GARY D. HAUGEN, Plaintiff-Respondent, υ. John KITZHABER, Governor of the State of Oregon, Defendant-Appellant.
(CC 12C16560; CA A152412; SC S060761)
Supreme Court of Oregon
June 20, 2013
306 P.3d 592
Argued and submitted March 14, judgment of circuit court reversed, and case remanded to circuit court with instructions to enter judgment in accordance with this opinion June 20, 2013
Anna M. Joyce, Solicitor General, Salem, argued the cause and filed the brief for defendant-appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Jake J. Hogue, Assistant Attorney General.
Bruce L. Campbell, Miller Nash LLP, filed a brief for amici curiae ACLU of Oregon, Inc., Oregon Justice Resource Center, and Oregon Capital Resource Center. With him on the brief were Elisa J. Dozono, Alexander M. Naito, Kevin Diaz, Jeffrey Ellis, and Erin McKee.
BALMER, C. J.
BALMER, C. J.
The Governor has the power to grant clemency, including pardons, commutations, and reprieves, pursuant to
After this court affirmed Gary Haugen‘s aggravated murder conviction and death sentence, he decided not to pursue further appeals, and the trial court set an execution date. Governor Kitzhaber subsequently issued a reprieve pursuant to
I. FACTS AND PROCEEDINGS BELOW
The facts are undisputed. Gary Haugen has been an inmate in the Oregon State Penitentiary since 1981, when he was convicted of murder and sentenced to life in prison. In 2007, while he was serving that sentence, a jury convicted Haugen of aggravated murder for the murder of a fellow inmate, and the jury sentenced Haugen to death. This court affirmed the judgment of conviction and sentence of death. State v. Haugen, 349 Or 174, 176, 243 P3d 31 (2010).
After this court affirmed Haugen‘s conviction and sentence, he decided not to pursue any further appeals. Following two death warrant hearings, the trial court set an execution date of December 6, 2011. Before that date, Governor Kitzhaber issued a reprieve, which read, in part:
“WHEREAS, Oregon‘s application of the death penalty is not fairly and consistently applied, and I do not believe that state-sponsored executions bring justice;
“NOW, THEREFORE, by virtue of the authority vested in me by
Article V, Section 14 of the Oregon Constitution , I, John A. Kitzhaber, MD, Governor of the State of Oregon, hereby grant Gary D. Haugen a temporary reprieve of the aforementioned death sentence for the duration of my service as Governor.”
In response, Haugen sent a letter to Governor Kitzhaber purporting to reject the reprieve. He also filed a declaratory judgment action seeking a declaration that the reprieve was ineffective and invalid. In his complaint, he again purported to reject the reprieve. Haugen then alleged that the Governor‘s action was beyond his constitutional authority because the reprieve did not last for a definite period of time, was not granted based on Haugen‘s particular circumstances, and suspended the operation of laws based on the Governor‘s moral opposition to those laws. Haugen also argued that the reprieve was ineffective because a reprieve must be accepted to be effective. The Governor responded that the reprieve was properly granted under
The trial court granted Haugen‘s motion for judgment on the pleadings. The court first concluded that the reprieve was not required to specify a particular date when it would expire, because it was limited to the duration of Governor Kitzhaber‘s service and therefore was temporary, “as is necessary to define the clemency as a reprieve.” The court also reasoned that commutation of Haugen‘s sentence to life in prison would be the functional equivalent of an indefinite reprieve, and the court stated that “there is no question” that the Governor possesses the power to commute a sentence to life in prison. Thus, the court determined, the reprieve was not required to have a specified end date.
In addressing Haugen‘s acceptance theory, the trial court traced federal and state case law involving pardons and other acts of clemency.3 As discussed more fully below, some federal and state cases suggest that certain acts of clemency must be accepted to be effective. Although at least one United States Supreme Court case, Biddle v. Perovich, 274 US 480, 47 S Ct 664, 71 L Ed 1161 (1927), expressly rejected that proposition in the context of the federal clemency power, the trial court determined that no Oregon case had relied on Biddle and that, following Biddle, at least one Oregon case had continued to adhere to the acceptance theory discussed in prior United States Supreme
II. JUDICIAL REVIEW OF THE GOVERNOR‘S CLEMENCY POWER
Before addressing the merits of the case, we must determine whether we have authority to decide this case, which involves the exercise of an important governmental power that the constitution entrusts to the Governor.
The “chief executive power” of the state is vested in the Governor,
In this case, the parties’ dispute regarding this court‘s authority centers on the scope of the court‘s authority, rather than on whether this court has authority to decide the case at all. Haugen argues that, even if the court cannot review the Governor‘s discretionary decision to exercise the clemency power in a particular case, nothing prevents this court from making the threshold determination of what qualifies as a reprieve. The Governor agrees that the court has authority to decide this case, but argues that, in doing so, the court does not have the authority to review the Governor‘s reasons for granting the reprieve.
We previously have stated that “it is not within judicial competency to control, interfere with, or even to advise the Governor when exercising his power to grant reprieves, commutations, and pardons.” Eacret et ux v. Holmes, 215 Or 121, 125-26, 333 P2d 741 (1958). That does not mean, however, that the Governor‘s clemency power—any more than the Governor‘s veto power reviewed in Lipscomb—is completely beyond the scope of judicial review. See Lipscomb, 305 Or at 477 n 4 (“[N]o official can invoke either ‘policy’ or ‘politics’ to avoid review of actions not authorized by law[.]“). As discussed more fully below, this court has reviewed the validity of certain aspects of acts of clemency in the past. See, e.g., Ex Parte Houghton, 49 Or 232, 234-36, 89 P 801 (1907) (concluding that the Governor may attach conditions to a pardon and may enforce those conditions).
What this court has not reviewed is the Governor‘s exercise of discretion in invoking the clemency power, including the Governor‘s reasons for invoking that power. Eacret, 215 Or at 127 (noting that the Governor‘s “discretion can not [sic] be controlled by judicial decision“). In Eacret, this court affirmed the dismissal of a complaint filed by a murder victim‘s parents, who were seeking a judgment declaring that the Governor could not exercise his power to commute a death sentence because of his “conviction that the death penalty is wrong.” Id. at 124. The
In this case, Haugen does not ask the court to limit the Governor‘s discretion in invoking the clemency power and instead asks the court to interpret the meaning of “reprieve” in
III. ANALYSIS OF THE ARTICLE V, SECTION 14, CLEMENCY POWER
The Governor argues that the text, context, historical circumstances, and case law surrounding
Haugen responds by renewing the arguments that he made before the trial court. The reprieve exceeds the Governor‘s authority, he argues, because the reprieve lacks an expiration date, is not based on Haugen‘s individual circumstances, and operates to suspend laws that the Governor morally opposes. Moreover, he argues, cases from this court and the United States Supreme Court demonstrate that a grant of clemency must be accepted by the recipient to be effective, and those cases do not limit the acceptance requirement to conditional acts of clemency. Alternatively, Haugen argues, the Governor‘s reprieve creates uncertainty surrounding whether and when he will be put to death. That uncertainty, he maintains, constitutes cruel and unusual punishment that violates the
A. Text and Context of Article V, Section 14
“He [the Governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law. Upon conviction for treason he shall have power to suspend the execution of the sentence until the case shall be reported to the Legislative Assembly, at its next meeting, when the Legislative Assembly shall either grant a pardon, commute the sentence, direct the execution of the sentence, or grant a farther [sic] reprieve.
“He shall have power to remit fines, and forfeitures, under such regulations as may be prescribed by law; and shall report to the Legislative Assembly at its next meeting each case of reprieve, commutation, or pardon granted, and the reasons for granting the same; and also the names of all persons in whose favor remission of fines, and forfeitures shall have been made, and the several amounts remitted[.]”
The Oregon Constitution does not define the word “reprieve,” and historical definitions of the word provide little insight into the limitations, if any, on what qualifies as a reprieve. Instead, most definitions merely note that a reprieve is temporary and delays execution of the recipient‘s sentence. For example, a typical definition notes that “this term is derived from reprendre, to take back, and signifies the withdrawing of a sentence for an interval of time, and operates in delay of execution.” John Bouvier, 2 A Law Dictionary 358 (1839); see also William Blackstone, 4 Commentaries on the Laws of England 387 (1769) (“A reprieve, from reprendre, to take back, is the withdrawing of a sentence for an interval of time; whereby the execution is suspended.“); Noah Webster, 2 An American Dictionary of the English Language (unpaginated) (1828) (defining a reprieve as “[t]he temporary suspension of the execution of sentence of death on a criminal“). None of those definitions requires a reprieve to have a specified end date—a reprieve is “temporary” and operates “for an interval of time,” but need not identify the end date of that interval, as long as there is a definite end. Moreover, those definitions do not indicate that a reprieve may be granted only for a particular purpose; instead, they define the word “reprieve” by its effect, namely, the delay of execution of the recipient‘s sentence.
Furthermore, none of the definitions that the parties identify requires a reprieve to be accepted by the recipient to be effective. In fact, the origin of the word—from the French “reprendre,” meaning, “to take back“—suggests that the Governor can unilaterally “take back” the sentence imposed, rather than offering to delay execution of the sentence subject to the recipient‘s acceptance. In contrast, at least one historical definition of “pardon” expressly notes that a valid pardon requires acceptance. Bouvier, 2 A Law Dictionary at 215 (“To make it valid, the pardon must be accepted.“). But see Webster, 2 An American Dictionary of the English Language (unpaginated) (providing definition of “pardon” that does not mention acceptance). We need not—and do not—decide whether a pardon must be accepted to be valid. We note only that none of the definitions of “reprieve” contains a similar notion of acceptance.
The word “reprieve,” of course, does not appear in isolation in
The use of the word “grant,” however, does not, in and of itself, convert an act of clemency into property to be conveyed subject to acceptance, particularly when viewed in full context: “[The Governor] shall have power to grant reprieves, commutations, and pardons[.]”
The Oregon Constitution does not provide the recipient of a Governor‘s act of clemency with a corresponding individual right to reject that clemency. In fact, in
The Oregon Constitution gives the legislature an additional check on the Governor‘s clemency power in treason cases. In contrast to the President‘s clemency power8—which extends to all “[o]ffences against the United States” except those involving impeachment—in cases of treason, the Governor essentially can grant only a reprieve, rather than a commutation or pardon, and the reprieve is effective only until the legislature‘s next meeting. That is, the Governor‘s power is limited to “suspend[ing] the execution of the sentence” in a treason case, but only “until the case [is] reported to the Legislative Assembly, at its next meeting.”
Haugen argues that other constitutional provisions provide additional insight into what constitutes a reprieve. In particular, he argues that the Governor‘s primary duty is to “take care that the Laws be faithfully executed,”
In sum, the text and context of
B. Discussion of Article V, Section 14, at the Constitutional Convention
To better understand the scope of the Governor‘s clemency power, we turn to its history. The framers did not devote much time to debating
The limited debate at the constitutional convention did not include a discussion of the meaning of the term “reprieve.” It may be that the delegates did not discuss the meaning of that term, or additional limitations on that term, because, as Haugen asserts, it had a well-understood meaning at the time that the constitution was adopted. See Schick, 419 US at 260 (“Although the authors of [the federal clemency] clause surely did not act thoughtlessly, neither did they
C. English Common Law and the History of the Federal Clemency Power
The federal clemency power derives from English common law. See Schick, 419 US at 266 (noting that
Despite those limitations on the king‘s power, for a period of time in England, the king‘s power to pardon was absolute.10 William F. Duker, The President‘s Power to Pardon: A Constitutional History, 18 Wm & Mary L Rev 475, 487 (1977) (“[P]rior to the seventeenth century, the English monarch‘s power to pardon was absolute.“). The power to grant pardons was the “act of [the king‘s] government, which [was] the most personal, and most entirely his own.” Blackstone, 4 Commentaries at 389. The pardon power was considered “the most amiable prerogative of the crown,” id., and, as the king‘s prerogative, it was a right enjoyed by the king alone and not shared with his subjects. Blackstone, 1 Commentaries at 232 (“[F]or if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer.“). Although there were certain limitations on the king‘s prerogative, there is no
Starting in the late seventeenth century, some limits were placed on the king‘s clemency power. See Duker, 18 Wm & Mary L Rev at 487 (noting limits imposed in the seventeenth century); Blackstone, 4 Commentaries at 393 (listing limits imposed by statute on pardon for treason, murder, and rape). Moreover, when the king attached certain conditions to his grant of clemency, some authorities suggest that those conditions had to be accepted for the grant of clemency to be effective. See, e.g., Schick, 419 US at 261 (noting that “[t]he idea later developed that the subject‘s consent to transportation [as a condition of a pardon] was necessary, but in most cases he was simply ‘agreeing’ that his life should be spared“). At least in some circumstances, however, “the requirement of consent was a legal fiction at best.” Id. (discussing clemency conditioned on transportation to another place). Thus, in large part, “by 1787 the English prerogative to pardon was unfettered except for a few specifically enumerated limitations.” Id. at 262.
No authority indicates that those specifically enumerated limitations included limitations on the reasons for which the king could grant clemency or, more specifically, reprieves. Although, as Haugen asserts, several recurring reasons tended to be the reason for granting reprieves, nothing suggests that an act of clemency had to be granted for one of those historical reasons to qualify as a reprieve. Compare Chitty, Prerogatives at 97 (noting that a reprieve may be granted “from the regular operation of law in circumstances which render an immediate execution inconsistent with humanity or justice“) and Blackstone, 4 Commentaries at 387-88 (noting that reprieves may be granted if a person sentenced to death is pregnant or insane) with Blackstone, 4 Commentaries at 390 (noting that “it [is] in [the king‘s] power to extend mercy, wherever he thinks it is deserved“) and Chitty, 1 Practical Treatise at 758 (noting that “[t]his temporary mercy [of a reprieve] may be extended ex mandatio regis, or from the mere pleasure of the crown“). Moreover, nothing suggests that reprieves were required to carry a stated end date. See, e.g., Chitty, Prerogatives at 98 (noting that, after the king grants a reprieve, “the Judge of course grants the prisoner a respite, either for a limited time or during the pleasure of his Majesty” (emphasis added)).
Similarly, when the Crown delegated the clemency power to the executive authorities in the colonies, few limitations were imposed on that power. Duker, 18 Wm & Mary L Rev at 497. Following the Revolutionary War, however, the states “drastically curtailed the powers of their suspect executives.” Id. at 500. In doing so, the states did not provide recipients of acts of clemency with a right to nullify those acts by rejecting them, but rather “provided for the ascendency of the legislative branch” while weakening the executive clemency power. Id. The issue was one of the allocation of government power, rather than the creation of individual rights.
By the time that the Oregon Constitution was adopted in 1857, the United States Supreme Court had clarified in Wilson, 32 US 150, how the English common law had influenced interpretation of the federal constitutional clemency power. In Wilson, the President had granted a pardon of a defendant‘s death sentence, and the defendant chose not to raise that pardon as a bar during sentencing for other, related crimes. Chief Justice Marshall, writing for the Court, determined that the trial court should not take judicial notice of the pardon, because it had not been brought before the court. Id. at 163. In reaching that conclusion, the Court drew on English principles and looked to English law “for the rules prescribing the manner in which [the pardon] is to be used by the person who would avail himself of it.” Id. at
“A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court.”
Id. at 160-61. Under that description of English common law, an act of clemency would not necessarily have to be accepted to be effective. In particular, the Court indicated that the pardon “exempts the individual” when it is “bestowed” on him, rather than exempting him only after he accepts the grant of clemency.
The Court, however, went on to analogize a pardon to a deed:
“A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.”
Id. at 161. That part of the opinion, of course, suggested that acceptance of a pardon is required for it to be effective. In applying that principle, the Court stated that, like a deed, a pardon must be brought before the court by motion, plea, or otherwise if it is going to serve as a bar to further sentencing. Id. at 161-62. Therefore, although there is strong language in Wilson regarding acceptance of a grant of clemency, the opinion also looked the other way, suggesting that clemency can be effective absent consent. The inconsistent passages in Wilson, particularly when considered in light of the other historical evidence, indicate that, at the time the Oregon Constitution was adopted, there was some support, but not necessarily a well-established understanding, for the view that grants of clemency required acceptance to be effective.
In sum, neither the text nor the historical circumstances surrounding
requires an act of clemency to be accepted by the recipient to be effective; nor do they require an act of clemency to have a stated end date or to be granted only for a particular purpose. We turn to the case law interpreting
D. Federal Case Law Interpreting the President‘s Clemency Power
The United States Supreme Court first interpreted the President‘s clemency power in 1833, in Wilson, 32 US 150. As noted, in that case, the President had granted a pardon of the defendant‘s death sentence, but the defendant chose not to raise that pardon as a bar during sentencing for other, related crimes. The Court held that the defendant could not benefit from the pardon in his sentencing for those other crimes, because he had not raised the pardon before the trial court.
It is important to understand what Wilson did not address. Unlike Haugen, the defendant in Wilson did not attempt to reject the grant of clemency from his death sentence; rather, he chose not to raise that grant of clemency as a bar to sentencing on related charges. In addition, as mentioned above, although the Supreme Court indicated that a pardon must be accepted to be effective, it reached that conclusion by analogizing a pardon to a private deed. Id. at 161. In analogizing a pardon to a deed, the Court reasoned that the pardon, “like any other deed,” had to be brought before the court. Id. The Court did not conclude, let alone hold, that all grants of clemency are valid only if accepted. That was not the issue before the Court in Wilson.
Despite those caveats, Wilson has been cited for the proposition that a pardon is valid only if accepted. The United States Supreme Court affirmed the acceptance requirement in Burdick v. United States, 236 US 79, 35 S Ct 267, 59 L Ed 476 (1915). In that case, Burdick, an editor for the New York Tribune, refused to answer questions
“[t]hat a pardon by its mere issue has automatic effect resistless by him to whom it is tendered, forcing upon him by mere executive power whatever consequences it may have or however he may regard it *** was rejected by the court [in Wilson] with particularity and emphasis. The decision is unmistakable.”
Id. at 90. Thus, in Burdick, the Court squarely held that a pardon must be accepted by the recipient to be effective. Accordingly, the Court dismissed the contempt proceedings against Burdick.
The Supreme Court backed away from the acceptance requirement in a later case, however, specifically stating that a grant of clemency does not require the recipient‘s consent to be effective. In Biddle, the defendant was sentenced to death following a murder conviction, and the President commuted the sentence to life imprisonment “in a penitentiary to be designated by the Attorney General of the United States.” 274 US at 485 (quoting commutation). After the pardon was granted and the defendant had been transferred to a penitentiary, the defendant filed an application for a writ of habeas corpus, arguing that his transfer to a penitentiary was without his consent and that the President‘s commutation was beyond his legal authority. Id. The Court rejected the defendant‘s argument in an opinion by Justice Holmes. Although the Court did not cite Wilson, it rejected the often-cited principle from Wilson that a pardon is a private act of grace:
“A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Just as the original punishment would be imposed without regard to the prisoner‘s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done.”
Id. at 486 (citation omitted). In rejecting the characterization of a grant of clemency as a “private act of grace,” the Court explicitly rejected the Wilson court‘s corresponding characterization of a pardon as a private deed requiring acceptance. The Biddle court reasoned that requiring the recipient‘s consent effectively would deprive the President of his power to grant clemency. Id. at 487 (concluding that requiring consent “would permit the President to decide that justice requires the diminution of a term *** without consulting the convict, but would deprive him of the power in the most important cases and require him to permit an execution which he had decided ought not to take place,” in the absence of the recipient‘s consent to the clemency).11 Thus, Biddle rejected the acceptance requirement suggested in Wilson.
Haugen argues that Biddle is not persuasive, because this court consistently has relied on the rationale set forth in Wilson when interpreting
The Governor concedes that Oregon‘s case law has tracked early United States Supreme Court cases. The Governor argues, however, that none of the Oregon cases presents the issue raised here, namely, whether the recipient of an unconditional reprieve can render it ineffective by rejecting it. Therefore, according to the Governor, this court need not overrule any of its prior cases, because this is an issue of first impression. Moreover, the Governor notes, to the extent that the Oregon cases rely on Wilson, Wilson is not relevant to this case, because it merely addresses whether the court can take judicial notice of a pardon that the defendant did not bring before the court.12 Wilson, the Governor asserts, did not address the broader question of whether a grant of clemency must be accepted to be effective.
E. Oregon Case Law Discussing the Governor‘s Clemency Power
This court first discussed acceptance of a grant of clemency in Houghton, 49 Or 232. In Houghton, the Governor commuted Houghton‘s five-year sentence for robbery to a shorter term on the condition that Houghton “remain a law-abiding citizen.” Id. at 232 (quoting commutation). After Houghton‘s release, the Governor revoked the commutation, because he determined that Houghton had violated the condition when he was convicted of larceny. Id. at 233. Houghton challenged the Governor‘s decision, arguing that the Governor did not have the authority to grant conditional commutations and that the condition was therefore void, thus rendering the pardon absolute. Id. In considering that argument, the court assumed, without much discussion, that a grant of clemency could be rejected by the recipient. Id. at 234-35 (concluding that “under a constitution like ours a pardon is a mere act of grace” and that, in that case, “[t]he commutation was an act of grace or favor, and [Houghton] was not obliged to accept it unless he so desired“). The court made the same assumption in a similar case involving revocation of a conditional reprieve: In re Petition of Dormitzer, 119 Or 336, 249 P 639 (1926).13
Houghton and Dormitzer are distinguishable from the present case. Both cases involved the Governor‘s revocation of a grant of clemency, rather than the effect of a recipient‘s rejection of that clemency. The defendants in those cases argued for the effectiveness of an act of clemency, not its invalidity. Moreover, unlike the reprieve at issue here, Houghton and Dormitzer involved conditional grants of clemency. We need not decide here whether a conditional grant of clemency requires acceptance to be effective; we note only that we need not extend the reasoning in Houghton and Dormitzer to this case because of the different nature of the clemency granted to Haugen. Here, the Governor‘s reprieve was unconditional; by its terms, it required no particular act by Haugen to be effective.
In addition, in treating an act of clemency as “a mere act of grace,” this court in Houghton relied on cases from other states, as well as from the United States Supreme Court, but did not undertake its own analysis of
This court again assumed that a grant of clemency requires acceptance to be effective in Carpenter v. Lord, 88 Or 128, 171 P 577 (1918). Unlike Houghton and Dormitzer, however, Carpenter did not involve a grant of clemency. Carpenter had been convicted of a crime in Oregon and had been granted parole, but the Governor issued an executive warrant to have Carpenter delivered into the custody of an agent of the state of California, where charges also were pending against him. Carpenter challenged the Governor‘s ability to have him extradited to California. In examining that issue, this court discussed separation of powers and noted that the Governor could not “annul the action of the Circuit Court or *** interfere with it in the execution of its own judgment.” Id. at 137. The court acknowledged that the Governor could issue a pardon, but stated that “even that is not effective” unless accepted by the recipient. Id. The court went on to quote the language from Wilson characterizing a pardon as a deed that is valid only when accepted. Id. Although the court seemed to cite Wilson as a demonstration of the limits imposed on the Governor‘s clemency power, the case did not involve an act of clemency at all and, similarly to Houghton and Dormitzer, did not provide the court with an opportunity to engage in an independent analysis of the Governor‘s
Nonetheless, the court cited Carpenter and again cited Wilson when it discussed the clemency power in a later case involving statutory good time credits. In Fredericks, 211 Or 312, an inmate was released 15 months early due to a miscalculation of his statutory good time credits. The inmate was returned to prison when the mistake was discovered, and he petitioned for a writ of habeas corpus. On rehearing before this court, the defendant argued that the court had erred in its initial opinion when it determined that the defendant had been released pursuant to a statutory power granted to the Governor under the good time credits statute, rather than pursuant to the Governor‘s exercise of his constitutional power to grant clemency.14 The court again concluded that the inmate was improperly released due to a miscalculation of his good time credits, and not because the Governor had granted him clemency. Id. at 317, 322.
In reaching that conclusion, the court noted that the Governor had not followed the necessary procedure for granting a pardon, and the court quoted from Carpenter, including the portion of Carpenter that quotes the Wilson court‘s characterization of a pardon as a deed requiring acceptance to be effective. Id. at 323, 325. Haugen argues that Fredericks is significant because this court continued to rely on Wilson,” even though the United States Supreme Court essentially had rejected Wilson‘s characterization of clemency 30 years earlier in Biddle. See Id. at 323. However, after quoting Carpenter, the court in Fredericks immediately proceeded to discuss good time credit statutes. The court did not provide any analysis of Carpenter or Wilson, did not apply the language that it quoted, and, other than quoting that text, did not endorse that language. Moreover, there was no contention in the case that a grant of clemency was ineffective because the recipient had rejected it; on the contrary, the recipient was arguing that the Governor had granted him clemency, rather than merely releasing him based on good time credits.
Haugen argues that this court in Fredericks likely quoted Carpenter in response to the dissent‘s assertion that the Governor possesses “complete” power of clemency that cannot be enlarged or infringed upon by the
F. The Governor‘s Article V, Section 14, Power to Grant Reprieves
In sum, a number of Oregon cases contain statements suggesting that a grant of clemency is effective only if accepted by the recipient. Moreover, several cases hold that the Governor can revoke a conditional grant of clemency if the recipient attempts to benefit from the clemency without complying with the condition. On close examination, however, none of the Oregon cases holds that an unconditional act of clemency is effective only on acceptance by the recipient. And, no Oregon case involves the situation presented here, in which a recipient has attempted to reject a grant of clemency.
In addition, as Haugen notes, to the extent that this court‘s cases indicate that acts of clemency are ineffective if rejected, the cases suggest that the recipient has that right of rejection because grants of clemency are acts of grace. A grant of clemency may be an act of grace in some cases, but, as the Court stated in Biddle, under our constitutional scheme, a grant of clemency is not a “private act of grace from an individual happening to possess power,” 274 US at 486 (emphases added). Rather, it is “part of the Constitutional scheme” and permits the chief executive to determine that “the public welfare will be better served” by clemency. Id.; see also Eacret, 215 Or at 126 (noting that “the pardoning power is not a power inherent in any officer of the state *** but by the constitutions of nearly all the states, it is conferred upon the executive or upon the executive acting in conjunction with a council, board or commission“).
We recognize that, historically, governors and presidents have granted clemency for a wide range of reasons, including reasons that may be political, personal, or “private,” and that many such decisions—such as Governor Kitzhaber‘s decision here—may be animated by both public and private concerns.15 Nonetheless, the executive power to grant clemency flows from the constitution and is one of the Governor‘s only checks on another branch of government. As part of the system of checks and balances, the Governor‘s clemency power is far from private: It is an important part of the constitutional scheme envisioned by the framers.
Within that scheme, limits exist on the Governor‘s power. The most fundamental limit is imposed through the actions of the people, if they choose not to reelect the Governor. See Eacret, 215 Or at 128 (noting that, if the Governor abuses the clemency power, the people have recourse at the polls). Moreover, as the text, history, and case law surrounding
“part of the Constitutional scheme. When [clemency is] granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Just as the original punishment would be imposed without regard to the prisoner‘s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done.”
274 US at 486 (citation omitted).
We also reject Haugen‘s argument that the Governor‘s action did not qualify as a reprieve. As noted, even if a reprieve requires a definite end date, this reprieve satisfies that requirement, because it will end when Kitzhaber‘s service as Governor ends. In addition, Haugen‘s argument that a reprieve under
IV. CRUEL AND UNUSUAL PUNISHMENT
Having determined that the Governor‘s reprieve is valid under the
The
The necessary predicate to Haugen‘s proportionality argument is that the reprieve is a punishment similar to a criminal sentence. The reprieve is a punishment, Haugen asserts, because it imposes an indefinite, prolonged period during which he will not know whether or when he will be put to death. As Haugen himself argues, however, a reprieve is the temporary suspension of a criminal sentence, not the imposition of a criminal sentence. It is contrary to the very definition of a reprieve to classify it as punishment. Moreover, it makes little sense to require a penological justification for the suspension of a criminal sentence, and Haugen cites no authority for imposing such a requirement.
We do not doubt that being on death row, awaiting possible execution, and facing uncertainty as to if, and when, that sentence might be carried out, exacts a toll on people, as at least some members of the Supreme Court have recognized. See, e.g., Knight v. Florida, 528 US 990, 994, 120 S Ct 459, 145 L Ed 2d 370 (1999) (Breyer, J., dissenting from denial of certiorari) (“It is difficult to deny the suffering inherent in a prolonged wait for execution—a matter which courts and individual judges have long recognized.“). The Court has not concluded, however, that the uncertainty accompanying that time on death row constitutes cruel and unusual punishment. Moreover, Haugen cites no case that suggests that a reprieve or other act of clemency qualifies as cruel and unusual punishment. Thus, we reject Haugen‘s Eighth Amendment challenge.17
The judgment of the circuit court is reversed, and the case is remanded to the circuit court with instructions to enter judgment in accordance with this opinion.
Notes
“Upon such conditions and with such restrictions and limitations as the Governor thinks proper, the Governor may grant reprieves, commutations and pardons, after convictions, for all crimes and may remit, after judgment therefor, all penalties and forfeitures.”See also Houghton, 49 Or at 234 (noting that similar language in earlier enacted provision “is but a restatement of the law as it exists without legislative action“).