -
- 236 -
 APPENDIX F

Pennsylvania Capital Cases

Year 2011 2012 2013 2014 2015 2016 2017 total %

Total Resolved Annually

107 94 64 54 48 35 28 430 100
(no. of defendants)
Notice of Aggravating
63 56 29 27 26 17 20 238 55.3
Circumstances withdrawn
Pled Guilty to
11 11 8 8 8 7 3 56 13
1st Degree Murder
Pled Guilty to
9 13 12 11 7 5 1 58 13.5
< 1st Degree Murder

Capitally tried 18 6 11 4 5 5 2 51 11.9

Other Non-Capital Disposition 2 1 0 0 0 0 0 3 0.7

Death Sentence 4 7 4 4 2 1 2 24 5.6

Source: Atl. Ctr. for Capital Representation

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- 237 -
 APPENDIX G

State-by-State Survey of
Prohibition against Capital Punishment for Defendants with Intellectual Disabilities

Primary
Timing of Burden of
State Citation Fact Evidentiary Standard
Determination Proof
Finder
Morrow v. State,
928 So.2d 315,
322-24 (Ala.
At any time during
Crim. App. Trial
Alabama trial; preference for Defendant Preponderance
2004); Ala. R. judge
pre-trial hearing
Crim. P. 32; Ala.
Code § 15-24-1
to -24-7
Clear and convincing;
IQ of 75 or lower gets
Ariz. Rev. Stat. § Trial
Arizona Pre-trial* Defendant expert exam; 65 or
13-753 judge
lower creates rebuttable
presumption of ID
Preponderance; IQ of 65
Ark. Code § 5-4- Trial or lower creates
Arkansas Pre-trial* Defendant
618 judge rebuttable presumption
of ID
At Defendant’s
Trial
Cal. Penal Code option, pre-trial by
California judge or Defendant Preponderance
§ 1376 judge, post-trial by
jury
jury
Colo. Rev. Stat. §
Trial
Colorado 18-1.3-1101 to - Pre-trial Defendant Clear and convincing
judge
1.3-1105
Fla. Stat. § Trial
Florida Post-trial Defendant Clear and convincing
921.137 judge
Trial Verdict of “guilty
Ga. Code § 17-7- Beyond a reasonable
Georgia judge or but w/intellectual Not stated
131 doubt
jury disability”
Idaho Code § 19- Trial
Idaho Pre-trial Defendant Preponderance
2515A judge
Ind. Code §§ 35- Trial
Indiana Pre-trial Defendant Preponderance1463
36-9-1 to -36-9-7 judge
Kan. Stat. § 21- Trial
Kansas Post-trial Not stated Not stated
6622 judge

1463
The statute says, clear & convincing; however, the judiciary concluded “as a matter of federal constitutional law
. . . that the state may not require proof of mental retardation by clear and convincing evidence.” Pruitt v. Ind., 834
N.E.2d 90, 103 (Ind. 2005).

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 State-by-State Survey of
Prohibition against Capital Punishment for Defendants with Intellectual Disabilities

Primary
Timing of Burden of
State Citation Fact Evidentiary Standard
Determination Proof
Finder
Ky. Rev. Stat. §§ Trial
Kentucky Pre-trial Not stated Not stated
532.135, 532.140 judge
Trial Pre-trial (judge) or
La. Code Crim.
Louisiana judge or during sentencing Defendant Preponderance
Proc. art. 905.5.1
jury hearing (jury)
Chase v. Miss.,
873 So.2d 1013, Trial
Mississippi Pre-trial Defendant Preponderance
1029-30 (Miss. judge
2004)
Sentencing phase;
Trial
Mo. Rev. Stat. § may be pre-trial
Missouri judge or Not stated Preponderance
565.030 upon agreement of
jury
parties and court
No specific
Montana statute or case -- -- -- --
found
No specific
Nebraska statute or case -- -- -- --
found
Nev. Rev. Stat. § Trial
Nevada Pre-trial Defendant Preponderance
174.098 judge
No specific
New
statute or case -- -- -- --
Hampshire
found
Pre-trial by court, if
Trial court does not find If judge, clear and
North N.C. Gen. Stat. §
judge or pre-trial, can be Defendant convincing; if jury,
Carolina 15A-2005
jury decided by jury preponderance
during sentencing
Ohio v. Lott, 779
N.E.2d 1011, Trial
Ohio Pre-trial Defendant Preponderance
1014-15 (Ohio judge
2002)
Pre-trial by court, if
Trial court does not find If judge, clear and
Okla. Stat. tit. 21,
Oklahoma judge or pre-trial, can be Defendant convincing; if jury,
§ 701.10b
jury decided by jury preponderance
during sentencing
Or. v. Agee, 364
Trial
P.3d 971, 982-83, Pre-trial by court or
Oregon judge or Defendant Preponderance
996 n.28 (Or. post-trial by jury
jury
2015)
During sentencing
unless parties agree
Pa. R. Crim. P. Jury or
Pennsylvania to pre-trial w/the Defendant Preponderance
840-845 judge
latter being decided
by the judge

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 State-by-State Survey of
Prohibition against Capital Punishment for Defendants with Intellectual Disabilities

Primary
Timing of Burden of
State Citation Fact Evidentiary Standard
Determination Proof
Finder
Franklin v
South Maynard, 588 Trial
Pre-trial1464 Defendant Preponderance
Carolina S.E.2d 604, 606 judge
(S.C. 2003)
S.D. Codified
South Laws §§ 23A- Trial
Pre-trial Defendant Preponderance
Dakota 27A-26.1 to 23A- judge
27A-26.5
Tenn. Code § 39- Trial
Tennessee Pre-trial (or trial) Defendant Preponderance
13-203 judge
Ex parte Briseno,
135 S.W.3d 1, 12
(Tex. Crim. App.
Trial
2004);1465
Texas judge or During sentencing Defendant Preponderance
Neal v. Tex., 256
jury1466
S.W.3d 264, 272
(Tex. Crim. App.
2008)
Pre-trial on Proponent of
Utah Code §§ 77-
Trial defendant’s motion; defense
Utah 15a-101 to -15a- Preponderance
judge any time by court (usually
106
order defendant)
Va. Code § 19.2- Trier of
Virginia During sentencing Defendant Preponderance
264.3:1.1 fact
Wash. Rev. Code Trial
Washington During sentencing Defendant Preponderance
§ 10.95.030 judge
No specific
Wyoming statute or case -- -- -- --
found

* Defendant may raise the issue de novo to the jury during sentencing

1464
“If, however, the judge finds the defendant is not mentally retarded and the jury finds the defendant guilty of the
capital charge, the defendant may still present mitigating evidence that he or she had mental retardation at the time of
the crime. If the jury finds this mitigating circumstance, then a death sentence will not be imposed.” Franklin v
Maynard, 588 S.E.2d 604, 606 (S.C. 2003) (citation omitted).
1465
Abrogated on other grounds, Moore v. Tex., 137 S.Ct. 1039 (U.S. 2017).
1466
Gallo v. Tex., 239 S.W.3d 757, 770 (Tex. Crim. App. 2007).

- 241 -
- 254 -
 APPENDIX H

Report to the Joint State Government Commission

Pursuant to Pennsylvania Senate Resolution 6 (SR6), Session of 2011

By Gary Zajac, Ph.D. and Laura Winger, M.S.

The Pennsylvania State University

Justice Center for Research
The 329 Building, Suite 222
University Park, PA 16802
http://justicecenter.psu.edu//

December 2013

Introduction

The following report is prepared in response to the Pennsylvania Senate Resolution 6 (SR6),
Session of 2011, pertaining to a study of capital punishment in Pennsylvania. SR6 calls for
research on 17 topics related to the death penalty. The following report addresses Topics 5 and 6
from SR6:

(5) Mental retardation: Whether, in light of the Supreme Court ruling in Atkins v. Virginia,
there are adequate procedural protections in place to assure that people with mental retardation are
not in fact being sentenced to death and executed;

(6) Mental illness: Whether persons suffering from mental illness constitute a
disproportionate number of those on death row, what criteria should be used in judging the level
of mental illness involved and whether people with mental illness who are convicted of murder
should be executed;

Before presenting the findings from our investigation of these two topics, several methodological
caveats, limitations and conditions must be noted. The data used in this analysis consisted of the
mental health and mental retardation status of all Pennsylvania state inmates serving a death
sentence or a term of life imprisonment without parole for a conviction of Murder 1 as of February
2013. This data was supplied to us by the Bureau of Planning, Research and Statistics of the
Pennsylvania Department of Corrections (PADOC). No personal/individual identifiers for the
inmates in this sample were included in this dataset, and were not needed for our analysis in any
event.

Page 1 of 11

- 243 -
The death row group consisted of all 195 inmates (192 males; 3 females) who were on death row
in February of 2013. More than half of the sample was Black (55.4%), while 34.4% was White.
The Murder 1 Life Without Parole (M1 LWOP) group consisted of all 3396 inmates serving under
this status in February 2013. This group was also predominantly male (96%), 63.7% were Black,
26.7% White, and 8.3% Hispanic. Other races reported included Asian, Indian, and “other.” The
M1 LWOP group serves as a rough comparison group for the death row inmates, to address issues
of disproportionality surfaced in Question 6. The M1 LWOP likely present the most comparable
offense types and sentencing circumstances to the death row inmates. We should note that we
made no attempt to statistically match the two groups; instead we simply report population means
and distributions on the variables discussed below.

Mental retardation status was inferred from the IQ score provided in the PADOC dataset. This
score represents the inmate’s status at the time of commitment to the PADOC, and not at the time
of his/her crime or trial. IQ is a reasonably static individual characteristic and thus the score
generated on the inmate within the PADOC should be representative of the inmate’s level of
cognitive functioning at the time of the crime and trial. The primary caveat here is that mental
retardation is a mental disorder codified by the Diagnostic and Statistical Manual of Mental
Disorders (Version IV was controlling as of the time of this analysis). IQ level is one criteria for
mental retardation within the DSM-IV, but IQ level itself is not sufficient to support a diagnosis
of mental retardation. Various other factors, including level of adaptive social functioning, also
contribute to a final diagnosis of mental retardation. But, IQ score was readily available to us from
the PADOC. Thus, IQ serves here as the best proxy for mental retardation. The IQ cut-off for
mental retardation in the DSM-IV is somewhat imprecise, indicating a threshold IQ of
approximately 70 or below. Thus, we used a score of 70 or lower in our analyses.

Turning to mental illness, the PADOC conducts a thorough mental health screening and
assessment of inmates beginning with initial intake to the prison system. Initial screening on the
first day of intake is done by psychiatric nurses, using key indicators of mental health need such
as history of mental health problems and treatment (based upon both self-reports and official
records transmitted from the courts), medication use, as well as observations of behaviors
demonstrated by inmates during intake (signs and symptoms). This screening directs a given
inmate as needed to further assessment by staff psychologists (under the direction of a licensed
psychologist manager), as well as psychiatrists. If the inmate is on psychiatric medications, a
referral is immediately made to a staff psychiatrist for additional specialized assessment.
Standardized tools used as part of this assessment include the Personality Assessment Inventory
(Morey, 1991), and all clinical assessment and treatment activities follow DSM-IV and ICD9
standards. Based upon these assessments, an inmate’s mental health status is coded as: (A) no
current mental health issues and no treatment history for the past 5 years; (B) no current need for
treatment, but with some indication of recent need; (C) active mental health needs with treatment
indicated; (D) serious mental health issues requiring close monitoring by Psychiatric Review
Team. The A and B categories represent the less serious cases, presenting fewer symptoms and
requiring less monitoring.

Page 2 of 11

- 244 -
The C and D categories represent the more serious cases, presenting more significant symptoms
and requiring closer monitoring. Inmates falling into category C are placed on the institutional
Mental Health Roster, and their treatment plans are reviewed quarterly. Inmates in category D are
reviewed monthly or more often as needed and are closely followed by staff psychiatrists. Inmates
can move between codes during their incarceration (esp. codes B, C & D) and reassessments are
done as needed. As with the IQ data discussed above, the data used here on mental health status
reflects the assessment done by the PADOC at the time of commitment to prison. Given that
mental health status is a more dynamic variable than IQ, the mental health status reflected in the
PADOC data may or may not be representative of the inmates’ mental health status at the time of
the crime and/or trial. Again, the PADOC data was the best source of information available to us
about the mental health status of these two populations.

Question 5: Mental Retardation

The core issue raised in Question 5 – whether there are adequate procedural protections in place
to assure that people with mental retardation are not in fact being sentenced to death and executed
– is one that can be answered only imperfectly with the data presented here. Ultimately, adequate
procedural protections are a matter of law. But, the analysis presented below does indicate that
very few mentally retarded inmates seem to be present in either of the groups explored here.

The average IQ score for the death row inmates was 89 (Standard Deviation = 16). Only 4.1% of
the death row inmates had an IQ of 70 or lower, classifying them as potentially mentally retarded.
Given a total population of 195 inmates, this translates to 8 inmates on death row who may be
potentially mentally retarded (recall the caveat noted earlier about the diagnostic criteria for mental
retardation requiring more than a simple IQ score of 70 or below). Of these 8, 5 had scores of
either 70 or 69, thus just barely meeting the IQ cutoff for potential retardation.

The average IQ score for the M1 LWOP group was 90 (Standard Deviation = 16). In this group,
8.7% had an IQ of 70 or lower, classifying them as potentially mentally retarded.

Thus, mean IQ for both groups of inmates is about 10 points below the normatively established
“average” IQ of 100 for the general human population. The proportion of inmates in both groups
with IQ’s that meet the diagnostic criteria for mental retardation (70 and below) is very low, but
considerably lower in the death row group. A chi square test revealed that the proportion of
inmates in the death row group with an IQ of 70 and lower is significantly less than the proportion
of inmates in the M1 LWOP group with an IQ of 70 and lower, Χ2 (1, N = 3578) = 4.90, p = .03.

ADDENDUM – JULY 2015: Subsequent to the preparation of this original report, both the United
States Supreme Court and the Pennsylvania Supreme Court issued rulings that would seem to
allow a higher IQ threshold (75) to be set for the diagnosis of intellectual disability. The links
below direct the reader to the relevant cases:

http://www.supremecourt.gov/opinions/14pdf/13-1433_bpm1.pdf

http://www.pacourts.us/assets/opinions/Supreme/out/J-108-2014mo%20-
%201022524584896858.pdf?cb=1
Page 3 of 11

- 245 -
Considering this, we re-analyzed the data discussed above to determine what impact a cut off of
75 might have on the findings. Using a cut off score of 75, 14% of the death row group and 15%
of the M1 LWOP group would fall into the category of mental retardation/intellectual disability.
This difference is not significant. So, even with relaxing the IQ cut off to 75, we find little practical
difference between the two groups, and in both sets of analyses, the death row group nominally
has a lower proportion of individuals who could potentially be diagnosed with intellectual
disability. We include both sets of analyses here to illustrate the evolving standards for the
assessment of intellectual disability. We also reiterate the strong caveats from the DSM-IV as
discussed above, and reinforced through the recently released DSM-V, that intellectual disability
is not diagnosed solely by means of IQ score. This diagnosis is driven much more by a broader
and more comprehensive assessment of adaptive and social functioning that is beyond the dataset
available to the analysis conducted here. This is to say that IQ score can be suggestive of potential
intellectual disability, but is by no means definitive.

Question 6: Mental Health

Question 6 regarding the mental health status of death row inmates actually includes several sub
questions, some of which cannot be answered empirically. First, Question 6 asks what criteria
should be used in judging the level of mental illness involved. The point of this question is
somewhat unclear, but as noted above, the standard source of diagnostic criteria for mental
disorders is the DSM-IV, which guides most mental health assessments in the U.S., including those
done within the PADOC. It is not our purpose to reinvent this wheel here. Next, Question 6 asks
whether people with mental illness who are convicted of murder should be executed. This is much
more a moral/normative than empirical question, and is beyond the scope of the analysis presented
here. The primary concern of Question 6 for the purposes of this report is the issue of whether
persons suffering from mental illness constitute a disproportionate number of those on death row.
Of course, “disproportionate” is itself a normative term and we do not attempt to define it here.
But, the analysis presented below does offer insight into differences in the numbers of mentally ill
inmates on death row versus M1 LWOP, from which the reader may draw their own conclusions
about disproportionality.

In the death row group, 38.5% of the inmates had a mental health status of “A,” 52.3% were
classified as “B,” and only 9.2% of the sample were identified as having a “C” status. There were
no inmates classified as “D”, the most serious mental health status. Thus, fewer than 10% of the
death row group was classified as having any sort of current and active mental disorder. The slight
majority of the overall death row group was assessed as having had some sort of mental health
issue in the past, but with no current treatable needs.

In the M1 LWOP group, 50.4% were rated as “A,” 30.0% as “B,” 17.1% as “C,” and 2.5% as “D.”
Thus, nearly 20% of this group was classified as having any sort of current and active mental
disorder, double the proportion for the death row group. The slight majority of the M1 LWOP
group was assessed as having no current or recent mental health issues.

Page 4 of 11

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The data is mixed on whether the death row group is disproportionately mentally ill, compared to
the M1 LWOP group. On the one hand, a far smaller percentage of the death row group is assessed
as having an active, current mental disorder. At the same time, considerably fewer of the death
row group are assessed as having no current or recent mental health issues at all. The primary
difference between the two groups lies in their past mental health issues (Category B). One
possible conclusion is that the death row inmates have a higher lifetime prevalence of some sort
of mental disorder, but a lower point prevalence than the M1 LWOP group.

This begs the question of how the inmates in these two groups compare to the overall human
population with respect to prevalence of mental disorder. It is reasonably well established that
prison inmates in general have higher levels of many mental disorders than is the case for the
general human population (Fazel and Danesh, 2002). A recent study estimated that approximately
half of the American population will manifest some sort of mental disorder during their lifetime,
although much more research is needed on this issue (Kessler, et al, 2005). Recall that we found
that among the M1 LWOP group, about half were coded as “A” (no current or recent mental health
issues), with the other half having some indication of current or recent mental health problem.
Thus, the M1 LWOP group would seem to roughly mirror the overall American population with
respect to lifetime prevalence of mental disorders. Conversely, the lifetime prevalence of mental
disorder for the death row group (c. 60%) would seem to be somewhat higher than for the overall
American population. We urge caution with these comparisons, though, in that the M1 LWOP
and death row inmates are not necessarily representative of the overall PADOC inmate population
(both groups combined represent only about 7% of the total PADOC population), nor of the overall
general population of Americans.

The following five tables present some additional analysis of the mental health status of the death
row and M1 LWOP groups.

To test whether there were significant differences in the proportions of individuals in each mental
health status category based on their death row status, we conducted a chi square analysis. There
was a significant relationship between death row status and mental health status, χ2 (3, N = 3590)
= 46.38, p <.001. Further significance testing revealed that the observed frequency for death row
inmates classified as mental health status “B” was significantly higher than expected, z = 5.30, p
<.001. Again, this would support a conclusion of a higher lifetime (but not necessarily current)
prevalence of mental illness for the death row group.

Page 5 of 11

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 Page 6 of 11

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Within the death row group, we examined the distribution of race by mental health status. Under
the category of “A,” 68.0% of subjects were Black and 22.7% were White. This distribution was
more even under the mental health status category of “B” with 49.0% of the group identifying as
Black and 39.2% as White. Finally, in the “C” category, 38.9% were Black and 55.6% were
White.

Page 7 of 11

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Within the M1 LWOP group, there was a similar racial pattern for the mental health statuses of
“A” and “B.” Under the category of “A,” 71.7% were Black and 19.7% were White. In Category
B, 59.2% were Black and 29.9% were White. For status “C,” 49.0% were Black and 40.5% where
White. Finally, in Category D, 57.0% of subjects were Black and 36.0% were White.

Page 8 of 11

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The following graphs show the distribution of the various mental health status for Black and White
inmates in the two groups.

Page 9 of 11

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The data presented in these tables is mixed, but on the whole this analysis suggests that the white
inmates in both groups have a higher rate of current or recent mental health problems than do the
black inmates. This corresponds to research on the overall American population (offender and
non-offender), which finds higher rates of lifetime prevalence of many mental disorders for whites
than for blacks (Kessler, et al, 2005).

Page 10 of 11

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 Conclusion

This report examined the rates of mental retardation and mental disorder among two groups of
inmates within the Pennsylvania Department of Corrections – those on death row and those serving
a sentence of Life without Parole for Murder 1, both groups as of February 2013. There is no
difference in average IQ score between the death row inmates and the M1 LWOP inmates. For
both groups, a small percentage of inmates met the IQ cutoff of 70 or below that is associated with
a diagnosis of mental retardation. But, the death row group has a statistically significant lower
proportion of inmates in this category than does the M1 LWOP group. With respect to mental
illness, a far greater proportion of the inmates in the M1 LWOP group have a current mental health
diagnosis, but a larger proportion of the death penalty group have had an indication of mental
illness at some point in their lifetimes. Results by race are mixed, but on balance white inmates
in both groups seem to report a somewhat higher rate of current or recent mental disorder. Lifetime
prevalence rates of mental disorder for the M1 LWOP group seem to mirror rates for the overall
American population, while the rate for the death row group seems to be somewhat higher than
for the overall American population. The reader is again cautioned to consider the caveats and
limitations to this data noted earlier.

References

American Psychiatric Association. (2000). Diagnostic and Statistical Manual of Mental

Disorders, 4th Edition, Text Revision (DSM-IV-TR).

Fazel, Seena and John Danesh. (2002). “Serious Mental Disorder in 23,000 Prisoners: A
Systematic Review of 62 Surveys.” The Lancet, 359, 545-550.

Kessler, Ronald C., Patricia Berglund, Olga Demler, Robert Jin, Kathleen R. Merikangas and Ellen
E. Walters. (2005). “Lifetime Prevalence and Age-of-Onset Distributions of DSM-IV Disorders
in the National Comorbidity Survey Replication.” Archives of General Psychiatry, 62, 593-602.

Morey, Leslie. (1991). The Personality Assessment Inventory. Odessa, FL: Psychological
Assessment Resources, Inc.

Page 11 of 11

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 APPENDIX I

Profile of Pennsylvania Inmates Under Death Sentence

Number and Percentage by Race Number by Age* Number by Gender

Grand
Year White % total Black % total Hispanic % total Asian % total 18-29 30-39 40-49 50+ Average Male % total Female % total
Total

1990 44 37.0% 74 62.2% 0 0.0% 1 1.0% 119 34 53 27 5 34.6 118 99.2% 1 0.8%
1991 53 38.7% 82 59.8% 0 0.0% 2 1.5% 137 33 61 35 7 35.2 136 99.3% 1 0.7%
1992 n.d. - n.d. - n.d. - n.d. - 151 n.d. n.d. n.d. n.d. - n.d. - n.d. -
1993 60 35.5% 103 60.9% 4 2.0% 2 1.2% 169 39 77 37 16 35.8 166 98.2% 3 1.8%
1994 60 33.5% 109 60.9% 8 4.5% 2 1.1% 179 40 81 42 16 38.2 176 98.3% 3 1.7%
1995 65 33.0% 122 61.9% 8 4.1% 2 1.0% 197 44 89 47 17 38.5 193 98.0% 4 2.0%
1996 65 31.7% 128 62.4% 10 4.9% 2 1.0% 205 51 95 44 17 37.5 201 98.0% 4 2.0%
1997 70 32.9% 131 61.5% 10 4.7% 2 1.0% 213 41 95 55 24 38.5 209 98.1% 4 1.9%
1998 73 32.4% 137 60.9% 13 5.8% 2 1.0% 225 39 93 65 28 38.8 221 98.2% 4 1.8%
1999 70 30.4% 144 62.6% 14 6.1% 2 1.0% 230 38 91 69 32 39.1 227 98.7% 3 1.3%
2000 72 30.1% 150 62.8% 15 6.3% 2 1.0% 239 27 93 81 38 38.4 235 98.3% 4 1.7%
2001 74 30.6% 150 62.0% 16 6.6% 2 1.0% 242 30 89 85 38 39.0 238 98.3% 4 1.7%
2002 74 30.5% 151 62.1% 16 6.6% 2 1.0% 243 26 89 85 45 40.0 238 97.9% 5 2.1%
2003 69 30.1% 139 60.7% 19 8.3% 2 1.0% 229 15 57 74 83 41.7 224 97.8% 5 2.2%
2004 68 30.2% 137 60.9% 18 8.0% 2 1.0% 225 25 70 85 45 41.6 220 97.8% 5 2.2%
2005 70 31.3% 134 59.8% 18 8.0% 2 1.0% 224 25 62 87 50 41.6 219 97.8% 5 2.2%
2006 70 31.4% 133 59.6% 18 8.1% 2 1.0% 223 20 62 86 55 43.1 218 97.8% 5 2.2%
2007 73 32.2% 134 59.0% 18 7.9% 2 1.0% 227 16 60 91 60 44.0 222 97.8% 5 2.2%
2008 72 32.0% 133 59.1% 18 8.0% 2 1.0% 225 17 52 87 69 44.0 220 97.8% 5 2.2%
2009 71 32.3% 129 58.6% 18 8.2% 2 1.0% 220 13 52 82 73 45.0 216 98.2% 4 1.8%
2010 69 31.4% 127 57.7% 18 8.2% 2 1.0% 216 13 44 82 77 45.8 213 98.8% 3 1.4%
2011 67 32.7% 117 57.1% 19 9.3% 2 1.0% 205 10 44 75 76 46.0 202 98.5% 3 1.5%
2012 68 34.5% 109 55.3% 18 9.1% 2 1.0% 197 10 42 74 71 46.0 194 98.5% 3 1.5%
2013 68 34.5% 103 52.3% 18 9.1% 1 1.0% 190 9 40 62 79 47.0 187 98.4% 3 1.6%
2014 68 36.6% 98 52.7% 18 9.7% 2 1.1% 186 9 39 57 81 47.0 183 98.4% 3 1.6%
2015 66 36.5% 95 52.5% 18 9.9% 2 1.1% 181 9 37 51 84 48.0 179 98.9% 2 1.1%
2016 64 36.8% 90 51.7% 17 9.8% 3 1.7% 174 5 33 51 85 49.0 173 99.4% 1 0.6%
Average 67 32.9% 122 59.4% 14 6.5% 2 1.0% 204 25 67 67 47 41.7 201 98.3% 4 1.7%

Information compiled from Pennsylvania Department of Corrections Annual Statistical Reports from years 1990-2016.
http://www.cor.pa.gov/About%20Us/Statistics/Pages/Reports.aspx

- 255 -
- 256 -
 APPENDIX J

Amounts appropriated to supplement the sum appropriated for

Pa. Commission on Crime & Delinquency

Commw.
Fiscal Year Fed. funding
appropriation
$8,500,000 (crime victims’ compensation servs.) $1,300,000 (victims of
1467
$85,000,000 (crime victims’ assist.) juvenile offenders)
2017-18 $4,000,000 (VOCA admin./ops.)
$900,000 (VOCA training) $500,000 (victim servs.)

$1,300,000 (victims of
$8,500,000 (crime victims’ compensation servs.) juvenile offenders)
2016-171468 $80,000,000 (crime victims’ assist.)
$4,000,000 (VOCA admin./ops.) $1,000,000 (victim
servs.)
$1,300,000 (victims of
$8,500,000 (crime victims’ compensation servs.) juvenile offenders)
2015-161469 $40,000,000 (crime victims’ assist.)
$2,000,000 (VOCA admin./ops.) $1,000,000 (victim
servs.)

$8,500,000 (crime victims’ compensation servs.)

1470 $20,000,000 (crime victims’ assist.) $1,300,000 (victims of
2014-15 $1,400,000 (VOCA admin./ops.) juvenile offenders)
$500,000 (Statewide automated victim info)

$7,500,000 (crime victims’ compensation servs.)

$20,000,000 (crime victims’ assist.)
$1,300,000 (VOCA admin./ops.) $1,300,000 (victims of
2013-141471 $1,000,000 (Statewide automated victim info) juvenile offenders)
$250,000 (crime victims’ compensation initiative)
$375,000 (Pa. capital litigation training program)

1467
Act of July 11, 2017 (P.L. , No.1A), §§ 202, 1801-D.
1468
Act of July 12, 2016 (P.L.1577, No.16A), §§ 202, 1801-D.
1469
Act of Dec. 29, 2015 (P.L.621, No.10A), §§ 202, 1801-D.
1470
Act of July 10, 2014 (P.L.3051, No.1A), § 202.
1471
Act of June 30, 2013 (P.L.1277, No.1A), § 202.

- 257 -
 Amounts appropriated to supplement the sum appropriated for
Pa. Commission on Crime & Delinquency

Commw.
Fiscal Year Fed. funding
appropriation
$7,500,000 (crime victims’ compensation servs.)
$20,000,000 (crime victims’ assist.)
$100,000 (ARRA-crime victims’ assist.)
$1,300,000 (victims of
2012-131472 $1,300,000 (VOCA admin./ops.)
juvenile offenders)
$1,000,000 (Statewide automated victim info)
$250,000 (crime victims’ compensation iniative)
$375,000 (Pa. capital litigation training program)
$7,500,000 (crime victims’ compensation servs.)
$75,000 (ARRA- crime victims’ compensation servs.)
$100,000 (ARRA- crime victims’compensation servs. admin.)
2011-121473 $20,000,000 (crime victims’ assist.) --
$600,000 (ARRA-crime victims’ assist.)
$1,300,000 (VOCA admin./ops.)
$1,500,000 (Statewide automated victim info)
$7,500,000 (crime victims’ compensation servs.)
$100,000 (ARRA- crime victims’ compensation servs.)
$100,000 (ARRA- crime victims’ compensation servs. admin.)
$718,000 (victims of
2010-111474 $20,000,000 (crime victims’ assist.)
juvenile crime)
$1,400,000 (ARRA-crime victims’ assist.)
$1,094,000 (VOCA admin./ops.)
$2,000,000 (Statewide automated victim info)
$5,073,000 (crime victims’ compensation servs.)
$2,000,000 (ARRA- crime victims’compensation servs.)
$100,000 (ARRA- crime victims’ compensation servs. admin.)
$20,000,000 (crime victims’ assist.)
$1,798,000 (victims of
2009-101475 $2,000,000 (ARRA-crime victims’ assist.)
juvenile crime)
$1,094,000 (VOCA admin./ops.)
$100,000 (ARRA-crime victims’ assist. admin.)
$2,000,000 (Statewide automated victim info)
$200,000 (victims’ rights compliance project)
$5,134,000 (crime victims’ compensation servs.)
$20,000,000 (crime victims’ assist.)
$3,389,000 (victims of
2008-091476 $1,094,000 (VOCA admin./ops.)
juvenile crime)
$2,000,000 (Statewide automated victim info)
$200,000 (victims’ rights compliance project)

1472
Act of June 30, 2012 (P.L.1740, No.9A), § 202.
1473
Act of June 30, 2011 (P.L.633, No.1A), § 202. ARRA is Am. Recovery & Reinvestment Act.
1474
Act of July 6, 2010 (P.L.1367, No.1A), § 202. ARRA is Am. Recovery & Reinvestment Act.
1475
Act of Aug. 5, 2009 (P.L.607, No.1A), § 202; Act of Oct. 9, 2009 (P.L.779, No.10A), § 202. ARRA is Am.
Recovery & Reinvestment Act.
1476
Act of July 4, 2008 (P.L.1735, No.38A), § 202.

- 258 -
 Amounts appropriated to supplement the sum appropriated for
Pa. Commission on Crime & Delinquency

Commw.
Fiscal Year Fed. funding
appropriation
$4,628,000 (crime victims’ compensation servs.)
$18,000,000 (crime victims’ assist.)
$3,462,000 (victims of
2007-081477 $1,148,000 (VOCA admin./ops.)
juvenile crime)
$1,500,000 (Statewide automated victim info)
$175,000 (victims’ rights compliance project)
$6,101,000 (crime victims’ compensation servs.)
$18,000,000 (crime victims’ assist.)
$3,450,000 (victims of
2006-071478 $1,148,000 (VOCA admin./ops.)
juvenile crime)
$1,250,000 (Statewide automated victim info)
$100,000 (victims’ rights compliance project)

$8,053,000 (crime victims’ compensation servs.)

1479 $18,000,000 (crime victims’ assist.) $3,450,000 (victims of
2005-06 $1,148,000 (VOCA admin./ops.) juvenile crime)
$75,000 (victims’ rights compliance project)

$6,000,000 (crime victims’ compensation servs.)

$18,000,000 (crime victims’ assist.) $3,668,000 (victims of
2004-051480 $1,148,000 & $888,000 (VOCA admin./ops.) juvenile crime)
$60,000 (victim assist. training acad.)

$4,000,000 (crime victims’ compensation servs.)

1481 $18,000,000 (crime victims’ assist.) $3,647,000 (victims of
2003-04 $600,000 (VOCA admin./ops.) juvenile crime)
$1,200,000 (victim assist. training acad.)

$5,000,000 & $3,144,000 (crime victims’compensation servs.)

$18,000,000 & $15,600,000 (crime victims’ assist.) $3,760,000 (victims of
2002-031482 $600,000 (VOCA admin./ops.) juvenile crime)
$120,000 (victim assist. training acad.)

1477
Act of July 17, 2007 (P.L.499, No.8A), § 202.
1478
Act of July 2, 2006 (P.L.1640, No.2A), § 202.
1479
Act of July 7, 2005 (P.L.487, No.1A), § 202.
1480
Act of July 4, 2004 (P.L.1837, No.7A), §§ 202, 1811.
1481
Act of Mar. 20, 2003 (P.L.463, No.1A), § 202.
1482
Act of June 29, 2002 (P.L.2106, No.7A), §§ 202, 1811.

- 259 -
 APPENDIX K

Ratio of Execution to Life Sentences by County

1 : 77 Based on May 2015 Inmate Population
Erie
Ex: 1 L: 77
Warren McKean
Tioga
1:4 Susquehanna
Ex: 0 L: 6 Ex: 0 L: 8 Potter Bradford Ex: 0 L: 2
Crawford Ex: 0 L: 5
Ex: 0 L: 10
Ex: 3 L: 11 1 : 10
Ex: 0 L: 20 Wayne
Ex: 1 L: 10
Forest Wyoming
Ex: 0 L: 4 Cameron
Sullivan Ex: 0 L: 4 1 : 18
Venango Elk Ex: 0 L: 0 Lackawanna
Ex: 0 L: 3 Ex: 0 L: 1
Ex: 0 L: 9 Lycoming Ex: 2 L: 37 Pike
Mercer
1:4 Ex: 0 L: 17 Ex: 0 L: 9
Ex: 0 L: 21
1 : 33
Clarion
Ex: 0 L: 4 1:9
Clinton
Ex: 1 L: 4
1:2 Luzerne 1 : 11
Jefferson Columbia Ex: 2 L: 66
Ex: 2 L: 4 Monroe
Lawrence
Ex: 1 L: 9 1 : 17 Montour Ex: 3 L: 33
Ex: 0 L: 13 1 : 10 Clearfield Centre Union Ex: 0 L: 1
Butler Ex: 1 L: 17 Ex: 0 L: 14 Ex: 0 L: 3 Carbon
Ex: 2 L: 19 Armstrong 1:6 Ex: 0 L: 11
Ex: 0 L: 6 Snyder
Northumberland 1 : 66
Beaver
Ex: 0 L: 3
Ex: 3 L: 17 1 : 13 Northampton
Ex: 0 L: 33
Indiana Schuylkill 1 : 15 Ex: 1 L: 66
Ex: 0 L: 15 Mifflin Juniata Ex: 2 L: 26 Lehigh
1 : 60 1 : 15 1:8 Ex: 0 L: 2 Ex: 0 L: 6 1 : 56 Ex: 6 L: 90
Allegheny Cambria Blair Dauphin 1 : 10 1 : 18
Ex: 1 L: 15 Ex: 3 L: 23 Perry Bucks
Ex: 9 L: 542 Ex: 3 L: 169 Berks
1 : 11 Huntingdon
Ex: 0 L: 7 Lebanon Ex: 11 L: 114 Ex: 6 L: 106
Westmoreland Ex: 0 L: 29
1 : 18 Ex: 5 L: 54
Ex: 0 L: 10
1:8 1 : 21
Washington Montgomery
Cumberland
Ex: 2 L: 37
Ex: 4 L: 33 1 : 20 Ex: 6 L: 126
Bedford Lancaster 1 : 20
1 : 11
Somerset
Ex: 0 L: 5 1 : 12 1:9 Ex: 6 L: 120 Chester 1 : 40
1:8 Fayette
Ex: 0 L: 6 Fulton
Ex: 0 L: 0 Franklin 1 : 14 York Ex: 4 L: 81 Philadelphia
Ex: 2 L: 25 Adams Ex: 12 L: 109 Ex: 69 L: 2766
Greene Ex: 4 L: 44
Ex: 1 L: 8 Ex: 1 L: 14 1 : 188
Delaware
Ex: 1 L: 188

Percentage of Execution to Life Sentences

No Execution Sentences Less than 5% 5-10% 10-20% Over 20%
DOC/P RS - jvt 6/23/2015

- 261 -
 APPENDIX L

- 263 -
 APPENDIX M

Chapters 4, 5 and 6 recommendations of the Final Report of the Pennsylvania Supreme Court
Committee on Racial and Gender Bias in the Justice System.

- 265 -
 SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Include programs on the impact of race, ethnicity, and gender bias in
sentencing at judicial training sessions.86
2. Include in such judicial training sessions, education on how the use of
specific offender characteristics, such as employment, family
158 responsibilities, and role in the offense, can potentially contribute to
unwarranted racial, ethnic, and gender disparities in sentencing.87
3. Strengthen the formal standards of accountability to which sentencing
judges are held through adoption of a broader standard of appellate
review for sentencing decisions.
4. Strengthen and expand the collection of data on sentencing decisions.88

TO DISTRICT ATTORNEYS
The Committee recommends that district attorney’s offices:
1. Institute training programs for prosecuting attorneys on the influence of
race, ethnicity, and gender bias on charging and plea bargaining
decisions.89

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INDIGENT DEFENSE IN PENNSYLVANIA

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Develop uniform binding indigent defense standards to meet indigent
defense quality concerns regarding conflicts of interest, contracting for
services, attorney eligibility, training, and workload.55
2. Direct court administrators to explore innovative programs that seek to
resolve cases earlier or to divert non-violent defendants into counseling
193
or other alternative programs instead of the court system.

TO TRIAL COURTS
The Committee recommends that the trial courts:
1. Refrain from moving cases through the system at the expense of proper
legal defense for indigent persons.56

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Establish an independent Indigent Defense Commission to oversee
services throughout the Commonwealth and to promulgate uniform,
effective minimum standards. The Commission should report to the
Court one year from the date of appointment.57
2. Appropriate funding for indigent defense services from Commonwealth
funds and adopt adequate uniform attorney compensation standards.58

TO COUNTY PUBLIC DEFENDER OFFICES

The Committee recommends that the public defender offices:
1. Increase diversity of staff, particularly attorneys, and establish clear
anti-bias policies for personnel.59
2. Develop relationships with local law schools and initiate cooperative
arrangements to attract law students to public defense work early in
their careers.60
3. Along with the Pennsylvania Defenders Association, investigate
whether applicable student loan programs, including the Perkins
program, permitting student loan forgiveness for prosecutors, can be
extended to public defenders.

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RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Pursuant to its inherent power to issue temporary stays of execution,
declare a moratorium on the imposition of the death penalty in any
case where the defendant’s direct appeal has resulted in affirmation by
the Supreme Court of Pennsylvania, pending the completion of a study
investigating the impact of the race of the defendant and of the victim 219
in prosecutorial decisions to seek the death penalty and in death
sentencing outcomes. The moratorium should continue until policies
and procedures intended to ensure that the death penalty is
administered fairly and impartially are implemented.
2. Empanel a special commission to study the impact of the race of the
defendant and of the victim in prosecutorial decisions to seek the death
penalty and in death sentencing outcomes.
3. Direct the AOPC, or alternatively appoint a master, to undertake a
comprehensive data collection effort covering all stages of capital
litigation, including responsibility for completing the data collection
instruments and maintaining the database and all supporting
documentation. The Court should direct the AOPC, or master, to retain a
principal investigator to review data collection efforts undertaken in other
states and develop a research design and a plan to implement data
collection. The cases to be reviewed should include those in which the
death penalty was sought or could have been sought in all cases where the
defendant was held for court on first-degree murder or murder generally.
4. Amend Rule 801 (former Rule 352) to require that a copy of the
prosecutor’s notice of intention to seek death be filed with the AOPC as
well as the trial court to facilitate tracking of death-noticed cases.
5. Amend Rule 632 (former Rule 1107) to require retention of the jury
questionnaire utilized at trial, which indicates the race and gender of
the jurors, for the duration of the defendant’s incarceration.
6. Mandate statewide standards for an independent appointment process
of selecting capital counsel for all stages of the prosecution, including
trial, appeal, and post-conviction hearings. The standards, at a
minimum, should incorporate those recommended by the American Bar
Association in its Guidelines for the Appointment and Performance
of Counsel in Death Penalty Cases.

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 RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

7. Require that all capital counsel successfully complete, at a minimum, an

annual continuing legal educational component specifically focusing on
capital representation.
8. Promulgate reasonable minimum compensation standards for capital
counsel throughout Pennsylvania and ensure that sufficient resources
for experts and investigators are made available to counsel.
9. Require trial courts during voir dire in capital cases to explore fully,
when requested by either party, views about race held by prospective
jurors.
220
10. Promulgate a rule that allows for reasonable latitude by defense counsel
and the Commonwealth to explore all potential sources of racial bias in
voir dire of prospective capital jurors.
11. Require trial courts to charge capital juries, when requested by either
party, that they may not consider the race of the defendant or victim in
determining the appropriate sentence for the defendant.
12. Promulgate a rule that should a prima facie case of discrimination in
the use of peremptory challenges be established, reasons invoked for
the exclusion of the juror that do not substantially relate to his or her
qualifications, fitness, or bias shall be viewed as presumptively
pretextual.
13. Reduce the number of peremptory strikes in capital cases.
14. Promulgate a jury instruction stating “life means life with no possibility
of parole” and require that it be given in all capital cases.

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Enact a Racial Justice Act, like that of other states, that allows for the
admission of evidence of a pattern and practice of disparate treatment
in both the prosecutorial decision to seek the death penalty and in
sentencing outcomes.
2. Enact a proportionality provision requiring the Supreme Court to
review death sentences for proportionality.
3. Create and adequately fund a statewide independent Capital Resource
Center, or its equivalent, to assist in, and where local resources are
inadequate, undertake the representation of, capitally charged
defendants and those currently under sentence of death. The assistance
and/or representation should extend from arrest through trial and, if
the defendant is sentenced to death, through the state and federal
appeal and post-conviction process. The Capital Resource Center also
should be charged with the responsibility of maintaining court

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RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

appointment lists of qualified capital counsel and of overseeing ongoing

training programs for capital counsel.
4. Appropriate adequate funds to the Supreme Court for the
administration of a comprehensive data collection effort covering all
stages of capital litigation.
5. Enact legislation declaring a moratorium on the death penalty until
such time as policies and procedures are implemented to ensure that the
death penalty is being administered fairly and impartially throughout
the Commonwealth.
221
TO THE ATTORNEY GENERAL AND DISTRICT
ATTORNEYS
The Committee recommends that:
1. District attorney’s offices adopt written standards and procedures for
making decisions about whether to seek the death penalty.
2. The Attorney General empanel a statewide committee of county district
attorneys to review each decision by a district attorney to seek the
death penalty with the goal of ensuring geographic consistency in the
application of the death penalty. The committee’s review should
commence as soon as possible after each filing of a notice of intention
to seek the death penalty, and the result of its review should not be
binding. The review committee should include, at a minimum, the
Attorney General, the district attorneys of Philadelphia and Allegheny
counties and the current president of the Pennsylvania District
Attorneys Association, but otherwise be geographically representative
of the Commonwealth.

TO THE GOVERNOR OF PENNSYLVANIA

The Committee recommends that the Governor of Pennsylvania:
1. Pursuant to his constitutional authority to grant temporary reprieves,
declare a moratorium on the imposition of the death penalty in any
case where the defendant’s direct appeal has resulted in affirmation by
the Supreme Court of Pennsylvania, pending the completion of a study
investigating the impact of the race of the defendant, and of the victim,
in prosecutorial decisions to seek the death penalty and in death
sentencing outcomes. The moratorium should continue until policies
and procedures intended to ensure that the death penalty is
administered fairly and impartially are implemented.
2. Empanel a special commission to study the impact of the race of the
defendant and the victim in prosecutorial decisions to seek the death
penalty and in death sentencing outcomes.

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