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Capital Punishment in
Pennsylvania:
The Case for Removing Capital Punishment laws under Title 42,
Chapter 97, Subchapter B from Pennsylvanian Law

Daniel Alpert
Jan Babcock
English 138T
24 April, 2022
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Introduction:

As of today, twenty-seven out of fifty states authorize capital punishment1, which legally

allows a jury to rule an authorization of killing someone for a crime committed. Currently,

Pennsylvania is one of those twenty-seven states. In Pennsylvania law under Title 42, Chapter

97, and Subchapter B, the law states the different procedures and crimes that allow for capital

punishment. Under the law in Pennsylvania, there are two separate cases regarding capital

punishment; one for the actual crime committed, and if the jury finds the perpetrator guilty, then

there is a sentencing hearing where the judge can rule for death by lethal injection as of 1990.2

Supporters of capital punishment laws say that the law is a good deterrent against some of the

most violent crimes, as well as an ethical and fair punishment for a horrific crime committed.

However, governing bodies need to overrule the implementation of capital punishment, as it is an

unethical way of punishing people for their crimes. It will not discourage offenders from

committing the crime, as if they are willing to execute such a violent crime that it will send the

person to spend the rest of their life in jail, then it is highly unlikely that the extra layer of a

controversial law will have any impact.3 Additionally, using capital punishment puts innocent

lives at risk, as it is never a guarantee that people convicted of the crime did it, or if there is any

bias, such as racial bias, involved. Families are not given the justice they deserve, as if the

convict is guilty, they do not suffer the consequences for very long; also, the cost of cases that

incorporate capital punishment is significantly higher than cases where capital punishment is not

a requirement or consideration.4 People around the country are also starting to change their

opinions regarding keeping executions laws. In Kentucky, a survey done had 68% of the people

surveyed disagreeing with keeping capital punishment laws after being told the cost differences

in keeping versus removing the law.5

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Figure 1: Kentucky Survey Regarding Opinions on the Death Penalty

The University of Kentucky Survey Center

Overall, the benefits of a provision and removal within the Title 42, Chapter 97,

Subchapter B laws outweigh the benefits of keeping the law.

Background/History:

Before the 1970s, Pennsylvania carried out the 3rd largest rate of executions of any state.6

In 1972, after George Bradley was found guilty of first-degree murder and sentenced to death,

the Supreme Court of Pennsylvania ruled that capital punishment violated the eighth amendment

right against cruel and unusual punishment, and therefore unconstitutional.7 This was an

implementation of the Furman v Georgia case within the Supreme Court that abolished the

application of the death penalty in the months prior to the Bradley case. However, in 1974, the

legislator reenacted the death penalty in Pennsylvania. This was then overruled again in 1977

and an updated version of the death penalty law was passed in 1978, which has been in place

ever since.8 Since the reinstatement of the law in 2015, there were a total of four hundred and

eight that were put on death row. Of those four hundred and eight, six of them were exonerated.
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If any of those six were executed, blood would have been on Pennsylvania’s hands for keeping

the law intact.

In 1981, Mumia Abu-Jamal was charged with the killing of a police officer named Daniel

Faulkner, and was subsequently placed on Pennsylvania’s death row. For the next three decades,

he stayed on death row while his supporters continued to claim he was innocent. His case

proceeded to be eventually reviewed by a federal court and reversed before the Supreme Court

reversed the federal court's ruling. This led the U.S. Court of Appeals for the Third Circuit to

overrule the Supreme Courts' ruling, finally ensuring Abu-Jamal stays off of death row. 9

In 1982, Nicholas Yarris was convicted for the abduction, rape, and murder of a young woman

returning home from work. In the trial, DNA was collected but was not used as evidence for the

trial. Rather, the evidence was based on multiple eyewitnesses claiming they saw a man that

looked like Yarris loitering the mall where the woman worked, a testimony of a jail guard, a

jailhouse informant claiming that he confessed, and a blood sample that confirmed the

murderer’s blood type was the same as Yarris. Only in 2003, when more sophisticated DNA was

produced, was Yarris able to prove that he was not responsible for the murder in 1982. 10

The Debate of Innocence Impacting Capital Punishment:

Yarris ended up spending twenty-one years on death row before he was exonerated, but at

least he was still able to live his life after those twenty-one years. With the law currently in place,

he very well could have ended up getting killed on death row as a free man. Even though

Abu-Jamal got off death row, many of his supporters still want him completely exonerated

because his innocence is still a topic of discussion. If he was executed, not only would supporters

of his innocence be upset, but there is also a very real possibility that he would be executed as an

innocent man. The argument can be made that this is only a small percentage of the people that
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were put on death row, and there had to be enough evidence to convict them in the first place.

Even when the Furman v Georgia ruling happened, supporters of the death penalty can point to

the fact that there were only two of the five judges who voted against capital punishment laws

that thought that capital punishment was unconstitutional in all cases. Rather, the other three

focused on then death sentence laws having discriminatory factors within them that needed to be

revised.11 However, there is a reason that the laws of capital punishment were ruled

unconstitutional decades ago. Morals and ethics aside, there is a subsection within the law that

says “the Supreme Court shall either affirm the sentence of death or vacate the sentence of death

and remand for further proceedings as provided in paragraph”.12 That is a lot of spent a lot of

time, effort, and money by all parties to get to a decision regarding whether or not he should be

subjected to capital punishment, and in the end came to the same ruling that would have

happened if we got rid of the law. Including morals and ethics, Pennsylvania law was and still is

covered in controversy not only for the death by injection ruling but also for the ruling of

whether or not he was guilty. If there is doubt on the perpetrator’s guilt and he is sentenced to

death by law covered in debates, that law needs to be expunged.

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Figure 2: Error rate estimates of defendants on death row

Time

Racial Bias in Capital Punishment Rulings:

While there are almost assuredly not many people facing the death penalty that are

innocent, it is much more reasonable to say that African Americans have faced systematic racial

bias in capital punishment rulings for several years. Abu-Jamal’s case is a good example of a

case where racial bias played a factor in the sentencing ruling. Within the case itself, there was a

many physical evidence disputes within the case. One example was the coroner saying in his

autopsy notes that the police officer shot that night was killed with a .44-caliber bullet, but later

stated that the bullet had been a .38-caliber bullet, like the bullets used for the gun that was found

with Abu-Jamal. 13 Additionally, there were witnesses that claimed that Abu-Jamal confessed to

the murder while being treated for wounds he suffered that night. However, in the original police

report made regarding his statement, no such indications were made, with the officer that made

the report then later claiming he heard Abu-Jamal in fact confess to the murder. 14 One eyewitness
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who was never even called to testify in the original trial later claimed that Abu-Jamal was not the

gunman. A judge even reinstated Abu-Jamal's right to appeal as he cited the question of bias

being involved in the original case.15 With both the physical and eyewitness discrepancies it is no

wonder that supporters of him are demanding his innocence and a release. Even if he was guilty,

with the number of inconsistencies in the evidence, there is absolutely no way he should have

been considered to be put to death. His case is just one of several examples of racial bias, or

simply bias in general being involved in capital punishment sentences. Pennsylvania specifically

has one of the highest percentages of minorities on death row, sitting at roughly 70%.16 Several

case studies have attributed that racial bias is in fact prevalent in capital sentences. In

Pennsylvania specifically, John F. Karns and Lee S Weinberg conducted a case study in 1990

regarding African American death penalty convictions since the implementation of the revised

capital punishment laws in 1978. They were able to conclude that a minority who murdered a

white person was twice as likely to be sentenced to be executed then a minority who kills another

minority.17 For the United States in general, researcher Dr. David Baldus was able to show that

the distribution nationally is 22% of black defendants who kill white victims are sentenced to

death, as opposed to 8% of white defendants who kill white victims are sentenced to death.18

There were additional studies and state supreme court cases in 2001 and 2003 in the states of

New Jersey and Maryland prospectively that backed up the claim that the death penalty laws

within the state made the defendants much more likely to be put to death if they killed a white

person.19
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Figure 3: Breakdown of percentages of ethnicities that make up total death row

numbers in Pennsylvania

Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness

These are just a few of many case studies that specifically called out the racial bias within

capital punishment laws. As a result, states began to incorporate their own versions of the Racial

Justice Act, with Kentucky being the first state to enact it in 1998. Pennsylvania’s house bill 890

made in 2015 is the current bill that behaves as the Racial Justice Act. The language of the bill

essentially says that no person can be sentenced to death based on race.20 Theoretically, the act

should ensure the safety of minorities being executed based on their appearances rather than the

actual crime. At the very least, it was an acknowledgment from the states that allow capital

punishment that racial bias was a real problem and they are taking the necessary steps to fix that.

Critics, however, could point to the fact that it is extremely difficult to prove within a court case

that there is racial bias involved. In House Bill 890, it states that racial bias has to be proven with

evidence that is relevant to the fact that race was a significant factor in the jury's decision to

sentence the defendant to death.21 With all those case studies listed above, there was plenty of
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statistical data to use and incorporate within their research in order to come to a conclusion. In a

single court case, a lawyer for the defendant will have a hard time showing there is racial bias

unless one of the people on the jury outright has previously shown hatred towards minorities.

While there is a good amount of people altogether do not think that capital punishment is

ethical to utilize, Pennsylvania and other states attempt to make the verdict of the death penalty

as fair as possible. The Racial Justice Act is an example of something that Pennsylvania has

implemented in order to limit the problems within the Title 42 law regarding the death penalty.

While it does not impede the death penalty laws, it does make them more fair geared toward

racial bias. Additionally, in 2015, Governor Tom Wolf issued a moratorium on executions,

alluding to reasons such as the potential innocence of defendants and racial bias.22 While there

have not been any sweeping changes since the application of the revised law in 1978,

Pennsylvania has consistently tweaked or changed capital punishment laws to find a balance

between the critics and supporters of the death penalty. There are still state laws Pennsylvania

could sign if they were to keep capital punishment laws. In 2011, the state legislature created

“SR 6”, a commission that led to a seven-year study into the reforms that can be made for

execution within Pennsylvania by the Joint State Government Commission.23 The study deduced

several of the same issues in their executive summary with current Pennsylvania laws that this

paper points towards, including but not limited to the addition of costs with capital punishment

laws, racial bias within sentencing, and the risk of executing an innocent man. They concluded

several reform changes that they recommend if capital punishment laws are still utilized,

including “establishing a state-funded capital defender office, banning the death penalty for

severely mentally ill defendants, and making public the details of the state’s execution
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protocol”.24 However, since that study was released, none of the recommendations have been

implemented into law.

Options and Recommendation:

With the research that has been done regarding capital punishment, this paper

recommends that the Title 42, Chapter 97, Subchapter B law that allows for the usage and

procedures of capital punishment be abolished from Pennsylvania law. There are two options

within the law: either keep it and continue to implement new changes that positively affect the

ethics of keeping the law intact or remove the rule. While Governor Wolf did declare a

moratorium on executions, there is no guarantee that the next governor of Pennsylvania will

continue it If the decision were to keep the law, Pennsylvania should continue to produce other

acts that make capital punishment rulings fair, as the Joint State Government Commission found

a total of seventeen risks with the capital punishment law, and had several recommendations for

the improvement of the ethics side of it that has yet to be put into law.25 At the very least,

legislators in Pennsylvania have to have discuss solutions to the commission's findings.

However, the removal of Subchapter B within the Title 42 laws, thus permanently

banning capital punishment from the state of Pennsylvania, would be a much better result. If

capital punishment was successful in its goal of deterring crime, data collected within the United

States should show that crime is down in the states that allow it. Yet, the opposite is the case. The

states that allow for executions are actually the ones with the highest rate of crimes. In recent

years, states such as New York, Connecticut, New Mexico, and Illinois all removed laws that

allowed for the death penalty. They all saw a drop in their rates of crime immediately following

the rulings.26 Even if fairness within the death penalty was better based on new laws created in

the coming years, the problems and risks described in the seven-year study still will exist, and
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many of them could not be fixed no matter what is done in the future. No laws can change the

costs of having the law in place. The commission based their findings on a previous study in

Maryland and found that “For the average case, a death notice adds $670,000 in costs over the

duration of a case. A death sentence adds an additional $1.2 million in processing costs. Thus,

the average total cost for a single death sentence is about $1.9 million over and above the cost of

a similar case with no death penalty sought.”27

Figure 4: Difference in total costs in cases with death penalties versus cases without it

Kansas Coalition Against the Death Penalty

Simply put, no laws can mitigate the costs of the longer processes and payments needed

to be made to everyone working within the case. Racial bias is a very real part of death penalty

convictions, and while laws such as the Racial Justice Act can be put in place to attempt to

mitigate it, there is no law that fully eliminates racial bias. The commission had trouble even

making any concluding remarks regarding racial bias. Moreover, trials before the capital

punishment hearings are obviously there to see if the defendant is guilty or innocent. But just like

the trial of Nicolas Yarris, trials have been wrong regarding a person’s innocence, and have sent

these same people to death row. Since 1973, the United States has had a total of one hundred and

sixty-two “convicts” on death row be exonerated, with six of them from Pennsylvania.28 If any of

those six, or even any of those one hundred and sixty-two people were put to death before they

were proven innocent, no law in the world can possibly be made that changes their outcomes.
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While the task force committee was only made to make recommendations on additions to the

current capital punishment laws to make them fairer, it is clear within their executive summary

and conclusions that there are problems with keeping the law altogether. Governor Wolf

announcing a moratorium is a good start towards eliminating the death penalty from the state, but

the next governor could drag his feet or not agree with Wolf regarding the topic, which is why it

is a necessity to permanently dispose of the law and make the harshest punishment under federal

law a life without parole sentence.

Communication and Implementation of the Recommendation:

Ultimately, the findings of this paper show that additional laws being implemented into

the existing law regarding capital punishment in order to attempt to make it adequate is not a

success. Success within this topic would be the complete removal of the law and the death

penalty from the state. In order for the removal of this law, a bill that the state legislators create

would need to be passed that overrules or vetoes the original law.29 The bill would be filed,

placed in front of a committee and debated, and if it is approved, moves on to the chamber floor,

where there will be more debates and votes.30 If the chamber floor approves of the bill, the bill

will be passed to the governor to either be signed into law or vetoed.31 This is why it is essential

for swift action within the state legislator system, as hopefully Governor Wolf, who issued the

moratorium, is likely to pass it into law. Wolf can then make the announcement to the citizens of

Pennsylvania regarding the approval of the bill, where he can site the countless statistics and

risks associated with the original capital punishment law. The communication of the new bill to

the people of Pennsylvania would absolutely need to convey that every option was meticulously

considered and researched, as the topic today is still highly controversial and involves many

people on both sides of the spectrum. The removal of the law will effectively be a success in the
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state of Pennsylvania, and a big step toward bringing an end to capital punishment in the United

States.
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Endnotes:

1. Amber Widgery, Karen McInnes. States and capital punishment. Accessed April 24,

2022.

https://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx#:~:text=Capit

al%20punishment%20is%20currently%20authorized,government%20and%20the%20U.S

.%20military.

2. Center, Legislativate Data Processing. “Title 42.” The official website for the

Pennsylvania General Assembly. Accessed April 24, 2022.

https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=42

&div=0&chpt=97&sctn=11&subsctn=0.

3. Gaille, Louise. “15 Biggest Capital Punishment Pros and Cons.” Vittana.org, August 14,

2018. https://vittana.org/15-biggest-capital-punishment-pros-and-cons.

4. Ibid.

5. Kansas Coalition Against the Death Penalty, April 14, 2022.

https://ksabolition.org/facts/kansas-facts.

6. “Pennsylvania.” Death Penalty Information Center, April 12, 2022.

https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/pennsylvania#:~:text=Pe

nnsylvania%20passed%20a%20law%20in,highest%20number%20of%20any%20state.

7. “Commonwealth v. Bradley.” Justia Law. Accessed April 24, 2022.

https://law.justia.com/cases/pennsylvania/supreme-court/1972/449-pa-19-0.html.

8. “Pennsylvania.” Death Penalty Information Center, April 12, 2022.

https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/pennsylvania#:~:text=Pe

nnsylvania%20passed%20a%20law%20in,highest%20number%20of%20any%20state.
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9. Ibid.

10. Ibid.

11. “{{Meta.pagetitle}}.” {{meta.siteName}}. Accessed April 24, 2022.

https://www.oyez.org/cases/1971/69-5030.

12. Center, Legislativate Data Processing. “Title 42.” The official website for the

Pennsylvania General Assembly. Accessed April 24, 2022.

https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=42

&div=0&chpt=97&sctn=11&subsctn=0.

13. Cox, Natalie. “Mumia Abu-Jamal.” Encyclopædia Britannica. Encyclopædia Britannica,

inc. Accessed April 24, 2022. https://www.britannica.com/biography/Mumia-Abu-Jamal.

14. Ibid.

15. Ibid.

16. “Race and the Death Penalty.” American Civil Liberties Union. Accessed April 24, 2022.

https://www.aclu.org/other/race-and-death-penalty.

17. “The Racial Justice Act in Pennsylvania.” Accessed April 24, 2022.

file:///Users/danielalpert/Downloads/The_Racial_Justice_Act_in_Pennsylvania.pdf.

18. Ibid.

19. “Race and the Death Penalty.” American Civil Liberties Union. Accessed April 24, 2022.

https://www.aclu.org/other/race-and-death-penalty.

20. “The Racial Justice Act in Pennsylvania.” Accessed April 24, 2022.

file:///Users/danielalpert/Downloads/The_Racial_Justice_Act_in_Pennsylvania.pdf.

21. Ibid.
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22. “Pennsylvania.” Death Penalty Information Center, April 12, 2022.

https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/pennsylvania#:~:text=Pe

nnsylvania%20passed%20a%20law%20in,highest%20number%20of%20any%20state.

23. “Final Report and Recommendations ... - Jsg.legis.state.pa.us.” Accessed April 25, 2022.

http://jsg.legis.state.pa.us/resources/documents/ftp/act5/pdf/PPMAIRC-FINAL.pdf?t=20

220320.

24. Ibid.

25. Ibid.

26. Gaille, Louise. “15 Biggest Capital Punishment Pros and Cons.” Vittana.org, August 14,

2018. https://vittana.org/15-biggest-capital-punishment-pros-and-cons.

27. “The Cost of the Death Penalty in Maryland - Urban Institute.” Accessed April 25, 2022.

https://www.urban.org/sites/default/files/publication/31526/411625-The-Cost-of-the-Deat

h-Penalty-in-Maryland.PDF.

28. “Final Report and Recommendations ... - Jsg.legis.state.pa.us.” Accessed April 25, 2022.

http://jsg.legis.state.pa.us/resources/documents/ftp/act5/pdf/PPMAIRC-FINAL.pdf?t=20

220320.

29. “8 Things to Know about How State Bills Become Law.” Freedom for All Americans,

January 21, 2022.

https://freedomforallamericans.org/8-things-to-know-about-how-state-bills-become-law/.

30. Ibid.

31. Ibid.