Saturday, August 4, 2012

All Power to the Condemned

I'm an atheist, but I've written a lot about mercy, which I sometimes call "an act of grace," in this blog.  That's OK.  Mercy doesn't require a deity.  Nor does grace.  They're gifts, things to be granted.
They're about the giver, not the recipient, I say.
They have nothing to do with desert, I say.
They can't be earned, I say.
And although I don't exactly say it often enough, though I maybe haven't precisely said it here at all, they ennoble those who give them.
I need to talk here about John Kitzhaber, about Timothy Alexander who mostly agrees with him, and with Gary Haugen who disagrees vehemently.
I need to talk about grace and mercy and, sadly, about the law (though maybe this time it's Law with the uppercase L).  And I need to talk about the Rule of Law and the Law of Rule and about who's in charge here.
None of these things are new to this blawg (except Timothy Alexander, and he's just a functionary really, though a vital one in this case, and one of a sort we see either too often or not often enough, depending on the day and on your point of view).
Let me begin with Kitzhaber and Haugen - two men about whom I've written before.  Here they are, Kitzhaber on the left for esthetic not political reasons.


They are, intertwined, inescapably bound together. Maybe the right image is of them holding hands and swaying in a macabre tango. Perhaps it's a tug of war, yanking ends not of a simple rope but of a noose. Really, I don't know that there's a need to get the imagery just right until it's time for the funeral elegy. Or the paean to life.
 
John Kitzhaber is the Governor of Oregon.  Gary Haugen is on death row there.  
Haugen was scheduled to be killed until Kitzhaber stepped in.  He'd overseen executions before but says he will not do it again.  Nobody, he says, will be executed here as long as I am Governor.  Our law sucks.  We only kill volunteers, which is insane.  I'm giving him a reprieve until I am no longer Governor.  In the meantime, maybe the legislature will fix this abomination. 
Haugen will have none of that.  He wants to be killed. Insists on being killed.  You can't keep me alive, dammit, he says.  I have rights.  I demand to be killed.  Now. And I have a right to be killed.  You want to give me a reprieve.  I refuse it.  I spit it out.  Fuck you.
As I say, I've written about this apache dance (I'm still working on the imagery) before.  (See here and here.) 
Naturally, they're now in court, have been for a bit.
Kitzhaber says he has an absolute right, under Oregon law, to grant a reprieve.  It's his call.  Haugen has no say.  Haugen says that's bullshit.  Kitzhaber can grant all he wants, but I have to accept before it counts, and I don't. 
And so we come to the functionary, the Honorable Timothy P. Alexander, Senior Circuit Judge sitting in the Circuit Court of the State of Oregon for the Third Judicial District.  (Can't find a picture for you of someone who's definitely he.)  Yesterday, he issued his decision.  It's an unenthusiastic but ringing endorsement of Haugen's right to make Oregon murder him.
The unenthusiastic part is dicta, the filler that judges toss into their opinions.  Technically, dicta is whatever in a court's opinion isn't a formal holding.  (This is the rule and here's how it is to be applied.) Sometimes it's important, has real legal or political or even practical consequence.  Other times it's blather.  Occasionally, it's the words of a judge bemoaning that messy obligation to obey the Law (uppercase) even if he hates it.  It's that last thing Alexander was doing when he wrote this.
I have been personally involved with death penalty litigation for more than 40 years, acting as prosecuting attorney, defense attorney, appellate attorney, and trial judge. My decision in this declaratory judgment case is not intended to be a criticism of Governor Kitzhaber or the views he has expressed in his statement accompanying the reprieve he has offered to Mr. Haugen. In fact, I agree with many of the concerns expressed by the governor, and share his hope that the legislature will be receptive to modifying and improving Oregon laws regarding sentencing for Aggravated Murder. Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever results in executions.
However, consistent with the resolution of every other case, I am required to set aside my personal views and decide t his case on its merits and the law.
You know from that "however" at the beginning of the second paragraph I quoted how this is going to turn out.
Here's the short of it.  Governors have absolute authority to grant mercy, short term as in reprieves or permanently as in commutations.  And the people to whom they grant that mercy have the absolute right to say 
Fuck no.  I ain't taking it.
And to make that stick.
Mercy, it seems (and it turns out that this used to be the position of the US Supreme Court on the constitutional power of the President, too, but it is no longer), is not so much a grant of grace but an offer of a contract.  Perhaps subject to negotiation.  That's Oregon Law, or at least it is until higher Oregon courts speak to it.  The Law in your jurisdiction (or mine) may vary.
So here we have a judge forcing himself to adhere to the Rule of Law and ignore his predilections.  Good for him.  That's what we want judges to do.
And what he concludes is that the Rule of Law, the rule that gives the Governor absolute authority to grant mercy, is actually trumped by the power to refuse it.  So that, in Oregon at least, mercy isn't about the giver at all.  It's about the willingness of the grantee.
That's not mercy as I understand it.  It's certainly not the heritage of the divine right of kings.  Nor is it any religious conception I'm aware of.
God:  Welcome to the Kingdom of Heaven.
Dead Guy: Fuck no.  I'm not staying and you can't make me.
God: Actually, I can.
Except in Oregon.
Where the inmate gets to choose his punishment.
And where the right to suicide by prison guard is, at least for the moment, inviolate.

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