Bruce McCain: Kitzhaber’s End Game? End Capital Punishment in Oregon by Fiat

November 25, 2011

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When Governor John Kitzhaber issued his de factomoratorium on all executions in Oregon, he laid out his desire and intent to abolish the death penalty in Oregon. Using his clemency powers under Article V, §14, the governor granted a temporary reprieve for Gary Haugen and for any other death penalty case that crosses his desk. In so doing, he called on the legislature “to bring potential reforms before the 2013 legislative session and encourage all Oregonians to engage in the long overdue debate that this important issue deserves.” The problem is the governor knows the legislature can do almost nothing to abolish the death penalty because Oregonians already had that debate when they placed the death penalty into Article 1, §40 of the state constitution.
One “potential reform” the 2013 legislature can effect is to refer to the voters a constitutional amendment to repeal Article 1, §40. One advantage for the governor is that the legislature can draft its own ballot title and manipulate the question like it did with Measures 66 and 67, where Yes meant No and No meant Yes. But what happens if the legislature does not refer a repeal measure, or the voters reject the repeal, keeping Article 1, §40 in the constitution?
Governor Kitzhaber telegraphed his end game in his three-page statement on November 22, when he warned, “I could have commuted Mr. Haugen’s sentence – and indeed the sentences of all those on death row — to life in prison without the possibility of parole.” Kitzhaber claims he did not resort to commutation (yet) because “the policy of this state on capital punishment is not mine alone to decide.” Yet he unilaterally halts all Oregon executions because of his own personal opposition to the practice. The governor insists the death penalty “is a matter for all Oregonians to decide,” while shrugging off the inconvenient truth Oregonians already decided this issue and put it into their constitution – presumably safe from meddling by the legislative or executive branches.
The governor does not attempt to hide his disdain for capital punishment, a position shared by many, if not most liberal progressives. Indeed, his November 22 prepared statement highlighted virtually every talking point provided to him by the Oregon ACLU and others in a November 6 letter urging him to do exactly what he eventually did. Dr. Kitzhaber apparently bases his personal opposition to capital punishment at least in part on his Hippocratic Oath to “do no harm,” despite the fact none of the condemned killers on death row are under his medical care. Ironically, Dr. Kitzhaber would likely not hesitate to write a script for a lethal cocktail for Gary Haugen if he qualified for death under Oregon’s assisted suicide law.
The governor summarized his personal position when he said, “Personally, I favor replacing the death penalty with life in prison without the possibility of parole and will argue for that policy in any future debate over capital punishment in Oregon.” While he is willing to temporarily wait for a potential statewide vote on a repeal of Article 1, §40, Kitzhaber knows that in the end, he will ultimately prevail regardless of the past or future will of the people he was elected to serve. He clearly wants Oregonians to agree with his position and thereby avoid a constitutional showdown by giving the people one last chance to capitulate to his personal beliefs. But he also knows he holds all the cards that matter in this rigged game.
The last time John Kitzhaber was governor, he earned the well-deserved nickname as ‘Dr. No” for his prolific use of the veto. However, the defining issue for Kitzhaber’s legacy may very well be the final act of his final term – the mass commutation or pardon of every convict on Oregon’s death row. Make no mistake; John Kitzhaber will not leave office with any person subject to the death penalty whether Oregonians agree with him or not. The fix is in.
Bruce McCain is an Attorney in private practice and is a retired Captain with the Multnomah County Sheriff’s Office 
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