The death penalty in Pennsylvania's existential crisis

In 2002, Nick Yarris asked the commonwealth of Pennsylvania to kill him.

“I was ready to be executed,” he told the BBC in 2016. “I asked to drop my legal appeals so that the execution process would be carried out.”

When he made the request, he had already served 20 years on a murder conviction and had been fruitlessly attempting to prove his innocence for over a decade. Seriously ill with a Hepatitis C infection from shoddy dental work, he felt he had hit a dead end.

A final, court-ordered DNA test the following year saved him from lethal injection. The results showed that DNA found on gloves recovered from the scene of the 1981 rape and murder of mall worker Linda Mae Craig wasn’t his, nor was a sperm sample.

In early 2004, he left the Greene County Correctional Institution, a free man.

Yarris isn’t alone – From 1986 to 2005, five other Pennsylvania death row inmates, either by acquittal or dismissal of charges, were exonerated. During the time he sat on death row, from 1982 to 2004, Yarris saw only three of his peers killed by the state – all had chosen death over continuing their appeals. The rest, including himself, were essentially expensive lifers, costing taxpayers 25 percent more than the average inmate due to added security and personnel.

In other words, at great cost to taxpayers, Pennsylvania has ultimately exonerated twice as many people on death row than it has executed since capital punishment was reinstated in 1977. But despite these costs and a current moratorium on executions, capital punishment in Pennsylvania has resisted complete abolition, even as the state frantically seeks to cut expenses to patch a yawning deficit. For many lawmakers in Harrisburg, a bipartisan desire to appear “tough on crime” still outweighs the fact that capital punishment is expensive, rarely used and sometimes abused.

“The House Republican leadership supports the death penalty,” said Robert Dunham, executive director of the Death Penalty Information Center, and a former federal defender for the middle district of Pennsylvania. “And so long as the House Republican leadership supports the death penalty and Republicans have control of the House, there will not be abolition.”

Nick Yarris in custody in 1981

Yarris, a Southwest Philly native, was reckless in his youth: he fought; he boozed; he took prescription pills and smoked methamphetamine. And he stole cars from the long-term parking lot at the nearby Philadelphia International Airport.

In the winter of 1981, cruising in a stolen vehicle with a buddy, he was pulled over by police. The stop turned confrontational – the arresting officer said Yarris had reached for his service weapon and, in the ensuing struggle, discharged the weapon. The 20-year-old was charged with resisting arrest and the attempted murder of a police officer.

In jail, in over his head and suffering from meth withdrawal, Yarris tried to turn informant in a poorly conceived attempt at gaining freedom. The recent, highly publicized rape and murder of Linda Mae Craig fresh in his mind, he tried to pin the grisly crime on a drug addict he thought dead from an overdose; in fact, that man had gotten clean and was very much alive.

Worse for Yarris, the victim’s co-workers told investigators they had seen him lingering around the store where Craig worked as a sales clerk before she was abducted while walking to her car after a shift. The mall is just a short drive from the snowy church parking lot in Chichester where Craig was found fatally stabbed.

When detectives attempted to back Yarris into a confession with this newfound evidence, he blurted out, “I never meant to kill anyone.”

His erratic behavior, combined with his ill-fated attempt to snitch on a dead perp who turned out to have a pulse and an ironclad alibi was suspicious enough that he was found guilty and sentenced to death, despite a lack of physical evidence tying him to the crime.

In his time at Greene County State Correctional Institution, he joined a death row population that now numbers 174 inmates – the fifth-highest population in the nation – spread across 4 facilities. The vast majority of this group – 144 inmates – is still held at Greene, at a premium cost to the state.

In an email, a spokesperson for the Department of Corrections said the annual cost of incarcerating the average death row prisoner totals $52,000, about $10,000 more than a typical inmate. The DOC said “extra staffing” makes up most of the increased cost, although a spokesperson declined to offer a breakdown of these costs.

In total, the added personnel and security for maintaining capital punishment in Pennsylvania by incarcerating men like Yarris costs taxpayers over $1.7 million a year. But annual upkeep understates the true cost to the state.

While being transported to a hearing in 1984, Yarris escaped from the two guards assigned to him, in what he claims was a misunderstanding that swiftly unraveled. He made his way to New York and then down to Florida, on the lam for 25 days. He was later nabbed and charged with the kidnapping and robbery of a man. This earned him 30 additional years and he was shipped back to Pennsylvania.

Yarris would be released in 2004 after the Innocence Project advocated for him and tests conclusively proved his DNA was absent from biological evidence gathered at the scene of Craig’s murder. The charges stemming from his escape were reduced by a Florida judge to time served following his exoneration – the last step in freeing him from prison. Because Pennsylvania is one of 23 states lacking a compensation law, Yarris had to file a civil suit over his wrongful imprisonment and was eventually awarded $4 million in damages from the Delaware County District Attorney’s Office.

What separates Pennsylvania from the other states with the death penalty is the rate at which the state actually carries out sentences.

Six inmates have been killed in California since Gary Heidnik, a Philadelphia man who tortured, raped and killed six black women in the 1980s, had his final meal back in 1999 as the last person executed in Pennsylvania. Florida has executed 49 prisoners during that same time; Alabama has killed 38; and Texas has delivered 358 prisoners to their death.

In Pennsylvania, voters and legislators alike have in recent years been approaching capital punishment with a marked hesitancy. In January 2015, Gov. Tom Wolf established a moratorium on the death penalty so that legislators could review the effectiveness of the commonwealth’s current system. Republican leadership in both the House and the Senate took umbrage – the move was an overreach by the executive branch, some said – but, given the dearth of actual executions taking place, it was also largely symbolic.

“The governor is exercising his reprieve power to issue reprieves to anybody that does not have a stay of execution,” Dunham, from DPIC, said. “It doesn’t put the death penalty on hold in the state...It only means that executions will not be carried out.”

What’s more important to abolitionists is that it's a gesture that could die as soon as Wolf leaves office.

“Symbolically, it is called a moratorium because it reflects the governor’s policy that until the state makes reforms in the death penalty process, he does not want executions to be carried out,” Dunham said. “As with all reprieves, they are governor-specific.”

And some, especially on the prosecutorial side, would love to see the moratorium gone – Richard Long, executive director of the Pennsylvania District Attorneys Association, is among them.

“We feel that the death penalty is an appropriate punishment for the most egregious murders that fit certain criteria,” Long said. “We felt that the governor was acting beyond his authority as governor…We felt that there was no legal basis for him to impose the moratorium.”

Changes to state capital punishment must be run by lawmakers, Long said.

“If the governor thinks the law should be changed, there’s a mechanism to do that,” he remarked.

There have been some attempts by the state Legislature to uproot capital punishment altogether. But in the thoroughly red Pennsylvania House and Senate, they have predictably stalled.

In February 2015, on the same day that Gov. Wolf announced his moratorium, Sen. Daylin Leach (D-Montgomery) introduced Senate Bill 493, which would have removed the death penalty as a sentencing option. Leach said he “thought it was a propitious time” to do away with capital punishment – but his bill never made it out of the Judiciary Committee.

Percentage-wise, Republicans do support capital punishment, but not with the same numbers or conviction as in years past, and Leach commented that many Republican legislators seemed to have warmed to the idea of abolition. Those scattered advocates, however, have never coalesced into any sort of abolition push from the Right as they have in other red states.

“We see states around the country moving to eliminate their death penalty – even very conservative states...We saw the legislatures in Nebraska and Utah, both deep-red states, eliminating their death penalties,” Leach said. “We saw New Jersey, we saw other places, and I thought the time was right.” (Nineteen states in total have abolished capital punishment, with Delaware being the most recent in 2016.)

Leach again circulated a co-sponsorship memorandum seeking bipartisan support for the elimination of the death penalty in Pennsylvania this year. That bill will likely be floated before the Judiciary Committee in the near future.

One way to reach wavering Republicans on the issue: emphasizing the costly nature of housing so many death row inmates on the taxpayer’s dime at such a premium.

Sen. Stewart Greenleaf (R-Montgomery) was the chief sponsor of a resolution passed in 2011 for the Joint State Government Commission to closely study the death penalty in Pennsylvania; the long-delayed result should be released this year. He agreed that appealing to the fiscal conservatism of his Republican peers would pull in a few conscientious objectors, not only on the death penalty, but on a host of criminal justice reform issues.

“The Department of Corrections has been the fastest-growing department in our state for years,” he said, “and we’re going to try to put an end to that.”

There is also the issue of fast-declining public support for capital punishment that the populists among the ranks of Democratic and Republican holdouts will have to reckon with the next time a legislator mounts an effort to abolish the death penalty.

“Society has changed,” Greenleaf said of the shift in public opinion. “Polling data has changed dramatically.”

In a poll by Public Policy Polling released in March of 2015, a month after Wolf’s highly-publicized moratorium, those polled who either “strongly” or “somewhat” agreed with Wolf’s decision totaled 50 percent, while those in opposition came to 44 percent. And 54 percent of those polled favored life in prison, either with or without parole, for those convicted of a homicide, compared to 42 percent who preferred death.

Of those that chose to signify a party affiliation for the poll, 45 percent said they were Democrat, while 41 percent said Republican, which would seem to line up with the poll’s outcome. Interestingly enough, however, despite the anti-death penalty figures, the poll’s respondents skewed older and heavily white, with 64 percent of respondents being over the age of 45, and 81 percent identifying their race as white. Young people and minorities are significantly less likely to support the death penalty and, apparently, significantly less likely to answer a phone poll.

Sen. John Rafferty (R-Berks, Chester, Montgomery) acknowledges the drift in public opinion but said it doesn’t change his stance.

“Some people are just sitting there looking at the polls to see which way to go,” Rafferty said. “I have my firm beliefs with that and have never backed away,” adding that a death sentence is warranted in a number of aggravating circumstances, especially, he said, in the case of a murder of a child, a senior citizen, a police officer or first responder.

He said, above all, it sends a message: “If you endanger these people, take their lives, you’re going to pay the maximum penalty.”

The fiscal circumstances to consider extend beyond correctional.

According to a 2016 Reading Eagle investigation that used admittedly conservative calculations, seeking the death penalty adds about $2 million to each homicide case – the average death sentence costs the state $3.1 million as opposed to the $1.1 million spent to secure a life sentence, given the complex investigations and dragged-out appeals processes that come standard with a death sentence.

According to Robert Dunham, 95 percent of those death sentences later become life sentences, or lesser sentences, during resentencing.

In his time as a federal defender, Dunham says, he saw “156 cases that were overturned in the state or federal post-conviction process.” Of those, “120 went on to resentencing. Only four are still on death row; 116 are not.”

An idea held as gospel by proponents of the death penalty is that the threat of execution can function as a deterrent to would-be criminals. 

But a 2008 study by two University of Colorado professors found that 88 percent of leading criminologists polled said they believe the empirical evidence disproves the deterrence theory. And 74.7 percent of those polled disagreed that states with the death penalty had lower homicide rates than neighboring states without the death penalty.

“In point of fact,” the study asserts, “death penalty states have consistently higher homicide rates than non-death penalty states. In 2007, for example, the homicide rate in states with active death penalty statutes was 42 percent higher than that of non-death penalty states.”

Greenleaf’s trepidation when approaching the issue of capital punishment was touched off by his surprise that cases like Yarris’ weren’t uncommon.

“I discovered as Chair of the Judiciary Committee – and I never believed this would happen – that we actually convict people who are innocent,” Greenleaf said. “And now it’s common knowledge … we convict innocent people of all types of crime, including murder.”

Leach asserted his that own opposition to executions comes from the fact that “we have an imperfect system which convicts innocent people sometimes.”

Nick Yarris today 

As it stands, to be sentenced to death in Pennsylvania, the homicide you are being tried for must be coupled with any of a number of aggravating circumstances. Some, like the victim being a public servant, or a child under the age of 12, or a pregnant woman in her third trimester, have an easily followed logic. Others, like the victim being “in competition with defendant in the sale, manufacture, distribution or delivery of any controlled substance, (or) counterfeit controlled substance,” Rafferty says, can be “an effective tool for prosecutors,” a bargaining chip for eliciting further information from those involved in criminal enterprises. He also said that he believes capital punishment to be a useful deterrent.

“I lived on my own schedule so I wouldn’t become institutionalized,” Yarris said. “I had a set way of doing things like they were ritualistic but they were healing.”

He filled his expansive free time with the pages of thousands of books and university classes, and allowed himself no more than two hours of television a day – unless the Eagles were playing on a Sunday.

“I educated myself and did all this, not for the hope of getting out or impressing anyone,” Yarris said. “I did it so I could be prepared for during the five minutes of my life when they executed me, I could have a written or prepared statement that I wouldn’t falter with.

“I decided to make myself as beautiful as possible for the day they executed me,” he continued. “That’s what I did with my hopelessness.”

Pennsylvania has been unable to carry out an execution from sentencing to injection without a hitch or an appeal since capital punishment was reinstated back in 1976, Yarris emphasized over Skype from his home in England.

“The only persons that killed themselves were people, like me, that were volunteering to be executed,” he said before pausing the conversation to tell his young daughter to stop whatever headache she was causing her mother.