Oregon Supreme Court: Governor Can’t Revoke Commutation After Sentence Expires
In a bizarre case of Orwellian government overreach, the Oregon Department of Corrections (DOC) reincarcerated former state prisoner Terri Lee Brown for a parole violation after her parole ended. But on May 8, 2024, the Oregon Supreme Court slapped the state’s hand and ordered her release. The Court held that the governor had no authority to revoke commutation of a sentence once it was completed.
Brown’s commutation was one of almost 1,000 granted during the COVID-19 pandemic by then-Gov. Kate Brown (D)—who is not related to the prisoner—to reduce the population held by DOC. As a result, Brown was released in December 2020, eight months before the end of her five-year sentence. She then completed a term of post-prison supervision (PPS) in 2023 and rebuilt her life.
Until, that is, police knocked on her door and arrested her a year later in early 2024. Brown learned the state’s current governor, Tina Kotek (D), had revoked her commutation. Why? In 2021, while on PPS, Brown had pleaded no contest to violating the conditions of her supervised release and served 30 days in jail. Nevertheless, she had received a Certificate of Supervision Expiration in February 2023 once her PPS ended. Only after that was she rearrested and returned to prison.
“This isn’t a small mistake,” said an understandably upset Brown. “Maybe I’m a number to them, but I am a person, and you destroyed me for no reason.”
Attorneys with the Oregon Justice Resource Center took up her case and filed a petition for a writ of habeas corpus, asking the state Supreme Court to exercise original jurisdiction under Or. Const. Art. VII, §2. The Court did so and heard arguments from both parties. The state noted that Brown’s commutation was conditional and could be revoked if she committed other crimes or violated the terms and conditions of her PPS. So, state officials argued, Gov. Kotek had the authority to revoke a previously granted commutation, even after a sentence had expired.
The state further said Brown had no legal right to challenge this, pointing to language in the commutation agreement specifying that she waived “any legal challenges to future revocation of the commutation and to being returned to prison, including through a petition for a writ of habeas corpus.” That also rendered her constitutional claims without merit, the state added.
But the Supreme Court disagreed. Although the governor has sole authority to grant commutations, that “does not exempt the Governor’s actions from judicial review,” the Court said. In fact, under the state’s interpretation, a commutation revocation “could occur 50 years after plaintiff’s sentence had expired.” Yet that was clearly inconsistent with the terms of Brown’s placement on PPS, which had an expiration date.
“Thus,” the Court wrote, “the PPS framework imposes a temporal limit on the authority to sanction or revoke an offender’s post-prison supervision for a violation of a condition.” Any revocation is “time-limited” and “must be initiated before the offender’s PPS terminates,” the Court explained—”while the offender remains subject to a sentence.” After Brown’s PPS expired in February 2023 though, Gov. Kotek lacked authority to revoke her commutation.
The Supreme Court also addressed the waiver provision in the commutation agreement and whether it was valid. Rejecting the state’s arguments, the Court found that Brown’s acceptance of provisions prohibiting her from filing legal challenges applied only to a revocation that “was initiated before the expiration of her sentence.” Otherwise, she could run the risk of having her commutation revoked and being returned to prison “for the remainder of her life.” Finding she was therefore being held unlawfully, the Court ordered her immediate release and waived “otherwise applicable appellate rules” to expedite that process. See: Brown v. Kotek, 372 Ore. 260 (Ore. 2024).
According to Brown, she has never received an apology from Gov. Kotek or any other state official for her illegal imprisonment. “I’ve heard from not one person,” she said. “Nobody’s contacted me to say they’re sorry.” Does she need an official apology? “It would mean a lot,” she said. “Admit you’re wrong. Say you’re sorry. That goes a long way. It helps.”
Additional source: Oregon Capital Chronicle
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