Against Adhocracy in Oregon

Oregon Gov. Kate Brown at a press conference. (Photo credit should read Josh Edelson/AFP via Getty Images)

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.

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