When Gov. Kate Brown announced her decision Tuesday to commute the sentences of Oregon’s entire death row to life in prison, she said it was a moral decision to end the possibility that the state would execute 17 people convicted of horrific killings.
The governor said that unlike her other recent commutations, this one was “not based on any rehabilitative efforts by the individuals on death row.” And she expressed hope that for the sake of victims, “this commutation will bring us a significant step closer to finality in these cases.”
But Brown, who is a Democrat, also left the door open for the individuals formerly on death row to seek parole. Although it was within the governor’s broad clemency powers to block all of the prisoners who received death row commutations from seeking parole, Brown chose not to do so.
A few convicted murderers whose crimes took place before 1989, when Oregon started allowing “true life” in prison without the possibility of parole as a sentencing option, could now argue in court that they should be allowed to seek parole because the “true life” sentences Brown just handed down were not among the potential punishments when they committed their crimes. A life sentence prior to 1989 included the possibility of parole after 20 to 30 years.
The four men in this group include Randy Lee Guzek, who was convicted of killing Rod and Lois Houser, of Terrebonne in 1987. Guzek, who was 18, shot Lois Houser three times with a handgun, chased her up a staircase and shot her a final time as she huddled inside a closet. Two other men were also convicted of participating in the murders. Guzek has been sentenced to death four times.
“There’s probably a very high likelihood that lawsuits would be filed,” said Tung Yin, a professor at Lewis & Clark Law School who teaches criminal procedure. “The question will be how the state Supreme Court ultimately rules on the issue.”
The governor declined to explain why she did not prohibit the prisoners from seeking parole. A spokesperson for the governor, Liz Merah, referred to a recent Oregon Court of Appeals ruling upholding the governor’s other commutations based on governors’ broad clemency powers.
A national expert on the death penalty said that Brown’s commutations could save the state money but are somewhat symbolic, given that Oregon’s death row was already on its way to being emptied because the state Supreme Court has ruled that a 2019 law that narrowly limits capital punishment applies retroactively. Brown, who is a lawyer, signed that legislation into law but maintained at the time that it did not apply retroactively.
Governor-elect Tina Kotek, also a Democrat, generally supports Brown’s decision to clear Oregon’s death row, according to spokesperson Katie Wertheimer.
“Governor-elect Kotek is personally opposed to the death penalty because of her religious beliefs, so this decision is generally aligned with her values,” Wertheimer wrote in a text message.
John Foote, who served as Clackamas County district attorney until early 2021, said he is worried that the former death row prisoners “will get up for parole. That’s the game here.”
“Had the governor’s office wanted to prevent these inmates from getting out on parole, they could have made the commutations conditional on the inmate never applying for parole,” Foote said.
Lewis & Clark Law School professor Aliza Kaplan, who runs a clemency project and whom Brown has cited as a key influence on her view of Oregon’s criminal justice system, also said the courts will decide whether the state’s former death row prisoners can seek parole. And, she said, it’s anyone’s guess how the state Supreme Court appointed entirely by Brown might rule.
However, Kaplan pointed to a ruling by the Oregon Court of Appeals in August that found Brown’s earlier commutations for approximately 1,000 felons were lawful because of the “broad clemency power afforded Oregon governors by constitution and statute.”
“People can challenge all sorts of things,” Kaplan said. “But I think what’s really important in these case is the governor’s clemency power is so big.”
Lane County District Attorney Patty Perlow said she expects that people whose death sentences were commuted by Brown will test the extent of the governor’s clemency powers in court.
“I don’t know if the governor’s power of commutation is absolute and that she can sentence someone to something that wasn’t an option at the time of the original sentencing,” Perlow wrote in an email. “The Supreme Court has suggested that her power is absolute, but I’m sure this will be challenged in the courts.”
Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C., said former New Jersey Gov. Jon Corzine also commuted sentences to life in prison without the possibility of parole when he cleared that state’s eight-person death row before signing a law abolishing capital punishment. As in Oregon, some of the people on New Jersey’s death row had been convicted for crimes they committed before that state allowed sentences of life in prison without the possibility of parole.
But unlike in Oregon, the New Jersey Public Defender’s Office announced following Corzine’s commutations that it would not challenge the governor’s commutations to “true life” because its lawyers believed the governor had the authority to impose the no-parole sentences.
Defense attorneys and criminal justice reform advocates have made no such pledge regarding Brown’s commutations.
“In Gov. Brown’s case, the commutations are both symbolic (in terms of a moral statement against the death penalty) and very practical,” Dunham said. That’s because under a 2021 Oregon Supreme Court decision in the case of then-death row inmate David Ray Bartol, the court ruled that Bartol should not be executed for a crime that no longer carries the death penalty because of a 2019 law. That new law tightly limits the capital crime of aggravated murder to defendants who kill two or more people as an act of organized terrorism; kill a child younger than 14 intentionally and with premeditation; kill another person while locked in jail or prison for a previous murder; or kill a police, correctional or probation officer.
The new law also led the Oregon Supreme Court to overturn the death sentence of Dayton Leroy Rogers, a serial killer who was convicted of murdering a teenage girl and six women and has admitted to killing an additional woman who was 18.
Brown flip-flopped on the law, first saying along with other Democratic supporters that “I think everyone is clear, the law is not intended to be retroactive … My intention was that it was not retroactive.” Then Brown said she supported a special session to clarify that the capital punishment-limiting law was not retroactive. But she never called lawmakers into such a session.
Dunham said that ultimately, the 2019 law would eventually have overturned the death sentences of everyone on Oregon’s death row.
“So, from a legal perspective, the prisoners are in the same position they would have been in after possibly protracted litigation over their death sentences,” he said. “At the same time, Oregon taxpayers don’t have to absorb the cost and the victims’ families don’t have to go through the anxiety and uncertainty associated with that litigation.”
Dunham said Brown’s decision to commute the sentences of all convicts on Oregon’s death row is in-line with the actions of governors in other states that “functionally abolished the death penalty.”
As for Brown’s decision not to consult with victims’ families before deciding to grant clemency to Oregon’s death row, Dunham said it is not unusual for governors to commute multiple death penalty sentences as a policy decision without consulting victims’ families.
“When commutations are based on policy considerations, as opposed to the individual circumstances of a given case, family members are typically notified as a matter of courtesy but are typically not consulted on the decision itself,” Dunham said. “For example, family members were not involved in Gov. Mark Hatfield’s commutation of the death sentences of the three prisoners on Oregon’s death row in 1964 after voters had approved a referendum to abolish the death penalty.”
Former Gov. John Kitzhaber spoke with family members of victims of convicted murderer Gary Haugen before he announced a moratorium on the death penalty in November 2011 but the Democrat met with the families to announce his decision, not to seek their input.
According to the Death Penalty Information Center, Brown is the eighth governor nationwide to issue a broad or blanket grant of clemency to death-row prisoners since capital punishment resumed in the United States in the 1970s. The record for death sentence commutations in the last 20 years apparently is held by former Illinois Gov. George Ryan who commuted the death sentences of 167 death-row prisoners and pardoned four others in Illinois “just before leaving office in January 2003,” according to Dunham.
In addition to Guzek, the convicts on death row for crimes committed before life without the possibility of parole was written into Oregon law are the following:
— Hillary Borrud
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