by Helen Jung, Oregon Live, Nov. 23, 2011
SALEM — Twice, Gov. John Kitzhaber has found himself torn between his physician’s oath to do no harm and his governor’s oath to uphold the state constitution.
Twice, he chose to swallow his well-known revulsion to the death penalty and enact what he believed to be the will of the people, allowing the 1996 execution of Douglas F. Wright and the 1997 execution of Harry C. Moore to take place.
But 14 years later, as a third inmate volunteered for death, Kitzhaber’s personal convictions and frustration with the state’s capital punishment system won out.
With his announcement, Oregon becomes the latest of five states to abolish or back away from the death penalty. New York’s highest court ruled the death penalty statute unconstitutional in 2004. New Jersey repealed its death penalty law in 2007. New Mexico followed suit two years later. And Illinois abolished it earlier this year.
“In my mind, it is a perversion of justice,” Kitzhaber said at a crowded news conference, his voice strained and uncharacteristically quavering at times. “I refuse to be a part of this compromised and inequitable system any longer and I will not allow further executions while I am governor.”
His decision comes just two weeks before Haugen, 49, was to die by lethal injection and after months of legal showdowns over the twice-convicted murderer’s mental competence. Haugen appeared to overcome the last obstacle Monday when the state Supreme Court allowed the execution to proceed. Kitzhaber said he made up his mind last week and wanted to wait for the legal issues to play out before making a public declaration.
It remains to be seen what will happen now. Oregonians have abolished and reinstated the death penalty several times since it was first enacted in 1864, and Kitzhaber said he did not know if people will support repealing capital punishment.
Based on the governor’s past, Haugen did not think Kitzhaber would intervene, said his attorney, Steven Gorham. The reprieve for Haugen remains in place as long as Kitzhaber is governor.
It is too soon to say what Haugen will do, said Gorham, who had not yet spoken to the inmate. But Gorham said he expects the decision will greatly disappoint Haugen, who chose execution as a political protest and a path to freedom from the confines of death row.
Josh Marquis, Clatsop County district attorney, criticized Kitzhaber’s action. The governor showed more moral courage when he allowed the last two executions to occur despite his opposition, Marquis said. “When you’re the governor of the state and the law is X … it is your duty to carry it out,” he said.
The decision also angered some of the family members of the two people killed by Haugen — Mary Archer, the mother of his ex-girlfriend, and David Polin, a fellow inmate at the Oregon State Penitentiary.
“We are again just plain devastated,” said Ard Pratt, Archer’s ex-husband. Haugen beat Archer to death in 1981 with his fists, a baseball bat and a roofing hammer out of revenge, he said, because she had tried to persuade her daughter to abort Haugen’s child. Haugen, then 19, pleaded guilty to murder and was sentenced to life in prison with the possibility of parole.
“This is such a miscarriage of justice,” Pratt said. “This whole thing is just wrong.”
Polin’s wife did not immediately return messages for comment. Haugen and another inmate stabbed Polin 84 times and crushed his skull in 2003. The jury in a 2007 trial voted unanimously to send Haugen and inmate Jason Brumwell to death row.
Kitzhaber said he contacted the families before his news conference. “Unquestionably, this decision will delay the closure that they deserve,” he said. “My heart goes out to them.”
But the state’s capital punishment system is too broken to defend, he said. Only those who volunteer are executed, making a mockery of the idea that justice is “swift and certain,” he said.
Kitzhaber said he didn’t act out of compassion for Haugen or other inmates. The death penalty is not handed down fairly, he said: Some inmates on death row have committed similar crimes as those who are serving life sentences. It is a criticism Haugen himself has often made.
The governor said the death penalty should be replaced with a sentence of life in prison without the possibility of parole. That is essentially what Oregon has now, he said, because the state executes only inmates who waive their legal appeals.
But the current system is far more expensive, he said, because most death row inmates fight their sentences in expensive and prolonged legal challenges. Some inmates have remained on death row for more than 20 years.
Kitzhaber’s intervention in a volunteer execution is rare, said Richard Dieter, executive director of the Death Penalty Information Center. He could think of only one parallel: In 1996, convicted killer Guinevere Garcia opposed clemency granted by Illinois Gov. Jim Edgar.
Dieter noted a national slowdown in the use of the death penalty. Last year, 112 people were handed death sentences, he said, a 60 percent drop from the 1990s when about 300 people were sentenced to die each year. The number of executions has dropped from 98 in 1999 to 46 last year, he said.
Kitzhaber’s announcement is a win for death penalty activists who had asked him to declare a moratorium on executions until the state conducts a thorough review of its death penalty system.
Haugen’s attorney Gorham, a fervent opponent of the death penalty despite representing Haugen, applauded Kitzhaber’s move, though he mourned that the governor had not taken this position years ago — a sentiment the governor shared when recalling the 1996 and 1997 executions.
“They were the most agonizing and difficult decisions I have made as governor,” Kitzhaber said. “I have regretted those choices ever since.”