Oregon State Bar Bulletin — MAY 2002
| Parting Thoughts |
By Josh Marquis
William Long is properly disturbed by the horror of the
murders committed by Dayton Rogers that have resulted in two juries
sending him to Oregon's death row (OSB Bulletin, 'A Time to Kill?',
April 2002). Yet Long seems to think the other 25 men on our state's
death row 'are ghastly but not nearly as cruel' as Rogers.
Just how horrific do child murderers and serial killers have to be to
measure up to Long's standards? Take just the three Oregon inmates featured
in the notorious $20 million Benetton ad campaign of 2000: Cesar Barone,
misogynist and serial killer; Conan Hale, who slowly killed three young
teenagers; and Jesse Compton, who tortured his girlfriend's tiny daughter
in ways too horrible to describe. These killers represent exactly what
Oregonians intended when they voted overwhelmingly in 1984 (in what
Long terms 'an astonishing margin') to reinstate the penalty
voters had abolished 20 years earlier.
One need not practice criminal law to recognize that even in a crime
as bad as murder, these are particularly horrific and are denominated
as aggravated murder under Oregon law.
Having both defended and prosecuted capital murders, I see the need
for skilled counsel on both sides of a capital murder case. In Oregon
an indigent charged with a crime carrying the possibility of a death
sentence will be appointed high quality counsel who will have every
tool money can buy. Long, and other death penalty opponents (like the
Oregon Criminal Defense Lawyers Association that published Long's book)
claim the death penalty is 'fatally flawed.' The new mantra
of abolitionists, who seem to eschew the legitimate moral argument that
the state simply shouldn't kill people, is that even if one supports
the concept of capital punishment, it is fatally flawed because it is
inherently racist, there is a high risk of innocents ending up on death
row, and the indigents charged with capital murder get cheap and poor
representation.
The problem for foes of Oregon's death penalty is that none of the three
scenarios applies in our state. Only one of 26 death row inmates is
African-American. No one on death row has raised a credible claim of
actual innocence. And Oregon spends more on indigent capital defense
than almost any other state in the country.
Long seems to imply that the long drawn-out appellate process that combs
through capital convictions over and over to find any legal flaw is
evidence that Oregonians are undecided about the death penalty. Not
according to polls conducted by the Oregonian and more significantly
by the 'Life for Life' campaign that has tried unsuccessfully
to get abolition of capital punishment on the ballot twice since 2000.
That campaign, which sought to replace capital punishment with a mandatory
life sentence without possibility of parole in every aggravated murder
conviction, called off their 2002 effort on the last day of February
citing the atmosphere created by the events of the last year. This group,
which had collected more money than any other initiative campaign, had
a stellar list of supporters that included the current and former governors
of Oregon and a who's who of Oregon journalism, politics and the arts.
Yet they recognized that the same Oregonians who elected John Kitzhaber
and Ron Wyden - the same voters who approved medical marijuana and assisted
suicide and abolished civil forfeiture - have repeatedly affirmed their
support for the death penalty for the worst of the worst.
Long seems to imply that Oregon's Supreme Court was incapable of juggling
the legal challenge to Measure 11 (which had nothing to do with capital
punishment) and the handful of capital cases that are before the court.
Yet a study by the Oregonian's Tony Green showed that 68 percent of
capital cases were overturned in state court, sometimes two or even
three times, demonstrating the extraordinary scrutiny to which capital
convictions are subjected. Most of these appeals have meant the condemned
killers, like Rogers, spend more than a decade on death row.
Far from signaling ambivalence, these lengthy delays and retrials bear
witness to the extreme care given to the most extreme penalty. The death
penalty is seldom sought by Oregon prosecutors and even more rarely
imposed by juries. It is properly reserved for the worst of the worst.
Oregonians understand that there exist some crimes so unspeakable, some
men so evil, that a just punishment is the forfeiture of the killer's
own life.
ABOUT THE AUTHOR
Joshua Marquis, district attorney of Clatsop County since 1994, is immediate
past president of the Oregon District Attorney's Association and is
Oregon's state director on the board of the National District Attorneys
Association. He frequently debates the death penalty in various national
venues and is one of six authors of a book to be published next year
by Oxford University Press on the death penalty in America
© 2002 Josh Marquis