Before joining the ACLU of PA in 2004, I cut my activist teeth in the PA anti-death penalty movement. Hanging around that movement, shocking behavior by district attorneys becomes commonplace, but I’m not sure that I’ve ever gotten used to it.
Yesterday several district attorneys from Pennsylvania attended a capitol news conference to introduce legislation regarding the death penalty and persons with mental retardation. Their rhetoric took them to a new low. There was so much smoke in the room that I’m surprised the sprinkler system didn’t kick on.
The fight is this: In 2002, SCOTUS declared that executing persons with mental retardation is unconstitutional under the Eighth Amendment, but the Court left the decision on how to determine if a defendant is MR to the states. The DAs believe that the determination should be made after conviction by the jury. Disabilities advocates, the ACLU, the faith community, 90% of the state Senate, and Governor Rendell (per a 2006 interview with the Arc of PA) believe that the determination should be made before trial by the judge.
At yesterday’s presser, the DAs and their legislative allies claimed that deciding if the defendant is MR before trial would cause two-to-three years of delays due to appeals by defense attorneys.
One small problem with that argument- it’s a lie. Senate Bill 751, which includes a pre-trial determination by judge and passed the Senate, 45-3, on October 29, and House Bill 1370 would allow only the prosecution to appeal that decision, not the defense.
(vii) If the court enters an order under subparagraph (vi) finding that the defendant is a person with mental retardation, the Commonwealth may appeal as of right from the order under Pa.R.A.P. 311 (a)(9) (relating to interlocutory appeals as of right).
In other words, if the pre-trial procedure causes delays in the trial due to appeals, that delay will be caused by the DAs.
They threw around plenty of other misleading information and smoke screens. The DAs have been hanging their hat on this argument that homicide defendants will become “newly retarded” and there will be a massive increase in the number of defendants who claim to be MR.
Again, the pre-trial legislation shows this to be a straw man argument when it defines MR.
(3) The person’s mental disability was present before 18 years of age as demonstrated by contemporaneous written records.
I’m all for a public policy debate. It’s a healthy function of a democratic society. But when one side in a policy debate uses misinformation and smoke screens to advance their cause, democracy loses, especially when it’s coming from public officials.
UPDATED, 6:15PM: One might wonder why the DAs want this so badly. This question came up in a Senate Judiciary Committee meeting last session, and the primary sponsor of the good bill in the Senate speculated that they want the death penalty for plea bargaining. I think that’s possible. I also think that they want the decision to be post-trial because it allows them to eliminate 35-40% of the population from the jury pool. How? If the decision on MR- and, thus, the death penalty- is made post-trial, only people who support the death penalty could serve on the jury. That’s called a death-qualified jury. These juries tend to be more pro-prosecution and less likely to question people in authority, as death penalty opponents so often do.
Andy in Harrisburg