An Ironic Court Case, Only in Oregon...

Paul Evans

Believe it or not, there are things happening in the United States – and Oregon – other than election campaigns.

Over the past few days the death penalty “debate” has returned to Oregon’s consciousness (at least according to the press).

First, the Oregon Supreme Court announced a decision to allow consideration of Gary Haugen’s arguments.

Second, Sister Helen Prejean returned to Oregon for a week of teaching at the Oregon State Penitentiary, the University of Oregon, and a “talk” at Willamette last evening.

It’s an election year, but this convergence likely has less to do with “politics” than ironic serendipity.

Like many states, Oregon has the death penalty – at least “on the books.”

However, Oregon is known for a relatively rare implementation of the law. Instead, we are recognized for an increasingly long line of convicted “death row” inmates assigned to a somewhat macabre semi-permanent limbo status.

In the case of Gary Haugen – a convicted killer – an acknowledged perpetrator of heinous crimes – we have a man asking for the death sentence to be carried out. In truth, he is using resources (mostly raised from others) to utilize the courts for remedy.

Not long ago, Governor Kitzhaber delayed his (and all death row inmates) execution until after his tenure of office is fulfilled. It was a controversial, but principled decision by a man clearly weary of reliving the past (Governor Kitzhaber was in office during the last two executions, during his first tour of duty).

In response to the executive actions of the governor, Haugen promptly exercised his rights and is now determined to fight for his own self-determination this matter – to terminate his life earlier rather than later.

I am not a lawyer. I didn’t sleep at a Holiday Inn (or whatever chain it is that supposedly makes a person smarter), and I don’t play a lawyer on radio or television…

I am an educator – a person invested in the American ideals of access to justice, equality for all, and basic fairness. And I believe there is an intriguing series of challenges revealed by this coming storm.

Despite the myriad of potential issues involved in the case (and it appears there are many), the underlying question is something of an irony: in the State of Oregon – the state that blazed a trail for citizen’s rights of self-determination during the final stages of life, can a convicted “death row” inmate enjoy the same “right?”

The requirements for “Death with Dignity” in Oregon are relatively stringent. The language is cloistered in medically determined conditions. It was intended to be the choice of last resort, and it has been applied so.

A patient must be verifiably “terminal” (by those with the expertise to make the determination) and seek permanent remedy to the inevitable anguish associated with long-term decline – and pain.

Though most patients (and physicians) are unwilling to admit the obvious, it is quite likely that the so-called “cocktail” is understood as a solution for both mental as well as physical anguish associated with a “terminal” condition.

From our own experience, I know the mental rollercoaster associated with end of life realities. Cancer has touched many people I care about, taken more than a few. In 1990, my mom Chloe died of breast cancer – largely because of a flawed initial diagnosis and treatment regime.

We didn't know as much then as we do now, but the cause of her death was the result of arrogance (not hers), an inverted power relationship that disuaded even reasonable questions of the expert (in this case a quack/physician in Salem), and a series of retrospectively bad decisions made with inaccurate information. At any rate, by the time she had a caring and competent physician (and surgeon), it was too late for a cure – the focus became management of the inevitable.

We all have our own experiences with death and life; as humans it is one of the relatively few certainties of our existence: we will die; the only question is how, when – and in this case – why.

The great irony in this case is that the Governor of Oregon – himself a trained physician who disagrees with the notion of early, voluntary death – used his legal authorities appropriately (political ideology aside, the power over executions has been a traditional and unchallenged right of a state chief executive).

As the chief executive of our Oregon he has the authority and responsibility to use his power as he believes necessary – in the best interest of our community and state.

Through executive action – he determined that Haugen would live his natural life (or at least as much of it that he can until the Governor departs office).

At the same time, through another executive action (the administration of regulation/rules) put into place by a vote of the people (twice – actually), the State of Oregon empowers citizens in the voluntary termination (the self-determination) of their own life.

There is no easy or “pat” answer for this kind of clash of ideals. And there should not be, for these matters are of critical importance for a free-nation to resolve.

In some cases, “terminal” can be determined through a medical condition. And yet, in an odd sense, Mr. Haugen’s “condition” is just as terminal. His “terminal” condition was determined through a jury of his peers, an exhausted appeals process, and the facts of the case. His actions bear the consequences of penalties up to – and including his death.

In a democratic republic, is the determination of an expert panel more powerful than the determination of the courts? And if it is in this one case, then what other cases is our court system similarly lacking?

Only time will tell, but the answer will be an interesting construct – and a revealing snapshot of what the courts understand “privacy” and “due process” to be when tossed into the hyper-emotionalism of death penalty politics.

During her time in Oregon I can only imagine what Sister Prejean might be wondering. Agree or disagree with her perspective, there is little doubt in her commitment to the larger cause of justice as she knows it.

All of us will be impacted by this coming case; I trust our elected Supreme Court to render a fair decision, fairly arrived at – I only hope it is as wise at it will be just.

By Paul Evans Oct. 24, 2012