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Pennsylvania Legal Experts Recommend Reforms in Commonwealth’s
Death Penalty System, Based on ABA-Sponsored Study

Urges uniform statewide policies, procedures and funding

HARRISBURG, PENNSYLVANIA, Oct. 9, 2007—A panel of experts from the Pennsylvania legal community has found substantial shortcomings in the commonwealth’s death penalty system that make it fail to adequately protect against the wrongful conviction of innocent people or to adequately ensure the fairness of the system for people accused or convicted of capital crimes.  The panel recommended a lengthy list of reforms.

The team, chaired by Prof. Anne Bowen Poulin of Villanova University School of Law, worked under the auspices of the American Bar Association Death Penalty Moratorium Implementation Project.  It found that Pennsylvania meets only seven of 93 protocols developed by the project to measure fairness, accuracy, and due process in state death penalty systems.  Many of its recommendations focus on adoption of state policies and procedures to govern death penalty cases and provision of state funding.

“Pennsylvania has seen exonerations of six death row inmates since it reinstated the death penalty in 1974.  Either these people were acquitted in new trials, charges against them were dropped or they were granted pardons based on new evidence of their innocence.  If the citizens of the commonwealth are to trust their legal system to convict the guilty and exonerate the innocent, it is critical to correct deficiencies.  It is important to have a fair and accurate process, not just for the accused  but also for the victims and for the public,” said William H. Neukom of Seattle, ABA president, in releasing the report.

The ABA neither supports nor opposes either the death penalty or any particular means of carrying out executions, but urges a temporary halt on executions in each jurisdiction until fairness and accuracy—that is, due process—are assured in death penalty cases.  The Pennsylvania team did not address whether to recommend a halt on executions pending reforms.  Its report has not been presented to the ABA’s policy-making arm, the House of Delegates, and so does not constitute association policy.

“Since 1997, the ABA has been urging states to conduct exhaustively detailed reviews of their own capital systems to assure they satisfy the high standards that justice demands when the potential penalty is execution,” said ABA President-Elect H. Thomas Wells Jr. of Birmingham, Ala., speaking at a news conference today in Harrisburg.

To assist them in accomplishing that analysis, the ABA has supported teams of local experts in conducting preliminary studies.  Because those teams are not working under the authority of state government, they have been unable to access adequate information to assess compliance with many of the ABA protocols.  In Pennsylvania, that was for the case for 32 of the protocols.  “We urge Pennsylvania to take up this study, and finish this important task, so that the commonwealth can move forward with the reforms its own experts recommend,” said Wells.

Poulin is a former assistant U.S. attorney.  Other team members were Court of Common Pleas Judge Frank T. Hazel of Delaware County; Montgomery County Deputy District Attorney Mary Ann MacNeil Killinger, Gregory P. Miller, a commercial litigation lawyer in private practice in Philadelphia, and David Rudovsky, a senior fellow at the University of Pennsylvania Law School and a civil rights litigator in private practice.  Hazel is a former district attorney and Miller is a former assistant U.S. attorney.

“It is important to understand that the shortcomings we identified operate with a cumulative effect,” said Poulin.  “Fixing one or some of the problems will not make the system right, and it is absolutely vital to do the additional study of the system that our report calls for, so that reforms can be implemented that will provide us with real justice.”

In addition to concluding that the commonwealth complies with seven protocols, the Pennsylvania team found partial compliance with 26, and determined that one protocol was not relevant.  It found failure to comply with 27 protocols, and was unable to assess compliance with 32.

The team identified eight broad areas in need of reform, and made nine broad recommendations, in addition to very specific recommendations in each of 13 chapters of its report.

The areas in need of reform are:

• Inadequate procedures to protect the innocent
• Failure to protect against poor defense lawyering
• No state funding of capital indigent defense services
• Inadequate defense access to experts and investigators
• Lack of data on death-eligible cases to allow analysis of whether people are charged proportionately to the crimes of which they are accused and receive like sentences for conviction of like crimes, or to determine the extent of racial or geographic bias in the system
• Significant confusion among jurors about the instructions they receive, to the point that “an astonishing 98.6 percent” failed to understand at least some of their instructions
• Racial and geographic disparities in sentencing identified in previous studies

The team’s recommendations are:

• The commonwealth should require all law enforcement agencies to videotape custodial interrogations, implement best practices for lineup procedures and preserve biological evidence until an accused is either released or executed
• The commonwealth should establish a statewide clearinghouse of data on all death eligible cases
• The commonwealth should adopt uniform statewide indigent defense standards for capital cases conforming to ABA guidelines for maximum defense workload, requiring two-attorney defense teams and establishing adequate compensation for defense lawyers
• The commonwealth should create and vest in a single statewide independent authority responsibility for appointing, training and monitoring lawyers for indigent capital defendants
• The commonwealth should provide statewide funding for capital indigent defense
• The commonwealth should ensure meaningful post-conviction review proceedings, specifically extending the 60-day deadline on filing petitions
• The commonwealth should redraft its capital jury instructions to prevent common misconceptions, and specifically mandate that all capital juries be instructed on the definition of life imprisonment
• The commonwealth should sponsor a comprehensive study to determine whether there are unacceptable disparities in sentencing and develop proposals to eliminate any that are found
• The commonwealth should ensure adequate access by capital defendants to investigative and expert resources to fully develop their claims, including potential claims of mental retardation or mental disability.

The full report and an executive summary, including charts that identify specific recommendations and state compliance levels, are available on the ABA’s Web site at http://www.abavideonews.org/ABA340.  Additional information about the Death Penalty Moratorium Implementation Project and the assessment project is also posted there.

Pennsylvania is the eighth and last state being assessed under the ABA project, which developed the protocols in 2001. Alabama, Arizona, Florida, Georgia, Indiana, Ohio and Tennessee also were evaluated. Neither the protocols nor the individual state assessment reports have been adopted by the ABA House of Delegates.

With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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