- The Washington Times - Wednesday, November 30, 2011

Oregon Gov. John Kitzhaber says he intended to start a debate about the death penalty when he announced at an emotional news conference last week that he would block all executions for the remainder of his term.

In doing so, he also started a debate about the scope of the governor’s power.

Critics say the governor has violated his oath of office by essentially declaring a moratorium on the death penalty, which is part of the state constitution. The surprise announcement came during a news conference at which he said that he had halted the Dec. 6 execution of double-murderer Gary Haugen.

Mr. Kitzhaber, a Democrat who allowed executions to take place in 1996 and 1997, said his conscience would no longer let him sit by while another inmate died at the hands of the state.

“I simply cannot participate once again in something I believe to be morally wrong,” said Mr. Kitzhaber, saying the moratorium was one of the “most agonizing and difficult decisions” of his career.

Others took umbrage at what they described as his decision to allow his personal feelings to override his duty to uphold the state constitution.

Kathy Pratt, the daughter of Mary Archer, who was raped and fatally beaten by Haugen in 1981, told KGW-TV in Portland on Wednesday that the governor’s decision was a “miscarriage of justice.”

“It just made no sense to me whatsoever. There just doesn’t seem to be any legal or logical reason other than his personal opinion, which he feels is more important than anybody and anything else,” Mrs. Pratt said.

The Oregon District Attorneys Association adopted a statement Wednesday opposing the governor’s decision, pointing out that state and federal courts have ruled the state’s capital punishment laws constitutional.

“The state’s District Attorneys are responsible for ensuring that we are in fact a society that observes the rule of law. For that reason, many of us are profoundly disturbed by Governor John Kitzhaber’s abrupt pronouncement that no jury’s verdict of death will be carried out during his term,” said the statement, drawn up by Clatsop County District Attorney Joshua Marquis.

James Huffman, dean emeritus at Lewis and Clark School of Law, wrote in a Nov. 29 opinion piece in the Oregonian newspaper that while the state constitution allows the governor to grant reprieves on a case-by-case basis, it doesn’t allow him to issue a blanket stay.

“Nowhere does the state constitution give the governor authority to suspend the constitution and laws of the state by declaring an effective moratorium on executions,” Mr. Huffman said.

If Mr. Kitzhaber is indeed violating the state constitution by refusing to enforce the death penalty, however, he’s not the first governor to do so, according to Richard Dieter, executive director of the Death Penalty Information Center.

Illinois Gov. George Ryan, a Republican, declared a similar moratorium in 2000, which he topped off by commuting to life the sentences of all 167 inmates on Death Row at the end of his term, Mr. Dieter said. Maryland Gov. Parris N. Glendening halted all executions in 2002 while the state was studying the death penalty.

The difference in the Maryland case is that Mr. Glendening, a Democrat, “didn’t make it about his own personal opinion - he just did it while the study was under way,” Mr. Dieter said.

Mr. Kitzhaber urged the state legislature to “bring potential reforms before the 2013 legislative session,” but has not introduced legislation nor formed a commission to study the issue. He said he would favor replacing the death penalty with life without the possibility of parole.

The governor said he was disturbed by a number of issues, particularly the specter of inmates becoming “volunteers” for execution by giving up their appeals. The two inmates executed in the 1990s both abandoned the appeals process, as did Haugen.

“To those who will inevitably say that my decision today compromises the will of the voters, let me point out that, in practice, it is the current system itself which compromises the will of the voters,” said Mr. Kitzhaber. “I do not believe for a moment that the voters intended to create a system in which those condemned to death could determine whether that sentence would be carried out.”

David Fidanque, executive director of the American Civil Liberties Union of Oregon, said he would be “very surprised if the governor didn’t get legal advice to confirm that he had the power to do this before he did it.”

Greg Leo, spokesman for the Oregon Republican Party, called the governor’s action “unconstitutional” and predicted a lawsuit, although not one by his party.

“This is ripe for judicial review. He’s made a unilateral policy decision, not just about Gary Haugen, but about something the voters have been very clear on,” said Mr. Leo. “You’d think the governor wouldn’t decide that there are certain laws he would enforce and certain laws he wouldn’t enforce.”

Oregon voters have swung back and forth on the death penalty, twice repealing it and twice reinstating it. The issue appeared on the ballot most recently in 1984, when a capital punishment amendment was approved with 75 percent of the vote.

If there is a lawsuit, it may come from an unlikely plaintiff: Haugen. In an interview with the Salem Statesman Journal, Haugen called the governor a “paper cowboy” and said he was considering a legal challenge.

“I’m going to have to get with some serious legal experts and figure out really if he can do this,” the killer said. “I think there’s got to be some constitutional violations.”



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