« "Neighborhoods Seek to Banish Sex Offenders by Building Parks" | Main | "The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change) »

March 10, 2013

Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court

As reported in this new local article, headlined "Oregon Supreme Court to hear Haugen death penalty case," this top court in Oregon is due to hear arguments this week in a very interesting case concerning both clemency rights and application of the death penalty. Here are the basics:

The next step in Gary Haugen’s request to be executed is up to the Oregon Supreme Court. When the seven justices hear oral arguments Thursday, they will consider only whether the twice-convicted murderer can legally reject an unconditional reprieve issued by Gov. John Kitzhaber on Nov. 22, 2011. Kitzhaber’s action blocked the execution two weeks before it was scheduled to take place.

Haugen won the first round Aug. 3 in Marion County Circuit Court, where visiting Judge Timothy Alexander ruled that Haugen could refuse the reprieve. The Supreme Court accepted Kitzhaber’s appeal directly.

In written arguments filed with the court, Kitzhaber said Haugen has no legal right to reject a reprieve based on three main reasons: the text of the Oregon Constitution; the historical circumstances of clemency; and previous court decisions about the governor’s clemency powers.

Haugen argued through his lawyer that Kitzhaber’s action was not a true reprieve, previous court decisions support his right to refuse it, and a reprieve deprives him of federal constitutional rights such as a ban on cruel and unusual punishment.

The newspaper account of this upcoming argument provides a brief review of the parties' arguments, as well as links to some brief. Included therein is a brief with a link to a filing by the ACLU. Upon seeing the link, I was unsure which side the ACLU should and would support, given my understanding that the ACLU opposes the death penalty but also supports a person's right to die. I will leave it to readers to guess (or figure out) which commitment proved more important to the ACLU in this notable setting.

March 10, 2013 at 12:35 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court:


What was the ACLU's stance in past so-called "volunteering" cases?

Query if accepting the wishes of "twice-convicted murderers" of this sort is not a bit ironic.

The ACLU does have a lot to balance. One thing would be some obligation to kill, which would be a liberty concern in itself. The ACLU supports the right to euthanasia, but it is another matter to force specific hospitals or something to carry out the deed. The issue here is executive power and other related things, but that comes to mind too.

I'm not a big believer in letting two-time killers forcing the state to quicken their ends in this fashion. But, I'm okay with bringing the claim to help settle the legal issues.

Posted by: Joe | Mar 10, 2013 12:49:13 PM

This one is fascinating on the surface but easy underneath. An inmate has no more legal right to refuse clemency than to demand it. Nor, for that matter, does a court have any business reviewing the executive's decision to grant or withhold clemency. That power is plenary.

Case dismissed.

Posted by: Bill Otis | Mar 10, 2013 6:52:16 PM

Kitzhaber is a POS for delaying this execution.

Posted by: federalist | Mar 10, 2013 7:32:48 PM

federalist --

Oh, I agree that Kitzhaber is utterly out to lunch. But the legal power is his alone. We just live with it until a better governor shows up.

Posted by: Bill Otis | Mar 10, 2013 9:01:29 PM

The ACLU does not care about crime victims. Obvious.
It likely does not care about the rights of criiminals to make decisions in their best interest.

It cares about only one thing. The lawyer rent, to generate massive lawyer make work in appellate practice. It is the lawyer research and development branch, finding new procedures and obstructions, in ever creative invention.

Posted by: Supremacy Claus | Mar 10, 2013 9:54:19 PM

Yes, I'm with Bill. I don't even think the court has the authority to decide this case. The idea that the people are left "with no effective recourse" is bogus. They can either impeach the governor or vote him out of office.

Posted by: Daniel | Mar 11, 2013 2:25:50 AM

Perhaps, the 'obvious' side can address the article [which might be confused, of course] that suggests there is some room for debate. Also, if it is so easy, perhaps Doug Berman can address it too. Seems off for him to not note that too.

Posted by: Joe | Mar 11, 2013 10:32:40 AM

Not to point, nonetheless:
|" Haugen argued through his lawyer..deprives him of...a ban on cruel and unusual punishment. "|

Hilarious--not to kill him is cruel & unusual; to kill him is cruel & unusual (to an a-Constitutional ACLU liberal)...

Larger point:
Not to execute a murderer in so many years is cruel but unfortunately neither unusual, nor amusing, to victims.

Posted by: Adamakis | Mar 11, 2013 11:53:32 AM

It strikes me that clemency is in the nature of a gift. For a gift to be valid, generally there must be an offer, delivery, and acceptance. Generally, acceptance is presumed, because the gift confers a benefit on the recipient, but gifts can be declined. This is by no means unknown in the decedent's estate field. It is dangerous to try to extend a property-law concept to the criminal field, but it strikes me that, as a general principle, one can reject a pardon, which carries with it an implicit admission of guilt. However, a commutation says, in effect, that the state feels the inmate has served enough time, and the state has no interest in further incarceration, and the inmate is then released, though perhaps to face more serious charges elsewhere. It strikes me that a "reprieve" is simply a postponement, perhaps indefinitely, and perhaps forever, of the prescribed punishment of death. If that's how Oregon looks at this, I think that is entirely up to the executive branch, and the inmate has no say in the matter. However, I don't know how my views fit into Oregon's system.

Posted by: Greg Jones | Mar 12, 2013 10:21:20 AM

I wonder what the difference between a reprieve and a commutation is? The article also implies there is some relevant case law in Oregon, which is probably the place to look for an answer to the legal question.

Posted by: anon | Mar 12, 2013 11:39:34 AM

I agree with the latter part of anon's statement but apparently it is so "obvious," that it is not worth more examination by the people here.

Posted by: Joe | Mar 12, 2013 1:53:58 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB