There Are Things Worse Than Mercy

Clemency - when a governor or the president either lessens a person’s sentence or overturns his conviction - isn’t something that happens very often. Many words have been written on Obama’s stingy record when it comes to clemency, but the fact is he’s not that much worse than his predecessors. Sadly, politicians are just not that enthused to use political capital to release someone from prison who might, when it’s all said and done, go out and do something awful. One of those is all it takes to destroy a political career. Weighed against that, the reward for doing the right thing just isn’t that great.

Which is a long winded way of saying, when the governor calls and tries to lessen your penalogical burden, you say “yes!” But death, as they say, is different and sometimes capital punishment makes people do strange things.

Consider the case of Gary Haugen (via), convicted of murder in Oregon in 2007 (committed in prison while already serving life for another murder). Haugen is what they call in the capital punishment biz a “volunteer,” in that he wants to die. Or, at least, he’s waived his remaining appeals and collateral challenges to his conviction in order to bypass the years that might pass before he’s executed. If you’re the state of Oregon, so far so good, right?

Enter Oregon Governor John Kitzhaber. Kitzhaber is a death penalty opponent and he utilized his executive authority to offer Haugen an “unconditional reprieve,” after a fashion. It’s actually a reprieve that will expire when Kitzhaber leaves office and is part of a blanket decision on his part not to carry out any death sentences during his term because of problems with the death penalty. So it’s not much of a reprieve, and certainly not a commutation to a life sentence or a pardon.

Regardless, here’s the catch with Kitzhaber’s limited attempt at beneficence – Haugen doesn’t want it. Now the Oregon Supreme Court is set to decided whether an inmate can refuse an act of clemency handed down by the governor.

At first blush I would have never thought that clemency was something someone could refuse. It’s an act of executive grace, after all, which can neither be demanded* nor reviewed, so how could the receiving party turn it down? However, that’s not what a lower court decided, identifying a 1833 Supreme Court decision that allowed a prisoner to refuse a pardon. The Governor counters that newer cases undermine that idea and that:

’No state court appears to have required that, as a general matter, an unconditional grant of clemency be accepted to be valid,’ [the Oregon Solicitor General] wrote. ‘Instead, the case law surrounding the clemency power reaffirmed that the power was expansive.’

Haugen’s argument is based on both clemency law as well as federal notions of due process and cruel and unusual punishment. This passage from the argument summary section of his brief seems to sum up the core of his position:

Mercy cannot be forced upon someone any more than a gift can be, and what one person considers to be a benefit, another might consider to be an injury. A purported act of benevolence that can be forced upon someone who does not want it is a contradiction not only in terms, but of concepts. Here, Mr. Haugen considers Governor Kitzhaber’s action, as well-intentioned as it might be, to be profoundly dehumanizing and cruel. It makes him an unwilling pawn in the Governor’s desire to ‘allow’ Oregonians to engage in a debate over the death penalty, even though nothing has impeded them from engaging in that debate ever since they overwhelmingly voted to establish the death penalty nearly 30 years ago. Because Governor Kitzhaber obviously cannot determine whether his successor as Governor will continue the moratorium he has imposed, Mr. Haugen could be put to death by lethal injection as soon as Governor Kitzhaber leaves office. . . . The ostensible reprieve therefore makes plaintiff live for up to seven years under an awful pall of uncertainty regarding whether, and when he will be put to death.

That is not something Mr. Haugen wants, and not something he sought.

A third party involved in the case is the ACLU, which filed an amicus brief from its office between a rock and a hard place. On the one hand, the group is furiously anti-capital punishment. On the other, it generally takes positions that maximize an individual’s control over his own life and even the right to end it (as Haugen explains in his brief, he doesn’t want to die – the state wants to kill him – he just doesn’t want to unduly prolong the process). In the end, it comes down on the side of Kitzhaber, arguing that his clemency authority extends to temporary reprieves such as this one used to “promote the public welfare” by, among other things, forcing a discussion on the nature of Oregon’s death penalty.

While I understand the structural basis for the ACLU’s argument, as well as Kitzhaber’s, I’m not sure they should prevail in this case. I’m particularly troubled by the temporary nature of the reprieve. It would be one thing if Kitzhaber simply commuted Haugen’s sentence to life, as George Ryan did in Illinois while he was governor. But the uncertainty of this reprieve, which may only prolong the inevitable for Haugen, adds an extra layer of cruelty to the whole situation. Haugen may have earned his punishment, but nobody should be made a pawn in a political game in which they have no real input.

If the death penalty in Oregon is broken, then commute those currently sentenced to death to life in prison and fix the system. Or, better yet, join the rest of the civilized world and scrap the barbaric practice altogether. Stand up and put your money, and your political capital, where your mouth is, Governor. Stop playing games.

* Obviously, you can ask the governor or president for a pardon or commutation. What I mean is that, unlike a court action, there’s no combination of factors that, if proven, will lead to success. The final decision lies completely within the executive’s unreviewable discretion.