death penalty buzz and proportionality analysis and review and oregon death penalty

This essay builds on the analysis of the previous one by claiming that the argument against the death penalty that carries the best chance of "succeeding" in our society today is based on the idea that many men on Death Row have committed crimes of considerably less heinousness than those who are not on Death Row. And that just isn't fair.

Only one of the Judicature articles (March-April 2006) goes into this argument at any length, and the article is an exceedingly good one. In "If Capital Punishment were Subject to Consumer Protection Laws," Professor David McCord presents data from his still seemingly-unpublished book Lightning Still Strikes to show how the imposition of the death sentence continues to be unconstitutionally arbitrary three decades after Furman, the 1976 US Supreme Court decision allowing the reinstatement of capital punishment.

In this and the next essay I will present material from a clemency brief I wrote in 2002 on behalf of a Death Row inmate in Oregon, Michael McDonnell. I then submitted it to Governor John Kitzhaber before he left office in January 2003. One of the basic points I made was that McDonnell's crime (stabbing someone to death while he was high on methamphetamine), committed just three weeks after the effective date of the Oregon death penalty in December 1984, would not be "death-worthy" two decades after his crime. The Governor gave my argument short shrift at the time but not, I believe, because the argument had no merit. Governor Kitzhaber was burned out as Governor by late 2002 and was nursing considerable personal wounds that made him, I think, much less interested in considering claims of disproportional application of the death penalty than another Governor (or court) might consider. Thus, though the cases that follow are Oregon cases, I present them here to encourage you to develop a data bank of like cases from your own state in order to make the case for abolition even more persuasive.*

[*Note. I wrote this brief before the multiple homicides of Ward Weaver, who didn't receive the death penalty, and Edward Morgan, who murdered his family and didn't receive the penalty.]

Disproportional Death Sentences In Oregon

1. Case # 1. Ronald Moen. On March 14, 1986 the bodies of two women, Hazel Chatfield and Judith Moen, were found in Chatfield's residence south of Salem. Both victims died of gunshot wounds to the head. The defendant, Moen's husband, was indicted for the crimes, and a Marion County jury found him guilty of aggravated murder. He was sentenced to death. His death sentence was overturned in 1990 by the Oregon Supreme Court on Penry grounds. Instead of facing a new sentencing-phase trial, the Marion County district attorney offered the defendant a life sentence with the possibility of parole after 30 years. The district attorney explained the apparent lenience of the sentence on remand with three observations: (1) the likelihood of further remands made quick execution of Moen impossible; (2) the age of Moen at the time made eventual execution unlikely (he was 53), and (3) the physical condition of Moen made it likely he would soon die (he was still alive shortly ago).

It is interesting to compare the facts of the McDonnell case with the Moen case. Moen killed two people; McDonnell killed one. Moen was 53 at resentencing; McDonnal is 51 at the time of this clemency petition. The district attorney beleived that eventual execution of Moen was unlikely. That has been argued and demonstrated here with respect to McDonnell (earlier in my brief). Moen has life with a possibility of parole; McDonnell has a sentence of death. The only significant difference is that Moen had a heart condition in 1990; McDonnell's health is good. A strictly comparative analysis would conclude that McDonnell's sentence of death is more severe than it ought to be.

2. Case # 2. Robert Silveria. Robert Silveria, born in 1959, entered guilty pleas on January 30, 1998 to two 1995 incidents of aggravated murder in Lane and Marion counties. Silveria, a heroin addict, was a transient railroad box car rider across the country for several years. When he was arrested in Roseville, CA on a probation violation in 1996, items on his person included the identification of persons who were homicide victims in OR, CA, KS and MT. He often befriended his potential victims and then beat them to death while they were sleeping. Silveria used his victims' identification to obtain food stamps at government offices around the country.

At the time of his guilty pleas in Oregon, Silveria was also charged with first-degree murders in KS and FL and had already confessed to murders in MT and CA. He was sentenced to two consecutive terms of LWOP in Oregon. He confessed to the KS and FL crimes in order to avoid the death penalty in those states. Ultimately, Silveria was tied to a dozen homicides in seven jurisdictions over a 15-year period. The contrasts with McDonnell, who received the death penalty, are obvious.

I need one more essay to conclude my "case."

1881