Wednesday, July 25, 2012

Oregon: Mercy? I Don't Want No Stinkin' Mercy!

The Associated Press reports that Gov. John Kitzhaber has blocked Gary Haugen's execution with a "reprieve" (or a delay). While such decisions are not particularly rare, this one has an interesting twist to it: Haugen (a twice-convicted murderer) did not ask for the delay, and does not want it! The lack of interest on Haugen's part is consistent with the fact that he has "voluntarily waived legal appeals that could delay his execution for years and has fought to speed his punishment in protest of a criminal justice system that he says is broken." The Governor ... agrees! Yes, the Governor believes capital punishment laws are "compromised and inequitable."

Haugen's attorney says the governor's delay has placed an "onerous condition" his client, who now sits on "death row," unsure as to whether or not he will ever actually be executed! The horror! The attorney also argues that a reprieve "is not effective until accepted by the recipient" and Haugen has choosen not to accept. Finally, it is argued that the reprieve is "illegal" because it has "no specific expiration date."



Students of the pardon power will recognize these issues as classic Supreme Court material. But they also highlight uncertainties in federal law. The Constitution - by the way - is all but completely useless so far as the resolution of these matters is concerned. The Federalist papers? Forget about it! From a federal perspective, here is our view: To date, the Supreme Court seems to have sent mixed signals as to whether or not acceptance of an act of clemency is required. But, upon closer look, there does seem to be potentially significant differences between pardons (which typically restore rights) and commutations of sentence (which reduce the severity of a sentence). Whether or not person x wants his or her civil rights restored is irrelevant. But no one has a constitutional "right" to spend time in prison, or to be executed by the state. Such decisions are the concern of the state (via public officials) and the prisoner's opinion is irrelevant (see our discussion of Vuco Perovich).

The confounding tensions in the analytic mix are 1) some see clemency as a declaration / admission of guilt, which may or may not be in dispute 2) the hardcore distinctions between pardons and commutations of sentence are a fairly modern invention, emergent with the collateral consequences of conviction and 3) there is a concern that the forms and conditions of clemency may violate constitutional standards - imagine, for an example, a pardon on the condition that a person never practice Protestantism again.

For most of American history, the Department of Justice and the Office of the Pardon Attorney have refused to consider clemency applications on behalf of dead persons, largely because of the theory that pardon must be accepted. This policy has hindered the pardon of such persons as Samuel Mudd, Ellis H. Parker, O Henry, etc. The traditional stance was set aside however in the administration of Bill Clinton - an administration noted for elegant and wise use of the clemency power! Clinton granted a posthumous pardon to Henry Flipper. George W. Bush followed suit with a posthumous pardon for Charlie Winters. President Obama has been encouraged to grant a posthumous pardon for Jack Johnson and O Henry.

As for the legality of the reprieve's lack of an expiration date, we can only say that, in our experience with thousands upon thousands of clemency warrants, the typical presidential reprieve (or respite) is 30, 60 or 90 days. We have seen them for longer of periods of time - even into the next administration! And we have also seen them without any length of time at all attached. They simply commanded that nothing be done until further notice. The constitutionality of such reprieves has not been challenged, but we suspect they are under little threat.

Hence, it was always our position (argued in National Review) that, had President Bush seriously considered Scooter Libby's conviction questionable, and Libby's chances of a successful appeal legitimate, he (Bush) would have (should have) granted a respite (or series of respites) allowing Libby to remain out of prison during the appellate process. That way, Bush would have avoided interference with the judicial process and would have kept his man out of prison. In our view, the eventual commutation of sentence was neither wise nor healthy for the the pardon power generally. See story here.

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