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.

The Right Side of History -- Guest Post by Pat Ehlers

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.

On the Right and Wrong Sides of History

Today, Gov. Quinn signed legislation abolishing the death penalty in Illinois. He also commuted the current death sentences to life without release.

Today, Illinois joins fifteen other states on the right side of history.

Today, thirty-four states, plus the federal government remain on the wrong side of history.

Over the next decade, the number of states which have abolished the death penalty will grow and grow until we finally end this experiment with the death penalty in this Nation.

Our current situation reminds me of those juveniles who were executed only months before the United States Supreme Court ended that practice as fundamentally inconsistent with our standards of decency. Those who watch history knew that a national ban on the execution of juveniles was coming. The only question was who and how many would be killed before the ban was erected.

On May 28, 2002, Napoleon Beazley, who was 17 when he committed the murder that led to his death sentence, was executed. He had asked the US Supreme Court to block his execution because he was a juvenile. He asked too soon. Only months later, the Missouri Supreme Court held that the execution of juveniles was unconstitutional. That case then went to the US Supreme Court, which agreed in its opinion issued in early 2005. Nothing had changed between Beazley's execution in 2002 and the US Supreme Court's decision in 2005, legally speaking. Put another way, it was clear by May 28, 2002, that the prohibition against killing juveniles would be put in place very soon. It was only a matter of time. It was only a question of when.

Napoleon Beazley knew it, too. He told me so.

However, between Mr. Beazley's execution and the constitutional ban in 2005, three more juveniles were executed.

We are in the same place today with regard to the death penalty in this country. It will be abolished nationwide soon. The only question is: How many more people will be executed between now and then?

We should not wait to place ourselves on the right side of history. Instead, the actions in Illinois today must compel the remaining states to join the abolitionist states on the right side of history and to do so now.

A Murder in the Cold, Dark Night

May the family and friends of Holly Washa be blessed as they move forward in their lives. They suffered needlessly as a result of Mr. Brown's murder of a beautiful, young woman. Our community must reach out and embrace them. And, we must remember and celebrate Holly's life and goodness.

However, we can no longer promise the family of a murder victim the life of the killer in return.

Today, the State of Washington rejoins China and Iran, Texas and North Carolina, as jurisdictions that violate human rights and international norms of decency.

Today, the State of Washington killed a mentally disordered man after misleading his jury that he was not afflicted with a mental disease.

Tomorrow, we will not wake up any safer. Tomorrow, we will not know a more perfect justice. Tomorrow, we will not have taken steps to prevent the next murder.

We will, however, know the name of the last person killed before Washington ended its experiment with the death penalty; when we recognized that our standards of decency had evolved so that we could no longer permit state-sanctioned killing--killing another to prove that killing is wrong. We will then look back and wonder why we felt we needed to kill Cal Coburn Brown--what justification existed--just as we look back now and wonder why we executed juveniles and the intellectually disabled in this Nation only a few, short years ago.