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PHILADELPHIA – The Pennsylvania Supreme Court has declined a special petition to review the constitutionality of the death penalty but says it will still consider the fairness of individual cases.

The decision Friday comes after the court heard arguments this month from critics who call the punishment cruel and arbitrary in the way it’s applied to poor and black defendants. Public defender Shawn Nolan represents the two men whose petitions were at the heart of the petition.

Nolan said he is disappointed, given “overwhelming evidence that Pennsylvania’s death penalty system is broken.” But his office will continue to litigate the issue in state courts, he said.

Statewide, just under half of the current death row inmates in Pennsylvania are black, compared with 11% of state residents.

The death penalty remains legal in 29 U.S. states, although four of those states, including Pennsylvania, have a moratorium on executions.

More than half of the 441 death sentences handed down since the death penalty was reinstated in the late 1970s have been deemed flawed and overturned, Assistant Federal Defender Timothy Kane said at the Sept. 11 hearing. Among the 155 from Philadelphia, the reversal rate is 72 percent.

More: Hill-Evans and others wait as Pa. Supreme Court hears death penalty challenge

“The reliability of the system as a whole is cruel, and the systemic problems affect every case,” Kane argued before the overflow crowd at Philadelphia City Hall.

Most of the time, the sentence or verdict was reversed on appeal because of the work of court-appointed lawyers working with limited public funds, he said.

Justice Debra Todd asked why the issue was urgent, given the moratorium on executions that Democratic Gov. Tom Wolf imposed after taking office in 2015. A lawyer for Attorney General Josh Shapiro, who opposed the petition, said it was not.

Shapiro’s office said that any amendments to the death penalty should be decided by the Legislature, which issued a troubling report on the issue last year.

“The questions the report raises are important, and should be thoroughly considered and resolved, by the General Assembly,” Shapiro’s office said in its brief.

However, Kane hoped the Supreme Court would step in given the lack of action by lawmakers.

The average appeal in Pennsylvania takes 17 years, straining the resources of the court system, critics said.

Five Democrats and two Republicans sit on the state Supreme Court.

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