The decision by Governor Kate Brown of Oregon, in her final days in office, to commute the death sentence of all 17 inmates on the state’s death row has brought into focus the sui generis role of the chief executive — both state and federal — in shaping the criminal justice system. 

On the federal level, the power to pardon — a cousin of commutation — is found in Article II of the Constitution, where the president is granted the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Other than those barriers, the chief executive’s power to wipe away federal crimes is unlimited.

The ability of governors to extend clemency — meaning commutations and pardons for state crimes — is modeled on this assignment of power to the executive. Oregon’s state constitution grants to the governor the ability to offer “reprieves, commutations and pardons.” 

The lives of those 17 will now unfold in prison, with no possibility of parole. Ms. Brown labeled execution by the state an “irreversible punishment that does not allow for correction” and is “wasteful of taxpayer dollars.” It has never, she asserted, “been administered fairly and equitably.”

Ms. Brown’s commutations are the latest move in the Beaver State’s push against the death penalty. That effort began with a 2011 moratorium against the ultimate punishment by the then governor, John Kitzhaber. It continued with a 2019 amendment to the death penalty statute that tightended its scope. 

Oregonians adopted the death penalty in 1864, five years after America admitted the territory into the Union as the thirty-third state. It was repealed in 1914, then brought back in 1920. It has executed 60 people since 1904, the last in 1997.  

In 2021 Oregon’s state supreme court found that the application of the death penalty in the case of a man convicted of a crime that was subsequently recategorized as “non-capital” violated the prohibition on “disproportionate punishments” in the state constitution, a version of the national parchment’s Eighth Amendment. 

According to the Death Penalty Information Center, 24 states are prepared to hand down a capital sentence, while 23 have banned the practice. Three states, including Oregon, exist in the twilight zone of a moratorium enforced by the governor. 

The United States Supreme Court, in a 1972 case, Furman v. Georgia, held that existing death penalty laws violated the Eight Amendment because they were discriminatory and disproportionately burdened minority communities. 

That position was clawed back four years later in Gregg v. Georgia, which held that the death penalty was not per se unconstitutional and upheld processes developed in Georgia that minimized the possibility for the arbitrary application of capital punishment. 

In the 1977 case of Coker v. Georgia, the Supreme Court held that the death penalty must be proportional to the crime committed, so that it could not be administered in a case when the victim lived, no matter how horrific the offense — in the case of Coker, the rape of a child.

This week a state district court judge in Texas, Lela Mays, recommended that the death sentence against a Jewish inmate, Randy Halprin, who was part of a group that shot a prison guard while on the lam from jail, be tossed out. 

The petition arrived via the writ of habeas corpus, and was granted because of antisemitism on the part of the judge who oversaw the conviction, Vickers Cunningham. The district attorney who prosecuted the case admitted that Judge Cunningham  “harbored actual bias” against Mr. Halprin.