On Sept. 11, the Pennsylvania Supreme Court will hear argument in two cases raising a challenge to the death penalty process in this commonwealth as so dysfunctional as to violate the Pennsylvania Constitution. In doing so, it will decide first whether to exercise its King’s Bench authority and hear the substantive claims; and if so whether the system is indeed so broken that it requires action by the court. Whatever it decides, it must confront the indisputable fact that in Pennsylvania race was and remains a thumb on the capital case scales—in the decision of who faces the death penalty; in the selection of jurors and in jurors’ ultimate decision of whether to vote for death.

That conclusion was one of several submitted to the court in the pleadings of the two petitioners, and was emphasized in an amicus brief co-authored by this writer and submitted on behalf of concerned academics and social scientists. But the findings supporting this are neither abstract nor theoretical—and regarding race directly impacting who gets sentenced to death those findings come directly from the report commissioned by Pennsylvania’s legislature.