Under Article V of Oregon's constitution, the governor's power to overturn convictions and punishments is sweeping and essentially unchallengeable. That is true even if it is exercised unilaterally, even if it undermines justice, even if makes a mockery of the legal system, and even if it is used to override the considered judgment of the state's voters and lawmakers. And it's true even if a governor does all those things – as Kitzhaber did last week -- on the basis of nothing more than his own personal feelings.
When Illinois Governor George Ryan famously called a halt to executions in his state in 2000, he was responding to multiple reports of police and prosecutorial wrongdoing in capital murder cases, especially in Cook County. But Kitzhaber offers no evidence of any such corruption or injustice in Oregon. He does not dispute that Haugen is guilty of two particularly monstrous murders – nobody does, Haugen included. Nor does the governor suggest that any of the 36 other inmates on Oregon's death row were unfairly convicted.
Liberals are singing Kitzhaber's praises – the ACLU of Oregon extols his "courageous action," while the Los Angeles Times applauds him for being "true to his convictions" – but it's hard to see why. After all, he didn't commute Haugen's death sentence, let alone those of everyone else on death row, to life imprisonment. He merely issued a temporary reprieve that will end with his own term as governor. Unwilling to let a murderer be executed on his watch, yet unwilling to overturn a death sentence lawfully imposed by judge and jury and upheld on appeal, Kitzhaber decided to duck the issue, leaving it for his successor to resolve. That's courageous?
"The policy of this state on capital punishment is not mine alone to decide," Kitzhaber explains. "It is a matter for all Oregonians to decide."
Well, let's see. In 1978 Oregonians approved a ballot measure reinstating capital punishment (which had been repealed 14 years earlier). After the Oregon Supreme Court struck down that law as unconstitutional in 1981, voters amended the constitution so it could be restored. During his first term as governor in the 1990s, Kitzhaber himself permitted the execution of two killers – who, like Haugen, had waived further appeals – to proceed. Now he regrets having "allowed those sentences to be carried out despite my personal opposition to the death penalty," and declares that he "simply cannot participate once again in something I believe to be morally wrong."
Instead, Kitzhaber wants "all Oregonians to decide" the state's policy on capital punishment. But they already have. What Oregonians need isn't to make a decision, but a governor who respects the decision they've made.