by Mark Wilson
“I have long believed that justice is not advanced by taking a life, and the state should not be in the business of executing people – even if a terrible crime placed them in prison,” said outgoing Oregon Gov. Kate Brown (D) on December 14, 2022, in commuting the 17 remaining Oregon death sentences to life imprisonment without the possibility of parole (LWOP).
During the last 60 years, Oregon has executed only two prisoners. Both of them waived their appeals and asked to be executed in 1997, and the State obliged. Oregon Governors have imposed a moratorium on capital punishment since 2011. During her first press conference after becoming governor in 2015, Brown announced that she was continuing the moratorium during her administration.
The Oregon Legislature enacted Senate Bill (SB) 1013, effective September 29, 2019, redefining Oregon law to prohibit the death penalty in all but three cases: the murder of a child under 14 years of age; the murder of a law enforcement official; and a prison murder committed by someone who has previously been convicted of murder. Most of those on Oregon’s death row could not have been sentenced to death under the new definition. Yet, the legislature refused to apply the new law retroactively.
That did not sit well with the Oregon Supreme Court. In a decision on October 7, 2021, the Court vacated the death sentence of one of those prisoners, holding that after the 2019 reclassification, his death sentence for a jail murder violated the cruel and unusual punishment clause of Article I, section 16, of the Oregon Constitution. See: State v. Bartol, 368 Or 598,496 P3d 1013 (2021). Although the ruling applied only to Bartol, all who read it were certain that the reasoning effectively invalidated every other Oregon death sentence as well.
That belief was further underscored just one month later, when the Supreme Court followed Bartol on November 12, 2021, vacating the death sentences of Dayton LeRoy Rogers, Oregon’s only serial killer on death row for at least seven prostitute murders. See: State v. Rogers, 368 Or 695, 499 P .3d 45 (2021).
If his death sentences were invalid, surely every other death sentence was as well. But, of course, the State continued to fight on a case-by-case basis to maintain every other Oregon death sentence. Brown finally found the courage to end this ridiculous, expensive and losing battle during her final weeks in office.
“It was unacceptable to me that I would leave office without taking one final step to ensure that none of the individuals in Oregon with a death sentence would be executed by the State,” Brown told legislative leadership in a letter dated January 9, 2023. “Unlike previous commutations I’ve granted to individuals who have demonstrated extraordinary growth and rehabilitation, these commutations were not based on any rehabilitative efforts by the individuals on death row. Instead, it reflects the recognition that the death penalty is both dysfunctional and immoral. It is an irreversible punishment that does not allow for correction.”
Brown also granted the request of the Oregon Justice Resource Center (OJRC) to order prison officials to immediately dismantle the state’s death chamber located at the Oregon State Penitentiary.
Yet, her clemency decision created additional confusion and legal wrangling, as the Oregon Supreme Court had declared long ago that those prisoners who committed their offenses before November 1, 1989 – including many of those with commuted death sentences – may not be sentenced to LWOP because it was not a valid sentencing option in Oregon before then. Accordingly, the retroactive application thereof violates the ex post facto prohibitions of the United States and Oregon Constitutions. See: State v. Wille, 317 Or 487 (1993). Those prisoners are immediately entitled to a “rehabilitation hearing” before the Oregon Board of Parole and Post-Prison Supervision and release eligibility, upon proving by a preponderance of the evidence that they are capable of rehabilitation.
Sources: Seattle Times
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