The Oregon Death Penalty--A Fact Sheet

The abolition of the New Jersey death penalty in Dec. 2007 has energized death penalty abolition movements in a number of states. Oregon is one of them. Oregon will differ from many states in that it has the death penalty provided for in its state constitution. Thus, the only way to repeal this constitutional provision will be through a vote of the people. No one has any idea if and when that could happen, but I thought it might be helpful to put together a number of "bullet points" on the Oregon death penalty's history--points that no doubt will be relevant and discussed if an abolition effort is afoot. Many other things could be added. Let's start with a dozen points.

1. Oregon, historically, is generally a "pro-death penalty" state. For 123 years of its 149 year history, it has had the death penalty. The only abolition years were 1914-1920 and 1964-1984.

2. From statehood (1859) through 1903, executions were performed in the counties; a 1903 law moved that to the State Penitentiary in Salem. From 1903 until the abolition of the death penalty in 1964, there averaged one execution per year.

3. The death penalty was abolished during the governorship of Oswald West in the progressive era of American history (1914). West had supported an initiative to abolish it in 1912, but that failed. As a result, four people were executed on the same day in Dec. 1912. Here is one irony of the death penalty. West had rode into office vowing never to have anyone executed under his watch--but more were executed in one year under his watch than under any other Oregon governor. The 1914 initiative to abolish only passed by 157 votes out of more than 200,000 cast (.04%). Women first received the right to vote in Oregon in the 1914 election.

4. A 1958 effort for repeal, voted on the same day that Mark Hatfield was elected Governor, failed by a 48.7% to 51.3% margin. Several additional years working on the issue, coupled with the April 1964 publication of Hugo Bedau's now classic work The Death Penalty in America, led to another vote in 1964 (Bedau, by the way, taught at Portland's Reed College), led to the successful abolition of the death penalty by a 60.1% to 39.9% margin in Nov. 1964. Opponents of the death penalty thought that the issue would be buried, so to speak, once and for all.

5. Increased crime rates in the 1970s, along with the realization that violent criminals made terrible parole risks (which was questioned in the 1960s), led to a late 1970s effort to reinstate the death penalty. Oregon lawmakers tried to forestall the effort by passing the aggravated murder statute in 1977, though without the death penalty.

6. The death penalty was reinstated by a large margin (64.3% to 35.7%) in Nov. 1978. The initiative petition had some flaws in it, however, and it was overturned by the Oregon Supreme Court in Jan. 1981. A cleaned-up effort, the founding of the 'crime victims' movement and upset at the Supreme Court's ignoring the will of the people, led to reinstatement in 1984 by a 75.1%-24.9% margin.

7. The Oregon death penalty was now a part of the Oregon Constitution (Art. I, sec. 40), with an enabling statute. From 1986-1989, around 25 men (and no women) were sentenced to death under the new law. The new law had two penalties for aggravated murder: death or life imprisonment with possibility of parole after 25 years.

8. The Oregon statute, modeled on TX's death penalty law, was the subject of a legal challenge before the US Supreme Court in 1989. The Penry case, out of TX was the lead case, and the Wagner case, out of Oregon, was the Oregon case. The Court decided that TX's law, with three "questions" for the jury to decide, didn't meet constitutional muster. Rather than throwing out the TX and OR law, the cases were remanded.

9. From 1989-1992, OR decided two things: each defendant under the sentence of death had to receive a new sentencing procedure and the death penalty statute (ORS 163.150) had to be rewritten to have a "fourth question." Debate continues whether Oregon did the latter in a constitutionally permissible fashion.

10. After the dust had cleared, about half of the men sentenced to death from 1986-1989 had their death sentences reaffirmed. More men, on the average of one to two per year, began to be sentenced to death. By today (2008), there are 34 men on death row. No women are under the sentence of death in Oregon.

11. Oregon passed its "LWOP" or "life without the possibility of parole" statute in 1989. Thus, juries now have three choices of sentence for a defendant convicted of aggravated murder.

12. As the Oregon Supreme Court has become more comfortable in interpreting the death penalty statute, there have been fewer and fewer remands of death penalty cases. However, the "old cases" (prior to 1989) have been huge money drainers. A few of those cases are the McDonnell, Rodgers and Guzek cases. Oregon has a "ten-step" system in which defendants have 10 legal proceedings available to them after conviction at the county circuit court level.

Conclusion: There are many "live issues" today with respect to the death penalty in Oregon. From the purely legal perspective, many argue that Oregon's aggravated murder statute is the most generous (i.e., pro-prosecutor) statute in the nation. It provides for more than 30 situations where a person can be brought to trial under it. Another issue has to do with the delays in these cases. Articles have been written which argue cogently for the point that it will take the state between 40-45 years from the time of crime to execute some of the men. No one, it seems, will be executed in fewer than 20 years from the time of the crime. This has also led to a lot of debate on the costs of the Oregon death penalty. Since all the defendants are indigent, the state has to pick up costs both for prosecution and defense. Then, there is the issue whether the Oregon statute, especially the "future dangerousness" prong really makes much sense. Oregon also has no proportionality review, which can lead to strikingly different circumstances where a person might get the death penalty.

These, then, are some of the facts and factors providing the context for understanding the death penalty in Oregon today. Further information is in my 2001 book, A Tortured History: The Story of Capital Punishment in Oregon.

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