Gov. 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, 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 Gov. 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 the use of the reprieve power was the only constitutional basis for creating a de facto moratorium.

The governor has stated 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 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 ultimately the Pennsylvania Supreme Court will find the governor's action outside of the intended purpose and scope of a reprieve.

***

Editor's note: John M. Morganelli is Northampton County district attorney. He is a past president of the Pennsylvania District Attorney's Association and in 1994 successfully prosecuted an unprecedented case against the governor of Pennsylvania to enforce Pennsylvania's death penalty.