Let me make clear that, unlike John, I oppose the death penalty. I believe all choices against life are wrong. But I admire Morganelli for advocating his position forcefully. In 1994, it was this little known DA who, against all odds, successfully sued then Governor Robert Casey to enforce Pennsylvania's death penalty. He paid a price politically, but followed his conscience.
Below, he explains why Governor Tm Wolf's moratorium, which really isn't a moratorium at all, must fail.
Governor Wolf did not impose a “moratorium” on Pennsylvania’s death penalty. He has no such authority and he knows that. The Governor was properly advised by Judge Timothy K. Lewis, former U.S. Court of Appeals Judge, that there exists no authority in the Office of Pennsylvania Governor to declare a moratorium or suspend the death penalty. What the Governor did was to grant a “reprieve” to one death row inmate who was scheduled for an imminent execution. The granting of a “reprieve” is one of the Governor’s powers with respect to clemency in Article IV, Section 9(a) of the Pennsylvania Constitution. The other two are the power to “commute” a death sentence to life and to grant a “pardon.” The latter two, however, cannot be exercised by the Governor unless recommended by the Pennsylvania Board of Pardons. With respect to commuting a death sentence to life, the recommendation must be unanimous.
Under Pennsylvania law, the issuance of execution warrants by the executive branch is a mandatory duty. That precedent was established in Morganelli v. Casey, a case I brought in 1994 against then Governor Robert Casey. Today, the governor is given 90 days to sign a death warrant after receiving the case from the Pennsylvania Supreme Court. If the governor does not sign the execution warrant, the execution date must be set by the Department of Corrections and the execution proceeds without the governor’s signature. Accordingly, Judge Lewis advised the Governor that executions must proceed and that the use of the “reprieve” power was the only constitutional basis for creating a de facto moratorium. The Governor has stated that he will grant “reprieves” for subsequent scheduled executions for each death row inmate at least until the release of an impending study being done by a task force established by the legislature.
The Governor’s objective is unlikely to succeed. In Morganelli v. Casey, the court held that a “reprieve” exists only to afford an individual defendant the opportunity to temporarily postpone an execution for a particular proceeding involving that defendant – i.e. a pending application for a pardon, commutation or judicial relief. It is unlikely that a court will allow a governor to grant “reprieves” based on a governor’s concern about the fairness of the process or the release of a report that has no legal significance. If this was permitted, it would in effect allow a governor to commute death sentences to life bypassing The Board of Pardons in contravention of Article IV of the Pennsylvania Constitution. Only the legislature has the power to repeal the death penalty and only the judiciary has the power to suspend the death penalty or declare it null and void as unconstitutional or in violation of due process. Pennsylvania’s death penalty was deemed constitutional by the U.S. Supreme Court many years ago in the case of Blystone, and, therefore, the Governor will not be able to derail Pennsylvania’s death penalty by continuously granting “reprieves” in individual cases. As someone who has personally litigated these issues, I predict that ultimately the Pennsylvania Supreme Court will find the Governor’s action outside of the intended purpose and scope of a “reprieve.”
In Philadelphia, DA Seth Williams has already challenged Wolf's decision in court. Williams' challenge will likely be dismissed. As Morganelli observes, the Governor is really only granting reprieves, something he has the legal authority to do.
