Executions should be suspended in the state until it can be determined that race does not impact death penalty sentencing, a Pennsylvania Supreme Court committee commissioned to investigate bias in the justice system has concluded.
"There are strong indications that Pennsylvania's capital justice system does not operate in an evenhanded manner," the committee wrote in its March report. "Empirical studies conducted in Pennsylvania to date demonstrate that, at least in some counties, race plays a major, if not overwhelming, role in the imposition of the death penalty."
In its report, the committee noted that with 245 inmates sentenced to death, Pennsylvania has the nation's fourth-largest death row. The state's minority population is 11 percent, but people of color account for 68 percent of the state's death row population. Only Louisiana has a higher percentage of African-Americans on death row.
"It seems to me that any fair-minded person will look at a death row population that is two-thirds minority in a state that is one-ninth minority and determine this issue needs additional study," said Nicholas Cafardi, dean of the Duquesne University School of Law, committee chairman and the court's spokesman on the report. "Until we can have additional study, I think all executions should be halted. It's only fair."
Since the death penalty was reinstated in 1976, the state has executed three people, all of whom were white and did not fight their executions.
LOOKING FOR ANSWERS
During its research, the committee sought to determine why minorities are disproportionately represented on death row by examining the judicial process from arrest to sentencing, said Lisette McCormick, executive director of the committee.
The committee found that deficiencies within the state's indigent defense services and jury selection processes appear to influence death penalty cases, she said.
The report calls for a study to investigate the impact of race in prosecutorial decisions to seek the death penalty and advises Gov. Ed Rendell and the Legislature to stop executions "until policies and procedures intended to ensure that the death penalty is administered fairly and impartially are implemented."
Pennsylvania is among 39 states using a capital justice system. Only Illinois and Maryland have enacted moratoriums, but Gov. Robert Ehrlich lifted Maryland's suspension when he took office in January.
Executions remain halted in Illinois where former Gov. George Ryan enacted a moratorium in 2000 after a discovery that 13 death-row inmates were wrongly convicted.
However, Rendell, who was instrumental in developing Pennsylvania's death penalty law while he served as district attorney in Philadelphia, does not favor a moratorium for Pennsylvania.
"The governor has not seen evidence of a trend that would require a moratorium," said his spokesman Tom Hickey. "The governor believes we need to make the process of capital cases sounder by requiring DNA testing and guaranteeing a high quality of criminal defense through possible measures such as attorney certification."
Pennsylvania Attorney General Mike Fisher, who also assisted in authoring the state's capital punishment statutes, also opposes a moratorium.
"Every death penalty case in Pennsylvania must be reviewed by the county court, the state supreme court and federal courts, all of which hold the ability to overturn a death sentence if it is determined there were flaws in the way a jury was selected, including racial bias, or if a defendant received ineffective counsel. That's not happening," said Sean Connolly, spokesman for the attorney general.
Sen. Jeff Piccola, R-Dauphin, an advocate of the death penalty, agreed with the attorney general's assessment and said he has not read the report because he believes the court was wrong in appointing a committee to study bias.
"It doesn't make any sense," Piccola said. "The court is without logic and pandering to an interest."
But Cafardi said bias is often undetectable.
"I believe, in any clear example of bias, the justices are very fair-minded people and would throw out a conviction," Cafardi said. "Unfortunately, in our society racism is not always overt. Our society has statutes, rules and procedures to provide protections from conscious bias. Bias is simply built into the system."
Although the committee concluded that problems with bias exist in the justice system, Cafardi stressed the committee is not implying that district attorneys, judges or jury members are individually biased.
"What we are saying is that something is wrong with a system that yields these results," he said. "I am sure every district attorney's office in this commonwealth is committed to racial and gender equity."
Rendell spokesman Hickey questioned the committee's decision to include the racial makeup of death row in comparison with the state's racial makeup.
"You can't compare the percentage of minority population on death row to the minority population statewide," Hickey said. "The percentage of African-Americans on death row in comparison to the percentage of African-Americans committing capital crimes is what's relevant."
But Cafardi, as well as some legislators, believe the committee's use of those percentages was appropriate.
State Sen. Edward Helfrick, R-Northumberland, who opposes the death penalty, also supports the committee's findings, said his spokesman Todd Roup. The report highlights many of the concerns Helfrick has been talking about for years, such as ineffective counsel and lack of minorities on juries, he added.
"A moratorium is necessary to study these issues," Roup said. "Why do blacks receive the death penalty more than whites? How can we provide adequate defense for indigent defendants? Why does Philadelphia send more people to death row than all other counties combined?"
Connolly cited a 1998 study by the Associated Press that found little difference in the percentage of African Americans sentenced to death in Pennsylvania and the percentage of African Americans charged in capital cases.
But McCormick defended the committee's work.
"The race of individuals on death row can't be compared with the race of individuals who 'commit murder' because that is after the bias occurs," she said. "If all you compare is the number of minorities who have been convicted, it will be very close to the race of the individuals who are on death row. That tells you nothing."
What should be compared is the race of the individuals who are charged before trial because the bias occurs between the charging and the conviction, McCormick said.
"How do we end up with 68 percent of death row being comprised of minorities?" McCormick asked.
That is the question the work group investigating the disparities in the imposition of the death penalty attempted to answer by studying the judicial process, she said.
EVALUATING THE DATA
At its onset, the committee developed principles to guide the work group in its research.
It was decided that all of its recommendations needed to be supported with empirical data. The committee also determined that it had to consider the possibility of a link between bias and poverty.
"Unfortunately, there is a connection due to a large overlap between the minority and indigent groups in Pennsylvania," Cafardi said.
With 80 percent of all criminal defendants in Pennsylvania being represented by public defenders or court-appointed counsel, the quality of indigent services affects the legitimacy of the system as a whole, the report said.
Based on its findings, the committee made several recommendations it believes would be effective in ensuring fairness in the capital justice system and reducing bias in the state's judicial system. In addition to its call for a moratorium, the committee also suggested that the court:
Direct county court administrators to use multiple sources in compiling jury lists, rather than relying strictly on voter registration lists in which young people and minorities are generally underrepresented and driver's license lists that tend to exclude minorities, the poor, the young and the elderly.
Direct trial judges to exercise increased scrutiny to ensure that peremptory challenges are not used improperly based on race in the preliminary examination of potential jurors.
Reduce the number of peremptory strikes in capital cases.
Promulgate reasonable minimum compensation standards for capital counsel throughout Pennsylvania and ensure that sufficient resources for experts and investigators are made available to counsel.
Develop uniform binding indigent defense standards to meet indigent defense quality concerns regarding conflicts of interest, contracting for service, attorney eligibility, training and workload.
Mandate statewide standards for an independent appointment process of selecting capital counsel for all stage 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.
The committee suggested that the Legislature:
Appropriate funding for indigent defense services from Commonwealth funds and adopt adequate uniform attorney compensation standards.
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.
To evaluate the state of Pennsylvania's public defenders offices, the committee hired The Spangenberg Group (TSG), a Massachusetts based firm with experience in the delivery of indigent defense services. The committee based its findings in the area of indigent defense largely on the findings of this study, McCormick said.
Inadequate state funding contributed to TSG's conclusion that serious deficiencies exist within Pennsylvania's indigent defense system.
"Notably, Pennsylvania, South Dakota and Utah are the only three states that provide no state funds to ensure that indigent citizens are afforded adequate criminal defense services," TSG wrote in its report.
With counties shouldering the funding responsibility, the efficiency of the system depends on increases or decreases in a county's budget.
"By tying indigent defense to a county budget, we may be unconsciously depriving the poor of their right to a defense," Cafardi said. "In years when a county budget is tight, it's quite unusual for the public defenders office to be properly funded. One major capital case could eat up the budget of a small county's public defenders office for an entire year."
In some circumstances, public defender offices are among the first to be affected when county budgets are sliced.
Cafardi recalled an instance in Allegheny County where county commissioners cut the budget in order to fulfill a campaign pledge to reduce taxes. Fourteen slots were taken away from the public defender's office and were restored only after a battle in court, he said.
McCormick believes an indigent defense system financed through state allocations could serve dual purposes.
"Ultimately, it costs the state more to go through the process of inadequate representation and the cost of having to retry cases," she said. "The costs of this system are extremely inefficient. It probably costs more to run it the way we do than it would if run with proper representation. If a case is handled properly, it's less likely to be appealed and less likely to be successful when it is appealed."
TSG also found a noticeable difference between the resources available to the prosecution and to indigent defense attorneys in terms of salaries, technology, support staff, investigators and other critical resources.
"High caseloads, inadequate resources and low salaries together create difficulties in attracting and retaining young attorneys, who often carry large law school loans," the report said. "The indigent defense system, therefore, is losing good young lawyers to the private sector."
While many counties have experienced a rapid increase in caseloads for public defender offices in recent years, there has not been a corresponding increase in resources for indigent defense.
In Monroe County, for example, the caseload for the public defender office increased by 39 percent over a three-year period, 1998-2000, without a subsequent increase in staff size.
"The earlier a public defender gets involved, the more likely it is that the case won't go to a capital trial," McCormick said. "Since public defenders are underpaid and understaffed, they don't have the personnel power to show up that early in the process, she explained.
JURY SELECTION
The committee also sought to determine whether jury selection methods result in an under representation of minorities on juries, and if so, to identify the causes of under representation.
David Baldus of the University of Iowa Law School, and George Woodworth, a University of Iowa statistician, conducted the two studies of Philadelphia County, a county responsible for more than half of the state's death row population. In the studies, they analyzed jury selection in capital prosecutions and capital charging and sentencing.
Baldus summarized the findings at the committee's public hearing in Philadelphia:
"In the selection of capital juries, Philadelphia prosecutors and defense counsel systematically excluded venire members [the panel of prospective jurors] through the use of peremptory challenges on the basis of their race and gender despite federal prohibiting such discrimination."
In the study of the jury selection process in 317 capital trials between 1981 and 1997, race was found to be an overwhelming factor in jury selection. Prosecutors used peremptory challenges to strike 51 percent of potential African American jurors but only 26 percent of non-African American prospects. Defense counsels used strikes in the opposite manner with nearly the same proportions.
Baldus said jury selection strategies skew jury decisions toward increasing the frequency of death sentences because the high strike rates against potential African American jurors are not offset by defense counsel strikes against non-African American prospects. He estimated that one-third of the African Americans on death row would have received life sentences had they been white.
At the same hearing, Charles Cunningham, an attorney with the Philadelphia Public Defender's Association, called for increased scrutiny in jury selection.
"Give the people an opportunity to really question a prospective juror as to his or her biases," Cunningham said, according to the report. "Maybe if you allow that to happen, you might possibly see a change in statistics. Will it eliminate racism all together? No, it won't. And if you don't think that racism exists in the criminal justice system, then you will have to believe that the criminal justice system exists beyond the rest of this world and certainly beyond this country."
In Pittsburgh, Timothy P. O'Brien, a plaintiff's attorney with a civil practice, told the committee he had represented more than 20 African American plaintiffs in civil jury trials during the past five years, but had rarely encountered an African American juror.
"In all of the cases which I have tried on behalf of African American plaintiffs in the past five years, a grand total of one African American was involved in the deliberations that determined the outcome of the case," O'Brien said, according to the report. "Indeed, in most of the cases, the only African American in the courtroom was my client."
Cafardi said problems such as this are among the reasons that prompted the committee to advise the court to instruct court administrators to expand their sources when compiling jury lists. Many counties use no more than two lists to pool prospective jurors. Most commonly used are voter registration lists and driver's license lists.
He pointed to an ongoing challenge faced by jury commissioners in the Pittsburgh area as an example of how the justice system can produce biased results when the people in the system may have no bias at all.
"We know that the jury pool in Allegheny County is not racially diverse," Cafardi said. "But at the same time, that's not a criticism of our jury commissioners. Why not? Because I know for a fact they are trying to have a racially diverse jury pool."
In an attempt to recruit African American jurors, the Allegheny County jury commissioners are sending vans to the minority areas of the city on Sundays and having them park outside of the largely black churches asking people to sign up for jury duty, he said.
"Despite the best efforts of jury commissioners, we don't have a diverse juror pool," Cafardi said. "Does that mean they are biased? No. Does that mean the system is biased? Well, certainly the system is giving us biased results."
