The following is a letter sent from Gary Haugen's attorney to Gov. John Kitzhaber.
I represent Mr. Haugen, who as you know is incarcerated at the Oregon
State Penitentiary under a sentence of death imposed by the Marion County
Circuit Court on May 3, 2007.
After the circuit court issued a death warrant, pursuant to which Mr. Haugen
was scheduled to be executed on December 6, 2011, you issued on November 22
what you called a "reprieve," which by its terms will last for the duration of your
service as Governor. You also announced that, as long as you continue to serve as
Governor, you will not permit Mr. Haugen, or any other person to be executed.
According to decisions of the Oregon Supreme Court, a reprieve, like a
pardon, is ineffective unless it is accepted by the person in whose favor it is
granted. The cases are Carpenter v. Lord, 88 Or 128, 137, 171 Pac 577
(1918)(pardon), and In re Dormitzer, 119 Or 336, 340, 249 Pac 639
Mr. Haugen hereby rejects the purported reprieve you have offered to him.
Although a lawyer purporting to represent Mr. Haugen filed the reprieve in court,
which might be construed as an acceptance of it, Mr. Haugen considers that act to
be legally ineffective and void, inasmuch as the lawyer acted without his
knowledge or authorization.. He is filing today a motion asking the court to annul
that filing. An act of this importance cannot be legally accomplished by a lawyer
unless he acts according to the express instructions of his client.
Regardless of whether a reprieve must be accepted to be effective, or
whether Mr. Haugen is no longer entitled to reject the reprieve because of his
lawyer's filing of it, he also believes that, upon his application for re-issuance of
the death warrant, the circuit court will treat the reprieve as legally ineffective, for
the reason that that it exceeds your constitutional authority as Governor.
Section 14 of Article V of the Oregon Constitution gives the Governor the
power to grant "pardons, commutations, and reprieves." These are each legal
terms of art with well and long-established, precise meanings.
A "pardon" erases a criminal conviction completely; it blots out guilt and
absolves a person of all legal consequences of a conviction. A "commutation"
reduces a convicted person's sentence, to some lesser sentence that could have
been imposed for the same crime. Obviously, you have neither pardoned Mr.
Haugen, nor commuted his sentence.
Nor does the document you signed on November 22, 2011, legally
constitute a reprieve. A reprieve has two essential characteristics. First, it is
issued for a definite period of time. Thus, Ballentine's Law Dictionary (3d ed
1969) defines a "reprieve" as a postponement of the execution of a sentence "for a
definite time, or to a day certain."
Second, a reprieve is issued for the purpose of enabling a prisoner who is
sentenced to death time to take some action, which his execution would prevent
him from taking. That is, a reprieve is granted when the particular circumstances
of a condemned prisoner render his immediate execution inhumane or unjust. For
example, a reprieve might be issued so that a prisoner will have the time to seek
some remedy in court. The court's authority to issue a stay then takes the place of
the reprieve, which expires according to its nature and terms.
Your purported reprieve of Mr. Haugen satisfies neither of those two
requirements. First, the reprieve is for an indefinite period of time, rather than for
a definite one. It is in effect only while you continue to hold the office of
Governor, which is a period that might end at any time, with your resignation or
death, or the expiration of your current term in office, or could last until you leave
office after your election to a second term; that is, for about another seven years.
Second, you did not grant the reprieve to enable Mr. Haugen to do
something. Rather, by its terms you acted only because, in your view, the death
sentence in Oregon has not been "fairly and consistently applied," and because the
execution of Mr. Haugen, or of any other condemned person, would not "bring
justice." In your statement that accompanied the reprieve you stated that you had
granted it because ofyour misgivings about how Oregon's death penalty is being
applied and your moral opposition to the death penalty under any circumstances.
The ostensible reprieve is beyond your lawful authority for a third reason.
There is strong legal authority supporting the idea that pardons, commutations,
and reprieves are acts that must be based upon the Governor's individualized
judgment that a particular person deserves that relief. In Mr. Haugen's case, you
made no such judgment. Your action, in contrast, is more in the nature of an
attempted nullification of a particular Oregon law. The Governor, under the
Oregon Constitution, has no such power.
It may be that you are under the impression that your decision to issue a
reprieve is a matter that is unreviewable by the courts. Although there are
extensive dicta inEacret v. Holmes, 215 Or 121,333 P2d 741 (1958), that might
be construed to support that view, I am confident that the judicial branch will not
treat that case as divesting it of its power to determine whether your act was within
your constitutional power.
The Supreme Court stated in Eacret v. Holmes that courts may not review
the Governor's exercise of his discretion and judgment in deciding whether a
particular inmate was deserving of a pardon. That will not be the question
presented, however, should Mr. Haugen seek to have your reprieve invalidated and
a death warrant re-issued. Instead, it would present the threshold question of
whether what you have labeled a reprieve is, or is not actually a reprieve and
therefore an act within the Governor's constitutional power under Section 14 of
Article V. The courts will consider that issue as coming within its power to define
the meaning and scope of that constitutional grant of authority, because otherwise,
the Governor could easily insulate his act from judicial review simply by attaching
a certain label to it. Courts act on the basis of substance, not terminology.
The basis of the pardon power that, for hundreds of years, has been given to
governors, presidents, and monarchs, is the idea that these officials should have
the ultimate power to bestow mercy upon a convicted or condemned person. Mr.
Haugen does not feel that you are treating him mercifully by forcing him to remain
in a kind of legal limbo that will last for an uncertain period of time, potentially as
long as seven years, at the end of which he might, or might not be put to death.
Putting Mr. Haugen into that position against his will is more accurately
described, in his view, as cruel and unusual punishment. While you have every
right, of course, to lead a campaign to repeal the death penalty in Oregon, Mr.
Haugen should not be forced to serve as a pawn in that effort.
For these reasons, it is Mr. Haugen's intent, unless you soon take some
other action that is within your constitutional authority as Governor, to ask the
circuit court to re-issue the death warrant.
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