Oregon Supreme Court ruling could end death sentences for many

By Conrad Wilson (OPB) and Dirk VanderHart (OPB)
Oct. 7, 2021 6:02 p.m. Updated: Oct. 7, 2021 11:16 p.m.

Death penalty opponents expect the Thursday ruling will overturn many of the state’s death sentences.

Oregon Supreme Court in Salem, Ore., May 19, 2021.

Oregon Supreme Court in Salem, Ore., May 19, 2021.

Kristyna Wentz-Graff / OPB

The Oregon Supreme Court on Thursday struck down the death sentence of an Oregon inmate, in a major ruling that found legislators had fundamentally altered “prevailing societal standards” for executions with a recent law change.


It’s a finding that could ultimately eradicate the death sentences of dozens more inmates, attorneys say, largely gutting a capital punishment system that has scarcely been used in modern times.

With their ruling, justices dismissed safeguards lawmakers tried to build into a 2019 bill that reduced what murders qualify as “aggravated murder,” the only crime punishable by death in the state. Those safeguards, in theory, ensured that older crimes that were eligible for execution at the time a person was sentenced would remain capital offenses.

But Supreme Court justices disagreed, suggesting that any current inmates with a death sentence whose murders don’t meet current statutory guidelines for capital punishment could escape the death penalty.

“My expectation is that every death sentence that is currently in place will be overturned as a result of this,” said Jeffrey Ellis, co-director of the Oregon Capital Resource Center.

The ruling stems from the case of David Bartol, a member of a white supremacist gang who murdered a fellow inmate, Gavin Siscel, on June 4, 2013 in the Marion County Jail. At the time, Bartol was awaiting trial in a separate case. Siscel was serving a 30-day sentence for contempt of court.

The Oregon Supreme Court upheld Bartol’s conviction, but ordered him resentenced, presumably for first degree murder, which is punishable by life in prison rather than death. While state prosecutors were largely analyzing the bill Thursday, Marion County District Attorney Paige Clarkson joined Ellis in predicting far-reaching impacts.

“Today’s holding all but promises that anyone in Oregon previously lawfully sentenced to death under the prior definition of Aggravated Murder can now seek resentencing without the death penalty as an option,” Clarkson said in a statement. “David Bartol is likely only the first beneficiary in what will be a chain reaction of new sentences for the most horrific of crimes by the most dangerous of offenders.”

On top of the Supreme Court’s ruling Thursday, the Oregon Court of Appeals on Wednesday ordered a new trial for Jesse Lee Johnson, a man convicted of aggravated murder in 2004. Combined, the two decisions mean 23 people are currently sentenced to death in Oregon, down from 25 earlier this week.

Only two inmates have been executed in the state in the last 50 years, and both had ceased fighting their sentences. No Oregon inmate sentenced to death faces execution any time soon. Gov. Kate Brown has continued a moratorium on executions put into place in 2011 by then-Gov. John Kitzhaber.


With 2019′s Senate Bill 1013, lawmakers limited what crimes qualify as aggravated murder. The crime currently only applies to murders of children younger than 14 years old, murders of law-enforcement officers, terrorist attacks that kill at least two people, and prison killings carried out by someone who’d previously been convicted of murder. That’s a far narrower scope than what formerly constituted a capital offense.

While the law change included a provision that did not make it retroactive, the court’s ruling appears to do just that, relying on a section of the state’s Constitution that prohibits disproportionate punishments.

“The enactment of SB 1013 reflects a legislative determination that, regardless of when it was committed, the conduct that had constituted ‘aggravated murder’ does not fall within the narrow category of conduct for which the death penalty is appropriate,” the court wrote in its opinion. “Given that determination, we conclude that, although the legislature did not make SB 1013 retroactive as to sentences imposed before its effective date, maintaining defendant’s death sentence would violate Article I, section 16 [of the Oregon Constitution.]”

Whether or not the changes ushered in by SB 1013 would apply retroactively was a major point of contention when lawmakers passed the bill two years ago. The bill’s two central legislative champions, state Sen. Floyd Prozanski, D-Eugene, and former state Rep. Jennifer Williamson, D-Portland, assured their colleagues at the time that the bill would not apply to old crimes.

But evidence soon emerged that the change would have wider implications than some expected. In August 2019, an Oregon inmate who had formerly been sentenced to death was deemed ineligible for the death penalty upon re-trial because of the changes under SB 1013. That led some to discuss the possibility of retooling the law to ensure no older crimes would be impacted in a similar fashion, but those changes never occurred.

The Supreme Court’s ruling Thursday goes further than that 2019 case. It appears to toss aside any delineation between when a person was sentenced to death and the prevailing standards of the time. Instead, justices suggest that SB 1013 set new societal expectations for what was worthy of the death penalty, and that no one should be executed who does not meet those updated standards.

“SB 1013 creates a proportionality problem: It allows the execution of persons whose conduct the legislature has determined is not the worst of the worst and whose culpability is no different from those who cannot be executed,” the court ruled. “Under SB 1013, persons who engage in exactly the same conduct, at exactly the same time, can receive uniquely different sentences: one cannot be executed, but the other one can.”

Prozanski said Thursday he had only been able to look over part of the ruling, and was waiting on further clarity.

“It is a puzzling decision for me,” he said. “When we passed SB 1013, the intent was for it not to be retroactive. The court has now on its own review determined that it is applicable.”

Prozanski said he would consult legislative attorneys and the Oregon Department of Justice about what the ruling might mean, and whether there are steps lawmakers should take moving forward.

Justice Department leaders didn’t go into depth following the court’s ruling.

“We appreciate this guidance and thoughtful decision from the Oregon Supreme Court,” Oregon Attorney General Ellen Rosenblum said in a statement. “We will work diligently to implement this ruling in all affected cases.”

Williamson could immediately be reached for comment Thursday. The Oregon District Attorneys Association, which opposed SB 1013, was still analyzing the ruling and had no comment, according to executive director Michael Wu.