ACLU Supports Governor’s Moratorium in Death Penalty Case

December 2012 - The ACLU Foundation of Oregon has filed a friend of the court (amicus) brief with the Oregon Supreme Court urging it to state that a death-row prisoner’s acceptance is not required for the Governor’s reprieve of his death sentence to become effective.

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June 20, 2013 - The Oregon Supreme Court issued a unanimous opinion confirming the Governor’s broad constitutional powers to grant reprieves, commutations or pardons for all offenses (excepting acts of treason) and stated that Governor Kitzhaber’s reprieve of Gary Haugen’s death sentence is valid.

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In May 2007, Gary Haugen received the death penalty for his crimes. In 2011, he chose not to pursue his remaining appeals and asked for his sentence of death to be carried out. His death warrant was issued by the Marion County Circuit Court with his execution scheduled for December 6, 2011.

At that time, the ACLU of Oregon joined with three other organizations to petition Governor John Kitzhaber to stop Mr. Haugen’s execution by using the governor’s constitutional power to grant a reprieve. Nearly 1,000 ACLU supporters contacted the governor’s office in support of our petition. On November 22, 2011, Governor Kitzhaber issued a reprieve for Mr. Haugen, stating that he would not allow any executions to occur while he is Governor based on his belief that the current system is broken.

Mr. Haugen rejected the Governor’s reprieve and sued to have the death sentence carried out. In August, 2012, a circuit court judge declared the reprieve invalid as it applied to Mr. Haugen, concluding that under the Oregon Constitution a prisoner must accept a reprieve in order for it to be valid. The Governor has appealed the trial court’s decision to the Oregon Supreme Court and is being represented by the Attorney General’s office. The Governor has argued that acceptance is never required for an unconditional pardon, commutation or reprieve.

In our amicus brief, we have limited our argument to say that acceptance by the prisoner is not required in a death-penalty case because the death penalty is very different from other types of punishment.

There are two,  competing interpretations of the constitutional power of clemency: the acceptance theory and the public welfare theory. Under the acceptance theory, exercise of the clemency power is viewed as a private “act of grace,” which requires acceptance in order to be valid. Oregon courts have applied the acceptance theory in a few cases in Oregon history.   But a reprieve granted to an Oregon prisoner facing the death sentence has never before been challenged by an inmate.   The other theory of clemency power, the public welfare theory, is viewed as a tool for the Executive branch to exercise for the public welfare.

We have argued that the public-welfare theory is more consistent with the intent of the framers of the Oregon Constitution.   Specifically related to death penalty cases, we believe Governor Kitzhaber has clearly stated a public welfare reason for his reprieve: to allow the citizens of this state to reexamine a “compromised and inequitable system.”   Because the death penalty, if imposed, is irreversible, the ACLU of Oregon argues it is distinct from any other sentence the state can deliver. Therefore, Mr. Haugen alone does not and should not have the power to force the Governor and the State to carry out his execution. The Governor should have the power to grant either a temporary reprieve or commutation regardless of the inmate’s wishes – especially when doing so is designed to prompt Oregonians to review the fairness of a death penalty system that has only executed two volunteers since it was reenacted in 1984.

The Oregon Justice Resource Center and the Oregon Capital Resource Center joined the ACLU of Oregon as amici. The ACLU cooperating attorneys are Bruce Campbell, Elisa Dozono and Alexander Naito from the Portland law firm Miller Nash LLP.