Haugen v. Kitzhaber

No. 28 June 20, 2013 715
IN THE SUPREME COURT OF THE
STATE OF OREGON
GARY D. HAUGEN,
Plaintiff-Respondent,
v.
John KITZHABER,
Governor of the State of Oregon,
Defendant-Appellant.
(CC 12C16560; CA A152412; SC S060761)
En Banc
On certification from the Court of Appeals under ORS
19.405.*
Argued and submitted March 14, 2013.
Harrison Latto, Portland, argued the cause and filed the
brief for plaintiff-respondent.
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.
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.
______________
*  Appeal from Marion County Circuit Court, Timothy Alexander, Judge.
716 Haugen v. Kitzhaber
After the Supreme Court affirmed 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 Article V, section 14, of the Oregon Constitution, suspending Haugen’s death
sentence for the duration of Kitzhaber’s service as Governor. Haugen sought a
judgment declaring the reprieve ineffective and invalid, arguing that a reprieve
must be accepted to be effective, or, alternatively, that the Governor’s action did not
qualify as a reprieve. The trial court agreed that a reprieve must be accepted to be
effective and ruled the Governor’s grant of clemency ineffective because Haugen
had rejected it. The Governor appealed, the Court of Appeals certified the appeal
to the Supreme Court, and the Supreme Court accepted the certification. Held:
(1) The Governor’s reprieve of Haugen’s death sentence was valid and effective,
regardless of Haugen’s acceptance of that reprieve; and (2) the Governor’s reprieve
did not violate the prohibition on cruel and unusual punishment in the Eighth
Amendment to the United States Constitution.
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.
Cite as 353 Or 715 (2013) 717
BALMER, C. J.
The Governor has the power to grant clemency,
including pardons, commutations, and reprieves, pursuant
to Article V, section 14, of the Oregon Constitution.1 This
case requires us to determine what constitutes a reprieve
under that constitutional provision. Specifically, we must
decide whether a reprieve must have a stated end date,
whether it may be granted only for particular purposes, and
whether it must be accepted by the recipient to be effective.
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 Article V, section 14, suspending Haugen’s death
sentence for the duration of Kitzhaber’s service as Governor.
Haugen purported to reject that grant of clemency. He
sought a judgment declaring the reprieve ineffective and
invalid, arguing that a reprieve must be accepted to be
effective, or, alternatively, that the Governor’s action did not
qualify as a reprieve. The trial court agreed that a reprieve
must be accepted to be effective and accordingly ruled the
Governor’s grant of clemency ineffective because Haugen
had rejected it. The Governor appealed, the Court of Appeals
certified the appeal to this court, and this court accepted the
certification. See ORS 19.405 (procedures for certification of
appeal).2 For the reasons set forth below, we conclude that
the reprieve is valid and effective. Accordingly, we reverse
the judgment of the trial court.
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
1
Article V, section 14, provides, in part: “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.”
2
ORS 19.405(1) provides, in part: “When the Court of Appeals has jurisdiction
of an appeal, the court, through the Chief Judge and pursuant to appellate rules,
may certify the appeal to the Supreme Court in lieu of disposition by the Court
of Appeals.” Under ORS 19.405(2), “The Supreme Court *  * may accept or deny
*
acceptance of the certified appeal.”
718 Haugen v. Kitzhaber
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 Article V, section 14, and was effective regardless of
Haugen’s purported rejection of it.
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
Cite as 353 Or 715 (2013) 719
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 Court cases. The trial court therefore concluded
that Haugen “has the right to reject Governor Kitzhaber’s
reprieve, and * * * absent acceptance a reprieve is ineffective.
Because [Haugen] has unequivocally rejected the reprieve,
it is therefore ineffective.” Governor Kitzhaber appealed, the
Court of Appeals certified the appeal to this court, and this
court accepted the certification.
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, Or Const, Art V, § 1, and because the Governor
is the head of an equal branch of government, this court
must not “assume the power to question the action of the
3
Although pardons, commutations, and reprieves have distinct characteristics,
they often are referred to collectively as “acts of clemency,” and the executive’s
power to grant them is referred to as the “clemency power” or “pardon power.” We
follow that convention here and distinguish between the three different types of
clemency only when necessary to highlight their specific meanings.
720 Haugen v. Kitzhaber
executive of the state.” Putnam v. Norblad, 134 Or 433, 439,
293 P 940 (1930). Moreover, the Governor is responsible for
determining the constitutionality of his actions in the first
instance, and, to the extent that this court may review those
actions, the court does so with that consideration in mind.
See Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 478-79,
753 P2d 939 (1988) (“Governors, legislators, and other public
officials are responsible in the first instance for determining
their constitutional duties[.]”). That principle, however, does
not exempt the Governor’s actions from judicial review. See
id. at 476-77, 479 (declining to adopt argument that the
court should defer to the Governor’s understanding of his
constitutional powers if that understanding is “arguably
correct,” because “[p]olitical institutions like any others may
adapt to erroneous practices that should not be sustained”).
For example, in Lipscomb, notwithstanding the constitution’s
allocation to the Governor of the power to veto legislation,
this court considered whether the Governor’s power to veto
provisions in bills declaring an emergency permitted the
Governor to veto any provision in such a bill, or to veto only
the emergency clause. Id. at 474.
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
Cite as 353 Or 715 (2013) 721
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 parents sought
to limit the Governor’s clemency power so that it could be
exercised based only on “considerations of justice in the
particular case.” Id. Thus, the parents sought to limit the
Governor’s exercise of discretion in determining both who
deserved clemency and why the Governor would exercise
that power. This court, however, declined to impose such
limitations.4
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 Article V, section 14, of the Oregon Constitution. One of
this court’s fundamental functions is interpreting provisions
of the Oregon Constitution. See Farmers Ins. Co. v. Mowry,
350 Or 686, 697, 261 P3d 1 (2011) (noting that “this court is
the ultimate interpreter of state constitutional provisions—
subject only to constitutional amendment by the people”).
We conclude that we may reach the merits of the parties’
arguments regarding what constitutes a reprieve.
4
The court determined that the parents lacked standing to maintain the suit
against the Governor, but then went on to discuss principles of judicial review in
relation to the Article V, section 14, clemency power. Eacret, 215 Or at 124-28.
722 Haugen v. Kitzhaber
III.  ANALYSIS OF THE ARTICLE V, SECTION 14,
CLEMENCY POWER
Article V, section 14, of the Oregon Constitution,
quoted in full below, provides, in part, that 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.”
Although this court previously has decided cases involving
Article V, section 14, the court has not analyzed that
provision using the principles described in Priest v. Pearce,
314 Or 411, 415-16, 840 P2d 65 (1992), for interpreting
original constitutional provisions. In undertaking that
analysis, this court examines the text of the constitutional
provision, the historical circumstances surrounding its
adoption, and the case law, id., with the goal of identifying
“the historical principles embodied in the constitutional
text” and then applying those principles “faithfully to
modern circumstances.” Coast Range Conifers v. Board of
Forestry, 339 Or 136, 142, 117 P3d 990 (2005).
The Governor argues that the text, context,
historical circumstances, and case law surrounding Article
V, section 14, of the Oregon Constitution demonstrate that
the Governor’s power to grant clemency under that provision
is plenary. The recipient of a grant of clemency, the Governor
argues, has no power to reject it, except, perhaps, in cases
where the grant of clemency requires the recipient to fulfill
a condition, which the recipient can decide to fulfill or not. In
making that argument, the Governor traces the development
of the clemency power from its English roots to the adoption
of Article V, section 14, of the Oregon Constitution. The
Governor also examines—and distinguishes—both federal
and state case law addressing the clemency power, noting
that no case has directly addressed the issue presented here.
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
Cite as 353 Or 715 (2013) 723
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 Eighth Amendment
to the United States Constitution and deprives him of his
liberty interest protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.5
Because this court has not previously applied the
Priest analysis to Article V, section 14, we begin with the
text and history of that provision, and then examine this
court’s prior cases in light of the textual and historical
analysis. After resolving the state constitutional issue,
we turn to Haugen’s federal claims. See Sterling v. Cupp,
290 Or 611, 614, 625 P2d 123 (1981) (court addresses state
constitutional issues before reaching federal constitutional
issues).
A.  Text and Context of Article V, Section 14
Article V, section 14, of the Oregon Constitution
provides:
“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[.]”
5
The Eighth Amendment provides, “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The
Fourteenth Amendment provides, in part, that no state shall “deprive any person
of life, liberty, or property, without due process of law.”
724 Haugen v. Kitzhaber
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.
Cite as 353 Or 715 (2013) 725
The word “reprieve,” of course, does not appear in
isolation in Article V, section 14, and the text surrounding
that word provides important context. The Governor has
authority to “grant” reprieves. The use of the word “grant,” in
some ways, is consistent with Haugen’s acceptance argument,
which relies in part on the United States Supreme Court’s
characterization of a pardon as similar to a deed conveying
property, which is valid only if accepted. See United States
v. Wilson, 32 US 150, 161, 8 L Ed 640 (1833) (“A pardon is
a deed, to the validity of which, delivery is essential, and
delivery is not complete, without acceptance.”). At the time
that the Oregon Constitution was adopted, the word “grant”
was commonly used to refer to property conveyances. See,
e.g., Webster, 1 An American Dictionary of the English
Language (unpaginated) (defining “grant” as “[t]o give; to
bestow or confer on without compensation, particularly in
answer to prayer or request[,]” or “[t]o transfer the title of
a thing to another, for a good or valuable consideration; to
convey by deed or writing”); Bouvier, 1 A Law Dictionary
at 449 (“Technically speaking, grants are applicable to
the conveyance of incorporeal rights, though in the largest
sense, the term comprehends every thing that is granted
or passed from one to another, and is applied to every
species of property.”); Alexander M. Burrill, 1 A New Law
Dictionary and Glossary 548 (1850) (defining “to grant” as
“[a]n operative word of conveyance, particularly appropriate
to deeds of grant, properly so called, but used in other
conveyances also, such as deeds of bargain and sale, and
leases”). As the United States Supreme Court suggested
in Wilson, property conveyances may require acceptance.
Thus, the word “grant” provides at least some contextual
support for Haugen’s argument that, although the Governor
can attempt to “convey” an act of clemency to a person, the
person must accept that clemency for it to be effective.
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[.]” Or Const, Art V,
§ 14 (emphasis added). If the grant of clemency could be
rejected, the Governor’s “power” would be more akin to the
726 Haugen v. Kitzhaber
authority to make an offer, rather than the source of the
Governor’s unilateral ability to set aside or suspend a criminal
sentence. It is unlikely that the framers intended the word
“power” to have such a diminished meaning. The original
text of Article V, which discusses the executive branch,
used the word “power” to describe the Governor’s clemency
authority (and generally to vest the “chief executive power”
of the state in the Governor, Or Const, Art V, § 1) and not to
describe any of the other responsibilities of the Governor.6
The Governor’s ability to grant clemency is a direct and
complete check on specific actions of the judicial branch that
is entrusted to the chief executive. Accordingly, to the extent
that limits are imposed on the clemency power, those limits
must come from the constitution itself, or from the people.
See Schick v. Reed, 419 US 256, 267, 95 S Ct 379, 42 L Ed 2d
430 (1974) (“[T]he pardoning power is an enumerated power
of the Constitution and *  * its limitations, if any, must be
*
found in the Constitution itself.”).
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 describing
the Governor’s power to grant pardons, commutations,
and reprieves, the constitutional text does not refer to
the recipient of the grant of clemency at all. To the extent
that Article V, section 14, contemplates any limitation on
the Governor’s power, the constitution expressly entrusts
those limits to the legislative branch of government. The
legislature can regulate the Governor’s clemency power,
because that power is “subject to such regulations as may
6
Since statehood, the Governor has had the authority to veto bills, but that
authority was not phrased as a “power.” Former Or Const, Art V, § 15 (1857),
renumbered as Or Const, Art V, § 15b (1916) (“Every bill which shall have passed the
Legislative Assembly, shall, before it becomes a law be presented to the Governor,
if he approve he shall sign it; but if not, he shall return it with his objections, to
that house in which it shall have originated, which house shall enter the objections
at large upon the journal, and proceed to reconsider it.”). In 1916, the people added
Article V, section 15a, to the Oregon Constitution, which provided, “The Governor
shall have power to veto single items in appropriation bills.” (Emphasis added.) In
addition, some of the Governor’s responsibilities enumerated outside of Article V
were articulated as “powers.” See, e.g., Or Const, Art VIII, § 1 (“The Governor shall
be superintendent of public instruction, and his powers, and duties in that capacity
shall be such as may be prescribed by law; but after the term of five years from the
adoption of this Constitution, it shall be competent for the Legislative Assembly to
provide by law for the election of a superintendent[.]” (Emphasis added.)).
Cite as 353 Or 715 (2013) 727
be provided by law.”7 Or Const, Art V, § 14. The constitution
does not provide the recipient of an act of clemency with a
similar means of regulating the Governor’s power, whether
through a requirement of acceptance or some other means.
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.” Or Const, Art V,
§ 14. At that point, the Legislative Assembly decides whether
to grant a pardon, commutation, or reprieve, or whether to
“direct the execution of the sentence.” Id. In effect, in cases
of treason, the Governor makes the initial clemency decision,
and the legislature ultimately determines whether and what
kind of clemency is appropriate. The express limitation in
the constitution on the Governor’s clemency power in cases of
treason supports the Governor’s argument that, in all other
cases, his power is plenary.
7
The legislature has enacted a small number of statutory provisions
addressing the clemency power. ORS 144.649 - 144.670. Most of those provisions
address procedural issues, such as the procedure for reporting acts of clemency
to the legislature and the procedure for applying for clemency. The lone provision
addressing the scope of the Governor’s power, ORS 144.649, restates the Governor’s
constitutional power, but also expresses the legislature’s intent to defer to the
Governor’s judgment regarding the exercise of that power:
“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”).
8
The President’s clemency power is set forth in Article II, section 2, of the
United States Constitution, which provides, in part:
“The President shall * * * have Power to grant Reprieves and Pardons for
Offences against the United States, except in Cases of Impeachment.”
The President’s clemency power also is broader than the Governor’s power in
that the President can grant clemency at any time, while the Governor can grant
clemency only “after conviction.” Or Const, Art V, § 14.
728 Haugen v. Kitzhaber
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,” Or Const,
Art V, § 10, and that only the legislature has the power to
suspend the operation of the laws. See Or Const, Art I, § 22
(“The operation of the laws shall never be suspended, except
by the Authority of the Legislative Assembly.”). Based on
those provisions, Haugen reasons that the framers would not
have intended for a reprieve to have the effect of suspending
the operation of the laws. He argues that the Governor’s
purported reprieve suspends the operation of the laws by
effectively preventing a death sentence from being carried
out in accordance with ORS 137.463 to 137.482, and therefore
it is not a reprieve. Although Haugen acknowledges that any
reprieve may temporarily “interrupt” the operation of the
laws, he argues that the Governor’s reprieve in this case
suspends the laws because the reprieve lacks an expiration
date and is aimed at the laws, rather than at Haugen
himself.
As an initial matter, even if the constitutional
provisions that Haugen cites required a reprieve to have
an expiration date, the reprieve granted to Haugen would
satisfy that requirement. As noted, the reprieve expires at
the end of Kitzhaber’s service as Governor. Although Haugen
is correct that the expiration of the Governor’s service could
occur at different points in time—such as through death,
resignation, or expiration of his term of office—he does not
dispute that Kitzhaber’s service as Governor will end, at
which point Haugen’s sentence will be reinstated. Even if
the Governor’s reprieve is aimed at laws that he believes
are unjust or immoral, rather than at Haugen’s specific
circumstances, the effect of the reprieve here is the same as
any other reprieve: Haugen’s sentence is suspended during
the period of the reprieve. When the reprieve expires at the
end of the Governor’s service, Haugen’s sentence will be
executed unless the Governor’s successor grants another act
of clemency. We agree with the Governor that the reprieve
suspends Haugen’s sentence, rather than the laws. The
constitutional provisions that Haugen cites do not establish
that a reprieve must have a stated expiration date or cannot
Cite as 353 Or 715 (2013) 729
be aimed at the laws, as long as its effect is to temporarily
suspend the execution of a sentence, as is the case here.
In sum, the text and context of Article V, section
14, do not require a reprieve to specify an end date, nor do
they limit the Governor to granting reprieves only for a
particular purpose, as long as the effect of the reprieve is to
delay, temporarily, the execution of the sentence. Moreover,
the text and context do not indicate that a reprieve must
be accepted for it to be effective. Nothing inherent in the
word “reprieve” requires the recipient’s acceptance for the
reprieve to be effective. Although the word “grant” suggests
that the intended recipient must acquiesce in the reprieve,
interpreting “grant” that way would deprive the word
“power” of much of its meaning.
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 Article V, section 14. They did,
however, discuss a provision that would have provided the
legislature with an additional check on the Governor’s power.
As originally introduced, Article V, section 14, contained
a provision that permitted the legislature to “constitute a
council, to be composed of officers of State without whose
advice and consent the governor shall not have power to
grant pardons in any case, except such as may by law be left
to his sole power.” Claudia Burton, A Legislative History of the
Oregon Constitution of 1857—Part II (Frame of Government:
Articles III-VII), 39 Willamette L Rev 245, 365 (2003)
(quoting Article on Executive Department (As Introduced)
§ 14 (1857)). One delegate moved to strike that provision,
because it was “antiquated and old fogyish,” “would increase
the expense,” and, most importantly, because “[h]e believed
the responsibility should be imposed upon the governor
alone, and that thus the power would be exercised more
carefully, and with better judgment.” Id. at 367 (quoting
record of constitutional convention). Another delegate
opposed that change, reasoning that “the check would prove
a salutary one.” Id. Ultimately, that provision was removed
from Article V, section 14. Id. Thus, the Oregon history,
730 Haugen v. Kitzhaber
although slim, indicates that the delegates considered and
rejected additional limitations on the Governor’s clemency
power in favor of entrusting that power to the Governor
alone. Moreover, in considering those limitations on the
Governor’s power, the delegates discussed and rejected the
merits of a “check” by another branch of government, but did
not even discuss whether a similar overriding right should
be given to the recipient of the grant of clemency.
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 devote extended debate to its meaning. This can be
explained in large part by the fact that the draftsmen were
well acquainted with the English Crown authority to alter
and reduce punishments as it existed in 1787.”). To determine
if a well-established understanding of executive clemency
power existed at the time that the Oregon Constitution was
adopted, we must look beyond the constitutional convention.
Because the federal clemency power was adopted about
70 years before the Oregon clemency power, and had been
exercised by presidents in the years before Oregon adopted
Article V, section 14, we examine the federal clemency power
and its historical origins.9
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 Article
II, section 2, of the United States Constitution “derives”
from the English pardoning power, even though the federal
clemency power now “flows” from the constitution); Wilson,
32 US at 160 (adopting English “principles respecting
the operation and effect of a pardon”). As the “supreme
9
As discussed more fully below, the federal clemency power also provides
important context, because Oregon cases interpreting Article V, section 14, at
times rely on federal cases interpreting the federal clemency power.
Cite as 353 Or 715 (2013) 731
executive magistrate,” the king was entrusted “with the
power of extending mercy” by granting pardons or reprieves.
Joseph Chitty, A Treatise on the Law of the Prerogatives
of the Crown and the Relative Duties and Rights of the
Subject 2, 89, 97 (1820). Not all the king’s powers, however,
were plenary. Although the British monarch’s power was
hereditary, that power—at least by the mid-eighteenth
century—was considered to be vested in the king “by the
general consent of the people, the evidence of which general
consent is long and immemorial usage.” William Blackstone,
1 Commentaries on the Laws of England 183-84 (1765).
Accordingly, the king was expected to exercise his powers
and prerogatives for the benefit of his subjects. Chitty,
Prerogatives at 4 (“The splendour, rights, and powers of the
Crown were attached to it for the benefit of the people, and
not for the private gratification of the sovereign[.]” (Footnote
omitted.)). Moreover, the king’s power, to some extent, was
checked by the legislative branch. Id. at 2 (“In [England],
the legislative and executive authorities are wisely placed in
different hands * * *. [W]hen firmly and inalienably secured
in separate hands, the different branches of government
operate as a check on each other[.]”).
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.”
10
Although there is some early discussion of the king’s power to grant
reprieves, historical discussions regarding the clemency power focus on the
king’s pardon power. That difference in treatment may stem from the fact that a
pardon had greater implications, because of its permanency, than a reprieve. See
Blackstone, 4 Commentaries at 387 (noting that a reprieve is only temporary while
a pardon is permanent). Moreover, in England, judges also could grant reprieves,
whereas the pardon power was entrusted to the king alone. See Joseph Chitty, 1 A
Practical Treatise on the Criminal Law 757 (1841) (noting that a reprieve may be
granted “by the favor of his majesty himself, or the judge before whom the prisoner
is tried on his behalf”); Chitty, Prerogatives at 384 (noting that there are certain
“supreme powers and prerogatives inherent in, and inseparably annexed to the
royal character,” including the power to pardon, which are “incommunicable” and
“entrusted [to] the King alone”).
732 Haugen v. Kitzhaber
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 indication that a recipient of clemency could
limit the king’s prerogative to grant clemency by rejecting
an unconditional pardon. See Chitty, Prerogatives at 7-8
(discussing “boundaries” on the “royal prerogative” and
noting that the king “may pardon offenders, but cannot
prejudice civil rights and remedies,” without noting other
limitations on that prerogative). Thus, under that conception
of clemency, a recipient’s acceptance would not be required
for an unconditional grant of clemency to be effective.
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
Cite as 353 Or 715 (2013) 733
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
734 Haugen v. Kitzhaber
“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 160. The Wilson court described those English principles:
“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 circum-
stances surrounding Article V, section 14, unequivocally
requires an act of clemency to be accepted by the recipient
Cite as 353 Or 715 (2013) 735
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 Article V,
section 14, to determine whether it resolves those issues.
Because many of Oregon’s cases interpreting the clemency
power rely on federal cases, we begin with those federal
cases.
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. dThe 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 before a grand jury
regarding his sources for articles about a fraud case that
was under investigation. Id. at 84-85. Burdick refused to
testify because he said his answers might incriminate him.
736 Haugen v. Kitzhaber
Id. at 85. In response, the President granted Burdick “ ‘a full
and unconditional pardon for all offenses against the United
States which he * * * has committed or may have committed,
or taken part in’  in the publication of the fraud articles.
”
Id. at 86 (quoting pardon). Burdick declined the pardon and
continued to refuse to testify, and the court held him in
contempt. Id. at 86-87. Thus, the question directly presented
in that case was the effect of an unaccepted pardon—that
is, whether acceptance of a pardon is necessary for it to be
effective. Id. at 87-88. Relying on Wilson, the Court declared
“[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
Cite as 353 Or 715 (2013) 737
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 Article V, section
14, of the Oregon Constitution. Haugen notes that, even
after the United States Supreme Court rejected Wilson’s
characterization of clemency as a “private act of grace” in
Biddle, this court continued to cite and rely on Wilson. See
Fredericks v. Gladden, 211 Or 312, 323, 315 P2d 1010 (1957).
Haugen reasons that, under this court’s existing cases and
Wilson, he can reject the Governor’s reprieve because the
Governor has not demonstrated why this court should
overrule its prior decisions.
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
11
The Biddle court did not overrule Burdick, 236 US 79, and instead stated
that the reasoning of Burdick “is not to be extended to the present case.” Biddle,
274 US at 487-88. The Court did not elaborate or otherwise distinguish Burdick.
738 Haugen v. Kitzhaber
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
12
The Governor also argues that Wilson is distinguishable because it involved
a pardon, and, according to the Governor, courts historically have treated pardons
differently from other forms of clemency. Because we distinguish this court’s
reliance on Wilson on other grounds, we need not reach that argument.
13
In Dormitzer, 119 Or 336, the Governor revoked the previously granted
conditional reprieve when the defendant violated the condition, and the defendant
argued that the Governor in fact had granted him an unconditional pardon.
Id. at 338. This court determined that, even if the Governor had exceeded his
authority in granting the “so-called reprieve,” the defendant could not challenge
the revocation because “[h]e accepted the favor of the Governor.” Id. at 340. The
Cite as 353 Or 715 (2013) 739
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 Article V,
section 14, of the Oregon Constitution. See 49 Or at 234
(citing multiple cases from other states and a case from the
United States Supreme Court to support characterization
of clemency as an act of grace that can be rejected). In
Dormitzer, the court did not resolve whether the Governor’s
action in that case qualified as a reprieve, and the court did
not analyze—or even refer to—Article V, section 14. Thus,
Houghton and Dormitzer are of no assistance in resolving
the issues presented in this case.
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
court also rejected the defendant’s argument that the reprieve prevented him from
appealing, reasoning that he “had the right to accept or reject the ‘reprieve.’ ” Id.740 Haugen v. Kitzhaber
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 Article V, section 14, power.
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
14
Under the good time credit statute in place at the time, the Governor was
required to approve the release of prisoners whose sentences had been completed
due to reductions based on good time credits. See Fredericks, 211 Or at 322-23(discussing statute).
Cite as 353 Or 715 (2013) 741
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 legislature. Id.
at 327-28 (McAllister, J., dissenting). The majority, however,
agreed that the Governor is vested with the “complete” power
to grant clemency and determined that the legislature had
not invaded that power. Id. at 319, 322. Thus, although the
court in Fredericks quoted Carpenter, and in turn, Wilson
rather than Biddle, the court’s reason for quoting that
language, at best, is unclear.
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
742 Haugen v. Kitzhaber
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
Article V, section 14, demonstrate, the Governor’s power
15
In the reprieve, the Governor identified both public and personal reasons
for granting the reprieve: “Oregon’s application of the death penalty is not fairly
and consistently applied, and I do not believe that state-sponsored executions
bring justice[.]” On the same day that he issued the reprieve, the Governor also
issued a statement on capital punishment that further explained why he decided
to grant a reprieve to Haugen, again identifying both public and personal reasons
for his decision. He discussed the two executions that were carried out during his
first administration and noted that he regretted allowing those executions “both
because of my own deep personal convictions about capital punishment and also
because in practice Oregon has an expensive and unworkable system that fails to
meet basic standards of justice.”
Cite as 353 Or 715 (2013) 743
may be checked by the legislative branch, as in cases of
treason convictions and through the legislature’s authority
to establish regulations regarding the Governor’s power.
Nothing in the text of the Oregon Constitution, however,
provides the recipient of a grant of clemency with a right
to nullify it by rejecting it. To the extent that the history
and case law provide limited support for such a right, they
are based largely on English common law, which, although
informative, does not delineate Oregon’s constitutional
clemency power.
We conclude that the Governor’s reprieve of Haugen’s
death sentence is valid and effective, regardless of Haugen’s
acceptance of that reprieve. We agree with Justice Holmes’
comment in Biddle that the Governor’s power to grant the
reprieve that he did here is
“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 Article V, section 14, may
be granted only for the reasons that reprieves historically
were granted is without support. Although there may have
been certain common reasons for granting a reprieve in the
past, nothing in the text, history, or case law indicates that
a reprieve may be granted only for those historical reasons.
Governor Kitzhaber stated that he granted the reprieve
because of his view that the death penalty is not “fairly and
consistently applied” and his personal belief that the death
penalty does not “bring justice.” He determined that those
reasons were sufficient to issue a reprieve of Haugen’s death
sentence. We are not asked to, and we do not, review the
744 Haugen v. Kitzhaber
Governor’s judgment in reaching that conclusion. The issue is
whether the Governor’s action was within his constitutional
authority, and we conclude that it was.
IV.  CRUEL AND UNUSUAL PUNISHMENT
Having determined that the Governor’s reprieve is
valid under the Oregon Constitution, we turn to Haugen’s
claim under the United States Constitution.16 Haugen
argues that the reprieve subjects him to an “indefinite,
prolonged period” of uncertainty regarding whether and
when he will be put to death, in violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment
and the Fourteenth Amendment’s Due Process Clause. The
reprieve, Haugen argues, is an “additional punishment”
that lacks any penological justification. The Governor
responds that Haugen cites no authority for the proposition
that uncertainty regarding the date of execution constitutes
cruel and unusual punishment.
The Eighth Amendment states, “Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” The United States Supreme
Court has held that the Eighth Amendment prohibition on
cruel and unusual punishment extends to punishments that
are disproportionate to the crime. Graham v. Florida, 560 US
48, 130 S Ct 2011, 2021, 176 L Ed 2d 825 (2010) (“The concept
of proportionality is central to the Eighth Amendment.”).
In addressing certain proportionality challenges to a
category of punishment, the court first considers “objective
indicia of society’s standards, as expressed in legislative
enactments and state practice to determine whether there
is a national consensus against the sentencing practice at
issue.” Graham, 130 S Ct at 2022 (internal quotation marks
omitted). Then, based on “the standards elaborated by
controlling precedents” and the Court’s analysis of the Eighth
16
In addition to the Eighth Amendment claim discussed below, Haugen
asserts that the reprieve violates the Due Process Clause by depriving him of his
liberty interest in his “basic autonomy as an individual” and his “inalienable right
as a human being to form and then act according to his own conceptions about the
intimate, unfathomable questions of life and death.” He does not cite any authority
in support of that assertion, nor does he cite any case in which the United States
Supreme Court has recognized such a liberty interest or in which the Court has
recognized that an act of clemency deprives the recipient of that asserted interest.
Cite as 353 Or 715 (2013) 745
Amendment itself, the Court must determine whether the
punishment violates the constitution. Id. (internal quotation
marks omitted). In that second inquiry, the Court considers,
among other things, “whether the challenged sentencing
practice serves legitimate penological goals,” because “[a]
sentence lacking any legitimate penological justification is
by its nature disproportionate to the offense.” Id. at 2026,
2028. For example, in Graham, the Court determined that
there was no penological justification for sentencing juvenile
nonhomicide offenders to life without parole. Id. at 2028.
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
17
In Brown v. Plata, __ US __, 131 S Ct 1910, 1928, 179 L Ed 2d 969 (2011), the
United States Supreme Court held that “[p]risoners retain the essence of human
dignity inherent in all persons. Respect for that dignity animates the Eighth
Amendment prohibition against cruel and unusual punishment.” In that case,
746 Haugen v. Kitzhaber
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.
the Court found that clear and convincing evidence supported the finding of a
three-judge district court that prison overcrowding had led to Eighth Amendment
violations. The Court held that a prison’s failure to provide prisoners with “basic
sustenance, including adequate medical care,” constituted an Eighth Amendment
violation. Id. Haugen does not argue that the reprieve in this case violates the
Eighth Amendment because it is incompatible with the concept of human dignity
(although he makes a related argument under the Fourteenth Amendment), or
that the uncertainty associated with remaining on death row subject to a reprieve
is akin to being deprived of basic sustenance.