DEFENDER ASSOCIATION OF PHILADELPHIA
BY: ELLEN T. GREENLEE, Defender, and
Marc Bookman and Karl Schwartz, Assistant Defenders
Identification No. 00001
1441 Sansom Street
Philadelphia, PA 19102
(215) 568-3190
Attorneys for Mustafa Ali
COMMONWEALTH OF PENNSYLVANIA : COURT OF COMMON PLEAS
CRIMINAL TRIAL DIVISION
VS.
MUSTAFA ALI
: CP-51-CR-0000683-2008
: CHARGE: MURDER, ETC.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S
MOTION TO BAR DEATH PENALTY BASED ON RACIAL AND RELIGIOUS
BIAS IN ITS IMPLEMENTATION
This Memorandum addresses and, with the aid of studies1 establishing a
prejudicial race effect based on the appearance of a defendant and the overt bias against
people of the Muslim faith, concludes that any death penalty imposed on Mustafa Ali
must be unconstitutional. Given Mr. Ali’s Black features, the race of the victims, and Mr.
Ali’s Muslim faith and Muslim name, any resulting death penalty will be the result of
pernicious racial and religious bias that would render the sentence arbitrary and
capricious in violation of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d
These studies, which will be discussed in greater detail supra, are “Looking
Deathworthy,” authored by J. Eberhardt, P. Davies, J. Purdie-Vaughns, S. Johnson; and
“Anti-Arab and Anti-Muslim Sentiment Amongst Potential Jurors: Underlying
Psychological Constructs and Tools for Identification,” by Sonia Chopra, Ph.D..
1
346 (1972). Based on the below arguments, this Court should preclude the capital
prosecution of Mr. Ali, and require the Commonwealth to proceed non-capitally.
A.
Legal efforts to eliminate racism in the criminal justice system have
proven futile.
The courts of the United States, as well as Congress and the occasional state2,
have long attempted to eliminate racism in the criminal justice system and to replace it,
instead, with a racially neutral justice system. As the United States Supreme Court noted
in Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Court
has engaged in “unceasing efforts” to eliminate racial bias from the criminal justice
system.
As will be discussed below, these efforts, while laudable, have proven
unsuccessful.
For example, for over a century it has been improper to exclude Blacks from
service on grand and petit juries. Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880);
Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880); Neal v. Delaware, 103
U.S. 370, 394, 25 L.Ed. 664 (1881); Norris v. Alabama, 294 U.S. 587, 589, 55 S.Ct. 579,
79 L.Ed. 1074 (1935); Whitus v. Georgia, 385 U.S. 545, 549-550, 87 S.Ct. 643, 17
L.Ed.2d 599 (1967); Alexander v. Lousiana, 405 U.S. 625, 628-629, 92 S.Ct. 1221, 31
L.Ed.2d 536 (1972); Vasquez v. Hillery, 474 U.S. 253, 106 S.Ct. 617, 88 L.Ed.2d 598
(1986).
The efforts to eliminate racial bias in the jury also preclude the prosecutor from
excluding potential jurors based upon race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
In 1998 Kentucky became the first state to pass a Racial Justice Act, declaring that no
sentence of death shall be sought or imposed on the basis of race, and delineating specific
evidence and burdens to establish such claims. The Act specifically allows for the
admission of statistical evidence showing racial bias. North Carolina’s legislature has
recently taken a significant step towards its own Racial Justice Act.
2
1712, 90 L.Ed.2d 69 (1986); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d
759 (1965). Of course, the prosecutor was barred from exercising charging discretion
based upon race, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), or
making arguments based upon race. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct.
1868, 40 L.Ed.2d 431 (1974).
These efforts are all meant to achieve a particular end: to make the criminal
justice system as racially neutral as possible. Given the substantial efforts which it
spearheaded, the United States Supreme Court in McCleskey v. Kemp, 481 U.S. 279, 107
S.Ct. 1756, 95 L.Ed. 2d 262 (1987) must have been shocked to learn that David Baldus’
in-depth study of the death penalty in Georgia determined that Black defendants who kill
White victims were 4.3 times more likely to receive the death penalty than Black
defendants who kill Black victims. Whether shocked or not, the United States Supreme
Court concluded that, absent evidence that there was racial bias in Mr. McCleskey’s jury
itself, the evidence was insufficient to invalidate the death sentence he received, rejecting
equal protection, due process and cruel and unusual punishment arguments. Part of the
Supreme Court’s rejection was premised upon the fact that the statistics involved were
from the entire state rather than only Fulton County where Mr. McCleskey was tried and
that Mr. McCleskey did not contest his guilt on appeal. Id. at 287.
B.
Study of Philadelphia capital juries establishes that Black defendants with
stereotypic Black features are more than twice as likely to be sentenced to
death than less stereotypic Black defendants.
Two decades after McCleskey, we are still faced with the same pernicious effects
of racism in the jury’s decision to sentence a defendant to death. A study released only
three years ago examined data derived from Philadelphia capital cases from 1979 to
1999. The study examined the extent to which perceived stereotypicality1 of Black
defendants influenced a jury’s decision to sentence a Black defendant to death where
victims were either White or Black. The study concluded that when the victim was
White, the more stereotypically Black the defendant is perceived to be, the more likely he
is to be sentenced to death.
In the study by J. Eberhardt, P. Davies, J. Purdie-Vaughns, S. Johnson, “Looking
Deathworthy,” (attached as Exhibit A) the researchers utilized a database that contained
more than 600 death-eligible cases from Philadelphia that advanced to the penalty stage.
Of those cases, 44 involved Black defendants and White victims.
The researchers
obtained photographs of the defendants involved and had independent raters evaluate
how stereotypically “Black” each of the defendants were.
The researchers then
determined how likely a death sentence was as a function of the defendants’ stereotypic
features. They found a strong effect: those defendants in the upper half of stereotypic
features were over twice as likely to be sentenced to death as those defendants in the
lower half of stereotypic features (57.5% vs. 24.4%). This strong racial effect when the
victim was White dissipated when the victim was Black.2
C.
Legal significance of the continued racially imposed death penalty in
Philadelphia.
Given the improper racial effect noted above, the imposition of the death penalty
in the instant case would violate equal protection, due process and the prohibition against
cruel and unusual punishments under the Pennsylvania and United States Constitutions.
The implications under the United States Constitution will be considered first.
1
Stereotypicality involved a comparison of lips, nose, hair texture and skin tone.
As discussed above, McCleskey rejected on due process, equal protection and
cruel and unusual punishment grounds a challenge to the Georgia death penalty based
upon an earlier study by David Baldus. The instant study (“Looking Deathworthy”)
documents a racially discriminatory effect that is distinguishable from McCleskey,
however, for the following reasons: 1) racial features of an accused, unlike the race of the
victim, are entirely dependent on factors beyond the defendant’s control, and 2) the
biasing factor applies specifically to the defendant, rather than the victim, the judge, the
prosecutor, the defense attorney or any other extrinsic matter. In addition, McCleskey’s
continued vitality is subject to question. Over twenty years have passed since that poorly
reasoned opinion3, and the hope that society would be moving toward greater racial
neutrality has proven illusory, as is evidenced by the recent “Looking Deathworthy”
study. Hence, to the extent that McCleskey rested in part upon the belief that the racial
problem would dissipate over time, McCleskey must be reevaluated. Moreover, the
“Looking Deathworthy” study utilized only Philadelphia juries with charging decisions
only by Philadelphia prosecutors. Hence, to the extent that McCleskey rejected some of
the Baldus study’s conclusions because it considered more than Fulton County juries and
Fulton County district attorneys, such reasoning is inapplicable here. For these reasons,
imposition of the death penalty here would violate the federal constitution because of the
“evolving standards of decency that mark the progress of a maturing society.” Trop v.
Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion). Even if
imposition of the death penalty here would not violate the federal constitution, it would
violate the Pennsylvania Constitution because the Pennsylvania Constitution is broader in
3
Justice Powell, who authored the opinion in McCleskey, called it the worst decision he
made while on the Supreme Court. See John C. Jeffries, Lewis F. Powell, Jr.: A
its protections. Consider, for example, the history of capital punishment in Pennsylvania
which demonstrates that Pennsylvania has long played a leading role in narrowing the
application of capital punishment.
This narrowing of capital punishment dates back to pre-Independence times,
when the Pennsylvania colony drastically limited the number of crimes for which the
death penalty could be imposed.
In the late seventeenth century . . . only eleven crimes in
Pennsylvania were punishable by death while in England
the number was fifty, and [in England] that number
expanded over the next century to more than two hundred.
Moreover, of the eleven capital crimes [in Pennsylvania],
only murder and treason mandated capital punishment.
Kermit L. Hall, The Magic Mirror: Law In American History, at 31 (1989).
Of all the American colonies, Pennsylvania “broke most fully” with the English
tradition of widespread application of capital punishment.
Id. at 34.
“In 1682,
[Pennsylvania] developed a criminal code that prefigured later developments in the late
eighteenth and early nineteenth centuries. The code emphasized the use of prisons and
fines, and it forbade capital punishment” in all cases except where murder was
premeditated or with malice.
Id. at 34.
Increased British control over the colony
undermined these reforms and application of the death penalty was again expanded. Id.
During the Revolution and in the early years of Independence, Pennsylvania again
took a leading role in constricting capital punishment; it “was a hub of reform activity.”
Id. at 170.
The Pennsylvania Constitution of 1776 “direct[ed] future legislators to
compose a new and more human criminal code ‘as soon as may be.’” Id. By 1786 the
Commonwealth had abolished the death penalty for robbery, burglary and sodomy. Eight
Biography 451 (1994).
years later the Commonwealth implemented “an even more radical proposition,”
distinguishing two separate degrees of murder with only the first-degree murder
punishable by death. Id.
After Independence, some of the Commonwealth’s leading statesmen argued that
capital punishment should be abolished.
Benjamin Rush, a renowned Philadelphia
physician and one of the signers of the Declaration of Independence, “was the strongest
voice for reform [and abolition] in the new nation.” Id. In 1788 Pennsylvania Attorney
General William Bradford also became a death penalty abolitionist. Negley K. Teeters,
Hang By The Neck: The Legal Use Of Scaffold And Noose, Gibbet, Stake, And Firing
Squad From Colonial Times To The Present (1967). While the death penalty avoided
abolition, the abolitionist movement succeeded in narrowing its use and in other reforms,
such as the abolition of public executions. In short, Pennsylvania “was a model of the
moderate purposes of law reform” regarding capital punishment, and led the new nation
in narrowing the application of the death penalty. Hall, supra, at 170; Lawrence M.
Friedman, Crime and Punishment In American History, at 73 (1993).
It is against this backdrop that the Pennsylvania Constitution must be considered
and contrasted with the federal constitution. In concluding that a protection guaranteed
by the Pennsylvania Constitution is greater than its counterpart in the United States
Constitution, this Court may consider: the text of the Pennsylvania Constitution; the
provision’s history, including case law; related case law from other states; and policy
considerations unique to Pennsylvania.
Commonwealth v. Edmunds, 526 Pa. 374, 586
A.2d 887 (1991); Commonwealth v. Matos, 543 Pa. 449, 454, n.3, 672 A.2d 769, 772 n.3
(1996).
Article I, Section 13 of the Pennsylvania Constitution provides: "Excessive bail
shall not be required, nor excessive fines imposed, nor cruel punishments inflicted."
PA.CONST. Art. I, Sec. 13. A plain reading suggests that the Pennsylvania Constitution
here provides greater protection than its federal counterpart: the Pennsylvania
Constitution prohibits "cruel punishments" while the United States Constitution only bars
punishments that are both "cruel" and "unusual." U.S.CONST., Amend. VIII. Hence, the
United States Constitution would permit a "cruel" punishment that is common (i.e.,
usual).
Before engaging in the analysis suggested by Edmunds to determine if the
Pennsylvania Constitution provides greater protection to the citizens of this
Commonwealth, the Supreme Court’s decision in Commonwealth v. Zettlemoyer, 500
Pa. 16, 72-74, 454 A.2d 937, 967 (1982), cert. denied sub nom., Zettlemoyer v.
Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983) (holding that
Pennsylvania’s constitutional ban on excessive punishment was co-extensive with United
States constitutional ban where defendant argued that death penalty violated
Pennsylvania constitution) must be considered.
Zettlemoyer, however, was decided
before Edmunds which established the method to determine whether the Pennsylvania
Constitution is broader than the federal Constitution. Zettlemoyer did not consider the
Pennsylvania history regarding the limitations historically imposed on the death penalty
nor even the consideration of the difference between “cruel” punishment and “cruel and
unusual” punishments. These facts demonstrate that greater protection of its citizens was
certainly the policy behind the Pennsylvania Constitution and undercut the assertion in
Zettlemoyer that the Pennsylvania Constitution is coterminous with the federal. The text,
history, case law and policy considerations suggest that the Pennsylvania Constitution is
broader than its federal counterpart.
The most appropriate conclusion from the fact that the death penalty is racially
imposed is that the death penalty should be struck down as unconstitutional under the
Pennsylvania and/or United States Constitutions. This is not to say, however, that the
death penalty could not possibly exist in Pennsylvania. Various courts and legislatures
have taken steps to eradicate racism in the death penalty arena4, while Pennsylvania has
stood idly by.
For example the federal death penalty statutes require that a capital jury is given a
specific instruction to lessen the possibility that race would be a factor in the imposition
of the death penalty. In addition the federal capital jury must certify to the court that it
has followed that instruction.
Special precaution to ensure against discrimination. In a
hearing held before a jury, the court . . . shall instruct the
jury that, in considering whether a sentence of death is
justified, it shall not consider the race, color, religious
beliefs, national origin, or sex of the defendant or of any
victim and that the jury is not to recommend a sentence of
death unless it has concluded that it would recommend a
sentence of death for the crime in question no matter what
the race, color, religious beliefs, national origin, or sex of
the defendant or of any victim may be. The jury, upon
return of a finding under subsection (e), shall also return to
the court a certificate, signed by each juror, that
consideration of the race, color, religious beliefs, national
origin, or sex of the defendant or any victim was not
involved in reaching his or her individual decision and that
the individual juror would have made the same
recommendation regarding a sentence for the crime in
question no matter what the race, color, religious beliefs,
national origin, or sex of the defendant or any victim may
be.
4
See Footnote 1, supra.
18 U.S.C.A. §3593(f).5
The Pennsylvania scheme no longer satisfies Furman and should be declared
unconstitutional; but this Court need not go so far. As “Looking Deathworthy”
establishes, the death penalty is imposed arbitrarily and capriciously according to racial
features of the defendant and the victim, violating the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution and the parallel clauses of the
Pennsylvania Constitution. In the instant case, Mustafa Ali has the requisite Black
features and the victims are White. Thus, a death penalty imposed on Mr. Ali will be
subject to well-documented race effects, and thus be arbitrary and capricious. This Court
should preclude the Commonwealth from seeking the death penalty in the instant case.
The above argument, simply stated, is that any punishment, and particularly the most
severe punishment known to a civilized society, made more likely by the mere
appearance of a defendant, is arbitrary and capricious. The instant case, and the instant
Defendant, adds yet one final unconstitutional effect to the race and appearance effect
discussed above: Mustafa Ali is a practicing Muslim with a very obviously Muslim name.
A recent study by the National Jury Project, “Anti-Arab and Anti-Muslim Sentiment
5
See also 21 U.S.C.A. 848(e) for a similar statutory clause: "(o) Right of defendant to
justice without discrimination "(1) In any hearing held before a jury under this section,
the court shall instruct the jury that in its consideration of whether the sentence of death is
justified it shall not consider the race, color, religious beliefs, national origin, or sex of
the defendant or the victim, and that the jury is not to recommend a sentence of death
unless it has concluded that it would recommend a sentence of death for the crime in
question no matter what the race, color, religious beliefs, national origin, or sex of the
defendant, or the victim, may be. The jury shall return to the court a certificate signed by
each juror that consideration of the race, color, religious beliefs, national origin, or sex of
the defendant or the victim was not involved in reaching his or her individual decision,
and that the individual juror would have made the same recommendation regarding a
sentence for the crime in question no matter what the race, color, religious beliefs,
national origin, or sex of the defendant, or the victim, may be.
Amongst Potential Jurors: Underlying Psychological Constructs and Tools for
Identification,” by Sonia Chopra, Ph.D. (attached as Exhibit B) makes clear the reality of
overt bias and prejudice against people of the Muslim faith by American jurors. A recent
Gallup poll indicated that almost 40% of Americans admit to holding negative views
about people of the Muslim faith; almost 50% of Americans believe that Muslims living
in the U.S. are not loyal to their country.
This is not to say that no person of the Muslim faith can be made subject to the death
penalty due to the prejudice of potential jurors. However this factor, when added to the
well-documented and illegal race discrimination effect noted in “Looking Deathworthy,”
makes any potential death penalty for Mustafa Ali unconstitutional.
Wherefore, for all of the reasons stated above, and based on the Fifth, Sixth, Eighth
and Fourteenth Amendments of the United States Constitution and the parallel clauses of
the Pennsylvania Constitution, as well as 42 Pa.C.S.9711, this Court should preclude the
Commonwealth from seeking the death penalty in the instant case.
Respectfully submitted,
MARC BOOKMAN, Assistant Defender,
KARL SCHWARTZ, Assistant Defender,
ELLEN T. GREENLEE, Defender