Commissioner Allyn Sielaff AGO 1 Official Opinion No. 1 Pennsylvania Attorney General Opinions Opinions of the Attorney General January 27, 1971 Constitutional Law—Death penalty—Previous Attorney General's declaration of unconstitutionality rescinded. 1. Under present state of law, Attorney General of Commonwealth of Pennsylvania should not rule on constitutionality of death penalty. 2. The opinion of preceding Attorney General that death penalty was unconstitutional is rescinded. 3.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: I have carefully reviewed my predecessor's letter on the constitutionality 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. It is my opinion that under the state of the law as it now exists and bearing in mind the fact that no prisoner under the death sentence in Pennsylvania is currently scheduled for execution, the Attorney General of the Commonwealth of Pennsylvania should not rule on the constitutionality or the unconstitutionality of the death penalty in Pennsylvania at this time. Although philosophically I agree with Mr. Speaker's position on capital 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 assumed 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 unconstitutional. 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...
