The Oregon Supreme Court ruled unanimously on Wednesday that Gov. Tina Kotek didn’t have the authority to send a woman who completed her sentence one year ago back to prison, and ordered the woman’s immediate release.
Terri Lee Brown was charged in 2016 with two counts of mail theft. On April 20, 2017, she was sentenced to two and half years in prison followed by two years of post-prison supervision. On Dec. 23, 2020, she was released from prison early, after then-Gov. Kate Brown granted her a commutation. By February 2023, the state sent her a certificate saying she had fulfilled all the obligations of her sentence.
Despite that, Kotek revoked that commutation in December 2023.
The state Supreme Court said in its ruling that Kotek had gone too far.
(Front, from left to right) Portland Mayor Ted Wheeler, Oregon Gov. Tina Kotek and Multnomah County Chair Jessica Vega Pederson speak to mark the end of Portland's 90-day state of emergency in Portland, Ore., on May 3, 2024.
Bryce Dole / OPB
The justices wrote that Terri Lee Brown’s “imprisonment is unlawful” after Kotek revoked her commutation late last year. Police in Josephine County arrested Brown on Feb. 17, and after five days in jail transferred her to the Coffee Creek Correctional Facility in Wilsonville.
“Terri Lee Brown was released from Coffee Creek Correctional Facility at 3:25 pm today,” Amber Campbell, a spokesperson for the Oregon Department of Corrections, wrote in an email Wednesday.
Commutation refers to the governor’s power to change a convicted person’s sentence. During the COVID-19 pandemic, Gov. Brown granted commutations to thousands of people in Oregon’s prisons, in an effort to slow the spread of the virus.
The case leaves some questions unanswered, including how Brown, 48, was sent back to prison, even though her sentence had been completed for an entire year before she was again arrested. The factors that led to a warrant for her arrest are also unclear, according to attorneys with the Oregon Justice Resource Center, which helped Brown win the habeas corpus petition.
The state’s highest court moved quickly, issuing its opinion less than one week after hearing oral arguments in the case.
The governor’s office was represented by attorneys with the Oregon Department of Justice.
“The governor’s plenary clemency power includes the power of the governor to revoke a conditional commutation after the time the original sentence has expired, and order that person’s arrest and return to prison at any time,” Assistant Attorney General Kirsten Naito argued to the justices.
Not even 30 seconds into her arguments, Supreme Court Associate Justice Bronson James asked Naito to clarify what he called a “pretty absolutist” position.
“I think I just heard the answer, but I really want to clarify it,” James asked. “Is it the position of Gov. Kotek that she has the authority to revoke a commutation at any time in the future, and subsequent governors would continue to have that authority to revoke a commutation at any time in the future for the entire life of Ms. Brown?”
Naito said, yes. “That is correct,” she added.
FILE - Coffee Creek Correctional Facility in Wilsonville, Ore., Oct. 19, 2022. The facility has minimum- and medium-security housing units for all female adults in custody in the state.
Kristyna Wentz-Graff / OPB
The court disagreed.
“The Governor respects the court’s decision and will take this ruling under advisement in the future,” Elisabeth Shepard, the governor’s press secretary, wrote in an email late Wednesday. “The office is not aware of any other similar cases under review.”
During the past year, Kotek has revoked numerous commutations — part of former Gov. Brown’s legacy — at the request of local district attorneys.
It’s not clear what prompted Kotek’s office to review and ultimately for the governor to revoke Terri Lee Brown’s commutation, years later. One possibility is that in May 2021, Brown pleaded no contest to violating her post-prison supervision. She was sent to jail for 30 days. But since then, she’s had no issue complying with her post-prison supervision, her lawyers said.
Leading up to her arrest and imprisonment earlier this year, Brown was doing well, according to court documents filed by her attorneys.
“For over two years, she had been providing in-home healthcare,” Julia Yoshimoto, Brown’s attorney, wrote in court documents. “She cared for approximately 12 individuals during that time, including, for over a year, the former deputy chief of police for the Medford Police Department. In the evenings, [Brown] worked as an auditor for Holiday Inn. [She] was also in her third semester at Rogue Community College, working towards her associate degree in business science.”
In its decision, the Oregon Supreme Court said that, for the most part, “violation proceedings must be initiated while the offender is under supervision (i.e., before the offender’s sentence has expired) and not after the term of supervision has ended and the offender is no longer subject to any sentence.”
Justices went on to explain that even though the commutation agreement with Brown stated the governor could revoke it, “there is no indication that the authority to revoke would survive the expiration of plaintiff’s sentence.”
In other words, Brown had completed her sentence by the time Kotek decided to order her back into custody.
“For the reasons explained in this opinion, we conclude that, because plaintiff had finished serving all of her sentences when the Governor revoked the conditional commutation, the Governor lacked authority, under the terms of the commutation, to issue the revocation,” the justices wrote.