Convicted murderer Gary Haugen's request to be executed will be heard by the state Supreme Court this week.
The seven justices will hear oral arguments Thursday on whether the twice-convicted murderer can legally reject an unconditional reprieve issued by Gov. John Kitzhaber in 2011. Kitzhaber's action blocked the execution two weeks before it was scheduled to take place.
Haugen won the first round in Marion County Circuit Court this past August, when visiting Judge Timothy Alexander ruled that Haugen could refuse the reprieve.
The Supreme Court accepted Kitzhaber's appeal directly, The Statesmen Journal reported Sunday.
Kitzhaber argues Haugen has no legal right to reject a reprieve because of the Oregon Constitution, the historical circumstances of clemency, and previous court decisions about the governor's clemency powers, according to written arguments filed with the court.
The Department of Justice argues that the governor's constitutional power of clemency is clear. Oregon's Constitution grants power to the governor to issue reprieves, commutations and pardons "after conviction" for all offenses except treason, in which case a sentence can be delayed until the Legislature decides what to do.
"The provision itself contains no explicit requirement that to be valid, a reprieve must be accepted," Solicitor General Anna Joyce wrote. "The provision also makes it plain that the governor is the only one with any authority to grant clemency. No mention is made that another person, let alone an inmate, shares or controls that power."
Haugen's lawyers say Kitzhaber's reprieve deprives him of federal constitutional rights such as a ban on cruel and unusual punishment.
"There is nothing inherently implausible about the idea that (an) inmate has the power to reject an act of clemency, such as a commutation that would result in his release from prison, or a reprieve in a non-capital case, so that he remains incarcerated against the will of the state's executive power," wrote Harrison Latto, Haugen's lawyer.
The hearing will be at the University of Oregon, where the justices meet as part of their annual circuit of the state's three law schools.
The justices will not announce a decision immediately. The justices usually take six to nine months to issue a decision, but face no deadline.
Haugen was sentenced to death in 2007 for aggravated murder, the only crime for which Oregon's death penalty applies, in connection with the killing of another inmate at the Oregon State Penitentiary. He turns 51 this month.
Another 35 men and one woman are on death row.
Kitzhaber's reprieve will last during his term, expiring Jan. 12, 2015, or in 2019 if he seeks and wins another term in 2014.
Source: The Associated Press, March 11, 2013