The news rolled in earlier this month, for the 460th time since 1985: A Pennsylvania death row inmate had received an execution notice or warrant. This time it was for Philadelphia murderer Omar Sharif Cash, and like 457 men who’ve come before him he will almost certainly never be put to death.
Cash could get a reprieve for several reasons, the best-known likely being Gov. Tom Wolf’s death penalty moratorium. Should any death penalty case go the distance, Wolf has said he will halt the execution. But long before it comes to that, the execution notice signed for Cash will likely be stayed, amounting to what one of the country’s foremost death penalty opponents considers a waste of time. And since 1995, 350-plus other notices and warrants could be classified in the same category.
“They’re legally premature,” said Robert Dunham, executive director of the Death Penalty Information Center, “meaning they’re not worth the paper they’re written on.”
Pennsylvania elected officials created the execution warrant system still used today in 1995, during the beginning of Gov. Tom Ridge’s first term. At the time, he and many legislators — Republican and Democrat — were pushing a tough-on-crime stance. Ridge even held a special session focused on crime-related legislation. The bill, proposed by Rep. Ron Marsico (R-105th), mandated the governor sign an execution warrant for a death row inmate by at least 90 days after the Pennsylvania Supreme Court’s decision of the inmate’s direct appeal. If the governor didn’t sign the warrant, then the Department of Corrections would have to issue a notice of execution within 30 days of the previous deadline.
“Despite the law, there was no death penalty in Pennsylvania,” Ridge said in 1995. “When you kill in cold blood, you deserve to pay the highest penalty.”
The thought behind the bill was inmates had no motivation for pushing through with the appeals process because governors had not been signing warrants in a timely manner. An execution warrant or notice would get the inmate continuing on with the appeals.
Any inmate sentenced to death gets three avenues of appeal: The direct appeal, which consists of matter related entirely to the criminal trial. The indirect appeal, which is also run through Pennsylvania’s courts and formally known as the Post Conviction Relief Act appeal. And then habeas corpus, a federal appeal.
But by November 1995, a few months after the bill went into effect, an important change had been made in Pennsylvania law. Anyone applying for the Post Conviction Relief Act appeal had to do so within one year after failure of the direct appeal, which was already under a time constraint. The clock that supporters of the warrants bill said needed to be started was now being started by another law.
And yet the execution warrants and notices were still signed in a timeframe when sometimes all three avenues of appeal were on the table and most of the time the indirect appeal and habeas corpus appeals were left. Almost every time, the courts responded by staying the warrants because the inmate had those appeals.
This is why Dunham considers the warrants legally premature. By signing the warrants and the notices in the middle of the appeals process the court has basically no choice but to offer a stay so long as the appeal is legitimate. As Dunham says, “they are bound to be stopped.”
“There have been well over 350 occasions,” he said, “in which courts have had to unnecessarily take the time to consider stays of execution that the law would require them to grant.”
Between 1995 and 2014, just over 350 execution warrants were signed by governors. Of that total, all but four were signed when the prisoner had at least the federal habeas corpus appeal left. Most of the warrants were signed when the indirect appeal and habeas corpus appeal remained.
“If you’re going to have an automatic warrant,” Dunham said, “the only place that serves a legitimate purpose would be after the habeas corpus process is done or (the inmate has) failed to enact according to the deadlines.”
The warrants and notices just require a signature from the governor or the head of the corrections department. That’s not a legitimate strain on time or resources. But once signed, a process begins that requires attorneys and the courts to act, taking time away from employees of the AG’s office or local DA’s offices and judges.
When an execution notice was signed for inmate Patrick Haney earlier this year, for instance, the notice was challenged to the Pennsylvania Western District Court. Seventeen court filings later, the Court granted a stay at least until Haney’s indirect appeal process had been exhausted.
“You’re talking about the time for prosecutors and for defense lawyers, and the time for court personnel in filing the petitions, and court personnel in arranging for hearings,” Dunham said. “You’re talking about the judges’ time. Some would say they’re salaried. But that misses the point. Those people could be doing other things.”
Marsico declined an interview request about the subject but passed the message onto a legal counsel for the House Judiciary Committee, Mike Kane, who briefly discussed it. He said, “The bottom line of it all is there’s a point where no appeal is quote ‘pending.’ That is my understanding of when these warrants get issued.” A higher-up in the AG’s office whose focuses include the death penalty did not respond to a request for comment.
State Sen. Daylin Leach (D-17), who wants the death penalty abolished, admits of this warrants topic, “it’s just never come up.” Leach is on the state committee that was formed to study the death penalty during Gov. Tom Corbett’s tenure. About three years after its report was due, it has been recently finalized and will soon be disseminated, according to committee member Gary Zajac (he declined to provide a specific date). The committee has been more focused on whether it is applied fairly, rather than the process by which it is applied.
So the topic of execution notices and warrants is hardly on anyone’s radar, save for Dunham. He’s crunched data and given presentations on it over the years and can rattle off dozens of statistics. He can’t understand why these warrants keep coming, prematurely, and the court costs must follow.