Editorial: Should Washington County DA be second-guessed on death penalty cases?

The world of fiction makes it seem like the death penalty is a simple, almost foregone conclusion in a courthouse.

It isn’t, at least not in Pennsylvania.

The Keystone State has a complicated relationship with capital punishment. Much like with a federal death penalty case, it is a multistep process with a series of boxes to tick.

The prosecutor has to inform the court of an intent to pursue the death penalty. The case must be first-degree murder and include one of a list of qualifying factors such as torture, murder for hire or a victim who is a child or a public servant. After conviction, a second hearing looks at the circumstances. Did something aggravate the crime? Did anything mitigate it?

If the jury delivers a verdict of death, the state Supreme Court has to agree. So does the governor — or the secretary of corrections — with the signing of the death warrant. And that’s before years of appeals.

It’s a lot of steps and a lot of work for an outcome that rarely comes to fruition. Pennsylvania’s last execution was serial killer Gary Heidnik, one of the real-life inspirations for Buffalo Bill in “Silence of the Lambs,” in 1999. There are 94 men on the state’s death row, with convictions ranging from 1982 to 2023.

So with all those hurdles and an unlikely outcome, why are defense attorneys with the Atlantic Center for Capital Representation petitioning the state Supreme Court to put more restraints on Washington County District Attorney Jason Walsh?

Since Walsh took office in August 2021, there have been 18 homicide cases filed in his jurisdiction. He has sought the death penalty in 11.

Nationally, capital cases represent less than 1% of murders, but not every state has the death penalty; in Pennsylvania, it’s about 5%. It is statistically anomalous that during Walsh’s tenure, Washington County has 61% of its homicides at that level. It’s more than a quarter of all capital cases in Pennsylvania.

It is noteworthy defense attorneys are not asking that no capital cases be pursued in Washington County. They are asking that the court authorize an out-of-county review of any such cases to approve the filing before it is made.

Defense attorneys argue the filings are an abuse of power and processes are not being followed. They claim the intent is “not to punish first-degree murder, but either to achieve guilty pleas, to coerce cooperation against codefendants, to accrue political capital or to simply inflict cruelty.”

Walsh counters he is just playing by the rules enacted in Harrisburg.

“I don’t make the laws. I just enforce them,” he said.

Fair enough. And it is likely a good percentage of constituents would agree. Being tough on crime is always a good campaign point.

One factor the Supreme Court is unlikely to consider is how much it is costing Washington County to file so many death penalty cases. Capital crimes have more hoops to jump through, ultimately costing more time, man hours and taxpayer dollars than a case in which a life sentence is the top punishment.

This isn’t the first time attorneys have raised concerns about Walsh’s death penalty cases. Two of them did so in 2023. The issue seems like a stand-off. Walsh is within his power to charge the cases the way he sees fit. Even if he won a death sentence in all of them, it’s unlikely any of them would be carried out any time soon with almost 100 people in line ahead of them.

But the attorneys petitioning the court also are within their rights to ask the state’s highest court to look at the math and ask if it makes sense.