Oregon lawmakers and death penalty opponents are considering a roundabout approach at gutting the state’s capital punishment law — without sending it to voters.
Since 1984, the death penalty has been enshrined in the Oregon Constitution, meaning it can only be removed by a vote of the people. But under proposals being discussed by Rep. Mitch Greenlick, D-Portland, Sen. Floyd Prozanski, D-Eugene, and others, the policy could be largely dismantled next year via a vote of the Legislature.
“I’m going to try to deal with it right now on a statutory basis,” Greenlick told OPB.
The precise details of the bills Greenlick and Prozanski are considering are still being worked out. But lawmakers and death penalty opponents all describe some general ideas.
Under one possible proposal, the Legislature would alter the definition of aggravated murder, the only crime punishable by death in Oregon. Currently, the definition includes elements such as multiple victims, the inclusion of torture in the crime, an exchange of payment for a killing, and a list of victims such as children or law enforcement officers.
Greenlick and others are considering a bill that would scrub those factors. Instead, the definition of the crime would be limited to deaths resulting from acts of domestic or international terrorism. Elements of a crime that currently meet the standard for aggravated murder would be placed into other degrees of homicide, not punishable by death, they say.
“What’s happened in Oregon is we’ve created an incredibly broad category,” said Jeff Ellis, a Portland attorney and board member of Oregonians for Alternatives to the Death Penalty who is consulting on the proposal. “It’s virtually impossible to commit a murder without committing an aggravated murder.”
By altering the crime’s definition, Ellis said, lawmakers would focus on the “worst of the worst” murders.
One thing that’s not yet clear is whether proponents of the change will seek to make the change retroactive, a move that would result in Oregon’s death row being cleared out. It’s become a matter of debate among death penalty opponents, because some prisoners on death row were sentenced before jurors were given an option of sentencing them to life without parole. That means they’d be eligible for parole if a change was made retroactive.
Ellis estimated that six or seven of Oregon’s 33 death row inmates would be parole-eligible under that change.
A second possible proposal, Greenlick and Ellis say, would change the questions that jurors must answer in capital murder cases in order to sentence a defendant to death. The change would be aimed at making such sentences less likely.
Currently, state law requires jurors to answer “yes” to three or four questions during the sentencing phase, depending on the facts of the trial. Those are:
Whether the person committed the crime deliberately
Whether there is a “probability” they commit further violence in the future
Whether there is evidence the defendant acted unreasonably in response to provocation by the victim
Whether they should be sentenced to death
Ellis says two changes should be made to that list. First, he’d like to get rid of the second question, which asks jurors to predict future violence. Death penalty opponents say it’s an impossible question to accurately answer, and point to studies that suggest jurors frequently get it wrong.
Supporters of the death penalty disagree, arguing that the question is thoughtful and presents another hurdle to prosecutors seeking a death sentence.
“It creates a heavy burden and it also requires that the state produce a great deal of evidence,” said Clatsop County District Attorney Josh Marquis, who has long argued in favor of capital punishment.
Ellis also proposes changing the standard by which jurors must answer “yes” to the final question, whether a defendant should be sentenced to death. It is the only question on the list that does not require jurors to be sure “beyond a reasonable doubt.”
“This is something that essentially says, ‘Let’s just attach the traditional criminal burden of proof,’” Ellis said.