A first: AP reporter refers to PA death penalty as "de facto moratorium"

This goes in the "say a lie enough times and it eventually becomes truth" file. In an article about a Pennsylvania man who has won a new trial, AP reporter Mary Claire Dale stated:

Federal and state court challenges to the death penalty created a de facto moratorium during the intervening years.

This is the line trotted out on a regular by the supporters of killing. They claim we don't need a moratorium in PA because we already have one. Obviously, they found a reporter who has fallen for that line.

But the fact is that we do not have a moratorium in Pennsylvania. True, we have not had an execution since 1999. However, we nearly had two in 2004 (Hubert Michael and George Banks), the governor continues to sign death warrants, and prosecutors continue to try to make executions happen.

Plus, this so-called moratorium is missing one key element: A comprehensive analysis of the death penalty in Pennsylvania. Granted, as an abolitionist, I don't mind that we haven't had an execution in seven years, but a moratorium without a study of capital punishment only delays the inevitable reboot of the killing machine in PA.

The good news from the article is that we have yet another example of one of the major problems with the death penalty- ineffective assistance of counsel.

"Average Americans are opposed to state-sanctioned execution"

So says Court TV's Catherine Crier in her book Contempt: How the Right is Wronging American Justice. I was shocked when I read this. Here's the excerpt:

Though the Religious Right swears by capital punishment, average Americans are opposed to state-sanctioned execution. A CBS News opinion poll conducted in April of 2005 asked, "What do you think should be the penalty for persons convicted of murder- the death penalty, life in prison with no chance of parole, or a long prison sentence with a chance of parole?" Only 39 percent of the respondents chose the death penalty; 39 percent chose life with no parole, 6 percent said a long sentence with parole, and 13 percent volunteered the answer "Depends."

Over the last six years, there have been numerous polls that have shown a 50-50 split on the death penalty when LWOP is an option. This is the first time that I've seen support for the death penalty clearly in the minority.

A search of "CBS News poll 2005 death penalty" uncovers this list of polls on crime from pollingreport.com. This list shows the power of the question. When the question is simply asked, "Do you support or oppose the death penalty," support is in the 60+% range. But when the respondents are given options, it is obvious that the American public is uneasy with capital punishment. If you scroll past the CBS poll, there is a Quinnipiac poll from 2004 that shows just 46% support for LWOP over the death penalty and just 42% support for capital punishment. Those favoring LWOP include 33% of Republicans, 57% of Democrats, and 46% of independents.

And the long, slow fall of the death penalty continues...

PA two steps closer to protecting developmentally disabled

In two months, we'll mark the fourth anniversary of the Atkins v. Virginia decision, which ruled the execution of the developmentally disabled, i.e. mentally retarded, as a violation of the 8th amendment's prohibition on cruel and unusual punishment. All these years later, the Commonwealth of Pennsylvania has yet to implement a procedure for determining if a defendant is disabled.

But now, after one amazing night and one amazing day at the capitol, PA stands on the cusp of creating a structure to abide by the Atkins decision. Miraculously, unbelievably, incredibly both chambers of the General Assembly could be on the verge of doing it right.

Let's start with last night's debate in the House of Representatives. House Bill 698, which creates a procedure to determine disability post-trial by jury, was on the chamber's agenda, but Representative Kathy Manderino, a Democrat from Philadelphia, offered an amendment to change the procedure to pre-trial by the court (the judge). Manderino cited support for that procedure from advocates for the mentally retarded, church groups, and the attorney who successfully argued the Atkins case, Professor James Ellis of University of New Mexico School of Law.

Rep. Dennis O'Brien, the prime sponsor of 698 and a Republican from Philadelphia, objected to the amendment and offered a motion to vote on the constitutionality of the amendment, claiming it was a violation of the 6th amendment of the US Constitution and of the PA Constitution, which guarantees the Commonwealth's right to a trial by jury. This farce was smelt out by the House and voted down, 106-87. A diverse group spoke in favor of Manderino's amendment, including Rep. John Pallone, a Democrat from Westmoreland and Armstrong Counties; Rep. Russ Fairchild, a Republican from Union and Snyder Counties; and Rep. Curtis Thomas, an African-American Democrat from the city of Philadelphia.

While Manderino's amendment was not ultimately voted on, the constitutionality vote is a reason for optimism.

Then, at mid-day today, the PA Senate Judiciary Committee had Senate Bill 631 on its agenda. SB 631 creates a pre-trial procedure for the determination of disability. Senator Charles Lemmond (R-Luzerne) offered an amendment to create a post-conviction procedure, claiming the jury "will have seen the behavior (of the defendant) in different situations." Mind you, this is the same Senator Lemmond who a few years ago introduced the same amendment by saying that it wasn't really his amendment but the District Attorneys asked him to introduce it. Lemmond also noted the support of the Attorney General.

Senator Mary Jo White, the prime sponsor of SB 631, retorted, "It's unfortunate that Attorney General Corbett never called me...but I have spoken with the judiciary of Florida." Senator White noted that the Florida Supreme Court changed its criminal procedure to a pre-trial determination due to problems with having a death-qualified jury and the costs of a capital murder trial.

"Why would you go through a death penalty trial only at the end to say, 'Oh, by the way, this isn't a death penalty trial'?"

Senator Stewart Greenleaf (R-Montgomery), the chair of the committee, noted that allowing a jury to determine disability is "certainly prejudicial against the defendant."

Lemmond's amendment failed, 5-9, and the bill was sent to the Senate floor, 11-3.

Now what? These are important victories, but there is still work to be done. In the House, the Manderino amendment still needs to come up for a vote and then the final bill will have a vote. In the Senate, a post-trial amendment will likely be introduced before final passage. It's not over yet, but we have reason to feel good.