VI.
THE DEATH PENALTY IS UNCONSTITUTIONAL AS APPLIED IN
PENNSYLVANIA IN THAT IT IS CRUEL AND UNUSUAL IN THE SAME WAY THAT
BEING STRUCK BY LIGHTNING IS CRUEL AND UNUSUAL
Defendant, through counsel, moves this Court for an order dismissing the Notice of Intent
to Seek the Death Penalty filed by the Commonwealth and declaring the Pennsylvania death
penalty statute, 42 Pa. C.S. § 9711, unconstitutional under Furman v. Georgia, 408 U.S. 238
(1972). This motion is based on the Eighth and Fourteenth Amendments to the United States
Constitution and Article 1, §§ 9 and 13 of the Pennsylvania Constitution.
During the thirty-one years in which Pennsylvania’s current death penalty statute has been
on the books, only three prisoners have been executed, each of whom chose to waive further
appeals and be executed. Thousands of murderers have escaped execution.
Review of other Pennsylvania murder cases and the relevant constitutional standards
leads to the inescapable conclusion Defendant’s execution would be arbitrary and capricious.
This arbitrariness, especially when coupled with the infrequency of executions in Pennsylvania,
strips the capital charges in this case of constitutional legitimacy. Neither the state nor federal
constitution allow for an execution that is either arbitrary or nothing more than the wanton
infliction of pain.
A.
The Death Penalty in Pennsylvania
States nationwide revised their capital punishment statutes after the U.S. Supreme Court
found the Georgia and Texas statutes unconstitutional in Furman v. Georgia. The Pennsylvania
Supreme Court invalidated the Pennsylvania death penalty statute in Commonwealth v. Bradley,
295 A.2d 842 (1972), and the state legislature was forced to revise the statute. After multiple
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attempts to “adopt a constitutionally valid procedure by which capital punishment could be
inflicted,” the Pennsylvania state legislature enacted 18 Pa. C.S.A. § 1311 in 1978. See
Commonwealth v. Zettlemoyer, 454 A.2d 937, 950 (1982). As of October 5, 1980, that statute
was transferred to 42 Pa.C.S.A. § 9711, the statute under which the Commonwealth seeks the
death penalty in this case.
In the thirty-one years since the death penalty’s reauthorization in 1978, only three people
have been executed in Pennsylvania: Keith Zettlemoyer and Leon Moser in 1995, and Gary
Heidnik in 1999. See Evaluating Fairness and Accuracy in State Death Penalty Systems: The
Pennsylvania Death Penalty Assessment Report, American Bar Association, 2007, at 5. For ten
years, Pennsylvania has not executed a single prisoner. Currently there are 221 people under
sentence of death in Pennsylvania. See Persons Sentenced to Execution in Pennsylvania as of
November 2, 2009, available at:
http://www.cor.state.pa.us/portal/server.pt/community/death_penalty/17351 (last accessed Dec.
14, 2009).
In the past five years alone, over 3500 murders have been reported in Pennsylvania. The
Pennsylvania State Police track murders and non-negligent homicides statewide. In 2008, 698
murders and 574 arrests for murder were reported. In 2007, 732 murders and 529 arrests for
murder were reported. In 2006, 740 murders were reported; in 2005, 759 murders were reported;
and in 2004, 649 murders were reported. See Crime in Pennsylvania Annual Uniform Crime
Report 2008, available at:
http://ucr.psp.state.pa.us/UCR/Reporting/Annual/AnnualFrames.asp?year=2008 (last accessed
Dec. 14, 2009).
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B.
The Death Penalty in Pennsylvania is Unconstitutionally Arbitrary and Capricious
The selection of those few individuals who are actually executed in Pennsylvania is
“cruel and unusual in the way that being struck by lightning is cruel and unusual.” Furman, 408
U.S. at 309 (Stewart, J., concurring). A death penalty system that is administered in a way that
“permit[s] this unique penalty to be . . . wantonly and freakishly imposed” violates the Eighth
and Fourteenth Amendments and Article 1, §§ 9 and 13 of the Pennsylvania Constitution. Id. at
310 (Stewart, J., concurring); Zettlemoyer, 454 A.2d at 949.
The thousands of cases in which death was not imposed show that there is no rational
way to explain why one defendant should die while dozens of others also convicted of murder
should live. The execution of Defendant, alone among all of these similar cases, would be too
unpredictable and arbitrary to satisfy the requirements of either the United States or the
Pennsylvania constitution. See Furman, 408 U.S. at 293 (Brennan, J., concurring) (noting that
the death penalty is imposed no more than 50 times a year, but thousands of death-eligible crimes
are committed: “When the punishment of death is inflicted in a trivial number of the cases in
which it is legally available, the conclusion is virtually inescapable that it is being inflicted
arbitrarily. Indeed, it smacks of little more than a lottery system.”); id. at 309-10 (Stewart, J.,
concurring). Indeed, while only three people have been executed in Pennsylvania since 1978, 25
people have been killed in Pennsylvania by lightning between the years of 1990-2003 alone
(National Climatic Data Center). Surely the death penalty in Pennsylvania is more cruel and
unusual than being struck by lightning, and this renders our death penalty unconstitutional.
C.
Pennsylvania’s Execution of the Death Sentence so Rarely and Arbitrarily Amounts
to the Infliction of Pain Without Penal Purpose
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An execution must serve a legitimate penological purpose – incapacitation, retribution or
deterrence – or it amounts to nothing more than “gratuitous infliction of suffering” in violation of
Article 1, §§ 9 and 13 and the Eighth and Fourteenth Amendments. Gregg v. Georgia, 428 U.S.
153, 183 (1976); Baze v. Rees, 128 S.Ct. 1520, 1547-48 (Stevens, J., concurring). Under
Pennsylvania’s statute, the death penalty has been so delayed and so infrequently executed “that
the threat of execution is too attenuated to be of substantial service to criminal justice,” so that
carrying out executions constitutes “the pointless and needless extinction of life.” Furman, 408
U.S. at 312 (White, J., concurring).
Incapacitation bears no rational relation to the execution of Defendant. There is no
showing that Defendant poses any greater security problem than other prisoners serving terms of
years or life. Moreover, the only other possible sentence for a conviction of aggravated murder is
life imprisonment without the possibility of parole. 42 Pa. C.S. § 9711(a)(1). No person
sentenced to life without parole in Pennsylvania has escaped and committed a murder, or killed
in prison. [NEED TO CHECK THIS] As such, “incapacitation is neither a necessary nor a
sufficient justification for the death penalty.” Baze, 128 S.Ct. at 1548 (Stevens, J., concurring).
As is widely recognized, no studies have been able to demonstrate that the death penalty
actually deters crime. See e.g., Furman, 408 U.S. at 307 n.7 (Stewart, J., concurring) (citing
studies which show there is little deterrent effect to death penalty but noting difficulty in
identifying and controlling for all other variables); Baze, 128 S. Ct. at 1548 (Stevens, J.,
concurring). After Justice Scalia disagreed with Justice Stevens’ reading of recent deterrence
studies, Baze, 128 S. Ct. at 1553 (Scalia, J., concurring), the authors of two studies cited in Baze
explained that “the best reading of the accumulated data is that they do not establish a deterrent
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effect of the death penalty.” Cass R. Sunstein and Justin Wolfers, A death penalty puzzle: The
murky evidence for and against deterrence, THE WASHINGTON POST, June 30, 2008.
Even assuming that the death penalty may deter crime, in Pennsylvania any deterrent
effect of the death penalty is eviscerated by the fact that not a single involuntary execution has
occurred in 31 years: all three individuals who have been executed under the current law sought
their own death.
Retribution is the final justification offered for the death penalty. “[W]hen imposition of
the [death] penalty reaches a certain degree of infrequency, it [is] very doubtful that any existing
general need for retribution would be measurably satisfied.” Furman, 408 U.S. at 311 (White, J.,
concurring). The arbitrary selection of one case out thousands in which to exercise retribution
cannot satisfy any legitimate state interest.
Rather than deterring crime or achieving retribution, the death penalty system in
Pennsylvania has instead been most successful in facilitating prisoners bent on ending their own
lives.
WHEREFORE, for the foregoing reasons, Defendant seeks:
a)
An evidentiary hearing to prove the facts pled in this Motion;
b)
The opportunity to provide this Court with a Memorandum of Law on this issue;
c)
An Order denying the Commonwealth’s Notice of Intent to Seek the Death
Penalty;
d)
An Order declaring the Pennsylvania death penalty statute unconstitutional.
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