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Mark Osler

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The Conscience of John Kitzhaber

Posted: 11/30/11 12:06 PM ET

There's a furor over morality right now in Oregon. On November 22, Governor John Kitzhaber announced that he was issuing a moratorium on executions in that state, and that the first reprieve was going to Gary Haugen, a double-murderer. Haugen was scheduled to die on December 6, and had waived all appeals as he sought his own execution.

People are mad about this -- angry because what Kitzhaber did was contrary to the will of people of Oregon in passing (in 1984) a referendum in favor of the death penalty, and contrary to the verdict of a jury. Many in Oregon feel that one man's conscience is thwarting the majority will. They are right, and that is part of what makes this situation so interesting. It is rare in our nation that we so openly see individual conscience trump public consensus.

In issuing the moratorium, Kitzhaber (who in a prior stint as governor oversaw two executions) said that "I simply cannot participate once again in something that I believe to be morally wrong." Though Kitzhaber did not rely on religious arguments, he might as well have (if that is a source of his morality). In commuting the sentences of 15 death-row inmates earlier this year, Governor Pat Quinn of Illinois talked explicitly about his Catholic faith and described one particular influence on his thinking -- Cardinal Joseph Bernardin, who advocated a "consistent ethic of life." Earlier, in 2003, Illinois Governor George Ryan commuted 167 death sentences after telling his staff "I can't play God."

Can, and should, the religious conscience of one powerful individual be able to trump the popular will?

The framers of this Republic, the men responsible for the shape of our governments, answered that question squarely with a "yes." In putting the pardon power, unchecked, into the president's hands (a move later replicated by the states), the Founding Fathers established a mechanism by which one person's conscience could trump the popular will behind statutes and jury verdicts. Alexander Hamilton argued that "one man appears to be a more eligible dispenser of the mercy of government, than a body of men," and his view prevailed.

Hamilton was right. Mercy is poorly allocated by committees. It is often an act of bravery, and the provision of mercy sometimes comes at great cost. No doubt, there are those in Oregon who are planning a painful cost for Governor Kitzhaber at this moment, in fact.

Democracy is important, but we do not live in an unregulated democracy. Rather, we live in one where the structure of government allows for sometimes contrary movements in the form of mercy, leadership, and bold action, and the clemency power can embody all three. In this way it is like the similarly-antidemocratic institution of judicial review of statutes, an oft-derided institution which brought us such moments of genius as Brown v. Board of Education.

If a governor's conscience, like John Kitzhaber's, will not brook a killing by the state he leads, that is his choice to make. It may be troubling to many, it may be upsetting to prosecutors, it may be viewed as unfair to victims, but it is thrilling to watch, and profoundly American.