Oregon State Bar Bulletin — MAY 2002

Parting Thoughts
A Just Punishment
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.

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

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