Sunday, December 11, 2011

Kitzhaber defers all executions


Bruce Ely / The Oregonian
The public entered into a robust state-wide discussion when Governor Kitzhaber unexpectedly announced he would defer any execution while he is in office. Helen Jung, in a front-page Oregonian story, correctly quoted me and others who believe the Governor has the legal power to do so.
As upset as I am at the governor at putting his personal feelings above his oath of office, he has the plenary power of commutation, reprieve and pardon and there is pretty much nothing anyone can do about it.
Kitzhaber could have but did not commute the death sentence either of Gary Haugen or any of Oregon's 36 other death row inmates sentences. Commutations would have sentenced most to life without the possibility of parole although some, like Randy Guzek, might find themselves eligible for parole because "true life" didn't exist when they were original sentenced. That's how murderers like Robert Massie of California and Kenneth McDuff of Texas got out.

Nor did Kitzhaber pardon Haugen, which would have meant his immediate release.

One likely reason for neither commutation nor pardon is that, unlike some states, no one on Oregon's death row is a possible "innocent" and DNA has never cleared anyone on death row here. Another likely reason is the sort of people on Oregon's death row. Last week all 28 elected DA's present at the winter meeting of the Oregon District Attorneys Association endorsed an OpEd published under the names of Eric Nisley (Wasco County) and Walt Beglau (Marion County), respectively the incoming and outgoing presidents of the association. It read in part:
Look at the people who populate Oregon's death row and you'll understand why the editorial board of The Oregonian has distinguished Oregon from other states. We host Jesse Caleb Compton, who in 1997 sexually assaulted and murdered 3-year-old Tesslyn O'Cull. Conan Hale tortured and killed three young teenagers. Dayton LeRoy Rogers is a serial killer of women. All of those killers, and everyone else on death row, received excellent representation, often two or even three lawyers as well as a team of investigators, mitigation specialists and psychologists. 
As referenced in our OpEd, the Oregonian's editorial board had already expressed a similar opinion:
No one seriously argues that either of the two men Oregon has executed -- or any of the 36 men and one woman on the state's death row -- is innocent. The issue here is not forced confessions, racial disparities or incompetent defense attorneys. This is not Texas, which has killed more than 400 criminals since 1982. 
I am often painted as an “ardent supporter” of capital punishment but that would seriously mischaracterize my position. Any thinking person, particularly someone like me, who is actually involved in making these decisions -- and on rare occasions advocating that a particular killer be put to death -- should be ambivalent and have very mixed feelings. Most of us who are retentionists are much less convinced of our absolute moral certainty than the abolitionists who oppose the death penalty.

No reasonable person wants to see another person die -- whether at the hands of the police, in a war, and particularly not in the most arbitrary way -- in what Prof. Cass Sunsetin calls "the realm of homicide" which takes over 10,000 victims a year. We all strive for a system that comes as close as possible -- better than we are doing now -- to ensuring those that kill once will not do it again. 


3 comments:

  1. The Governor swore an oath of office to protect the Constitution of Oregon, which allows capital punishment.
    Clearly he could commute the death sentence of a particular person for some or no cause.
    In this case, however, he has not commuted a particular sentence, but has, instead, eliminated the death penalty by declaring that any unknown and yet sentenced person would not be killed.
    That act is against the Oregon Constitution he swore to defend. This is the same oath taken by police officers, other officials and, incidentially, you.
    It the oath meaningful and enforcable? If it is, it is, therefore, the job of you and/or all other elected law enforcement officiais to commence prosecution of the Governor for violating his oath.
    Why, please, has this not happened?

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  2. The Governor did not violate any criminal law, the sole province of any district attorney.
    As I have said consistently I think the Governor did the wrong thing. That does not mean what he did was illegal. He had LOTS of legal advice and ultimately it is up to the voters to address this, either directly through his election or indirectly through legislative candidates.

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  3. OK, thanks for the opinion.
    So much, though, for oaths of office where the elected person swears thing like defending and supporting the state and national constitutions.
    Perhaps oaths should be discontinued since they are unenforcable and they give citizens a false sense of security in the ethics of the person they elected.

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