The Connecticut Senate voted this morning to abolish the Death Penalty in that state.   The Governor quickly went on record to make it very clear that he intends to sign the bill.   He stated that the Death Penalty is not workable at all in Connecticut.  One can easily draw a parallel to Pennsylvania, which spends millions, if not hundreds of millions of dollars, annually, in support of a penalty that is never executed in Pennsylvania.   We have repeatedly suggested that it does not matter if you are for or against the Death Penalty on a moral basis – it simply cannot stand a cost-benefit analysis instituted by any rational person.   Pennsylvania has easily spent hundreds of millions over the last couple decades, in pursuit of the Death Penalty, without executing anyone.  Why bother?  Studies have shown there is little, if any deterrent effect.  A much better and more cost-effective deterrent would be to spend more on community programs or increased patrols in high-crime areas.   Many suburban Philadelphia communities, like Norristown, Chester, Bensalem and others would benefit greatly from increased patrols and community infrastructure, but instead our governments are wasting the money pursuing a penalty that is never implemented.

In a recent Pennsylvania Supreme Court case, Commonwealth v. Sanchez, the court declared that juries will have to rule when a defendant in a death penalty proceeding wants to argue that he is mentally disabled and therefore ineligible for execution.

The high court upheld the death penalty for Abraham Sanchez Jr., who was convicted of the May 2007 random shooting death of an elderly man, Ray Diener, on his doorstep in Elizabethtown, PA. The 69-page opinion handed down by Chief Justice Ronald Castille documented how Sanchez and three others ended up at Diener’s house in a random search for a home to burglarize or a car to break into.  

One of the men noticed Diener inside his home, so they stopped and rang the doorbell. After Diener went to the door, another man said their car had broken down and asked to use the phone. After Diener returned with a phone, Sanchez pointed a handgun at him, there was a struggle and Sanchez shot Diener three times before he and the other men fled. Diener’s wife, who went outside after hearing his screams, returned inside, locked the doors and called police. Sanchez told a witness he did the shooting “for fun,” according to the opinion. Sanchez was convicted of first-degree murder, robbery and conspiracy.

In capital cases there are two phases, one to determine guilt and another to determine punishment. After he was found guilty, Sanchez had his subsequent penalty trial, where he requested an Atkins determination before jury selection. An “Atkins determination” comes from the U.S. Supreme Court case, Atkins v. Virginia, where the Supreme Court held that execution of the mentally retarded violates the constitutional prohibition against cruel and unusual punishment. Therefore, an Atkins determination rests upon whether or not the convicted is eligible for capital punishment. His request was denied and his death penalty trial proceeded.

During this trial, witnesses described how Sanchez was abused at home and picked on at school. His sister said when she asked him why he doesn’t show love, “He said he doesn’t know what love is.” Despite the defense’s arguments that Sanchez should get life in prison because of his age and background, at age 20, he was sentenced to death by a jury in March 2009.

On appeal, one of several certified questions was whether the trial court erred in permitting the jury to decide at the penalty phase whether Sanchez was mentally retarded and, therefore, exempt from the death penalty pursuant to Atkins. The question was answered in the negative. The justices’ ruling means jurors will have to unanimously agree that the defendant qualifies to avoid execution under Atkins.

In the new decision, the Pennsylvania court said jurors should rule on the issue before deciding if aggravating factors outweigh mitigating factors, the process by which they determine if capital punishment is warranted. The justices had previously ruled on the standards by which a defendant would be considered mentally retarded, but this was the first time they laid out procedures for how to address the issue at trial.

The high court put the burden of proof on defendants under a “preponderance of the evidence” standard, meaning the proposition is more likely true than not true. It said placing the burden on prosecutors would give defendants less incentive to cooperate with psychiatric evaluations or help produce friends and family members who might shed light on their mental states.

In dissent, two justices said that the decision on mental retardation should be made before trial by a judge, as Sanchez argued, but they agreed with the decision to uphold his Lancaster County death sentence. The majority opinion said judges will be allowed to make such rulings, if the parties agree.

The decision about when a defendant must notify prosecutors that he intends to raise a mental disability claim was left up to the court’s Criminal Procedural Rules Committee. While the decision may be vulnerable to an appeal in federal court, for now at least, Sanchez devises a procedure for implementing the Atkins decision in Pennsylvania death penalty cases.  

Steven Fairlie of Fairlie & Lippy, P.C. in North Wales, Pennsylvania, was recently interviewed for a Penn State study about the death penalty. An excerpt follows:

1.) What is your position concerning the death penalty? Are you for or against it?

I am against the death penalty. It is my belief that Pennsylvania spends a billion dollars or more each year on death penalty litigation. This would not just be the costs that are estimated for conducting a trial, but also for handling appeals (often 20 years or more versus a few for a non-capital case), paying the lawyers, and housing the inmates on death row, which is done differently than in the rest of the prison.   How can you justify such an overwhelming expense for a penalty that has not been imposed in roughly 20 years?  Some would disagree with that estimate, but I don’t count the twice it was imposed at the prisoner’s request. What is the point of a death penalty that only gets imposed when a prisoner asks for it? Forget the morality – the death penalty cannot survive any type of cost-benefit analysis whatsoever, since it is never actually carried out. Where else do we pay a billion dollars or more for something we know we will never get?

2.) What do you feel is the main controversy surrounding capital punishment and why has this been an ongoing debate for so many years?

The biggest controversy around the Pennsylvania Death Penalty is the morality of it. Some people believe strongly in “an eye for an eye” but others are troubled by the finality of the death penalty. DNA has proven that the safeguards in our system don’t always work and that the innocent can be convicted. Life in prison actually costs the state less than putting someone to death, and allows us to try to fix the wrong if we find out, from future scientific advancements, that someone was wrongfully convicted.

3.) Do you think that life in prison is a better punishment opposed to the death penalty?

Yes, for the reasons set forth in the two answers above.

4.) Do you feel that the death penalty is necessary in certain cases in order to prevent certain criminals from repeating their crime?

No, I think maximum security prison and life without parole is sufficient to protect society from the worst of the worst.

5.) Why hasn’t Pennsylvania abolished the death penalty altogether?

The death penalty has long been popular with voters. I believe most voters are not familiar with all the facts about the costs and also tend to believe that anyone convicted must have done the crime. Based on this information, it is easy to support the death penalty. As a result, politicians are afraid to do anything other than support the death penalty as it is an issue that can cause them to be voted out of office – getting labeled “soft on crime.”

6.) What method does Pennsylvania use today to carry out the sentence of death?

Lethal injection.

7.) In your opinion what are the pros and cons of the death penalty?

The pros and cons of the death penalty in Pennsylvania are fully discussed above.

The issue of eyewitness identification has been a hot topic in Pennsylvania’s legal community lately. New Jersey’s Supreme Court recently ruled that several changes need to be made to their eyewitness identification procedures to ensure that innocent individuals are not wrongly convicted. Three quarters of the individuals who have been exonerated by DNA evidence were convicted at least in part by mistaken eyewitness identifications. The Pennsylvania Advisory Committee on Wrongful Convictions’ recent report recognized the unfortunate, but important role that eyewitness identification plays in wrongful convictions and gave many recommendations to remedy the situation. While it may be some time before Pennsylvania law enforcement implements all of the suggestions of the advisory committee, the issue of eyewitness identifications continues to be a pressing topic.


The United States Supreme Court has recognized the importance of this topic and has decided to hear its first case on the issue in nearly fifty years. In the case Perry v. New Hampshire, the eyewitness claimed to have seen the suspect talking to police and recognized the suspect as the same person she had seen break into a car. Despite the importance of eyewitness identification, the Supreme Court is only examining a narrow question in this case. The Court has limited the scope of its review to whether a judge should suppress an eyewitness identification any time that it is made under the various circumstances that unfairly suggest identification of a suspect or if the judge should only suppress identification when the actions or responses of law enforcement lead to those circumstances. This case is a step towards greater protection for suspects who have been wrongly accused. It remains to be seen whether the Pennsylvania Supreme Court will follow this trend.

Pennsylvania Advisory Committee on Wrongful Convictions Calls for Safeguards To Protect Innocent Defendants

The Report of the Advisory Committee on Wrongful Convictions was finally published this week after years of research. Its findings and conclusions were based on several key principles. The first was that in order for citizens to have confidence in the justice system, they have to trust that for the most part the system convicts guilty individuals and lets innocent individuals go free. The Committee also acknowledged that this can never be a perfect system. There will always be innocent individuals convicted of crimes they did not do and guilty individuals who will go free. The problem then becomes how to balance the dichotomy between convicting guilty individuals, with as little cost to the state and emotional toll on the victim as possible, while convicting as few innocent individuals as possible.

With these principles in mind, the committee outlined the various factors that lead to wrongful convictions as well as various proposals to limit those factors. Some of the primary causes of wrongful convictions are mistaken eyewitness identification, false confessions, bad informant testimony, inaccurate scientific evidence, and bad lawyering. The Committee submitted a substantial list of recommendations to be implemented by combination of statute, procedural change, and legal rule change. Some of the recommendations involve simple changes to how law enforcement conduct interrogations and lineups. These changes are designed to mitigate the effects of bias towards securing a conviction. Other changes require much more substantial changes, such as a recommendation that all public defenders be paid by the Commonwealth to ensure that they receive equal and adequate pay across the state. This proposal is designed to diminish the effects that bad lawyering has in some areas that do not have well-funded public defenders.

The Committee considers these proposals to be the best options to ensure that fewer innocent individuals are convicted in Pennsylvania without placing a significant burden on state and local officials. While some of the proposals will result in significant costs for the Commonwealth, the vast majority of the proposals will have little or no economic impact on state and local government. DNA evidence has played a major role in bringing the issue of wrongful convictions to light. There is no definitive way to know or even estimate how many individuals have been wrongfully convicted in Pennsylvania, but the Committee believes that these proposals will ensure that even fewer individuals in Pennsylvania will be wrongfully convicted.

The full text of the Report of the Advisory Committee on Wrongful Convictions can be found at http://jsg.legis.state.pa.us/resources/documents/ftp/documents/9-15-11%20rpt%20-%20Wrongful%20Convictions.pdf. In the full Report, the Committee fully explains the evidence that they found, the reasons behind their proposals, and the possible effects of those proposals.