A blog produced by the Oregon Justice Resource Center discussing the death penalty (capital punishment) in Oregon and in the Ninth Circuit.
One hundred and twenty four people have been executed by the state of Oregon, and despite Oregonian’s ambivalence towards the death penalty, the state continues to sentence people to die.The Oregon legislature first enacted the death penalty by statute in 1864, five years after Oregon became a state. Oregon has since repealed the death penalty three times, twice by vote and once after the Oregon Supreme Court deemed it to be unconstitutional and have reinstated the death penalty by vote three times.In November of 2011 Governor John Kitzhaber placed a moratorium on the Oregon death penalty, saying, “I refuse to be a part of this compromised and inequitable system any longer and I will not allow further executions while I am governor,” during a press conference on November 22 of 2011.(ODOC, 2000, JC of the 9th CC, 2006, Kanter, 2000, and Yardley 2011)
When Oregon adopted the death penalty for first-degree murder, now referred to as aggravated murder, in 1864, executions were a spectacle in the community. In an attempt to lessen this effect and restrict public attendance of executions the 1903 Oregon Legislature amended the law to require that all executions take place at the Oregon State Penitentiary in Salem.Beginning with H.D. Egbert, 24 men were hanged at the penitentiary between 1904 and 1914. In 1912 Gov. Oswald West allowed four men to be executed simultaneously, the most at any one time at the penitentiary. hoping the gruesome spectacle would aid in the abolition of the death penalty. In 1914 Oregon voters voted to amend the state constitution to abolish the death penalty. The vote passed by the narrow margin of 100,552 to 100,395 votes and the amendment became Article I Section 36 of the Oregon Constitution. The death penalty was reinstated only six years later, with the inclusion of an additional sentencing option that allowed the jury to recommend a life sentence.(ODOC, 2000, Jung, 2011, and Banner, 2003)
In 1931 James Kingsley was the last man to be hanged in Oregon.The state then adopted the use of lethal gas for execution, which it considered to be more humane and was used until it was replaced by the modern practice of lethal injection.(ODOC, 2000 and Banner, 2003)In 1964 Oregonians again repealed the death penalty by a 60% vote, but driven by fears that dangerous people were being released into the community too early, voters moved to restore the death sentence through an initiative petition in 1978.Rather than amend the state constitution again, the proposition for the 1978 reinstatement was incorporated into the Oregon Revised Statutes as an amendment to §ORS 163.115 and with the addition of §ORS 163.116. This proposition was poorly worded and short lived; the Oregon Supreme Court struck it down as unconstitutional in 1981 because it denied the defendant a right to a jury trial by allowing a judge rather than a jury to sentenced the defendant. In 1984 the death penalty was restored again and Oregon’s current death penalty law for aggravated murder was adopted and codified as §ORS 163.150. This law was modeled after the Texas capital punishment statute, which allowed for a jury to impose the death penalty after a sentencing hearing only if it answered three statutory questions affirmatively and to choose to sentence the defendant to life with a possibility of parole in 30 years.(ODOC, 2000, JC of the 9th CC, 2006, Long, 2002, and Kanter 2000)
Oregon is the only state to adopt the Texas style capital statute, which puts an emphasis on the “future danger” of defendants, rather than the Model Penal Code version, which emphasizes weighing the mitigating and aggravating factors. After the Supreme Court ruled that the Texas death penalty statute violated the Eighth Amendment in the 1989 case Perny v. Lynaugh, 492 U.S. 302 (1989), the Oregon Legislature amended §ORS 163.150 by adding a fourth sentencing question, which required the jury to consider all mitigating circumstances. The 1989 amendment also added a third sentencing option for aggravated murder of “true life” or “life without possibility of parole”. The 1989 amendment was worded imprecisely, which troubled the Oregon Supreme Court.So the 1991 legislature revised the fourth sentencing question to simply ask the jury whether or not the defendant should receive the death penalty, which allows the jury to choose a punishment less than death even if every aggravating factory is present. Under the 1996 case Oregon v. Wagner, 323 Or. 8, 913 P.2d 321 (1996) mitigating evidence can be used to address the fourth sentencing question so long as it is “relevant to some aspect of the defendant’s character or background or to any circumstance of the crime”. (ODOC, 2000, JC of the 9th CC, 2006, Long, 2002, and Kanter 2000)
In 1996 Douglas Franklin Wright was the first man executed in Oregon since the 1964 repeal. Charles Moore who was executed in 1997 followed him; both men chose to waive their rights to appeal. (ODOC, 2000)
In the 2005 case Roper v. Simmons, 543 U.S. 551 (2005) the Supreme Court held that the Eight and Fourteenth Amendments forbid the imposition of the death penalty on a defendant who was a minor at the time that the crime was committed. This landmark case had little affect in Oregon because the state’s law already held that the death penalty could not be imposed on a defendant who was a minor at the time that the crime was committed even if they were tried as an adult. (JC of the 9th CC, 2006)
In 2011 Governor John Kitzhaber, who is known to disagree with the death penalty, issued a reprieve for Gary Haugen just weeks before he was scheduled for execution and placed a de facto moratorium on Oregon’s death penalty. Like Moore and Wright, Haugen had volunteered to be executed and waived his rights to appeal. There are currently 36 men and one woman on death row in Oregon. (ODOC, 2000, Yardley, 2011, Jung, 2011)
1 Oregon DOC, History of Capital Punishment in Oregon, (2000), available at http://www.oregon.gov/DOC/PUBAFF/cap_punishment/history.shtml
2 Judicial Council of the 9th C.C., 2006 Capital Punishment Handbook, 166-167, 175.
3 William R. Long, A Time to Kill? Reflection on the Oregon Death Penalty, 62-APR Or. St. B. Bull. 9 (2002).
4 Stephen Kanter, Confronting Capital Punishment: A Fresh Perspective on the Constitutionality of the Death Penalty Statuses in Oregon, Willamette L. Rev. 314, 314-315 (2000)
5 William Yardley, Oregon Governor Says He Will Block Executions, N.Y. Times, Nov. 22, 2011, available at http://www.nytimes.com/2011/11/23/us/oregon-executions-to-be-blocked-by-gov-kitzhaber.html.
6 Helen Jung, Gov. John Kitzhaber: Oregon Death Penalty Fails ‘Basic Standards of Justice’, The Oregonian, Nov. 22, 2011, available at http://www.oregonlive.com/pacific-northwest-news/index.ssf/2011/11/gov_john_kitzhaber_oregon_deat.html.
7 Stewart Banner, The Death Penalty, 199-200, 222 (Harvard University Press 2003) (2003)