Philadelphia District Attorney Larry Krasner. (Photo: P.J. D'Annunzio/ALM)

Philadelphia District Attorney Larry Krasner has asked the Pennsylvania Supreme Court to toss the state's death penalty, arguing that the system is broken.

And it appears that the chief justice of Pennsylvania, Thomas Saylor, may agree.

On Monday, Philadelphia's top prosecutors entered a brief in the case Cox v. Commonwealth of Pennsylvania, contending that the state's death penalty was unconstitutional as it was being applied. The brief garnered significant media attention as it marked what one court observer called an "unprecedented" move of having a prosecutor's office pushing to have a death-penalty statute struck down.

To support the argument, Krasner's office conducted a review of nearly all capital cases out of Philadelphia between 1978 and 2017, and found it was being applied in a "wonton and freakish, arbitrary and capricious manner," quoting a language from a 1982 Pennsylvania Supreme Court decision. Specifically, the brief cited racial disparities and the high rate of sentences being overturned due to ineffective court-appointed attorneys.

"Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is significant likelihood that capital punishment has not been reserved for the 'worst of the worst,'" the brief said. "Rather, what our study shows is that, as applied, Pennsylvania's capital punishment regime may very well reserve death sentences for those who receive the 'worst' (i.e. the most poorly funded and inadequately supported) representation."

Krasner's position splits from those presented by other prosecutors, including the Pennsylvania Attorney General's Office, which said the court should defer to the General Assembly on the issue, and the Pennsylvania District Attorneys Association, which asked the court to reject the constitutional challenge. However, the Philadelphia district attorney might find some support from Saylor.

A review of the chief justice's writings shows that on several occasions Saylor has questioned the way the state's capital punishment system has been implemented, and has been critical of the quality of representation by court-appointed attorneys.

In a law review article published in 2013 in the Widener Law Journal, Saylor said the "current state of Pennsylvania's capital jurisprudence is impaired."

In that article, Saylor focused on cases where defense counsel failed to advance sufficient mitigation arguments, saying these failures showed "the most vivid example of a debilitating deficiency in the death-penalty regime, which remains in sore need of improvement for the system to work properly."

"Since coming to the Supreme Court of Pennsylvania, I have been very disappointed, and frankly disheartened, with the quality of the representation accorded to indigent capital defendants in far too many of these cases," Saylor said in the article, adding that he was "hopeful" that, "through cooperation between the legislative, judicial, and executive branches" the state could come up with a system that complied with the federal constitutional requirements.

The year before that article came out, Saylor also wrote a concurring opinion in the capital case Commonwealth v. King, in which he raised questions about a presumption of effectiveness for court-appointed attorneys.

"I would submit that, in fact, we have seen more than enough instances of deficient stewardship to raise very serious questions concerning the presumption's accuracy," Saylor wrote, before cataloging 25 cases that were overturned due to ineffective counsel.

Court watchers noted that Krasner's arguments, in part, mirror some of the issues Saylor has raised, but questions remain regarding how forcefully Saylor and the rest of the court might address an issue that could be seen as the legislature's prerogative.

A brief filed by several state senators July 12 said the issue "stands to directly impede the senators' ability to perform their legislative function," and some court watchers said the decision to take up the issue could lead to another high-profile clash between the high court and the General Assembly.

Several court watchers noted that the Supreme Court has taken up the issue under its King's Bench powers, which, they agreed, indicates that the court is very serious about addressing the issue.

The court's King's Bench jurisdiction is also typically reserved for high-level questions of public importance, and is rarely granted when the issue does not need to be quickly addressed. So, according to Duquesne Law professor Bruce Ledewitz, the fact that the justices took up the question when there is currently a moratorium on executions might signal a high likelihood that the court will make changes to the state's death-penalty regime.

Ledewitz and others noted that the Supreme Court, which saw significant change in 2015, has not been shy about ruling on issues that legislators may see as encroaching on their territory. Ledewitz listed several recent rulings, but said the most high-profile example would be the Supreme Court's decision to invalidate and rewrite the state's congressional map—a move that eventually led to a legislative push to impeachment several justices.

"They're not shy," Ledewitz said, adding that the court has begun taking a more "activist" approach. "When I say a more activist approach, it sounds like I'm saying they make stuff up. They're not. They're enforcing the text. But they're enforcing the text in ways that prior courts might not have."

However, court watchers noted that several studies commissioned by state entities—dating as far back as 1990 and as recently as a joint task force report issued in June 2018—have found serious problems with the current system. But to date little legislative action has been taken.

According to University of Baltimore School of Law professor John Bessler, who has written extensively on the death penalty, state courts across the country have increasingly waded into issues about the death penalty, particularly because the U.S. Supreme Court has often sidestepped the issue in recent decades.

Two recent examples of state courts tossing death-penalty statutes include Washington, which in 2018 determined that the law was unconstitutional as applied, and Connecticut.

Arguments about racial disparities in the way the death penalty is applied can be very persuasive, Bessler said.

"If it's not inflicting like punishment, that's a problem, and we need to root out all racial disparities," he said.

Robert Dunham, executive director of the nonprofit Death Penalty Information Center and a former capital defender in Pennsylvania, said there is a long history of defendants bringing "as applied" challenges to death-penalty statutes, with many being successful.

Dunham, however, called Krasner's brief in Cox "unprecedented," adding it was the first he was aware of where a prosecutor argued that the death penalty is unconstitutional. Although he said that having a prosecutor join the defendants can make the argument more persuasive, he noted that Krasner—who was elected on a platform of criminal justice reform and has long been a vocal opponent of the death penalty—has received pushback from courts, particularly when seeking to vacate death penalties.

"The courts have been scrutinizing decisions made by the Krasner administration with a different eye than they have scrutinized decisions made by other prosecuting offices," Dunham said.

However, according to Dunham, whose organization, he said, takes no position on death-penalty statutes but is critical of the way capital punishment is administered, the merits of the issue should be easy.

"If trains arrived at the wrong station 60% of the time, there would be an uproar, and the entire system would be scrapped," he said.