- Associated Press - Tuesday, March 1, 2016

HARRISBURG, Pa. (AP) - Democratic Gov. Tom Wolf’s administration is asking the Pennsylvania Treasury Department to pay about $200 million in prison costs without legislation to authorize it, which GOP lawmakers say would be unprecedented.

Treasurer Tim Reese told lawmakers last week he’s carefully considering making the payment. On Tuesday, his office said he was still weighing a decision. Republican lawmakers, however, say spending over the appropriated amount could set a far-reaching precedent that would diminish the Legislature’s power in Harrisburg.

Wolf administration lawyers and the attorney general’s office say such spending to protect the welfare of prisoners is warranted under the U.S. Constitution, even if it conflicts with the Pennsylvania Constitution.

Lawmakers approved a GOP-spending plan in December with $1.9 billion for prisons, despite Wolf’s opposition to the plan. Wolf vetoed half of that amount in a wider budget dispute with lawmakers, now starting its ninth month, and the state has spent up to the authorized amount - $956 million - left by Wolf’s partial veto.

In a legal opinion, First Deputy Attorney General Bruce Beemer cited court precedent in telling treasury officials that failing to provide a minimum level of basic service and protection to inmates would violate constitutional restrictions against cruel and unusual punishment and abridging a person’s freedom.



“If the department was forced to completely cease operation of state correctional institutions … it would be impossible to comply with these minimum requirements of federal law,” Beemer wrote to the Treasury Department on Friday.

Earlier last week, lawyers for the governor’s office came to a similar conclusion in a five-page memo.

“If the deprivations are systemic and wide-spread, (the Department of Corrections’) liability could be greatly increased and the remedy could include judicial intervention in the form of external monitoring by the Department of Justice or direct court oversight or even receivership,” wrote General Counsel Denise Smyler and her deputy, Geoffrey Moulton Jr.

Senate Finance Committee Chairman John Eichelberger, R-Blair, raised the issue with Reese during an Appropriations Committee hearing last week for the Treasury Department.

“What I’m concerned about is this is a precedent-setting situation for the commonwealth, that we look at this 10, 20 years from now, and say, ‘Well, the first year the Wolf administration they requisitioned funds that weren’t appropriated so apparently that’s permitted,’” Eichelberger told Reese. “And it puts the Legislature in a very bad situation with checks and balances in a structural system of how the budget should work and how the balance of power operates in Harrisburg.”

Reese did not tip his hand as to how he might act, but acknowledged that he was dealing with “very huge precedents.”

“That’s why I’ve really tried to really ponder this and be consistent on it in a manner that I think is correct or prudent or, in our case, had some legal standing” around paying salaries of prison workers, Reese said.

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