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A Long Overdue Move to Block Executions

Although Pennsylvania’s new Governor Tom Wolf, who last November unseated Republican incumbent Tom Corbett, cited more than 315 million solid reasons to back his surprise order putting an immediate moratorium on executions in Pennsylvania, law enforcement organizations in the state still castigated his action, calling it an outrageous assault on a criminal justice system that they contend works well.

When Wolf announced his imposition of a moratorium on executions due to a disturbing history of abuses and errors in death penalty prosecutions in the state with the fifth largest death row in the country, he cited a damning statistic overlooked in most news media accounts of his recent action.

Operating the death penalty in Pennsylvania over the course of the past thirty-plus-years has cost the state’s taxpayers between $315-to-$600-million, Wolf noted in a memorandum his office released that detailed why he halted executions.

The Pennsylvania “has received very little, if any, benefit from this massive expenditure,” Gov. Wolf said. An exact cost figure for death penalty prosecutions in Pennsylvania remains elusive because state legislators and top officials in its court system have to date resisted compiling specific such figures.

The enormous expenses associated with the death penalty, from trial through appeals to execution, is a reason why many other states that have halted executions. Death penalty prosecutions cost three times as much or more than non-capital murder prosecutions, repeated studies nationwide have documented.

New Jersey, a state adjacent to Pennsylvania, abolished its death penalty in 2007 due largely to costs. Seventeen other states nationwide have abolished the death penalty, too. Four others, now including Pennsylvania, have imposed moratoriums on executions.

While it currently has 185 prisoners on its death row, all housed in a costly supermax prison, Pennsylvania has executed only three people in nearly 40 years, and each of those inmates who were killed had voluntarily dropped their appeals to face execution.

Reactions to Gov. Wolf’s moratorium order from that state’s associations representing police and prosecutors were shrill and predictable. Law enforcement officials -– in Pennsylvania and across America -– have an odious track record of resisting reforms aimed at correcting lawlessness by law enforcers.

Wolf’s order halting, but not eliminating executions in Pennsylvania was immediately blasted as a “travesty” by the state troopers’ association and was labeled an abuse of “the law” by the association representing district attorneys.

The not-broke-don’t-fix-it defense of the death penalty by law enforcers flies in the face of the fact that misconduct by police and prosecutors, like withholding evidence of innocence, was found in each case of the six persons were released from Pennsylvania’s death row since 1978 when that state’s death penalty law was re-imposed.

In 1992, for example, Pennsylvania’s State Supreme Court released an inmate directly from six years on death row after finding “egregious” misconduct by both State Police and prosecutors from the state Attorney Generals Office. That misconduct was so offensive, the state’s highest court ruled, that retrying death row inmate Jay Smith would violate state constitutional protections against double jeopardy.

That 1992 ruling made legal history for its order barring the normal recourse of a retrial. Police and prosecutor associations criticized the court’s release of Smith but failed to criticize the misconduct that triggered the court’s decision, such as withholding evidence that supported Smith’s claims of innocence.

One of the two death row cases cited by Gov. Wolf in his memorandum involved Harold Wilson, a Philadelphia man who spent over 16-years on death row, twice facing execution, for a triple murder he was later found innocent of.

The prosecutor at Wilson’s trial used illegal tactics to strip blacks from Wilson’s jury, courts found. Police used phony evidence against him. For example, the jacket police claimed Wilson had worm during the murders was many sizes smaller than the tall, heavy-set Wilson. Further, the Size 7 shoe print police claimed Wilson left at the crime scene was far smaller than Wilson’s size 13. DNA testing on crime scene blood run over a decade after Wilson’s conviction confirmed that he was not the killer.

Typical in the case of Wilson and others released from death row, the police and prosecutors responsible for the illegal conduct were not themselves prosecuted for their criminal misconduct in securing the false murder conviction. Critics contend that the failure of courts and other ranking authorities to hold police and prosecutors accountable for their misconduct perpetuates such misconduct and sabotages the constitutional rights of defendants to a fair trial.

The moratorium on executions ordered by Gov. Wolf will remain in effect until the conclusion of a State Senate committee examination of the criminal justice system, a study which will include an examination of the effectiveness of the death penalty. That committee examination began in 2011.

“I take this action because the capital punishment system has significant and widely recognized defects,” Wolf said.

“If the Commonwealth of Pennsylvania is going to take the irrevocable step of executing a human being its capital punishment system must be infallible. Pennsylvania’s system is riddled with flaws, making it error prone, expensive and anything but infallible.”

The moratorium announced by Wolf, hinted at during his successful campaign last year to unseat the Corbett, is a belated step that was recommended by a Supreme Court Commission on Race and Gender Bias in the Justice System in 2003 but never implemented by then Democratic Gov. Ed Rendell (a former Philadelphia DA who put many of the state’s capital punishment inmates on death row) or by his Republican successor Corbett, a former state attorney general.

The Supreme Court commission in its conclusions, among other things, recommended imposition of a moratorium on all executions until “policies and procedures to ensure that the death penalty is administered fairly and impartially are implemented.”

The Commission’s report stated that race “plays a major, if not overwhelming, role” in death penalty prosecutions in many Pennsylvania counties, and particularly in Philadelphia, the state’s largest population center. That report also criticized the “significant failure” to provide defense counsel services to indigent defendants in death penalty cases –- a problem that “disproportionately impacts minority communities.”

Pennsylvania has the fourth highest number of minorities on its death row in the United States. Blacks comprise 103 of the 188 death row inmates in Pennsylvania (55%) compared to 67 whites (36%), this in a state where only 10.8% of the population is black.

Problems arising from inadequate defense provided to indigent defendants facing the death penalty are major elements underlying the reversal of 250 death sentences in Pennsylvania since 1978 when that state’s death penalty law was re-instated.

Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He lives in Philadelphia.

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Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He lives in Philadelphia.

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