On November 22, Governor John Kitzhaber issued what he described as a “temporary reprieve” halting the lawfully scheduled execution of two-time murderer Gary Haugen. The governor reminded Oregonians he acted pursuant to the authority granted to him under Article V, § 14, which provides, “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.” Thus Kitzhaber had three options available to him, each with a progressively more impactful effect. A reprieve is a postponing or cancellation of a punishment. A commutation replaces one sentence with another, lesser sentence. A pardon is an official act of forgiving a crime in which the conviction is eradicated from the records, the formerly convicted person is freed from further punishments and penalties, and may not be retried for the same offense. Fortunately, Kitzhaber did not commute or pardon Gary Haugen – yet.
There is no question the governor had the right and the authority to issue a reprieve in Haugen’s case. But Mr. Kitzhaber went much further by stating that no one would be executed in Oregon as long as he is governor. In so doing, he no longer acted as an executive considering a single case on its merits, but as a dictator who has unilaterally decided that Article 1, §40 of the Oregon constitution will not be in effect as long as he remains in power.
In 1984, Oregonians overwhelmingly reinstated the death penalty and enshrined it into the state’s constitution, where meddling legislators could not tamper with it. Article 1, §40 states, “Notwithstanding sections 15 and 16 of this Article, the penalty for aggravated murder as defined by law shall be death upon unanimous affirmative jury findings as provided by law and otherwise shall be life imprisonment with minimum sentence as provided by law.” In Haugen’s case, every legal step has been taken, including an Oregon Supreme Court upholding the legality of the death warrant that decreed Haugen be put to death on December 6. Yet at the last minute, the governor steps in and not only halts Haugen’s execution, but effectively suspends operation of a constitution he took an oath to uphold.
This was not a case in which a convicted death row inmate made a last gasp appeal for executive clemency. Haugen made no such appeal; instead Kitzhaber listened to and agreed with a coalition of death penalty opponents, including the Oregon ACLU and Amnesty International, who wrote to the governor on November 7 urging him to grant Haugen a reprieve and to go further and place a moratorium on all executions:
“We are asking that you grant an indefinite stay of Mr. Haugen’s execution until a comprehensive review has been conducted of Oregon’s death penalty system—a reviewdesigned to assess whether Oregon’s death penalty is working, as well as to identify problems and determine whether solutions exist. In other words, we are asking that you declare a de facto moratorium on executions in Oregon pending a comprehensive study of our death penalty system by a committee that you designate.”
Rather than uphold the Oregon constitution and the will of the people he was elected to serve, Oregon’s governor caved to the demands of the radical Left in one of the most disingenuous demonstrations of “courage” ever displayed by an elected executive. Kitzhaber is unapologetic in admitting he based his executive decision on his own personal opposition to capital punishment. Imagine the outrage if a pro-life governor decreed there would be no abortions performed in Oregon as long as he is in office, despite what the courts and constitution say.
Kitzhaber rails against the time and costs of Oregon’s lengthy appeal process – yet he allowed the very processes he criticizes to proceed, knowing he held the ace in the hole card. He allowed this case to proceed to the state supreme court, when he could have personally saved the parties and taxpayers the effort and costs by simply stepping in and saying, “Hey, everyone. Save your time and money. I’m not going to allow anyone to be executed, no matter what the constitution says or the judicial branch rules.”
The governor’s public statements explaining his decision used virtually every talking point contained in the November 7 letter from the ACLU and friends, including the use of a reprieve and declaration of “a de facto moratorium on executions in Oregon pending a comprehensive study of our death penalty system.”
Because the death penalty is in our constitution, neither the governor nor his progressive allies can change it without another vote of the people. However, rather than repeal Article 1, § 40 as the governor wants, there is another constitution amendment the people should consider: amending Article 5, § 14 to exclude aggravated murder from the reach of the governor’s personal political beliefs.
Bruce McCain is a local attorney and a former Captain with the Multnomah County Sheriff’s Office.
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