haugen: brief in support

7/31/2019 Haugen: Brief in Support

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE THIRD JUDICIAL DISTRICT

GARY D. HAUGEN,

Plaintiff,

v.No. 12C16560

JOHN KITZHABER, Governor of theState of Oregon,

Defendant.

PLAINTIFFS MEMORANDUM

IN SUPPORT OF MOTION FOR

JUDGMENT ON THE PLEADINGS


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TABLE OF CONTENTS

I. Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Summary of proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. The Governors reprieve is both ineffective and unlawful.. . . . . . . . . . . . . . 7

A. A reprieve must be accepted to be effective.. . . . . . . . . . . . . . . . . . . . 9

1. The acceptance theory, which is derived fromfederal law, does not depend upon the conditional

or unconditional nature of the clemency... . . . . . . . . . . . . . . . 15

2. Even if the conditional or unconditional nature ofthe clemency is relevant, this particular reprievecarries its own, inherent conditions... . . . . . . . . . . . . . . . . . . . 24

B. The Governors reprieve is unlawful because it exceeds

the authority conferred upon him by Article V, section 14... . . . . . . 29

1. Constitutional context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

2. Statutory context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

3. Case law... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

4. Lessons from history.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

IV. Resolution of the issues presented is within this courts authority.. . . . . . . 49

V. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

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TABLE OF AUTHORITIES

Cases

Anderson v. Alexander, 191 Or 409, 229 P2d 633 (1951). . . . . . . . . . . . . . . . . . . . 8

Biddle v. Perovich, 274 US 480 (1927). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Bollinger v. Board of Parole, 329 Or 505, 992 P2d 445 (1999). . . . . . . . . . . . . . 23

Burdick v. United States, 236 US 79 (1915). . . . . . . . . . . . . . . . . . . . . . . . . . 18-21

Carpenter v. Lord, 88 Or 128, 171 P 577 (1918). . . . . . . . . . . . . . . . . . . . 11, 12, 14

Commonwealth v. Lockwood, 109 Mass 323 (1887). . . . . . . . . . . . . . . . . . . . . . . 21

Eacret v. Holmes, 215 Or 121, 333 P2d 741 (1958).. . . . . . . . . . . . . . . . . 50-52, 54

Ex parte Hyde, 192 So 195 (Fla 1939). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Ex parte Houghton, 49 Or 232, 89 P 801 (1907). . . . . . . . . . . . . . . 9-10, 12, 14, 23

Ex parte William Wells, 59 US 307 (1856).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Fehl v. Martin, 155 Or 455, 64 P2d 631 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Furman v. Georgia, 408 US 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

In re Medley, 134 US 160 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26

In re Petition of Dortmitzer, 119 Or 336, 249 P 639 (1926). . . . . . . . . . . 12-14, 23

Johnson v. Bredesen, 130 S Ct 541 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Lenhard ex rel. Bishop v. Wolff, 603 F.2d 91 (9 Cir. 1979). . . . . . . . . . . . . . . . . 28th

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MacPherson v. Department of Administrative Services,340 Or 117, 130 P3d 308). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Marbury v. Madison, 5 US 137 (1803). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

McCarthy v. Hoan, 221 Wis 344, 266 NW 916 (1936). . . . . . . . . . . . . . . . . . . . . 51

Palka v. Walker, 198 A 265, 267 (Conn 1938).. . . . . . . . . . . . . . . . . . . . . . . . . . . 41

People v. Anderson, 6 Cal 3d 628, 493 P2d 880, 894 (1972).. . . . . . . . . . . . . . . . 26

Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . 30

Rico-Villalobos v. Giusto, 339 Or 197, 118 P3d 246 (2005). . . . . . . . . . . . . . . . . 30

State ex Rel Oregonian Pub. Co. v. Deiz,289 Or. 277, 613 P.2d 23 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

State ex rel Ricco v. Biggs, 198 Or 413, 255 P2d 1055 (1953). . . . . . . . . . . . . . . 52

State v. Counts, 311 Or 616, 816 P2d 1157 (1991). . . . . . . . . . . . . . . . . . . . . . . . 52

State v. Finch, 54 Or 482, 103 P 505 (1909). . . . . . . . . . . . . . . . . . . . . . . 31, 38-40

State v. Garrand, 5 Or 156 (1874). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

State v. Garrand, 5 Or 216 (1874). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

State v. Haugen, 349 Or 174, 243 P3d 31 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 4

State v. Haugen, 351 Or 325, 266 P3d 68 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 4

State v. Hawk, 47 W Va 434, 34 SE 918 (1900). . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Hirsch, 338 Or 622, 114 P3d 1104 (2005).. . . . . . . . . . . . . . . . . . . . . . . . 31

Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005). . . . . . . . . . . . . . . . . . . . . . . . 52

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Suffolk County District Attorney v. Watson, 381 Mass 648,411 NE 2d 1274, 1287 (1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Wilson, 32 US 150 (1833).. . . . . . . . . . . . . . . . . . . . . . . . 11, 14-22

Valle v. Florida, 132 S Ct 1 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Statutes and Constitutional Provisions

Deadys Code 335. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Deadys Code 336. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

25 Geo II c 37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Hills Laws 1422, 1440, 1441 (1887). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Or Const, Art I, 22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 31-33

Or Const Art I, 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Or Const, Art V, 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 31

Or Const, Art V, 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 7-8, 29, 35, 38, 50

Or Const, Art VII (amended), 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 53

Or Const, Art VII (orig), 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Or Laws 1965, ch 616, 91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Or Laws 1995, ch 805, 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

ORS 127.800 to 127.897 (Death With Dignity Act).. . . . . . . . . . . . . . . . . . . . . . . 27

ORS 137.463 to 137.482. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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ORS 137.463(4)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ORS 137.463(5).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ORS 137.473. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

ORS 137.478. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

ORS 144.660. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Other Authorities

Am Jur,Pardons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Ballentines Law Dictionary(3d ed 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Biennial Message of Gov. L. F. Grover(State Printing Office 1876). . . . . . . . . . 43

Biennial Message of Gov. W. W. Thayer to the Legislative Assembly. . . . . . . . . 47

W. Blackstone, Commentaries on the Laws of England(3d ed 1862). . . . . . . . . . 41

Richard J. Bonnie, The Dignity of the Condemned,74 VA.L.REV. 1363 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Bouviers Law Dict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

G. Sidney Buchanan, The Nature of a Pardon Under the United StatesConstitution, 39 OHIO STATE LJ 36 (1978). . . . . . . . . . . . . . . . . . . . . . . . . 22

Executive Dept Records 1859-1874. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

CJS,Pardons and Parole. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

W. H. Humbert, THE PARDONING POWER OF THE PRESIDENT

(American Council on Public Affairs 1941). . . . . . . . . . . . . . . . . . . . . . . . . 40

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William R. Long, ATORTURED HISTORY: THE STORY OF CAPITAL

PUNISHMENT IN OREGON (Or Crim Defense Lawyers Assn 2001). . . . . . . 44

Michael Mello, The Non-Trial of the Century: Representations

of the Unabomber, 24 VT.L.REV. 417, 511 (2000).. . . . . . . . . . . . . . . . . . 29

Pardons, Remissions and Commutation of Sentence (State of Oregon). . . . . 45-47

Plato, Crito.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE THIRD JUDICIAL DISTRICT

GARY D. HAUGEN,

Plaintiff,

v.No. 12C16560

JOHN KITZHABER, Governor of theState of Oregon,

Defendant.

Plaintiff Gary D. Haugen submits this memorandum in support of his motion

for judgment on the pleadings.1

I. Introduction.

The reprieve at issue in this case, as far as counsel has been able to

determine from officially kept records, is completely unprecedented in Oregons

history. According to those records, since Statehood a handful of Oregon

governors have granted, in all, about 120 reprieves. Every one of them has differed

from Governor Kitzhabers ostensible reprieve in one important respect: they all

To avoid possible confusion from the fact that Mr. Haugen is plaintiff in1

this case and defendant in the criminal case, the parties are referred to by their

names in this memorandum, rather than by their party designations.

PAGE 1 - PLAINTIFFS SUPPORTING MEMORANDUM


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have carried an expiration date. A reprieve has that feature because a fixed

duration is part of the essence of a reprieve, which does not annul a sentence, but

only delays its execution. The benefit conferred by a reprieve is to allow certain

circumstances to pass that would make a condemned inmates immediate execution

inhumane, because of his particular circumstances, or to enable a convicted

defendant to seek some other form of relief, such as pursuing an appeal or filing a

petition for a commutation or pardon. The reason Governor Kitzhabers reprieve

does not specify an expiration date is because its purpose is not to confer such a

benefit upon Mr. Haugen, but rather to thwart the operation of certain laws to

which Governor Kitzhaber is morally opposed.

An actualreprieve is an act of mercy serving the interest of the person to

whom it is granted, rather than the interest of the person doing the granting.

Because it is an act of grace or favor, a reprieve, like other acts of clemency, is not

effective unless it is accepted by the person to whom it is granted. An act of

benevolence cannot be forced upon someone. Mr. Haugen rejects the reprieve,

which he did not ask for, and does not want. The Oregon Supreme Court has

adopted this conception of the clemency power, and on three occasions it has stated

that an act of clemency is not effective unless it is accepted by the person to whom

it is granted.



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Moreover, the true scope of the Governors clemency power under Article V,

section 14 of the Oregon Constitution must be determined by harmonizing it with

other, related constitutional provisions. Not only is it the Governors obligation,

under Article V, section 10 of the Oregon Constitution to take care that the laws be

faithfully executed, but Article I, section 22 provides that only the Legislative

Assembly can suspend the operation of the laws. Because Governor Kitzhabers

reprieve is directed at certain laws, rather than at Mr. Haugen as an individual, it

constitutes an unlawful attempt to suspend the operation of certain laws.

A statute implementing the clemency power of Article V, section 14 that was

enacted in 1864, only a few years after the adoption of the Constitution, requires

governors to report to each Session of the Legislative Assembly regarding the

particulars of his or her acts of clemency. This is additional evidence that the

original understanding of the clemency power was that it was an action based on

the nature of the individual and crime involved. But the particulars of Mr.

Haugens situation are irrelevant to Governor Kitzhabers reprieve, which is based

completely on other considerations.

The issues presented for this courts resolution are framed by the amended

complaint, and the answer and defenses filed by Governor Kitzhaber. The essential

facts are undisputed, and only issues of law are presented. Governor Kitzhaber



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admits that Mr. Haugen, were it not for the reprieve, would have been executed on

December 6, 2011, and that Mr. Haugen has rejected the reprieve. Answer, 8,

10. He denies that acceptance of a reprieve is necessary for it to be effective, and

denies Mr. Haugens claim that the reprieve is beyond his power under Article V,

section 14 of the Oregon Constitution. Answer, 12, 17-20.

II. Summary of proceedings.

Mr. Haugen was convicted of aggravated murder and sentenced to death in

May of 2007, and his conviction and sentence were affirmed on appeal by the

Supreme Court. State v. Haugen, 349 Or 174, 243 P3d 31 (2010). In 2004, when

he committed the murder for which he was sentenced to death, Mr. Haugen had

already been, since 1981, an inmate at the Oregon State Penitentiary, serving a life

sentence for another murder conviction. Haugen, 349 Or at 176.

The proceedings conducted after that are described in State v. Haugen, 351

Or 325, 266 P3d 68 (2011). After his conviction was affirmed, Mr. Haugen

announced publically that he would decline to pursue collateral challenges to his

conviction or sentence. The trial court conducted a death-warrant hearing, and then

a second death-warrant hearing after the Supreme Court issued an alternative writ

of mandamus directing the trial court to conduct additional proceedings concerning

Mr. Haugens mental competence. The trial court did so, and the Supreme Court



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dismissed the alternative writ. The trial court, after determining that Mr. Haugen

was competent, issued on November 18, 2011, a second death warrant directing

that Mr. Haugen be executed on December 6, 2011. The Supreme Court then

considered, but rejected a second challenge to the procedures used by the trial court

for its inquiry into the subject of Haugens competence, holding that the trial court

had complied both with the alternative writ of mandamus, and the applicable

statutes. Haugen, 351 Or at 335-44.

On November 22, 2011, the day after the Supreme Court issued its opinion,

Governor Kitzhaber granted to Mr. Haugen what he labeled a temporary

reprieve. By its terms, the reprieve will last as long as the duration of Governor

Kitzhabers service as Governor. The reprieve also states that the Governor

granted it for the reason that Oregons application of the death penalty is not fairly

and consistently applied, and I do not believe that state-sponsored executions bring

justice.2

At the same time he granted the reprieve to Mr. Haugen, Governor Kitzhaber

declared a general moratorium upon executions while he serves as Governor. In3

A copy of the reprieve is included in the appendix to this brief, at App-1.2

A copy of the Governors statement is included in the appendix, at App-2.3

It is available on the Governors official website, at: http://governor.oregon.

gov/gov/media_room/press_releases/p2011/press_112211.shtml.



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his statement explaining the moratorium, Governor Kitzhaber, noting that during

his prior service as Governor he had permitted two condemned prisoners to be

executed, stated that he simply cannot participate once again in something I

believe to be morally wrong. Governor Kitzhaber referred to the pursuit of legal

challenges to their sentences by death-row inmates as a broken system, stating

that the other 36 death-row inmates all have many years and appeals left before

there is even a remote possibility of carrying out their death sentence, so that the

only factor that determines whether someone sentenced to death in Oregon is

actually executed is that they volunteer. The Governor also stated that he could

have commuted Mr. Haugens sentence and indeed the sentences of all those on

death row to life in prison without the possibility of parole, but that he did not

do so because the policy of this state on capital punishment is not mine alone to

decide. It is a matter for all Oregonians to decide. He stated that it was his hope

and intention that his action would bring about a long overdue reevaluation by

Oregon citizens of our current policy and our system of capital punishment, and

he called on the legislature to bring potential reforms before the 2013 legislative

session and encourage all Oregonians to engage in the long overdue debate that this

important issue deserves.



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On March 12, 2012, Mr. Haugen delivered a letter to the Governor, in which

he stated that he refused the reprieve the Governor had offered to him, and also

filed a motion in the criminal action asking that either another death warrant be

issued, or a death-warrant hearing be conducted. After Governor Kitzhaber4

intervened in the criminal case, Mr. Haugen filed this action for a declaratory

judgment. Proceedings in the criminal case will be stayed, and the parties have

agreed that the outcome of this action will determine the further course of events in

the criminal case.

III. The Governors reprieve is both ineffective and unlawful.

The ostensible reprieve granted to Mr. Haugen by Governor Kitzhaber

should not halt Haugens execution, for two reasons. First, under controlling

Oregon case law, a Governors pardon or reprieve to be effective must be accepted

by the person in whose favor it is granted. Second, this particular reprieve is not

actually a reprieve within the meaning of that term in Article V, section 14 of the

Oregon Constitution, because it lacks the essential characteristics of a reprieve, and

therefore was beyond the Governors power to offer.

Article V, section 14, which has gone unchanged since it was included in the

Oregon Constitution as originally adopted in 1859, provides as follows:

A copy of his letter to the Governor is included in the appendix, at App-3.4



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[The Governor] shall have power to grant reprieves, commutations,and pardons, after conviction, for all offences [sic] except treason,subject to such regulations as may be provided by law. Uponconviction for treason he shall have power to suspend the execution of

the sentence until the case shall be reported to the LegislativeAssembly, at its next meeting, when the Legislative Assembly shalleither grant a pardon, commute the sentence, direct the execution of

the sentence, or grant a farther [sic] reprieve.

He shall have power to remit fines, and forfeitures, under suchregulations as may be prescribed by law; and shall report to theLegislative Assembly at its next meeting each case of reprieve,commutation, or pardon granted, and the reasons for granting thesame; and also the names of all persons in whose favor remission of

fines, and forfeitures shall have been made, and the several amountsremitted[.]

Or Const, Art V 14. Regarding the meaning of pardons and commutations, there

is little uncertainty. A pardon blots out the very existence of [an offenders] guilt,

so that, in the eye of the law, he is thereafter as innocent as if he had never

committed the offense. Anderson v. Alexander, 191 Or 409, 425, 229 P2d 633

(1951). A commutation is a change of punishment to which a person has been

condemned to one less severe. Fehl v. Martin, 155 Or 455, 459, 64 P2d 631

(1937).

A reprieve is the withdrawing of a sentence for an interval of time, which

operates in delay of execution. Fehl, 155 Or at 459, citingBOUVIERS LAW DICT.

It does not operate to stop the carrying out of a sentence, but only suspends it, to

enable some circumstance to change, and once that change occurs, then unless some



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other event prevents it, such as a pardon or reversal on appeal, the sentence is

carried out. As discussed below, the Governors ostensible reprieve lacks an

essential attribute of a reprieve, which is that it operate only for an interval of

time. The reprieve lacks an expiration date, and so lasts for an indefinite, rather

than definite period of time. Moreover, the ostensible reprieve was granted, not to

allow a circumstance to change or to enable Mr. Haugen to seek some legal relief,

but with the intention that his sentence will never be carried out; not by any actual

clemency granted by Governor Kitzhaber, but by what he hopes will be the abolition

of the death penalty by the Legislative Assembly, or the People. The reprieve,

despite its label, is actually an attempted suspension of the operation of certain laws,

concerning which the Governor has misgivings.

To shed light upon the meaning of a reprieve within the meaning of the

Oregon Constitution, this memorandum discusses the constitutional and statutory

context of the Constitutions clemency power, case law, and historical uses of the

reprieve. Because it is likely that Governor Kitzhaber will dispute the meaning of

the pertinent case law, this memorandum discusses it in thorough detail.

A. A reprieve must be accepted to be effective.

InEx parte Houghton, 49 Or 232, 89 P 801 (1907), the Governor commuted

an inmates sentence to time served, conditioned upon the inmates obedience to the



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laws after his release. A few months after his release the inmate was arrested upon

an order from the Governor, and returned to prison, upon the Governors

determination that the inmate had violated city ordinances. The inmate argued that:

(1) because the Governors power under the Constitution did not extend to granting

conditional commutations or pardons, that aspect of the commutation was void; and

that (2) he could only be returned to prison through a judicial proceeding.

Regarding the first claim, the Supreme Court stated:

The commutation was an act of grace or favor, and [the inmate] wasnot obliged to accept it unless he so desired. He might have refused it,and served out his sentence as originally imposed, but chose to acceptthe conditional commutation, and in doing so stipulated that for aviolation of the conditions he might be summarily arrested by order ofthe Governor and remanded to the penitentiary to serve the remainder

of his original sentence. There is nothing unlawful or illegal in such anagreement, and no reason why it should not be enforced in the mannerstipulated.

Houghton, 49 Or at 234. This passage may be construed in two different ways.

Governor Kitzhaber will argue that its meaning is limited to the idea that a

conditional commutation may be accepted or rejected by the person to whom it is

offered, but only because he may prefer to serve his sentence rather than obey the

conditions that come attached to the offer of clemency. On the other hand, the

court also stated that a commutation was an act of grace or favor, and that the

person to whom it was offered was not obliged to accept it unless he so desired.



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That sentence is not qualified in any way or limited to conditional, as opposed to

unconditional acts of clemency.

The Supreme Court later reiterated what might be called the acceptance

conception of acts of clemency, in Carpenter v. Lord, 88 Or 128, 171 P 577 (1918).

Again, the court did not distinguish between conditional, and unconditional

pardons, stating that the Governor may pardon an offender by virtue of his

constitutional power in that behalf, but even that is not effective unless it is accepted

by the prisoner to whom the pardon is offered. 88 Or at 137 (emphasis added).

The Supreme Court then quoted from an early opinion of the United States Supreme

Court authored by Chief Justice Marshall, as follows:

A pardon is a deed, to the validity of which, delivery isessential, and delivery is not complete, without acceptance. It may thenbe rejected by the person to whom it is tendered; and if it be rejected,

we have discovered no power in a court to force it on him.

Carpenter, 88 Or at 137, quotingUnited States v. Wilson, 32 US 150, 161 (1833).

Again here, the courts statements are unqualified, and do not refer to any

conditional or unconditional nature of the pardon. Thus, a pardon is only offered

or tendered by the Governor to a prisoner, and cannot be forced on him.

Of course, in the wide majority of cases, the issue of whether acceptance is

required will never arise, for the reason that acts of clemency are usually sought by

convicted defendants, and issued by the executive authority only in response to an



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withdrawing of a sentence for an interval of time whereby the execution is

suspended, 119 Or at 339, quoting29 Cyc 1561. The court held that, although in

its restricted or technical application a reprieve applied only to a death sentence,

id. a reprieve could also be granted with respect to a sentence other than death. As

support for that, the Supreme Court cited a decision of the West Virginia Supreme

Court, which defined the power to issue a reprieve as the power to suspend the

sentence until the matter can be inquired into and determined. Id. (emphasis

added), quotingState v. Hawk, 47 W Va 434, 435, 34 SE 918 (1900).

The Supreme Court inDormitzerfound it unnecessary to decide whether a

reprieve in a non-capital case was within the Governors power, because if it was

not, then his act was a nullity, so that the released inmate was lawfully

reincarcerated, and if it was within the Governors power to grant the reprieve on

condition, he also had the right to revoke it. 119 Or at 340. For present purposes,

the important part of the courts opinion was when it responded to an argument that

the Governors suspension of the jail sentence of the incarcerated person,

Edmunson, operated to deprive him of the right to appeal. The Supreme Court

answered, Edmunson had the right to accept or reject the reprieve, and therefore

was not prevented from appealing. Id.



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Again, the Governor will argue that only a conditional reprieve must be

accepted to be effective. It is true that, if an act of clemency comes conditioned

upon an inmate adhering to certain requirements, it makes sense that the inmate

should have the choice of either accepting the clemency and adhering to the

conditions that come along with it, or, because the attached condition might be more

onerous to him than the sentence being served, rejecting it. Moreover, the reprieve

addressed inDormitzerwas a conditional one, its condition being that the defendant

obey the laws. For two reasons, this court should reject any contention that the

acceptance theory applies only in the case of conditional acts of clemency.

First, there is no indication in the case law just cited, or in the federal Wilson

case upon which the Oregon Supreme Court relied, that the acceptance theory

applies only to conditional grants of clemency. To the contrary, the Supreme Court

in all three cases Houghton, Carpenter, andDormitzer stated simply, without

qualification, that pardons, commutations, and reprieves could be accepted or

rejected by the person to whom they are offered because they are acts of grace, not

because they might involve certain conditions. To force something upon someone

who does not want it is not an act of grace or favor, which suggests something

motivated by goodwill toward the intended beneficiary; an act of benevolence that

the recipient does not want is simply a contradiction in terms. Second, the unusual



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nature of the temporary reprieve offered by Governor Kitzhaber carries its own,

inherent conditions, that Mr. Haugen, who considers complying with them to be

more onerous than the alternative, should be free either to adhere to, or reject.

Neither does United States v. Wilson, the decision of the United States

Supreme Court upon which the Oregon Supreme Court relied in Carpenter, make its

acceptance theory dependant upon the conditional, or unconditional nature of the

pardon. And, a later decision of the United States Supreme Court makes clear, if

there was any uncertainty, that the acceptance concept adopted in Wilson does

apply to unconditional pardons. Because the Oregon Supreme Court relied heavily

on Wilson in adopting the acceptance theory, that decision, and a later decision of

the United States Supreme Court applying and explaining it, warrant full discussion.

1. The acceptance theory, which is derived from federal law, does

not depend upon the conditional or unconditional nature of theclemency.

In Wilson, the defendant was charged in three separate indictments with three

offenses, all stemming from the same train robbery. The three charges were closely5

related, alleging: (1) obstructing the mail; (2) robbery of the mail; and (3) robbery of

the mail and putting the carriers life in danger. The defendant was tried first upon

The defendant had actually been charged with six offenses, stemming5

from two train robberies. The facts are simplified in this memorandum in a waythat does not change the Courts reasoning or holding.



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the most serious of the charges, which was robbery of the mail and putting the

carriers life in danger. He was convicted and sentenced to death, whereupon he

changed his pleas to guilty on the remaining two charges. President Jackson then

issued a pardon on the conviction that resulted in a death sentence, for the stated

reason that the convictions on the other charges would likely result in lengthy

imprisonment. The pardon stipulated that it did not extend to any of the other

convictions; that was not a condition, but only clarified that the pardon erased

only one of several, related convictions.

Before judgment was imposed on one of the other charges, the trial court

inquired regarding the effect of the pardon, inasmuch as the charges were closely

related. In response, the defendant stated that he waived and declined any

advantage or protection which might be supposed to arise from the pardon.

Wilson, 32 US at 158. Because the charges were so closely related and arose from

the same criminal conduct, the Supreme Court stated the issue presented as being

whether a pardon of the great offence, excluding the less, necessarily comprehends

the less, against its own express terms. Wilson, 32 US at 160.

The Supreme Court stated that, although that question would not be a difficult

one to answer, it was unnecessary to discuss or decide it, for the reason that the

pardon had never been brought before the court and pleaded as a bar. Wilson, 32



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US at 160. The pardon could not be judicially noticed, but like any otherprivate

deed, had to be brought before the court by plea, motion or otherwise, before it

could have any effect. The pardon was theprivate, though official act of the

executive magistrate, delivered to the individual for whose benefit it is intended,

and not communicated officially to the court. The defendant had not pleaded the

pardon as a bar, and therefore it could not be considered. The court considered the

pardon to be like any other fact, that had to be brought before the court. One of the

reasons a pardoned person might decline to bring a pardon before the court, the

Supreme Court stated, was that it might be rejected by the person to whom it is

tendered, and that if it be rejected, we have discovered no power in a court to

force it on him. Answering the possible objection that nobody condemned to death

would refuse a pardon, it said that the rule must be the same in capital cases and in

misdemeanors. All at 32 US at 161 (emphasis added).

Although the court continued that the pardon may be conditional; and the

condition may be more objectionable than the punishment inflicted by the

judgment, that was only an additional reason why the private act of a pardon had to

be brought before the court by the pardonee to be effective that is, because of the

varied nature of acts of clemency and does not limit the courts broad rule to



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conditional pardons. That is shown not only by the fact that the pardon at issue was

an unconditional one, but also by the courts immediately following paragraph:

The pardon may possibly apply to a different person or a differentcrime. It may be absolute or conditional. It may be controverted by theprosecutor, and must be expounded by the court. These circumstances

combine to show that this like any other deed, ought to be broughtjudicially before the court by plea, motion or otherwise.

Wilson, 32 US at 161 (quotation marks omitted). Thus, the acceptance theory

applied regardless of whether the pardon was absolute or conditional; the variety

that acts of clemency might take was only an additional reason for the courts rule

that the pardon had to be pleaded, inasmuch as after it was pleaded, the court would

then be able to inquire into it, to determine its effect. It was the private nature of the

pardon, as offered by the executive to the inmate, that made its proof in court

necessary. The Supreme Court also cited and quoted from several leading English

authorities, including Blackstones Commentaries, to the same effect; that is, that a

pardon to be effective must be accepted, and pleaded by the person in whose favor it

is offered, and that its benefit is waived if not pleaded. 32 US at 161-63.

IfWilson left any uncertainty as to whether only an unconditional, as opposed

to a conditional pardon could be rejected by the pardonee, that uncertainty was

eliminated by a later case, at least for purposes of the federal constitution. In

Burdick v. United States, 236 US 79 (1915), an editor of a New York City



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newspaper was called to testify before a grand jury that was investigating alleged

customs fraud. The witness refused to testify, invoking his constitutional privilege

against self-incrimination. President Wilson then issued a full and unconditional

pardon to the witness, for any crimes he has committed or may have committed

in connection with anything he might be interrogated about. Burdick, 236 US at 85-

86. The witness declined to accept the pardon and again refused to testify, and

was held in contempt and incarcerated. On appeal, the Government argued that the

President had the power to pardon someone before he was convicted, and that the

acceptance of the pardon is not necessary to its complete exculpating effect. 236

US at 87. The Supreme Court concluded that it was unnecessary to decide whether

a pardon may be granted before the pardonee had been convicted; instead, it found

that Wilson was dispositive upon the second question. 236 US at 87-88. The

Supreme Court summarized its reasoning as follows:

That a pardon by its mere issue has automatic effect

resistless by him to whom it is tendered, forcing upon him bymere executive power whatever consequences it may have orhowever he may regard it, which seems to be the contention ofthe Government in the case at bar, was rejected by the court[in Wilson] with particularity and emphasis. The decision is

unmistakable. A pardon was denominated as the private act, theprivate deed, of the executive magistrate, and the denomination was

advisedly selected to mark the incompleteness of the act or deedwithout its acceptance.



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Burdick, 236 US at 90. In response to the suggestion that Wilson dealt only with

conditional pardons, the Supreme Court stated that the pardon passed on [in

Wilson] was not conditional, but, as described above, only limited to a particular

crime in its application. Burdick, 236 US at 92. The Supreme Court quoted from

Wilson and, by adding italics to the word, emphasized the private, although

official, nature of an executives grant of clemency. Burdick, 236 US at 90.

Regardless of the alternative of acceptance whether it be death or lesser penalty,

rejection of the offered pardon remained the right of the individual against the

exercise of executive power not solicited by him nor accepted by him. Burdick,

236 US at 91.

Although it found Wilson to be dispositive, the Supreme Court inBurdick

went on to show how the acceptance theory was in accord with generally prevailing

law. It cited one of its own prior decisions,Ex parte William Wells, 59 US 307

(1856), in which it had stated that the court in Wilson had acted with the fullest

knowledge of the law upon the subject of pardons, and the philosophy of

government in its bearing upon the Constitution. Burdick, 236 US at 91. It also

cited a decision of the Supreme Judicial Court of Massachusetts authored by Justice

Gray, later a justice of the United States Supreme Court, who discussed the case law

with the same accurate and masterful consideration that distinguished all of his



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judicial work. 236 US at 91-92, citingCommonwealth v. Lockwood, 109 Mass 323

(1887).

The result inBurdick was that the contempt was dismissed, and the witness

discharged: Granting then that the pardon was legally issued and was sufficient for

immunity, it was Burdicks right to refuse it, as we have seen, and it, therefore, not

becoming effective, his right under the Constitution to decline to testify remained to

be asserted[.]Burdick, 236 US at 94.

The Oregon Supreme Court has never citedBurdick, but that case does clarify

and reiterate the holding in Wilson, and shows beyond any doubt that the doctrine

adopted in that case had nothing to do with the conditional or unconditional nature

of the pardon involved. It also shows that, in adopting the acceptance concept of

acts of executive clemency, the Oregon Supreme Court in Carpenterwas acting in

conformity with generally prevailing law at the time construing the clemency power

found in both the federal and state constitutions.

Again, the state will likely rely upon a distinction between the reprieve at

issue here and the unconditional pardon at issue inBurdick, which is that the pardon

inBurdickwas issued before any conviction, and that because a pre- conviction

pardon might be construed as an admission of guilt, it should be subject to rejection

by the person to whom it is offered. That would be to read something into the



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courts opinion that is not there. It was not that aspect of the pardon, but rather its

nature as a private act, that determined the outcome.

The United States Supreme Court later appeared to backpedal from the

acceptance concept of a pardon. It stated that a pardon in our days is not a

private act of grace from an individual happening to possess power, but rather a

part of the Constitutional scheme, and when granted it is the determination of the

ultimate authority that the public welfare will be better served by inflicting less than

what the judgment fixed. Just as the original punishment would be imposed without

regard to the prisoners consent and in the teeth of his will, whether he liked it our

not, the public welfare, not his consent, determines what will be done. Biddle v.

Perovich, 274 US 480, 486 (1927).

These constitute directly contradicting conceptions of the constitutional

power to grant clemency: the acceptance theory of Chief Justice Marshall,

adopted in Wilson and reiterated inBurdick, under which an act of clemency is a

private, though official act, versus the public welfare theory of Justice Holmes,

inBiddle. See G. Sidney Buchanan, The Nature of a Pardon Under the United

States Constitution, 39 OHIO STATE LJ 36 (1978)(arguing, on policy and legal

grounds, in favor of Justice Holmes). This battle of the legal titans is purely

academic here, however, because the Oregon Supreme Court has, in three separate



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cases, come down squarely in the camp of Justice Marshall. The Oregon Supreme

Court has the authority to overrule its own precedents, but this court is required to

obey them.

There is nothing inherently implausible about the idea that inmate has the

power to reject an act of clemency, such as a commutation that would result in his

release him from prison, or a reprieve in a non-capital case, so that he remains

incarcerated against the will of the states executive power. InBollinger v. Board of

Parole, 329 Or 505, 992 P2d 445 (1999), the Supreme Court held that, under then-

existing statutes, an inmate could elect to reject an offer of parole and remain in

prison until the expiration of his sentence.

Even ifDormitzers statement that reprieves can be accepted or rejected is not

extended beyond the facts involved in that case, which involved a conditional

reprieve, there is no basis for concluding that a person offered clemency should lack

the ability to reject it, when the clemency offered is unconditional. Cases cited by

he Supreme Court inHoughton show that the broader power carries the ability to

attach a variety of conditions to an act of clemency, such as leaving the state, or

being subject to reincarceration without a judicial determination, or refraining from

the use of alcoholic beverages, or using all proper exertion to support a relative.

Houghton, 49 Or at 235-37. The attachment of conditions to an act of clemency, a



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At the time Governor Kitzhaber acted, Mr. Haugen had already made it well

known that he preferred submitting to the punishment imposed over spending 15 to

20 years on death row while he pursues his collateral legal remedies. That was

clearly his decision to make, and the statutes controlling issuance of a death warrant

provide for it. See ORS 137.463(4)(c)(court must determine if a defendants

decision to waive further challenges is competently, knowingly and voluntarily

made). Similarly, he now prefers submission to the laws punishment over the legal

limbo into which Governor Kitzhaber has claimed the right to put him, against his

will. If the reprieve is lawful and effective, Mr. Haugen will spend an indefinite

period of time of up to seven years living under an awful pall of uncertainty about

whether, once Governor Kitzhaber leaves office, his successor will continue the

reprieve, or allow him to be executed. The clemency power given to the Governor

should not include the power to decide for Mr. Haugen which is the preferable

alternative.

The United States Supreme Court has stated that when a prisoner sentenced

by a court to death is confined to the penitentiary awaiting the execution of the

sentence, one of the most horrible feelings to which he can be subjected during that

time is the uncertainty during the whole of it. In re Medley, 134 US 160, 172

(1890). Any condemned inmate will necessarily be subject to that situation, but Mr.



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Haugens is worse, given the extended period of time during which it will last, and

the additional uncertainty of not knowing whether he ever will be executed at all.

The period of uncertainty involved inMedley was four weeks. Another court has

stated:

The cruelty of capital punishment lies not only in the execution itselfand the pain incident thereto, but also in the dehumanizing effects ofthe lengthy imprisonment prior to execution during which the judicialand administrative procedures essential to due process of law arecarried out. Penologists and medical experts agree that the process ofcarrying out a verdict of death is often so degrading and brutalizing to

the human spirit as to constitute psychological torture.

People v. Anderson, 6 Cal 3d 628, 493 P2d 880, 894 (1972); see also Furman v.

Georgia, 408 US 238, 188-289 (1972)(Brennan, J., concurring)([T]he prospect of

pending execution exacts a frightful toll during the inevitable long wait between the

imposition of sentence and the actual infliction of death); Suffolk County District

Attorney v. Watson, 381 Mass 648, 411 NE 2d 1274, 1287 (1980)(Braucher, J.,

concurring)(death penalty is unconstitutional under state constitution in part

because [i]t will be carried out only after agonizing months and years of

uncertainty).

Similarly, two justices of the United States Supreme Court have suggested

that it may even amount to cruel and unusual punishment under the Eighth

Amendment to execute a death-row inmate after long years of delay, even when that



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imposed cannot be considered necessarily to be an immoral or unwise one, or one

that necessarily suggests some mental infirmity or disturbance; after all, the fount of

all of Western philosophy, Socrates, made the same choice. Plato, Crito.

In the usual case, there will be no dispute regarding whether the Governors

ostensible act of clemency actually is a grant of grace or favor. It becomes an

issue, however, in the rare case in which the purported act of clemency was neither

requested, nor desired. Mr. Haugen, the ostensible beneficiary, does not consider

the reprieve to be an act of mercy, or grace, or favor. To the contrary, he considers

it to be a profoundly dehumanizing act. Every human being even one condemned

to death for murder deserves to be treated with a certain measure of dignity and

respect, and for Mr. Haugen, the reprieve fails that test.

One law professor has written that the laws duty to respect individual

dignity is heightened, not diminished, when choices are made in the shadow of

death, Richard J. Bonnie, The Dignity of the Condemned, 74 VA.L.REV. 1363,

1391 (1988), and a judge of the Ninth Circuit Court of Appeals has written that to

ignore the prisoners request to forego legal challenges would be to incarcerate his

spirit the one thing that remains free and which the state need not and should not

imprison. Lenhard ex rel. Bishop v. Wolff, 603 F.2d 91, 94 (9 Cir. 1979)(Sneed,th

J., concurring in denial of stay of execution). Another lawyer and academic with



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extensive experience defending death-row inmates wrote: Preventing executions is

very important to me, but its not the only thing thats important to me. There are

choices and decisions that the person whose life is on the line ought to be allowed to

make, as a basic part of human dignity and autonomy. Michael Mello, The Non-

Trial of the Century: Representations of the Unabomber, 24 VT.L.REV. 417, 511

(2000).

Governor Kitzhaber claims the right from on high to relegate Mr. Haugen to

the status of a pawn, expected simply to stand by while the Governor proceeds,

with uncertain chances of success, with his campaign to persuade Oregonians and

their elected representatives to abolish the death penalty. Governor Kitzhaber does

this by claiming to be exercising his constitutional power to make a grant of grace

or favor. Houghton, 49 Or at 234. Under controlling Oregon law, Mr. Haugen

also has a right, and it is to disclaim any act of clemency that is offered to him. He

asks for this courts assistance in vindicating this small, personal right, as against an

attempted abuse of power by a government official.

B. The Governors reprieve is unlawful because it exceeds the

authority conferred upon him by Article V, section 14.

The Governors act is similar to a reprieve in certain ways. However, because

what he did lacks the essentialcharacteristics of a reprieve, it is not actually a

reprieve, but rather an attempted suspension of the operation of certain of our



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States laws. The Governor has no such power; indeed, other provisions of the

Oregon Constitution explicitly forbid it.

The question presented should be answered by resort to the text and context,

both constitutional and statutory, case law, and the historical experience that led to

its creation. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). When

analyzing terms in the original Oregon Constitution, a court should examine the

meanings of the terms as framers would have understood them. Rico-Villalobos v.

Giusto, 339 Or 197, 206, 118 P3d 246 (2005).

The Constitution does not define what a pardon, commutation, or reprieve is.

It did not do so because, most likely, each of those terms had well-understood,

specific meanings at the time the Constitution was adopted. Before turning to case

law and history, compelling clues to the Framers understanding of those terms are

provided, first, by placing the Governors clemency power in the context of other,

related constitutional provisions, and in the context of a statute that was adopted by

the legislature near the time of the adoption of the Constitution.

1. Constitutional context.

Two provisions of the Oregon Constitution that, like the Governors

clemency power, were adopted as part of the original constitution, and one

provision adopted more recently, shed light on the understanding of what a reprieve



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is. The meaning of a provision of the Oregon Constitution should be determined in

light of other provisions of the constitution, in addition to the text of the section at

issue. State v. Hirsch, 338 Or 622, 634, 114 P3d 1104 (2005); State v. Finch, 54 Or

482, 497, 103 P 505 (1909).

First, the Constitution sets forth the Governors overriding duty, with respect

to the laws enacted by the People or the legislature. It is simply that he shall take

care that the Laws be faithfully executed. Art V, 10. Adding emphasis, another

provision provides that the operation of the laws shall never be suspended, except

by the Authority of the Legislative Assembly. Art I, 22. Governor Kitzhabers

reprieve, especially in the light of his broader moratorium on the carrying out of any

executions during his service as Governor, amounts to a suspension of certain

laws; namely, those laws, found at ORS 137.463 to 137.482, specifically directing

how a death sentence, once imposed by a court, should be carried out.

For example, ORS 137.463(5) provides that, once a hearing has been

conducted and the defendant has validly waived his right to pursue any further legal

challenges, a death warrant, which must specify a day on which the sentence of

death is to be executed, must be drawn and delivered to the superintendent of

the prison. The death warrant must command the superintendent to execute the

judgment of the court, upon a specified date that must be at least 90, but less than



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one particular inmate, will be interrupted and will cease for a time from

operation and effect. But this temporary cessation will be brought about not by

the act of the Legislative Assembly, which exclusively has been given that power by

Article I, section 22, but by action of the Governor, who has no such power.

To be sure, a reprieve may also have the effect of interrupting the operation of

those laws, for a specified duration. Because a real reprieve lasts only for a

specified time, however, at least the suspended laws will be sure to start to operate

again, after the expiration of the reprieve. Not so with Governor Kitzhabers

ostensible reprieve. As discussed below, the fact that his reprieve lacks an

expiration date confirms that it amounts to a suspension of a law, rather than a

suspension of a sentence. An expiration date is essential to a reprieve because a

reprieve cannot defeat the ultimate execution of a sentence, but only delay it. And, it

is undisputable, from the terms of the reprieve itself, and from Governor Kitzhabers

elaboration of his reasons for granting it in his statement announcing his

moratorium, that his purported reprieve is directed specifically at the laws involved,

and not at Mr. Haugen as a deserving recipient of clemency.

Governor Kitzhabers reprieve of Mr. Haugen, by its terms, was not issued

because he is, under the Governors assessment, deserving of mercy, but only for

the reason that Governor Kitzhaber believes that the laws implementing the death



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penalty are broken and are not being carried out to promote what he considers to

be justice. But the original Constitution, at the same time as it conferred upon the

Governor the power to grant pardons, commutations, reprieves, and remissions,

explicitly placed it within the exclusive authority of the Legislative Assembly to

enact laws, to suspend their operation for a period of time, and, if in its assessment

certain laws are broken or not being carried out fairly, to amend or repeal them.

All of these constitutional provisions must be harmonized; that is, each of

them must be construed so that it retains some meaning and operative effect.

Holding Governor Kitzhabers reprieve to be constitutional as within his clemency

power would be to find that the Governor is notobliged to faithfully execute a

certain penal law, if he believes the law is not being carried out fairly, and would

permit him to suspend the operation of that same law. These provisions cannot be

harmonized if the Governors reprieve of Mr. Haugen is constitutional.

The power of clemency also should be construed in light of the fact that,

when Oregonians voted to adopt the death penalty in 1984, by a three-to-one

margin, they placed a provision in the Oregon Constitution at the same time,

providing that notwithstanding other provisions, a jury may impose the death



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penalty for aggravated murder. Or Const Art I, 40. It is therefore part of the6

supreme, constitutional law of Oregon that the death penalty, contrary to our

Governors personal views, is notimmoral. Any attempt to suspend the operation

of the law on that basis, would also contradict this constitutional provision.

2. Statutory context.

Article V, section 14 provides that the Governors authority to grant pardons,

commutations and reprieves, is subject to such regulations as may be provided by

law. Therefore, statutes adopted by the legislature implementing the constitutional

power, especially those enacted contemporaneously with the original adoption of

the Constitution, should carry special weight in construing the meaning and scope

of the Governors authority.7

Although the voters adopted statutes providing for the death penalty by a6

vote of 75.1 to 24.9 percent, their adoption of a separate measure adding Section40 to Article I of the Constitution was by a lesser margin (55.6 to 44.4 percent).

State ex Rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 283-84, 613 P.2d7

23 (1980), in which the Supreme Court stated that [c]ontemporaneous legislativeactions should not necessarily be given much weight when construingconstitutional principles, is not to the contrary. Deizinvolved the direction ofArticle I, section 10 that courts cannot be secret, but must be operated openly.

The Supreme Court rejected the idea that an early statute, which provided that thejudge in a civil action, upon the agreement of the parties, could conduct the trial inprivate, was valuable in construing the meaning of Article I, section 10. Deizis

weak authority here, because the constitutional provision involved specificallyprovides that the power granted must be exercised subject to such regulations asmay be provided by law.



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In one of its earliest sessions, the Legislative Assembly enacted the following

statute:

The governor must communicate to the legislative assembly, at

its next meeting thereafter, each case of reprieve, commutation orpardon, with the reasons for granting the same, stating the name of theconvict, the crime of which he was convicted, the sentence and its date,and the date of the commutation, pardon or reprieve; and also the likestatement of particulars in relation to each case of remission of a

penalty or forfeiture, with the amount remitted.

Deadys Code, 335 (Oct 19, 1864). Thus, the understanding of acts of clemency

held by an early legislative assembly was that the particulars of each pardon,

commutation or reprieve be communicated to the legislature. Theparticulars of the

reprieve in this case, however, are irrelevant; it was granted only forgeneral

reasons, having everything to do with how Governor Kitzhaber regarded the

morality of capital punishment, and how Oregons death penalty was being

implemented, and nothing whatsoever to do with the particulars of Mr. Haugens

case.

Another statute enacted at the same time details the procedures to be followed

[w]hen application is made to the Governor for a pardon. The Governor must

gather information from either the judge or district attorney involved, regarding the

facts proved on the trial and any other facts having reference to the propriety of

granting or refusing the pardon. Deady 336. No statute limits the Governor to



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issuing clemency only to applicants for it, but that was probably thought to be

unnecessary, as so improbably occurring. The statute does show, however, that the

legislature assumed that an act of clemency would ordinarily be issued after an

application for it had been made.

The current version of the statute, ORS 144.660, more clearly reflects an

understanding that every act of clemency will be granted by the Governor only in

response to an inmates request for it. The reporting statute, since its amendment in

1965 (Or Laws 1965, ch 616, 91), has required the Governor to identify the

applicant for each case of pardon, commutation and reprieve, instead of the

convict involved. And, since 1995, the Governor has been required to report

additional information, all regarding the particular circumstances involved,

consisting of statements by the victim or victims family; a statement of the district

attorney; photos of the victim; and an autopsy report. ORS 144.660 (as amended by

Or Laws 1995, ch 805, 2).

Obviously, all of that information is completely irrelevant to the reprieve

granted by the Governor in this case, inasmuch as he granted it for reasons that have

nothing to do with the nature of Mr. Haugens crime.



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3. Case law.

The Supreme Court discussed the nature of a reprieve in State v. Finch, 54 Or

482, 103 P 505 (1909), a review of a murder conviction and death sentence. The8

defendant argued on appeal that infliction of the death penalty violated the

provision of the Oregon Constitution (Article I, section 15) that required that laws

enacting punishment for crimes be founded on principles of reformation instead

of vindictive justice. Applying the rule that the meaning of a constitutional

provision is to be determined by construing it inpari materia with other

constitutional provisions, as mutually explaining and interpreting each other, the

Supreme Court considered the Governors power under Article V, section 14 to

grant reprieves, etc. The Supreme Court then quoted from the following

definition of a reprieve from a treatise well-known at the time, as follows:

A reprieve operates only in capital cases, and is granted either by thefavor of his majesty himself or the judge before whom the prisoner istried, in his behalf, or from the regular operation of law, incircumstances which render an immediate execution inconsistent with

humanity and justice.

The defendant was an attorney who was convicted of murdering a8

prosecutor for the State Bar Association, which had brought charges against theattorney for drunkenness in court and other violations. Finch, 54 Or at 488.



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scheduled to die, but of the Governors own determination regarding thegeneral

operation of the death penalty, and of his own, moral opposition to it.

4. Lessons of history.

History provides examples of when reprieves were useful, or necessary, and

confirms the foregoing conception of a reprieve. In Nineteenth-Century England,

death sentences were common and, by statute, were required to be carried out only

two days after judgment was imposed. 25 Geo II c 37; 4 W. Blackstone,

COMMENTARIES ON THE LAWS OF ENGLAND (3d ed 1862) at p 223. Reprieves were

used in certain situations requiring a suspension of the execution; for example,

when a woman was condemned to death, and discovered to be quick with child, a

reprieve enabled her to give birth, after which the execution could proceed without

harm to the innocent. Reprieves were also granted when the defendant was insane,

or when there was some question concerning whether the person in custody was the

same person who had been sentenced to death. 4 BLACKSTONE pp 457-59.

In addition, [o]ften the purpose [of a reprieve] is to enable [a convicted

person] to take advantage of remedial measures which may result in his being

pardoned of the offense of which he has been convicted, or in a commutation of

sentence, or in an opportunity to present his case for review before an appellate

tribunal or to secure a new trial. Palka v. Walker, 198 A 265, 267 (Conn 1938).



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Thus, under former Oregon law, a reprieve was useful for purpose of enabling a

defendant sentenced to death to pursue an appeal, during the time when appeals

could not be taken as of right. As of the publication of Hills General Laws in 1887,

the hanging of a condemned prisoner was required to be carried out not less then 30,

nor more than 60 days from the time of judgment. Hills Laws 1422 (1887).

Another statute in effect at the time provided that an appeal from a judgment of

conviction automatically stayed the execution of it, but only upon the filing of a

certificate of the judge of the court in which the conviction was had that there was

probable cause for the appeal, but not otherwise. Hills Laws, 1440. (The judge

to whom application was made for a certificate of probable cause had authority to

stay the execution of the sentence, but that stay could last only until notice of the

application could be provided to the district attorney. Id., 1441). Thus, a

defendant sentenced to death who was denied a certificate of probable cause could

not pursue an appeal, because the judgment would not be stayed and he would be

executed long before the appeal could be decided.

Under those circumstances, when the trial judge declined to issue a certificate

of probable cause to a defendant sentenced to death, a reprieve from the Governor

was the only means by which he would be enabled to pursue an appeal. Thus, for

example, Governor L.F. Grover granted a reprieve on August 1, 1874, to Thomas



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Garrand, who had been sentenced to be hanged, in order to enable him to pursue an

appeal to the Supreme Court. His conviction was reversed on appeal, State v.

Garrand, 5 Or 156 (1874), but after retrial his conviction was affirmed, State v.

Garrand, 5 Or 216 (1874), after which the Governor commuted his sentence to life

imprisonment (on the basis of the defendants youth). Report of Pardons, in

BIENNIAL MESSAGE OF GOV.L.F.GROVER(State Printing Office 1876).10

Governor Oswald West, elected in 1910, was a staunch opponent of the death

penalty, and after his election vowed that there would never be an execution in

Oregon during his service as Governor. During 1911 he granted commutations to

two prisoners who had been sentenced to hang. In January of 1912 Governor West

proposed an initiative petition to put a measure on the ballot that would abolish the

death penalty. He also granted reprieves to four prisoners who had been sentenced

to death, but made the reprieve last until a certain date December 13, 1912 that

was soon after the time Oregonians would vote on the measure. Because the

reprieves were not contested presumably, because they were not unwanted their

constitutionality was never addressed by an appellate court; however, the fact that

Governor Wests reprieves at least lasted for a definite time at least provides some

Although it is not mentioned in Governor Grovers official Message to10

the Legislative Assembly, examination of the reprieve itself shows that it specifiedan expiration date. Vol I, EXECUTIVE DEPT RECORDS 1859-1874, at p 481.



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historical support and recognition that, in accordance with the authorities already

cited, a reprieve must last until a specified day. On November 5, 1912, the measure

was defeated by a large margin 60.6 percent to 39.4 percent and the four men

were hanged on the day the reprieve expired. William R. Long, ATORTURED

HISTORY: THE STORY OF CAPITAL PUNISHMENT IN OREGON (Or Crim Defense

Lawyers Assn 2001), pp 27-31.11

The broad powers of courts in modern times to grant stays of judgments, or

the automatic stays imposed by statutes, have rendered the reprieve a vestige of the

law, and today they are very rarely used. No Oregon governor has granted a

reprieve for 54 years, since June of 1958, when Governor Robert D. Holmes (served

Jan. 14, 1957, to Jan. 12, 1959), granted the last of three reprieves to Billy Junior

As Long relates, Governor West rejected the pleas of two delegations11

consisting of nearly 100 people urging him to commute the sentences of the fourmen to life in prison. Governor West argued that if the terrible horror of this

penalty was shown to Oregonians, they would become revolted with executions

and decide to banish them forever. (Although it is not mentioned in Longsaccount, Governor West did commute the death sentence of a fifth man to whomhe had granted a reprieve). Oregonians did vote to abolish the death penalty at the

next election, in 1914; by then, women had been given the vote, and the turnout in1914 was nearly twice what it had been in 1912. But Oregonians soon re-enactedthe death penalty, in 1920.



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Nunn, who had been sentenced to death. Each reprieve was for a specified period12

of time.

After Oregonians re-established the death penalty in 1920, Governor Ben W.

Olcott (served March 3, 1919, to Jan. 8, 1923), granted reprieves to three men

sentenced to death. He acted on the basis that there was an appeal pending in the

Oregon Supreme Court, in which the validity of the statutes and constitutional

provisions prescribing the death penalty for murder in the first degree is attacked.

Each reprieve lasted for a specified period of time about 14 months and were to

expire soon after the dates that had been set for the men to be hanged. Governor

Olcott renewed all three reprieves on February 2, 1922, lasting until July 7, 1922, on

the basis that he had been informed by counsel that, if the challenge was

unsuccessful before the Oregon Supreme Court, an appeal would be pursued to the

United States Supreme Court. Vol 7 (1919-1922), PARDONS,REMISSIONS AND

COMMUTATION OF SENTENCE (hereafter CLEMENCY RECORDS), pp 499, 500, 518,

521-23.

The basis for all three of the reprieves was the same, which was a12

pending legal action discussed below, Eacret v. Holmes, involving the scope of theGovernors clemency power. After the Supreme Court ruled in his favor,Governor Holmes commuted Nunns death sentence to life in prison.



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Governor Olcott also started the practice of granting reprieves in cases of

persons convicted of minor offenses (mostly violations of prohibition laws), in

which the offender had been sentenced to a jail sentence and fine, with the fine to be

worked off after completion of the jail sentence, at the rate, for example, of one

additional day in jail for each $2.00 of the fine. Governor Olcott granted several

reprieves to these offenders who remained in jail, in default of payment of their

fines, so that they could earn money to pay their fines, at a monthly rate set by the

reprieve. The two governors who succeeded Governor Olcott, Governor Walter M.

Pierce (served Jan. 8, 1923, to Jan. 10, 1927) and Governor I. L. Patterson (served

Jan. 10, 1927, to Dec. 21, 1929), continued this practice. In addition to reprieves

that enabled jailed defendants to work to earn money to pay fines, these governors

granted many reprieves before a jail sentence started, for a variety of reasons (for

example, to support a family, to attend a funeral, or to get medical treatment

unavailable in jail). Governor Olcott granted 15 of these reprieves; Governor Pierce

granted 78; and Governor I.L. Patterson granted 16. Vols 7-9, CLEMENCY13

RECORDS.

These governors also granted a small number of reprieves on other13

grounds, sometimes to enable the governor to have more time to review a request

for a pardon or a commutation. Governor Patterson granted a series of reprievesand renewals to a convicted murdered, James Willos, pending the outcome of a

pending habeas corpus case.



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Other governors granted only a small number of reprieves; Governor Julius L.

Meier, for example (served Jan. 12, 1931, to Jan. 14, 1935) granted four reprieves in

all. He granted one on May 1, 1932, for example, to James Borlan, who had been

sentenced to jail, in order that he harvest his strawberry crop thereby saving

himself and his family from being charges upon the county. The reprieve stated

that it would extend to the 22 day of July, 1932. Vol 10, CLEMENCY RECORDS,nd

p 89. Governor W. W. Thayer (served Sept. 11, 1878, to Sept. 13, 1882), granted

two reprieves to men who had been sentenced to be hanged; each specified that it

lasted for 35 days. BIENNIAL MESSAGE OF GOV.W.W.THAYER TO THE

LEGISLATIVE ASSEMBLY.

The salient aspect of all of these reprieves is that every one of them included

an expiration date. This provides compelling confirmation of the idea, also

supported by authorities already cited, that the common understanding of a

reprieve was that it lasted only for a specified period of time. This understanding

is consistent from the time an Oregon Governor first granted a reprieve, in 1874,

through the last one granted before Governor Kitzhabers, in 1958. A temporary

reprieve, which is how Governor Kitzhaber referred to his, is a misnomer, in that

all reprieves are temporary.



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Many governors granted many pardons and commutations, but no reprieves at

all. As best as counsel could determine, from review of the biennial clemency

reports that are available and existing clemency records at the State Archives, eight

governors have granted, since Statehood, a total of 120 reprieves (as well as several

hundred pardons, commutations, remissions of fines, and pardons to restore

citizenship). Making the reasonable assumption that every Governors clemency

report to the Legislative Assembly, and other official records at the State Archives

regarding grants of clemency are reliable, not a single reprieve issued in Oregon

since Statehood has failed to specify an expiration date until now. 14

Of course, all of these reprieves differ from the one at issue. Again, the

reprieve here was only a part of the Governors general declaration of a moratorium

on all executions during his service as Governor, in hopes that other actors the

voters, or the Legislative Assembly will abolish the death penalty (after which,

presumably, he would commute the death sentences of all death-row inmates, if the

change in the law was prospective only). There were no circumstances peculiar to

Mr. Haugen that would have made his being put to death unjust or inhumane, and

Although counsel has been unable to locate the clemency report of every14

governor, for missing years he has examined, at the State Archives, boundvolumes recording the acts of clemency themselves, or the clemency records ofindividual governors.



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the Governor did not claim that there were; rather, it was the fact of the death

penalty itself that, in the Governors opinion, made Haugens execution unjust.

That is why Governor Kitzhabers reprieve did not, and could not specify an

expiration date there were no circumstances that might be expected to pass, by the

time of the reprieves deadline; rather, his ostensible reprieve was for an essentially

different reason, that had nothing to do with Mr. Haugens particular situation.

Even if Mr. Haugen is incorrect that his acceptance of the reprieve is required

for it to be effective, the reprieve is unlawful for this additional reason.

IV. Resolution of the issues presented is within this courts authority.

Presumably, before he acted, Governor Kitzhaber satisfied himself that his

action would be lawful. Indeed, after Mr. Haugen rejected his reprieve, Governor

Kitzhabers spokesman asserted that the Governors constitutional authority is

clear. (The Oregonian, 3/3/12). That being the case, it would seem that Governor

Kitzhaber would be just as interested as anyone else in having the judicial branch

determine whether or not he is correct, and that, accordingly, he would not attempt

to set up a bar to this action on any procedural basis. Nevertheless, because that is a

possibility, this memorandum discusses the question of whether this court has the

authority to resolve the legal issues presented.



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Governor Kitzhaber, if he chooses this route, would argue that, underEacret

v. Holmes, 215 Or 121, 333 P2d 741 (1958), this court lacks any power whatsoever

over a governors grant of clemency. In that case, the parents of a murder victim

brought an action against Governor Holmes, even before he had actually commuted

the sentence of the convicted murdered involved, but only because he had in

similar cases commuted death sentences because of his conscientious scruples, to

which he had given public expression, against capital punishment. Eacret, 215 Or

at 124. The parents sought a declaratory judgment that the Governor could not

exercise his powers under Article V, section 14 of the Constitution because of his

conviction that the death penalty is wrong, and that his discretion in the exercise

of such power had to be guided by considerations of justice in the particular

case. Eacret, 215 Or at 214.

The trial court dismissed the complaint, and the Supreme Court affirmed, on

the basis that the parents had no standing. The Supreme Court stated that there was

no justiciable controversy when all a plaintiff sought was a declaration of what

the law is, and that in effect, all the plaintiffs seek by their complaint is an

advisory opinion respecting the proper exercise of the Governors pardoning

power. Eacret, 215 Or at 125. A court lacked jurisdiction to enter a declaratory

judgment, the Supreme Court said, when the plaintiff sought merely to vindicate a



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public right to have the laws of the state properly enforced and administered. 215

Or at 125, quotingMcCarthy v. Hoan, 221 Wis 344, 266 NW 916 (1936).

Although it recognized that that was a sufficient basis upon which to dismiss

the action, the Supreme Court went on to say inEacretthat, [p]utting all this to one

side, it is not within judicial competency to control, interfere with, or even to advise

the Governor when exercising his power to grant reprieves, commutations, and

pardons. The principle of the separation of powers written into the constitution by

Article III, 1 forbids it. Eacret, 215 Or at 126 (footnote omitted). The court

stated a Governors discretion in deciding whether to grant clemency

can not be controlled by judicial discretion. The courts have noauthority to inquire into the reasons or motives which actuate theGovernor in exercising the power, not can they decline to give effect toa pardon for an abuse of discretion.

Eacret, 125 Or at 126. The Supreme Court inEacretconcluded that if the Governor

should abuse his clemency power, the only recourse that the people have is at the

polls or by seeking his removal from office through a criminal prosecution

establishing his incompetency, corruption, malfeasance or delinquency in office.

215 Or at 128.15

The Supreme Court referred to removal of the Governor from office15

under Article VII (amended), section 6 of the Constitution (formerly section 19 ofthe original Article VII), which provides for removal of a public officer on that

(continued...)



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InEacretthe Governor had not even issued a commutation yet, at the time the

plaintiffs filed their action. Standing is an aspect of justiciability, Strunk v. PERB,

338 Or 145, 153, 108 P3d 1058 (2005), and the plaintiffs lack of any concrete

interest in the matter alleged was an adequate basis for dismissing their action. That

was the Supreme Courts holding. Accordingly, the courts remarks about the

extent of judicial control over acts of clemency were pure dicta. SeeState ex rel

Ricco v. Biggs, 198 Or 413, 434, 255 P2d 1055 (1953)(a dictum is something

unnecessary to the decision). Inasmuch as the Supreme Court does not consider

its own priordictum to be binding precedent, State v. Counts, 311 Or 616, 631, 816

P2d 1157 (1991), neither should this court.

Even if treated as binding law, however, those dicta do not control here. In

Eacret, the plaintiffs asked for a declaration that would limit the Governorin the

exercise of his discretion concerning an act of clemency. See Eacret, 125 Or at 125

(plaintiffs asked for declaration that the Governors discretion in the exercise of

his clemency power must be limited in a certain way). That is not what is at issue

in this case. In contrast here, Mr. Haugen asks this court to make a threshold

determination concerning what is, and what is not, a reprieve. He seeks a

(...continued)15

basis, rather than by impeachment.



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declaration of what the essential aspects of a reprieve are; namely, whether its

acceptance by the person in whose favor it is granted is required for the reprieve to

be effective; whether or not a reprieve must last only for a specified duration; and

whether a reprieve can lawfully serve to give the Legislative Assembly, or the

People enough time to decide whether to abolish the death penalty, rather than of

temporarily suspended the carrying out of a sentence for a time, after which it can

then be carried out.

This threshold function of determining the correct definition of a reprieve

as that term is used in the Constitution, must be within the judicial power. If there

were no judicial review whatsoever of the Governors clemency power, even to

decide whether he has actually done what the Constitution permits him to do, the

power would be subject to abuse without any effective recourse by the People.

Through the simple trick of attaching a certain label to his act, a G

haugen: brief in support

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