December 3, 2012
Joshua Marquis and Steven Atchison
The Oregonian editorial board is joining the call for a "conversation" about capital punishment in Oregon, started when Gov. John Kitzhaber presumptuously decided his will was more important than the voters' or the courts' by stopping the execution of Gary Haugen, and more recently by state Rep. Mitch Greenlick's call for a constitutional amendment ("Oregon's life-or-death vote," editorial, Nov. 27).
There has been a very robust conversation going on for the 28 years of the "modern" era of capital punishment in Oregon -- in the courts; in the classrooms of high schools, colleges and law schools; in the Legislature; and on the street.
Oregon is the home to direct democracy, thanks to William U'Ren. In its editorial, The Oregonian lists five states that have stepped away from the death penalty in the past decade. What wasn't mentioned was that in not one of those states did the people vote to abolish the penalty. In Connecticut it was done despite more than 62 percent of voters saying they opposed the action, and in the other states it was either the action (as in Illinois) of a lame duck legislature or a state where the governor could exercise the power to abolish it.
Most states do not share Oregon's (and California's) belief that the ultimate voice belongs to the people. In the past 50 years in America, only three times have the people of any of these United States made a decision about whether to keep or abandon the death penalty. In 1964 Oregonians fairly convincingly voted to abolish the death penalty. In 1984 the same state voted even more emphatically to restore it. In 2012, in one of the most underreported stories of the election year, California turned away by a significant margin an effort to abolish the death penalty. More than $7 million was spent in that effort, against less than $300,000 for those seeking retention of the penalty.
The case of Kitzhaber's action in the Haugen case is being decided in the courts. Thus far, a respected judge, an opponent of capital punishment, has ruled that the governor had no right to grant a "reprieve" where none was asked, and now the governor is appealing that decision.
Yes, DNA and aggressive advocacy should give people greater confidence in our state's legal system. Oregon rightfully spends more money than almost any state in America on those accused of capital murder (according to a New York Times study of a few years ago). People facing death deserve good, qualified lawyers, and in Oregon they get them -- sometimes two, three or even four of them -- as well as investigators, psychologists and mitigation specialists. Yet no one can cite a single case of anyone on Oregon's "modern" death row who even claimed actual innocence.
The real problem, the one that frustrates most Oregonians, is that it takes decades to rule on the multiple appeals, such as those of Randy Guzek, who murdered Rod and Lois Houser in 1987, has had four juries unanimously sentence him to death, and lost 8-1 when his case went before the U.S. Supreme Court in 2005.
Maybe there should be a public referendum simply asking: "Should there be no crime for which the death penalty may ever be applied?" And while we're there, it would interesting to get a commitment from the death penalty's opponents on whether they would then challenge life without parole, now offered as the alternative to capital punishment, as being a violation of cruel and unusual punishment.
In Oregon the death penalty is, appropriately, rarely sought and even less often imposed. But at some point, those who oppose it may have to take "yes" as an answer from the people of Oregon. To borrow from a speech by President John F. Kennedy: "We cannot negotiate with those who say, "What's mine is mine and what's yours is negotiable."
Joshua Marquis is the Clatsop County district attorney. Steven Atchison is Columbia County district attorney.