Law, Morality and the Death Penalty Moratorium

By Austin Nolen

On February 13th, Pennsylvania Governor Tom Wolf announced that he was putting a “moratorium” on executions in the Commonwealth. As he explained in a public memorandum, he is not banning executions permanently, but is granting a reprieve (or a temporary stay of sentence, not a pardon) to Terrence Williams, whose death warrant was signed by Tom Corbett, until he receives and implements the report from the Pennsylvania Task Force and Advisory Committee on Capital Punishment, created by a Senate resolution 2011. He also intends to issue the same reprieve for any other individuals who might be scheduled for execution during that time frame.

District Attorneys from across the state immediately issued harsh condemnations. In Philadelphia, Seth Williams issued a statement saying that “the power to issue a reprieve exists to permit examination of last-minute evidence or legal claims that could not otherwise be reviewed. But there are no new claims here… The reprieve is unlawful.”

The Pennsylvania District Attorney’s Association issued a similar statement, arguing that “Governor Tom Wolf’s action today granting Terrance Williams a reprieve and imposing a moratorium on the death penalty is a misuse of his power and ignores the law… A reprieve, used correctly, is a legal measure devised to prevent injustice and not a means to end the death penalty.” Dauphin County DA Ed Marsico was perhaps the most explicit, telling reporters that “I expect this will go to the courts soon.”

It’s not at all clear, however, that Wolf’s action is unlawful, or that if the reprieve goes to the courts, that the challenge will succeed. In 1994, Governor Robert P. Casey (noted for his anti-abortion and anti-death penalty stances) had been refusing for years to sign two death warrants. In response, the DA who had won the death sentences in question, John Morganelli of Northampton County, brought an action in mandamus, or an action to force Casey to perform a mandatory duty.

In that case, the Commonwealth Court ruled that PA governors do have a mandatory duty to carry out execution sentences by signing death warrants, and that Casey’s claims of reprieve didn’t alter this, because he had not used that power properly. In their decision, the judges wrote that “to exercise the constitutional power of reprieve, which requires no Pardon Board action, the Governor obviously must grant the reprieve-normally for a defined purpose or period-rather than adopt the wholly ambiguous posture of doing nothing.” Casey had not done this, and had only claimed reprieve after the fact.

Wolf, on the contrary, has publicly granted a reprieve for a defined purpose and period – to insure that any executions which occur do so in a fair system, and until a report on the death penalty system is issued. It seems that this action, even if it might be motivated by a desire to abolish the death penalty, is within Wolf’s constitutional powers, and a valid exemption to his duty to carry out a death sentence.

If the District Attorneys’ threats of legal action may be misplaced, what about their moral fury? In his statement, DA Williams writes that, in regard to Terrence Williams, “there is not a shred of doubt about his guilt. Even his own lawyers don’t claim he is innocent… He planned each [crime] in advance, he made careful efforts to cover up his involvement, and he made sure to profit.”

Governor Wolf doesn’t dispute this. He writes that “in this case, there is no question that Terrence Williams committed a grievous act of violence… The reprieve announced today does not question Williams’ guilt. Rather, I take this action because the capital punishment system has significant and widely recognized defects.”

Below the issue of the documented problems with Pennsylvania’s execution system, which alone are serious enough to warrant serious scrutiny, there is a deeper issue. DA Williams describes the acts that put Terrence Williams on death row as especially awful because they were premeditated, planned in advance with care taken to conceal his identity. Yet, the Philadelphia DA proposes that justice in this case ought to look like quite like the crime: a killing planned ahead of time and carried out by people who take care to hide their involvement.

In “Reflections on the Guillotine,” French philosopher and anti-communist Albert Camus wrote that “for there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.” In Pennsylvania, decades must be substituted for months. Moreover, Pennsylvania’s law regarding executions specifically provides that “the identity of department employees [and] department contractors… who participate in the administration of an execution pursuant to this section shall be confidential.”

Seth Williams is right to condemn the actions of a man who committed brutal crimes in a cold, calculated and concealed way. He is wrong to believe that the answer to those crimes lies at the hands of an equally calculating and surreptitious system of men whose actions, but for the law, would be crimes far more heinous than those being punished.

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