A group of Republican state senators has urged the Pennsylvania Supreme Court to reject an attempt to overturn the death penalty.
Two death row inmates contend that the punishment is administered in an unconstitutional way, but the Republicans say that only the legislature can decide to repeal the death penalty.
State Sen. Camera Bartolotta (R-Monongahela) is one of the 13 legislators who made that argument in a friend-of-the-court brief filed earlier this month.
“The Supreme Court can only decide if something is constitutional or not,” Bartolotta said. “They’re not a branch of government that writes legislation or puts things in statute.”
Her position echoes that of the state attorney general's office, which said in its brief filed last week that action by the justices would be based on “factually unsettled matters of policy entrusted to the legislative branch, not constitutional issues to be resolved by courts.”
In addition, the office noted that both the state and U.S. Supreme Courts have upheld the constitutionality of the death penalty in the past.
But the inmates who brought the case argue that new evidence shows Pennsylvania’s capital punishment system is discriminatory and prone to error.
In a brief submitted in February, they cite a legislative report that was released last summer. It found that since 1972, six death row inmates have been exonerated while just three have been executed. And as of May 2018, 150 inmates sentenced to death since 1978 have had their convictions or sentences overturned due to ineffective assistance of counsel, according to the report.
Today, there are 131 Pennsylvania prisoners on death row, according to the inmates.
The legislative study found that whether defendants are sentenced to death depends on the county in which they are prosecuted. The race of the victim was also shown to be a factor. Cases involving white victims were more likely to result in a death sentence, regardless of the race of the accused perpetrator, the report said.
The Republican state senators write in their brief, however, that the report was meant to provide guidance to the legislature, not “to stand in for judicial fact-finding or to eliminate important policy debates.”
State Rep. Dan Miller (D-Mount Lebanon), who opposes capital punishment, said the report’s findings raise constitutional questions on which courts have the authority to rule.
“Just because the legislature refuses to review something doesn’t mean that the courts should be taking a blind eye to its constitutional ramifications,” Miller said.
But Bartolotta, who belongs to the Senate Judiciary Committee and co-chairs her chamber's criminal justice reform caucus, countered that lawmakers will address the issue.
“That’s exactly what we’ve been doing,” she said. “We only got the report back last year. So now, we go back in the fall, now that the budget was done in June ... and I am sure the judiciary committee and other committees are going to be taking those findings ... and then moving forward.”
Miller, a member of the House Judiciary Committee, doubts the GOP-controlled legislature will follow through.
“I don’t know how long people need to control majorities, control committees, and then feign some sort of interest in these topics before people realize that they are not going to make any progress on it,” Miller said. “These things are not going to change. They have no interest in doing so.”
Former state Sen. Stewart Greenleaf (R-Montgomery County) was the chair of the Senate Judiciary Committee before retiring last year. He said he tried to bring the death penalty up for a committee vote, but could not get enough support to bring it up.
But, the former lawmaker believes the political climate has changed.
“It wasn’t long ago when there was overwhelming support for the death penalty among people in Pennsylvania,” Greenleaf said. “That has changed significantly. And of course … the number of other states that have repealed the death penalty is high as well. So things are going in that direction.”
Twenty-one states have outlawed capital punishment, according to the Death Penalty Information Center. Pennsylvania is one of four states where governors have halted all executions, even though the law permits them.
Bartolotta said Gov. Tom Wolf should stop his practice of granting reprieves to all death-row inmates, which he has done since 2015.
“We should honor the jury’s decision. We should honor the rule of law,” Bartolotta said. “If we don’t like the law, we should change the law. But you have to do it the right way.”
The Washington County lawmaker did not say whether she personally supports the death penalty.
If the state Supreme Court were to strike down capital punishment in the case at hand, it would be an “unusual” step, according to University of Pittsburgh law professor and 90.5 WESA legal analyst David Harris.
That’s because the death-row inmates have asked the state’s high court to exercise what’s called “king’s bench jurisdiction” and take up the case instead of waiting for lower courts to rule on it.
“The only way I see the death penalty writ large being overturned is if [the justices] pay attention to that [legislative] report,” which revealed systemic defects in how capital punishment is used in Pennsylvania, Harris said.
The court is set to hear oral arguments Sept. 11.