EletiofeAppeals court upholds Gov. Brown's clemency powers, denies lawsuit...

Appeals court upholds Gov. Brown’s clemency powers, denies lawsuit from Lane DA, others


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Oregon’s second-highest court found Gov. Kate Brown lawfully used her clemency powers when granting commutations that drew scorn and a legal challenge from two district attorneys and family members of crime victims.

The state Court of Appeals batted down a lawsuit from Lane County District Attorney Patty Perlow, Linn County District Attorney Doug Marteeny and a handful of surviving family members that challenged Brown’s use of clemency powers for more than 70 individuals in late 2021.

A three-judge panel said alongside addressing arguments about procedure, they needed to acknowledge the families felt they had been denied justice.

“But hurt — no matter how sympathetic — does not translate to authority to challenge and displace commutations that accord with the constitutional powers afforded the Governor,” Presiding Judge Bronson James wrote in a 44-page opinion.

Read the opinion: The opinion is embedded at the bottom of this story.

The ruling overturns a March order by Marion County Circuit Court Judge David Leith that halted parole board hearings for dozens of cases in which Brown used her clemency powers.

Leith had found that Brown incorrectly applied a juvenile justice reform law retroactively when she directed the state’s parole board to consider commuting sentences of dozens of people who were convicted as adults while they were juveniles.

The trial court judge was incorrect, James wrote on behalf of the appeals panel. Not only do the plaintiffs lack standing to bring the lawsuit, the opinion reads, but it would be wrong to grant mandamus even if they did.

Brown used her clemency power as governor to do what executives have done for more than 800 years and “replace a judicially imposed, or legislatively mandated, sentence with an executively created sentence,” the opinion reads.

The appeals panel added that a lawsuit wasn’t the correct venue to challenge Brown’s clemency powers.

“Ultimately, it is the voters, not the courts, who hold the power to limit gubernatorial clemency actions,” James wrote.

The opinion validates that Brown has “acted within her constitutional authority to grant clemency throughout her time in office,” said Liz Merah, the governor’s press secretary.

Perlow and Kevin Mannix, an attorney representing the plaintiffs who’s also running for state representative, did not immediately response to a request for comment, but Perlow told other outlets that the ruling grants Brown “unbridled authority to trample on the rights of victims and limit the authority of the 36 District Attorneys to enforce those rights.”

Appeals court rejected all arguments by plaintiffs

Brown reduced the sentences of 953 prisoners who were either particularly vulnerable to infection by COVID-19 or had served as firefighters during the raging Labor Day fires of 2020.

She then announced in October 2021 that she was using her clemency powers to let those inmates benefit from Oregon Senate Bill 1008, which reforms the juvenile justice system. Among other things, the bill eliminates life without parole sentences for youths and gives them a “second look” hearing for a possible release after serving half their sentence. It’s also intended to correct any unjust lengthy sentences.

Several Oregon district attorneys, including Perlow, criticized Brown for not notifying victims or their families before publicly releasing the inmates’ names.

Perlow and Marteeny then joined with surviving family members of some victims to ask Leith to compel Brown, the Oregon Department of Corrections, the Oregon Youth Authority and the state’s parole board to “comply with the law.”

Plaintiffs argued inmates must apply for clemency and almost none of the dozens granted clemency in October had applied.

They also argued Brown:

  • Failed to notify district attorneys as required

  • Improperly delegated her clemency power to the Department of Corrections and the parole board

  • Has broad clemency powers subject to regulation and has “abandoned all clemency process and procedure as required by law”

  • Unlawfully extended her clemency powers because some of the inmates won’t be eligible until after she leaves office. Brown already has announced she isn’t running for governor again.

  • “Refused to involve victims” in the process as required by law

  • Made Senate Bill 1008 retroactive when she doesn’t have authority to do so

  • Has illustrated her “willingness to act outside the restrictions on her clemency power.”

Leith only sided with the argument that Brown didn’t have the authority to apply Senate Bill 1008 retroactively.

Read more:Judge halts parole board hearings for juvenile offenders commuted by Oregon governor

But appeals court judges also rejected that argument, finding it was “incorrect” for the trial court to believe “the Governor could not impose a sentence, via commutation, that was not authorized by statute.”

That includes mandatory minimums for some felonies set by Measure 11, which was passed in the 1990s, the opinion adds. The measure doesn’t prevent the governor from commuting a sentence for one of those felonies to “some less severe punishment,” the opinion reads.

Governor’s office: Parole Board will consider input from victims, survivors

Brown used her clemency powers in the dozens of cases involving juvenile offenders to give “certain teenagers an opportunity to make their case and demonstrate their capacity for growth, change and rehabilitation in front of the Parole Board” because Oregon is a state of second chances, Merah said.

“Sentencing children to life sentences and near-life sentences without a second chance is not the kind of justice that most Oregonians believe in,” Merah said in a statement.

Merah added the Parole Board is an independent body that will determine whether an individual can safely be released into the community and will consider whether the person has been held accountable while also considering the voices of victims and survivors.

“We know that, when given the right support, many young people are worthy of redemption and can turn their lives around and become contributing members of society,” Merah said.

Contact city government watchdog Megan Banta at [email protected]. Follow her on Twitter @MeganBanta_1.

Opinion in Marteeny et al v Brown et al by Megan on Scribd

This article originally appeared on Register-Guard: Oregon appeals court sides with Gov. Kate Brown in clemency lawsuit

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