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FAQ: Could Gov. John Kitzhaber Commute Death Row Sentences?

With Oregon Gov. John Kitzhaber scheduled to resign Wednesday, opponents of the death penalty have asked him to commute the sentences of death row prisoners to life without parole in a move of last-minute clemency. Here is how that could play out if Kitzhaber goes down that road.

Who is on death row in Oregon?

Thirty-one men and one woman in Oregon have been sentenced to death for convictions of aggravated murder.

The men on death row are housed in single cells in a segregated area of the maximum security Oregon State Penitentiary in Salem.

Are there limits to the governor’s power to commute sentences?

No. “The governor has absolute, unilateral authority to pardon or commute criminal sentences, not reviewable by the legislature or the courts. That’s clear as a matter of Oregon Law,” says Steve Kanter, a professor of Constitutional Law at Lewis and Clark.

Clatsop County District Attorney Josh Marquis, who has prosecuted death penalty cases, says Kitzhaber has used his commutation power with restraint in the past.

“He’s been very sparse about giving out commutations and clemency, and he’s always given the district attorney and the victim weeks to respond,” he said.

Some of the people on death row in Oregon were convicted and sentenced in the 1980s, before the Oregon Legislature established the sentence of life without the possibility of parole.

But legal experts say that the governor has the authority to commute to any lesser sentence that’s constitutional, including life without parole. That authority has been recognized by the U.S. Supreme Court and the Oregon Supreme Court.

Has any other governor commuted everyone on death row?

There is a limited precedent. In 2003, Illinois Gov. George Ryan commuted the sentences of more than 150 people on death row shortly before he left office and was convicted of corruption. In 2011, when the Illinois Legislature abolished the death penalty, Gov. Pat Quinn commuted the sentences of 15 people.

In 2014, Maryland Gov. Martin O’Malley commuted the sentences of four men who remained on death row after the state Legislature abolished the death penalty.

How long has Oregon had the death penalty?

Oregonians have changed their position on the death penalty several times.

At the time of statehood, Oregon had the death penalty. In 1914, it was the first state to vote the death penalty out by popular vote. It was re-instated from 1920 until 1964. In 1964, the voters repealed it. In 1978, voters passed a ballot initiative re-instating the death penalty, but due to legal challenges, Oregon was effectively without a death penalty until 1984.

How many people have been executed in Oregon?

Since the death penalty returned to the state in 1978, Oregon has executed two people: Douglas Franklin Wright and Harry Charles Moore. Both men were so-called “volunteers” who chose to drop their appeals. Wright admitted to killing three homeless men and a 10-year-old boy. Moore killed his half-sister and her ex-husband.

Both men were executed during Kitzhaber’s first term as governor. In 2011, when he announced he was suspending all executions, Kitzhaber referred to his experiences with Wright and Moore.

”I do not believe that those executions made us safer; and certainly they did not make us nobler as a society,” he wrote. “It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer."

What consequences came from Kitzhaber halting executions?

At the state level, Gary Haugen, the only death row inmate not pursing an appeal, legally challenged the temporary reprieve Kitzhaber granted. The courts upheld Kitzhaber’s decision to halt Haugen’s execution.

After Kitzhaber’s announcement, several other governors made similar decisions to suspend executions. In 2013, Gov. John Hickelooper granted a temporary reprieve to an inmate in Colorado, and in 2014, Washington Gov. Jay Inslee suspended all executions.

Last year, in a decision examining how the death penalty is applied in Florida, the U.S. Supreme Court counted Oregon as an abolitionist state, due to Kitzhaber’s moratorium and the fact that the state had executed just two people in more than 50 years.

What options does Kate Brown have?

If Kitzhaber does not commute any death row sentences, the temporary reprieve he issued to Gary Haugen in 2011 will most likely no longer be in effect after he leaves office Wednesday; Kitzhaber said Haugen’s reprieve would last “the duration of my term in office.”

To execute Haugen, the state would have to seek an execution warrant from a judge, typically at least 45 days prior to the execution.

Gov. Kate Brown could chose to extend the moratorium, or could allow the execution to go forward.

However, Brown could be influenced by a Supreme Court Appeal challenging executions by lethal injection in Oklahoma. On Tuesday, U.S. Attorney General Eric Holder called for a national moratorium on executions until the Supreme Court reaches a decision in the case.

Gary Haugen, Courtesy: Dept. of Corrections
Gary Haugen, Courtesy: Dept. of Corrections
<p>John Kitzhaber</p>

John Kitzhaber

Copyright 2015 Oregon Public Broadcasting

Amelia Templeton is a multimedia reporter and producer for Oregon Public Broadcasting, covering Portland city hall, justice and local news. She was previously a reporter for EarthFix, an award-winning public media project covering the environment in the Northwest.