Oregonian: Kate Brown's death penalty review slowly moves from back burner

September 19, 2015 SALEM — Eight days after taking office, Gov. Kate Brown said she would convene a small group of advisers to help her puzzle through one of Oregon's most contentious issues: the death penalty.

Gov. John Kitzhaber stopped executions in Oregon four years ago, citing concerns about injustice as a death row inmate sought to speed his execution. Brown, thrust into office after Kitzhaber quit last February, decided to keep his moratorium while she sought answers.

Now, seven months later, her office acknowledges she's just getting started.

Brown's advisers insist she remains committed to a deep study of the subject. But the wait threatens to undercut one of Brown's early promises, that voters would have a sense of her direction on the issue before she stood for election.

As Brown positions herself to run next year to finish the final two years of Kitzhaber's term, it's not clear that they will.

Brown spokeswoman Kristen Grainger said the governor has directed her office attorney, Ben Souede, to lead an effort to get "legal advice about the practical aspects related to capital punishment in Oregon."

"The goal is to have some recommendations before the fall of 2016," she said. That could leave any decision about reinstating the death penalty until after the November general election.

The delay comes after a tense legislative session, Brown's first as governor.

"The work of the session was our first priority," Grainger said, then finding "a timeframe workable for all participants."

A change of heart by Gary Haugen, the death row inmate at the center of Kitzhaber's moratorium, also sapped some of the urgency in making a decision. The state's 34 other death row inmates are years from exhausting appeals.

Haugen, sentenced to death after killing a fellow inmate, waived years of appeals and battled Kitzhaber over his right to volunteer for execution. But in July, he filed a petition in Marion County court asking the state to restore his right to appeal his conviction and death sentence.

His attorney, nationally noted death penalty opponent Jeff Ellis, also filed a motion arguing that the state lost its chance to kill Haugen when it let his 2011 death warrant expire. By then, Kitzhaber's moratorium was in place.

A judge denied Haugen's petition for an appeal, saying he missed a two-year window to file. Ellis may appeal that decision. Hearings on the motion accusing the state of failing to renew Haugen's death warrant are pending.

"If you go back and read why he wanted to give up," Ellis said, "it was very much an indictment of the criminal justice system to produce fair and just results. He now says he has some renewed hope in the ability of the system to do that."

Ellis said the moratorium, for now, is blocking only Haugen's execution.

Grainger, Brown's spokeswoman, said that's not an issue: "Whether or not Mr. Haugen has changed his position, the governor has not changed her intention to study and address these issues from a practical standpoint."

The governor has said she opposes the death penalty and would vote to abolish it. But she's been far more measured when contrasting her personal feelings with her office's role in enforcing state law.

Even as she raised questions this year about the logistics of capital punishment in Oregon, including questions about the availability of lethal drugs, Brown wouldn't rule out letting executions resume.

Souede, Brown's office attorney, plans to consult academics and legal experts on both sides of the debate. The group's precise charge remains undecided, however.

One potential adviser invited to join a work group months ago, Marion County District Attorney Walt Beglau, said he wasn't contacted again until this week, after The Oregonian/OregonLive asked the governor's office about progress.

"It's been a while," Beglau said. "This group has not met yet, and I'm waiting to hear back."

A spokeswoman for the Oregon Department of Corrections said Brown's office spoke with the agency's director, Colette Peters, this year.

Other prominent advocates and justice officials said they're still waiting for the phone to ring.

Clatsop County District Attorney Josh Marquis, who lectures nationally on capital punishment and supports executing only the worst offenders, said he is disappointed Brown's office hasn't called.

"It's a legitimate topic," he said. "Is a candidate for governor going to take the position that their personal views on the death penalty trump the law?"

The American Civil Liberties Union of Oregon, which supports repeal, also made clear it would welcome a call.

"Our number didn't change," said Associate Director Jann Carson. She said the group's former longtime director, David Fidanque, urged Brown in early March to maintain the moratorium.

The review isn't intended to decide whether the death penalty should be repealed, Grainger said. But Oregon may find itself faced with that question all the same.

Rep. Mitch Greenlick, D-Portland, said he's ready to revive an anti-death-penalty ballot measure in 2017. He's watching states such as Nebraska, where lawmakers voted to abolish capital punishment.

Asked about a 2012 poll for Oregon Public Broadcasting that found 57 percent of Oregonians favor executions, Greenlick said he was encouraged support wasn't higher.

"We keep hearing things from other states, that there's more and more interest" in repeal, Greenlick said. "It's a battle we can win."

— Jeff Mapes contributed.

— Denis C. Theriault
dtheriault@oregonian.com
503-221-8430; @TheriaultPDX
http://www.oregonlive.com/politics/index.ssf/2015/09/kate_browns_death_p...

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