Gary Haugen spent most of his adult life inside the Oregon prison system, and for a few months in 2011 he stood at the center of the state's long argument over capital punishment. He was 19 in 1981, when Mary Archer, the mother of his former girlfriend, was killed in Portland. He pleaded guilty to her murder and was sent to prison for life. Twenty-two years later, still serving that sentence, he and another inmate were charged with the death of a fellow prisoner, David Polin. In 2007 a Marion County jury convicted Haugen of aggravated murder and he was sentenced to death.
What followed made him a name in Oregon law. After the Oregon Supreme Court upheld his conviction and sentence, Haugen gave up his remaining appeals and asked the state to carry out the sentence. A judge twice set a date, the state's highest court twice stepped in over his mental competence, and on November 22, 2011, two weeks before the execution was due, Governor John Kitzhaber granted him a temporary reprieve and declared that no execution would take place while he held office. Haugen refused it. He sued the governor, won in the trial court, and lost in the Oregon Supreme Court, which held in June 2013 that a reprieve takes effect whether the condemned person accepts it or not. In December 2022 Governor Kate Brown commuted his sentence, along with every other death sentence in Oregon, to life in prison without the possibility of parole.
Haugen's own account of his early years came out in 2011, when he was examined for a competency hearing. He told the examining psychologist that he had begun using alcohol and drugs before he was a teenager, and that he was first arrested at 13, for shoplifting from a grocery store. The psychologist described a man of average intelligence with a personality disorder.
He was 19 in 1981, the year that put him in prison for the rest of his life.
Mary Archer lived in Portland. She was the mother of a young woman Haugen had dated. In 1981 she was killed in Portland, and Haugen was charged with her murder.
He pleaded guilty. The court sentenced him to life in prison with the possibility of parole. He entered the Oregon prison system at 19 and never left it.
By 2003 Haugen had been in prison for more than twenty years. David Polin was another inmate serving time in the same state prison in Salem. On September 2, 2003, Polin was killed there.
Haugen and a younger inmate, Jason Van Brumwell, formerly of Eugene, were charged with aggravated murder. The state's case was that the two men had killed Polin because they believed he had told corrections officers about their drug use inside the prison. The belief was mistaken.
Oregon law treats a murder committed by a person already serving a prison sentence as aggravated murder, and authorizes death for it. The prosecution belonged to Marion County, where the prison stands, and the case was heard in Marion County Circuit Court in Salem.
The case came to trial more than three years after Polin's death. In 2007 a Marion County jury convicted Haugen of aggravated murder for Polin's death and sentenced him to death. Van Brumwell was also convicted, and he too was sentenced to death. The case against both men was brought by the Marion County district attorney's office.
Haugen went to Oregon's death row in 2007. He was already serving a life term for the 1981 murder, and the question of how a death sentence for a prison killing fitted with the law on consecutive sentences became one of the points his lawyers took to the state's highest court.
In Oregon a death sentence goes straight to the Oregon Supreme Court for automatic review. The court decided Haugen's appeal, State v. Haugen, on November 4, 2010, and affirmed both the conviction and the sentence.
The opinion dealt with several issues raised by the defense. During jury selection the trial judge, on his own motion, had excused two prospective jurors who needed interpreters; the court held that neither Oregon nor federal law barred the exclusion of a juror who could not speak English. The defense had wanted to show the jury a remark that a state witness made after testifying, as proof of hostility toward Haugen; the court held that the trial judge could exclude it as cumulative, because the witness's hostility had already shown itself in his testimony. Before trial the defense had asked the judge to bar psychologists from testifying about Haugen's future dangerousness. The judge called the motion premature, and when one psychologist later gave that testimony, defense counsel did not object. The court held that the objection had not been preserved.
The last issue was the one particular to a prison killing. Oregon's consecutive-sentencing statute, ORS 137.123, generally requires a sentence for a crime committed in prison to run after the sentence the prisoner is already serving. The defense argued that this left no room for a death sentence to be carried out while Haugen still owed the state a life term. The court disagreed. It held that the legislature's specific decision to authorize death for murders committed in prison outweighed the general consecutive-sentencing rule, so a death sentence for a prison murder could be carried out without waiting for the earlier sentence to end.
Van Brumwell's appeal was decided separately. On March 25, 2011, the Oregon Supreme Court upheld his death sentence as well.
Haugen wanted no further challenges. After the affirmance he wrote to court officials asking them to drop the legal proceedings brought on his behalf. For years he had sent letters calling the criminal justice system arbitrary, vindictive and broken, and in one handwritten letter he wrote that "the system has failed!" He said he was giving up his life in protest at the cost of death row and in the hope of drawing attention to how the state spent its money.
In May 2011, at 49, he asked a Marion County Circuit Court judge in Salem to let him drop the appeals filed on his behalf. The judge questioned him briefly about his command of English and his understanding of his legal rights, found him competent, allowed him to dismiss his lawyers and kept them on as legal advisers. On May 18, 2011, the judge signed a death warrant setting the execution for August 2011. It would have been Oregon's first execution since 1997, and the Department of Corrections confirmed that it had made its preparations.
Haugen's former lawyers had argued, against his wishes, that he was not competent to make the choice. They had put before the trial court the evaluation of a neuropsychologist who had concluded that he was not competent. The judge's ruling allowed Haugen to dismiss them on the strength of a short exchange in court.
On June 9, 2011, death penalty opponents represented by the Oregon Capital Resource Center announced that they would ask the Oregon Supreme Court to block the execution. Their lawyer argued that the trial judge had wrongly let Haugen fire his attorneys after those attorneys had presented evidence that called his competency into question.
The Supreme Court found that the resource center itself had not shown authority to bring the case, but that Haugen's discharged lawyers did have standing to challenge the ruling that had let him dismiss them. It treated their letter as a petition and issued an alternative writ of mandamus. The writ told the trial judge that he had skipped statutory steps before discharging the lawyers. It directed him to have the Oregon Health Authority assess Haugen's capacity to make legal decisions and to hold an evidentiary hearing at which his lawyers could offer evidence on his competency. At that hearing the judge was to advise Haugen of his right to counsel and of what giving up further challenges would mean, decide whether he was competently waiving counsel, and make findings on whether any mental condition kept him from understanding his sentence. The court also ordered the two discharged lawyers reinstated.
The trial judge chose to comply rather than defend his ruling before the high court. On July 6, 2011, he vacated his own death warrant. In a letter to the Chief Justice he wrote that he "profoundly" disagreed with the decision, but the August date was gone.
Haugen objected to all of it. He opposed the return of his lawyers and the disclosure of the neuropsychologist's findings, which he regarded as private medical information released without his consent. He asked the trial court to dismiss the lawyers once more, this time asking for new counsel rather than to represent himself. The judge found a conflict of interest between Haugen and his attorneys, dismissed them again and appointed new lawyers. The original lawyers asked the Supreme Court to intervene and were turned down, and the court, satisfied that its directions were being carried out, dismissed its writ.
The state's evaluation went ahead over the summer. On September 27, 2011, at a hearing in Salem, a Portland psychologist who had assessed Haugen for the Oregon Health Authority testified that he had average intelligence and a personality disorder, but no current mental condition that impaired his ability to make reasoned legal decisions. Haugen understood exactly what he was asking for, the psychologist said: "He was aware that it would end his life, it would end his appeals." He added that Haugen hoped his case might change the system, and was "maybe a little grandiose about that but not delusional."
Haugen's new lawyers did not offer the earlier neuropsychological findings, and the state's evaluation was the only evidence on competency before the court. The judge found Haugen competent to assist his lawyers and to understand that his request would lead to his execution. He did not yet sign a warrant; the law required him first to put a set of questions to Haugen at a further hearing. The two sides also disagreed over timing. Prosecutors argued that once Haugen was found competent the execution should take place within 20 days of a new warrant, while his lawyers read the statute as requiring 90 to 120 days, time that Haugen, one of them said, intended "to settle his affairs."
The further hearing followed, and on Friday, November 18, 2011, the judge signed a second death warrant. The execution was set for December 6, 2011. The Oregon Capital Resource Center, for its part, went back to the Supreme Court and asked it to enforce the writ, arguing that the competency hearing had not complied with it.
Four days after the warrant was signed, on November 22, 2011, Governor John Kitzhaber issued a reprieve under Article V, section 14 of the Oregon Constitution. Its preamble said that the death penalty in Oregon was not "fairly and consistently applied" and that the governor did not believe state executions brought justice. The operative words granted a "temporary reprieve of the aforementioned death sentence for the duration of my service as Governor." In the same announcement Kitzhaber said that he would allow no execution while he held office. The decision covered Haugen and the 36 other people then on Oregon's death row.
Kitzhaber had allowed the state's two executions since 1984 to go forward during his first administration, in 1996 and 1997, despite his own opposition to the death penalty. Both of those men had, like Haugen, given up their appeals. The governor now called the system unfair, unjust, slow, uncertain and unequally applied, with the question of who was executed depending largely on who volunteered. He asked the legislature to take up reform before its 2013 session, and said that he favored replacing the death penalty with life in prison without parole.
Haugen's lawyer at the time said that as of that morning his client had still been committed to the execution, and predicted that he was not happy. Haugen soon made his view plain. "I didn't ask for this," he said. "I'm ready to go." At first he had praised the governor's decision; later he called Kitzhaber a "paper cowboy", saying he had "basically pulled a coward's move." He said he might seek execution again before Kitzhaber left office if nothing changed. He had planned to carry one thing with him to the execution, a postcard of a bald eagle with the words "Fly free, brother." The state had spent about $42,000 preparing for the December date, not counting legal costs.
In March 2012 a Portland lawyer and former assistant attorney general took Haugen's case without charge. On March 12 he wrote to the governor that the reprieve left Haugen in legal limbo for a period no one could predict, possibly as long as seven years, and that it amounted to cruel and unusual punishment. He then filed a motion in Marion County Circuit Court asking for a new death warrant. He told reporters that he did not have "a slam-dunk case."
The motion made four arguments. A reprieve, Haugen said, had to be accepted to take effect, and he did not accept this one. It had no definite end. It rested on the governor's general opposition to capital punishment rather than on any judgment about Haugen's own case. And it amounted to suspending the state's laws because of the governor's moral objection to them. He also repeated his refusal of the reprieve in the complaint itself.
The case took an unusual shape. The Marion County district attorney's office agreed with Haugen that a reprieve the prisoner refused was void, and did not intend to defend it. The Oregon Department of Justice moved to let the governor join the case and defend the reprieve himself. At a hearing on April 18, 2012, the court took up the schedule and the governor's request to intervene.
On August 3, 2012, the senior judge hearing the case granted Haugen judgment on the pleadings. He agreed with the governor on two points: a reprieve need not have a fixed end date, and since the governor had the power to commute a sentence to life, an open-ended reprieve was within his authority. But he found, relying on federal and state precedent, that a reprieve had to be accepted to be effective, and that because Haugen had refused it unequivocally, this one had no effect. He wrote that his ruling was not meant as criticism of the governor, and said that a hearing to set an execution date would follow once the decision became final.
The governor appealed. The Oregon Court of Appeals certified the case directly to the Supreme Court, which accepted it and heard argument on March 14, 2013.
On June 20, 2013, the court reversed. In an opinion by the Chief Justice, it held that the reprieve "is valid and effective," regardless of whether Haugen accepted it. The court said it could decide what the word "reprieve" meant in the constitution, though it would not review the governor's reasons for granting clemency. Nothing in the text or history of Article V, section 14, it found, required a reprieve to name an end date or serve any particular purpose, "as long as the effect of the reprieve is to delay, temporarily, the execution of the sentence." The word "power" in the clemency clause suggested a unilateral authority, not an offer that the prisoner could take or leave.
The court traced the acceptance argument to a decision of the United States Supreme Court, Burdick v. United States, and noted that the same court had later abandoned it in Biddle v. Perovich. It quoted Biddle: clemency is part of the constitutional scheme, and the public welfare, "not his consent, determines what shall be done." Earlier Oregon decisions, it found, had involved conditional clemency or revocation and did not hold that an unconditional grant needed the prisoner's acceptance. It rejected Haugen's Eighth Amendment claim as well. A reprieve suspends a sentence and imposes no punishment, the court said, so it needs no penological justification, and Haugen had cited no authority holding that clemency could be cruel and unusual. The trial court's judgment was reversed, and the court later denied reconsideration.
The ruling left the reprieve in force for as long as Kitzhaber remained governor.
Kitzhaber left office in 2015, and Governor Kate Brown continued the moratorium on executions when she took office that year. In 2019 she signed Senate Bill 1013, which narrowed the crimes that could carry a death sentence in Oregon. In 2020 the Department of Corrections ended its separate death row housing and moved condemned prisoners into other units.
On December 13, 2022, in her last weeks in office, Brown announced that she was commuting the sentences of all 17 people on Oregon's death row to life in prison without the possibility of parole, effective the next day. Gary Dwayne Haugen, then 60, was on the list. Brown said the decision was not based on any rehabilitation by the people on death row but on her view that the death penalty was immoral, "an irreversible punishment that does not allow for correction." She acknowledged the pain and uncertainty that victims' families endured during decades of waiting and said she hoped the commutations would bring them closer to finality.
The man who had once fought the state for the right to be executed was now serving the sentence he had refused. On December 14, 2022, his sentence for the aggravated murder of David Polin became life in prison without the possibility of parole, to be served in the custody of the Oregon Department of Corrections.
The governor's power that decided Haugen's case is short. Article V, section 14 of the Oregon Constitution gives the governor power to "grant reprieves" after conviction for all offenses except treason, and ORS 144.649 adds that the governor may grant reprieves "upon such conditions and with such restrictions and limitations" as the governor thinks proper. Pardons and commutations go through an application process and a 30-day waiting period under ORS 144.650, but reprieves do not, which leaves the governor free to act at once when an execution is near. The only statutory duties are to report each reprieve to the legislature at its next session under ORS 144.660 and to file the paperwork with the Secretary of State under ORS 144.670.
Haugen v. Kitzhaber settled two questions the text had left open: a reprieve need not have a fixed end date or serve a stated purpose so long as its effect is to delay the sentence for a time, and a recipient's consent is not needed for it to take effect. Oregon law also allows the governor to commute death sentences, and two earlier governors had issued blanket commutations to the prisoners on death row, in 1959 and 1964.
The other law that shaped the case was the aggravated murder statute. A murder committed by a person already serving a prison term was one of the circumstances that made a killing aggravated murder and so eligible for death. In Haugen's appeal the Oregon Supreme Court read that provision together with the consecutive-sentencing statute and held that the specific provision controlled.
Haugen's competency was itself a disputed question in 2011. A neuropsychologist retained by his first lawyers concluded that he was not competent to give up his appeals; the state's evaluator found no condition impairing his legal judgment. The trial court ruled on the second evaluation alone, because Haugen's new lawyers did not offer the first. The resource center's later request to the Supreme Court to enforce its writ was overtaken by the reprieve.
1981: Mary Archer is killed in Portland; Haugen, 19, pleads guilty to murder and is sentenced to life in prison.
September 2, 2003: David Polin, a fellow inmate, is killed in a state prison in Salem; Haugen and Jason Van Brumwell are charged with aggravated murder.
2007: A Marion County jury convicts Haugen of aggravated murder and returns a death verdict; Van Brumwell is also sentenced to death.
November 4, 2010: The Oregon Supreme Court affirms Haugen's conviction and death sentence in State v. Haugen.
March 25, 2011: The Oregon Supreme Court upholds Van Brumwell's death sentence.
May 18, 2011: A Marion County judge finds Haugen competent to waive his appeals and signs a death warrant for August 2011.
June 9, 2011: The Oregon Capital Resource Center announces a challenge in the Oregon Supreme Court.
July 6, 2011: Under an alternative writ from the Supreme Court, the trial judge vacates the death warrant.
September 27, 2011: The trial court finds Haugen competent after a state evaluation.
November 18, 2011: A second death warrant sets the execution for December 6, 2011.
November 22, 2011: Governor John Kitzhaber grants a temporary reprieve for the duration of his service and halts all executions.
March 2012: Haugen's new lawyer asks the Marion County Circuit Court for a new death warrant.
August 3, 2012: The trial court rules that Haugen may reject the reprieve.
March 14, 2013: The Oregon Supreme Court hears argument in Haugen v. Kitzhaber.
June 20, 2013: The Oregon Supreme Court holds the reprieve valid and effective regardless of Haugen's acceptance.
2015: Governor Kate Brown takes office and continues the moratorium.
2019: Senate Bill 1013 narrows the use of the death penalty in Oregon.
December 13, 2022: Brown announces the commutation of all 17 Oregon death sentences, Haugen's among them, to life without the possibility of parole, effective December 14, 2022.