In a recent op-ed in Oregon’s Statesman Journal, for­mer Texas Governor Mark White (pic­tured) applaud­ed Oregon Governor John Kitzhaber​’s deci­sion to grant a reprieve to death row inmate Gary Haugen and to halt all exe­cu­tions in the state. Governor White wrote, ​“I think Kitzhaber’s deci­sion is respectable and coura­geous. In Oregon, as in Texas, it is clear­ly with­in the con­sti­tu­tion­al author­i­ty of the gov­er­nor to grant reprieves and com­mu­ta­tions. With that author­i­ty comes the respon­si­bil­i­ty to ensure the state’s laws are car­ried out fair­ly and with­in the state and fed­er­al con­sti­tu­tions. He con­clud­ed that Oregon’s death penal­ty as a sys­tem was not pass­ing that test.” Governor White also said that Governor Kitzhaber’s deci­sion now allows time for the state to study the death penal­ty and address seri­ous con­cerns about the sys­tem. Governor White con­clud­ed, ​“Such a deci­sion should be wel­comed by all who val­ue jus­tice, regard­less of their per­son­al beliefs about the death penal­ty.” Read full op-ed below.

Criminal jus­tice sys­tem is fal­li­ble
Mark White

Oregon Gov. John Kitzhaber recent­ly grant­ed a reprieve to Gary Haugen, sched­uled to be exe­cut­ed last week for the bru­tal mur­der of a fel­low prison inmate, hav­ing already been sen­tenced for killing Mary Archer, the moth­er of his former girlfriend.

While Haugen ​“vol­un­teered” to be exe­cut­ed and waived any remain­ing appeals, Kitzhaber decid­ed not to let the exe­cu­tion pro­ceed based on the fact that Oregon’s death penal­ty sys­tem is, in his words, ​“com­pro­mised and inequitable” and ​“fails to meet basic stan­dards of justice.”

I can assure you no deci­sion a gov­er­nor makes is more gut-wrench­ing than one to pro­ceed with an execution.

I know first­hand the weight of the delib­er­a­tions involved: As gov­er­nor of Texas in the 1980s, I over­saw 19 exe­cu­tions. For each con­vict­ed mur­der­er, I painstak­ing­ly reviewed the evi­dence against him before allow­ing the exe­cu­tion to pro­ceed and, in each case, believed the exe­cu­tion was just.

Unlike Kitzhaber, I do not regard the death penal­ty as moral­ly objec­tion­able. I con­tin­ue to believe some crimes are so heinous, some actions so abhor­rent, that soci­ety is moral­ly jus­ti­fied in demand­ing the per­pe­tra­tor’s life be forfeited.

Yet I think Kitzhaber’s deci­sion is respectable and coura­geous. In Oregon, as in Texas, it is clear­ly with­in the con­sti­tu­tion­al author­i­ty of the gov­er­nor to grant reprieves and com­mu­ta­tions. With that author­i­ty comes the respon­si­bil­i­ty to ensure the state’s laws are car­ried out fair­ly and with­in the state and fed­er­al con­sti­tu­tions. He con­clud­ed that Oregon’s death penal­ty as a sys­tem was not pass­ing that test.

Kitzhaber’s obser­va­tion that the sys­tem is unjust is hard­ly rev­o­lu­tion­ary. As a nation, we’ve increas­ing­ly been con­front­ed with incon­tro­vert­ible evi­dence of the unfair­ness and inac­cu­ra­cy of our cap­i­tal pun­ish­ment sys­tems. Scores of peo­ple have been released from death row after evi­dence of their inno­cence emerged, includ­ing at least a dozen from my home state.

Particularly with the intro­duc­tion of DNA test­ing, it has become increas­ing­ly clear that our crim­i­nal jus­tice sys­tem is fal­li­ble, sub­ject to human error even when pros­e­cu­tors, judges, defense coun­sel and jurors all oper­ate in good faith. Most dis­turb­ing, strong evi­dence exists that inno­cent indi­vid­u­als have actu­al­ly been put to death.

We have learned unex­pect­ed and dis­turb­ing lessons about what caus­es the many inac­cu­ra­cies in the sys­tem — well-inten­tioned eye­wit­ness­es are often mis­tak­en; much of the sci­ence used in courts is junk; and inno­cent indi­vid­u­als some­times con­fess to crimes they did not commit.

We know that whether one receives the death penal­ty depends on the qual­i­ty of one’s defense coun­sel; and the qual­i­ty of one’s defense coun­sel depends on how much mon­ey one has. We have also real­ized that death sen­tences are arbi­trary; fac­tors that have noth­ing to do with the seri­ous­ness of the crime or cul­pa­bil­i­ty of the defen­dant — like geog­ra­phy, fund­ing and race — deter­mine who is allowed to live and who is sen­tenced to die.

Kitzhaber made clear that his actions were not moti­vat­ed by sym­pa­thy for Haugen, but rather by sys­temic con­cerns with Oregon’s death penal­ty — con­cerns that are well-found­ed in the face of recent evi­dence. His deci­sion has giv­en the Legislature and the peo­ple of Oregon the time to study the death penal­ty, make nec­es­sary changes or, if they choose, to dis­pense with it alto­geth­er.
Such a deci­sion should be wel­comed by all who val­ue jus­tice, regard­less of their per­son­al beliefs about the death penalty.

–Mark White served as Texas gov­er­nor from 1983 – 87 and as state attor­ney gen­er­al from 1979 – 83. He co-chairs The Constitution Project’s Death Penalty Committee, which pro­motes improve­ments in the death penal­ty sys­tem. He can be reached at markwhite@​constitutionproject.​org.

(M. White, ​“Criminal jus­tice sys­tem is fal­li­ble,” Statesman Journal, December 11, 2011). See New Voices and Clemency. See DPIC’s post on Gov. Kitzhaber’s action.

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