The Philadelphia District Attorney's Office joined counsel for two men on death row in urging the Pennsylvania Supreme Court to strike down the state's death penalty as unconstitutional, but the attorneys faced tough questions from several justices about whether the court had the power to address the issue or whether the question should be left entirely to the General Assembly.

The justices heard arguments Wednesday morning in the consolidated appeals of Cox v. Commonwealth and Marinelli v. Commonwealth. The court agreed to take up the case late last year, using its extraordinary King's Bench jurisdiction, to hear arguments about whether the state's death penalty regime is unconstitutional as it is being applied.

Attorney Timothy Kane, of the Federal Community Defender Office, told the justices Wednesday that, along with other factors including racial and geographic disparities, an overly broad statute that allows prosecutors to seek the death penalty in nearly every murder case has led to the law being applied arbitrarily.

Several justices, however, were quick to question what the court could do about issues of prosecutorial discretion and a properly enacted law.

"What in the world are we supposed to do about that?" Justice Max Baer asked, focusing on the statute that allows prosecutors to seek the death penalty if they believe that one of almost 20 aggravating factors apply to the case. "The whole case sounds like, and that specific example sounds like you want us to legislate."

Justice David Wecht had similar questions about the geographical disparities, noting that prosecutors are elected based on the preferences of the local constituents.

"How can you ever change the reality of geographic disparities in the criminal justice system?" he said.

Justice Debra Todd said timing is also a factor. She gave the example of Philadelphia, where the more traditional law and order prosecutors were routinely voted into office, until 2017 when Philadelphia District Attorney Larry Krasner was elected on a platform of criminal justice reform and whose office is now part of the effort in Cox and Marinelli to have the death penalty struck down.

"It depends almost entirely on prosecutorial discretion and who's elected at the time," Todd said.

Kane focused his responses on arguing that for decades the death penalty has been applied arbitrarily, which is unconstitutional. He further noted there were ways for the court to address the issue without creating a new law, but instead putting supervisory safeguards in place that could help it so the law will be applied more evenly across the state.

"With this much smoke, there's got to be a fire," Kane said.

Kane also faced questions about whether there was enough of a record in the case, since there had been no underlying proceedings on the constitutionality challenge, and, instead, the defendants brought their case based on a report commissioned by the legislature that was issued in June 2018, which cited numerous problems with the way the death penalty was being implemented. The justices additionally asked whether the current moratorium on executions affects the court's ability to take up the case in its King's Bench jurisdiction, which is typically reserved for urgent issues of public importance.

"If the system is cruel … it is incumbent on the court to say so in a timely manner," Kane said, adding later in the argument that similar studies critiquing the death penalty system continue to be commissioned by various state entities, but the legislature has not acted. "For decades, they keep stacking up, and they keep happening, and ultimately, they keep not being addressed."

Assistant District Attorney Paul George joined Kane in pushing to have the death penalty struck down. His arguments focused on an internal study performed by the office, which found that more than 70% of the death penalty punishments were overturned on appeal. The crux of his office's argument is that deficiencies in the representation provided by court-appointed attorneys in capital cases has resulted in the death penalty being applied in an unconstitutional manner.

"When you're talking about having a 72% error rate, you're not talking about a reliable system," George said, adding that, on average, the penalties are overturned after 17 years of litigating.

Baer, however, reiterated a question Todd initially posed to Kane about whether having the penalty overturned so often showed that the system as a whole was working.

"You're describing a system that works," he said. "In the end we get it right."

"That's an awfully optimistic view," George responded.

Arguing against striking down the death penalty regime was Ronald Eisenberg of the Attorney General's Office. Eisenberg cited changes the court imposed in 2005, which addressed the need for better representation by court-appointed attorneys. Since then, Eisenberg contended, the rate of cases being overturned has greatly decreased from the 72% statistic George cited.

The Supreme Court, Eisenberg further argued, has the supervisory and administrative powers to raise the pay for court-appointed attorneys, and could require remediation services if court-appointed attorneys are found to routinely provide inadequate counsel. However, he suggested that much of the broader issues should be left up to the legislature, and added that any case where the defendant is seeking to have his penalty overturned should go through the regular process to prove that his or her case was prejudiced.

"They want you to grant relief to the least questionable cases," Eisenberg said.

Wecht, however, noting a 2016 decision in which the justices called on the legislature to address inadequate pay for public defenders, expressed concern about leaving the issue entirely up to the legislature.

"In response to our decision … the General Assembly has done exactly nothing," Wecht said. "Why aren't we just on a complete false hope?"