The decision whether to abolish capital punishment in Oregon belongs to voters. Neither the passage of Senate Bill 1013 in 2019 nor the Oregon Supreme Court decision earlier this month in the David Bartol case took the decision whether to retain or abolish the death penalty away from Oregonians, despite this newspaper’s recent editorial (“The death penalty debate voters didn’t get to have,” Oct. 10). That editorial reflects a shocking failure to understand what it means to live in a representative and constitutional democracy. The people are owed a correction.
In 1984, Oregon voters reinstated capital punishment via a ballot measure that adopted an amendment to our constitution, and voters are the only ones who can change the Oregon Constitution. However, the voters also made the choice not to embed the definition of aggravated murder in the constitution, and instead expressly agreed that the Legislature could change what crimes constitute aggravated murder and the definitions of those crimes. When the Legislature did so by adding new crimes – thereby expanding the number of crimes subject to the death penalty – there was no outcry about the subversion of democracy. That is because we elect representatives whose job it is to hold hearings and pass laws on behalf of the people. That is exactly what happened with SB 1013 in 2019. The Legislature did not make “voters largely irrelevant.” They did what they always do. They represented the people.
When the Legislature passed SB 1013, they stressed it did not by its terms overturn existing death sentences. Those assertions were completely correct. The Oregon Supreme Court’s decision does not construe SB 1013 to find some hidden retroactivity provision. Instead, the Oregon Supreme Court did exactly what courts are required to do. The court was required to measure the constitutional protection against cruel punishment by using the history of what happens after prospective repeal or reclassification of crimes eligible for the death penalty. What it found was that locally, nationally, and internationally, not one person has ever been executed for a crime that was no longer subject to the death penalty. This point was uncontested by Oregon’s top prosecutors, who were given every opportunity to prove otherwise. Guided by our constitution, our Supreme Court reached the same result reached by every American court reviewing the same or similar issue.
There were no “shortcuts” taken, as the editorial board claims. The Legislature passed a law, as it does every session. The Supreme Court then examined the constitutional implications of that law informed by history. Our representative and constitutional system of checks and balances worked exactly as intended. To suggest otherwise ignores basic civics. Neither the Legislature nor the Supreme Court caused “severe damage to civic health and trust in government.” If anyone is to blame for that outcome, it is the editorial board.
There are still several crimes that constitute aggravated murder in Oregon. Those crimes are still subject to the death penalty. The people still have an opportunity to decide whether to abolish the death penalty in Oregon by passing a constitutional amendment, just as they did in 1914 and 1964. I welcome the debate, which I hope will be fully informed by consideration of the decades of exorbitant costs, dysfunction, arbitrariness, and racism that continues to infect capital punishment. The people are best served when they are provided with accurate, not misleading, information.
Jeff Ellis
Ellis is co-director of the Oregon Capital Resource Center, which filed an amicus brief in support of defendant David Bartol whose death sentence was overturned by the Oregon Supreme Court.
https://www.oregonlive.com/opinion/2021/10/opinion-death-penalty-ruling-...
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