It’s been almost 20 years since anyone was put to death in Oregon — 54 if you don’t count death row inmates who gave up their appeals and essentially volunteered to be executed.
In fact, when announcing a moratorium on Oregon’s death penalty in 2011, then-Gov. John Kitzhaber said only those who say they’re ready end up being executed in Oregon.
“My hope and indeed my intention in taking this action today is to bring about a long due reevaluation of our current policy and our current system of capital punishment,” Kitzhaber said five years ago.
Since then, three former Oregon chief justices have called for an end to the death penalty. But Kitzhaber’s hoped-for “reevaluation” has not happened.
After she came to office last year, Gov. Kate Brown said she would assemble a panel to look into the death penalty in Oregon. But her press secretary, Brian Hockaday, says she’s now waiting for recommendations from her staff.
“She has asked general counsel to look into the matter on a national level and then report back to her,” he said. “And then that report will inform the policy direction moving forward.”
It’s unclear when that report will be finished. Brown has said she’ll let voters know what she plans to do about capital punishment as governor before the election — though she didn’t specify which election.
Meanwhile, 34 inmates remain on death row. They’re in their cells for 23 hours a day and live in a sort of legal limbo.
Take Gary Haugen. He was originally sent to prison at 19 for murdering his girlfriend’s mother, though he received his death sentence for killing another inmate.
Back in 2011, when Kitzhaber declared a moratorium on executions, Haugen said he wanted to be put to death.
“Hey, it’s hell,” he said of prison. “To be away from your family, be away from your loved ones, watch all your people die while you sit in this little 9-by-8 cage.”
That was then. Today, Haugen says he doesn’t want to die. His lawyer, Jeff Ellis, says Haugen and other death-row inmates are being mistreated by the state.
“The Oregon law says that you can’t simply let an execution date go by and do nothing,” Ellis said. “You have to take some action in court.”
In a recent hearing, Judge Vance Day gave Haugen an execution date — Jan. 23, 2017. But it’s not clear whether that will stick.
For one thing, Day relayed the new date orally, not in writing.
For another, it’s not clear whether Brown will follow Kitzhaber’s lead in refusing to let the state carry out death sentences.
“I’m going to fight for my life,” Haugen said in a recent telephone interview. “I mean not only have I been on the longest reprieve in the history of our country, my death warrant expired. And under statute, them doing nothing about it means that my sentence expired. And if my sentence expired, why am I still sitting on death row?”
As distasteful as people might find Haugen and his crimes, he may have a legal point.
In a dissenting opinion, U.S. Supreme Court Justice Stephen Breyer recently questioned the constitutionality of the death penalty. He said it suffers from “unconscionably long delays.”
Carrie Leonetti, a University of Oregon School of Law associate professor, agrees.
“Coming to terms with your death once would be hard. But coming to terms with your death once every 10 years for 30 or 40 years, I can’t actually imagine the psychological torture,” she said.
Still, Aliza Kaplan, a professor at Lewis & Clark Law School, doesn’t think Oregon needs to rush to come up with a new execution plan.
“Cases are moving forward, just like they were before the moratorium,” she said. “There’s no likelihood that any of them are going to be executed anytime soon.”
In a way, the experts say, this legal uncertainty — we have the death penalty, but it’s unclear whether the governor will continue Kitzhaber’s refusal to use it — fits Oregon well.
Prosecutors can continue to use the death penalty as a tool, say to convince a defendant accused of killing someone to consider a plea deal. At least until Brown makes her decision, politicians can continue to embrace a general reluctance to put anyone to death.