Oregon governor tests his authority on death penalty

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August 30, 2012

By Maresa Strano

Oregon

SALEM, Oregon: Oregon Governor John Kitzhaber (D) first took office in January of 1995 pledging that no prisoners would be executed on his watch. His subsequent failure on two occasions--both during his first term--to uphold that proclamation left him regretful and ready to recommit to his protest.[1]

So last December, nearly a year into his third (nonconsecutive) term, Kitzhaber invoked his gubernatorial powers to delay the execution of twice-convicted murderer Gary Haugen. The reprieve could sustain for as long as the governor held office, except that Haugen did not want his life sustained. Haugen rejected the reprieve; He waived appeal privileges and volunteered to die, as the two prisoners executed during the Kitzhaber's first term had done to circumvent the governor's clemency orders. Like Kitzhaber, Haugen thinks he can use his predicament to make a political statement. He launched a legal fight to expedite his execution- his own version of protest against a criminal justice system he believes to be broken.[2]

Gov. Kitzhaber was first elected in 1995. He served until 2003, then ran for third term re-election in 2011.

In August, Circuit Court Senior Judge Timothy Alexander in Marion County ruled with Haugen based partly on a precedent from an earlier Oregon Supreme Court case which indicated that as an "act of grace or favor," clemency power does not extend to obligating acceptance by the recipient. Despite this ruling, Alexander said "In fact I agree with many of the concerns expressed by the governor, and share his hope that the Legislature will be receptive to modifying and improving Oregon laws regarding sentencing for aggravated murder."[3]

Kitzhaber believes that Oregon's death penalty laws are "compromised and inequitable,"[1] and he favors giving murderers life sentences without possibility for parole. His objective in blocking executions like Haugen's is to provoke a "public re-evaluation"[1] about the death penalty that he hopes will lead voters to initiate a ballot measure for its repeal. Oregon voters have outlawed the death penalty twice and legalized it twice, most recently in 1984, when it passed 56-44. The Haugen case has brought the issue back into public focus, along with the subject of gubernatorial authority and its boundaries. According to the Kitzhaber's lawyers, the state constitution endows the governor with “broad and virtually unfettered” clemency power. The exact language can be found in Article 1, Section 44, and in Article 5, Section 14, both of which address the governor's power to intervene in the fate of a condemned citizen. The latter section reads: "He shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law."[4] Neither section accounts for the possibility of a reprieve getting rejected.

Kitzhaber will likely appeal to the Oregon Court of Appeals or the Oregon Supreme Court in the near future so they can ponder the nuances of gubernatorial powers of intervention versus intercession with respect to death penalty law. According to one of his spokespeople, the office is confident that in the end, "the governor's authority will be upheld."[1]

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