Death Penalty Response
Bill Long 5/20/05
In the November, 2004 edition of the Oregon State Bar Bulletin, I argued that recent plea bargains resulting in less than a death sentence in two cases where defendants committed multiple murders supported the notion that the death penalty is now capriciously applied in Oregon, since most of the men on Death Row today committed only one homicide. Just today, in the May 2005 edition of the Bulletin, AAG Kathleen Cegla has taken issue with my argument. While at first inclined to listen closely to what she has to say, I realized upon reading her article that not only has she misconstrued my argument, but her basic philosophy is one which maintains that anything DA's and juries do is by definition beyond reproach because anyone who disagrees with them obviously wasn't on the jury or negotiating the plea. Reduced to its essentials, then, Ms. Cegla's argument not only ignores my central contention but introduces an argument whose implication is that no one can really pass judgment on the Death Penalty in Oregon today.
Ms. Cegla's Argument
She makes several contentions in response to my Nov. 2004 argument. I made the point that multiple murderers got less than death and that therefore the contention by DAs that the "worst of the worst" are on Death Row is patently wrong. Ms. Cegla's point--that you really can't second-guess DA's since they are the ones who negotiate plea bargains, is one that even the most brazen DA wouldn't make. Indeed, my point is not that any one case ought not to be plea-bargained but that when you look at the penalty as a whole and consider the totality of people on Death Row, you have drastic inconsistencies in sentence. I think that Ms. Cegla is caught up in the trees and cannot see the forest. Maybe Edward Morris (murderer of four) should be plea-bargained. Maybe Ward Weaver should have been. But, you can't make that argument when you put Michael McDonnell or Ernest Lotches on Death Row.
She also points out, correctly, that any person incarcerated for a crime has as many appeals as a person on Death Row. Certainly that is true, but it rather misses the point. My point is that the cost and time involved in death penalty appeals far exceeds that of life imprisonment without the possibility of parole. She doesn't seem to answer that point.
Then, she goes on to deal with the issue of capriciousness, arguing that "capricious application of the law requires more than disagreement over which defendants constitute the 'worst of the worst.'" But what does she contend is the essence of caprice? She is silent on the issue. I made the argument that the worst of the worst are not on Death Row and that those on Death Row are not necessarily the worst of the worst. Certainly we can disagree on criteria regarding what constitutes the "worst of the worst," but when I laid out one that is a pretty clear one (multiple vs. single homicide), she not only does not join issue with the argument, but meekly hides behind the jury and the DAs. Whereas the pious Christian might sing, "What ever my God ordains is right," Ms. Cegla seems to be saying, "Whoever the DAs and juries believe is the worst, must be the worst." We could get dizzy going around in circles on that one.
Conclusion
Ms. Cegla states her "bottom line" point pretty clearly: "And we must always remember that the jurors--not Mr. Long or anyone else, no matter how well-intentioned--is in the best position to determine who is the "worst of the worst." The direct implication of that point is that NO ONE can question the death penalty in Oregon, because, no one was on all the juries or sitting in on all the plea bargains. My goodness. How brazen of me to ask a question or make an argument when I wasn't on all the juries or in all the negotations. I'm sorry.
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