By Jonathan J. Cooper Associated Press
SALEM, Ore. — A condemned inmate who says he wants to die can reject a reprieve from the death penalty issued by Oregon’s governor, a judge ruled Friday in a case that probes the limits on the governor’s power.
Circuit Court Senior Judge Timothy Alexander ruled that convicted killer Gary Haugen is not required to accept clemency from Gov. John Kitzhaber. The governor’s office says an appeal to a higher court is likely.
Last year, Haugen said he would voluntarily waive legal appeals that could delay his execution for years and fought to speed his punishment in protest of a criminal justice system that he says is broken.
But Kitzhaber, who opposes capital punishment, said no executions would occur while he is governor. Weeks before Haugen was scheduled to die by lethal injection last December, Kitzhaber issued an order preventing the execution for the rest of his time in office.
“We are confident that the governor’s authority will be upheld,” Kitzhaber spokeswoman Amy Wojcicki said. “We are currently reviewing the case and will likely appeal.”
Alexander, the judge, said a hearing will be set to establish an execution date “as soon as this decision is final.” In his ruling, he said that he agrees with many of Kitzhaber’s concerns about the death penalty but that precedents from higher courts support Haugen’s argument.
“My decision…is not intended to be a criticism of Governor Kitzhaber or the views he has expressed…” Alexander wrote. But, he added, “I’m required to set aside my personal views and decide this case on its merits and the law.”
The case raises the question of how much power the governor has under the Oregon Constitution to grant clemency. Lawyers for Kitzhaber argued that his authority is “broad and virtually unfettered.”
Haugen’s lawyer, Harrison Latto, argued that the reprieve was invalid because it ends on the uncertain day that Kitzhaber leaves office, not on a specific date. Citing a handful of early decisions by the Oregon Supreme Court, Latto also argued that clemency is “an act of grace or favor” that can be rejected.
The judge found that Kitzhaber’s reprieve doesn’t have to expire on a specific date, but that earlier cases establish Haugen’s right to reject a reprieve.
The U.S. Supreme Court has taken opposing positions on the president’s clemency power, concluding in 1833 that a pardon can be rejected but finding in 1951 that “the public welfare, not his consent, determines what shall be done.”
Alexander noted that the state high court is not required to follow the federal court’s evolution.
Haugen was serving a life sentence for the 1981 murder of his former girlfriend’s mother when he was sentenced to death for the 2003 killing of a fellow inmate.
The governor has said he has no sympathy for Haugen but opposes capital punishment and believes Oregon’s death penalty laws are “compromised and inequitable.” He says death sentences amount to an expensive life term.
Oregon has a complex history with capital punishment. Voters have outlawed it twice and legalized it twice, and the state Supreme Court struck it down once. Voters most-recently legalized the death penalty on a 56-44 vote in 1984.
Since then, the state has executed two people, both during Kitzhaber’s first stint as governor between 1995 and 2003. Both inmates, like Haugen, had volunteered for execution, waiving their appeals, and Kitzhaber said last year that he’d long regretted his decision not to block them.
Kitzhaber’s reprieve will last until he leaves office. His term ends in January 2015, and he has not said whether he’ll run for re-election.
Kitzhaber said he hopes his decision will prompt a public re-evaluation of the death penalty in Oregon and said he will advocate for a ballot measure that would make it illegal. The governor said he prefers murderers be given a life sentence without the possibility of parole.