Death-penalty system broken

By Daniel Silverman

While most conjure up images of the Deep South when they think of the death penalty, our reliably blue, Northern state of Pennsylvania has the fifth-largest number of inmates on death row in the country. The headlines we see may include "Georgia frees innocent men after decades on death row," "Gutter politics infect Texas pardon process," and "Alabama inmate abandoned by lawyer," but Pennsylvania has some whopping dirty secrets of its own.

The blind eye the state Supreme Court turns toward these issues suggests it thinks the commonwealth is immune to the problems that plague other states. In fact, there is reason to think we do it worse.

Pennsylvania adopted its modern death penalty scheme in 1978. Since then, only three condemned inmates have been executed, and all three volunteered to be put to death by waiving their appeals. Over that 35-year period, more than 100 death-sentenced inmates who exhausted the appeals the law affords have seen their cases overturned. Only two lost their appeals and are awaiting execution, while one died and one was declared incompetent before his execution could take place.

After a jury had convicted these defendants and sentenced them to death, apparently in accordance with the law, another court in the appellate ladder reversed their convictions or sentences because a grave legal error had occurred. While the national reversal rate for these cases hovers around an already shameful 67 percent, in Pennsylvania it is closer to 96 percent - the highest in the nation.

Pennsylvania is one of only two states (Utah is the other) that refuses to pay for the defense of the indigent accused, forcing financially pressed local county courts to shoulder this cost. Naturally, counties look to cut expenses at every turn. The easiest but most damaging way to cut is to severely limit defendant access to the quality defense the law has required since the 1963 Supreme Court decision in Gideon v. Wainwright.

Until recently, Philadelphia's compensation for court-appointed trial lawyers was the lowest of any major metropolitan area in the country, and it still is for those few willing to handle postconviction appeals in the state courts. The number-one reason for the almost unanimous reversal rate is that the defendants had been denied the effective assistance of counsel at trial, in violation of the Sixth Amendment. And since Philadelphia sends the lion's share of defendants to Pennsylvania's death row, it's worth investigating whether the city's system of compensating counsel is broken.

The state Supreme Court has had multiple opportunities to address this national embarrassment and, regrettably, has decided to let it fester. Perhaps now that three justices have vacated their seats, the new court will do something about Philadelphia's woefully inadequate method of paying counsel.

The city currently pays these lawyers a flat fee of $10,000 to handle all aspects of the litigation, from arrest through trial. The lawyers are paid whether they do a good job or a bad one, whether they investigate the case thoroughly or wait until the eve of trial to locate witnesses, whether they are zealous defense advocates or patsies for the prosecution. That may sound like decent money, but a capital case can take hundreds of hours over many months or years. The more work you do, the less per hour you make.

Flat fees in these complex cases have been roundly condemned because they clearly serve as a disincentive for good legal work. A lawyer who will be paid the same whether he puts in the hundreds of hours the American Bar Association estimates are needed to properly handle a capital case or does next to nothing encourages the worst kind of corner-cutting. And we've gotten what we've paid for - an epidemic of bad lawyering.

Much to the dismay of almost all stakeholders in the criminal justice system, including police, the courts, and surviving members of the victim's family, these inevitable reversals in capital cases come years, often decades, after trial. Some would address these delays by restricting the number of appeals so executions could be carried out more swiftly. But appellate reversals are obviously necessary if so many legal errors, usually by defense counsel, are taking place.

The overwhelming majority of the Pennsylvania cases that are reversed eventually end up with sentences that are negotiated by the prosecutor for something less than death. A system that banned the death penalty but allowed for a life sentence to be meted out in the beginning of a case would save us all the aggravation, heartache, and exorbitant expense of litigating these cases for decades.

I have no philosophical quarrel with those of good conscience who justify the death penalty on the ground that society has a legitimate interest in expressing its collective moral outrage at those who would commit unspeakable acts of brutal murder. I condemn capital punishment simply on practical grounds: We have all the evidence we'll ever need to conclude that it is an incredibly wasteful exercise in futility.

Continuing to pursue death sentences without allowing the accused to defend themselves properly is simply immoral. If we don't have the resources required to provide an adequate defense, or we're just unwilling to make them available, then we should not have the death penalty.