Against Adhocracy in Oregon

The death penalty in Oregon has in effect been abolished by the state’s lame-duck Democratic Gov. Kate Brown—who has no legitimate power to do any such thing.

She does have illegitimate power to do this—by abusing her gubernatorial powers of clemency to effect a policy change rather than using them for their intended purpose, which is to engage in the democratic continuance of the formerly royal prerogative of offering extraordinary mercy on a case-by-case basis. Gov. Brown has simply commuted every death sentence in Oregon to life imprisonment, making an end run around the legislature and the state constitution both.

Here we have two competing moral and political considerations: The death penalty should be abolished, but executive unilateralism of the sort being practiced here by Gov. Brown is an invitation to chaos. This raises an old question, one that has especially vexed conservatives in the liberal-democratic context: What do we do when a bad process produces a good outcome?

The outcome is good, at least as far as I am concerned, but my program here is not persuading those who believe otherwise to come over to my view. (Of course, you should come over to my view.) And I will say this much in praise of Gov. Brown: She was very forthright in her concession that her action in this matter has nothing to do with the status of those who have had their sentences commuted. Some of them may be rehabilitated, but some of them surely are not and remain a live menace. Her executive power was used in a way that is illegitimate: not in response to some worthy individual circumstance but as a categorical attack on capital punishment itself. If Gov. Brown wants to change the laws of Oregon, she should run for the state legislature. Governors are executives, and lawmaking is the business of lawmakers.

At least some of the lawmakers are, of course, irritated. Oregon’s speaker of the state house, Dan Rayfield, did not respond to requests for comment, but the state house Republican leader, Vikki Breese-Iverson, was unsparing: “Governor Brown has once again taken executive action with zero input from Oregonians and the legislature,” she said. “Oregon has not executed an individual since 1997 and has only executed two criminals since voters adopted the death penalty in 1984. Her decisions do not consider the impact the victims and families will suffer in the months and years to come. Democrats have consistently chosen criminals over victims.”

Oregon has a crime problem, particularly in its largest city, Portland, which is a despair-inducing mess where the police in effect ceded the streets to criminals, including politically inflected criminals. But Portland’s crime is not the sort of crime that is likely to be solved by more severe murder penalties, because Portland has a relatively low murder rate, less than half that of Orlando, Boston, Fort Worth, or Denver, albeit higher than that of New York City or El Paso. (The relative murder rates of American cities are not what you might expect. Wichita has a higher murder rate than Los Angeles.) Rep. Breese-Iverson is not entirely wrong to charge Democrats with choosing criminals over crime victims, but Gov. Brown’s action here is not an especially compelling example of that.

The situation in Oregon is complicated by the fact that the death penalty there, having been abolished by an activist court decision, was reinstated by means of a constitutional amendment adopted through a general election. The power to legally abolish the death penalty in Oregon lies with the people of the state themselves rather than with the state legislature. But the state legislature has done its own bit through means that are almost as backdoor as those of the governor. Oregon allows capital punishment only for the crime of aggravated murder, and a few years ago the legislature changed the statutory definition of aggravated murder in such a way as to cover only a tiny share of homicides: the premeditated killing of a child under 14, acts of terrorism that kill two or more people, premeditated murder of a police officer or corrections officer, and murder by a person already in custody for murder. Set aside the moral perversity of this—jailers rate the highest protection, and eighth-graders do not—and consider the politics of it: The people of Oregon may have made the wrong decision in reinstating capital punishment in 1984, but it was their decision to make. Their power has been usurped by lawmakers exploiting statutory technicalities for the express purpose of thwarting the outcome of the earlier election. The legislature had not meant for its new rules to apply retroactively to those already under sentences of death for heinous crimes, but the courts saw things differently.

As Rep. Breese-Iverson observed, Oregon is not exactly Texas, having carried out only two executions since 1984. The reason for that is the fact that Gov. Brown is not the only practitioner of executive unilateralism in the state: Oregon governors have for years maintained a de facto moratorium on executions.

We have seen similar situations elsewhere, most famously President Barack Obama’s illegal and unconstitutional fiat regarding illegal aliens who were brought to the United States as young children. Obama himself had declared earlier that he had no power to do what he eventually did, but he discovered the power when it was convenient. Of course the situation in question demands our sympathy: People who were brought to the United States by their parents as babies or infants, who have never known life anywhere else, who in many cases do not speak the language of their home countries—this is an impossible situation, albeit one in which the greatest share of the blame belongs to the lawbreaking parents than to the fact that the United States has immigration laws and sometimes even enforces them. Congress should have acted in that matter, but it didn’t—and that is Congress’ choice. There are many things Congress should do but chooses not to. If the Constitution of these United States is to mean anything, then Congress must retain the power to not act, even in those circumstances where it should. “If Congress won’t act, I will!” is not the motto of the president of a republic with democratically elected lawmakers—it is the motto of a Caesar. It is always worth keeping in mind that our increasingly imperial presidency carries with it the title “commander in chief,” the Latin word for which, imperator, is the root of the word emperor.

The United States does not have an emperor, and neither does Oregon.

Oregon’s troubles in many ways go back to that activist state supreme court decision, one that almost certainly exceeded the court’s powers, but Oregon’s history here is a long and complicated one: The state abolished capital punishment in a 1914 referendum, reinstated it in a 1920 referendum, abolished it against in a 1964 referendum, reinstated it in a 1978 referendum, lost it in the 1981 state Supreme Court decision, reinstated it in a 1984 constitutional amendment referendum, narrowed it to near-extinction by redefining aggravated murder in 2019, and now has effectively abolished it by means of gubernatorial shenanigan in 2022. That’s more than a century of disagreement, during which time neither party has finally convinced the other of the rightness of its case. Those involved in the abortion fight should take note of this—without deep and lasting persuasion, all political victories are temporary.

Having had so much experience with death-penalty referenda, Oregon shouldn’t have trouble organizing one more—if capital punishment is to be abolished in the state, it should be done the right way. Sniff at procedure all you like—procedure is what stands between us and chaos.

And if you want an excellent argument against chaos, I recommend a visit to Portland. I sometimes joke that I go into the DMV a conservative and come out of it an anarchist, but 24 hours in Portland will make an Eisenhower Republican out of the most hardened Rothbardian. When the right outcome comes from the wrong process, you have a problem that can be ignored only for so long.