UPDATE (Aug. 13, 6:20 p.m. PT) — A new law curbing use of the death penalty in Oregon now appears to go further than its supporters intended, after a recent ruling that a former death row inmate cannot be sentenced to death upon retrial.

Now the Oregon Department of Justice is warning of unintended consequences from the law, and the state’s prosecutors are working to determine how many murder cases could be affected.

“We are scrambling,” said Tim Colahan, executive director of the Oregon District Attorneys Association. “DAs around the state, particularly those that have pending cases, are scrambling to try to decipher and see what exactly this means.” 

Meanwhile, lawmakers behind the new law said Tuesday they were surprised by the snafu and would seek a fix as soon as possible — even asking the governor to call a one-day special session next month.

In passing Senate Bill 1013 this year, lawmakers limited use of capital punishment to a narrow set of circumstances, including terrorist acts and murders of children or law enforcement officers. But officials also appeared to take pains to ensure those changes would apply to sentences moving forward — not cases where a sentence was pending or those where a punishment had already been handed down, but which were returned to a lower court.

They didn’t succeed, according to a memo sent to state prosecutors Aug. 9 by DOJ Solicitor General Ben Gutman.

“We at DOJ have concluded that the new, narrower definition of aggravated murder in SB 1013 does apply to pending cases — including cases that have been sent back for new penalty or guilt phases,” Gutman wrote in the memo, which was first reported on by the Oregonian/OregonLive but independently obtained by OPB. “That means that most of those cases could no longer be prosecuted as capital aggravated-murder cases; they presumably would have to be prosecuted as first-degree murder cases instead.”

Aggravated murder is the only capital crime on the books in Oregon. Rather than seeking to do away with the death penalty entirely, which would require a public vote, death penalty opponents in the Legislature took a more novel approach this year: changing the definition of aggravated murder.

Once the law kicks in on Sept. 29, only terrorist acts that kill at least two people; premeditated murders of children under 14 years old or law enforcement; and killings in prison by convicted murderers will qualify for the death penalty. Moving forward, many crimes that currently qualify as aggravated murder will be considered murder in the first degree, not punishable by death.

But lawmakers sought to make clear that crimes already prosecuted under current aggravated murder laws would not be affected. The Legislature even included a provision in a second bill, Senate Bill 1005, that many believed ensured that the changes would not apply to people receiving their original sentences before Jan. 1, 2020, or who were resentenced because of an appeal or post-conviction relief hearing.

Gutman’s memo says the DOJ first thought lawmakers had succeeded. The office took another look after a recent ruling in a 1998 Washington County murder case. In that case, Martin Johnson was convicted in 2001 of murdering a 15-year-old girl and sentenced to death. But the Oregon Supreme Court ruled in 2017 that Johnson did not have adequate representation at his initial trial and ordered a retrial.

In a recent motion, Johnson’s defense attorneys successfully argued the death penalty was no longer an option for their client.

“When you look at the plain language of [SB] 1005, it just doesn’t apply to our case,” said Dean Smith, one of the public defenders representing Johnson. “I don’t know what the intention of the legislators was, but if they wished to make it so that [SB] 1013 did not apply to people like Mr. Johnson, that was not that hard to do.”

The DOJ has since come to agree. Gutman wrote to district attorneys that SB 1005 did not do what lawmakers intended.

“I know that I have had conversations with many of you in which I suggested otherwise,” he wrote, “but after careful review of the issue in a Washington County case where the court ruled that the death penalty was not available, we have concluded that we don’t have a plausible basis for an appeal … .”

Gutman added: “This was a surprise to me. Many of us, myself included, were under the impression that SB 1005 ensured that SB 1013 would not apply to cases that had previously been tried and were being retried after an appeal or post-conviction relief.”

The DOJ’s position has a lot of weight. When murderers appeal their convictions, it is DOJ lawyers that typically take the lead on defending those sentences.

Sen. Floyd Prozanski, D-Eugene, and Rep. Jennifer Williamson, D-Portland, two of the central legislative champions of SB 1013, issued a statement Tuesday addressing the matter. 

“As our statements throughout the legislative process make clear, we always intended and were advised (by counsel) that this bill did not apply to re-sentencing and is not retroactive,” the statement said. “This is an unfortunate technical drafting error that we are glad the DOJ has identified. We will work to fix this issue as soon as possible.”

In a subsequent conversation, Prozanski told OPB he’ll ask Gov. Brown to call a special session next month to pass a tweak to the law.

“I’m calling upon my leadership and I will be calling upon the governor and her staff to do that,” Prozanski said. “I’m ready for us to move forward and fix the issue that was never intended to be an issue.”

Lawmakers are scheduled to be at the Capitol from Sept. 16-18 for legislative committee days, routine meetings where legislators take care of housekeeping matters between sessions.

Prozanski believes the Legislature can pass a tweak to the death penalty law in a single day, Sept. 18, before SB 1013 is scheduled to take effect.

Such one-day sessions aren’t unheard of — Brown called one in May 2018 to address a tax issue — but they require lawmakers of both parties to agree to suspend regular legislative rules and rely on a level of goodwill that was hard to come by in Salem at the end of this year’s legislative session.

Prozanski believes it’s possible, and planned to discuss the matter with Senate President Peter Courtney on Wednesday.

“Why would anyone want to extend some type of benefit to a person convicted of aggravated murder who should not be getting that benefit?” he said. “I don’t see why we would have difficulty.”

Absent a special session, no changes could be put in place before the legislative session scheduled in early 2020.

Colahan said the ODAA, which staunchly opposed the death penalty bill, is first working to determine how many cases could be impacted by the changes. Then it will work to figure out how the apparent gaffe happened.

“This was a bill that the DAs did not support,” said Colahan, the former longtime district attorney of Harney County. “We felt if there were going to be changes to the death penalty, it needed to be referred to the voters, but more importantly it needed much more vetting and review than what those bills got during the session.”

Death penalty opponents have made the case that Oregon’s capital punishment laws are problematic, ineffective and a waste of money. In signing the bill earlier this month, Brown echoed those arguments.

“Oregon’s death penalty is dysfunctional. It is costly and immoral,” Brown said. “Our state’s criminal justice system continues to impose death sentences, and send people to death row, even as we know that no one has been executed here in a generation.”

Only two inmates have been executed in the state in the last 50 years, and both had ceased fighting their sentences. As governor, Brown has continued a moratorium on executions put into place in 2011 by then-Gov. John Kitzhaber.