« Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress? | Main | More from ACSBlog's "symposium on racial inequalities in the criminal justice system" »

February 20, 2015

Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"

Images (1)As reported in this local article, "Philadelphia District Attorney Seth Williams has sued Gov. Tom Wolf over the death penalty moratorium he imposed last week." Here the basics:

In a lawsuit filed Wednesday, Williams asks the state Supreme Court to rule Wolf's move a "lawless act," claiming the governor had no legal right to grant a reprieve to convicted murderer Terrance Williams....

The lawsuit filed by the city's Democratic district attorney is the second one the Democratic governor has faced since he was sworn in to office Jan. 20. The Republican-controlled Senate sued Wolf in Commonwealth Court over his decision to fire the executive director of the Open Records Office, which the Legislature created when it updated the state's Right-to-Know Law in 2008.

Wolf's death penalty moratorium, announced Friday, fulfilled a campaign promise. It was criticized by district attorneys, law enforcement and some lawmakers. Some religious leaders and other lawmakers praised it....

Wolf said he will grant a reprieve each time a death row inmate is scheduled for execution but keep the inmates' death sentences intact, which was what he did in the case of Terrance Williams. Williams was scheduled to be executed March 4 for the 1984 robbing and fatal tire-iron beating of another man in Philadelphia.

"The governor took the action to place a moratorium on the death penalty because Pennsylvania's capital punishment system is flawed — it's ineffective, expensive, and many times unjust," Wolf spokesman Jeff Sheridan said Wednesday. "As he stated Friday, the governor will wait for the report being produced by the bipartisan Pennsylvania Task Force and Advisory Commission on Capital Punishment, established by the state Senate, and the recommendations within the report are addressed satisfactorily."

Wolf was within his legal right to grant a reprieve under Article 4, Section 9 of the state constitution, Sheridan added. That section also gives the governor the power to commute sentences and issue pardons.

In his lawsuit, Williams says the governor can grant reprieves only as a temporary measure to allow a defendant to pursue "an available legal remedy." The governor cannot grant open-ended reprieves in cases where there are no legal questions surrounding guilt, the suit states. "Merely characterizing conduct by the governor as a reprieve does not make it so," Williams wrote, citing a successful 1994 lawsuit Northampton County District Attorney John Morganelli filed against Gov. Robert P. Casey to enforce the death penalty against Martin D. Appel and Josoph Henry....

"The scope of the reprieve power is not mysterious or vague, and it is limited," Williams' lawsuit states. "Unlike some states, Pennsylvania does not grant the governor an unlimited at-will power of clemency, without which it is not even possible to posit an arguable ability to impose a moratorium."

The filing by Philadelphia DA Williams, which is styled an&"Emergency Commonwealth Petition For Extraordinary Relief Under King's Bench Jurisdiction," was filed in the Supreme Court of Pennsylvania and is available at this link.  I find the filing quite effective and compelling, and I thought these passages were especially notable:

On February 13, 2015, the Governor issued a purported reprieve in connection with his publicly-announced assumption of a constitutionally-nonexistent power to declare a “moratorium” on death sentences in Pennsylvania.

This lawless act by the Governor, improperly and inaccurately characterized as a reprieve — for the act issued in this case is not, in fact, a reprieve — is not within the constitutional powers of the Governor, usurps judicial review of criminal judgments, and is in direct violation of his duty to faithfully execute Pennsylvania law under Article IV, § 2. It is unconstitutional, illegal, and should be declared null and void by this Court....

The alleged reprieve, which is not a reprieve at all, violates the constitutional separation of powers.  The constitution requires due process, not the Governor’s personal standard of absolute perfection; and the task of assuring that criminal judgments meet that correct standard is assigned to the judiciary, not the executive.Exercise, by another branch, of an extra-constitutional attempt to disturb settled judgments in criminal cases is an impermissible usurpation of the exclusive function of the judiciary....

In law and in reality, therefore, the Governor seeks to nullify valid, final judgments of sentence in usurpation of the judicial function, and seeks to subject the law governing capital sentencing to the test of his personal standard of satisfaction,which in this instance happens to be a test of infallibility that is impossible for mere mortals to satisfy. This is not permissible in a government that is founded on the principle that the people are to be ruled by laws enacted by their representatives in the legislative process, and not the personal whims of a king or dictator. The constitutional role of the Governor is to execute the law, not sabotage it.

February 20, 2015 at 10:45 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional":


"quite effective and compelling"

Well, depends on what the point is. As legal maneuver, seems a tad unorthodox.

Posted by: Joe | Feb 20, 2015 12:04:28 PM

How about this:

"not the Governor’s personal standard of absolute perfection; and the task of assuring that criminal judgments meet that correct standard is assigned to the judiciary, not the executive"

oh? Lots of governors, including those that clearly support the death penalty, have commuted sentences or even pardoned people on their "personal" standard of what the "correct standard" is w/o finding it compelled by the law to do so. That is, it is a matter of grace. Likewise, the USSC has repeatedly cited this alternative mechanism. Once it cited it being akin to "holding a court of equity in his own breast."


In the process, the governor is in effect closing off a range of punishments as applied to people that the courts themselves (since it only occurred by executive act) found acceptable. This is not found to be the act of a "king or dictator." Those states that want to lessen the power of the governor here, like Texas, have done so. The PEOPLE of the state in effect - given notice of his views during the campaign -- gave him the power here.

The guy should in effect blame the people who voted for this the governor. Scapegoating is easier.

Posted by: Joe | Feb 20, 2015 12:12:40 PM

Nobody is questioning the power of Governor Wolf to commute the sentence of everybody on death row (if he wants to accept the political fallout). The issue in the case is whether the lesser power to grant a reprieve permits an indefinite moratorium, particular when the moratorium is not connected to a pending challenge to the offender's sentence. Of course, by challenging the reprieve, the Philadelphia PA may force the governor to make a decision on commuting those death sentence -- which could not be rescinded by the next governor. (As the old saying goes, be careful what you wish for.)

Posted by: tmm | Feb 20, 2015 12:36:49 PM

The "particular when the moratorium is not connected to a pending challenge" part continues to suggest that the governor's power here is somehow bound to judicial challenges. It isn't. It is, and has long been said to be, an ADDITIONAL level of protection as well as having other purposes (e.g., for political prisoners for the good of public peace generally). Judicial determinations are but a factor in their judgment.

The "indefinite moratorium" is being challenged in a certain way & my comment addressed part of it. The narrower concern cited I'd add is not a result of some novel development -- other governors have declared that they would for the time of their administrations or for some indefinite time while they await a study or commission which they would then judge the results of set forth a moratorium of the death penalty (or something else). I am however not aware of such a lawsuit challenging it.

Posted by: Joe | Feb 20, 2015 2:32:16 PM

It is also somewhat curious that if he could just commute everyone's sentence while a temporary reprieve is somehow WORSE. A commutation "cuts off punishments" MORE. The last parenthetical is noted, but it only underlines that the argument made in the challenge is somewhat less than "compelling."

Posted by: Joe | Feb 20, 2015 2:37:20 PM


(1) This case is based upon the PA state Constitution so the experience of other states is not directly relevant to PA as different states have different constitutions.

(2) Simply as a logical mater it seems to me that the ability to pardon or commute does not include the ability to ignore a judgement. Now, there may be some other source in PA law for a "reprieve" but I don't think the source of that power can be found in the pardon power. The executive does offer an additional layer of protection but that writ is not unlimited.

(3) As a matter of public policy I think that is the right answer too. The executive should respond to the judicial judgement with a straight up or down vote. If the executive believes there has been a miscarriage of justice he can commute or pardon. If he doesn't then he must fulfill the judgement. The governor shouldn't have a constitutional remit to vacillate.

Posted by: Daniel | Feb 20, 2015 9:24:55 PM

As Obama was stymied by Congress, this out of control Governor should also be stymied in every forum, the legislature, the courts, and just plain disobedience of his nutty decisions.

Posted by: Supremacy Claus | Feb 21, 2015 4:34:51 AM

Joe, I was framing what the legal issue is. There are lots of circumstances when statutes and constitutional provisions end up making it harder to do a "lesser" task rather than to do the "greater" task. The professor appears to think that the prosecutor has made a strong argument under Pennsylvania law that there are significant restrictions on the power of the Pennsylvania Governor to establish a de facto moratorium. The courts will tell us if the prosecutor's and the professor's reading of the law is proper. If you think there is a clear court decision in Pennsylvania undercutting that argument, please let inform us of that case.

Posted by: tmm | Feb 21, 2015 9:31:15 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB