Putting the Death Penalty to Sleep

Few topics are as emotion-packed as capital punishment. Governor Kitzhaber refuses to preside over any more executions and an Oregon group with prestigious members has formed to outlaw it.Despite advocacy from former Oregon Supreme Court chief justices and administrators of the Department of Corrections, a ballot measure to repeal Oregon's death penalty seems unlikely until at least 2016. A legislative resolution by Rep. Mitch Greenlick to put the issue on the ballot next year died in committee.

Meanwhile, all that stands between the execution of convicted killer Gary Haugen and lethal injection is Governor Kitzhaber, who has refused to preside over any executions during his term in office. Haugen is pursuing legal action to allow his execution to proceed, despite an Oregon constitutional provision giving a governor sole authority over clemency decisions.

Oregonians for Alternatives to the Death Penalty staged a forum at Willamette University last week that attracted more than 200 people and featured an address by retired Supreme Court Chief Justice Paul DeMuniz. He said the death penalty doesn't work as a deterrent to violent crime, creates enormous legal complexities and costs Oregonians more than housing convicted felons for a life sentence.

Aliza Kaplan, a Lewis & Clark Law School professor, says the cost of trying to execute someone is at least 50 percent more that a life sentence without parole. She cited the case of Randy Lee Guzek who has been on death row in Oregon for 24 years and still has remaining appeals, costing Oregon taxpayers approximately $2.2 million.

Former Oregon State Penitentiary Warden Frank Thompson, who oversaw the two most recent state executions in 1996 and 1997, told the crowd, "Oregon should not be implementing policy that has been proven not to work." Both executions occurred during Kitzhaber's first stint as governor, which he has cited as a major reason for his moratorium on any further executions while he is governor.

Backers of death penalty repeal took solace in passage of similar legislation in Maryland. Governor Martin O'Malley signed the legislation last week, making Maryland the 18th state to outlaw the death penalty.

The only way Oregon can get rid of the death penalty is to pass a constitutional amendment undoing what voters approved in 1984. Oregon's original constitution made no provision for the death penalty. But legislation was adopted in 1864 to permit it in cases involving first-degree murder. Sheriffs were empowered to carry out executions until the 1903 Oregon legislature gave the job to the warden of the Oregon State Penitentiary.

Oregon voters outlawed the death penalty in 1964, by a 60 percent plurality. Then-Governor Mark Hatfield commuted the death sentences of three inmates two days after the election.

Voters changed their mind and reenacted the death penalty in 1978. The voter-approved statute required the death penalty in certain murder cases, but it was overturned in 1981 by the Oregon Supreme Court.

The last word by voters on the subject occurred in 1984 when they made it legal again and put that stamp of approval in the Oregon Constitution. A related measure was passed to require a separate sentencing hearing before a jury in aggravated murder cases, which was aimed at satisfying the Supreme Court's objection in its 1981 ruling.

There have been legal challenges in the U.S. Supreme Court that impacted Oregon's death penalty. A ruling in 1988 required 17 death penalty convictions to be reheard. Only eight of those were re-sentenced to death.

Given Oregon's zigzag history with the death penalty, DeMuniz is encouraging Kitzhaber or legislative leaders to name a blue ribbon commission to look at the evidence and the costs associated with the death penalty. He says a thorough-going study would generate facts that Oregon voters can weigh, as opposed to facing a barrage of ads for and against repeal.

DeMuniz and others who favor repeal would clearly like to see the legislature, perhaps in the 2015 session, put a measure on the ballot. That would save repeal advocates the estimated $500,000-plus cost of collecting signatures to place a constitutional amendment on the ballot.

But whenever the measure goes again to voters, the battle already has begun to eliminate capital punishment. Calls have rung out for the death penalty for the accused surviving Boston Marathon bomber. Meanwhile, expanded use of DNA testing has resulted in overturned convictions, including in capital cases. It is an emotional topic with passionate advocates and stirring anecdotes on both sides.