Pa. governor’s moratorium on executions triggers battle


The Pennsylvania Supreme Court has agreed to hear a case filed by Philadelphia District Attorney Seth Williams challenging Gov. Tom Wolf’s so- called “moratorium” on executions.

Last month, the governor imposed the moratorium by granting a reprieve to Terrance Williams who was scheduled to die last Wednesday. Wolf has pledged to continue the moratorium by granting a reprieve to every inmate scheduled for execution until the Pennsylvania Task Force and Advisory Committee on Capital Punishment completes its report.

The governor’s legal authority exists pursuant to Article IV, Section 9 of the Pennsylvania Constitution. The governor has exclusive authority to grant reprieves and may exercise that authority for any reason.

Here in Ohio, Gov. John Kasich postponed all seven executions scheduled for 2015 in order to review the state’s lethal injection protocol.

Although there has not been an execution in Pennsylvania in 15 years and that was unlikely to change even without the governor’s intervention — Williams sought the King’s Bench authority of the Supreme Court to intervene.

Legal authority

King’s Bench power is a 12th-century legal authority the Legislature bestowed in 1722 on the Pennsylvania Supreme Court. The now codified authority provides the Supreme Court “[M]ay ... in any matter ... involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done.”

The Philadelphia district attorney has suggested that Wolf’s action was beyond the governor’s authority. The filing with the Supreme Court makes a point to emphasize, “Merely characterizing conduct by the governor as a reprieve does not make it so.”

The prosecutor’s petition goes on to argue, “The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”

‘Exclusive authority’

The governor’s response, according to the Pittsburgh Post-Gazette, provides “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis.’” The response also notes that there is no time limitation included in the Constitution for how long a reprieve might last, meaning the governor may issue a reprieve as he sees fit.

Prosecutors asked the Supreme Court to take the case on an expedited basis. Citing Pennsylvania case law, prosecutors argued where a case is “one of significant public importance” Pennsylvania’s Supreme Court may grant a request for “an advanced briefing schedule and expedited disposition.” The court refused. The case will be heard on a regular court schedule, providing both sides with the opportunity to argue whether the court should even have taken up the matter, as well as the parties’ positions regarding the underlying dispute.

“Issues of gubernatorial discretion are really uncharted water in Pennsylvania,” Bruce Ledewitz, a professor at Duquesne University School of Law, told WESA-FM of Pittsburgh.

“If this were at the federal level, there were a lot of ways the president could do this, but the governor in Pennsylvania doesn’t have the kind of authority that the president of the United States has,” said Ledewitz. “We just haven’t structured our executive power the same way under our state constitution. We have fractured the executive power and we have limited it in lots of ways.”

Death row

Approximately 186 men and women are on Pennsylvania’s death row. Some have been sitting there for more than 30 years. That won’t change anytime soon.

University of Pittsburgh law professor John Burkoff told the Post-Gazette, “It will probably be more than a year before any decision is reached.” He said it could take even longer if the court decides to wait for the input of two new justices, who will be elected this fall.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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