Sept. 26
MISSOURI----impending execution
Ahead of Bucklew execution, lawyers meet with Parson’s office to seek
commutation
Just 1 week before Russell Bucklew is set to be executed by the state, his
lawyers met with members of Gov. Mike Parson’s office to seek commutation.
Bucklew, now 51, was convicted of murder in 1997 for the March 1996 shooting
death of a man his ex-girlfriend had begun to live with. He had reportedly
stalked, kidnapped, beat, and raped his former girlfriend, who is now deceased.
Bucklew’s attorneys maintained he is now a “fundamentally different person”
from when he committed the crimes. They said he is “incredibly remorseful for
his conduct and the pain and suffering he caused,” in a petition for clemency
to the governor.
But furthermore, his attorneys alleged if the state continues with its plan to
execute Bucklew by lethal injection on Oct. 1, he will suffer an
“excruciatingly painful death” because of “unstable” tumors filled with blood
in his face, head, and throat. He suffers from a rare, incurable disease called
“cavernous hemangioma.”
“Russell’s compromised medical condition make[s] it highly likely that the
state’s protocol will cause a visually gruesome execution that will traumatize
corrections personnel and witnesses alike,” his attorneys alleged, providing
pictures of Bucklew’s face in the petition.
Bucklew’s attorneys met with members of the Governor’s Office Monday to ask he
take into consideration a host of factors — his unique medical condition, a
“false” psychiatric diagnosis during trial, and his remorse — in considering
clemency.
Laurence E. Komp, a federal public defender, praised those at the meeting for a
“productive” session.
“We’re thankful for the opportunity to present to them. I found they were
prepared and asked the kinds of questions you would expect anybody entrusted
with advising the governor. I felt it was a positive meeting,” Komp told The
Missouri Times. “What does that mean? I don’t know. I felt we were appreciative
of the opportunity.”
“We readily acknowledge that this is a horrible tragedy, and there is a just
punishment. Our dispute is that the appropriate punishment in this case is not
the death penalty,” Komp said.
“The Governor takes seriously both his duty and responsibility to see that
lawfully entered capital sentences are carried out in accordance with state
law,” Kelli Jones, Parson’s spokeswoman said in a statement. “Each case of
capital punishment will be thoroughly reviewed before any decision for pardon
or clemency is made.”
Jones noted, however, the Republican governor “has consistently supported
capital punishment when merited by the circumstances and all other legal
remedies have been exhausted and when due process has been satisfied.”
Elyse Max, the state director for Missourians for Alternatives to the Death
Penalty (MADP) said this case in particular could be a “stain” for Parson and
sets up Missouri to “define what is torture for the rest of the nation” when it
comes to capital punishment.
“This case is particularly troublesome because with the medical condition of
Russell Bucklew, we know it’s going to be a particularly tortuous execution,”
Max told The Missouri Times, noting MADP has planned a rally in the Capitol
building with citizens and lawmakers Thursday.
Bucklew’s case went all the way to the U.S. Supreme Court. In April, the
nation’s highest court issued a narrow ruling against Bucklew’s request for a
different manner of execution.
Should the state continue with its plans for execution next week, Bucklew will
become the 89th person to be put to death in Missouri since the U.S. Supreme
Court reaffirmed the use of capital punishment in 1976. He will be the 1st
under the Parson administration.
But Bucklew’s attorneys argue that he is reformed and not a danger to others.
“Russell is now 51-years-old, suffers from a host of debilitating medical
infirmities and has demonstrated through his actions that commuting his death
sentence would be an act of compassion leading to just punishment,” the
petition said.
Bucklew is being held at the Potosi Correctional Center near Mineral Point.
Aside from Bucklew, there are 22 other people in Missouri who are capital
offenders, according to the Missouri Department of Corrections.
Missouri allows the death penalty — by lethal injection or gas — which is
overseen by the Department of Corrections. The death penalty can be imposed on
individuals who are at least 18 years old and found to have deliberately
committed first-degree murder, a class A felony.
The law instructs jurors to consider certain evidence, including the
perpetrator’s past record, when considering the death penalty.
Individuals who are found to have a mental disease or inability to “understand
the nature and purpose of the punishment about to be imposed upon him or
matters in extenuation, arguments for clemency or reasons why the sentence
should not be carried out,” should not be executed, according to state law.
(source: The Missouri Times)
OKLAHOMA:
Oklahoma’s Death Row Prisoners Are Forced Into Permanent Solitary Confinement.
They are ‘Literally Buried Alive,’ Advocates Say.----Civil rights groups demand
change as other states move away from the practice of isolating people
sentenced to death.
A death sentence in Oklahoma means years in near total isolation on the state’s
death row, known as H Unit. According to advocates, death row prisoners are
trapped inside their cells for at least 22 hours a day. Their only escape is
death or a change in their sentence.
Though many states house people on death row in isolation, the conditions in H
Unit are exceptionally brutal, advocates say. Each cell, which is smaller than
a parking space, has two concrete bunks, a toilet, and sink. Before leaving the
cell, a prisoner’s hands and feet are shackled through a slot in the cell door,
the same slot that food trays are passed through. With no windows to the
outside and a land bank surrounding most of the building, residents live
effectively underground, according to advocates.
“People in H Unit are literally buried alive,” said David Fathi, director of
the ACLU National Prison Project.
Now advocates are seeking to end the practice. In July, several groups,
including the National Prison Project, the ACLU of Oklahoma, and the Prison Law
Office, sent a letter to the Oklahoma Department of Corrections demanding that
it stop placing death row prisoners in solitary confinement simply because they
are sentenced to death.
Instead, the authors wrote, death row prisoners’ housing should be determined
like any other prisoner’s, based on their behavior. If the department does not
voluntarily take action, the organizations will file suit in federal court,
according to the letter, which notes that “minds and bodies” are “irreparably
damaged” by solitary confinement. The department’s response is due Thursday,
according to the ACLU of Oklahoma. The department did not respond to The
Appeal’s questions on the use of permanent solitary confinement for prisoners
on death row.
“Hundreds of years ago, people who were sentenced to death would be physically
tortured before their execution,” said Fathi. “Now we psychologically torture
people before their execution.”
H Unit has a long and menacing history. Just weeks after it opened in 1991,
Amnesty International sent a letter to the director of the Oklahoma Department
of Corrections about the unit’s use of isolation, warning of potential
deleterious effects on the state’s death row prisoners. About 3 years later,
Amnesty International released a report on the unit, after a delegation visited
and spoke with prisoners and staff. The cells, according to one delegate’s
report, give “the appearance of what amounts to a concrete tomb.” He concluded
that “these conditions amount to inhuman and degrading treatment.”
The state’s death row is housed within the Oklahoma State Penitentiary in
McAlester. Forty-four of the state’s 47 death row prisoners live in H Unit,
according to the Department of Corrections website. The only woman serving a
death sentence is at a women’s prison, according to the department. One of the
two death-sentenced men not in H Unit is in a federal prison; the other is in a
county jail.
Exercise, which is supposed to be one hour a day five times a week, occurs in a
20-by-20-foot concrete room with an opaque skylight, according to the letter.
During visits, permitted on Fridays and weekends, prisoners and their visitors
speak by phone, separated by plexiglass.
“It’s complete sensory deprivation,” said Corene Kendrick, a staff attorney
with the Prison Law Office.
One of the few opportunities for human interaction was during religious
services, held twice a month, according to the advocacy groups’ letter. During
these services, prisoners—albeit shackled—prayed, sang, and spoke with
community members and each other.
“About 10 guys at a time would gather in a single space and there would be bars
between them and the religious volunteers holding the group religious
services,” said Megan Lambert, a staff attorney with the ACLU of Oklahoma.
“They could hold their Bibles, hold their psalm books, touch each other on the
shoulder, give each other hugs.”
But in 2009, then warden Randall Workman, banned group religious services.
That’s a violation of the Religious Land Use and Institutionalized Person Act,
according to the letter. The statute guarantees people who are incarcerated the
right to practice their religion unless the state can show there is a
“compelling government interest” to impede that right. In an interoffice memo
announcing the termination of “group congregation services,” no justification
was provided. Among the groups’ demands is that prison officials reinstate
services. The department did not respond to The Appeal’s questions about the
ban.
Mary’s brother, who has been on death row for more than 10 years, looked
forward to the services, one of his only connections to the outside world, she
said. To protect her brother from possible retaliation, The Appeal is not using
Mary’s real name. “He would go to these Bible church services and be talking to
the preacher and have discussions,” Mary told The Appeal. “That made him feel
normal for a while.”
During his time on death row, the loneliness, she said, has “changed him.” He
has talked to her about trying to end his life, she said. “He’s come down to
the very second, he’s getting ready to do it, and he wants to do it but he
can’t do it,” she said. “He just says, ‘I have to endure this.’”
Though permanent solitary confinement has been the default for many death rows
across the country, there is no “penological justification” for it, according
to Fathi. The advocates’ letter cites research that found that death-sentenced
prisoners tend to have fewer disciplinary infractions than other incarcerated
people.
“It’s completely irrational to give this one factor decisive control over where
and how a prisoner is housed,” he said.
Several corrections departments have begun to change their practices. In North
Carolina, for instance, people on death row are provided weekly religious
services, eat meals together, and are permitted in a common room for up to 16
hours a day, according to the letter.
Changes have been implemented in Virginia as well, as a result of a 2014
lawsuit filed by 5 death row prisoners. Those sentenced to death can now use a
common room for programs, religious services, and employment. They are also
provided contact visits and more time outside for recreation. Before these
changes, they spent about 23 hours a day in their cells for no other reason
than they had been sentenced to death, according to the suit.
“It’s completely irrational to give this one factor decisive control over where
and how a prisoner is housed.--David Fathi, ACLU National Prison Project
Last year in Pennsylvania, several groups, including Abolitionist Law Center,
the ACLU of Pennsylvania, and the ACLU National Prison Project, filed a class
action lawsuit, challenging the Pennsylvania Department of Corrections’s policy
of placing death row prisoners in permanent solitary confinement. The case is
still in litigation, according to Fathi. In July, former Graterford prison
superintendent Cynthia Link published an opinion piece on Pennlive.com about
the damage inflicted on prisoners on Pennsylvania’s death row and the officers
who work there.
“The Department of Corrections has thousands of highly professional and deeply
committed staff,” she wrote. “But nearly all of their training and expertise
are cast aside when it comes to maintaining condemned prisoners in their tiny
boxes for decades.”
Prisoners also filed suit against Louisiana for its practice of placing all
death row prisoners in solitary confinement. They are currently working on a
settlement agreement, the plaintiffs’ attorney, Betsy Ginsberg, told The
Appeal. Since the suit was filed in 2017, Ginsberg said, “there have been
significant changes.” Men on death row—there is only 1 woman in the state who
is serving a death sentence—have been granted access to congregate in classes
and religious services, and can eat together during lunch, she said.
Mary hopes the Oklahoma Department of Corrections will implement reforms for
her brother and the others condemned in the state who spend, on average, more
than 12 years on death row before their executions, according to the state
Department of Corrections website.
The last person executed in Oklahoma was Charles Frederick Warner, in 2015.
Later that year, the state’s then Attorney General Scott Pruitt imposed a
moratorium after it was learned that the state had planned to use a drug that
had not been approved for lethal injections to kill a death row prisoner,
according to The Intercept. In March of this year, Attorney General Mike Hunter
announced officials were close to finalizing a new method of execution using
nitrogen gas but, according to local reports, the state has had trouble
obtaining a device to administer the gas.
Although Mary doesn’t want her brother to die, she believes execution would be
more humane than for him to “live like he lives,” she said. “It’s hell on
Earth.”
(source: theappeal.org)
UTAH:
Fired lawyer says Weber County attorneys disparaged indigent defense, Utah
Supreme Court
An attorney suing Weber County for canceling his indigent defense contract is
calling attention to derogatory email comments officials made about a Utah
Supreme Court ruling and the public expense of paying for death row appeals.
Samuel Newton filed a U.S. District Court suit in January 2018 against the
county, alleging his free speech rights were violated when the county
commission pulled his contract after he complained publicly about miserly
capital defense funding.
In June this year, the county filed a motion asking the court to dismiss
Newton's suit. It said Newton's contract was canceled for "misrepresentations
and falsehood," not because he sought more money to defend murder convict
Douglas Lovell and complained to a judge and the media.
But in counter arguments filed this month, Newton's attorneys contended county
officials were "unhappy that Newton had exposed its unconstitutional funding
system and was making it the poster child for abolishing the entire death
penalty."
Weber is one of a handful of counties that do not pay into the state's indigent
defense fund. Newton asserts the county covering such expenses itself imperils
the 6th Amendment guarantee of adequate death penalty appeal representation.
Karra Porter, Newton's attorney in the civil suit, zeroed in on comments made
by County Attorney Chris Allred and David Wilson, who at the time headed the
civil division of the county attorney's office.
In a document filed Sept. 6, Porter referred to the April court deposition of
Allred and his explanation of comments he and Wilson made in email chains
during the Newton controversy in 2017.
Emails show that Wilson, responding to a newspaper story about Lovell's defense
and the Newton dispute July 17, 2017, said, “All of this for a defendant who
admitted killing a person and then a witness. The world must laugh at our
stupidity.”
Allred responded in his email, “I’m really sick of this BS! I at least want to
expose just how much Sam is getting paid for these two cases at taxpayer
expense.”
Another attorney in Allred's office then was assigned to find out how much the
state paid Newton in an unrelated death penalty case, that of Floyd Maestas in
Salt Lake County.
Later that day, Wilson emailed regarding Lovell, “So we have never reached that
point since the Utah Supreme Court doesn’t want this admitted murderer to die.”
County officials, Porter wrote, "were angry or embarrassed at having their
unconstitutional death penalty system exposed, especially given (Wilson's)
derogation of the Utah Supreme Court’s protection of Lovell’s constitutional
rights."
She said county officials tracked media coverage and "sought to retaliate"
against Newton for unflattering news stories and editorials.
In Allred's deposition, Porter asked Allred if Wilson's comments raised "red
flags" and whether he considered removing Wilson from having any role with
funding the Lovell case.
"Did it cause you any concern that Mr. Wilson's personal views about the death
penalty, at least relating to Doug Lovell, were influencing his actions?" she
asked.
"I know that he takes the Constitution and the obligation of our office very
seriously," Allred said. "I didn't doubt for one minute that he would do
anything that would intentionally or otherwise run afoul of his constitutional
obligations."
Porter then asked, "Did it cause you any concerns to see someone involved in
the decision-making process in a death penalty appeal to use words such as
'since the Utah Supreme Court doesn't want this admitted murderer to die'?"
"It did not cause me concern," Allred said. "It sounded like Mr. Wilson was
blowing off some steam. I think that expresses some frustration with the
Supreme Court. I don't think it maligns the Supreme Court."
Allred said he and his attorneys were reacting to Newton "submitting requests
for 700 hours that aren't very well supported, suggesting in the newspapers
that he couldn't put food on the table if we wouldn't pay him what he was
asking for, suggesting that the county wasn't paying him and the reason was for
some sort of nefarious purposes ..."
Allred said Newton "suggested that he wanted nobody to ask him any questions
about money anymore, which suggested that he wanted an open checkbook. That was
a concern."
Allred noted Lovell's case has been going on since 1985, when Joyce Yost of
South Ogden was raped and later killed.
"It's been going on for many, many years," Allred said. "I know that's a cause
of frustration, not only for Mr. Wilson, but some people in general feel that
that's problematic that the legal system takes so long to accomplish things."
Lovell was convicted in a 2nd trial in 2015 and sentenced to death again.
In 2nd District Court this month and next, a judge is hearing testimony and
arguments on whether Lovell received ineffective assistance of counsel during
his most recent jury trial.
After Newton withdrew from the case in 2017, the county hired Colleen Coebergh
to represent Lovell.
The outcome of Newton's civil suit is now in the hands of U.S. District Judge
Howard C. Nielson Jr.
(source: Standard-Examiner)
CALIFORNIA:
McStay family slaying: Lead defense attorney seeks withdrawal from case, delay
of Merritt’s sentencing ---- The motions include a sealed document that
explains the reasons for James McGee's request to leave the case.
The lead defense attorney for Charles “Chase” Merritt, convicted in June of
slaying the 4-member McStay family of Fallbrook, has filed a motion to withdraw
from the case and asked to delay the scheduled Friday, Sept. 27, sentencing of
his client.
In a court filing, James E. McGee said a conflict of interest has emerged that
prevents him and a lawyer in his firm from continuing to represent Merritt:
“Counsel is informed and believes that the motions Mr. Merritt wishes to bring
has created an actual conflict of interest.”
The apparent conflict is not spelled out in the paperwork.
Merritt, 62, was convicted of 1st-degree murder in the deaths of former
business associate Joseph McStay, 40, his wife, Summer, 43, and their 2
children, Gianni, 4, and Joseph Jr., 3. Jurors recommended the death penalty.
Co-defense counsel Rajan Maline said on Wednesday that he will not join the
motion.
“Yes, Mr. McGee filed a motion to be relieved,” Maline said. “I do not plan to
leave Mr. Merritt until justice is served, and that means until he is free.”
The motion is scheduled to be considered during Friday’s hearing at the San
Bernardino Justice Center.
The family had recently moved from San Clemente and disappeared in February
2010, with their bodies found in shallow graves near Victorville almost 4 years
later. Merritt was arrested and charged with the murders a year later.
Merritt, who lived in Rancho Cucamonga, and McStay worked together to sell
large-scale water features.< P> Prosecutors said McStay was cutting Merritt out
of the business because of poor performance. Merritt was also told he owed
McStay nearly $43,000 shortly before the family disappeared, they said. Defense
attorneys said the business was growing, that McStay liked Merritt’s work, and
that Merritt’s prospects for continued collaboration with McStay were too
lucrative to support the prosecution’s theory. (source: San Bernardino Sun)
OREGON:
Oregon’s Death Penalty Is Almost Nonexistent—So Why Can’t We Get Rid of It?
It’s nearly impossible to die by state execution in Oregon. After September 29,
it will become even less likely.
First, a person will need to commit a crime that meets Oregon’s recently
revised definition of aggravated murder. That means someone will need to be
accused of either committing a murder that is an act of terrorism;
intentionally killing a person younger than 14; intentionally killing a police
or corrections officer; killing a fellow prison inmate; or—if they’ve already
been convicted of aggravated murder—committing another murder.
Then the person’s case will have to go to trial, cycle through sentencing and
appeals proceedings—a process that can drag on for decades—and come out the
other side sitting on death row. But that’s not the end of the line. For the
execution to be carried out, the governor of Oregon will need to lift the state
moratorium on executions, which has been in place since 2011. In that case, the
Oregon Department of Corrections (DOC) would need to restock its lethal
injection supply (it hasn’t bothered carrying it since the moratorium went into
effect), and likely train a crew of employees who have never before
participated in an execution.
If all those things happen, then a person could be put to death in a
state-sanctioned execution in Oregon. It would be the 1st time a person has
been executed by the state since 1997.
The odds of this happening anytime soon are slim, especially after Oregon’s
Senate Bill 1013 becomes law on September 29. SB 1013, passed in the 2019
legislative session, narrows the definition of aggravated murder—the only crime
punishable by death in Oregon—to further lessen the chances of a person dying
in a state execution. Proponents say the new law will help limit the use of a
policy that is a fiscal, logistical, and emotional strain on Oregon’s criminal
justice system.
“You have defense attorneys, judges, prosecutors, corrections officers,
victims’ family members all going through this charade of the death penalty
when everybody knows it’s not going to be implemented,” says Bobbin Singh, the
executive director of the Oregon Justice Resource Center. Singh is among the
most vocal supporters of SB 1013.
“I would go so far as to say [district attorneys] are acting negligently in
trying to pursue the death penalty,” he says. “Because they’re pursuing a
punishment they know can’t be implemented in this state.”
Not everyone agrees. A dispute over the scope of SB 1013, and how it will apply
to the 33 people currently sitting on Oregon’s death row, almost drove Governor
Kate Brown to hold a special legislative session this month to amend the
contended portion of the law.
While Brown won’t be letting the state legislature rehash the bill in a special
session, the story behind SB 1013—and the animus it’s inspired since being
signed into law—raises a question: What’s keeping Oregon from abolishing the
death penalty?
“Aggravated murder cases that result in death sentences are more complex: More
time, more effort, and more resources means more money on average, per case.
This is a simple fact.”
Oregon’s tenuous relationship with capital punishment stretches back to
1850—before the territory officially became a state—when it carried out its
first state-sanctioned execution by hanging five Cayuse tribal men accused of
killing a Pro- testant missionary in Oregon City. The death penalty was
officially legalized in 1864 when Oregon gained statehood, only to be repealed
by voters 50 years later. Between 1914 and 1984, the state flip-flopped on the
death penalty six times—abolishing and then reinstating it again through ballot
measures and Oregon Supreme Court decisions. Most recently, a 1984 ballot
measure legalizing the death penalty passed with 55 % of the vote.
“No other state has a history like that,” says Robert Dunham, executive
director of the Death Penalty Information Center (DPIC), a national think tank
that analyzes capital punishment policies.
Since Oregon’s death penalty was reinstated in 1984, only 2 people have been
executed, in 1996 and 1997.
But while Oregon’s use of capital punishment has been limited in the last 35
years, the death penalty has heavily burdened the state’s court system. Under
Oregon law, the only crime punishable by death is aggravated murder, a term
used to describe murder that is premeditated or meets one of the legal criteria
for being “especially egregious,” such as being accompanied by torture or
involving more than one victim. Not all aggravated murder cases end up being
death penalty cases—but those that are can cost the state between $800,000 and
$1 million more to prosecute than standard aggravated murder cases, according
to a 2016 cost study authored by Aliza Kaplan, a professor at Lewis & Clark Law
School and co-founder of the Oregon Innocence Project.
That’s because death penalty trials require hiring pricey “death qualified”
defense attorneys, tracking down multiple subject experts and researchers,
orchestrating an unusually rigorous jury selection process, and allowing for a
decades-long appeals process.
“Aggravated murder cases that result in death sentences are more complex: More
time, more effort, and more resources means more money on average, per case,”
reads the study. “This is a simple fact.”
Further complicating matters is the fact that, unlike other states with the
death penalty, Oregon does not require prosecutors to notify defense lawyers
before the case begins whether they will be pursuing the death penalty. This
means that even cases that don’t end up being tried as death penalty cases
might still require all the preparation that capital punishment cases call for.
“[In Oregon,] death’s always on the table, until it’s not,” Kaplan told the
Mercury. “The defense lawyers then get into death qualified mode, and lawyers
and investigators and mitigators are all assigned. This person has a huge team,
and they’re moving forward like it’s a death penalty case.”
As part of the study, Kaplan and her colleagues interviewed a wide range of
people in Oregon’s criminal justice system—including prosecutors, defense
attorneys, judges, and researchers—about how capital punishment affects their
work. The overwhelming sentiment was that the death penalty is a detriment to
people’s work lives and psyches. One county district attorney told Kaplan that
he once spent 40 hours a week for many months preparing to try a death penalty
case, forcing him to cram the other work his job required outside of those 40
hours.
“What we came up with is that the cost of the death penalty is obviously more
than the money—it really takes a major toll on everybody involved in the
system,” Kaplan says. “In general, nobody’s really for it. Tons of
people—people I wouldn’t expect, from the Department of Justice and the judges
we spoke to—said outright, ‘If the death penalty went away tomorrow, I don’t
think anyone would be upset.’”
And in the unlikely event a death sentence is carried out in Oregon, things get
even more complicated. Semon Frank Thompson was the superintendent of the
Oregon State Penitentiary during the last two executions in the 1990s. No prior
executions had been carried out since the 1960s, when death by lethal gas was
the preferred execution method in Oregon. Thompson had the task of developing a
new protocol for lethal injection—thought at the time to be the most humane
form of execution—and training his team to carry it out. The training took so
much time that his team accrued a total of $80,000 in overtime.
“None of these [policies] were in place from the moment I received the death
warrant,” Thompson remembers. “That was an overwhelming sense of sudden
responsibility.”
Thompson is now a death penalty abolitionist, citing the psychological toll the
executions took on him and his employees. He remembers his employees telling
him they’d lost sleep after taking part in the execution, and he believes some
of them may have suffered from post-traumatic stress disorder.
“I cannot express how much emotional pressure that put on all of us,” he says.
The lethal injection process Thompson and his team worried over for months has
never again been put to use by the state of Oregon.
“In 1984, when the voters decided to reinstate the death penalty in Oregon,
they did so for the crime of aggravated murder. [Voters] made an informed
decision about what they wanted.”
SB 1013, which was signed into law by Brown in August, will lessen the death
penalty’s impact on Oregon’s criminal justice system. The law essentially
limits the definition of aggravated murder in Oregon so severely that, in the
future, very few cases will be eligible for the death penalty. It doesn’t
abolish Oregon’s death row, nor make Oregon’s moratorium on executions
permanent—but according to experts, only a handful of Oregon cases that
resulted in death sentences would still qualify as a death penalty case under
the new law. That means significantly less money and fewer resources will be
spent to determine whether a defendant will be sent to death row, waiting for
an execution that will probably never come.
SB 1013 passed without the support of the Oregon District Attorneys Association
(ODAA), an advocacy group for Oregon’s county prosecutors. Katie Suver, a
deputy DA in Marion County who spoke to the Mercury on behalf of ODAA, called
the legislation “hastily crafted” and “an end-run around the will of the
voters.”
“In 1984, when the voters decided to reinstate the death penalty in Oregon,
they did so for the crime of aggravated murder,” Suver says. “[Voters] made an
informed decision about what they wanted.”
Suver has been involved in prosecuting 4 death penalty cases throughout her
career. She says she is personally not opposed to the death penalty when
dealing with particularly egregious crimes, or when the defendant needs the
individualized attention death row provides to ensure they won’t kill again.
“That said, my job as a prosecutor is to uphold the law and follow the law,”
says Suver. “If there was no death penalty in Oregon, my job would be exactly
the same the next day: to uphold and follow the law.”
Suver says that ODAA’s position on SB 1013 was constant throughout the
legislative process. But the conversation around the bill didn’t heat up until
after this year’s legislative session ended. A decision on a death penalty
retrial case in Washington County brought to light a misunderstanding over
whether the law was retroactive, applying to cases that were decided before the
bill was signed into law. The law will not automatically free anyone on death
row, but it will apply to people previously sentenced to death who are granted
a retrial through the appeals process.
Arguments erupted over whether those previously sentenced to death deserve the
same treatment as any other defendant when re-tried. The ODAA then led the push
to hold a special legislative session and “fix” the bill.
Brown ultimately declined to hold a special session, saying she had not
received a proper proposal for amending the new law. But in the weeks leading
up to Brown’s decision, death row inmates’ names and cases from years or
decades ago were thrust into the spotlight, showing up in media reports and
political communications about the law. Oregon State Representative Jennifer
Williamson—one of the bill’s champions—found herself the subject of intense
scrutiny, with many blaming her for causing the confusion over the bill’s
retroactivity. In an email to the Mercury, Williamson characterized her
opponents’ actions as attempts to “create confusion and fear around the new
law.”
“I knew there would be pushback,” Williamson wrote. “I didn’t expect it would
take the form it did or become as personal as it has. I certainly didn’t expect
experienced lawyers to throw up their hands and suddenly claim they didn’t
understand basic concepts of criminal and constitutional law or understand a
bill as written.”
The death penalty is so arbitrary that each guy fears he is going to be the one
who gets it.”
Kaplan’s cost study does identify one reason why Oregon prosecutors may be
reluctant to narrow the state’s use of the death penalty: It can be a useful
tool when working out plea bargains. Kaplan interviewed ODAA members, including
Clackamas County DA John Foote, about how plea bargaining works in cases that
have the potential to end in death sentences.
According to the study, the ODAA was clear in a letter to Kaplan that “plea
bargaining must not be misconstrued as district attorneys leveraging the
possibility of death in the interest of exacting a plea.” But individual
instances laid out in the study suggest the death penalty is a powerful tool a
DA can wield when negotiating with defense teams. In one case described in the
study, a DA was eager to have a defendant imprisoned for life because “he felt
that the defendant was a very dangerous person.”
“Because the evidence was complex and circumstantial, both the prosecution team
and the judge believed it would be preferable to have a bench trial,” the study
reads. “The defendant agreed to waive a jury trial and leave the case
consolidated for a bench trial in exchange for the prosecution’s agreement not
to seek the death sentence.”
Jeff Ellis, a Portland defense attorney who has represented multiple inmates on
death row, is quoted in the cost study. Ellis says that from the defense’s
point of view, the possibility of the death penalty—moratorium or not—can have
a big impact on a defendant’s frame of mind.
“The death penalty is so arbitrary,” Ellis says in the study, “that each guy
fears he is going to be the one who gets it.”
Suver dismisses the idea that the possibility of the death penalty is ever used
as a bargaining chip.
“Looking at the question of whether leveraging the death penalty is something
I’ve seen in practice—the answer is no,” she says. No matter how narrowly the
legislature redefines aggravated murder, lawmakers can’t completely overturn
the death penalty in Oregon. Because it is written into the state’s
constitution, repealing it would need to be done by statewide vote. Since the
turn of the 21st century, nine US states have abolished the death penalty—but
none of those states had to take it to a public vote.
While a ballot measure would be the most direct way to abolish the death
penalty in Oregon, few criminal justice reform advocates are eager to see an
electoral fight over capital punishment. Both Williamson and Sen. Floyd
Prozanski, another champion of SB 1013, told the Mercury they feared putting
the issue to a vote would bring about even more of the fear-mongering politics
that the fight over SB 1013 brought to the surface.
As a teenager growing up in Texas, Prozanski’s sister was murdered. He says he
knows how easily emotion can bleed into issues of policy.
“I don’t think it’s fair to voters to ask them to make those kinds of
decisions,” Prozanski says. “When I heard my sister was murdered, the first
thing I wanted to do was grab a gun and go hunt down the guy who did it.”
Dunham, of the Death Penalty Information Center, also warns against putting the
issue to a statewide vote.
“When the pandering disappears and the fear-based decision making disappears,
and when the policy gets judged as a policy, that’s when repeal is most likely
to happen,” he says. “That is why many death penalty opponents don’t like going
for a referendum: Because a referenda campaign is especially susceptible to
fear-mongering.”
There are other ways Oregon could continue to limit the role of the death
penalty. Brown could commute the sentences of all death row inmates; the
legislature could further narrow the definition of aggravated murder; or the
state Supreme Court could decide that Oregon’s use of the death penalty
conflicts with the state constitution.
As it stands now, Oregon is in a state of contradiction.
“It almost feels like we really want to have [the death penalty],” says Kaplan,
“but we never want to use it.”
“There’s definitely people in our criminal justice system that like having that
toughness behind them and want to use that,” Kaplan adds. “But at the same
time, for so many reasons—legal, moral, cost, all these other reasons—we’ve
never been able to make it work. So there is just this unbelievable tension in
wanting it, keeping it, feeling so strongly about it, and then on the other
hand not being able to get it right, or not being able to move forward. It just
seems to go on and on and on.”
In the course of reporting this story, the Mercury emailed the Oregon
Department of Corrections with a question: If the moratorium on the death
penalty were lifted tomorrow, and the DOC is called upon to begin executing
people again, what would it need to do to prepare?
A DOC spokesperson declined to answer.
“We cannot speculate,” she wrote, “about theoretical situations and events.”
(source: Blair Stenvick, The Portland Mercury)
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