By Noelle Crombie
oregonlive.com
SALEM, Ore. — Kate Brown in her final two years in office has become the busiest governor in modern Oregon history – and among the busiest in the country – to use her power to grant mercy to criminal defendants, offering clemency to 1,204 people so far.
But her decisions to commute sentences or pardon people altogether have often left out crime victims and their families, creating a backlash that leaves an indelible mark on her legacy.
Brown, like other governors of both parties, released hundreds of prisoners in response to the pandemic and followed up by commuting the sentences of 41 men and women who fought Oregon’s historic wildfires in 2020.
She has also commuted or pardoned dozens of others who made personal pleas for release, some of them serving decades for crimes that include murder.
But her controversial call last year to grant clemency to 72 people convicted of crimes as juveniles — and consider release for about 140 others — blindsided many still-grieving families and left to prosecutors the task of informing them of Brown’s decision.
The governor’s efforts have played out amid a national discussion about incarceration and criminal justice reform. That debate comes in response to the legal system’s disparate treatment of marginalized communities and what some see as an overemphasis on punishment versus rehabilitation.
People familiar with the governor’s thinking but not authorized to speak on her behalf said her office first quietly floated the idea of juvenile commutations early last year. In the following months, the governor’s advisers sought to keep those discussions confidential. Prosecutors and victims were not part — or even aware — of those discussions.
Now two district attorneys and the relatives of three people killed by teenagers have filed a lawsuit alleging Brown failed to follow the clemency process as outlined in state law, which requires the notification of the district attorney and victims.
The suit also claims the governor improperly delegated her clemency authority to the Oregon Department of Corrections by asking for lists of prisoners and that she failed to make case-by-case determinations as the suit contends she is required to do.
For Gladys Camber and many loved ones of those hurt or killed by the prisoners walking free, revisiting the sentences has resurfaced their grief and stoked outrage over what they say is the governor’s disregard for justice meted out long ago.
Camber’s daughter Bridget and her fiance Ian Dahl were abducted at gunpoint in Salem in 1994. They were tied up, forced into a ditch and shot to death in rural Benton County.
Sterling Cunio, then 16, and an adult accomplice were convicted of aggravated murder and sentenced to life in prison.
Last fall, the governor commuted Cunio’s sentence.
“It made me start the grieving process all over again knowing he was free,” Gladys Camber said, “and they are dead.”
BROWN SURPASSES KITZHABER, KULONGOSKI
At first, Brown was cool to clemency, state data shows.
She seemed to continue the pattern established by her predecessors, John Kitzhaber, who granted eight commutations and two pardons, and Ted Kulongoski, who granted 53 commutations and 20 pardons and said he reserved clemency for “the most extraordinary circumstances.”
Both Kitzhaber and Brown put a moratorium on executions during their terms.
In her first five years in office, Brown granted 31 commutations and pardons.
That’s in keeping with the approach of many governors who, worried about their political futures, shy away from using their clemency authority, said Marta Nelson, director of government strategy at the Vera Institute of Justice, a national nonprofit focused on eliminating mass incarceration.
“As long as the chief executive has a political future in front of them, they tend not to do it,” she said. “There is no real upside. The people who thank them for it are the family members of the people who are released and criminal justice reform people who also say thank you but you should do X, Y and Z.”
Brown, a Democrat, is not eligible to run for governor when her term ends at the end of this year.
In recent years, criminal justice reform advocates like Aliza Kaplan, a professor at Lewis & Clark Law School, and the American Civil Liberties Union have pressed governors to use their clemency authority to significantly reduce prison populations, reexamine cases of teenagers prosecuted as adults and correct racial disparities in the prison system.
Some governors are listening.
It’s difficult to draw national comparisons on clemency because the process works differently from state to state, but an analysis by the American Civil Liberties Union shows Brown is among a handful of governors who have embraced their broad powers to release prisoners or at least reevaluate the sentences of groups of offenders, such as older prisoners or those with serious illnesses.
“What we are seeing is clemency can be much more than an individual act of commutation, that it can be used as a tool to rectify injustice and rectify problems that we know are pervasive throughout our criminal justice system,” said Leah Sakala, a senior policy associate in the Justice Policy Center at the Urban Institute, a national nonprofit organization that provides research on economic and social issues.
North Carolina’s governor, for instance, established a panel to review sentences of juveniles who were prosecuted as adults. In Wisconsin, the governor has used pardons to give low-level offenders a clean slate.
Colorado Gov. Jared Polis granted more than 4,000 pardons and commutations in 2020 and 2021 related to changes in drug laws, according to one study.
Robert Ehrlich, a Republican who served as governor of Maryland from 2003 through 2007, said he saw clemency as part of the job. He reviewed cases on a regular basis; no offense was off limits, he said.
He said his decisions didn’t generate much pushback, likely because he said he “made victims part of the process from the jump.”
Ehrlich, a lawyer by training, looked for “things that didn’t smell right” — maybe a lousy defense lawyer, racial bias, something off at the trial level or during the appeals process.
“To the extent that you have this extraordinary power as chief executive,” he said, “you can get justice done. You can actually achieve justice.”
Two years ago, Kaplan, arguably among the most influential voices on criminal justice reform in Oregon, called on Brown to use her clemency power to blunt the impact of Measure 11′s mandatory minimum sentences.
Clemency is a broad term that includes commutations, which represent a reduction in a person’s sentence. A commutation can mean the immediate release of a prisoner or it can make someone eligible to pursue release.
Clemency also applies to pardons, an act of forgiveness for the crime the person committed. A law passed in 2019, an effort championed by Kaplan, ensures that those who receive pardons have their convictions sealed.
Under the Oregon Constitution, the governor can grant clemency for any crime except treason.
Kaplan, previously a national leader in the innocence movement, came to Portland in 2011 and has successfully lobbied to restrict which crimes are eligible for the death penalty and pressed for a law that creates a legal path for defendants to revisit their convictions and sentences even after their cases are closed.
“The pardon power,” Kaplan wrote in an academic paper, “has a far more substantial role to play in Oregon’s criminal justice system.”
In 2020, according to data provided by the governor’s office, Brown significantly stepped up her pace, a pattern accelerated in part by the pandemic.
Kaplan’s clemency clinic, based out of Lewis & Clark, has served as a pipeline of sorts for clemency appeals to Brown, who in an interview with The Oregonian/OregonLive said Kaplan has helped shape her view of the criminal justice system in Oregon.
In all, the clinic has represented 78 defendants who petitioned for either a pardon or commutation; 46 so far have been granted and 17 are pending. The rest have been rejected.
According to data provided by Brown’s office, she has granted 1,144 commutations and 60 pardons since taking office; 963 commutations were related to the pandemic.
Most clemency applications last year were rejected; Brown approved about 6% of all pardon and commutation petitions combined, her spokesperson said.
‘I WAS SO STUNNED’
Brown said she has not spoken with any of the victims or their families in the cases before her and relies on district attorneys’ offices to talk to them instead.
The governor said she reads letters from victims and loved ones that are forwarded by district attorneys’ offices.
“I am well aware that this is incredibly difficult for victims and their families,” she acknowledged.
Rosemary Brewer, executive director of the Oregon Crime Victims Law Center, said on several occasions she has asked Kevin Gleim, a lawyer for the governor who handles the commutation process, whether he or Brown would take time to talk with victims’ relatives about why the governor had granted clemency in particular cases.
Gleim declined, she said.
Brewer said the news of the juvenile commutations in particular was difficult for victims’ families because many first learned about it in an Oregonian/OregonLive report last October.
Brewer pointed out that the rights of crime victims are enshrined in the Oregon Constitution, which guarantees crime victims “a right to justice, a right to a meaningful role in the criminal and juvenile justice systems, a right to due dignity and respect, and a right to fair and impartial treatment.” The Constitution says those rights “shall be protected at each stage of the criminal justice system.”
“For whatever reason,” she said, “the governor has decided that these commutations take precedence over the rights of victims or even a thought for victims frankly.”
By law, district attorneys are required to be notified when a person seeks clemency. The governor’s office then asks the district attorneys for police reports and other information in cases it plans to review. If a case moves ahead, prosecutors are given a chance to respond and include victims’ statements as well.
Marion County District Attorney Paige Clarkson said she hired an extra staffer to help her office respond to the flood of clemency submissions to Brown in the past two years.
Clarkson said the applications submitted by Kaplan’s clinic paint defendants in a sympathetic light, often shading the truth or misstating the facts of the crime.
Kaplan rejected Clarkson’s characterization of her clinic’s work.
“There is not one right story when a case has not gone to trial,” especially in cases settled in plea negotiations, Kaplan said. “There are always two narratives in every case.”
When Clarkson’s staff delivers news about the governor’s clemency decisions in a case, the victims often ask: why?
In a recent case, a victim asked Clarkson’s staff to ask Brown if she needed to change her name or move.
“Do I need to worry about my safety,” the woman asked, according to Clarkson.
“I do not have answers for them,” she said.
Ellen Pelker learned last year that the sentence of her daughter’s killer, James Anderson, would likely be commuted just as she was tuning in to a remote hearing, known as a murder review, before the Oregon Board of Parole & Post-Prison Supervision.
At a murder review hearing, the board determines if a defendant should eventually get parole.
Anderson’s lawyer announced that Anderson appeared to be among the group of juveniles whose sentences were commuted by Brown. That meant his case would go to the parole board for a different type of hearing that would decide his fate.
During juvenile hearings, a defendant’s rehabilitation is the focus of the board’s deliberations, though state rules say it can also consider the “premeditation or deviancy” of the crime. The board will review letters of support and letters from victims in making release decisions.
Anderson’s hearing is scheduled for March 16.
“I was so stunned,” said Pelker, who lives in Aurora.
In 1996, Anderson, then 17, drove Mariah Pelker-Ingram, his former girlfriend, to a wooded area of Woodburn, where he had already dug a grave. He stabbed her and beat her with a shovel.
Mariah was reported missing; a month passed before her remains were found by authorities.
Pelker-Ingram, Pelker’s only child, was three months’ pregnant. She was 17. Pelker and authorities suspect Anderson didn’t want to take care of the baby.
The teen’s death destroyed her father, said Peggy Wilson, her paternal aunt. Wilson, a psychotherapist who lives in Houston, said her brother, James Ingram, was unable to cope with his grief and later experienced homelessness. He died in July 2021.
“There was nothing to console him,” she said.
Pelker said Brown’s decision to show Anderson mercy baffles her.
“I just don’t understand,” Pelker said. “There was never any explanation.”
SENTENCED TO 29 YEARS IN PRISON AT AGE 15
Brown last year first began to consider using her authority to address juveniles serving time under Oregon’s Measure 11, the mandatory sentencing law first passed in 1994.
In particular, Brown wanted to focus on offenders serving mandatory minimum sentences but who did not benefit from 2019′s landmark juvenile justice bill. That law aims to keep young offenders accused of the most serious crimes out of the adult court system.
The law sets stringent parameters for judges to keep them in the juvenile system, where the focus is rehabilitation. The law did not apply retroactively.
Brown said youths have “a unique capacity for growth” and should be given a chance to “become positive members of our society.”
“Measure 11,” she said, “removed many avenues for young people to demonstrate their capacity for change and reformation.”
Brown said she is using clemency as it was intended: to correct injustice, which includes not only reviewing what she sees as harsh sentences in old juvenile cases but also addressing the overrepresentation of Black and Latino people in Oregon’s prisons.
The governor noted Oregon’s troubling rates of racial and ethnic disparities in its prisons, where 9% of the population is Black, yet just 3% of the state’s population is Black. Likewise, Latinos represent about 13% of the population and nearly 20% of the people in prison.
The governor’s office estimates that of the juvenile offenders now eligible to pursue parole, as well as those whose cases Brown will review individually, about 40% are Black or Latino.
“While it is not a replacement for comprehensive criminal justice reform,” Brown said, “the power of clemency can be used to address systemic failures while we work to make lasting change.”
She pointed to the case of Anthony Pickens.
In 1997, Pickens killed Chad Render, 20, a former star wrestler at then-Madison High School and a Portland State University student. Pickens shot Render in the chest during an attempted robbery in Northeast Portland.
Pickens was convicted of murder and sentenced to life with a minimum of 29 years in prison. He was 15.
By his own account, it was a difficult adjustment. For years, he retained his gang ties and got into trouble.
It wasn’t until he spent 19 months in solitary confinement in his early 20s that he said he began to change.
“You have time to think: What are we doing with this lifestyle?” he said. “We are destroying ourselves.”
He renounced his gang affiliation and stayed out of trouble. He said he started to read literature and philosophy. He enrolled in classes and volunteered at the prison hospice.
As he got older, Pickens considered what he owed Render’s family, in particular Render’s cousin who had addressed him during the sentencing hearing.
“I cannot replace what I took from him and his family,” he said. “What is the best way to make amends for that? The best way to make amends is to change myself.”
Roosevelt Bradley, Render’s cousin who helped raise him, recalled offering Pickens forgiveness during the sentencing hearing and how Pickens wept.
“He didn’t know what he was doing,” said Bradley, who lives in Bremerton, Washington. “He was a child.”
He said Pickens has done his time. He said he did not oppose Pickens’ release.
“I am very proud of him,” Bradley said. “A lot of people go on that path he was on and never make anything of themselves.”
Multnomah County District Attorney Mike Schmidt supported Pickens’ commutation bid, telling the governor in a letter that Pickens demonstrated personal “growth which can only be described as transcendent.”
Brown granted Pickens’ request.
“He has grown into a very different person than the young person who committed the crime,” the governor said.
One morning last October, Pickens, 39, who is Black, walked out of the Oregon State Penitentiary a free man. He had served 24 years.
‘BRIDGET DID NOT RECEIVE MERCY’
While Pickens had the support of the district attorney and his victim’s uncle, Cunio’s case was more complicated.
Cunio was convicted of two counts of aggravated murder in the killings of Bridget Camber and Ian Dahl. He and his accomplice, Wilford Hill, set out to steal a car that night; they didn’t know Camber and Dahl.
Hill, an adult in the eyes of the law at age 18, also was convicted in the killings and is serving a life sentence.
Cunio, who was 16 at the time of the crime, was sentenced to two consecutive life terms. His appeals and legal challenges churned through the Oregon courts for decades.
Ultimately, Cunio faced a 40-year sentence and a release date in 2032.
In his letter to Brown, Ryan Joslin, chief deputy district attorney in Benton County, argued Cunio had failed to take full responsibility for his role in the killings.
He told Brown that Cunio did not deserve mercy.
“In the brief remaining moments of her life, Bridget witnessed her fiancé being shot in the face,” Joslin wrote. “She screamed in protest, as both a natural reaction to the horror she witnessed, as well as an implied request for mercy regarding her own life. Bridget did not receive mercy.”
Joslin’s letter to Brown included anguished messages from the families of Camber and Dahl opposing Cunio’s release.
Cunio, the prosecutor wrote, “fails to recognize that the only thing he can do of value for the victims is to quietly serve out the remainder of his sentence.”
Cunio’s early prison record was poor. A conviction for assaulting a corrections officer added nearly six more years to his sentence.
Cunio, who identifies as mixed race, said it took years for him to understand the pain he had caused.
“There are two people that are not on this planet because of my actions and when I came to really understand that and start to think about that, it led me to additional realizations that I actually did no good on the planet at all,” he said.
He said he experienced guilt and depression in his mid-20s and, like his friend Pickens, spent an extended period in solitary confinement.
He said he came out determined to change. He enrolled in community college classes and took a course in conflict mediation. He worked for years in the prison chapel. He volunteered in the hospice ward. He focused on writing; one of his essays was published by The Marshall Project, a nonprofit news organization covering the criminal justice system.
He had been free of disciplinary actions since 2009, a prison official noted in one letter of support.
Two years ago, Kaplan, who met Cunio earlier when she spoke at a prison event, encouraged him to pursue clemency. Her clinic represented him.
His petition included a dozen letters of support from prison staff and volunteers, including one from a prison chaplain who told the governor “it is common sentiment in our office that there is no reason for this man to remain incarcerated.”
Brown agreed and last September granted his request.
Cunio was 44 and by then had served nearly 28 years in prison, the final 21 at the Oregon State Penitentiary.
Cunio now works at Kaplan’s clemency clinic. He acknowledged that his freedom compounds the pain of the Camber and Dahl families. He said he chose not to live in the Salem area so they would not risk encountering him.
“It’s breaking their heart,” he said. “I’m always going to have that with me.”
“I’m not saying that I’ll ever be able to do anything to balance it out,” he said, “but I know if I live to be 80 then I can say I spent 64 years of a life trying to make amends.”
PANEL TO HELP WITH JUVENILE CASE-BY-CASE REVIEWS
For now, lawyers for the families and the district attorneys who are suing Brown, said the governor has agreed not to release prisoners while a Marion County Circuit Court judge decides whether the lawsuit can move forward. A decision is expected next month.
Meanwhile, Brown’s office outlined how the governor will make a case-by-case review of what it says is an estimated 140 prisoners who committed crimes as juveniles and meet the following criteria: sentenced before 2020, are not serving a sentence for a crime committed as an adult and have served half of their sentence by the end of this year.
This group is in addition to a separate group the governor commuted who also committed crimes as juveniles. That group of 72 can petition for release after they have served at least 15 years.
Brown’s spokesperson, Liz Merah, said a small group of “community members with varied backgrounds in law, law enforcement and adolescent development” will take part in the review of each case and advise the governor.
The group is made up of a retired judge, a juvenile lawyer, a psychologist, a police officer and the leader of a nonprofit organization that helps people transition from prison to the community, Merah said. Brown’s lawyers will also review those cases.
They will gather information about each case from police, prosecutors and the prison system, as well as input from victims.
Merah in an email said the governor’s office expects “only a small percentage will be approved.”
Their fate will rest with the governor, who said she will consider their growth and whether they have the capacity to contribute to the community.
Said Brown: “I will be the final decider.”
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