Oregon high court eyes inmate's push to die

EUGENE, Ore. - A power struggle between a death-row inmate who wants to be executed and a governor who refuses to let it happen reached Oregon's highest court Thursday as lawyers sparred over the governor's authority to delay criminal sentences.

The lawyer for a man convicted of two murders argued that Gov. John Kitzhaber lacks authority to delay Gary Haugen's execution without the inmate's consent.

Kitzhaber, a death penalty opponent, regretted letting two other inmates be put to death and said he won't allow it to happen again. He blocked Haugen's execution in 2011, delaying the sentence until the governor leaves office.

"The (state) constitution trumps his moral views," said Haugen's lawyer, Harrison Latto. "The constitution has a clause in it that says the death penalty is legal."

The governor argued his clemency power is absolute, and nobody - certainly not an inmate on death row - can prevent him from doing what he believes to be in the state's best interest.

"The decision to grant clemency is something that's entrusted in the governor and the governor alone," Kitzhaber's lawyer, Solicitor General Anna Joyce, argued. "No other branch of government is entitled to question the reasons or the motive."

Kitzhaber has urged a statewide vote on abolishing the death penalty, and the Legislature could put it on the ballot in 2014.

Americans and their elected representatives have expressed mixed feelings about the death penalty. Lawmakers abolished capital punishment in New Mexico, New Jersey and Connecticut, but Californians turned down a chance to follow suit at the ballot box last year.

In 2000, then-Gov. George Ryan of Illinois issued a moratorium on the death penalty after numerous condemned inmates were exonerated. The Legislature abolished capital punishment more than a decade later.

Oregon's justices will likely rule on Haugen's case by the end of the year. They won't decide the legality of the death penalty itself, which has been extensively debated, but rather will consider the sparsely explored question of how much power the governor has to reduce, delay or eliminate criminal sentences.

Haugen was sentenced to death along with an accomplice in 2007 for the jailhouse murder of a fellow inmate, who was found with stab wounds and a crushed skull in the prison band room. At the time, Haugen was serving a life sentence for fatally beating his former girlfriend's mother in 1981.

Haugen announced in 2011 that he would voluntarily waive legal appeals that could have delayed his execution. He said the move was a protest against a criminal justice system he views as broken and inequitable.

Two weeks before he was scheduled to be executed by lethal injection, Kitzhaber issued a reprieve, citing his own moral opposition to capital punishment and problems he sees with Oregon's death-penalty process.

Haugen challenged the reprieve last year, saying it was invalid because he refused to accept it. The trial court judge agreed.

At the Supreme Court, Haugen's lawyer argued that his client must accept the reprieve for it to be valid. He also argued that it wasn't actually a reprieve because it didn't have an expiration date - it expires on whatever day Kitzhaber leaves office - but rather an illegal attempt by Kitzhaber to nullify a law he doesn't like.

The justices pushed back hardest on the latter point, questioning whether they can consider the motivation the governor expressed in a news conference announcing his decision.

"This is getting into his mind in a way that seems inappropriate and impossible," said Chief Justice Thomas Balmer.

Joyce, Kitzhaber's lawyer, reached back to the English monarchy, arguing that Kitzhaber's clemency power stems from the king's absolute authority to issue clemency. She said Haugen can't reject a reprieve that has no conditions attached.

"Death penalty cases are different, and an individual doesn't possess the power to force his government to execute him if that isn't what his government wants to do," Joyce argued.

She later added: "That would mean Mr. Haugen has ... powers that are equal or greater than those of the governor."

The justices have very little precedent to guide their decision, and neither lawyer could point to any other case where an inmate challenged an unconditional reprieve that spared him from the death penalty.

The U.S. Supreme Court has taken opposing positions on the president's clemency power, concluding in 1833 that a pardon is an "act of grace" that can be rejected but finding in 1951 that "the public welfare, not his consent determines what shall be done."

The Oregon high court is not required to follow the U.S. Supreme Court's evolution on that issue.

"All of this sits in the broader question of who are the stakeholders in an execution," said Carrie Leonetti, an assistant professor of criminal procedure at the University of Oregon who observed the oral arguments. "Mr. Haugen has a very narrow conception: there's a defendant, there's the prosecution, maybe the victim's families...I think the governor sees, in a democratic state, the death penalty is in fact an issue for the voters, for their elected representatives."

Justices met at the University of Oregon in Eugene as part of an annual tour of the state's three law schools.