The Decline of the Death Penalty in Oregon

            Oregon’s death row is shrinking. Since Governor Kitzhaber declared his moratorium on executions, no new death sentences have been imposed and five death sentences have been overturned. 

            On November 22, 2011, Governor John Kitzhaber declared a moratorium on executions in Oregon.  In the 13 months following the moratorium not a single new death sentence was imposed by an Oregon jury.  No capital trials are scheduled for the remainder of 2012, so we will end the year without a single new death sentence.  In fact, it has now been over 18 months since any Oregon jury imposed a death sentence.  While the politicians may soon begin to debate whether to let the people vote on replacing the death penalty, Oregon prosecutors and juries have told us that, in every day practice, life without the possibility of release is an acceptable result even for the so-called “worst crimes.”

            During the 13 months since the moratorium, five death sentences have been overturned.  Oregon courts overturned the death sentences for Robert Langley, Dayton Rogers, Jeffrey Sparks, Jesse Fanus, and Travis Gibson.  In each case, the court found that the death sentence was the product of an unconstitutional trial that resulted in an unfair and unreliable result.  For example, the late Judge Timothy P. Alexander overturned Travis Gipson’s death sentence after finding the failure of Gibson’s original attorney failed “to demonstrate a true understanding of how to defend his client” at his trial. 

            When he announced the moratorium, Governor John Kitzhaber stated: it was time for Oregon to consider a different approach.  “Juries, prosecutors, and judges have responded to Governor Kitzhaber’s call for reconsideration by repeatedly reaffirming that the death penalty system is broken.  They have also told us that a life without parole sentence is a preferable alternative,” said Jeffrey Ellis, Director of the Oregon Capital Resource Center.  “Oregon’s death penalty has never worked.  Instead, when death sentences are imposed, we spend millions of dollars and wait decades for cases to eventually be resolved to life sentences.  On the other hand, when life sentences are imposed, the cases quickly conclude.  In response, the use of the death penalty in this state has fallen dramatically,” Ellis added.  “Oregonians are practical people.  We’d rather spend thousands on a life sentence, than millions on a death sentence that will become a life sentence many years later,” he concluded.  

The Life of Hugo Bedau (1926-2012)

Hugo Bedau died today.  Bedau, a philosopher, was best known for his work on capital punishment. He was once quoted as saying "I'll let the criminal justice system execute all the McVeighs they can capture, provided they'd sentence to prison all the people who are not like McVeigh."  Bedau knew, of course, that the criminal justice system could never achieve even that small measure of equal justice.  

Bedau watched and worked on the successful Oregon abolition campaign in 1964.  He writes about that experience in "Death is Different," a collection of essays from the 1980's that is still invaluable today.  

In that book, Bedau wrote that a "life in prison" punishment "is free of the worst defect to which the death penalty is liable: execution of the innocent.  It tacitly acknowledges that there is no way for a criminal, alive or dead, to make complete amends for murder...The death penalty, more than any other kind of killing, is done by officials in the name of society and on its behalf.  Yet each of us has a hand in such killings.  Unless they are absolutely necessary they cannot be justified."

Bedau argued that life in prison was "one way of admitting that we must abandon the folly and pretense of attempting to secure perfect justice for an in imperfect world."  

Even though he has left us, his vision still serves as a guide.   

WE SHOULD NOT EXECUTE UNTIL THE DEBATE IS CONCLUDED


Imagine a death row inmate who is unquestionable ineligible for a death sentence. That person might be intellectually disabled. Or, he may be severely mentally ill. Now, imagine that the Governor attempts to remedy this miscarriage of justice though his constitutional clemency power. However, the condemned man refuses to accept the reprieve or commutation of his sentence to life in prison. Maybe the prisoner would find it shameful to acknowledge that he is “mentally retarded.” Or, he may harbor delusional beliefs about the reasons for his execution.

These scenarios do not need to be drawn from the imagination. At his trial in Arizona, Jeffrey Landigan commanded his attorneys not to present any evidence that might spare his life. After learning about the information that Landrigan kept hidden, the sentencing judge later stated that if she had known about Landrigan's brain damage, fetal alcohol syndrome, and parental abandonment, she would not have imposed the death penalty. Scott Louis Panetti from Texas, who was allowed to represent himself at a trial despite his severe schizophrenia, was days away from being executed before a stay was issued despite his belief that his execution would prove the satanic conspiracy against him.

According to the logic of the Oregonian’s recent editorial, “Gary Haugen Should Be Allowed to Die,” we should be required to execute anyone who does not accept a reprieve or a commutation even if executing that person violates the Constitution, our community’s sense of decency, and is a mockery of justice.

Clemency is not a private contract between our Governor and an inmate, where each inmate has ultimate control. Governor Kitzhaber was not using his broad clemency powers for the narrow purpose of offering a singular reprieve to Gary Haugen. The moratorium was for all of us.

What is especially concerning about the Oregonian’s position is the Board’s agreement that our death penalty system is broken and should either be fixed, if that is possible, or replaced. The Editorial Board noted: “You could make a compelling case that Oregon would be better off without the death penalty at all.” “What you can't make a good case for, though, is the status quo.”

Why then would we go through with an execution produced by an admittedly broken system before we engage in what Governor Kitzhaber properly called the long overdue debate about whether to continue our experiment with the death penalty in Oregon?

It is not time to give Gary Haugen a “date with the executioner,” because we are not “allowing” Gary Haugen to die. We are considering whether we want to continue killing people in all of our names. When we execute a human being we do it in all of our names. It’s our choice, not his. When Governor Kitzhaber declared the moratorium he did so consistent with the power granted to him by the people through the Oregon Constitution. Judge Alexander’s ruling takes that power from the people. Judge Alexander’s ruling would require us to execute someone who we all agreed was not even eligible for the death penalty. The Oregonian was wrong to endorse such a flawed and dangerous decision.

It’s time to begin the death penalty debate in earnest. Gary Haugen will need to wait until Oregonians have finished our discussion at the ballot box.

Dear Vice President Joe Biden:  Thank you for speaking your convictions when you recently affirmed the right to marry. 

Can you go on TV next week and announce your opposition to the death penalty?

THE EDURING FAILURE TO PROTECT AGAINST RACISM

Twenty five years ago this week in a case entitled McClesky v. Kemp, the United States Supreme Court was faced with disturbing proof that race influences who is sentenced to death in the United States. In Georgia, where the case originated, black defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as white defendants charged with killing black victims. This prompted Justice Brennan to write:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white….In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence… Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

Although our criminal justice system aspires to be color blind we are tethered to our unfortunate history of racism.

Despite this proof, the Supreme Court held that it was powerless to act. This failure to make good on the guarantee of “justice for all” makes McClesky one of the most criticized decisions in United States history.

The Supreme Court’s failure to act meant that states, like Oregon, who still had a death penalty in place, had an increased burden to guard against the infection of racism. Perhaps even more disturbing than the Supreme Court’s ruling in McClesky is the fact that Oregon did absolutely nothing. Instead, we buried our heads in the sand by refusing to monitor the influence of race on our death penalty.

North Carolina and Kentucky created a racial justice acts designed to protect against the result described in McClesky. Washington has a system in place which requires judges to report on the race of the defendant, victim, and all the jurors in every aggravated murder case. Oregon has nothing.

Like the rest of the nation, Oregon has not eradicated racism in our criminal justice system. Less than 2% of our population is African-American, yet African-Americans comprise 11% of our death row. However, if you looked for this or other information about the influence of race on Oregon’s death penalty you would not be able to find it. Oregon does not officially keep statistics on race of the defendants, victims, or jurors in aggravated murder cases. Does the murder a white victim by a black defendant make it much more likely that a death sentence will be imposed? How many death row defendants have been sentenced by all white juries? We don’t know because Oregon did not answer the Supreme Court’s failure in McClesky by setting up a vigorous system to protect against using the color of a person skin to make the most profound decision our government allows—to take a human life in all of our names. The Supreme Court failed in McClesky. But, then we failed, too.

Governor Kitzhaber has recently called for Oregonians to examine our death penalty. This is one of the tough questions he has asked us to examine. Let’s hope we answer the challenge this time. After all, the question has been posed for at least the last quarter of a century.