Should Pennsylvania abolish the death penalty? | Pro/Con

Gov. Josh Shapiro has called on state lawmakers to end the death penalty in Pennsylvania and vowed that he would extend the moratorium on executions instituted by his predecessor, Gov. Tom Wolf.

Support for capital punishment among U.S. adults has steadily declined over the decades, but most Americans still believe the death penalty is justified for people convicted of murder, even as a majority of U.S. adults understand there is some risk of an innocent person being executed.

We asked two people on either side of the issue to weigh in: Should Pennsylvania abolish the death penalty?

By Raymond J. Tonkin

In the early morning hours of Sept. 13, 2014, my phone rang. On the other end of the line was an emergency dispatcher saying the state police were requesting me in my role as a prosecutor because two state troopers had been shot at the Blooming Grove Barracks of the Pennsylvania State Police.

I quickly dressed and headed to a local church less than a mile from the barracks. This was the center of operations for the state police. The barracks had been vacated, with a sniper still loose in the woods. Upon entering the church, I observed several troopers in the pews with grim looks on their faces.

I was informed that two troopers had been shot outside the barracks. Cpl. Bryon Dickson was shot as he was leaving to head home. As he lay helpless on the ground, he was shot again. Trooper Alex Douglass was shot when he moved to aid Dickson. Both were targeted because they were uniformed state troopers.

Douglass survived, but Dickson was dead by the time emergency responders arrived.

With members of the state police, I traveled to the barracks in an armored vehicle to observe the scene, which is vital to any prosecutor who may later have to describe it to a jury. That day, just inside the door from the lobby of the barracks, I saw Dickson’s body covered by a yellow emergency blanket.

He had been moved from the outside of the barracks by fellow troopers, who bravely risked their lives in what turned out to be a futile attempt to save him. Just before Dickson’s body was removed by the coroner, then-Lt. Christopher Paris, who is now commissioner of the Pennsylvania State Police, led the group of troopers, myself, and my first assistant, Bruce DeSarro, in the Lord’s Prayer.

Forty-eight days later, Eric Matthew Frein was arrested. He was charged with the murder of Cpl. Dickson and the shooting of Trooper Douglass. Frein stood trial, and a jury of 12 unanimously convicted him.

The jury determined that a sentence of death was the appropriate punishment.

Gov. Josh Shapiro, with his call to abolish the death penalty in Pennsylvania, would release Frein from death row and into the general prison population. In general population, Frein would be allowed out of his cell for most of the day. During this time, he could play chess or checkers, or enjoy team sports, such as softball, football, or basketball. He could bask in the sun and even purchase ice cream from the commissary.

Meanwhile, Tiffany Dickson continues to bear the burden of her husband’s loss. His two sons grow up without their father. Trooper Douglass has undergone countless surgeries, suffered the loss of his lower right leg, and uses a service dog, Peter, to assist him both physically and emotionally.

The decision to impose a sentence of death is left to the sound judgment of a dozen citizens called to serve as jurors. There is little doubt they would rather not. However, they perform their duty and make their decision under the guidance of law in our system of justice.

Over time, the death penalty has withstood constitutional scrutiny and has been deemed by the courts as an appropriate sentence in cases of intentional murder. Most Americans understand that, with about 60% of U.S. adults supporting capital punishment, according to a Pew Research Center poll.

There are cases where a murder is so heinous, so calculating, so evil, that justice is rightfully served by the imposition of the death penalty. Those cases include the intentional murder of a police officer.

Recently, we have seen three officers killed by gunfire here in Pennsylvania, including Temple police officer Christopher Fitzgerald. Each officer was doing their duty to protect their community when they were slain. Every police officer pledges to lay down their life in the protection of others, and it is the law that protects them.

To provide that sense of protection, Pennsylvania should retain the death penalty.

Raymond J. Tonkin is the Pike County district attorney.

By Jules Epstein

Gov. Josh Shapiro’s decision to continue the moratorium on executions and call for legislation to end the death penalty deserves praise and support as being just, smart, moral, and good criminal justice policy.

As the governor said, “The system is fallible, and the outcome is irreversible.”

Pennsylvania’s death penalty process has been a failure. It has not eliminated the effects of racial bias, it is error-prone, it has swept up those ineligible for the most severe punishment there is, and it continues to place at risk the truly innocent. Pennsylvania’s own data prove each of these points.

After years of study, the bipartisan Joint State Government Commission issued a report in June 2018 titled “Capital Punishment in Pennsylvania.” Race was the “thumb on the scales” in death penalty cases. White victim cases result in the imposition of a sentence of death at over twice the rate where the victim is Black: Death sentences returned at penalty trials were at 45% (31/69) in cases with white victims and 20% (15/74) with Black victims.

Although the Eighth Amendment categorically excludes those with severe intellectual disability, as of 2018, between 4% and 15% of the state’s death row population had IQs that would make them ineligible for death sentences. The “system” simply failed to screen them out.

Those with intellectual disabilities may be factually guilty of the murder charges, but Pennsylvania has had another risk of error: executing the truly innocent. Eleven people sentenced to death have been exonerated after courts reviewed their cases and upheld their sentences. These exonerations were often opposed by prosecutors who claimed that “the system works.”

And then there are the lawyers. It is fair to call death penalty practice the “brain surgery” of criminal law. But Pennsylvania relies on underresourced lawyers with no state funding and a resulting 150 cases overturned because of mistakes by judges or prosecutors that defense counsel missed, or errors they themselves made. The total number of cases overturned for one form of error or another? Well over 300.

Ending capital punishment is also smart criminal justice policy. There remains no proof that the death penalty is a deterrent. Without it, cases will go to trial much more quickly, the opportunities for error are fewer, and the appeals process will not run for decades, bringing some closure to a victim’s family and friends.

There are also immense cost-savings to doing away with capital punishment. Death penalty trials cost more and death row incarceration costs more. One estimate was an added cost to Pennsylvanians of $2 million per capital case resulting in a death sentence. The death penalty does not make us safer, and the money saved could go to smart crime reduction policies or victim services.

But what about a sense of justice for the victims’ survivors?

Some oppose execution while others are for it, studies show that an execution often brings no closure, and no fair capital punishment system can rest on whether a victim’s family wants a particular punishment. There are other ways to support family and loved ones, including more funds for victim counseling, bringing cases to trial sooner, and having a much more abbreviated appellate review process.

All of these are compelling policy reasons to end capital punishment in Pennsylvania. They are also moral reasons: One cannot support laws that lead to biased judgments, risk executing innocents, and tolerate high rates of error.

Gov. Shapiro said it most eloquently: “The Commonwealth shouldn’t be in the business of putting people to death. Period. I believe that in my heart. This is a fundamental statement of morality. Of what’s right and wrong. And I believe Pennsylvania must be on the right side of this issue.”

The sooner we get there, the better.

Jules Epstein is the Edward D. Ohlbaum Professor of Law and director of advocacy programs at Temple University Beasley School of Law. He has litigated capital cases and taught death penalty case law for three decades.