The landscape of capital punishment has changed a great deal in 45 years, but one thing remains the same: A death sentence is still as arbitrary as a bolt of lightning. And as if to prove this axiom yet again, the Philadelphia District Attorney’s Office is seeking the death penalty against Robert Lark for a murder committed almost 40 years ago.
The death penalty has declined dramatically since 2000 — executions have dropped precipitously, while death-row exonerations have gone up. and death sentences across the country have decreased 90 percent in the last 20 years. Philadelphia, a city that not long ago ranked third in the country for inmates on death row, has produced only four death sentences in the last 10 years. Such declines have not occurred by accident.
A 2011 study by the Inquirer revealed that 69 Philadelphia death-penalty cases had been reversed or sent back by state or federal courts after findings that the defense attorney’s inadequate performance deprived the defendant of a fair trial. Those numbers are far higher today. Other cases, like Lark’s, were reversed after it was shown that the District Attorney’s Office had unconstitutionally struck black people from the jury.
Many other death sentences were nullified after findings of prosecutorial misconduct. Terry Williams came within hours of execution in 2012 before it was shown that the Philadelphia prosecutor had withheld crucial exculpatory police reports from his attorney, among them evidence indicating that his victim had also been his sexual abuser. Only last month, the Pennsylvania Supreme Court affirmed that Williams would receive a new sentencing hearing after 31 years on death row.
These injustices and reversals have changed the legal landscape in Pennsylvania.
Justice Thomas G. Saylor (now chief justice) pointed out in 2014 that “Pennsylvania has long been on notice that leaders of national, state, and local bar associations do not believe that capital litigation is being handled fairly and evenhandedly in the commonwealth,” and that the death-penalty system was in “disrepair.”
The political landscape of capital punishment has changed as well. In 2015, Gov. Wolf declared a moratorium on executions, noting that Pennsylvania’s system forced “the families and loved ones of victims to relive their tragedies” with each reversed death sentence. The only certainty in the current system, he stated, “is that the process will be drawn out, expensive, and painful for all involved.”
Philadelphia, once the epicenter of death sentences, has finally recognized the error of its ways.
Larry Krasner, who handily won the Democratic primary for district attorney and is a favorite to win in November, campaigned on a promise not to seek the death penalty. His website says it all: The death penalty “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962. Meanwhile, six people on death row have been exonerated. Philadelphia is the only Northeastern city in which a death sentence is possible.” As Krasner likes to say, “We have to stop lighting money on fire.” Even Krasner’s opponent, Beth Grossman, says, “I wonder whether [the death penalty] is at this point even economically feasible.”
Which brings us to the question: Why is the Philadelphia district attorney seeking the death penalty against Robert Lark?
The murder he is accused of took place in December 1978 — had it occurred months earlier, Lark would not be facing the death penalty, as the relevant statute did not even become law until September. He is almost 64, which means that he wouldn’t face execution until his mid-70s under even the most miraculous of circumstances. He has been incarcerated for almost four decades, but by all accounts, his adjustment to prison has been excellent. A 2012 review by the Pennsylvania Department of Corrections indicated that he had no record of institutional violence.
Perhaps most important, a decision not to seek the death penalty against Lark is not a decision to release him. The prosecutor is free to seek a conviction that would continue his incarceration until he died from natural causes, a result that would likely happen whether a death sentence were obtained or not.
Since former District Attorney Seth Williams pleaded guilty in June to various crimes, the office has been run by a prosecutor chosen by Philadelphia judges rather than one chosen by the community. Seeking a death sentence under these circumstances is a needless step backward for our city.
Marc Bookman is director of the Atlantic Center for Capital Representation and a former longtime public defender.