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.