Legal History

From the 2006 9th Circuit Handbook. This section is currently being updated to reflect the current law and we will add hyperlinks to all case opinions/statutes/rules.

Sections

• General Overview
• Capital Offenses
• Representation in Capital Cases
• [Standard for Representation]
• Trial of Capital Offense
• Capital Sentencing
• Penalty Hearing
• Aggravating Circumstances
• Mitigating Circumstances
• Appellate Review of Capital Sentences
• Collateral Remedies
• Postconviction Relief
• Habeas Corpus
• Appellate Review of Collateral Proceedings
• Procedural Bar/Waiver/Exhaustion
• Execution
• [Method of Execution]
• Competency for Execution
• Stays of Execution
• Clemency Procedures

• General Overview

Oregon’s death penalty history reflects ambivalence toward capital punishment. In 1864, the legislature established the death penalty for first degree murder and provided the court with discretion to decide punishment. In  a 1914 constitutional amendment initiative, Oregon voters abolished capital punishment. However, six years later the legislature reinstated the death penalty but allowed the jury to make a binding recommendation for a life sentence. In 1964, voters again abolished capital punishment by popular vote. Although voters reinstated the death penalty in 1978, the Oregon Supreme Court invalidated the new law.

In 1984, voters adopted Oregon current death penalty law for aggravated murder. The law, modeled after a Texas capital punishment statute approved by the U.S. Supreme Court in Jurek v. Texas, 428 U.S. 262 (1976), allowed for a jury to imposed the death penalty after a sentencing hearing if it answered three statutory questions affirmatively. In response to the Supreme Court’s decision in Penry v. Lynaugh, 492 U.S. 302 (1989), the 1989 Oregon legislature amended its statute by adding a fourth sentencing question that assured jury consideration of all mitigating circumstances. In State v. Wagner, 309 Or. 5. 5, 785 P.2d 93 (1990), the Oregon Supreme Court, troubled with the imprecise grammar of the 1989 amendment, clarified the constitutional requirements of the new legislation. Consequently, the 1991 legislature rewrote the fourth question to simply ask the jury whether the defendant should receive a death sentence.

United States Supreme Court

Penry v. Lynaugh, 492 U.S. 302 (1989) (requiring jury consideration of mitigating evidence at death sentencing).

Jurek v. Texas, 428 U.S. 262 (1976) (upholding Texas capital punishment statute against Eighth and Fourteenth Amendment attacks).

Oregon Supreme Cout

State v. Wagner, 309 Or. 5, 786 P.2d 93 (holding pre-1989 death penalty statute requires submission of additional question to sentencing jury, allowing jury to conclude mitigating evidence justifies life sentence; clarifies additional question to be asked pursuant to 1989 amendment), cert. denied, 498 U.S. 879 (1990).

State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981) (finding Oregon 1978 death penalty statute unconstitutional because it required the court to base its death penalty decision on a factual determination of the criminal act, which should be a jury decision).

Oregon Statutes:

ORS § 163.105 (providing death penalty for aggravated murder).

ORS § 163.150 (requiring sentencing hearing, before trial jury, to determine death or life sentence).

• Offenses

Aggravated murder is the only capital offense in Oregon. A defendant convicted of aggravated murder is sentenced to death, life imprisonment without the possibility of release, or life imprisonment (a minimum of thirty years without possibility of parole).

Aggravated murder requires a finding of murder, as defined in ORS §163.115, plus a finding of on of twelve aggravating circumstances. In State v. McDonnell, 313 Or. 478, 837 P.2d 941 (1992), the Oregon Supreme Court found that the aggravating circumstances listed in ORS § 163.095 presumptively constitute a narrow class of conduct sufficient to justify a death penalty.

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court held that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on those who were under the age of 18 at the time of their crimes were committed. Prior to Roper, Oregon law also provided that the death penalty may not be imposed upon a person who was minor at the time the offense was committed, although the offender will be prosecuted as a adult if older than 15 years at the time of the offense.

Although no Oregon statute currently prohibits execution of the intellectually disabled (formerly “mentally retarded”), on June 20, 2002, the U.S. Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the execution of the intellectually disabled constitutes cruel and unusual punishment prohibited by the Eighth Amendment.

United States Supreme Court

Roper v. Simmons, 543 U.S. 551 (2005) (holding that Eighth and Fourteenth Amendments forbid imposition of death penalty on those who were under the age of 18 at time their crimes were committed).

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the intellectually disabled violates the Eighth Amendment’s prohibition against cruel and unusual punishment).

Oregon Supreme Court

State v. McDonnell, 313 Or. 478, 837 P.2d 941 (1992) (holding aggravating circumstances listed in § 163.095 presumptively constitute narrow class of conduct sufficient to justify death penalty).

Oregon Statutes

ORS § 137.707 (prohibiting death penalty for offenders under 18 at time of offense)

ORS § 163.105 (providing death, life without parole, or life sentences for aggravated murder).

ORS §163.115 (defining murder)

ORS 163.095 (defining aggravating murder)

• Representation in Capital Cases

An indigent defendant’s right to counsel attaches at arraignment. In Oregon, all counsel appointed to represent indigent defendants at trial and postconviction proceedings are contract appointments. Effective October 1, 2001 the Public Defense Services Commission (PDSC) assumed responsibility for the Office of Defense Service (formerly the state public defender). The PDSC maintains contracts with capital counsel who meet established competency standards. Upon a determination of indigency, the circuit court appoints counsel in compliance with the applicable PDSC contracts for all stages of capital representation.

Upon imposition of a death sentence and a showing of indigency, the Oregon Supreme Court appoints counsel to  represent the defendant on automatic appeal. The supreme court appoints counsel from the Legal Services Division of the Office of Public Defense Services unless that office has a conflict of interest or lacks the capacity to undertake the representation for budgetary or other reasons, or the court has a reasonable and objective basis to believe that the office could not provide adequate representation to the defendant. Generally, trial counsel is not represented for the appeal. The supreme court may limit the number of compensable hours appellate counsel may expend on the case without further review. At all stages of representation, capital counsel’s pay is $55 per hour.

Oregon Supreme Court

State v. McDonnell, 313 Or. 478, 837 P.2d 941 (1992) (holding that a defendant has not state constitutional right to act as co-counsel in capital punishment trial proceedings).

Oregon Statutes

ORS §135.045 (providing for court appointment of criminal counsel at arraignment)

ORS § 135.050 (providing eligibility for court-appointed counsel).

ORS § 138.590 (providing for court appointment of counsel at postconviction proceeding).

Oregon Rules

Or. R. App. P. 12.12 (providing appointment of counsel for automatic capital appeal)

Or. Qualification Standards for Ct. Appointed Counsel 3.1 (providing competency standards for capital counsel at trial, appeal, and state postconviction proceeding).

Or Indigent Defense Compensation Policies & Procedures § 3.1(B) (providing fee schedule for contract appointments).

• Trial of Capital Offenses

The circuit court is the state trial court of general jurisdiction. It has original jurisdiction over all civil and criminal cases, including felonies, habeas corpus, and postconviction review. Oregon’s general criminal trial procedures apply to the guilt phase of a capital case. In aggravated murder cases, both the defendant and the state are entitled to twelve peremptory challenges instead of the usual six. To be convicted of aggravated murder, the stat must prove at least one aggravating circumstance listed in § 163.095.

Oregon Statutes

ORS § 136.001, et seq. (providing general criminal trial procedures).

ORS § 136.230 (allowing twelve peremptory challenges in capital cases).

ORS § 163.095 (defining circumstances that constitute aggravated murder).

• Capital Sentencing (Penalty Hearing)

When a defendant is convicted of aggravated murder, the same trial jury, after a sentencing hearing, determines whether the defendant should receive a sentence of death, life, of life without the possibility of release.

At the sentencing hearing, the court may admit new evidence that it deems relevant to sentencing, including victim impact evidence and any evidence bearing on the issue of whether the defendant should receive a death sentence. The jury may consider all evidence received at trial, but the evidence cannot be reintroduced at the penalty hearing.

At the conclusion of the sentencing hearing, the court instructs the jury to consider any mitigating evidence and to return a unanimous verdicts on four statutory questions:

• Whether the murder was deliberate and with expectation that death would result,
• Whether it is possible that the defendant will be a continuing violent threat to society,
• Whether the murder was an unreasonable response to provocation, if any, be the deceased, and
• Whether the defendant should receive the death penalty

If a defendant pleads guilty or no contest to aggravated murder, the court impanels a jury for sentencing purposes. If the state declines to pursue the death penalty, the court will impanel a jury to determine the appropriate life sentence.

United States Supreme Court

Oregon v. Guzek, US (vacating and remanding a decision of the Oregon Supreme Court, which had held that the federal Constitution guaranteed defendant the rights at resentencing to present live alibi evidence from his mother, U.S. Supreme Court held that Constitution does not prohibit State from limiting the innocence-related evidence a capital defendant may introduce at trial; explaining that Supreme Court had not interpreted Eighth Amendment as providing such defendant a right to introduce at sentencing alibi evidence designed to case residual doubt on his guilt of basic crime of conviction; noting that negative impact of rule restricting defendant’s ability to introduce new alibi evidence was minimized by Oregon law giving defendant right to present sentencing jury all the innocence evidence from original trial through transcripts).

Oregon Supreme Court

State v. Guzek, 336 OR. 424, 86 P.3d 1106 (2204) (holding that failure to give jury instructions on “true life sentencing option” in defendant’s third penalty phase proceeding was reversible error where defendant moved to have trial court instruct jury on that sentencing option and expressly waived all ex post fact guarantees), vacated on other grounds.

State v. Sparks, 336 Or. 298, 83 P.3d 304 (holding that nonfamily members of a murder victim could present victim impact evidence during the penalty phase of the trials and that sentencing defendant “to death on a fifteen count” of aggravated murder did not improperly impose multiple sentences of death), cert. denied, 125 S.Ct. 219 (2004).

State v. Oatney, 335 Or. 276, 66 P.3d 475 (2003) (holding that Ring v. Arizona does not require that “deliberateness” can be charged specifically in the indictment before the question of deliberateness can be submitted to a jury, and that unlike in Ring, the trial court did not impose on defendant any punishment that the jury’s answers in the special verdict in the penalty phase did not require).

State v. Rogers, 330 Ir. 282, 4 P.2d 1261 (2000) (vacating death sentence and holding that trial court erred in refusing to permit jury to consider option under § 163.150(5)(a) of sentencing defendant to life in prison without possibility of parole and to permit defendant to waive ex post facto objection to jury’s consideration of that option).

State v. Barone, 328 Or. 68, 969 P.2d 1013 (1998) (holding victim’s opinion of death penalty not relevant to fourth sentencing question; conduct of past crimes admissible at sentencing hearing to establish future dangerousness, notwithstanding stipulation to charge or conviction), cert. denied, 528 U.S. 1135.

State ex rel. Carlile v. Frost, 326 Or. 607, 956 P.2d 202 (holding all evidence properly admitted at first trial and sentencing hearing admissible in new penalty proceeding without an Oregon Evidence Code Rule 403 balancing analysis), remand after reversal, 155 Or. App. 260, 958 P.2d 909 (1998).

State v. Cunningham, 320 Or. 47, 880 P.2d 431 (1994) (en banc) (holding federal and state constitutions do not require district attorney to disclose statewide information about similarly situated defendants to analyze disparate treatment in plea bargaining or sentencing), cert denied, 514 U.S. 1005 (1995).

State v. Stevens, 319 OR. 573, 897 P.2d 162 (1994) (stating that standard of relevance set forth in Oregon Evidence Code Rule 401 applies in penalty-phase hearing).

State v. Boots, 315 Or. 572, 848 P.2d 76 (1993) (holding trial court did not err limiting retrial to aggravation enhancement when underlying murder conviction affirmed).

Oregon Statutes

ORS §163.150 (requiring bifurcated capital sentencing hearing; allowing any evidence relevant to sentencing; guilty or no contest please; resentencing).

ORS § 163.150(1)(b) (enumerating four questions requiring special verdicts at sentencing hearing).

• Aggravating Circumstances

To be convicted of aggravated murder, the district attorney must prove at least one of the following eleven aggravating circumstances:

1. receipt of money for committing the murder,
2. solicitation of another to commit the murder,
3. a prior homicide conviction,
4. multiple murder victims,
5. murder involved intentional maiming or torture
6. victim was under 14 years old,
7. victim was a police, correctional, or judicial officer, juror, witness, or employee of the court or parole board,
8. defendant was in custody or had escaped from a penal or correctional facility at the time of the murder,
9. the murder was committed by use of explosives,
10. intentional felony murder, and
11. murder committed to conceal a crime

The jury must agree unanimously on the same aggravating circumstance.

Additionally, the sentencing jury must answer four interrogatories affirmatively to impose the death penalty:

1. Did the defendant act deliberately and with the reasonable expectation that death would result?
2. Is there a probability that the defendant would constitute a continuing threat to society?
3. Was the defendant’s conduct an unreasonable response to provocation, if any? and
4. Should the defendant receive a death sentence?

The jury must agree unanimously on each of the first three questions in order to render a “yes” response.

Oregon Supreme Court

State v. Compton, 333 Or. 274, 39 P.3d 833 (holding that § 163.150(1) and its related jury instruction did not violate Eighth or Fourteenth Amendments and that federal constitution does not require court to instruct jury in penalty phase that it is entitled to consider only aggravating factors that relate to defendant’s character or to circumstances of defendant’s crime in deciding whether to impose death sentence), cert denied, 537 U.S. 841 (2002).

State v. Barrett, 331 Or. 27, 10 P.3d 901 (2000) (holding three aggravated murder convictions, involving same conduct and same victim, did not violate two or more statutory provisions, for purposes of constituting two or more separately punishable crimes).

State v. Langley, 314 Or. 247, 839 P.2d 692 (1992) holding terms “confined” and “otherwise in custody” as used in § 163.095(2)(b) not vague under state or federal constitutions).

State v. Isom, 313 Or. 391, 837 P.2d 491 (1992) (appeal after remand)(holding that state correctional facility, as referenced in § 162.095(2)(f), includes a state correctional facility in any state; §163.095(2)f) not unconstitutionally vague under state and federal constitutions).

State v. Farrar, 309 Or. 132, 786 P.2d 161 (1990) (en banc) (holding § 163.095(2)(d) and (2)(e), defining aggravated felony murder and aggravated murder by concealment, not unconstitutionally vague under state and federal constitutions).

State v. Boots, 308 Or. 371, 780 P.2d 7125 (1989) (holding jury must unanimously agree on manner in which aggravated murder was committed when alternative theories of aggravated murder charged).

State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988) (holding second interrogatory, regarding defendant being a threat to society, is not unconstitutionally vague under state constitution), vacated on other grounds, 309 Or. 5, 786 P.2d 93, cert. denied, 489 U.S. 879 (1990).

State v. Maney, 297 Or. 620, 688 P.2d 63 91984) (holding that term “witness in a criminal proceeding,” found in §163.095 includes someone who has not yet been subpoenaed but whose testimony is desired in a criminal proceeding or grand jury investigation).

Oregon Statues

ORS §163.095 (listing circumstances that qualify murder as aggravated murder).

ORS §163.150(1) (allowing victim impact evidence at sentencing; listing four issues jury must decide after presentation of evidence at sentencing; requiring proof beyond a reasonable doubt on non-mitigating issues).

• Mitigating Circumstances

Oregon death penalty law requires the court to instruct the sentencing jury to consider any mitigating circumstances offered in evidence, including, but not limited to:

• the defendant’s age,
• the extent and severity of the defendant’s prior criminal conduct, and
• the extent of the mental and emotional pressure under which the defendant was acting at the time the defendant committed the offense.

The Oregon Supreme Court, in State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988), rejected the contention that only mitigating evidence casually related to the offense is relevant to the sentence.

The fourth special verdict that a jury must return in a capital case is whether the defendant should receive a death sentence. The legislature added this special verdict to the statute in 1991 so the jury could consider mitigating factors and choose a punishment less than death even when all aggravating factors are present. The court must instruct the jury to answer the fourth interrogatory negatively if one or more of the jurors believe the death penalty inappropriate after considering

• any aggravating evidence,
• mitigating evidence concerning the defendant’s character or background,
• any victim impact evidence, and the circumstances of the offense.

Oregon Supreme Court

State v. Wright, 323 Or. 8, 913 P.2d 321 (1996) (stating that to be relevant to fourth question, evidence must relate to some aspect of defendant’s character or background or to any circumstance of the crime).

State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988) (rejecting contention that all mitigating evidence casually related to offense is relevant to sentence), vacated on other grounds, 309 Or. 5, 786 P.2d 93, cert. denied, 498 U.S. 879 (1990).

Oregon Statutes

ORS 163.150(1)(c) (enumerating mitigating factors; requiring “no” verdict if at least one juror finds sentence less than death is justified).

ORS 163.150(2) (requiring life sentence if no unanimous jury verdict reached).

• Appellate Review of Capital Sentences

When a defendant receives a capital sentence, the judgement of conviction and the sentence receive automatice direct review by the Oregon Supreme Court. The trial court clerk commences the review by serving statutorily mandated papers on the Supreme Court Administrator. Court proceedings are transcribed and forwarded to the supreme court. However, jury selection proceedings are not part of the appellate record unless requested by a party upon a showing of good cause. Death penalty cases take priority over other supreme court cases.

Section 138.012 of the Oregon Revised Statues provides procedures for resentencing when a death sentence is set aside. At the election of the state, the trial court sentences the defendant to life or impanels a jury to determined if the defendant should be sentenced to death, life imprisonment, or life imprisonment without release.

Oregon Supreme Court

State v. Moore, 324 Or. 396, 927 P.2d 1073 (1996) (holding the fourth sentencing question, which vests jury with discretion to impose death sentence contains no burden of proof, does not unconstitutionally preclude meaningful appellate review).

State v. Quinn, 289 Or. 727, 618 P.2d 412 (1980) (holding automatic review is sole direct review in capital review).

Oregon Statutes

ORS §138.012 (providing direct and automatic review for capital cases; defining procedure for resentencing after remand).

Oregon Rules

Or. R. App. P. 12.10(1) (providing procedure for automatic supreme court review of death cases).

• Collateral Remedies

The legislature enacted Oregon’s Post-Conviction Hearing Act to replace the multitude of common law remedies that were available to challenge the lawfulness of criminal convictions. The Act replaces all postconviction collateral remedies except habeas corpus.

Oregon Court of Appeals

Page v. Cupp, 78 Or. App. 520, 717 P.2d 1183 (stating purpose of Post-Conviction Hearing Act), review denied, 301 Or. 338, 722 P.2d 737 (1986).

Oregon Statutes

ORS § 138.540(1) (providing exclusive means for challenging lawfulness of criminal judgement or proceedings; replacing, with the exception of habeas corpus, all common law postconviction remedies).

• Postconviction Relief

A defendant may seek postconviction relief under Oregon’s Post-Conviction Hearing Act, codified at ORS §§ 138.510-138-680. This relief is not available if direct appellate review of the sentence or the conviction is pending.

For conviction or appeals becoming final after August 5, 1989, the petition must be filed within two years of either the trial judgement or the date that the state supreme court’s automatic review is final. The 1993  legislature ste a one-year time period in which to file petitions for convictions and appeals which became final prior to August 5, 1989. Grounds for relief under the Act are:

1. federal or state constitutional violations at trial and on appeal
2. lack of trial court jurisdiction
3. illegal or unconstitutional sentence, and
4. unconstitutional charging statute

The postconviction statute limits standing to the convicted criminal defendant who may waive the right to file. Although the Oregon Supreme Court held that the statute does not recognize the right of a third party or “next-friend”" to files such a claim, see Bryant v. Thompson, 324 Or. 141, 922 P.2d 1219 (1996), the 1999 legislatur enacted law providing for next friend representation. However, the court must personally serve the defendant with copies of all documents filed in a next friend petition proceeding.

The postconviction relief petition is filed in the circuit court in the jurisdiction where the petitioner is imprisoned but can be transferred to the circuit court in the jurisdiction where the conviction occurred. The state responds to the petition by dermurrer, answer, or motion with thirty days unless the court grants an extension. After the state responds, if the petition states a ground for relief, the court conducts a hearing on the merits. A petitioner has a right to be present at any hearing unless the state demurs or the hearing involves only issues of law. The capital inmate has the burden of proving the contents of the petition by a preponderance of the evidence.

The failure of a petitioner to seek appellate review does not preclude relief under the postconviction relief act. However, a petitioner waives any grounds that could have been raised on appeal unless the petitioner did not have counsel on appeal. Finally, the petitioner must raise all known grounds for relief available in the original or amended petition for postconviction relief. The petitioner waives any grounds not raised in the original petition unless petitioner shows that the grounds could not reasonably have been raised in the first petition.

Oregon Supreme Court

Wallis v. Baldwin, 152 Or. App. 295, 954 P.2d 192 (holding one-yea limitation period without escape clause constitutional on pre-1989 convictions), review deneid, 327 Or. 174, 966 P.2d 218 (1998).

Wright v. Thompson, 324 Or. 153, 922 P.2d 1224 (1996) (denying third-party-counsel standing to litigate).

Bryant v. Thompson, 324 Or. 141, 922 P.2d 1219 (1996) ruling no next-friend standing in postconviction death penalty case).

Oregon Court of Appeals

Page v. Cupp, 78 Or. App. 520, 717 P.2d 1183 (holding defendant required to raise all grounds for relief available in original or amended petition for postconviction relief), review denied, 301 Or. 338, 722 P.2d 737 (1986).

Oregon Statutes

ORS § 137.482 (providing for personal service to defendant of all documents in a § 138.510(2) proceeding).

ORS 138.510, et seq. (providing Post-Conviction Hearing Act).

ORS §138.510(2) (providing for next friend standing).

ORS §138.510(3) (providing two-year deadline for filing postconviction petition).

ORS § 138.530 (providing grounds for postconviction relief)

ORS §138.540 (limiting postconviction relief to challenging lawfulness of judgment or conviction).

ORS § 138.550 (providing waiver of grounds for relief)

ORS §138.560 (defining contents of postconviction petition)

ORS § 138.629 (providing hearing; burden of proof).

• Habeas Corpus

Certain collateral relief is also available by petition for writ of habeas corpus. Habeas corpus is available for challenging confinement on grounds other than the lawfulness of the judgment or the grounds upon which it is based; therefore, it is rarely sought in death penalty cases. Grounds for filing a habeas petition are statutorily limited to matters such as revocation of parole, completion of service of the sentence imposed, and conditions of confinement.

Oregon Supreme Court

Bedell v. Schiedler, 307 Or. 562, 770 P.2d 909 (1989) (providing comprehensive discussion of Oregon’s habeas procedure).

Oregon Statutes

ORS §§ 34.310-34.730 (providing for habeas corpus)

ORS § 34-330 (providing that relief available under postconviction petition may not be sought under habeas corpus).

ORS §34.360 (setting forth contents of petition challenging conditions of confinement).

• Appellate Review of Collateral Proceedings

Either party may appeal to the court of appeals within thirty days after the entry of the final judgment of a postconviction petition. The scope of review is the same as in appeals for other criminal actions except that the trial court may provide that the transcript contain only the evidence relevant to the issues on appeal. Also, there is not “escape hatch” provision for the untimely appeal. The scope of review is limited to questions of law appearing on the record, and the appellate court is not authorized to examine disputed questions of fact.

The court of appeals may dismiss the appeal without oral argument or submission of briefs if it finds that the appeal presentes no substantial question of law. Such a dismissal constitutes a decision on the merits of the appeal. A decision on habeas corpus may be appealed pursuant to ORS § 34.710.

Oregon Supreme Court

Hartzog v. Keeney, 304 Or. 57, 742 P.2d 600 (1987) (holding neither court of appeals nor supreme court may try questions of fact on appeal in postconviction proceeding).

Alcorn v. Gladden, 237 Or. 106, 390 P.2d 625 (1964) (holding trial court findings of fact in postconviction proceeding are conclusive and supreme court not authorized to reexamine disputed questions of fact, citing § 138.650).

Oregon Statutes

ORS § 34.710 (providing for appeal of habeas corpus)

ORS § 138.650 (providing for postconviction appeal)

ORS § 138.220 (defining scope of review)

ORS § 138.660 (providing for summary affirmance).

• Procedural Bar/Waiver/Exhaustion

Postconviction relief is not available until completion of direct appellate review in capital cases. Any grounds for relief that could reasonably have been asserted in the direct appellate review may not later be asserted in a postconviction actions unless the petitioner was not represented on appeal. Section 138.550(1) of the ORS provides that the failure of petitioner to seek appellate review or to preserve an issue at trial does not preclude postconviction review of the issue.

Any known ground for relief that is not asserted in the original or amended petition for postconviction relief is deemed waived an may not be asserted in subsequent postconviction petitions, unless petitioner shows that the grounds could not reasonably have been raised in the first petition.

Oregon Statutes

ORS § 138.540 (providing when postconviction petition may be filed; availability of relief)

ORS § 138.550(1) (providing that availability of relief not precluded by failure to appeal or failure to raise issue at trial).

ORS 138.550(2) (providing waiver of claims that reasonably could have been asserted in direct review).

ORS § 138.550(3) (providing waiver of claims that reasonably could have been asserted in earlier postconviction petition).

• Execution

The trial court issues a death warrant upon a hearing after the supreme court’s direct review of the sentence. The defendant must be present at the hearing. If the defendant wishes to waive counsel, the court is statutorily directed to determine whether the waiver is constitutional. At the hearing, the court makes a finding as to the defendant’s competency to be executed and advises the defendant of the right to pursue certiorari to the Supreme Court, state postconviction and federal habeas. The trial court then issues a death warrant to be delivered to the superintendent of the correctional institution. The court is required to personally serve the defendant with all papers filed in a death warrant proceeding, even if the defendant is represented by counsel. The trial court’s order resulting from the death warrant hearing are not appealable.

Oregon’s method of execution is lethal injection. In 2001, the legislature amended the statute to provide that representatives of the media may be invited to witness an execution.

Oregon Supreme Court

Oregon Newspaper Publishers Ass’n v. Oregon Dep’t of Corrections, 329 Or. 115, 988 P.2d 359 (1999) (holding limited access rules as to executions promulgated by Oregon Department of Correction invalid because they limit too severely activities witnesses may see and holding that nondisclosure rules promulgate by the department of corrections invalid to extent they purport to place limits on expression rights of persons who are granted right by statute to be present at executions).

Oregon Statutes

ORS § 137.463 (providing for death warrant hearing and delivery of warrant to prison; providing for no appeal of trial court order).

ORS § 137.473(1) (providing lethal injection as method of execution; providing who may witness execution).

ORS § 137.476 (providing that inflicting lethal injection does no constitute practicing medicine).

ORS § 137.478 (return of warrant after execution).

ORS § 137.482 (providing personal service of documents in death warrant hearing).

• Competency for Execution

The initial death warrant is issued after the circuit court conducts a hearing to address the defendant’s competency to be executed. The court must order a state directed competency evaluation if the defendant wishes to waive his or her right to counsel, if the court has substantial reason to doubt defendant’s competency, or if requested by the state. The court must conduct an additional hearing if either party contests the state expert’s competency assessment. The court lack jurisdiction to issue a death warrant without a finding of competency. According to he Oregon Code, the circuit judge’s competency determination is not appealable.

Oregon Statutes

ORS § 137.463 (providing for death warrant hearing addressing competency; providing for no appeal of trial court order).

ORS § 137.464 (providing for competency assessment by state mental health experts).

ORS §137.466 (providing for hearing on contested competency findings; providing for no appeal of trial court order).

ORS § 137.482 (providing personal service of documents in death warrant hearing).

• Stays of Execution

The initial death warrant is issued after the supreme court affirms the judgment and sentence on automatic review. However, the death sentence is automatically stayed for 90 days and, if the defendant files a petition for certiorari, the sentence is further stayed until the Supreme Court rules on the petition.

Once the Oregon Supreme Court’s review is final, the death warrant is again automatically stayed for 30 days to provide the defendant the opportunity to file a notice of intent to file a postconviction review petition. If a notice is filed and the defendant files a postconviction petition within 90 days, the death warrant is stayed until the postconviction petition is finally resolved. If the petition is not filed within 90 days following the notice of intent filing, the stay of execution will continue provided the defendant demonstrates to the circuit court that progress is being made in the preparation of the petition.

Oregon Statutes

ORS § 137.463 (providing for death warrant issued after hearing).

ORS § 138.686 (providing stays of execution to file petition for certiorari and to file state postconviction petition).

• Clemency Procedures

The state constitution provides that the governor shall have the power to grant reprieves, commutations, and pardons for all offenses except treason. The governor’s discretion is without limitation, except that the governor must exercise it in good faith.

The applicant must serve an application for clemency on the district attorney, the state board of parole and postprison supervision, and the director of the department of corrections. These agencies must provide the governor with all information and records relevant to the application, including, but not limited to, photos of the victim, statements by the victim’s family members, the autopsy report, and a statement by the district attorney.

After receiving the application, the governor cannot grant a request for clemency for at least thirty days. If the governor does not act upon the request within 180 days of receipt, the request lapses. The governor must report each reprieve, commutation, or pardon to the Oregon Legislative Assembly and include a statement of particulars for each case.

Ninth Circuit District Courts

Delaney v. Shobe, 235 F. Supp. 662 (d. Or. 1964) (holding governor’s discretion is without limitation, except that it must be exercised in good faith).

Oregon Statutes

Or. Const. art. V, § 14 (providing for reprieves, commutations, pardons; power of governor).

ORS § 144.649 (formerly § 144.640) (providing governor power to grant repreives).

ORS § 144.650(4) (providing that governor must act on clemency request between thirty and 180 days of receipt).

ORS § 144.660 (providing communication to legislature by governor).