Oregon State Bar Bulletin — NOVEMBER 2004

Parting Thoughts
The Odyssey of Oregon’s Death Penalty
By William R. Long

The recent plea bargains of Edward Morris, who killed four members of his family, and Ward Weaver, who murdered two of his teenage daughter’s friends, belie the central argument of those who want to keep the death penalty in Oregon — that the death penalty is reserved for the "worst of the worst." It simply is not true that the death penalty in Oregon is for the "worst of the worst."

In contrast to Morris and Weaver, most of the men on death row killed one person (not many); many of their crimes were not as revolting as Weaver’s and Morris’ crimes. Only one other recent death penalty case (Christian Longo) received nearly the same amount of publicity as either. The most prolific serial killer in Oregon’s history, Dayton Leroy Rogers, may never be put to death because of procedural difficulties with his case. Yet, despite these realities, the state of Oregon is committed to putting to death more than two dozen men you have never heard of and giving the worst murderers lesser penalties. All these men did commit aggravated murder, to be sure; but to have them counting down their days until the state takes their lives, while people who committed multiple grisly homicides are living quietly at OSP flies in the face of those who claim that we only want to execute the worst of the worst. In fact, it makes the administration of the Oregon death penalty law look downright capricious.

It wasn’t meant to be this way. When the death penalty statute was overwhelmingly approved by initiative petition in 1984, the thought was that death could be administered more quickly and cheaply to aggravated murderers than maintaining them in prison for life. But of the several unexpected monkey wrenches that have been thrown into the application of the death penalty statute since then, the most crippling has been the realization that the costs of actually prosecuting potential death penalty cases so exceed the costs of a plea or a sentence of life imprisonment without the possibility of parole that it drains the budgets of both district attorneys and the state indigent defense fund to do so.

And once a person is sentenced to death, he has more appeals than Odysseus had trials in his "odyssey" back home after the Trojan War. With all these factors weighing on prosecutors, is it any wonder that a plea bargain is seen as the best solution?

But the result of the pleas in these cases brings into stark relief the fact that the men on death row are probably those who were "easier" to prosecute, either because the evidence was clearer or there were no family members that stood in the way of pursuing the death penalty. In any case, what results is a death penalty statute that does exactly what the US Supreme Court says a death penalty statute ought not to do.

The whole purpose of the Supreme Court’s suspending the death penalty in the US in the early 1970s was because its application had become too capricious. Juries were putting people to death in one county for an offense that wouldn’t get the same penalty in a neighboring one. The Court was insistent that in order to have a death penalty that "worked," methods had to be developed to rid the process of caprice.

Oregon has shown for all to see, though the plea bargains of Edward Morris and Ward Weaver, that the administration of the death penalty in Oregon is now capricious. As such, the only responsible civil action at this point is for the citizens of Oregon to abolish the death penalty. We have a penalty, life imprisonment without the possibility of parole, which works. It has been in place 15 years, and not one person receiving that sentence has ever been released. The state is protected at less cost through this punishment.

By keeping the death penalty in Oregon we show that we continue to be "tough on crime," but on whom are we tough? Certainly not the worst. We will kill the junkie who happened to murder a person who didn’t pay his "bills;" a person high on methamphetamine who killed a hitchhiker he picked up; a drunken person who killed someone chasing him. But, we can’t kill a man who sawed seven women to death, another who killed his family, or one who sexually assaulted and then murdered two of his own daughter’s friends and then conducted media interviews on the slab under which one was buried.

Maintaining the Oregon death penalty in the face of these new realities is the acme of hypocrisy.

William Long is an adjunct professor at Willamette University College of Law.

© 2004 William Long

William Long is an adjunct professor at Willamette University College of Law.

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