As previously reported in PLN, on November 22, 2011, Oregon Governor John Kitzhaber imposed a moratorium on the death penalty for the remainder of his term in office. In doing so he canceled the scheduled execution of Gary Haugen, 50, who had waived his appeals and asked to be put to death. [See: PLN, Dec. 2012, p.47].

Haugen initially praised Governor Kitzhaber’s decision, saying the news was especially gratifying given that he had repeatedly criticized, at court appearances and in letters, some of the same flaws in capital punishment that Kitzhaber cited when imposing the moratorium, which the governor said was arbitrary, costly and “fails to meet basic standards of justice.”

Upon further reflection, however, Haugen’s praise and gratitude turned to spite. “I feel he’s a paper cowboy. He couldn’t pull the trigger,” Haugen said. Governor Kitzhaber “basically pulled a coward’s move” in granting the reprieve, he stated.

While Haugen said he agreed with the moratorium, he criticized the governor’s decision to temporarily stop executions without implementing reforms. “You’re not going to execute people, but you’re going to continue to allow people to litigate in a broken system?” he asked, referring to the 37 other prisoners who remain on Oregon’s death row, pursuing their appeals.

Haugen first said he was unsure of his next move, but suggested that he might again seek to be executed if no changes were made with respect to the state’s death penalty before Kitzhaber leaves office. “I was and am willing to die for my beliefs,” he said, apparently without irony.

“I’m going to have to get with some serious legal experts and figure out really if I can do this,” Haugen continued. “I think there’s got to be some constitutional violations. Man, this is definitely cruel and unusual punishment. You don’t bring a guy to the [lethal injection] table twice and then just stop it.”

Of course, Governor Kitzhaber had exercised his absolute executive power when he imposed a moratorium on all executions. Neither Haugen nor the angry throng of prosecutors and crime victims who disagreed with that decision can do anything to reverse it.

Or can they? In March 2012, Haugen’s new lawyer, former assistant attorney general Harrison Latto, sent a letter to Kitzhaber contending that he had exceeded his constitutional authority in issuing Haugen a temporary reprieve.

“Mr. Haugen does not feel that you are treating him mercifully by forcing him to remain in a kind of legal limbo that will last for an uncertain period of time, potentially as long as seven years, at the end of which he might or might not be put to death,” wrote Latto. “Putting Mr. Haugen into that position against his will is more accurately described, in his view, as cruel and unusual punishment. While you have every right, of course, to lead a campaign to repeal the death penalty in Oregon, Mr. Haugen should not be forced to serve as a pawn in that effort. For these reasons, it is Mr. Haugen’s intent, unless you soon take some other action that is within your constitutional authority as Governor, to ask the circuit court to re-issue the death warrant.”

Governor Kitzhaber was not impressed. “While the governor has not yet reviewed the letter, his constitutional authority is clear,” said Kitzhaber spokesman Tim Raphael.

As he had threatened, Latto filed a motion with the Marion County Circuit Court, requesting that Haugen’s death warrant be re-issued and an execution date set.

Latto claimed that the reprieve granted by Kitzhaber was “legally ineffective and void” because it was filed in court by Haugen’s previous attorneys, who “acted without his knowledge or authorization.”

“An act of this importance cannot be legally accomplished by a lawyer unless he acts according to the express instructions of his client,” Latto argued.

The motion also asserted several direct challenges to the validity of Kitzhaber’s reprieve. For example, Latto asserted that the governor exceeded his authority by issuing a reprieve for an indefinite period of time, arguing that it must be granted for a specific period. The reprieve “is in effect only while you continue to hold the office of Governor,” wrote Latto, “which is a period that might end at any time, with your resignation or death, or the expiration of your current term in office, or could last until you leave office after your election to a second term; that is for about another seven years.”

The motion cited additional grounds, including the governor’s lack of individualized decision-making. “There is strong legal authority supporting the idea that pardons, commutations, and reprieves are acts that must be based upon the Governor’s individualized judgment that a particular person deserves that relief,” wrote Latto. “In Mr. Haugen’s case, you made no such judgment. Your action, in contrast, is more in the nature of an attempted nullification of a particular Oregon law. The Governor, under the Oregon Constitution, has no such power.”

Asserting that a reprieve is not valid unless the prisoner accepts it, Latto noted that Haugen refused to accept it.

Since condemned prisoners don’t often fight to be executed, few, if any, precedents exist that support Haugen’s position. In fact, the closest example appears to be Illinois Governor Jim Edgar’s 1996 commutation of the death sentence of Guinevere Garcia, who opposed clemency requests made by anti-death penalty groups. Unlike Haugen, however, Garcia did not reject the commutation once it was granted, according to the Death Penalty Information Center.

“I don’t have a slam-dunk case,” Latto admitted. Still, “as a lawyer, I’m challenged and stimulated by interesting legal issues. And I consider this to be very interesting and challenging.” Haugen’s greatest ally appears to be Marion County District Attorney Walt Beglau, the prosecutor who convinced a jury to sentence him to death.

Within two weeks of the filing of Haugen’s motion, the Oregon Department of Justice (ODOJ) moved to allow Governor Kitzhaber to intervene as a party in Haugen’s criminal case. The ODOJ sought to defend Kitzhaber’s reprieve because “it appears that the district attorney intends to appear but not defend the Governor’s actions.”

“We certainly respect the governor and his authority,” explained Beglau. “We simply disagree. So I’m not in a position to be able to defend that legal position.” As he sees it, Haugen has a viable argument in contending that the governor’s reprieve is “legally ineffective,” since Haugen has refused to accept it.

“That’s the legal issue that needs to be explored in a court of law,” Beglau stated. “That really is the central issue.”

To say this case is unique is an understatement. The governor would rarely, if ever, have a role in a criminal case, and no Oregon governor has ever halted the execution of a condemned prisoner who wants to be put to death.

On August 3, 2012, Circuit Court Senior Judge Timothy Alexander held that Haugen could reject the reprieve, and said a hearing to set an execution date would be scheduled “as soon as this decision is final.”

“My decision … is not intended to be a criticism of Governor Kitzhaber or the views he has expressed…,” Alexander wrote. “[But] I’m required to set aside my personal views and decide this case on its merits and the law.” He held that while a reprieve does not have to be for a specified period of time, a prisoner can choose to reject it.

The state appealed, and on March 14, 2013, the Oregon Supreme Court heard arguments in the case, on the issue of whether a governor’s reprieve requires the consent of the condemned prisoner. The Court has not yet issued a ruling.

Haugen was sentenced to death in 2007 for killing another prisoner while he was serving a life sentence. Oregon voters have repealed the death penalty twice and legalized it twice, and it was once struck down by the state Supreme Court before being reinstated in 1984. Only two executions have taken place in Oregon since that time.

Sources: The Oregonian, Statesman Journal, https://www.huffingtonpost.com/

(First published by Prison Legal News and used here by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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