Oregon Appeals Court sides with Gov. Brown in emotional fight over early prison releases

By Ryan Haas (OPB)
Aug. 10, 2022 8:21 p.m.

Appeals court judges noted that emotional cases do not change the governor’s authority

Gov. Kate Brown signs Senate Bill 1008 into law at the June Key Delta Community Center in Portland, Ore., Monday, July 22, 2019. The law brings reform to Oregon's juvenile justice system.

Gov. Kate Brown signs Senate Bill 1008 into law at the June Key Delta Community Center in Portland, Ore., Monday, July 22, 2019. The law brings reform to Oregon's juvenile justice system.

Donald Orr / OPB

The Oregon Court of Appeals ruled Wednesday that Gov. Kate Brown was within her authority to grant clemency in 2020 and 2021 to around 1,000 people convicted of crimes.


The governor’s use of her powers to shorten prison sentences drew condemnation from two district attorneys, Linn County’s Doug Marteeny and Lane County’s Patricia Perlow. The pair of district attorneys and family members of crime victims sued the governor and other state officials to stop the clemency actions.

The district attorneys took particular issue with Brown’s decision to allow 73 people convicted of crimes such as murder, assault, rape and manslaughter while they were younger than 18 to apply for early release.

The majority of the people receiving clemency were either medically at risk during the early stages of the COVID-19 pandemic or had helped with wildfire fighting efforts during the historic Labor Day fires of 2020.

While the district attorneys and the crime victims who brought the legal action made technical arguments about why Brown’s actions were overreach, the Appeals Court said it was also clear there was emotion at stake in the clemency decisions because crime victims felt they were “denied justice.”

“The arguments and emotions present in this case echo through the centuries. The power to pardon, sitting within a singular executive – be they monarch, president, or governor – has always been controversial,” the opinion states. “Whenever it has been used, it has been lauded by some, and condemned by others.”

Still, the Appeals Court judges said they were “not called here to judge the wisdom of the Governor’s clemency … that is a political question.” Instead, the judges said their job was to narrowly rule on whether the governor could legally take the action that she did, and on that front they found her actions legally sound.

“Hurt – no matter how sympathetic – does not translate to authority to challenge and displace commutations that accord with the constitutional powers afforded the Governor,” the Appeals Court opinion states.

Disputes could continue


In a statement to OPB, Perlow said the governor’s actions amounted to a “violation of victims’ rights,” and she hoped the incoming Oregon Legislature would take action to put limits on the governor’s clemency powers.

“The Court of Appeals has granted the Governor unbridled authority to trample on the rights of victims and limit the authority of the 36 District Attorneys to enforce those rights,” Perlow said.

She added she would be closely watching Brown’s remaining months in office to see if the governor takes any further clemency actions.

Marteeny, the other district attorney who brought the case, said he thought the public could take action if they disagree with the Appeals Court decision.

“This opinion explains that ‘ultimately, it is the voters ... who hold the power to limit clemency actions.’ We are the masters of our destiny and this outlines the significant need for a change to Oregon’s law,” he said in a statement to OPB. “Most reasonable people agree that victims should have a voice in these matters.”

Oregon Attorney General Ellen Rosenblum, whose office represented the governor in the case, praised Wednesday’s decision.

“Today’s decision recognizes that the Governor had the authority to commute the sentences as she did,” Rosenblum said in a statement. “I am pleased that the Court of Appeals gave our appeal the attention it deserved and expedited their consideration of it.”

Justice and neuroscience

The legal wrangling over juvenile offenders comes at a time when neuroscientists and lawmakers have started to change their views on criminal justice. For many years, Oregon allowed juveniles in some cases to receive sentences of life without parole.

Youth advocates have started to contest overly punitive approaches, arguing that research clearly shows human brains don’t fully develop decision making skills until well into a person’s 20s. U.S. Supreme Court decisions have begun to accept that research in criminal cases involving young people.

In 2019, the Oregon Legislature passed a bill that made changes to the juvenile justice system by eliminating life sentences without parole for youth offenders. It also allowed them another hearing to review their case after serving half their sentences.

After that bill became law, Brown signed an executive order allowing it to apply retroactively to juveniles convicted between 1988 and 2019.

District attorneys across the state have criticized that decision as dangerous and traumatizing to crime victims.