Volume XI, No. 1 August, 2014
Federal Judge in California Rules State's Death Penalty Unconstitutional: U.S. District Court Judge Cormac Carney holds that California's death penalty, implemented so rarely and so long after the offense, serves no penological purpose.
Jeff Ellis Comments on California Decision: "California has nothing on Oregon. Our death penalty system is even worse."
Women Can Get Us Over the Top: History tells us that women will again propel abolition of Oregon's death penalty--this time, for good.
The September 21st Project: The International Day of Peace this year will coincide with the third anniversary of the execution of Troy Anthony Davis. Help us mark these two important events in your community.
Analysis of Hall v. Florida by Prof. Charles Ogletree, Jr.: From the Washington Post, July 19, 2014, we reprint in full an op-ed foreseeing the end of the death penalty in America. Harvard Law Professor Charles J. Ogletree, Jr., highlights Justice Kennedy's focus in the majority opinion on human dignity as the basis for Eighth Amendment jurisprudence, and explains why the death penalty is an affront to the human dignity both of those executed and of the society that executes them. A must-read for death penalty opponents.
Federal Judge in California Rules State's Death Penalty Unconstitutional (reprinted from Death Penalty Information Center)
In a sweeping ruling on July 16, U.S. District Court Judge Cormac Carney held that California's death penalty is so dysfunctional as to amount to cruel and unusual punishment. Vacating the death sentence of Ernest Jones, who has been on death row for almost 20 years, Judge Carney said the punishment cannot serve the purposes of deterrence or retribution when it is administered to a tiny select few, decades after their sentencing.
"Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional."
Although a District Court's ruling is applicable to the sole case before it, the court's rationale would clearly apply to everyone on the state's death row: "For the rest [on California's death row], the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.”
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Jeff Ellis Comments on California Decision
|Defense Attorney Jeff Ellis is director of the Oregon Capital Resource Center and an OADP Board member.
On July 16, 2014, a federal district court judge held that California’s death penalty system violated the Constitution because "California's death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death." Judge Carney continued: "For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death -- a sentence no rational legislature or jury could ever impose."
California has nothing on Oregon. Our death penalty system is even worse.
Since Oregon reinstated the death penalty in Oregon, not a single case has completed review. The version of the death penalty that we adopted in 1978 was struck down completely. We replaced that version with another highly problematic scheme in 1984. Under the current law, no death penalty imposed by a jury has been finally approved by the courts conducting the required review. We executed two men—one in 1996 and one in 1997—but only because they gave up their appeals. Most cases end in reversal because a court concludes the defendant was denied a fair trial—but only after decades of litigation and millions of dollars.
That pattern is not likely to change.
Of the individuals currently under a death sentence in Oregon, eight have been on death row for over 25 years. The last person to die on death row was Gary Zweigert in 2013. He died of natural causes.
In reality, Oregon pays for the most expensive version of life in prison imaginable. It is the opposite of being smart on crime.
There is an alternative. Replacing the death penalty with life without parole (and requiring offenders to work in prison and pay restitution) gives us certainty that those people convicted of aggravated murder will never be released. With the money we save by replacing a broken system, we can fund the investigation of cold case crimes and provide services to the victims of violent crimes and their families.
Or, we can continue to pay millions and millions for the illusion of death sentences until a judge (or group of judges) holds that Oregon’s death penalty system is also broken beyond repair and strikes it down as unconstitutional.
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Women Can Get Us Over the Top
In 1912 Oregon women won the right to vote. Two years later in the first general election they could exercise that right, Oregon voters abolished the death penalty. It was the women’s vote that won the day and the death penalty abolition, with a narrow 50.4% majority..
A mere six years later, voters restored the death penalty by repealing Article I, Sec. 36 and approving Article I, Secs. 37-38, with 56 percent of the vote.
So why did Oregonians vote to bring the death penalty back?
In the years leading up to 1920, when the death penalty was restored, there was a spike in the crime and murder rates in this country. The early version of “tough on crime” was put in place. The country had also taken part in World War I from 1914-1918.
Clarence Darrow, always associated in the public mind with great advocacy on behalf of the downtrodden, the unpopular, and the controversial, wrote and spoke about this issue expansively. One of the most celebrated 20th-century lawyers in the country, he wrote about the violence in our culture and the “tough on crime” reaction, stating, “The whole movement was directly in conflict with modern psychology, and in fact, with all the teachings of science. No doubt the Great War was responsible for the beginning of this reaction. It takes long effort and training to make any progress in teaching kindness and mutual help. These qualities come from the development of the imagination, which is of slow growth. A few years of war seem to undo the patient work of a century. During this period all the world taught hatred and cruelty as the chief virtues in life. For five years the world was contriving new and more terrible ways to kill and maim.”
One of the results of the increase in crime and war was the reinstatement of the death penalty in Oregon.
Fortunately, in the late 50s and early 60s, the mood of the country again shifted. Protests against the war in Vietnam, the peace movement, and the civil rights movement all pushed for a more progressive point-of-view, one with no room for the death penalty.
In 1964, Oregon once again abolished the death penalty with a vote of the people.
But then over the next 20 years, the pendulum swung back to the more conservative and strident side. Our 40th president, Ronald Reagan (1981-1989), lead the call for the revival of “tough on crime”, and once again, Oregonians voted the death penalty back into law in 1984.
Crime and murder rates bobbed along at fairly high rates until the early 1990s when both began to decline. Since 1991, when the murder rate in America was 9.8 per year per 100,000 adults, the rate has declined steadily to a current rate of 4.7 per year per 100,000 adults, a drop of more than half.
Many things have contributed to that continuing drop over the past 20 or so years, including increased incarceration and longer sentences that keep more criminals off the streets; improved law enforcement strategies such as advances in computer analysis and innovative technology; the waning of the crack cocaine epidemic that soared from 1984 to 1990, which made cocaine cheaply available in cities across the United States; the graying of America characterized by the fastest-growing segment of the U.S. population—baby boomers—reaching the age of 50.
The death penalty is conspicuously absent from the list of reasons the murder rates have dropped.
Many studies, including a survey of 500 police executives, another study among the leading criminologists in America, and a very recent study by the National Academies Research Council, point out that the death penalty is NOT a deterrent.
These studies are reinforced by FBI statistics that show states without a death penalty have in aggregate a lower murder rate than those states with a death penalty. Pure logic also tells us that a person full of rage, anger, drugs and/or alcohol does not stop to think about the jurisdiction that he or she is in before committing a violent act.
So where is Oregon now in all of this? Consider these facts:
- Oregon has a death penalty on the books.
- The governor has declared a moratorium against any executions during his term in office.
- The state has executed only two men, both volunteers who gave up their appeals.
- Oregon spends over $28 million annually to maintain its death penalty with no apparent benefit to the taxpayers or the betterment of law enforcement.
One hundred years after abolition in 1914, we are again urging women to lead the charge to repeal the Oregon death penalty, this time forever. There is a substantial possibility a woman will run for president on the 2016 ballot, the same year we hope to have a ballot measure to once again repeal the Oregon death penalty. It is an excellent time to relive history and have the women of Oregon show the way to a more peaceful state, one without a death penalty.
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The September 21st Project
September 21, 2014, marks the third anniversary of the execution of Troy Davis. This sad occasion remembers the frustration of peace-minded people throughout the country, and throughout the world, trying to stop an execution of an individual believed to be innocent of the crime he was convicted of. In spite of mounting evidence of Mr. Davis’ innocence, the State of Georgia and the United States Supreme Court allowed his execution to take place.
Also, on Sunday, the 21st of September, millions of people around the world will participate in activities, events, concerts and festivals to celebrate International Day of Peace. At noon in every time zone, a moment of silence will be held, sending a “Peace Wave” around the world.
Established by the United Nations General Assembly in 1981, “Peace Day” is an opportunity for individuals, organizations and nations to create practical acts of peace on a shared date. The organization Pathways To Peace, working with members of the UN, helped obtain historic levels of support for Peace Day. In 1984, PTP held the first major International Day of Peace celebration in San Francisco with major events including the Silence Moment of Peace, when business cash registers stopped, a TV station was silent, and a global Peace Wave was created bringing the Day to everyone, everywhere. Media called it, “A silence heard around the world.”
Since its inception, Peace Day has marked our personal and planetary progress toward peace. Events range in scale from private gatherings to public concerts and forums where hundreds of thousands of people participate.
When millions of people in all parts of the world come together for one day of peace, the impact is immense and can make a difference.
Oregonians for Alternatives to the Death Penalty (OADP) is reaching out to the general public and to other peace-making organizations to join with us on this day to commemorate both of these occasions. There is a movement nationally to keep the flame burning for opposition to the death penalty and highlighting the many mistakes that are made in its administration.
The concept for Oregon would be to hold public readings of passages from the book I AM TROY DAVIS, by Jen Marlow, in visible spaces. Places like the steps of the Capitol, in Salem, Pioneer Square in Portland, library steps in any town/city that has a library, university and college campuses and other highly visible public gathering places.
Invitations are being sent to organizations such as Amnesty International, NAACP, Ecumenical Ministries of Oregon, Justice Watch Oregon, Partnership for Safety & Justice and other peace-seeking groups who see the death penalty as an offense against peace.
The suggested format would be to have several people reading from the I AM TROY DAVIS book. Each reader would have the opportunity to identify themselves, make note of the organization that they are affiliated with and a brief point of interest related to the death penalty and its offense to peace-making efforts.
As an example, the concept for Salem would be to hold the event on that date on the Capitol steps. The event would start at 11:50 AM so that Oregon could join the others in the Pacific Time Zone, in the noontime “wave of peace”. This Capitol location is in the midst of several downtown Salem churches that are invited to participate as an extension of our outreach.
If you individually, or your organization, would like to become involved, please contact Jan Slick, of OADP at (503) 580-4061 or email@example.com. The September 21st Project committee is eager to hear from people willing to help organize events around the state.
“If you want justice, work for peace.”
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Analysis of Hall v. Florida by Prof. Charles Ogletree, Jr.
From the Washington Post, July 19, 2014, we reprint in full an op-ed foreseeing the end of the death penalty in America. Harvard Law Professor Charles J. Ogletree, Jr., highlights Justice Kennedy's focus in the majority opinion on human dignity as the basis for Eighth Amendment jurisprudence, and explains why the death penalty is an affront to the human dignity both of those executed and of the society that executes them. A must-read for death penalty opponents.
The death penalty is incompatible with human dignity
By Charles J. Ogletree Jr.
I have wondered countless times over the past 30 years whether I would live to see the end of the death penalty in the United States. I now know that day will come, and I believe that the current Supreme Court will be its architect.
In its ruling in Hall v. Florida in May, the court — with Justice Anthony M. Kennedy at the helm — reminded us that the core value animating the Eighth Amendment’s cruel and unusual punishments clause is the preservation of human dignity against the affront of unnecessarily harsh punishment. Hall, which prohibited a rigid test in use in Florida for gauging whether a defendant is intellectually disabled, was the most recent in a series of opinions in which the court has juxtaposed retribution — the idea of vengeance for a wrongdoing, which serves as the chief justification for the death penalty — with a recognition of our hopelessly complex and fallible human nature.
What was important about Hall is the way Kennedy described the logic behind exempting intellectually disabled individuals from execution: “to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being” because the “diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment.” Though the court previously barred imposition of the death penalty upon intellectually disabled people, as well as juvenile offenders, Hall marked the first time that it went so far as to claim that imposing the death penalty upon offenders with these kinds of functional impairments serves “no legitimate penological purpose.”
This is why I see an end coming to the death penalty in this country. The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows. A new study by Robert J. Smith, Sophie Cull and Zoë Robinson, published in Hastings Law Journal, of the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits.
One-third of the offenders had intellectual disabilities, borderline intellectual function or traumatic brain injuries, a similarly debilitating impairment. For example, the Texas Department of Corrections determined that Elroy Chester had an IQ of 69. He attended special education classes throughout school and never functioned at a higher level than third grade. The state had previously enrolled Chester into its Mentally Retarded Offenders Program. Despite these findings, Texas executed him on June 12, 2013.
More than half of the 100 had a severe mental illness such as schizophrenia, post-traumatic stress disorder or psychosis. For example, for more than 40 years, Florida’s own psychiatrists found that John Ferguson suffered from severe mental illness. Ferguson had a fixed delusion that he was the “Prince of God” who could not be killed and would rise up after his execution and fight alongside Jesus to save the United States from a communist plot. When Ferguson was executed on Aug. 5, 2013, his last words were: “I just want everyone to know that I am the Prince of God and I will rise again.” A Florida court had called Mr. Ferguson’s delusions “normal Christian beliefs.”
Many other executed offenders endured unspeakable abuse as children. Consider Daniel Cook, whose mother drank alcohol and abused drugs while she was pregnant with him. His mother and grandparents molested him as a young child, and his father physically abused him by, for example, lighting a cigarette and using it to burn Daniel’s genitals. Eventually the state placed Daniel in foster care, but the abuse didn’t stop. A foster parent chained him nude to a bed and raped him while other adults watched from the next room through a one-way mirror. The prosecutor responsible for Cook’s death sentence stood behind him during the clemency process, telling authorities that he would have taken the death penalty off of the table had he known of his torturous childhood. Arizona refused to commute Cook’s sentence, however, and he died by lethal injection on Aug. 8, 2012.
As the execution of Elroy Chester, John Ferguson, Daniel Cook and many more like them illustrates, barring the death penalty for intellectually disabled and juvenile offenders did not solve the death penalty’s dignity problem. Rather, those cases gave us cause to look more closely at the people whom we execute. And when you look closely, what you find is that the practice of the death penalty and the commitment to human dignity are not compatible.
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