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Reprieves and Volunteers

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Harrison Latto, attorney for Oregon death row "volunteer" Gary Haugen, has this op-ed in the Oregonian.

The most puzzling aspect of the reprieve Gov. Kitzhaber granted to my client Gary Haugen is why he chose the utterly unprecedented device of a reprieve of indefinite duration, which will expire as soon as he leaves office, rather than using the more conventional method of commuting Haugen's death sentence to life in prison.

Gov. Kitzhaber did offer an explanation, in his statement announcing his moratorium.  He said that he recognized that he had the power to commute Haugen's death sentence, "and indeed the sentences of all those on death row" to life imprisonment.  But, he continued, he had not done that because Oregon's policy on capital punishment was not his alone, but "a matter for all Oregonians to decide."

This cannot be the real explanation, because it makes no sense.  The way "all Oregonians" collectively make such difficult decisions is solely through the law-making process.  They made their decision in this case when they amended the Oregon Constitution in 1984, by a three-to-one margin, to adopt the death penalty.  Oregonians also enacted statutes that prescribe, in a comprehensive and detailed way, how a death sentence, once final, must be carried out.  One such statute provides that the trial court "shall" issue a death warrant that "shall" specify a date upon which the sentence will be carried out, which cannot be more than 120 days after the sentence became final. Laws stay in effect until they are amended, or repealed, and Oregonians do not need the governor's permission or encouragement before they enter into a debate over, and then decide, whether any of them should be.

Unfortunately, Kitzhaber is heavily favored to win re-election.  But that's democracy, too.

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