Oregonian OpEd: Capital punishment in Oregon: Kitzhaber should commute all death sentences

Sunday, Nov. 27  Oregon's governor, John Kitzhaber, stopped the impending execution of two-time convicted killer Gary Haugen, granting a "temporary reprieve ... for the duration of my term in office." Haugen's death sentence had been the subject of extensive review and the prisoner himself had argued that he should die. The governor should either have allowed execution to proceed or commuted the sentence. He did neither, treating the prisoner, the victims' families, and the dozens of court and prison officials in this case with cruel irresponsibility.

The governor stated prior executions, over which he presided, have not left society "safe" or "noble." Moreover, the death penalty is unequal, in that those executed are only those who "volunteer," by refusing to appeal their death sentences. Further, the system is "broken," as other states have recognized, and costly, with "evidence of wrongful convictions." Kitzhaber stated he was motivated by his "personal convictions about the morality of capital punishment." It is therefore his intention to bring about a legislative re-evaluation of Oregon's policy and system, to consider "potential reforms."

Nowhere does the governor suggest what these reforms might be. Most troubling is the implication that some reforms might be possible, that the death penalty may be retained and eventually imposed on Gary Haugen and others. This is hardly consistent with the governor's moral repugnance at executing prisoners. And it contributes to the very expense and delay he decries. Most telling, it flies in the face of experience in other states, where the death penalty has been abandoned for the very reason the governor cites: conviction of the innocent.

What the governor needed to address, and failed, is this question: Under any system, reformed to be fair and equal, and in any case, where guilt is clear and fully reviewed, would you carry out the death penalty? It seems his answer must be yes. If so, the Haugen case is such a case and Kitzhaber should respect Haugen's carefully, competently expressed wish to die. If Kitzhaber's answer is no, never, ever execute a prisoner, then logic requires commuting Haugen's sentence to life imprisonment now, and logic further dictates not going through a charade of seeking reforms when none will be sufficient. Indeed, Kitzhaber says as much: He says reform produces only "more uncertainty, fewer options and higher costs."

Thus, at a minimum, the governor is inconsistent. A "reprieve" doesn't cut it. Worse, the governor's fault-finding misses the mark. Consider his criticisms.

Executing prisoners who "volunteer" by declining appeals is actually good policy. Prisoners, properly advised, may competently choose not to exercise constitutional rights. They have not "volunteered" for the death penalty, that decision was made by a judge and a jury, based on evidence in a courtroom. In a state where we allow competent patients to choose physician-assisted death, and where we allow citizens to decline life support when facing terminal illnesses, how can we decline similar autonomy to prisoners? The governor is concerned that the system is expensive. But that is the cost of protecting the public interest in assuring publicly provided safeguards. And whether that expense is justified arguably needs to be viewed through the eyes of the victims' families. Perhaps, as well, we might measure cost by comparison to a state retirement system that pays a football coach $500,000 per year.

The fact that "options are narrowing" is not a bad thing; it is a result of the Supreme Court's decision in Furman v. Georgia 40 years ago, leading to the thoughtful drafting of a Model Penal Code by the American Law Institute, now enacted in every state, including Oregon. The very reform the governor seeks has in fact been in place in Oregon for nearly 20 years and leads to the expense he criticizes.

It is disappointing that Kitzhaber calls for reform without proposing any. Here are three specific possibilities. First, assure that death penalty charges can be initiated only by a state-level, centralized office, independent of district attorneys and the attorney general. Second, require that office to present to the court of appeals evidence establishing reasonable cause to bring capital charges. Third, the death penalty shall not be imposed in any case lacking objective, circumstantial evidence establishing guilt beyond a reasonable doubt, independent of eyewitness testimony.

These reforms would address profound deficiencies in our capital punishment system. The first is the inequality and arbitrariness in those selected to face capital charges. The second is the pretrial inequality in capital cases, where the prosecutors may threaten capital charges without challenge by the defense or judicial review. The third, of course, addresses the most telling criticism of our present system, convicting the innocent, a pattern brought compellingly to public attention by the Innocence Project. It was this that persuaded the governor of Illinois to suspend all executions and commute all death sentences.

Which is what Kitzhaber should have done -- and still should. A wrongful conviction is immoral, a wrongful death even more so. There is no appeal from wrongful death. Even the three reforms proposed above will not change that. And while it may be possible morally to justify execution in the most heinous of cases, it is not possible to ensure doing so without error. And so the justification for capital punishment fails. No reform can save it.

Kitzhaber has shown himself to be thoughtful and courageous in reconsidering the executions he supported years ago. His reconsideration, one may hope, is only part of a developing process. Continuing that process would be healthy and wise and would lead to the conclusion increasingly shared by other states in this country and nations in this world: The death penalty is not only unnecessary, expensive, brutal ... it is simply wrong.

It is not enough to grant Gary Haugen a temporary reprieve. It is essential to commute the death sentences of all 37 prisoners now on death row and to do so now. That is what conscience and morality require of a moral, conscientious governor.

By Arthur B. LaFrance
Published: Tuesday, November 29, 2011, 9:55 AM

Arthur B. LaFrance author is former dean of Lewis & Clark Law School, has defended capital cases, taught criminal law at four law schools and is published in the field of criminal procedure. He is a visiting professor of law at the University of Arizona, where he teaches criminal law.

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