Received 7/15/2019 7:33:10 PM Supreme Court Eastern District

IN THE
SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
103 EM 2018

KEVIN MARINELLI,
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA,
Respondent
COMMONWEALTH’S BRIEF AS RESPONDENT
On petition for King’s Bench jurisdiction regarding pending application under the
Post Conviction Relief Act (PCRA) before the Northumberland County Court of
Common Pleas at CP-49-CR-0000451-1994.

Office of Attorney General
1600 Arch Street
Philadelphia, PA 19103
(484) 390-5143
hburns@attorneygeneral.gov

JOSH SHAPIRO
Attorney General
Commonwealth of Pennsylvania
MICHELLE A. HENRY
First Deputy Attorney General
JENNIFER C. SELBER
Executive Deputy Attorney General
Criminal Law Division
JAMES BARKER
Chief Deputy Attorney General
Appeals & Legal Services Section
HUGH J. BURNS JR.
Senior Appellate Counsel

 TABLE OF CONTENTS
Counter Statement of Question Presented

1

Counter Statement of the Case

2

Summary of Argument

4

Argument
Because Marinelli raises policy questions that are in the legislative domain,
not constitutional issues for the judiciary, review should be denied.
4
1. King’s Bench review requirements have not been met.

6

2. There is no constitutional basis for the petition.

10

3. Marinelli’s claims are legislative.

15

3(a). Racial discrimination claims.

18

3(b). Unreliability claims.

21

3(c). Geographic claims.

26

3(d). Mental health issues.

28

3(e). Indigence.

29

3(f). Penological justification.

31

Conclusion

34

i

 TABLE OF CITATIONS
Atkins v. Virginia, 536 U.S. 304 (2002)............................................................ 28, 33
Basehore v. Hampden Indus. Dev. Auth., 248 A.2d 212 (Pa. 1968) ............ 5, 16, 20
Benson ex rel. Patterson v. Patterson, 830 A.2d 966 (Pa. 2003) ............................14
Commonwealth ex rel. Elkin v. Moir, 49 A. 351 (Pa. 1901) .....................................5
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) ....................................................11
Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ..................................................33
Commonwealth v. Brown, 196 A.3d 130 (Pa. 2018) ...............................................22
Commonwealth v. Crews, 552 Pa. 659, 717 A.2d 487 (1998).................................16
Commonwealth v. Descardes, 136 A.3d 493 (Pa. 2016) ...........................................7
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) ...........................................11
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) ....................................................11
Commonwealth v. Jermyn, 652 A.2d 821 (Pa. 1995) ..............................................29
Commonwealth v. Laird, 726 A.2d 346 (Pa. 1999) .................................................23
Commonwealth v. Le, No. 756 CAP, 2019 WL 2306709 n.17 (Pa. May 31, 2019)
...............................................................................................................................13
Commonwealth v. Marinelli, 100 A.3d 585 (Pa. 2014) .............................................3
Commonwealth v. Marinelli, 690 A.2d 203 (Pa. 1997) ............................................3
Commonwealth v. Marinelli, 910 A.2d 672 (Pa. 2006) .............................................3
Commonwealth v. Martin, 5 A.3d 177 (Pa. 2010) ............................................ 16, 30
ii

 Commonwealth v. Means, 773 A.2d 143 (Pa. 2001) ...............................................11
Commonwealth v. Morris, 771 A.2d 721 (2001) .......................................................7
Commonwealth v. Norton, 201 A.3d 112 (Pa. 2019)...............................................22
Commonwealth v. Olivo, 127 A.3d 769 (Pa. 2015) .................................................14
Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790 (2007) ....................................16
Commonwealth v. Sutley, 378 A.2d 780 (Pa. 1977) ..................................................8
Commonwealth v. Williams, 950 A.2d 294 (Pa. 2008) ............................................30
Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982) .......................... 10, 12, 13
Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263 (3d Cir. 2016) ...........21
Ford v. Wainwright, 477 U.S. 399 (1986) ...............................................................28
Friends of Pennsylvania Leadership Charter Sch. v. Chester Cty. Bd. of
Assessment Appeals, 101 A.3d 66 (Pa. 2014).........................................................8
Glossip v. Gross, 135 S. Ct. 2726 (2015) ................................................................11
Grimaud v. Commonwealth, 865 A.2d 835 (Pa. 2005) ...........................................14
Hall v. Pennsylvania Board of Probation and Parole, 851 A.2d 859 (Pa. 2004) ...23
Harrington v. Richter, 562 U.S. 86 (2011) ..............................................................23
In re Bruno, 101 A.3d 635 (Pa. 2014) .......................................................................6
In re Commonwealth's Motion to Appoint Counsel Against or Directed to Def.
Ass'n of Philadelphia, 790 F.3d 457 (3d Cir. 2015) .............................................25
In re King Properties, 635 A.2d 128 (Pa. 1993)......................................................10
iii

 In re Stevenson, 40 A.3d 1212 (Pa. 2012) ...............................................................23
In re William L., 383 A.2d 1228 (Pa. 1978) ............................................................14
Jackson v. Hendrick, 503 A.2d 400 (Pa. 1986) .......................................................10
Kyles v. Whitley, 514 U.S. 419 (1995) .....................................................................25
Lance v. Wyeth, 85 A.3d 434 (Pa. 2014) .................................................................15
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). ..........................................................23
Naylor v. Twp. of Hellam, 773 A.2d 770 (Pa. 2001) ...............................................15
O'Rourke v. Commonwealth, 778 A.2d 1194 (Pa. 2001).........................................17
Parker v. Children’s Hospital of Philadelphia, 394 A.2d 932 (Pa. 1978) ....... 14, 15
Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655 (Pa. 2005) ......16
Program Admin. Servs., Inc. v. Dauphin Cty. Gen. Auth., 928 A.2d 1013
(Pa. 2007) .................................................................................................................14
Roper v. Simmons, 543 U.S. 551 (2005) ..................................................................33
Shoul v. Commonwealth, Dep't of Transportation, Bureau of Driver Licensing,
173 A.3d 669 (Pa. 2017) .........................................................................................8
State v. Gregory, 427 P.3d 621 (Wash. 2018) .........................................................19
Sweeney v. Tucker, 375 A.2d 698 (Pa. 1977) ..........................................................14
United States v. Cronic, 466 U.S. 648 (1984) .........................................................30
Statutes:

iv

 28 U.S.C. § 2254(d) .................................................................................................23
42 Pa.C.S. § 726 .........................................................................................................6
42 Pa.C.S. § 9711(e)(2)............................................................................................28
Pa. Const Art. I, § 13............................................................................. 10, 11, 12, 13
Pa. Const. Sched. Art. V § 1 ......................................................................................6

Other Authorities:
The Death Penalty As Incapacitation,
104 Va. L. Rev. 1123 (2018) ................................................................................24
The Myth of Innocence,
95 J. Crim. L. & Criminology 501 (Winter 2005) ..................................................9

v

 COUNTER STATEMENT OF QUESTION PRESENTED
Is King’s Bench review appropriate where the petitioner relies on policy
objections in the domain of the legislative branch, not constitutional issues?

1

 COUNTER STATEMENT OF THE CASE
Conrad Dumchock was murdered on April 26, 1994, by petitioner Kevin
Marinelli and his accomplices when they invaded his home. During Marinelli’s
third, untimely PCRA petition challenging his murder conviction and death
sentence, he filed the instant petition for King’s Bench review. He argues that this
Court should abolish the death penalty.1 The reasons he offers for this unprecedented
act, however, are not claims of legal error. They raise factually unsettled matters of
policy entrusted to the legislative branch, not constitutional issues to be resolved by
courts. Because his petition does not meet the requirements of King’s Bench review,
and indeed, does not raise legal claims properly understood, it should be denied in
deference to the legislature.
Marinelli, his brother Mark, and accomplice Thomas Kirchoff knew that Mr.
Dumchock owned stereo equipment. They decided to take it. They broke into Mr.
Dumchock’s house, and Marinelli hit him in the face with a gun. They responded to
Mr. Dumchock’s pleas to take what they wanted and leave him alone by continuing
to beat him. As Marinelli’s confederates departed with stolen items, Marinelli stayed
behind in order to shoot Mr. Dumchock: once in the eye, and once between the eyes.

1

Marinelli does not say he is only seeking systemic improvements. As shown below,
moreover, his claims taken as a whole point to permanent abandonment of capital
punishment. A radical departure from historically established policy of that nature
calls for legislative, not judicial, consideration.
2

 Later, the trio returned in order to steal Mr. Dumchock’s motorcycle, but they could
not get it started and abandoned it. The victim’s body was found the next day, with
his dog nearby, shaking.
On May 25, 1994, Marinelli’s girlfriend turned over to police items that
Marinelli had stolen from Mr. Dumchock. A witness also told the police that
Marinelli had bragged about murdering the victim. When questioned, Marinelli gave
them an oral and taped confession.
On May 18, 1995, a Northumberland County jury found Marinelli guilty of
first degree murder, and after a further hearing sentenced him to death. He appealed.
This Court affirmed. Commonwealth v. Marinelli, 690 A.2d 203, 208 (Pa. 1997). He
filed a timely PCRA petition. It was denied. He appealed and this Court again
affirmed. Commonwealth v. Marinelli, 810 A.2d 1257 (Pa. 2002) (remanding for
further proceedings); Commonwealth v. Marinelli, 910 A.2d 672 (Pa. 2006) (OAJC).
He filed a second, untimely PCRA petition. It was dismissed as untimely and this
Court affirmed, per curiam. Commonwealth v. Marinelli, 100 A.3d 585 (Pa. 2014).
He also pursued a federal habeas corpus petition, which remains open pending the
disposition of his pending third, untimely PCRA petition, filed on April 25, 2013.
He filed the instant King’s Bench petition on August 24, 2018. This Court
subsequently ordered briefing.

3

 SUMMARY OF ARGUMENT
King’s Bench review is inappropriate. Far from the record clearly establishing
his rights, Marinelli’s legal position depends on this Court agreeing to reject its own
precedent. Nor does his claim have any basis in record fact—his “evidence” is the
JSGC report, which is a legislative proposal. The findings of that report have never
been tested, as could occur in litigation or in a legislative forum. An appellate court
cannot find facts. Nor can the judicial branch set general sentencing policy; that is a
legislative function. Marinelli’s petition confuses these governmental functions. It
does not meet the requirements for King’s Bench review.
Nor, indeed, does the petition meet the requirements even for judicial review
generally. Marinelli’s supposedly unprecedented constitutional theory, which he
presents as the “bedrock” foundation of his petition, has been repeatedly and
consistently rejected by this Court. Short of amending the constitution, there is no
legal foundation for Marinelli’s petition.
What remains is a series of policy issues and recommendations derived from
the JSCG report, which, again, is a legislative document written for the legislative
process. The questions the report raises are important, and should be thoroughly
considered and resolved, by the General Assembly.

4

 ARGUMENT
Because Marinelli raises policy questions that are in the legislative
domain, not constitutional issues for the judiciary, review should be
denied.
The General Assembly is addressing myriad concerns—raised by the same
legislative report on which Marinelli relies—regarding capital punishment. It is the
proper role of that body to determine whether the people want the death penalty to
continue to be an option for jurors, and to decide what changes may be needed going
forward. In our constitutional system it is the legislature which best discerns and
represents the will of a sovereign people.2 The issues are serious—the concerns
raised in the JSGC report are in many cases valid ones—but they are quintessentially
legislative. This Court should therefore decline review in deference to that branch of
government.

“Whatever the people have not, by their constitution, restrained themselves from
doing, they through their representatives in the legislature may do. This latter body
represents their will, just as completely as a constitutional convention in all matters
left open by the written constitution.” Commonwealth ex rel. Elkin v. Moir, 49 A.
351, 358 (Pa. 1901); see Basehore v. Hampden Indus. Dev. Auth., 248 A.2d 212, 217
(Pa. 1968) (“Generally, the legislature, which is more responsive to the people and
has more adequate facilities for gathering and assembling the requisite data, is in a
better position to evaluate and determine public purpose than are the courts,
especially at the appellate level”). It is also notable that the executive branch has
made ongoing adjustments. The governor has imposed a moratorium on executions
in order to facilitate legislative action; and local prosecutors have become more
selective, reserving capital punishment for only the worst of murderers.
2

5

 1. King’s Bench review requirements have not been met.
King’s Bench jurisdiction is an exercise by this Court of the “supreme judicial
power” conferred by the Constitution. Pa. Const. Sched. Art. V § 1; In re Bruno, 101
A.3d 635, 665 (Pa. 2014).3 Yet such review must still take place within the limits of
the judicial branch. Regardless of form, judicial review can only reach specific, legal
errors in individual cases. It cannot decide broad questions of policy as does the
legislature. Marinelli wants this Court to abolish the death penalty; but, regardless
of one’s view on that fundamental question, it is an inherently legislative one.
King’s Bench review, moreover, has specific requirements that Marinelli has
not met. This Court has explained that its discretionary authority to assume
jurisdiction is available only “when the issue requires timely intervention by the
court of last resort of the Commonwealth and is one of public importance.” Id., 101
A.3d at 670-671 (citations omitted). Yet, even “the presence of an issue of immediate
public importance is not alone sufficient .... [W]e will not invoke extraordinary

The provisions of the schedule “have the same force and effect as those contained
in the numbered sections of [Article V].” Pa. Const. Sched., Preamble; Bruno, 101
A.3d at 665 n.17. Here, although the discretionary considerations are essentially the
same, because there is a matter pending before a lower court the proper avenue for
the kind of review Marinelli seeks is extraordinary jurisdiction, 42 Pa.C.S. § 726,
not King’s Bench jurisdiction. This brief will nevertheless use the latter term because
that is what the petitioner has requested.
3

6

 jurisdiction unless the record clearly demonstrates [the] petitioner's rights.”
Commonwealth v. Morris, 771 A.2d 721, 731 (2001) (citations omitted).
Marinelli has not accomplished even the first step of establishing that King’s
Bench review is available to him. His case is currently pending in a lower court
where he is raising the same, purportedly constitutional, claim.4 No execution has
been scheduled. To the contrary, a gubernatorial moratorium on executions is in
effect, for the specific purpose of allowing the General Assembly to consider and
act upon the Joint State Government Commission (JSGC) report Marinelli cites.
The need for “timely intervention by the court of last resort” has not even been
addressed, much less established, by Marinelli—he merely says it would be a
“benefit” (petitioner’s brief, 4). He does not say the lower court cannot cope with
his claim; he merely says review by this Court will “obviate the need” for that court
to decide it (id., 5). Marinelli says King’s Bench review will save “resources” and
“money” and address what he describes as “waning public confidence” in “the
capital punishment system” (id.). These are not reasons for King’s Bench review.
Systemic improvement of statutory law is a legislative task.

4

See Commonwealth v. Descardes, 136 A.3d 493, 405, 503 (Pa. 2016) (reaffirming
the Court’s “repeatedly and uniformly” stated holding that “where a petitioner’s
claim is cognizable under the PCRA, the PCRA is the only method of obtaining
collateral review”).
7

 Marinelli’s petition is ill suited to King’s Bench review precisely because he
confuses judicial and legislative powers. He cites Commonwealth v. Sutley, 378 A.2d
780 (Pa. 1977), a case that barred legislative intrusion on individual judgments
(petitioner’s brief, 4); accord Friends of Pennsylvania Leadership Charter Sch. v.
Chester Cty. Bd. of Assessment Appeals, 101 A.3d 66, 73 (Pa. 2014) (“final
judgments of the judicial branch are not to be interfered with by legislative fiat”).
But in fact, his argument is the mirror image of that exact error. Just as the legislature
cannot alter individual judgments, courts cannot make global policy when it comes
to defining criminal penalties: that is the realm of legislation. “[T]he question of
whether a particular punishment is appropriate to a particular crime belongs in the
first instance to the legislature.” Shoul v. Commonwealth, Dep't of Transportation,
Bureau of Driver Licensing, 173 A.3d 669, 686 (Pa. 2017) (brackets, citations, and
internal quotation marks omitted).
Marinelli does not claim that the record clearly demonstrates his rights. To the
contrary, he seeks to establish an unprecedented new constitutional ruling, based on
purported new facts presented in the JSGC report. The report raises important policy
issues, but its factual component has never been tested in an adversarial setting, as
would occur before a fact-finding tribunal or (more appropriately here) a legislative
committee. The report represents the policy views of four Senators, expressed for
the benefit of the legislature. These views are entitled to respect, but they do not
8

 constitute a legal “record” for the purpose of litigating a defendant’s claims in King’s
Bench review.
His own contentions thus negate any possibility that the record could clearly
demonstrate Marinelli’s rights. And while he says he raises an issue of “immense
public importance” (petitioner’s brief, 4), not every issue of importance, even
“immense” importance, is for that reason reviewable in King’s Bench. Indeed, not
every important issue is necessarily reviewable by a court.
King’s Bench review requires the supporting facts and governing law to be
clear. Here they clearly are not. Marinelli says this Court has never previously
analyzed his kind of constitutional argument (petitioner’s brief, 18). That would only
confirm that there is no existing legal support for his petition, if it were true; but in
fact, this Court has repeatedly considered and rejected his legal theory. Marinelli
says “twice as many death row prisoners have been exonerated as have been
executed” (petitioner’s brief, 5). While that is disputable (it equates “granted a new
trial” with “exonerated”),5 it is not a claim of legal error; and because Marinelli
bragged about the murder and confessed committing it, he is a poor candidate for

5

See Joshua Marquis, Innocence in Capital Sentencing: The Myth of Innocence, 95
J. Crim. L. & Criminology 501, 508 (Winter 2005) (Concluding that many instances
of purported exoneration refer to successful claims of trial or sentencing error rather
than a legal ruling that the claimant was factually innocent).
9

 exoneration. That other capital cases have been overturned for legal error does not
prove there is legal error here. If Marinelli’s argument is that capital punishment
should be abolished because legal error is possible, or even likely (not necessarily in
his own case), that is a policy dispute to be heard by the legislative branch.
2. There is no constitutional basis for the petition.
The “bedrock” of his petition (petitioner’s brief, 17) is Marinelli’s claim that
the wording of the state constitution supports his policy arguments. That is so, he
says, because instead of “cruel and unusual” punishments as in the Eighth
Amendment, the state constitution bars “cruel” punishments. He adds that this Court
has never “previously analyzed” this semiotic difference (id., 18).
In fact, the opposite is true. In Commonwealth v. Zettlemoyer, 454 A.2d 937
(Pa. 1982), this Court rejected the argument that the “cruel” clause of Article I, § 13
provides “broader protection than that guaranteed by the ‘cruel and unusual
punishment’ clause of the United States Constitution.” It instead held “that the rights
secured by the Pennsylvania prohibition against ‘cruel punishments’ are coextensive with those secured by the Eighth and Fourteenth Amendments.” 454 A.2d
at 967.6 Since the United States Supreme Court has upheld the death penalty under

Accord Jackson v. Hendrick, 503 A.2d 400, 404 n.10 (Pa. 1986) (“This Court has
held that Article I, section 13 of the Pennsylvania Constitution is coextensive with
the Eighth Amendment”); In re King Properties, 635 A.2d 128, 131 (Pa. 1993) (“the
6

10

 the Eighth Amendment, e.g., Glossip v. Gross, 135 S. Ct. 2726 (2015), there is no
legal basis for Marinelli’s claim, raised exclusively under the state constitution,
because this Court holds that the two constitutions are identical on this point.
As recently as 2013, in a unanimous decision, this Court continued to
recognize that, in the death penalty context, it has “held Article I, Section 13 to be
coextensive with the Eighth Amendment[.]” Commonwealth v. Batts, 66 A.3d 286,
298 n.5 (Pa. 2013). And it again rejected the notion, now proposed as new by
Marinelli, that there is a critical difference between “cruel” and “cruel and unusual.”
Indeed, this unanimous Court found that textual analysis to have “little force”
because (inter alia) the term “cruel and unusual” is “essentially, an amalgam.” 66
A.3d at 298 (citation omitted).
The contention that this Court should conduct an Edmunds analysis7
(petitioner’s brief, 19) likewise overlooks Zettlemoyer. There, this Court explored

rights secured by the Pennsylvania prohibition against ‘cruel punishments' are coextensive with those secured by the Eighth and Fourteenth Amendments).
7

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), set forth a test for deciding
whether the state constitution affords heightened protections for individual rights.
But see Commonwealth v. Gary, 91 A.3d 102, 142 (Pa. 2014) (Todd, J., joined by
Baer, J., dissenting) (finding Edmunds to be merely “a guide for litigants” rather than
a necessary mode of constitutional analysis). Marinelli places great emphasis on the
fact that an Edmunds analysis took place 18 years ago in Commonwealth v. Means,
773 A.2d 143 (Pa. 2001) (OAJC). Yet none of the opinions in that plurality ruling—
not even those in dissent—concluded that the state constitution affords broader
11

 the text and history of Article I, § 13 and determined that the framers considered
capital punishment constitutional. The constitutional analysis did take place, but it
negates Marinelli’s argument.
Observing that “legislatures, not courts, are constituted to respond to the will
and consequently the moral values of the people,” this Court found in Zettlemoyer
that the General Assembly “since its inception” had “consistently and continually
expressed its conviction that the death penalty is, for at least some intentional
killings, an appropriate and necessary form of punishment.” Even under the new
“humane laws” of William Penn, this Court said, “capital punishment was accepted
as a necessary and appropriate punishment for willful and premeditated killings,”
and—this Court further noted—“this Commonwealth has always operated under
some legislative enactment setting the penalty for at least some first degree murders
at death[.]” 454 A.2d at 968-969 (citations omitted).8

rights in capital cases. As part of his Edmunds argument Marinelli also identifies just
one state (Washington) that has nullified capital punishment under its constitution
(petitioner’s brief, 35-36) (In the other state he cites, Connecticut, the penalty was
abolished by the legislature). But he does not explain what, if anything, in that case
suggests that Pennsylvania’s constitution and history are similar to that of the state
of Washington. Nor does he discuss Article I, § 2, which establishes that our state
government exists to secure the “safety” of the people.
Marinelli’s new, supposedly constitutional, idea is that in the distant past the death
penalty was tolerated out of “necessity” (petitioner’s brief, 22), in the sense that there
was nothing to be done with violent criminals except execute them. Yet, according
to Marinelli’s own argument, over 200 years ago in 1790 Justice Bradford
8

12

 In short, Marinelli’s constitional theory is not new, but rather has been rejected
by longstanding precedent of this Court. He does not acknowledge that precedent,
let alone suggest that it has proven to be erroneous. See Commonwealth v. Le, No.
756 CAP, 2019 WL 2306709, at *10 n.17 (Pa. May 31, 2019) (explaining the binding
effect of stare decisis, especially where moving party has not acknowledged the
controlling precedent).
His “bedrock” contention based on the language of Article I, § 13—“cruel”
instead of “cruel and unusual”—is critical to the question of whether Marinelli’s
claims should be reviewed by the General Assembly as opposed to the judiciary.
This tribunal decides constitutional questions, not policy ones. But what Marinelli
puts forward as the constitutional foundation for judicial review is contrary to what
this Court has already decided.
Because its foundation is sand, the edifice of the King’s Bench petition
collapses. Without the necessary constitutional grounding for Marinelli’s policy

recommended abolition of capital punishment for all crimes “except first degree
murder” (id.). What this demonstrates is that it was not “necessity” in the sense
Marinelli assumes that justified capital punishment—something other than death
was obviously available for “all crimes” other than first degree murder, even in
1790. Rather, capital punishment for first degree murder was understood to be
“necessary” in the sense that lesser penalties are disproportionate to deliberate
murder. The principle that punishment should be proportionate to the offense is not
something that changes over time. Nor does it suggest a constitutional difference
between “cruel” versus “cruel and unusual.”
13

 arguments, there is no legal avenue for this Court’s review. The petition is simply a
series of legislative recommendations, based on a legislative report, written by
legislators for the legislature. Indeed, such reports constitute a decidedly legislative
practice. “A challenge to the Legislature’s exercise of a power which the
Constitution commits exclusively to the Legislature presents a non-justiciable
political question.” Grimaud v. Commonwealth, 865 A.2d 835, 847 (Pa. 2005)
(internal quotation marks omitted); Sweeney v. Tucker, 375 A.2d 698, 705 (Pa.
1977). This Court should so rule.9

9

Even if there were some basis in law for the petition (though there is none),
moreover, legislative acts are not subject to revision on the basis of novel
constitutional theories. Rather, “[e]very presumption is in favor of the
constitutionality of legislative acts, and statutes are to be construed whenever
possible to uphold their constitutionality.” In re William L., 383 A.2d 1228, 1231
(Pa. 1978) (citation omitted). A legislative enactment is valid unless it “clearly,
plainly, and palpably violates the constitution.” Commonwealth v. Olivo, 127 A.3d
769, 777 (Pa. 2015). Here again, Marinelli’s policy arguments are just that—they
should be addressed to the General Assembly. Program Admin. Servs., Inc. v.
Dauphin Cty. Gen. Auth., 928 A.2d 1013, 1017-1018 (Pa. 2007) (“courts should not
lose sight of the respective roles of the General Assembly and the courts … it is the
Legislature’s chief function to set public policy”); Benson ex rel. Patterson v.
Patterson, 830 A.2d 966, 968 (Pa. 2003) (“it is not the role of the judiciary to
legislate changes the legislature has declined to adopt”); Parker v. Children’s
Hospital of Philadelphia, 394 A.2d 932, 937 (Pa. 1978) (a court does not “substitute
its judgment as to public policy for that of the legislature”).
14

 3. Marinelli’s claims are legislative.
Marinelli’s policy arguments criticizing the death penalty as currently
administered are not precisely his own. They originate in the JSGC report (Joint
State Government Commission; Capital punishment in Pennsylvania; The report of
the task force and advisory committee). The report is of four state Senators,
supported by an advisory committee, although it acknowledges that its conclusions
do not “necessarily reflect unanimity among the advisory committee members on
each individual policy or legislative recommendation” (JSCG report, n.2). The
report is directed, as are all JSGC reports, “to the General Assembly” (id., ii). It
concerns matters of analysis and opinion, along with factual assertions, value
judgments, and conclusions of the kind typically addressed by the General
Assembly.
This Court has recognized that “the adjudicatory process does not translate
readily into the field of broad-scale policymaking. … [U]nlike the legislative
process, the adjudicatory process is structured to cast a narrow focus” on matters
arising from litigation, presented “in a highly directed fashion.” In contrast, “the
Legislature possesses superior policymaking tools” and “is better suited to examine
… significant policy issues.” Lance v. Wyeth, 85 A.3d 434, 454 (Pa. 2014) (brackets,
internal quotation marks and citation omitted); Naylor v. Twp. of Hellam, 773 A.2d
770, 777 (Pa. 2001). In particular, the legislature “has more adequate facilities for
15

 gathering and assembling the requisite data,” and “is in a better position to evaluate
and determine public purpose than are the courts, especially at the appellate level.”
Basehore v. Hampden Indus. Dev. Auth., 433 Pa. 40, 49, 248 A.2d 212, 217 (1968).
That Marinelli’s arguments are pure policy objections is confirmed by his
consistent failure to contend that he, himself, was aggrieved by them in his own case.
He does not, for example, claim that he suffered from racial prejudice (he is a white
man, as was his victim), or that he was prejudiced by personal poverty, or that he
was prejudiced by a review process in his case that was systemically flawed. See,
e.g., Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790 (2007) (appellant provided
no “evidence to show that the allegedly pervasive discriminatory atmosphere
affected his individual case”); Commonwealth v. Martin, 5 A.3d 177, 193 (Pa. 2010)
(rejecting putative constitutional claim of inadequate standards and financial support
for appointed capital counsel given appellant’s failure to show “structural defects
that tainted the entire mechanism of his trial and sentencing”); Commonwealth v.
Crews, 552 Pa. 659, 663-664, 717 A.2d 487 (1998) (same; claim based on statistical
data purporting to show that the death penalty is predominately imposed on poor
persons); see also Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655,
659 (Pa. 2005) (“judicial intervention is appropriate only when the underlying
controversy is real and concrete”). Because it does not directly concern claims in his

16

 own case, Marinelli’s petition is an abstraction. It does not raise any legally
justiciable issue.
Another significant barrier to King’s Bench review—which is, of course,
appellate review—is the absence of settled facts. No accurate legal or statistical
analysis is possible where the underlying facts are subject to dispute. Fact finding
requires adversarial testing, including testimony from both fact witnesses and
experts with competing points of view. That can occur in a fact-finding court, or—
here, more correctly—in a legislative setting. It cannot occur at all in an appellate
court. “[I]t is not the function of the appellate court to find facts[.]” O'Rourke v.
Commonwealth, 778 A.2d 1194, 1199 n.6 (Pa. 2001).
Because this Court is not the appropriate forum for raising, much less settling,
issues of fact, the Commonwealth will not attempt to argue such issues here. For
illustrative purposes, it will instead point out some important areas in which
Marinelli’s policy claims, if not necessarily wrong, are unsettled, and so unsuitable
for review in this forum.

17

 3(a). Racial discrimination claims.
Racial discrimination cannot be tolerated in any aspect of the justice system.
The Kramer Report,10 on which the JSGC report relies, did not identify specific
occurrences of racial discrimination in Pennsylvania’s capital sentencing system.
The Kramer Report was incorporated into the Senate Resolution that created the
JSGC, which delayed its findings in order to implement this most comprehensive,
timely, and scientific study on the subject in this state’s 300-year history. The
Kramer Report’s conclusion, that capital punishment in Pennsylvania is not
disproportionate or targeted against defendants of color,11 does not alter the fact that

10

Capital Punishment Decisions In Pennsylvania: 2000-2010 Implications for
Racial, Ethnic and Other Disparate Impacts; Report to the Pennsylvania Interbranch
Commission for Gender, Racial and Ethnic Fairness, September 2017; John Kramer,
Ph.D., Penn State Department of Sociology & Criminology; Jeffrey Ulmer, Ph.D.,
Penn State Department of Sociology & Criminology; Gary Zajac, Ph.D., Penn State
Justice Center for Research (herein, the Kramer Report).
11

The findings of the Kramer Report include that:

• There is no pattern of disparity to the disadvantage of Black or Hispanic defendants
in prosecutorial decisions to seek the death penalty.
• There is no pattern of disparity to the disadvantage of Black defendants with White
victims in prosecutorial decisions to seek the death penalty.
• Cases with Black defendants and White victims were 10% less likely to result in a
prosecution decision to seek the death penalty.
• Aggravating circumstances were filed in a larger percentage of cases involving
White defendants than Black defendants.
• Legally relevant factors are likely the primary factors that shape the interpretations
of blameworthiness and dangerousness that drive punishment decisions.
18

 racial discrimination remains a matter of utmost importance. Indeed, the report
confirms that this is a vital and complex societal problem, and thus, one properly
committed to legislative action.
The situation in Pennsylvania contrasts sharply with that in State v. Gregory,
427 P.3d 621, 633 (Wash. 2018), where that court found that, in the state of
Washington, a Black defendant was “between 3.5 and 4.6 times as likely” as a nonBlack defendant to be sentenced to death. The Kramer report does not point to such
findings in this state. It disagrees with earlier reports, such as those by Professor
Baldus, who was misled by incomplete data (Kramer Report, 118, 122). There is
much more work to do in order to combat racial discrimination in Pennsylvania, but
State v. Gregory represents unique factual findings which render that case
inapposite. Again, this is an area of legislative concern.
Marinelli—who, as already noted, is a white man who murdered a white
victim—argues that the Kramer Report indicates “evidence of race-of-victim
effects” (petitioner’s brief, 10). By using the term “race … effects” Marinelli implies
“race discrimination effects” (albeit ones that cannot have prejudiced him); but the
Kramer Report states that “Black defendants with Black victims and Black
defendants with White victims are less likely to receive the death penalty than any
defendants with White victims, and White defendants with White victims” (Kramer

19

 Report, 124 n.33). The report, therefore, indicates that it did not find the racially
discriminatory victim effect on which Marinelli bases his argument.12
None of this suggests that the fight against racial discrimination in the justice
system is by any means over. The JSGC report is a starting point in this regard. The
General Assembly, as this Court has recognized, is well positioned to pursue a broad
and searching inquiry that courts are not similarly able to pursue. Racial
discrimination is a vitally important matter that warrants such legislative priority.

12

The Report further stated,
[W]e do not find an overall pattern of disparity to the disadvantage of Black
or Hispanic defendants in the decision to seek the death penalty, the decision
to retract the death penalty once filed, or the decision to impose the death
penalty. Furthermore, we do not find disparity in these decisions to the
disadvantage of defendants in cases with Black defendants and White victims.
In fact, in the overall model (Table 23), cases with Black defendants and
White victims were 10% less likely than other types of cases to see a death
penalty filing, and this effect bordered on conventional statistical significance.

Kramer Report, 117-118.
[O]ur finding that Black defendants with White victims were not at greater
risk to receive the death penalty contrasts with [prior] literature, including the
Baldus, et. al. (1997-1998) study of Philadelphia. […] Our findings are largely
consistent with the notion that legally relevant factors are likely the primary
factors that shape interpretations of blameworthiness and dangerousness that
theoretically drive the punishment decisions we examined.
Id., 122.
20

 3(b). Unreliability claims.
Marinelli asserts that capital punishment in Pennsylvania “is characterized by
error, arbitrariness and delay,” and that life imprisonment “amply serves …
penological interests” (petitioner’s brief, 40). Both assertions are policy judgments.
Only the former purports to have a basis in factual events, yet that basis is not clear.
Marinelli appears to claim that the capital punishment system is unreliable because
capital cases are frequently overturned. Yet in making this assertion he does not
address specific capital cases or why they were overturned. Nor does he claim that
the review process in his own case was “unreliable” in any way he can identify—
obviously, if legal error occurred in his own case, Marinelli could litigate that
without filing a King’s Bench petition.
It appears, moreover, that what Marinelli calls “unreliability” is in fact a
consequence of federal intervention in Pennsylvania’s criminal justice system. Since
an in-depth analysis is not possible in this setting, the Commonwealth will refer to
one illustrative case, though there are a great many similar ones. In Dennis v. Sec'y,
Pennsylvania Dep't of Corr., 834 F.3d 263, 357 (3d Cir. 2016) (en banc). James
Dennis was sentenced to death in 1992 for the 1991 shooting of a 17-year-old girl.
Three eyewitnesses had clear and prolonged views of him, and identified him from
a photo array, at a line-up, and at trial. On the night after the shooting he brandished
what looked like the same gun. His conviction was upheld by this Court, three times.
21

 But in 2016, the Third Circuit en banc held this Court had misapplied constitutional
law. It granted a new trial, though four dissenting judges said the evidence of guilt
was strong and that the majority misapplied the standard of review.13
Marinelli does not say how many capital cases were, like Dennis, ultimately
overturned—thus supposedly proving the unreliability of the death penalty—by a
federal court that directly contradicted a constitutional ruling by this Court. That,
however, is problematic.
This Court has repeatedly explained that decisions of federal courts inferior
to the Supreme Court of the United States are without precedential force or effect in
Pennsylvania. For the Third Circuit to contradict a ruling of this Court on an issue
of constitutional law, even in the same case, does not establish that this Court’s
ruling was incorrect. The law, in fact, is precisely to the contrary. See, e.g.,
Commonwealth v. Brown, 196 A.3d 130, 188-190 (Pa. 2018) (refusing to follow
Third Circuit holding that prosecution reference in capital sentencing to a
defendant’s lack of remorse improperly condemns the right to remain silent; federal
court’s ruling “is not binding on this Court and does not reflect the law of this

13

Dennis later entered a nolo contendere (i.e., guilty) plea. See Commonwealth v.
Norton, 201 A.3d 112, 114 n.1 (Pa. 2019) (“for purposes of a criminal case, a plea
of nolo contendere is equivalent to a plea of guilty”).
22

 Commonwealth”).14 While local federal courts overturn this Court’s constitutional
rulings in capital cases with considerable frequency, moreover, the controlling
federal statute prohibits that if “fairminded jurists could disagree on the correctness
of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(citation and internal quotation marks omitted); see 28 U.S.C. § 2254(d).15

14

Accord In re Stevenson, 40 A.3d 1212, 1221 (Pa. 2012) (even where judgments of
inferior federal courts have res judicata effect, their reasoning does not; on questions
of federal law their pronouncements “have only persuasive, not binding, effect” on
Pennsylvania courts); Hall v. Pennsylvania Board of Probation and Parole, 851
A.2d 859, 865 (Pa. 2004) (explaining why “[w]ithin our federal system of
governance, there is only one judicial body vested with the authority to overrule a
decision that this Court reaches on a matter of federal law: the United States Supreme
Court”; rulings of this Court on constitutional issues are correct “[a]bsent a contrary
ruling from that tribunal”) (although a plurality decision on the merits, the dissenting
and lead opinions agreed, and Hall is a majority ruling, on this point);
Commonwealth v. Laird, 726 A.2d 346, 359 n.12 (Pa. 1999) (refusing to follow
Third Circuit decision on identical constitutional issue governing capital
sentencing).
15

In response to the first World Trade Center attack in 1993 and the Oklahoma City
bombing in 1995, Congress and President Bill Clinton enacted the Antiterrorism and
Effective Death Penalty Act (or “AEDPA”) of 1996. The law was passed with broad
bipartisan support, and greatly restricts the authority of federal habeas courts over
state criminal judgments. In particular, it prohibits a federal court from granting the
writ on the basis of an issue decided on the merits by a state court, unless the state
court applied clearly-established federal law unreasonably. See, e.g., Lockyer v.
Andrade, 538 U.S. 63, 75 (2003) (“It is not enough that a federal habeas court, in its
independent review of the legal question, is left with a firm conviction that the state
court was erroneous. We have held precisely the opposite”) (citations and internal
quotation marks omitted).
23

 This means that, under the terms of Marinelli’s argument, the death penalty is
“reliable” in states such as Texas, Alabama, and Florida, where state court decisions
in capital cases are regularly upheld by local federal courts. But, he says, the penalty
supposedly is “unreliable” in Pennsylvania, where this Court’s decisions in capital
cases are often contradicted by local federal courts. These facts suggest that the
question Marinelli raises is not really one of “unreliability” at all, as opposed to one
of regional idiosyncrasies of federal courts and their relative fidelity to federal
statutory law.16
It is also true that capital cases are reviewed more thoroughly than other kinds
of cases. Such exacting review takes time—Marinelli calls this “delay”—but is
designed to make the system more reliable, not “unreliable.” It is the opposite of
“arbitrary,” and is of obvious benefit to the individual capital offender.17 Perhaps
less review, or a different kind of review process, would be preferable to Marinelli.
But such a searching examination of all aspects of the system is precisely what he

16

AEDPA notwithstanding, federal habeas petitions are granted in capital cases at
35 times the rate in non-capital ones. Marah Stith McLeod, The Death Penalty As
Incapacitation, 104 Va. L. Rev. 1123, 1154 & n.154 (2018).
17

Marinelli also says that less than 7% of murderers who obtain a new penalty
hearing are resentenced to death (petitioner’s brief, 55), as if this confirms that the
penalty in such cases was not justified in the first place. But it is unsurprising that,
if a new sentencing proceeding is ordered after decades have passed, essential
witnesses and evidence may no longer be available.
24

 would avoid by pursuing King’s Bench review. That kind of global policy inquiry is
available only in the General Assembly. Indeed, he observes that many capital cases
have been overturned due to ineffective assistance of counsel,18 and recommends asyet-unfunded “statewide programs to ensure adequate indigent capital defense,” a
“state-funded capital defender office,” and a new “statutory mitigator” (petitioner’s
brief, 45, 51). Recently, the General Assembly allocated, and the Governor signed

18

He accuses not just defense attorneys, but also prosecutors, of undermining capital
cases; he says the latter do so by violating Brady v. Maryland. But in fact,
exculpatory evidence may be “suppressed” in the constitutional sense even if the
prosecutor did not know about it. Kyles v. Whitley, 514 U.S. 419, 438 (1995) (Brady
applies where the evidence “was not disclosed even to the prosecutor”). Moreover,
that problems which can arise in any kind of case also arise in capital cases is not
evidence that there is something uniquely wrong with capital cases.
Oddly, Marinelli suggests no provision for preventing lawyers who have been
found ineffective from representing capital defendants. That is something this Court
could put in place on its own authority, regardless of whether Marinelli’s policy
arguments are reviewable.
Another policy solution Marinelli overlooks is that many Pennsylvania capital
defendants are represented by the excellent, federally-funded Federal Community
Defender Organization in the PCRA stage and thereafter, but not at trial. Many of
the concerns Marinelli raises about defense representation would be removed if the
FCDO appeared at the trial stage rather than in the PCRA stage. The Third Circuit
has already cleared the way for this by holding that the FCDO effectively may decide
for itself when and how to appear in Pennsylvania courts in capital cases in order to
exhaust federal habeas claims. In re Commonwealth's Motion to Appoint Counsel
Against or Directed to Def. Ass'n of Philadelphia, 790 F.3d 457, 477 (3d Cir. 2015),
as amended (June 16, 2015), cert. denied, 136 S. Ct. 980, 994 (2016). There is
nothing preventing the FCDO from representing indigent capital defendants, at any
stage, in Pennsylvania courts.

25

 into law, $500,000 in grants to counties to support indigent defense in capital cases.19
Certainly, more needs to be done, and that is but a significant first step; but such
matters are exactly what this Court, which cannot allocate state spending or create
or amend statutes, cannot provide, but the General Assembly could.
3(c). Geographic claims.
Marinelli repeats the geographic observation raised in the Kramer Report and
in the JSGC report (petitioner’s brief, 72), that use of the death penalty varies greatly
among the 67 counties of Pennsylvania. Marinelli notes that he chose to murder
Conrad Dumchock in Northumberland County with a high “death-sentence-to-lifesentence” ratio of 1:6 (petitioner’s brief, 13). But he offers nothing to substantiate
his apparent theory that the location of the murder, rather than the facts, determines
the sentence. By his reasoning a county with 2 murders and only 1 capital sentence
would have a very high ratio of 1:2, while one with 100 murders and 10 death
sentences (ten times as many as the other county) would have a lower ratio of 1:10.
Philadelphia has the highest number of murders (2,835) and the highest number of
death sentences (69), but a very low ratio of 1:40 (JSGC report, 240).

19

https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PD
F&sessYr=2019&sessInd=0&billBody=S&billTyp=B&billNbr=0712&pn=1085
26

 The Kramer Report concluded that, to the extent “uniform prosecution” is a
goal of the criminal justice system, “questions” were raised because “[i]n many
counties … the death penalty is simply not utilized at all,” but in others “it is sought
frequently” (Kramer Report, 125). But in some counties murders are extremely rare,
and it is therefore unsurprising that resort to capital punishment should vary greatly
with location. The 2017 Pennsylvania Uniform Crime Report, at Appendix A, shows
that some counties, such as Bradford, Sullivan, and Tioga (and many others), had no
murders at all. Lehigh had 20 murders, while Philadelphia had 316, which represents
a large portion of all the murders in the state (738).20 Local prosecutors presumably
take into consideration the local crime rate, the impact of a particular murder on the
community, and other case-specific factors in deciding whether capital punishment
should be pursued.
Marinelli also does not explain why a central death-penalty authority should
be considered so essential that its absence should bar capital punishment. Currently,
the people of Pennsylvania have decided through their legislature to commit most
discretionary prosecutorial decision making to county District Attorneys. Whether
or not that should change is a policy question for the General Assembly.

20

http://ucr.psp.state.pa.us/UCR/Reporting/Annual/AnnualFrames.asp?year=2017
27

 3(d). Mental health issues.
The JSGC report, Marinelli says, concludes that “25% of those on death row”
have “active, severe mental illness” (petitioner’s brief, 86). Marinelli says he has a
mental illness, that he does not describe, about which he presented no evidence at
sentencing (id., 13). If his alleged mental illness is the basis for a claim, however, he
could litigate it in the PCRA process. Further, the term “mental illness” encompasses
a wide variety of situations and may include conditions that developed before or
after the murder, or after the offender was sentenced. Currently, the sentencing
statute makes “extreme mental or emotional disturbance” a mitigating factor, 42
Pa.C.S. § 9711(e)(2), under which the vote of a single juror can bar a capital
sentence. An inmate may become incompetent to be executed due to mental illness
after being sentenced. See Ford v. Wainwright, 477 U.S. 399 (1986). Executing the
“intellectually disabled,” a condition formerly known as mental retardation, is barred
by Atkins v. Virginia, 536 U.S. 304 (2002). Contrary to Marinelli’s puzzling
allegation that Pennsylvania murderers sentenced to death were “often unable to
meaningfully assist their lawyers in their own defense” (petitioner’s brief, 86), it has
long been the law that a person who is “substantially unable to understand the nature
or object of the proceedings against him or to participate and assist in his defense”
may not be “tried, convicted or sentenced so long as such incapacity continues.”

28

 Commonwealth v. Jermyn, 652 A.2d 821, 822 (Pa. 1995) (emphasis omitted); 50
P.S. § 7402(a).
In short, mental illness is a serious issue, but Marinelli’s view that “mental
illness makes a death sentence more likely” (petitioner’s brief, 87) is, at the least,
subject to dispute. There are a number of ways in which a defendant can raise mental
illness in order to reduce the possibility of a death sentence. As a policy matter there
is certainly more to be said, but questions of policy are appropriate for legislative
consideration.
3(e). Indigence.
Marinelli cites the recommendation of the JSCG report to the General
Assembly that 80% of capital defendants are indigent, and so represented by
appointed counsel who have, in his view, an unacceptably high rate of ineffective
assistance. He does not, however, claim that he himself suffered financial
disadvantage, or that he was prejudiced in his own case by his personal poverty.
This, once again, is a policy claim and not one of legal error. As already noted,
the legislature has taken one positive step in allocating $500,000 to indigent capital
defense. Moreover, in terms of appellate review, a defendant who claims that
inadequate appointment or compensation standards effectively denied the right to
counsel must establish that these alleged conditions actually harmed him, in his own

29

 case: “structural defects that tainted the entire mechanism of his trial and
sentencing.” Commonwealth v. Martin, 5 A.3d 177, 193 (Pa. 2010); Commonwealth
v. Williams, 950 A.2d 294 (Pa. 2008) (doctrine of presumed prejudice did not apply
despite appointed counsel’s low rate of payment where counsel in fact subjected
prosecution case to meaningful adversarial testing); see United States v. Cronic, 466
U.S. 648, 662, 665-666 (1984) (because he did not establish a “breakdown in the
adversarial process” in his case, respondent had to raise “specific errors made by
trial counsel” to establish ineffective assistance). Marinelli’s general claims, that
indigence is widespread among death-eligible offenders and that retained counsel
arguably outperform publicly-funded counsel, do not accomplish that.21
A defendant who was actually denied effective representation in his own case,
whether due to extreme structural defects or specific failures on the part of counsel,
would be entitled to claim relief on that basis, with no need to raise issues in the
abstract. The Commonwealth nevertheless agrees, as a policy recommendation, that
capital defense resources and standards should be greatly enhanced. One practical

21

The advantage of having private counsel is not entirely clear. The Kramer Report
states that prosecutors are less likely to seek the death penalty in the first place in
cases involving public defenders. Where the penalty is sought, moreover, the
advantage of having private counsel is no more than 5% (Kramer Report, 119-120).
That speaks well of private counsel in general, but may be of little practical benefit
to an individual defendant.
30

 step, immediately available to this Court under its exclusive authority to govern the
practice of law under Article V, § 10(c), would be to restrict attorneys who have
been found constitutionally ineffective from representing defendants in capital cases.
Further measures, however, are likely to require additional state funding and
statutory enactments that this Court is unable to provide, and are properly left to the
General Assembly.
3(f). Penological justification.
Marinelli argues that the death penalty does not deter murder, and that instead
its abolition can be expected to reduce violent crime (petitioner’s brief, 91-92). He
himself, however, does not suggest that he is somehow legally entitled to personal
relief due to the fact that Pennsylvania made what he considers an unwise decision
in maintaining capital punishment. His position addresses a complex policy question
that remains unsettled. E.g., Bessette, J., How and why the death penalty deters
murder in contemporary America (January 4, 2018);22 Zimmerman, State
Executions, Deterrence, and the Incidence of Murder, 7 J. Applied Econ. 163, 166

22

https://www.catholicworldreport.com/2018/01/04/how-and-why-the-deathpenalty-deters-murder-in-contemporary-america/
One 2012 survey by the National Research Council, deterrence and the death
penalty, concluded that it was impossible to prove whether or not capital punishment
deters murder:
http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=13363
31

 (2004) (“[I]t is estimated that each state execution deters approximately fourteen
murders per year on average”).
Deterrence as a penological value is a matter appropriate for legislative
debate, not judicial resolution. Further, the validity of Marinelli’s view that the
cessation of capital punishment decreases violent crime is not self-evident. As noted,
in February 2015, Governor Wolf imposed a moratorium barring Pennsylvania
executions for the laudable purpose of allowing the legislature to consider and act
on the JSGC report. Under Marinelli’s reasoning, this moratorium should have
reduced all violent crime, including murders. But current crime rate data do not
appear to support that hypothesis.23
Marinelli also denies that retribution is a valid state interest (petitioner’s brief,
94), but that too is a policy decision. Retribution is a component of all criminal
punishments; it is a societal expression of intolerance for crime, and in that sense
serves to uphold public order. Many believe that some few murders can be so
23

• Philadelphia homicide rate climbs, highest in over a decade

https://philadelphia.cbslocal.com/2018/12/17/philadelphia-homicide-rate-climbshighest-in-over-a-decade/
• “The shooting [of 10 victims] outside of Deja Vu nightclub is one of the worst
mass shootings in Lehigh Valley history.”
https://www.ydr.com/story/news/2019/06/20/largest-mass-shootings-pennsylvaniahistory-allentown-pa-deja-vu-nightclub/1509247001/

32

 horrendous—multiple killings in mass shootings, for example—that a penalty less
than death would impermissibly disparage their severity. Courts have cited
retribution and deterrence as justifications for capital punishment. See Roper v.
Simmons, 543 U.S. 551, 571 (2005) (retribution constitutionally justifies the death
penalty); Atkins v. Virginia, 536 U.S. 304, 319 (2002) (same); cf. Commonwealth v.
Batts, 163 A.3d 410, 429 (Pa. 2017) (same, acknowledging cited decisions).
Marinelli argues that should not be so, but this is a nuanced and complex policy issue
that is in the realm of the General Assembly.

33

 CONCLUSION
For these reasons, the Commonwealth requests this Court to deny the petition.
Respectfully submitted,
/s/
Hugh J. Burns Jr.

Office of Attorney General
1600 Arch Street
Philadelphia, PA 19103
(484) 395-5143
hburns@attorneygeneral.gov

JOSH SHAPIRO
Attorney General
Commonwealth of Pennsylvania
MICHELLE A. HENRY
First Deputy Attorney General
JENNIFER C. SELBER
Executive Deputy Attorney General
Criminal Law Division
JAMES BARKER
Chief Deputy Attorney General
Appeals & Legal Services Section
HUGH J. BURNS JR.
Senior Appellate Counsel

34

 CERTIFICATE OF COMPLIANCE
WITH RULE 2135
This brief complies with Pa. R. App. P. 2135(a)(1) (word limit) and (d)
(certificate of compliance), as it contains fewer than 14,000 words.

CERTIFICATE OF COMPLIANCE
WITH RULE 127
This brief complies with Pa. R. App. P. 127(a) and the provisions of the Case
Records Public Access Policy of the Unified Judicial System of Pennsylvania, which
require that confidential information and documents be filed differently than nonconfidential information and documents.

HUGH J. BURNS JR.
Senior Appellate Counsel
Office of Attorney General
1600 Arch Street
Philadelphia, Pennsylvania 191013
(484) 390-5143
hburns@attorneygeneral.gov

35