Looking back today on black and white photos of the past we find ourselves ashamed of what we see. Everyone has seen these pictures. Bodies of men hanging from the ends of ropes. Sometimes as many as a half-dozen, or more, at a time. Dangling there, murdered, as a carnival of on lookers celebrates while enjoying a picnic during a sunny afternoon execution. That's shameful. So, we don't do it that way anymore.
Today, out of the public eye, at a time just after midnight, when most people are asleep, members of the strap down team make their way to the cell of the condemned. He's escorted to a gurney, told to lie down, and he complies. Restrained at his ankles, wrists and chest, he is readied for the needles. There are three. One for each of the poisons chemically designed to take his life. They're inserted into his veins. This doesn't always go well but it gets done. He's allowed a moment for a few last words, usually heard by a small group of witnesses, and then, on cue, anonymous volunteers, hidden behind a wall, and out of view, press plungers, shoving poisons down IV lines into veins. At first, nothing much seems to happen –– but then things change. The condemned appears to fall asleep, the chest rises, then falls heavily, then rises again. It sounds, sometimes, like deep snoring. Then that slowly subsides, and finally it ceases all together. There's silence. Six minutes from start to finish. I have sat late at night and watched this happen six different times to six different people I knew really well. I had spent years working with them.
The federal courts of Oklahoma appointed me to represent these men. Despite my best efforts, in these cases, I did not prevail. There wasn't one among those six men who had a life that was even close to normal. There wasn't one who hadn't suffered horrific abuse as a child. Some were mentally ill. Others were brain damaged. Overwhelming poverty, deprivation, neglect, and untreated addictions were constants in many of their lives. And, although each of them committed acts of horrible violence, there wasn't one execution I thought made sense.Why? Because for each case that ended in death, I knew there were many, many more that involved the exact same violence but a different punishment. A punishment equally effective, less costly, and far more humane – – life imprisonment. Most troubling, was that I could never explain to any of my condemned clients why they'd been selected for death when others had not. I never had an answer for that question. I still don't. But, here's what I do know, what we're doing today in Oregon with our death penalty just does not make sense. And, in standing up against the use of this penalty, I've got no shame at all, not a single reservation about what I'm doing, what we're doing. Why? Because we're right.We are on the right side of history. There is no debate about it.
There can't be. Without question, it is only a matter of time before Oregon will look back on its history, feeling a shame indistinguishable from looking at those old lynching photos, and ask ourselves why we didn't act sooner to eliminate the use of death as a punishment. Why we couldn't see that the midnight march of a strap down team and the use of IV lines, and poisons, wasn't one bit different than hanging people by a rope at a picnic. The time for change is now.Think about this. I told you I'm a lawyer. Let me share with you about something that happens in my world. Justices of the United States Supreme Court retire. After life long careers working with, and watching the results of, hundred and hundreds of cases, this is what some of them have said as they've stepped down from the bench: "From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored ... to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed." –- Justice Harry Blackmun near the end of his career in 1994. Expressing regrets about the death penalty in her retirement, Justice Sandra Day O'Connor stated in 2001 that: "Serious questions are being raised about whether the death penalty is being fairly administered in this country." "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Justices David Souter and Lewis Powell, too. joined a chorus of regret about the death penalty as they ended their careers. And, most recently, at the end of 30 years of judicial service, Justice John Paul Stevens reached the conclusion that, in his words: "[T]he imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.
"A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment'". What are these justices really saying? They're saying that if they had it to do all over again, they'd do it differently. That after thinking about it for years and years, they realized, after it was all over, that the death penalty just doesn't work. Unfortunately, Supreme Court Justices don't get "do overs." They get one career and then they step down. And these insights they have, unfortunately, came too late.
In life, "do overs" don't come along often. In fact, they're exceedingly rare. But, we've got someone in Oregon who has precisely that opportunity. He gets a "do over."
My hope, our hope collectively, is that he uses it well. John Kitzhaber is our governor again. And, he has the absolute power to commute the sentence of Gary Haugen, stop his volunteer execution, and start the process of changing Oregon's history. The governor can choose to step to the right side of history, as other governor have done, and say to the people of Oregon, we can be, we must be, better than we have been. He can say that Oregon's death penalty does not make sense. He would be right about that. He can say that life imprisonment is enough, that it works, that it keeps people safe. He'd be right about that, too. He would have to say, that yes, cases like the Haugen case sometimes happen but they can be avoided and they are extremely rare. He can say that life imprisonment is less costly. He would certainly be right about that. He could tell the people of Oregon that as we face this coming "decade of deficits" that we can help ourselves by eliminating our wasteful, shameful death penalty. He could tell the people of Oregon that over the next decade we'll expend more than $170 million dollars on the death penalty. If he told the people of Oregon that, he'd be conservative in his estimate. And, if Governor Kitzhaber told the people of Oregon these things, wouldn't they listen? Coming from a position of leadership, sending this message from the top, that would cause people to pay attention. And, when they paid that attention, it would be hard for people to justify using millions upon millions of dollars for our death penalty. For all the millions that have been spent, and will continue to be spent if we don't change, what do we have to show for it all? In 49 years, two frustrated people opted out of their appeals, and out of their lives, because our misguided death penalty provided the option. That's what we have to show for all those millions. And, when people here in Oregon really thought about it, really discussed it, considered the issue in depth, wouldn't they conclude that we are better than our history. That we can and should change. That we are a progressive caring state, and that while we so often lead in what is right, and what is good here, that we have failed up until now to take the right course.
With our help, and with the help of our Governor, and his "do over" opportunity, I know we can get this right the second time.
Pat Ehlers is a capital defense attorney in Oregon and a member of the Advisory Board for Oregonians for Alternatives to the DeathPenalty. He presented this speech at an OADP event.
