The Pennsylvania item in today's News Scan illustrates one problem with Pennsylvania's death penalty. That state has the "single juror veto" rule under which a single juror can effectively give the defendant a life sentence despite the contrary opinion of the other 11. Better methods include those in California, where the jury must be unanimous one way or the other, and Florida, where a nonunanimous jury can make a recommendation to the judge. The larger problem, though, is the interminable appeals process. Departing Governor Ed Rendell has this letter to the legislature. It is surprising to me that the head of the state government can be so keenly aware of the problem yet so utterly clueless that the solutions are well known and require only the political will to enact. The time lapse between conviction and execution generally results from capital defendants' efforts to exhaust every legal challenge to their conviction and death sentence that is available to them under state and federal law. That is the way it should be; every meritorious issue must be raised and addressed. The problem is that one cannot say that an issue is meritorious until it is addressed. To have any finality in the system, we have to have a mechanism to cut off some categories of claims at some point, even though we are aware that the few such issues might be considered "meritorious" in the abstract The obvious and just place to draw the line is between substantial claims of actual we-got-the-wrong-guy innocence and all the others. The bulk of capital litigation goes into the "all the others" category. Claims that go only to the sentencer's discretionary choice of penalty within the legal range for the offense simply do not need to be considered in any review after the first. If we have the right guy and he receives a penalty within the legal range for the crime he chose to commit, that is not a miscarriage of justice. While Congress and this body have enacted laws to help curtail and streamline the appellate process in capital cases, the length of time between the imposition of the sentence and actual execution, if it occurs at all, can be decades and is still too long. Victims' survivors are frustrated; the police are frustrated. The lengthy appeals process not only costs taxpayers substantial money, but it also robs the victims' families and friends of peace of mind, and they get no closure. Yes, all true. I would ask you to explore whether there can be any additional steps taken that allow for a thorough and exhaustive review of the facts and the law in each case, but that would significantly shorten the time between offense and carrying out the sentence. Of course there is. To be continued . . . .
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