Oregon lawmakers and death penalty opponents are considering a roundabout approach at gutting the state's capital punishment law — without sending it to voters.
Since 1984, the death penalty has been enshrined in the Oregon Constitution, meaning it can only be removed by a vote of the people. But under proposals being discussed by Rep. Mitch Greenlick, D-Portland, Sen. Floyd Prozanski, D-Eugene, and others, the policy could be largely dismantled next year via a vote of the Legislature.
“I’m going to try to deal with it right now on a statutory basis,” Greenlick told OPB.
The precise details of the bills Greenlick and Prozanski are considering are still being worked out. But lawmakers and death penalty opponents all describe some general ideas.
Under one possible proposal, the Legislature would alter the definition of aggravated murder, the only crime punishable by death in Oregon. Currently, the definition includes elements such as multiple victims, the inclusion of torture in the crime, an exchange of payment for a killing, and a list of victims such as children or law enforcement officers.
Greenlick and others are considering a bill that would scrub those factors. Instead, the definition of the crime would be limited to deaths resulting from acts of domestic or international terrorism. Elements of a crime that currently meet the standard for aggravated murder would be placed into other degrees of homicide, not punishable by death, they say.
“What’s happened in Oregon is we’ve created an incredibly broad category,” said Jeff Ellis, a Portland attorney and board member of Oregonians for Alternatives to the Death Penalty who is consulting on the proposal. “It’s virtually impossible to commit a murder without committing an aggravated murder.”
By altering the crime’s definition, Ellis said, lawmakers would focus on the “worst of the worst” murders.
One thing that’s not yet clear is whether proponents of the change will seek to make the change retroactive, a move that would result in Oregon’s death row being cleared out. It's become a matter of debate among death penalty opponents, because some prisoners on death row were sentenced before jurors were given an option of sentencing them to life without parole. That means they’d be eligible for parole if a change was made retroactive.
Ellis estimated that six or seven of Oregon's 33 death row inmates would be parole-eligible under that change.
A second possible proposal, Greenlick and Ellis say, would change the questions that jurors must answer in capital murder cases in order to sentence a defendant to death. The change would be aimed at making such sentences less likely.
Currently, state law requires jurors to answer “yes” to three or four questions during the sentencing phase, depending on the facts of the trial. Those are:
- Whether the person committed the crime deliberately
- Whether there is a "probability" they commit further violence in the future
- Whether there is evidence the defendant acted unreasonably in response to provocation by the victim
- Whether they should be sentenced to death
Ellis says two changes should be made to that list. First, he'd like to get rid of the second question, which asks jurors to predict future violence. Death penalty opponents say it's an impossible question to accurately answer, and point to studies that suggest jurors frequently get it wrong.
Supporters of the death penalty disagree, arguing that the question is thoughtful and presents another hurdle to prosecutors seeking a death sentence.
“It creates a heavy burden and it also requires that the state produce a great deal of evidence,” said Clatsop County District Attorney Josh Marquis, who has long argued in favor of capital punishment.
Ellis also proposes changing the standard by which jurors must answer “yes” to the final question, whether a defendant should be sentenced to death. It is the only question on the list that does not require jurors to be sure “beyond a reasonable doubt.”
"This is something that essentially says, 'Let's just attach the traditional criminal burden of proof,'" Ellis said.
The ideas are a novel approach to curbing the death penalty in a state with a fickle history on the subject. Beginning in 1894, capital punishment was enacted and repealed three separate times before voters' most recent approval in 1984.
Executions have been on hold since former Gov. John Kitzhaber announced a moratorium in 2011. Gov. Kate Brown has continued the moratorium.
Privately, death penalty opponents concede it would be a heavy lift convincing Oregon voters to undo capital punishment yet again. So in a summit earlier this year, death penalty opponents and lawmakers began thinking up ways to change the system through legislation rather than a statewide vote.
Still, the political viability of the proposals Greenlick and Prozanski are considering is unclear.
Prozanski chairs the Senate Committee on Judiciary, so he could call a proposal up for a hearing there. Greenlick sits on the House Judiciary Committee, and said recently he would press committee chair Rep. Jeff Barker, D-Aloha, to hold a vote on the matter.
House Majority Leader Jennifer Williamson, D-Portland, an attorney who is deeply involved in justice issues, told OPB she’ll be a chief sponsor for the bills that emerge.
“It's not abolishing the death penalty in Oregon,” said Williamson, who generally opposes capital punishment. “It's just making sure it's an available sentence in the most egregious crimes."
But there will be vocal opposition from people such as Marquis, who is retiring as a prosecutor next month.
“I certainly plan to become more involved [in the issue] than I was when I was in office,” he said. “I will be less constrained by my colleagues.”
Marquis is quick to note that capital punishment isn’t a purely partisan issue — some conservatives oppose it, some liberals support it. He predicted that the bills under discussion might not be a slam dunk in the Oregon House and Senate, where Democrats just won supermajorities.
“It’s not hard for Jennifer Williamson or Floyd Prozanski or Mitch [Greenlick] to make this argument,” Marquis said. “But if you start thinking about some of the Democratic legislators who just got elected from Washington County and Clackamas County and other places like that, that’s a bridge pretty far to go. Do you really want to go back to your constituents and say, ‘I’m the person who took the guy who murdered a little girl off death row because we’ve decided to change the definition’?”
OPB reporter Conrad Wilson contributed to this report.