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August 4, 2012

Death row prisoner in Oregon prevails (for now) in effort reject Gov's effort to preclude his execution

As reported in this local article, headlined "Judge rules inmate Gary Haugen, seeking execution, has right to reject governor's reprieve," the first round of fascinating role-reversal capital litigation taking place in Oregon has been won by a condemned murderer seeking to be executed. Here are the basics:

Death row inmate Gary Haugen won a legal battle Friday against Gov. John Kitzhaber when a judge ruled he could reject the governor's reprieve of his execution and move forward in his efforts to die by lethal injection. The opinion by Senior Judge Timothy P. Alexander is expected to initiate new adversarial proceedings between the prisoner who volunteered to die and the governor who had a change of heart about capital punishment....

Alexander, a state senior judge handling the case in Marion County, wrote that he put his personal feelings aside, ruling on legal precedent and the facts of the case. He took the unusual step of writing that his decision wasn't intended as criticism of Kitzhaber or the views the governor expressed when he issued the reprieve in November.

"In fact," Alexander wrote, "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. Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever result in executions."

Alexander's opinion says that Kitzhaber can give Haugen a reprieve until he leaves office, but Haugen is not obliged to accept it. "Because (Haugen) has unequivocally rejected the reprieve, it is therefore ineffective," the judge wrote.

Kitzhaber's office responded to the ruling, saying the governor likely will appeal it. "We are confident that the governor's authority will be upheld," the statement said.

Clatsop County District Attorney Josh Marquis, who advocates for Oregon's death penalty, credits Kitzhaber for taking a strong stand on such an emotional issue. But that stand, he said, comes with some political risk, because the majority of Oregon voters support capital punishment. "The downside is, Oregonians are going to look at him when he runs for re-election and say, 'Wait a minute, does he really respect the law?"...

Haugen was sentenced to life in prison for murdering the mother of his former girlfriend in Northeast Portland in 1981. He later murdered a fellow prisoner at Oregon State Penitentiary. A jury sentenced him to death in 2007....

If the governor appeals, the case could go before the Oregon Court of Appeals or the Oregon Supreme Court, depending on decisions made by parties to the case, said Phil Lemman, a spokesman for the Oregon Judicial Department. After that, a death warrant hearing would need to be scheduled before Haugen could be executed. "We're a ways away from knowing when any execution date would be," Lemman said.

The process struck Richard Dieter, director of the Death Penalty Information Center, as wasteful. "This case is probably going to drag through more courts and go back and forth before it's finally decided," said Dieter, whose organization collects comprehensive national data on capital punishment and is widely viewed as opposed to the death penalty.

The full seven-page ruling in this first round of Haugen v. Kitzhaber is available at this link.

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August 4, 2012 at 01:46 PM | Permalink


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The judge's opinion seems defensible based on the Oregon case law that he cites (none of which I've read, so I'm taking his word for it). However, in so far as that case law rests on Marshall's opinion in Wilson, it is seriously flawed analytically.

In the first place, Marshall's deed theory is plainly dicta, because the defendant had in fact accepted the President's grant of clemency. He had been charged with two separate incidents of robbery of the mail; both cases were potentially capital offenses because he had put the life of the mail carrier in jeapardy by using a weapon. He was convicted of the first robbery and sentenced to death.

Thereafter, he pleaded guilty to all the remaining non-capital charges related to both incidents, in exchange for an understanding that the President would pardon the offense for which he had already been convicted, on the condition that it would not extend to any of the other offenses then pending against the defendant, for which he would be imprisoned. The defendant plainly accepted this deal in order to avoid a second capital charge. (In fact, the warrant is somewhat ambiguous about the precise nature of the grant, since the term "commutation" was not then commonly used. It was styled a "pardon," but it also said that it was meant to "remit" the previously imposed death sentence, with the "express stipulation" that it would not extend to any other offense pending before the court. Today, it would in all likelihood have been considered a commutation of the death sentence, in exchange for the guilty plea to the non-capital charges).

In any event, when the defendant was sentenced on the remaining charges, he naturally didn't want to plead the pardon in his defense, because if the plea had been rejected, he was potentially subject to a capital charge for the second robbery, which was a completely separate transaction, for which jeopardy had not attached. To be sure, the fact that he was also pleading to non-capital charges arising from the first robbery was problematic, but this was a matter of indifference to him, because it spared him from exposure to an almost certain death sentence for the second robbery. But the refusal to affirmatively plead an act of clemency in defense is analytically different from a refusal to accept it in the first place.

Secondly, Marshall's understanding of English common law practices was simply wrong. In practice, the pretence of securing the prisoner's consent to a royal pardon was never more than a formality in England, which was eventually abandoned to boot. See Simon Devereaux, Imposing the Royal Pardon: Execution, Transportation, and Convict Resistance in London, 1789, 25 L. & HIST. REV. 101 (2007); see also Schick v. Reed, 419 U.S. 256, 261-62 (1974)("[T]he requirement of consent was a legal fiction at best; in reality, ... the Crown was exercising a power that was the equivalent and completely independent of legislative authorization."); Note, 41 HARV. L. REV. 98, 99 (1927) ("None of the English commentators mentions the necessity of acceptance. ... The earlier view of the Supreme Court [articulated by Marshall] ... rested on a misconception of early English decisions on points of pleading.").

Finally, I think the logic of Holmes's opinion in Perovich is persuasive. An individual defendant can no more exercise a functional veto over the chief executive's estimate of the public interest in carrying out his sentence than he had a say in determining the appropriate punishment for his crime in the first instance. To conclude otherwise would force the President (or Governor) "to permit an execution which he had decided ought not to take place unless the change is agreed to by one who on no sound principle ought to have any voice in what the law should do for the welfare of the whole." Biddle v. Perovich, 274 U.S. 480, 487 (1927).

I think the Governor should appeal and ask the state supreme court to reconsider its case law on the subject.

Posted by: Sam Morison | Aug 4, 2012 4:49:12 PM

When this happened months ago I said that this was illegal. A governor cant give a reprieve/pardon to a killer who hasnt requested it. It makes no sense. Lets hope the voters remember this action.

Posted by: DeanO | Aug 5, 2012 10:23:26 AM

I appreciate but remain agnostic to Sam Morison's analysis, noting though that the final point on the logic of Holmes makes sense. The power at issue has various purposes, some not limited to the defendant, and a veto power of this sort would not be appropriate. This doesn't answer the Oregon law point, but it does address the federal law point (I think that philosophy is the one in the federal Constitution) & good policy as a whole.

The refusal -- as suggested by the governor -- might be different if the net effect was admitting guilt or need to testify, though maybe not, but that is a wrinkle not apparently at issue here.

Posted by: Joe | Aug 5, 2012 10:32:08 AM

I don't see a federal judge ruling that there is a "right" to be executed. The force of the Holmes' position is utterly compelling. The criminal has no say in the original sentencing decision, and shouldn't have any on the back end. Sentencing is a policy matter, not a matter of personal preference. If the state no longer wants to keep someone in prison, there is (should be) no "right" to hang around, on tax payer dollars. If the executive decides prison is not an appropriate sentence to begin with, there is (should be) no right to bust in and demand a cell. Clearly Marshall (an extreme Federalist) was not thinking of these things when he made his ruling in Wilson (or when he avoided making a decision on a similar question during the Aaron Burr conspiracy trial).

It seems to me that the only prayer Marshall's analysis has in a modern federal court is with respect to a pardon which simply restores civil rights. Maybe there is some snowball's chance that such an act of clemency can be distinguished from all of the rest out of concern for the implication of guilt. And, of course, in the event of such a ruling, the pardons of Henry Flipper and Charles Winters would be unconstitutional.

I read between the lines in the judge's opinion here. I hear him say, "We are backward-ass and out of tune, but I, personally, am not going to be the person to instigate the inevitable change. That is above my pay grade. Let someone else take the heat."

Posted by: P.S. Ruckman, Jr. | Aug 6, 2012 12:00:30 AM

The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

Posted by: serviced apartments london | Nov 13, 2012 6:58:54 AM

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