Death penalty expensive, unjust



Robert Zaller

Issue date: 3/13/09

Last week, my colleague Julia Hall and I moderated a symposium at
Drexel's law school to address the question of Pennsylvania' s death
penalty. It pulled together a distinguished panel from all sides of
the question, including Bruce Castor, the former Montgomery County
district attorney who has successfully prosecuted several capital
cases; Professor Jules Epstein of Widener, who represents a number of
death row defendants; Stewart Greenleaf, the long-serving chair of
the Pennsylvania State Senate Judiciary Committee; Ellen Greenlee,
the chief defender of the Philadelphia Defenders Association, which
has never had a client sentenced to death; Judge Renee Cardwell
Hughes, who tries exclusively capital cases for the Philadelphia
Court of Common Pleas and has pronounced three capital sentences from
her bench; Lisette McCormick, author of the 2003 report on capital
punishment in the Commonwealth commissioned by the State Supreme
Court; and Ed Martone, who successfully led the campaign to abolish
the death penalty in our neighbor state of New Jersey.

Some of these panelists are philosophically opposed to the death
penalty; some are not. None of them, I think it is fair to say, is
happy with the way capital justice is administered in Pennsylvania
today.

Consider the terms of the crap-shoot that Pennsylvania justice
represents. Our death penalty statute lists 18 so-called aggravating
factors in a homicide, any one of which can trigger a capital charge,
and some of which are big enough to drive a truck through. Against
this there are only eight mitigating factors (childhood abuse, mental
disability or incapacity, etc.) available to the defense in trying to
persuade a jury not to elect death. The state prosecutes cases out of
taxpayer money (though each county must pay its own costs, meaning
that the richer your jurisdiction is, the more you can go for the
expensive option of death); the typical capital defendant is indigent
and must be provided with a court-appointed attorney, not necessarily
trained or experienced in capital cases at all and paid as little as
$3,000-$5,000 per case: the equivalent of bottom-of-the- barrel
ambulance-chasing rates.

You'd think district attorneys, at least, would love this setup. Not
so, said Bruce Castor. Death penalty cases are far and away the most
expensive for the state to prosecute, and 68 percent of them are
reversed on appeal - meaning, the state has wasted its money two-
thirds of the time. Many of these reversals are due to incompetence
of counsel, which is of course the predictable result of a system
that courts ambulance chasers. Castor says that his greatest fear in
court was not that he would mismanage his case, but that his opposing
counsel would - that killers deserving of death would escape the
needle not because their lawyers were good, but because they were
sloppy, unprepared or simply ignorant of the law.

From a defendant's point of view, of course, a bad lawyer could get
him unjustly convicted of murder in the first place. Six factually
innocent prisoners have been exonerated in Pennsylvania under its
current capital statute. How many there may be among the state's
current 224 death row inmates, no one knows.

Renee Hughes freely acknowledges her reputation as a no-nonsense, law-
and-order judge who, as she told us, has no compunction whatever
about putting violent offenders behind bars. She hates the death
penalty, though, even as she administers it. Trying a capital case is
a nightmare, beginning with jury selection, where it can take a pool
of 300 to produce a jury of 12. If a guilty verdict comes in, a
second trial is required to determine whether death or life
imprisonment is to be imposed. That's life without the possibility of
parole - LWOP in legal parlance - although, capital jurors are not
instructed that parole is statutorily forbidden in such cases
(another quirk of the Pennsylvania system), so that many of them vote
for death in the mistaken fear that otherwise a killer may someday
walk the streets again.

Capital cases are uniquely expensive; in Maryland, studies showed
that it cost $1.9 million more to house a prisoner for life than to
execute him. Pennsylvania has never had such a study, but the typical
experience around the country is that execution is three times more
expensive than life. Some people don't mind the cost, particularly if
it falls on some other county's taxpayers, but Judge Hughes, as a
Philadelphia resident, was very vocal on the subject. More than 40
percent of Pennsylvania' s death row inmates are from Philadelphia,
thanks in large part to the prosecutorial zeal of District Attorney
Lynne Abraham. The money that soaks up (Abraham refuses to disclose
her budget for capital cases) not only takes away from social and
educational programs that might reduce crime, but will make it more
difficult, she says, to send her own son to college. "That's my
money," Judge Hughes said emphatically, "and I most certainly do care!"

Sen. Greenleaf likewise began his career as a law and order advocate
in a district attorney's office. He voted for the current death
penalty statute as a member of the legislature, fully convinced of
its importance in the prosecutor's arsenal. Now, having held his own
hearings and watched the system in practice for more than a quarter
of a century, he isn't so sure. He's deeply troubled, too, by the
general rise in incarceration, which over that period, as he points
out, has increased by 450 percent against a state population increase
of only 3 percent.

I wasn't surprised to hear Professor Epstein and Defender Greenlee
raise objections to the death penalty. They represent capital
defendants and death row inmates, and they know firsthand how the
system stacks the deck for death, from the statute itself to the
disparity in resources between prosecution and defense, and the
selection process for juries that not only excludes opponents of the
death penalty but virtually ensures that those who survive it will
include the most hard-bitten customers. What did impress me was
hearing a legislator who voted for the statute, a district attorney
who'd put men on death row with it and a judge whose job is to
pronounce the sentence of death all agree in one way or another that
the process is agonizing, wasteful and seriously out of whack. Their
anecdotal experience, accumulated over many years in the trenches, is
sobering and impressive; the research of Lisette McCormick, which
culminated in a recommendation for a statewide moratorium on the
death penalty, is equally so.

Ed Martone had the panel's last word. When New Jersey abolished the
death penalty in 2007, it had only 15 death row inmates against
Pennsylvania' s 224; yet, Martone says his state, despite its
reputation, is hardly a liberal one. Nor did he and his colleagues
achieve abolition by changing public or legislative opinion about the
death penalty itself. "We didn't change the mind of a single person
in the legislature about capital punishment," he said. What did
impress the legislators was the fact that all 21 of New Jersey's
county prosecutors - the state's equivalent of Pennsylvania' s
district attorneys - supported repeal. The prosecutors weren't death
penalty opponents either; most believed devoutly in it. But they
begged for relief from capital prosecution, which so beggared them of
personnel and resources that they could hardly perform their other
law enforcement duties.

Maybe that's how the death penalty dinosaur will die - not because of
any moral revulsion against executions, but because the animal eats
all the grass. Congress and the courts have repeatedly tried to
streamline the capital process, but it's so error-prone as it stands
that the only sure result has been to increase the likelihood of
executing the innocent. The fact is that the process would have to
become far more expensive, and even more protracted, to achieve even
a semblance of equity.

You can have executions or you can have justice, but, it seems, you
can't have both. Pennsylvania will have to make its choice.

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Robert Zaller is a professor of history. He can be reached at op-
ed@thetriangle. org.