It’s nearly impossible to die by state execution in Oregon. After September 29, it will become even less likely.
First, a person will need to commit a crime that meets Oregon’s recently revised definition of aggravated murder. That means someone will need to be accused of either committing a murder that is an act of terrorism; intentionally killing a person younger than 14; intentionally killing a police or corrections officer; killing a fellow prison inmate; or—if they’ve already been convicted of aggravated murder—committing another murder.
Then the person’s case will have to go to trial, cycle through sentencing and appeals proceedings—a process that can drag on for decades—and come out the other side sitting on death row. But that’s not the end of the line. For the execution to be carried out, the governor of Oregon will need to lift the state moratorium on executions, which has been in place since 2011. In that case, the Oregon Department of Corrections (DOC) would need to restock its lethal injection supply (it hasn’t bothered carrying it since the moratorium went into effect), and likely train a crew of employees who have never before participated in an execution.
If all those things happen, then a person could be put to death in a state-sanctioned execution in Oregon. It would be the first time a person has been executed by the state since 1997.
The odds of this happening anytime soon are slim, especially after Oregon’s Senate Bill 1013 becomes law on September 29. SB 1013, passed in the 2019 legislative session, narrows the definition of aggravated murder—the only crime punishable by death in Oregon—to further lessen the chances of a person dying in a state execution. Proponents say the new law will help limit the use of a policy that is a fiscal, logistical, and emotional strain on Oregon’s criminal justice system.
“You have defense attorneys, judges, prosecutors, corrections officers, victims’ family members all going through this charade of the death penalty when everybody knows it’s not going to be implemented,” says Bobbin Singh, the executive director of the Oregon Justice Resource Center. Singh is among the most vocal supporters of SB 1013.
“I would go so far as to say [district attorneys] are acting negligently in trying to pursue the death penalty,” he says. “Because they’re pursuing a punishment they know can’t be implemented in this state.”
Not everyone agrees. A dispute over the scope of SB 1013, and how it will apply to the 33 people currently sitting on Oregon’s death row, almost drove Governor Kate Brown to hold a special legislative session this month to amend the contended portion of the law.
While Brown won’t be letting the state legislature rehash the bill in a special session, the story behind SB 1013—and the animus it’s inspired since being signed into law—raises a question: What’s keeping Oregon from abolishing the death penalty?
“Aggravated murder cases that result in death sentences are more complex: More time, more effort, and more resources means more money on average, per case. This is a simple fact.”
Oregon’s tenuous relationship with capital punishment stretches back to 1850—before the territory officially became a state—when it carried out its first state-sanctioned execution by hanging five Cayuse tribal men accused of killing a Pro- testant missionary in Oregon City. The death penalty was officially legalized in 1864 when Oregon gained statehood, only to be repealed by voters 50 years later. Between 1914 and 1984, the state flip-flopped on the death penalty six times—abolishing and then reinstating it again through ballot measures and Oregon Supreme Court decisions. Most recently, a 1984 ballot measure legalizing the death penalty passed with 55 percent of the vote.
“No other state has a history like that,” says Robert Dunham, executive director of the Death Penalty Information Center (DPIC), a national think tank that analyzes capital punishment policies.
Since Oregon’s death penalty was reinstated in 1984, only two people have been executed, in 1996 and 1997.
But while Oregon’s use of capital punishment has been limited in the last 35 years, the death penalty has heavily burdened the state’s court system. Under Oregon law, the only crime punishable by death is aggravated murder, a term used to describe murder that is premeditated or meets one of the legal criteria for being “especially egregious,” such as being accompanied by torture or involving more than one victim. Not all aggravated murder cases end up being death penalty cases—but those that are can cost the state between $800,000 and $1 million more to prosecute than standard aggravated murder cases, according to a 2016 cost study authored by Aliza Kaplan, a professor at Lewis & Clark Law School and co-founder of the Oregon Innocence Project.
That’s because death penalty trials require hiring pricey “death qualified” defense attorneys, tracking down multiple subject experts and researchers, orchestrating an unusually rigorous jury selection process, and allowing for a decades-long appeals process.
“Aggravated murder cases that result in death sentences are more complex: More time, more effort, and more resources means more money on average, per case,” reads the study. “This is a simple fact.”
Further complicating matters is the fact that, unlike other states with the death penalty, Oregon does not require prosecutors to notify defense lawyers before the case begins whether they will be pursuing the death penalty. This means that even cases that don’t end up being tried as death penalty cases might still require all the preparation that capital punishment cases call for.
“[In Oregon,] death’s always on the table, until it’s not,” Kaplan told the Mercury. “The defense lawyers then get into death qualified mode, and lawyers and investigators and mitigators are all assigned. This person has a huge team, and they’re moving forward like it’s a death penalty case.”
As part of the study, Kaplan and her colleagues interviewed a wide range of people in Oregon’s criminal justice system—including prosecutors, defense attorneys, judges, and researchers—about how capital punishment affects their work. The overwhelming sentiment was that the death penalty is a detriment to people’s work lives and psyches. One county district attorney told Kaplan that he once spent 40 hours a week for many months preparing to try a death penalty case, forcing him to cram the other work his job required outside of those 40 hours.
“What we came up with is that the cost of the death penalty is obviously more than the money—it really takes a major toll on everybody involved in the system,” Kaplan says. “In general, nobody’s really for it. Tons of people—people I wouldn’t expect, from the Department of Justice and the judges we spoke to—said outright, ‘If the death penalty went away tomorrow, I don’t think anyone would be upset.’”
And in the unlikely event a death sentence is carried out in Oregon, things get even more complicated. Semon Frank Thompson was the superintendent of the Oregon State Penitentiary during the last two executions in the 1990s. No prior executions had been carried out since the 1960s, when death by lethal gas was the preferred execution method in Oregon. Thompson had the task of developing a new protocol for lethal injection—thought at the time to be the most humane form of execution—and training his team to carry it out. The training took so much time that his team accrued a total of $80,000 in overtime.
“None of these [policies] were in place from the moment I received the death warrant,” Thompson remembers. “That was an overwhelming sense of sudden responsibility.”
Thompson is now a death penalty abolitionist, citing the psychological toll the executions took on him and his employees. He remembers his employees telling him they’d lost sleep after taking part in the execution, and he believes some of them may have suffered from post-traumatic stress disorder.
“I cannot express how much emotional pressure that put on all of us,” he says.
The lethal injection process Thompson and his team worried over for months has never again been put to use by the state of Oregon.
“In 1984, when the voters decided to reinstate the death penalty in Oregon, they did so for the crime of aggravated murder. [Voters] made an informed decision about what they wanted.”
SB 1013, which was signed into law by Brown in August, will lessen the death penalty’s impact on Oregon’s criminal justice system. The law essentially limits the definition of aggravated murder in Oregon so severely that, in the future, very few cases will be eligible for the death penalty. It doesn’t abolish Oregon’s death row, nor make Oregon’s moratorium on executions permanent—but according to experts, only a handful of Oregon cases that resulted in death sentences would still qualify as a death penalty case under the new law. That means significantly less money and fewer resources will be spent to determine whether a defendant will be sent to death row, waiting for an execution that will probably never come.
SB 1013 passed without the support of the Oregon District Attorneys Association (ODAA), an advocacy group for Oregon’s county prosecutors. Katie Suver, a deputy DA in Marion County who spoke to the Mercury on behalf of ODAA, called the legislation “hastily crafted” and “an end-run around the will of the voters.”
“In 1984, when the voters decided to reinstate the death penalty in Oregon, they did so for the crime of aggravated murder,” Suver says. “[Voters] made an informed decision about what they wanted.”
Suver has been involved in prosecuting four death penalty cases throughout her career. She says she is personally not opposed to the death penalty when dealing with particularly egregious crimes, or when the defendant needs the individualized attention death row provides to ensure they won’t kill again.
“That said, my job as a prosecutor is to uphold the law and follow the law,” says Suver. “If there was no death penalty in Oregon, my job would be exactly the same the next day: to uphold and follow the law.”
Suver says that ODAA’s position on SB 1013 was constant throughout the legislative process. But the conversation around the bill didn’t heat up until after this year’s legislative session ended. A decision on a death penalty retrial case in Washington County brought to light a misunderstanding over whether the law was retroactive, applying to cases that were decided before the bill was signed into law. The law will not automatically free anyone on death row, but it will apply to people previously sentenced to death who are granted a retrial through the appeals process.
Arguments erupted over whether those previously sentenced to death deserve the same treatment as any other defendant when re-tried. The ODAA then led the push to hold a special legislative session and “fix” the bill.
Brown ultimately declined to hold a special session, saying she had not received a proper proposal for amending the new law. But in the weeks leading up to Brown’s decision, death row inmates’ names and cases from years or decades ago were thrust into the spotlight, showing up in media reports and political communications about the law. Oregon State Representative Jennifer Williamson—one of the bill’s champions—found herself the subject of intense scrutiny, with many blaming her for causing the confusion over the bill’s retroactivity. In an email to the Mercury, Williamson characterized her opponents’ actions as attempts to “create confusion and fear around the new law.”
“I knew there would be pushback,” Williamson wrote. “I didn’t expect it would take the form it did or become as personal as it has. I certainly didn’t expect experienced lawyers to throw up their hands and suddenly claim they didn’t understand basic concepts of criminal and constitutional law or understand a bill as written.”
The death penalty is so arbitrary that each guy fears he is going to be the one who gets it.”
Kaplan’s cost study does identify one reason why Oregon prosecutors may be reluctant to narrow the state’s use of the death penalty: It can be a useful tool when working out plea bargains. Kaplan interviewed ODAA members, including Clackamas County DA John Foote, about how plea bargaining works in cases that have the potential to end in death sentences.
According to the study, the ODAA was clear in a letter to Kaplan that “plea bargaining must not be misconstrued as district attorneys leveraging the possibility of death in the interest of exacting a plea.” But individual instances laid out in the study suggest the death penalty is a powerful tool a DA can wield when negotiating with defense teams. In one case described in the study, a DA was eager to have a defendant imprisoned for life because “he felt that the defendant was a very dangerous person.”
“Because the evidence was complex and circumstantial, both the prosecution team and the judge believed it would be preferable to have a bench trial,” the study reads. “The defendant agreed to waive a jury trial and leave the case consolidated for a bench trial in exchange for the prosecution’s agreement not to seek the death sentence.”
Jeff Ellis, a Portland defense attorney who has represented multiple inmates on death row, is quoted in the cost study. Ellis says that from the defense’s point of view, the possibility of the death penalty—moratorium or not—can have a big impact on a defendant’s frame of mind.
“The death penalty is so arbitrary,” Ellis says in the study, “that each guy fears he is going to be the one who gets it.”
Suver dismisses the idea that the possibility of the death penalty is ever used as a bargaining chip.
“Looking at the question of whether leveraging the death penalty is something I’ve seen in practice—the answer is no,” she says.
No matter how narrowly the legislature redefines aggravated murder, lawmakers can’t completely overturn the death penalty in Oregon. Because it is written into the state’s constitution, repealing it would need to be done by statewide vote. Since the turn of the 21st century, nine US states have abolished the death penalty—but none of those states had to take it to a public vote.
While a ballot measure would be the most direct way to abolish the death penalty in Oregon, few criminal justice reform advocates are eager to see an electoral fight over capital punishment. Both Williamson and Sen. Floyd Prozanski, another champion of SB 1013, told the Mercury they feared putting the issue to a vote would bring about even more of the fear-mongering politics that the fight over SB 1013 brought to the surface.
As a teenager growing up in Texas, Prozanski’s sister was murdered. He says he knows how easily emotion can bleed into issues of policy.
“I don’t think it’s fair to voters to ask them to make those kinds of decisions,” Prozanski says. “When I heard my sister was murdered, the first thing I wanted to do was grab a gun and go hunt down the guy who did it.”
Dunham, of the Death Penalty Information Center, also warns against putting the issue to a statewide vote.
“When the pandering disappears and the fear-based decision making disappears, and when the policy gets judged as a policy, that’s when repeal is most likely to happen,” he says. “That is why many death penalty opponents don’t like going for a referendum: Because a referenda campaign is especially susceptible to fear-mongering.”
There are other ways Oregon could continue to limit the role of the death penalty. Brown could commute the sentences of all death row inmates; the legislature could further narrow the definition of aggravated murder; or the state Supreme Court could decide that Oregon’s use of the death penalty conflicts with the state constitution.
As it stands now, Oregon is in a state of contradiction.
“It almost feels like we really want to have [the death penalty],” says Kaplan, “but we never want to use it.”
“There’s definitely people in our criminal justice system that like having that toughness behind them and want to use that,” Kaplan adds. “But at the same time, for so many reasons—legal, moral, cost, all these other reasons—we’ve never been able to make it work. So there is just this unbelievable tension in wanting it, keeping it, feeling so strongly about it, and then on the other hand not being able to get it right, or not being able to move forward. It just seems to go on and on and on.”
In the course of reporting this story, the Mercury emailed the Oregon Department of Corrections with a question: If the moratorium on the death penalty were lifted tomorrow, and the DOC is called upon to begin executing people again, what would it need to do to prepare?
A DOC spokesperson declined to answer.
“We cannot speculate,” she wrote, “about theoretical situations and events.”