OFFICIAL OPINION No. 1

OFFICIAL OPINION No. 1 Constitutional Law-Death penalty-Previous Attorney General's declaration of unconstitutionality rescinded. 1. Under present state of law, Attorney General of Commonwealth of Penn- sylvania should not rule on constitutionality of death penalty. 2. The opinion of preceding Attorney General that death penalty was uncon- stitutional is rescinded. 3. Abolishment of death penalty should be by Legislature. 4. Electric chair should not be reinstalled. 5. Prisoners under sentence of death being held in solitary confinement should be returned to prison population as soon as possible. Commissioner Allyn Sielaff Bureau of Correction Box 200 Camp Hill, Pennsylvania Dear Commissioner Sielaff: Harrisburg, Pa., January 27, 1971 I have carefully reviewed my predecessor's letter on the constitution- ality of the death penalty.* In addition, I have examined the law on this subject, including decisions of the United States Supreme Court, especially In Re Kemmler, 136 U. S. 436 (1890), Trop v. Dulles, 356 U.S. 86 (1958), Weems v. United States, 217 U.S. 349 (1910), and Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 ( 1947); decisions of the United States Court of Appeals for the Third Circuit, including particularly United States ex rel. Melton v. Hendrick, 330 F. 2d. 263 ( 1964), and decisions of the Pennsylvania Supreme Court, particularly Commonwealth v. Howard, 426 Pa. 305, 231 A. 2d 860 (1967), Commonwealth v. Smith, 405 Pa. 456, 176 A. 2d 619 (1962), and Commonwealth v. Sterling, 314 Pa. 76, 170 Atl. 258 (1934). Further, I am aware of the two cases currently pending before the Supreme Court of the United States involving the constitutionality of the death penalty, McGautha v. California, No. 203 and Crampton v. Ohio, No. 204, 39 U. S. L. W. 3209. * See pp. 3-7 infra. 2 OPINIONS OF THE ATTORNEY GENERAL It is my opinion that under the state of the law as it now exists a~d bearing in mind the fact that no prisoner under the death sentence m Pennsylvania is currently scheduled for execution, the Attorney Gener~l of the Commonwealth of Pennsylvania should not rule on the consti- tutionality or the unconstitutionality of the death penalty in Pennsylvania at this time. Although philosophically I agree with Mr. Speaker's position on cap- ital punishment, this remains with me a personal view and one which cannot influence my judgment as chief law enforcement officer of the Commonwealth sworn to uphold the law. I am not deciding whether the death penalty is constitutional or unconstitutional and I am not prepared to say at this time that under other circumstances the Attorney General would not be within his legal rights in declaring an act of the State Legislature unconstitutional and unenforceable. I am simply stating that I am rescinding the opinion of my predecessor insofar as he as- sumed to rule on the broad question of the constitutionality of the death penalty. If the death penalty in Pennsylvania is to be abolished at this time, such action should be taken, either by the Legislature by repeal or by a court of competent jurisdiction declaring the death penalty uncon- stitutional. With regard to the dismantling of the electric chair at Rockview, it is my understanding that this has already been done. The death sentence has not been imposed in Pennsylvania for nearly a decade, and since the death penalty is presently being litigated before the U. S. Supreme Court, there is clearly no immediate necessity or legal requirement for maintaining the electric chair at Rockview. Accordingly, no useful pur- pose would be served by reinstalling the chair. I am informed that the 24 prisoners presently under the death sen- tence in Pennsylvania are now being held in solitary confinement, pur- portedly under the authority of the Death Sentence Act of June 19, 1913, P. L. 528, 19 P. S. § 1121 et seq., but that Act mandates solitary con- finement for convicts sentenced to be executed only at such time as the Governor's warrant is received by the appropriate warden. After inquiry, I have been informed that at the present time there are no outstanding valid warrants issued by any Governor in accordance with that Act. Ac- cordingly, since it is clear that the Death Sentence Act provides no legal authority for holding prisoners who are under the sentence of death in solitary confinement until such time as a valid Governor's warrant shall OPINIONS OF THE ATTORNEY GENERAL 3 issue, the 24 prisoners now held in maximum security should be returned to the general prison population as soon as possible providing the same is safe and practical. I direct you to provide copies of this opinion within a reasonable time to the 24 prisoners who are presently under the sentence of death and to report to me at your earliest possible convenience the action ·that you take in each case. All opinions or directives of any previous Attorney General are here- by rescinded insofar as they are not consistent with this opinion and directive. Sincerely, J. SHANE CREAMER, Attorney General. Opinion of Former Attorney General Fred Speaker Harrisburg, Pa., January 19, 1971 Mr. Joseph Mazurkiewicz, Superintendent Rockview State Correctional Institution R. D. #3 Bellefonte, Pennsylvania Dear Warden Mazurkiewicz: You are directed to remove the Electric Chair from the Execution Room at Rockview State Correctional Institution and begin conversion of the room into an office. This is another step toward a more rational and humane correctional policy and is intended to build upon the verbal instructions previously given you not to hire a new Public Executioner. These steps can be justified purely on the basis of economy. There have been no executions during the past two Administrations, and public pronouncements by Governor Shapp indicate that no electrocutions will be permitted in the foreseeable future. Because of the critical need for additional office space and because of the continued irrational expense of paying an inactive Executioner, sound management principles would indicate the wisdom of this decision. But I am not content to base this directive on economics alone. I am convinced that the imposition of the death penalty constitutes "cruel and unusual punishment" prohibited by the Eighth and Fourteenth amendments to the United States Constitution and perhaps is one of the 4 OPINIONS OF THE ATTORNEY GENERAL "cruel punishments" proscribed by Section 13 of the Pennsylvania Dec- laration of Rights. The question of constitutionality of capital punishment has seldom been considered by the Supreme Court of the United States. Indeed, the scope of the "cruel and unusual punishment" clause has been sub- stantially reviewed by the Court less than a dozen times. "The Court, however, has never held directly that the death penalty is or is not cruel and unusual punishment. It has heard argument on the issue only once, and then decided the case on other grounds. Three opinions contain short statements, made in the course of decision on related issues, which suggest that capital punishment is constitutionally permissible. Yet more recent doctrinal developments have not only undermined these statements, but also indicated growing concern among the Justices with the operation of the death penalty. The basic eighth amendment question now hangs in an uncomfortable limbo." (Goldberg & Dershowitz, Declaring the Dealth Pen- alty Unconstitutional, 83 Harv. L. Rev. 1773, 1775 (1970).) The failure of the Supreme Court to act does not preclude state ex- ecutive action. On the contrary, the Attorney General's oath "to support, obey and defend the Constitution" obliges him to determine and act upon a constitutional mandate when the Court remains silent. (See, e.g., Ex Parte La Prade, 289 U. S. 444, 458 (1932) where the Court said that the state Attorney General might hold ". . . that the statute is unconstitutional and that, having regard to his official oath, he rightly may refrain from effort to enforce it.") Upon examination of the applicable constitutional proscriptions and after logical reflection, I am of the opinion that imposition of the death penalty in the Electric Chair is both "cruel" and "unusual" punishment. Accordingly, the portions of the Act of June 19, 1913, P. L. 528, pro- viding for a sentence of death by electrocution are unconstitutional and unenforceable. Execution by electrocution is cruel. An early opinion of the United States Supreme Court stated that: " ... Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution'. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." (In re: Kemmler 136 u. s. 436, 447 (1890).) ' OPINIONS OF THE ATTORNEY GENERAL 5 Can any one read the description of an electrocution by former Penn- sylvania Supreme Court Justice Curtis Bok and believe that savagely- inflicted lingering death not to be "inhuman and barbarous"? "He started, painfully and uncertainly, to lower himself into the chair, but now the guards were swift. They lifted him deep into the seat and adjusted the electrodes at calves and wrists. "Then they fastened a thick belt across his chest and lowered over his head the heavy wired leather mask. "It hid all but the tip of his nose and his lips. He was making efforts to quiet them by biting his tongue, the best that he could do, against his racing mind and heart, to keep control and to sit erect . . . "The guards stepped back. The Warden, who had stood by with arm raised, lowered his hand. It had taken a minute and thirty-seven seconds. "There was a low whine and a short loud snap, as of huge teeth closing. "Roger's head flew back and his body leaped forward against the confining straps. Almost at once smoke arose from his head and left wrist and was sucked up into the ventilator overhead. The body churned against the bonds, the lips ceased trembling and turned red, then slowly changed to blue. Mois- ture appeared on the skin and a sizzling noise was audible. The smell of burning flesh grew heavy in the air. "Roger was being broiled. "The current went off with a distinct clap after about two minutes and Roger slumped back into his seat, his head hang- ing. No one moved. Then came the second jolt and again the body surged against the restraining straps and smoke rose from it. The visible flesh was turkey red. "Again the current slammed off and this time the doctor stepped forward to listen, but he moved back again and shook his head. Apparently Roger still clung faintly to life. "The third charge struck him, and again the smoking and sizzling and broiling. His flesh was swelling around the straps. "The doctor listened carefully and raised his head. " 'I pronounce this man dead,' he said, folding up his steth- oscope. It was seven minutes after Roger had been seated in the chair." (Bok, Star Wormwood, 114-15 (1959).) 6 OPINIONS OF THE ATTORNEY GENERAL The method of execution by electrocution was adopted as a. hum~ne device, intended to kill instantly. But Justice Bok tells us that mtent10n fails. And the very language of the Pennsylvania statute implicitly ac- knowledges that the death may be lingering: " ... Such punishment, in every case, must .be inflicted by causing to pass through the body of the convict a current ~f electricity of intensity sufficient to cause death, and the appli- cation of such current must be continued until such convict is dead." (Emphasis added.) (Act of June 19, 1913, P. L. 528, § 1.) Even if some new form of immediate electrocution or other device of instantaneous death could be developed by inventive modern tech- nology, I am convinced it would be constitutionally defective under evolving and enlightened humanitarian standards. The United States Supreme Court has recognized that Eighth Amendment standards change. What once was permissible no longer is. (See, e.g., Trop v. Dulles, 356 U. S. 86, 101 (1958) : "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"; Weems v. United States, 217 U. S. 349, 378 (1910): "The clause of the Constitution in the opinion of the learned commentators may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.") Death by electrocution is constitutionally prohibited also because it is unusual. Under our evolving standards of decency and humane justice, the imposition of the death penalty has become unusual in the extreme. Jn the first five years of the last decade, 181 men were executed in the United States. That total dropped to ten in the next two years; and no one was executed in the last three. In Pennsylvania there have been no executions since 1962. To kill a convict now, in the face of this pro- gressive evolution would be so unusual as to merit constitutional con- demnation. I have found no Pennsylvania Supreme Court case expressly uphold- ing the constitutionality of the death penalty under the Pennsylvania Constitution, although it is implied by dictum in Commonwealth v. Howard, 426 Pa. 305 ( 1967). But even if I had, Pennsylvania is obliged to follow the proscriptions of the Eighth Amendment to the federal constitution as imposed by the Fourteenth Amendment. (See Robinson v. California, 370 U. S. 660 (1962).) OPINIONS OF THE ATTORNEY GENERAL 7 The Fourteenth Amendment suggests one other ground for invali- dating the death penalty. That portion which mandates "equal protec- tion" has been grossly offended by the imposition of the death penalty. In ·the words of the former United States Attorney General Ramsey Clark: " ... It is the poor, the sick, the ignorant, the powerless and the hated who are executed. "Racial discrimination is manifest from the bare statistics of capital punishment. Since we began keeping records in 1930, there have been 2,066 Negroes and only 1,751 white persons put to death. Negroes have been only one-eighth of our population. Hundreds of thousands of rapes have oc- curred in America since 1930, yet only 455 men have been executed for rape-and 405 of them were Negroes. There can be no rationalization or justification of such clear discrimin- ation. It is outrageous public murder, illuminating our darkest racism." (Clark, Crime in America, 335 (1970).) This directive is intended to constitute both an administrative order to you as an employee of the Justice Department and a formal opinion of the Attorney General. It is intentionally issued during that brief pe- riod after the termination of Governor Shafer's incumbency but before I leave office as Attorney General. The Administrative Code of April 9, 1929, P. L. 177, gives the Attorney General the power to furnish legal advice, imposes the duty to comply upon Commonwealth departments and officers, and provides that he remains in office until a successor is "appointed and qualified." It is, openly and candidly, an attempt on my part to reach into the future. I believe deeply that our practice of killing criminals is both a dis- gusting indecency and demeaning to the society that tolerates it. In conscience I am compelled to speak out and to do what I can to stop it. The Death Room is an obscenity. Hopefully legislation to abolish the death penalty will be enacted this year. In the meantime I am unwilling to leave intact, as I depart my office, a cruel instrument of public vengeance. Sincerely, FRED SPEAKER, Attorney General. 8 OPINIONS OF THE ATTORNEY GENERAL