After heated debate in the last month over a new law narrowing Oregon's death penalty, an expanding array of public officials now support a special session to tweak the policy.
Republican leaders in the House and Senate now say they’re on board with a minor “fix” to changes affecting which offenders are eligible for a death sentence. The governor, attorney general and one of the bill’s chief authors are supportive. The state’s prosecutors are mounting a full-court press for a session.
But more than a week after Gov. Kate Brown signaled she was willing to convene lawmakers later this month, it's still unclear whether the death penalty law will be changed before it takes effect on Sept. 29. The proposed special session faces political headwinds and is being criticized by some as hypocritical.
“There is no consensus whether the law needs to be amended and there is no agreement among legislators on appropriate next steps,” House Speaker Tina Kotek, D-Portland, said in a statement to OPB last week.
As presiding officer of the House, Kotek has a lot of say in whether a special session is ultimately successful. While support in the Senate is seen as likely, House lawmakers’ position on the matter is still unclear.
House Majority Leader Barbara Smith Warner, D-Portland, agrees with Kotek’s stance “and also understands that there are a variety of views among the [Democratic] caucus,” a spokesman said.
Uncertainty could derail the prospect of a session. On Aug. 28, Brown announced she would only convene lawmakers if they could craft a narrow bill that had support to pass. That task has fallen primarily to state Sen. Floyd Prozanski, D-Eugene, a central proponent of the bill that has caused controversy, Senate Bill 1013.
What Is SB 1013?
SB 1013 modified the definition of aggravated murder, the state’s only capital crime, effectively reducing prosecutors’ ability to seek the death penalty.
As it made its way through the Legislature, SB 1013 was sold, to lawmakers and the public alike, as not being “retroactive.” But the precise definition of that word wasn’t discussed — a fact the bill’s proponents acknowledge led to confusion.
Many people believed the changes would not apply to any past cases, when in fact they currently have bearing when formerly convicted defendants are granted new trials or sentencing hearings because of improprieties in their case.
Prosecutors, who have consistently opposed the bill, contend they were blindsided by this aspect of SB 1013. They only learned of its true implications, they say, after a former death row inmate named Martin Johnson was deemed ineligible for the death penalty on retrial in Washington County. In a memo shortly after that decision, an official with the Oregon Department of Justice said he was also unaware the changes would extend so far.
That stance has drawn derision from groups that support SB 1013.
"The fact that DAs and the DOJ didn't read the bill is ludicrous to me," said Bobbin Singh, executive director of the Oregon Justice Resource Center. "Advocates and attorneys read the plain language and knew what it did. They're openly admitting they didn't read the bill."
While prosecutors initially advocated a number of possibilities — including repealing SB 1013 outright — they have since landed on a proposal that has support from Brown, Prozanski, and others.
The change would ensure that new, narrower death penalty requirements would apply only to crimes that occur on or after Sept. 29, when the bill takes effect.
Change, But How?
“This fix needs to occur via a special session and before September 29, 2019,” Washington County District Attorney Kevin Barton wrote in a letter to lawmakers on Sept. 5. “If the fix does not occur before then, it will be too late for all of Oregon’s current death row cases because they will receive the benefits of the current flawed version of SB 1013…”
But Singh and other like-minded advocates say such a change would amount to capitulation. And they raise a factor that is likely complicating the notion of a special session: lawmakers that oppose the death penalty are now in the awkward position of being asked to, effectively, make it stronger.
"It's incredibly unfortunate that you have Democrats that profess to be against the death penalty asking for a special session to change the law so you could potentially put people back on death row," Singh said.
Similar sentiments are being aired nationally. Prominent civil rights activist Shaun King tweeted on Sept. 3 that another one of SB 1013's chief supporters, Rep. Jennifer Williamson, D-Portland, was "caving to prosecutors so that more people are at risk of being executed."
The tweet somewhat oversimplifies the public position taken by Williamson, who serves as chair of the House Judiciary Committee and, until recently, House Majority Leader. She has consistently defended the bill, saying it does what was intended, but has also said she would not oppose Prozanski’s call for a special session to change it.
Other death penalty opponents have taken a similar tack. Steve Kanter, emeritus dean of Lewis & Clark Law School, testified in favor of SB 1013 repeatedly this year and recently co-authored an op-ed defending the bill.
But in a recent conversation Kanter acknowledged the bill had sowed confusion, and said he’d be open to minor changes.
“Whatever they do is fine,” Kanter said. “The one danger of a special session, if they have one, is mischief can occur.”
'This Thing Is Too Risky'
Senate leadership is rumored to be open to a special session, but the chamber’s presiding officer declined to say as much in an Aug. 29 interview.
“This thing is too risky,” said Senate President Peter Courtney, D-Salem. “You don’t have everybody saying the same thing.”
Courtney said he was “laser focused” on trying to find agreement, and that he’d “make the best of whatever situation I’m up against,” but refused to say whether he supported amending SB 1013. “I have my own opinions,” he said. “You’re not going to find them out right now.”
Meanwhile, Republicans have offered shifting perspectives. House Minority Leader Carl Wilson, R-Grants Pass, issued a statement on Aug. 28 cautioning lawmakers against “rushing a ‘fix’ through a day-long session in a hastily assembled committee.”
Wilson had changed his tune somewhat in a Sept. 5 statement, saying: “With a little over three weeks left before SB 1013 becomes effective, it is time for action.” Senate Minority Leader Herman Baertschiger Jr., R-Grants Pass, has also suggested he would support a session to pass a change to the bill.
Republican buy-in will be crucial for any special session to succeed. Not only would the minority party have to concede to suspending legislative rules in order for lawmakers to be able to adjourn in one day, their votes might be needed in order to pass the change Brown and others are looking for.
Lawmakers are scheduled to meet Sept. 16-18 to complete routine housekeeping matters. Brown has indicated she’s willing to call a special session during that period — which would limit how much additional taxpayer money is spent on staffing — or the following week.