By Noelle Crombie
oregonlive.com
SALEM, Ore. — The Oregon Supreme Court on Wednesday ordered the immediate release of a woman who had been sent back to prison after Gov. Tina Kotek revoked an earlier commutation of her sentence.
The court found Kotek lacked the authority to return the woman to Coffee Creek Correctional Institution because her sentence had expired.
It is the second time in two years that Oregon appellate courts have weighed in on the governor’s clemency powers, which can include reducing a person’s sentence or granting pardons.
Two years ago, the state Court of Appeals affirmed the governor’s broad clemency authority in the face of challenges from district attorneys who said Gov. Kate Brown overrode the wishes of crime victims.
In the latest ruling, the Oregon Supreme Court found the governor’s clemency power — specifically the ability to yank a person’s commutation and return them to prison — “is not without its limits,” said Steven Wax, the retired federal defender for Oregon who argued the case on the woman’s behalf before the Oregon Supreme Court.
The case centered on Terri Brown , a 49-year-old woman sentenced in 2017 to a total of five years in prison and two years of post-prison supervision for mail theft convictions out of Josephine County.
In December 2020 , then-Gov. Kate Brown commuted Terri Brown’s sentence as part of a large wave of pandemic-era early releases.
The commutations were conditional; people could be returned to prison to serve out the rest of their sentence if they broke any laws.
Terri Brown walked out of prison on Dec. 23, 2020. About four months later, in May 2021, she was back in court, accused of violating the terms of her probation. She pleaded no contest and was sentenced to a 30-day jail stint.
Two years later, in February 2023, Terri Brown got word from the state that her post-prison supervision had concluded and, as the court ruling notes, “was no longer subject to any sentence.”
That August Kotek asked district attorneys and community corrections directors to contact her office directly when someone whose sentence was commuted violates the conditions of their release “in a manner that warrants revocation of their commutation.”
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In an October letter to Kotek’s office, Washington County District Attorney Kevin Barton wrote that Brown was accused of assaulting someone she allegedly sold marijuana to and that she had “struggled with compliance throughout supervision.”
Terri Brown had been released from prison to Washington County where she remained under post-prison supervision.
Kotek revoked Terri Brown’s commutation in December 2023. Two months later, Terri Brown was sent back to Coffee Creek, the state’s women’s prison in Wilsonville.
Lawyers for the state told the Supreme Court that Kotek acted within her clemency authority in revoking Terri Brown’s commutation even though Brown’s sentence had expired.
According to the court’s ruling, the state argued that “the revocation provision allows any Governor — at any time during plaintiff’s natural life — to revoke the commutation and return her to prison upon a determination that she violated the terms of the commutation while she had been under supervision.”
During oral arguments, lawyers defending the state claimed “revocation could occur 50 years” after a person’s sentence had expired, the court ruling says.
The court disagreed, finding that the governor’s conditional commutation didn’t not include any provisions indicating that it could be revoked even after the person’s sentence has expired.
“Nor is there any indication that … ( Terri Brown ) would face the prospect of revocation and future imprisonment for the remainder of her life,” the ruling states.
Aliza Kaplan, a professor at Lewis & Clark Law School and an authority on clemency, called Wednesday’s ruling important and said it will apply to any other cases involving people whose sentences have expired.
“This was really about the terms and whether a governor can go backwards when someone is finished (with their sentence) and the court said no,” she said.
Elisabeth Shepard, a spokesperson for Kotek, said the governor respects the court’s ruling and “will take this ruling under advisement in the future.” She said the office is unaware of any similar cases under review for revocation.
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