The Pennsylvania Supreme Court will weigh whether to block the use of the death penalty unless the state overhauls how it is imposed. In an order Monday, the court said it will consider taking the unusual step of hearing the case before lower courts have ruled on it.
In a petition filed in August, the federal defender's office in Philadelphia urged the justices to exercise what’s called “king’s bench jurisdiction” to declare Pennsylvania's system of capital punishment unconstitutional. The king's bench power allows the justices to skip over the appeals process and weigh a case immediately.
It could be a smart tactic on the defenders' part, said Duquesne University law professor Bruce Ledewitz, a vocal opponent of the death penalty.
Ledewitz predicted they are unlikely to succeed in a lower court given legal precedent, which upholds existing capital punishment laws.
“They might as well go directly to the Pennsylvania Supreme Court,” he said, noting the tribunal would have authority to set new precedent.
The appeal involves two death-row inmates, Jermont Cox and Kevin Marinelli. The federal defender's petition argued that king's bench authority is warranted following a bipartisan report that state lawmakers released this summer: The report highlighted numerous defects with Pennsylvania’s capital punishment regime. It found that since 1972, six death row inmates have been exonerated while just three have been executed.
Similar numbers nationally, the petition said, show “the justice system cannot guarantee that an innocent person will not be convicted and sentenced to death.”
The petition added that the legislative report concluded that death sentences are imposed arbitrarily, based not on “the defendant’s unique culpability, but [on] bad lawyering, geographical happenstance, racial disparities, and prosecutorial caprice.”
The state Attorney General's office, which represents the commonwealth in such cases, opposed the king's bench petition. In its own filing, the AG's office said the move would “forgo all judicial norms and standards” to make “a major public policy determination.”
Justices should require the case “to be litigated in the normal manner,” the office said, rather than rely on a report it called a "nonjudicial document."
Given the current makeup of the seven-member state Supreme Court, Ledewitz said it’s unlikely the inmates will prevail in ending the death penalty. He expects the more conservative members of the court, Chief Justice Thomas Saylor and Justice Sallie Mundy, to rule against the convicts. In the past, he added, Justices Max Baer and Debra Todd also have not been inclined to upend capital punishment in Pennsylvania.
Still, he said, “the court has never foreclosed the death penalty constitutional issue. The court has always left it open for further development.”
The General Assembly’s report could serve as that development.
“Anytime there’s a change in the way the legislature views the death penalty … the way the court has decided the issue in the past lends itself to asking the court to revisit it,” Ledewitz said.
The court's one-paragraph order instructed lawyers on both sides to prepare arguments on "the propriety of this Court's exercise of either King's Bench or extraordinary jurisdiction, as well as the merits of the issues raised in the petition." Baer and Mundy dissented from the high court’s decision to consider the inmates’ case.
Representatives from the Philadelphia federal defender’s office and the Pennsylvania attorney general’s office said they could not comment on the matter.
Cox and Marinelli, the inmates named in the case, are among roughly 150 Pennsylvania convicts awaiting execution. Both were convicted of first-degree murder and sentenced to death in the mid-1990s.
Gov. Tom Wolf imposed a moratorium on all executions in Pennsylvania in 2015, saying that he would revisit the decision after reviewing the General Assembly’s report. Wolf said in a statement in 2015, “This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes.”
Rather, the governor said, “This decision is based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive.”
Considering the moratorium, Ledewitz said, “The idea that this is a pressing issue that requires an immediate decision by the Pennsylvania Supreme Court [through the exercise of king’s bench power] is not present.”
“On the other hand,” he continued, “there’s also no reason to wait.” In the past, he said, the justices have “acted under the king’s bench power in other areas in which there was an important issue of public policy that eventually was going to be decided by the [state Supreme] Court.”
*This story was updated at 2:45 p.m. on Tuesday, Dec. 4, 2018, to include more information.