Russ Feingold

It's just really tragic that after all the horrors of the last 1,000 years, we can't leave behind something as primitive as government sponsored execution.

-Russ Feingold

Aberon Waugh

The main objection to killing people as a punishment...is that killing people is wrong.

-Aberon Waugh

Supreme Court Justice Harry A. Blackmun

From this day forward, I no longer shall tinker with the machinery of death.

-Supreme Court Justice Harry A. Blackmun

John Donne

Any man's death diminishes me, because I am involved in mankind.

-John Donne

Helen Prejean

Government... can't be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of it's citizens to kill.

-Sister Helen Prejean

Sentenced to Death For Life: Part II

Paul Demuniz

By Paul J. De Muniz* and Lee N. Gilgan*

Introduction

“A Brief History of Oregon’s Death Penalty” is the second in a series of essays about the death penalty. The essays are intended to examine the history of the death penalty in the United States; Oregonians’ ambivalent attitude toward the death penalty since statehood; the serious and jeopardous flaws in Oregon’s current death penalty law that renders its application arbitrary and unreliable; and, finally, the potential for repeal of the death penalty, or for changes that should reduce its employment, and meaningfully narrow its application to Oregon’s most culpable murders.

A Brief History of Oregon’s Death Penalty

On November 29, 1847 Protestant missionary Marcus Whitman, his wife Narcissa, and 11 others were killed during a Cayuse attack on the Whitman Mission near Walla Walla. Congress created the Oregon Territory in 1848. Article 9, of Congress’ Organic Act of 1848 established the Supreme Court, district courts, probate courts, and justices of the peace. After a series of negotiations initiated by the first territorial Governor, Joseph Lane, the Cayuse turned over to the territorial authorities, five Cayuse men, allegedly responsible for the massacre. The men were transported to Oregon City, the seat of the territorial government. The Cayuse men may have believed that they were traveling to Oregon City to apologize and then would be granted immunity. Instead, they were indicted for murder by a grand jury on May 13, 1850. Judge Orville Pratt appointed Kintzing Pritchette, the territorial secretary as lead defense counsel, to be assisted by two Army officers. Only Pritchette had any legal training. Judge Pratt denied defense motions to dismiss for lack of jurisdiction, change of venue, and for a continuance seeking more time to prepare the defense case. The trial commenced on May 23rd. On May 24th, after just 75 minutes of deliberation, a jury convicted the men of murdering Marcus Whitman.[1] Judge Pratt sentenced the men to death, denied defense motions to appeal, and ordered the execution to be carried out June 3rd. U.S. Marshal Joseph Meek, had the gallows erected and hanged the five men on the appointed day.[2] And, so began Oregon’s 166 year experience with the death penalty.

The first death penalty case, recorded in volume one of the Oregon Reports, is O’Kelly v. Territory of Oregon, which was decided in 1853 by the judges of the Supreme Court of the Territory of Oregon.[3] In May of 1852, Nimrod O’Kelly shot and killed a man over a boundary quarrel. O’Kelly was found guilty by a jury assembled in Benton County and sentenced to be hanged. However, because there was no jail in that area, O’Kelly was permitted to return home to await the building of a jail in Portland. When O’Kelly was being transported to the jail that had been erected in Portland, the local sheriff got drunk during the trip, so O’Kelly completed the trip by himself and signed himself into the jail. The Territorial Supreme Court affirmed O’Kelly’s death sentence. Although O’Kelly was scheduled for the gallows three times, he was never hanged: the first execution was postponed by Governor Pollard Gaines; the second was stayed by the Oregon Territorial Supreme Court; and the third was canceled by Governor John Wesley Davis, who commuted O’Kelly’s sentence to two years in prison. Eventually, O’Kelly received a full pardon from Governor George Law Curry.[4]

The 1857 Oregon Constitution did not mention capital punishment.[5] However, at the 1857 Constitutional Convention, the issue was discussed and the idea of banning such punishments was rebuffed.[6] After Oregon became a state, the first Oregon criminal laws imposed the death penalty for first degree murder and treason.[7]

The first person executed under the authority of the State of Oregon, was Danford Balch. Balch shot his son-in-law, Mortimer Stump on Stark Street in Portland. Against Balch’s wishes, Stump had eloped with Balch’s daughter. When Stump went to the ferry to cross the Willamette River, Balch was waiting with a shotgun. Several people witnessed the murder. A jury found Balch guilty and he was sentenced to be hanged. On October 17, 1859, Balch was hanged at the Portland’s waterfront district in front of hundreds of onlookers.[8]

For the first four decades of statehood, Oregon executions happened locally – in the county where the conviction was secured. However, in 1874, the Oregon legislature mandated that all executions take place where the defendant was imprisoned and in front of twelve witnesses.[9] Throughout that period, the public remained intrigued – often loitering around the courthouses to view the next hanging.[10] One 19th century hanging in Albany drew nearly 3,000 spectators. Soon thereafter, the Legislature required towns to build stockades around the gallows.[11]

On November 21, 1901, James Morrow was on his way home in Portland after “paying court to a young lady”[12] when he was shot and killed by Jack Wade and William Dalton during a bungled mugging.[13] The two defendants claimed that the killing was accidental, however, they were found guilty and an execution date was set for January 31, 1902.[14] At that time, 20-foot tall stockades were built around most gallows. That morning, 400 invited guests (all men) were allowed inside the stockade to watch the hangings.[15] However, the day after the executions, The Oregonian reported that women had watched the hangings from a nearby rooftop.[16]

After the Wade and Dalton hangings, Oregonians decided to end public hangings. In 1903, with some influence exerted by Governor George Chamberlain, the legislature enacted a statute requiring executions to take place out of the public’s view in the state penitentiary.[17]

Norman Williams was something of a “ladies’ man” – having been married six times.[18] On March 8, 1900, Williams, his wife Alma Nesbitt, and Nesbitt’s mother, boarded a train from Portland to Hood River. Upon arrival, Williams rented a wagon and the trio headed toward their homestead. The women were never seen again.[19] Williams was charged with murdering the women.

At the May 1904 trial, defense attorney Henry McGinn contended that there could be no murder conviction without a body. However, a chemist, called as a witness by the prosecution, asserted that hair and blood found at Williams’ home was human, belonging to Nesbitt and her mother. Williams was convicted and sentenced to death. Before the Williams case, no defendant in Oregon had been found guilty without the body of the victim. The Oregon Supreme Court affirmed Williams’ conviction and death sentence, and the case continues to be cited as precedent today.[20] On July 21, 1905, Williams became the last man publicly hanged in Oregon.[21]

A Public Vote for Abolition (1910s and 1920s)

Oregon’s first major push for the abolition of the death penalty followed the 1910 election of progressive Governor Oswald West.[22] Although West avidly opposed the death penalty, he exercised his commutation power only sparingly. West did not want to be seen as undermining a jury determination that he concluded had been arrived at fairly, exercising his commutation power only after concluding that the prosecution had somehow been unfair.[23] In announcing that he would commute a 1911 death sentence, West also declared, that while he was in office, there would be no executions.[24]

In January 1912, West introduced an initiative petition to repeal the death penalty by popular vote. At that same time, West issued a temporary reprieve staying all executions pending the results of the November 1912 vote to repeal the death penalty. In an attempt to exploit the voters’ emotions, West stated that should the repeal vote fail, those whose executions had been stayed, would be executed on Friday the 13th.[25] On November 5, 1912, the repeal initiative failed by over 20 percent of the vote.[26] On December 13, 1912, West continued to honor the decisions of jurors, allowing the execution of four men whose executions had been previously stayed. The day before the executions, hundreds of people confronted the Governor, begging him to stop the executions and reminding him of his 1911 vow that no more executions would take place while he was in office.[27]

Although the public vote failed in 1912, the abolition movement continued through the decade. In 1914, an initiated constitutional amendment to abolish the death penalty and establish life in prison as the maximum penalty for any crime was placed on the ballot.[28] After the defeat of the repeal effort in 1912, the State of Washington had abolished the death penalty and, most importantly, women had attained the right to vote – nearly doubling the voting population in Oregon.[29] The amendment prevailed by a thin margin – 50.04% to 49.96% – abolishing the death penalty by a mere 157 votes.[30]

The abolitionists’ victory was short-lived, however. In 1919, following the murder of prominent Pendleton rancher, Newton Burgess, proponents of the death penalty returned the death penalty issue to the ballot.[31] By a 55.8% to 44.2% vote, the death penalty was restored in Oregon.[32] However, this time the death penalty was not the only sentencing option for first degree murder – life imprisonment was also available.[33]

On November 5, 1920, Emmet Bancroft became the first person executed under Oregon’s revived death penalty.[34] The farmer from Missouri murdered a Umatilla County sheriff while escaping from jail. Nearly two years later, Bancroft’s accomplices were also executed. Including the Umatilla County fugitives, fifteen hangings took place between November 1920 and October 1931. The last of these executions was the hanging of James Kingsley, who killed a police officer in Jackson County. During this time period, L.W. Peare, at age 67, became the oldest man to be executed. Two death row inmates committed suicide.[35]

Oregon stopped using the gallows in 1931. On January 30, 1939, LeRoy McCarthy, became the first person to be executed in Oregon by lethal gas. Between 1939 and 1962, 17 men were put to death in Oregon’s gas-chamber.

Another Push for Abolition (1950s and 1960s)

Robert Holmes served as the governor of Oregon from 1957 to 1959.[36] Holmes supported the abolition movement and commuted every death sentence during his tenure.[37] Unfortunately for Governor Holmes, in 1957 House Joint Resolution 11 confused many regarding its potential consequences for capital punishment.[38] The resolution was intended as a referral to amend the Constitution by again eliminating the death penalty and restoring life imprisonment as the maximum penalty. The logic was that if the maximum penalty was not constitutionally changed to life imprisonment, the Legislature could pass a statute to revive the death penalty. However, the Oregon Senate changed the House version, removing the life imprisonment provision – leaving the sentencing law to the Legislature.[39] No voter was happy – supporters of the death penalty wanted the penalty to remain mandated by the Oregon Constitution, non-supporters wanted no leeway for the legislature to re-impose it. That effort failed at the Ballot Box in 1958.

Eventually, Holmes’s death penalty commutations became a concern for some Oregonians -- perceiving that Holmes was substituting his judgement for that of jurors. For example, George Sack was convicted and sentenced to death in 1954 for murdering his wife. Sack’s case, however, was a particularly aggravating one in that he was also suspected of killing his previous two wives. After exhausting his appellate remedies, Sack’s execution date was set for July 1957. However, a day after the execution date was set, Holmes commuted Sack’s death sentence, citing only his opposition to the death penalty.[40]

In early 1958, the Oregon Supreme Court affirmed the death sentence of Billy Junior Nunn who had sexually assaulted and murdered a 14 old boy, Alvin Eacret.[41] Alvin’s parents filed a civil action against Holmes in the Jackson County Circuit Court seeking to prevent the governor from commuting Nunn’s death sentence. Eventually, the Oregon Supreme Court held that the Constitution conferred unlimited gubernatorial power to grant reprieves, commutations and pardons, and that the governor’s power could not be restrained by the judicial branch.[42] Holmes then commuted Nunn’s death sentence to life in prison.

Mark Hatfield became Oregon’s governor in January 1959. Hatfield, like his predecessor, opposed the death penalty. However, Hatfield believed that his judgment should not be substituted for that of the Oregon constituents, who previously had an opportunity to repeal the death penalty.[43]

In 1961, the cases of Leroy McGahuey and Jeannace June Freeman captured the public’s attention. McGahuey murdered his girlfriend and her two year old son.[44] Nineteen year old Freeman was convicted of murdering her lover’s two small children by throwing them into a three hundred foot canyon.[45] Both were sentenced to death. McGahuey’s attorney did not seek review in federal court, a strategy that would have substantially delayed McGahuey’s execution. Freeman’s attorney, however, did seek federal court review.[46] Because he did not uncover any unfairness or injustice in McGahuey’s prosecution, Hatfield, respecting the Oregon constituents’ views on capital punishment, was unwilling to commute the sentence simply because of his own opposition to capital punishment.[47] McGahuey was executed about midnight on August 20, 1962.

After some newspaper reporters who watched McGahuey’s execution and reported on the experience, the 1963 Legislature referred the abolition of the Oregon death penalty to the ballot for popular vote.[48] On November 3, 1964, Oregonians overwhelmingly voted to end the death penalty – 60.1% -39.9%.[49] By the time Freeman had exhausted her appellate remedies in 1964, Oregonians had again repealed the death penalty, allowing Hatfield, in good conscience, to commute all the death sentences of all the inmates on death row, including Freeman’s.[50]

Reinstating Executions (1970s and 1980s)

In 1972, in Furman v. Georgia, the Supreme Court concluded that the death penalty as it was then applied, violated the 8th and 14th Amendment rights of the capital defendants.[51] That Supreme Court ruling had little effect in Oregon, because the death penalty had been abolished eight years earlier.[52] The difficulty in understanding the legality of the death penalty leading up to and following Furman resulted in no American executions from 1968-1976.[53]

In 1977, two brutal murders aided Oregon death penalty supporters’ in their push to reinstate the death penalty.[54]The Oregonian also published a study publicizing that most Oregonians favored the death penalty, similarly pushing the reinstatement discussion forward.[55] Soon thereafter, a house bill was introduced that would eventually be passed by voters in November 1978 as a statutory initiative. Curiously, the bill called for the death penalty for “regular” murder, but not aggravated murder.[56] The new law allowed for the death penalty or life imprisonment, to be determined and imposed by the trial judge.[57] However, in 1981, in State v. Quinn,[58] the Oregon Supreme Court concluded that the judge-only penalty phase procedure was unconstitutional because it violated a capital defendant’s jury trial right guaranteed in Article 1, Section 11, of the Oregon Constitution.

That issue was quickly remedied by death penalty supporters, who, by initiative petition, brought Measure 7 to the ballot in 1984.[59] Measure 7 was an initiated statute requiring death as the penalty for aggravated murder when a unanimous jury, in addition to finding all of the elements of aggravated murder, also finds beyond a reasonable doubt that the defendant acted deliberately; that there is a probability that the defendant is a continuing threat to society; and that the defendant responded unreasonably to provocation, if any. A jury’s failure to find affirmatively on any one of the elements would result in life imprisonment, with a 30 year minimum sentence. Although, the initiated statute only required a jury to answer three questions in the penalty phase, the Oregon Supreme Court, in response to a federal constitutional challenge, eventually, concluded that the statute also required the jury to answer a fourth question – whether the defendant should receive a sentence of death.[60] Currently, after various statutory amendments and Oregon Supreme Court decisions, ORS 163.105 (1) now provides that a defendant found guilty of aggravated murder can be sentenced to death; life in prison without release or parole; or life in prison with the possibility of release or parole.

Oregon’s Death Penalty Today

In 2003, Gary Haugen was serving a life sentence for murder, when he killed a fellow prison inmate. For that crime, Haugen was found guilty of aggravated murder and sentenced to death. His conviction and death sentence were affirmed by the Oregon Supreme Court in 2010.[61] On May 18, 2011, a Marion County Circuit Court judge signed a death warrant setting Haugen’s execution date for August 16, 2011.[62] Haugen was not executed on that date.

On November 22, 2011, Governor John Kitzhaber, announced that in accordance with his gubernatorial power set out in Article V, Section 14[63] of the Oregon Constitution, he was ordering a reprieve or moratorium intended to prohibit the carrying out of any death sentence during his term as governor.[64] According to Kitzhaber, Oregon’s death penalty law did not meaningfully differentiate between those murders sentenced to death and those murders sentenced to life in prison; was not swift and certain in its administration;[65] and was not applied equally.[66] In response, Haugen filed a civil action against Kitzhaber asserting that the moratorium was beyond the Governor’s constitutional power. Apparently, Haugen was ready to die.[67] The Oregon Supreme Court sided with Kitzhaber, stating that “[t]he issue is whether the Governor’s action was within his constitutional authority, and we conclude that it was.” The Court also commented, “We are not asked to, and we do not, review the Governor’s judgement. . .”[68] Governor Kate Brown has continued the death penalty moratorium, and has announced that she will continue the moratorium if she is elected.[69]

Today, in Oregon, 33 men and one woman are awaiting execution by lethal injection. Although no one can be executed while the moratorium is in place, prosecutors continue to proceed to trial in cases in which the death penalty is a potential sentence, and they can continue to use a potential sentence of death as a factor in negotiating the resolution of an aggravated murder case.


* Paul J. De Muniz, Distinguished Jurist in Residence, Willamette University College of Law and former Chief Justice of the Oregon Supreme Court. De Muniz has been involved with Oregon’s death penalty for most of his 44 year legal career. As a criminal defense attorney, he successfully fought off the state’s death penalty efforts in each capital case that he defended, and successfully argued two death penalty cases in the Oregon Supreme Court. As an Oregon Supreme Court Justice he authored opinions that affirmed and reversed the imposition of the death penalty.

* Lee N. Gilgan, M.A. Criminal Justice, Western Oregon University; J.D., Willamette University College of Law. Gilgan believes that the imposition of the death penalty is constitutional under both the Oregon and Federal Constitutions. However, he opposes the administration of the Oregon death penalty because of its high fiscal costs and the shockingly prolonged incarceration on death row of inmates awaiting execution, negating the retributive and deterrent penological justifications for the death penalty.

[1] Whitman Massacre Trial, Ronald B. Lansing, available at oregonencyclopedia.org.

[2] Soon after the trial there was a good deal of public concern about whether the Cayuse men were the actual perpetrators. The men continued to proclaim their innocence and a petition was circulated seeking to spare the men. Governor Lane submitted his resignation effective June 18, 1850, and Secretary Pritchette was to be his replacement. Prichette declared that he would pardon the Cayuse men. However, he would not possess the pardon to power until 25 days after the trial. U.S. Marshall Joseph Meek sought direction on whether the executions should be delayed. However, Judge Pratt ordered Meek to proceed on the appointed day. The morning before the scheduled execution, Archbishop Blanchet and Father F. Veyret, conducted a low mass for the five condemned men. After the mass the Archbishop baptized and confirmed each of the men and then accompanied them to the gallows. Marcus and Narcissa Whitman and the Opening of Old Oregon, Clifford M. Drury, available at https://www.nps.gov/whmi/learn/historyculture/drury-book.htm.

[3] O’Kelly v. Territory, 1 Or 51 (1853).

[4] The Oregon Encyclopedia. Nimrod O’Kelly, Ronald B. Lansing, available at https://oregonencyclopedia.org/articles/o_kelly_nimrod_1864_/#.WBwNjuArI2w.

[5] Or. Const. (1857).

[6] Carey, Charles H., ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 (Salem: State Printer, 1926), 359.

[7] Deady, Matthew. General Laws of Oregon 1845 – 1864 (Portland: Pittock, 1866).

[8] Humbird, Jim. When Hangings were a Major Pastime. Oregonian Magazine, 3 September 1939, 2; Lansing, Jewell. Portland: People, Politics, and Power, 1851 – 2001. Corvallis: Oregon State University Press, page 95-96.

[9] Laws of Oregon 1874 (Salem: Brown, 1874), 116.

[10] Long, William. A Tortured History: The Story of Capital Punishment in Oregon. Pg. 24 (2001).

[11] Nathan L. Necktie Parties: No One Wanted to Be the Guest of Honor. Baker City Herald. Oct. 8, 2008, available at http://www.bakercityherald.com/csp/mediapool/sites/BakerCityHerald/Local....

[12] 1902: A Day in the Death Penalty Around the Pacific Northwest, available at http://www.executedtoday.com/tag/william-dalton/.

[13] Id.

[14] William Long. A Tortured History: The Story of Capital Punishment in Oregon. Pg. 24-25 (2001).

[15] Id.

[16] 1902: A Day in the Death Penalty Around the Pacific Northwest, available at http://www.executedtoday.com/tag/william-dalton/.

Governor George Earle Chamberlain’s inaugural address to the Oregon Legislature offered a look back at the previous year’s duel hangings:

“In two cases in Multnomah County, at least four hundred invitations were issued . . . to witness the double execution . . .. The gallows were erected in the jail yard at the intersection of two of the most public streets in the city of Portland, and the morbidly curious were attracted there from the time the workmen commenced to build the scaffold until it was finally torn down. At the moment of the execution, although the ground was covered with snow, crowds of men, women and children stood in the adjacent streets to see and hear, if possible, what took place within the enclosure, and boys and men, actually climbed telephone poles to look over the same. Such scenes are de-moralizing and ought not to be tolerated in any civilized community.”

Oregon Statesman, 15 January 1903, pg. 9.

[17] Laws of Oregon 1903 (Salem: Whitney, 1903) 66-67.

[18] The Oregon Encyclopedia. State of Oregon v. Norman Williams, available at https://oregonencyclopedia.org/articles/state_of_oregon_v_norman_william....

[19] Id.

[20] Id.

[21] Id.

[22] In his 1911 inaugural address, Governor West proclaimed:

“Capital punishment should be abolished, in my opinion, in this state. The system of paying for a life is, in my belief, merely a relic of that ancient and barbarous doctrine of an eye for an eye and a tooth for a tooth.”

Oregonian, pg. 8. Jan. 11, 1911.

[23] For example, Jans Hassing was convicted of murder in 1911. However, at trial, Hassing was not allowed to introduce evidence of mental illness. 60 Or. 81, 118 P. 195 (1911).

[24] Oregon Journal, pg. 1. Nov. 1, 1911.

[25] For a discussion on these events, see generally, Long, William. A Tortured History: The Story of Capital Punishment in Oregon. Pg. 29-30 (2001).

[26] Id; The Oregon Encyclopedia. Death Penalty, available at https://oregonencyclopedia.org/articles/death_penalty/#.V9oJ-ZgrI2x.

[27] Oregon Statesman, pg. 1. Dec. 14, 1912.

[28] Today, many people somehow believe that the only way to overturn Oregon’s death penalty is by constitutional amendment. Later in this series of essay, we will discuss simpler avenues to abolition of the death penalty in Oregon.

[29] Washington reinstated capital punishment in 1919.

[30] Oregonian, pg. 6. Dec. 1, 1914.

[31] Oregon Department of Corrections, History of Capital Punishment in Oregon, available at https://www.oregon.gov/doc/OC/Pages/cap_punishment/history.aspx.; William Long. A Tortured History: The Story of Capital Punishment in Oregon. Pg. 35 (2001).

[32] Oregon Department of Corrections, History of Capital Punishment in Oregon, available at https://www.oregon.gov/doc/OC/Pages/cap_punishment/history.aspx.

[33] William Long. A Tortured History: The Story of Capital Punishment in Oregon. pg. 35 (2001).

[34] Oregon Department of Corrections, History of Capital Punishment in Oregon, available at https://www.oregon.gov/doc/OC/Pages/cap_punishment/history.aspx.

[35] Id.

[36] Oregon Secretary of State, Governor Robert D. Holmes Administration, Biographical Note, available at http://arcweb.sos.state.or.us/pages/records/governors/guides/state/holme....

[37] Death Penalty Information Center, Clemency, available at http://www.deathpenaltyinfo.org/clemency?did=126&scid=13.

[38] House Joint Resolution 11, Oregon Laws 1957, pg. 1363 (Salem: Legislative Counsel Committee, 1957).

[39] Official Voter’s Pamphlet, General Election 1958, pg. 15 (Salem: Secretary of State, 1958).

[40] Oregonian, pg. 1 (July 3,1957).

[41] See State v. Nunn 212 Or. 546 (1958) (Nunn’s appeal involved the legality of his admission of guilt during police interrogation).

[42] See Eacret v. Holmes 215 Or. 125 (1958) (“Where the constitution thus confers unlimited power on the Governor to grant reprieves, commutations and pardons, his discretion can not [sic] be controlled by judicial decision. The courts have no authority to inquire into the reasons or motives which actuate the Governor in exercising the power, nor can they decline to give effect to a pardon for an abuse of discretion”).

[43] Oregon Statesman, pg. 1 (August 18, 1962).

[44] State v. McGahuey 230 Or. 643, 644-45 (1962). McGahuey’s confession included the following:

“After she had put on her hose she was bent over putting her shoes on and she had her back turned towards me. I don't know why I did this but I picked up a claw hammer off the bar & struck her on the side of the head. She fell to the floor. I next went to a mantle in the front room and got a 22 revolver which was loaded. I next shot her in the back of the head once with this gun. I next put the gun on the couch. I picked her up and dragged her to the bedroom closet. I returned & got the hammer & struck her a few more times on the head. I went to the kitchen and got a knife. I put the knife about where I though her heart was & pushed it in. I pulled it out & through it in the back of the closet. I went back to the front room & picked up the gun. I returned to the bedroom & put the gun on the dresser. I next looked in the closet at her. I come out of the closet & looked at the baby and it was asleep. I was wondering what to do with the baby. I did not want it to go to the wrong people, like his father so I struck him with the hammer on the head while he was in the crib.”

[45] Oregonian, pg. 1 (October 31, 1962).

[46] See generally, William Long. A Tortured History: The Story of Capital Punishment in Oregon. pg. 50 (2001).

[47] Oregon Statesman, pg. 1 (August 18, 1962).

[48] Senate Joint Resolution 3, Oregon Laws 1963, pg. 1373-74 (Salem: Legislative Counsel Committee 1963).

[49] The 1964 Ballot Measure, known as Ballot Measure 1, that amended the Constitution to abolish the death penalty for first degree murder and establish the penalty as life imprisonment, passed by a decisive 153,000 votes. Oregon Official Abstract of Votes, General Election 1964, pg. 19 (Salem: Secretary of State).

[50] Id.

[51] Furman v. Georgia, 408 U.S. 238 (1972).

[52] Oregon Official Abstract of Votes, General Election 1964, pg. 19 (Salem: Secretary of State).

[53] Over the previous thirty-seven years, there had been 3,800 executions. The Death Penalty in America, 3d Ed., pg. 56-64 (Oxford University Press, 1982) (see charts).

[54] A Eugene couple was killed by Carl Cletus Bowles who had escaped from the Oregon State Penitentiary. A Scio woman was mutilated and murdered by Richard L. Marquette. William Long. A Tortured History: The Story of Capital Punishment in Oregon. pg. 59 (2001).

[55] Oregonian, pg. b7 (February 27, 1977) (showing 65% of Oregonians favoring the death penalty).

[56] William Long. A Tortured History: The Story of Capital Punishment in Oregon. pg. 60 (2001) (noting that the death penalty could now be imposed for the second-worst crime in Oregon, but not the worst).

[57] ORS 163.115.

[58] State v. Quinn 290 Or. 383 (1981)

[59] Death Penalty Information Center, Oregon, available at http://www.deathpenaltyinfo.org/oregon-1.

[60] The so-called fourth question is intended to allow a jury to consider all aspects of a defendant’s character, and background, regardless of whether that evidence is causally related to the aggravated murder offense. State v. Wagner, 309 Or. 5 (1990).

[61] State v. Haugen, 349 Or. 174 (2010).

[62] Oregon Judge Signs Death Warrant; Execution of Gary Haugen Set for August, Helen Jung, available at http://www.oregonlive.com/pacific-northwest-news/index.ssf/2011/05/orego....

[63] Article V, Section 14 of the Oregon Constitution provides in pertinent part that the governor, “shall power to grant reprieves, commutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law.”

[64] At that time Kitzhaber also exhorted the legislature to bring potential death penalty reforms to the 2013 legislative session. None were forthcoming.

[65] Kitzhaber also noted that the death penalty had been carried out only twice in fifty-four years and that those men had volunteered to be executed – Douglas Wright in 1996 and Harry Moore in 1997.

[66] At that time Kitzhaber also exhorted the legislature to bring potential death penalty reforms to the 2013 legislative session. None were forthcoming.

[67] Michael Muskal, Oregon’s Top Court Upholds Governor’s Right to Block Execution, LA Times (June 20, 2013) available at http://articles.latimes.com/2013/jun/20/nation/la-na-nn-oregon-supreme-c....

[68] Haugen v. Kitzhaber 28 Or. 715, 720, 733 (2013).

[69] Soon after taking office Governor Brown announced that she would continue the death penalty moratorium pending further study by a group of advisors. However, in her most recent announcement that she will continue the moratorium if elected, Brown indicated she had received advice about the death penalty from her general counsel.

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