Oregon State Bar Bulletin — MAY 2005

Parting Thoughts
Oregon’s Death Penalty:
Another View

By Kathleen Cegla

In the November 2004 issue of the Bulletin, William Long announced that "the administration of the Oregon death penalty law looks downright capricious." The basic premise of Mr. Long’s essay is that, under the Oregon sentencing scheme, the "worst of the worst" are not receiving the death penalty, and therefore, the law is being applied capriciously. Mr. Long relies on several commonly made arguments that, at bottom, are simply his disagreement with the results of these prosecutions.

His first evidence of capricious application of the law is that Edward Morris and Ward Weaver recently were spared the death penalty through plea negotiations. But, unless Mr. Long has discussed all aspects of each case with the two district attorneys who made these decisions, he is not in a position to second-guess them.1 Similarly, when a jury imposes a death sentence, the jurors heard all of the relevant evidence and saw and heard all of the witnesses. We are in a very weak position to second-guess those jurors — who, like the district attorney, were chosen to represent their community — when they conclude that a particular defendant is among the "worst of the worst."2

Mr. Long also contends that the process is too time-consuming and expensive, stating that "once a person is sentenced to death, he has more appeals than Odysseus had trials." But he overlooks the fact that the same review process is available for anyone convicted in Oregon of any crime (except that capital cases first go straight to the Oregon Supreme Court). Some of those challenges can take as long as the capital cases. See, e.g., Wells v. Maass, 28 F3d 1005 (9th Cir 1994) (1985 negotiated attempted-murder conviction overturned in 1994); convicted on retrial and currently on appeal from his post-conviction challenge (case number A121252). Surely Oregonians want those who receive the harshest penalty to have the same appellate review that every other inmate can get, even if the process is lengthy and expensive.

Third, Mr. Long writes that the U.S. Supreme Court suspended the death penalty to eliminate county-to-county bias in capital cases. But the Court has never so held. See Pulley v. Harris, 465 US 37, 43-44 (1984) (Eighth Amendment does not require state courts to compare death sentence imposed on one case to other cases); State v. Cunningham, 320 Or 47, 64-68, 880 P2d 431 (1994) (no statewide "proportionality review" required before death sentence may be affirmed; within county, prosecutorial decisions must be made under permissible criteria, consistently applied). Capricious application of the law requires more than disagreement over which defendants constitute the "worst of the worst," which is all that lies at the heart of Mr. Long’s arguments.

Finally, when discussing this issue, we should speak the truth about what those on death row did to deserve the death penalty. For example, Mr. Long implies that "a drunken person who killed someone chasing him" should not be on death row. He might be referring to Ernest Lotches, who killed someone who was "chasing him." But Mr. Long leaves out these facts, which most people would consider relevant: 1) Lotches initiated a confrontation that triggered the chase through downtown Portland; 2) he shot an unarmed Portland Guide who was following him; 3) William Hall, an armed security officer, then exchanged gunfire with Lotches; 4) Lotches fled and tried to carjack a woman and her 9-year-old grandson at gunpoint; 5) he then shot and killed Hall, who had continued to pursue him; 6) uninjured, Lotches fled again and carjacked a truck at gunpoint; 7) when a police officer caught up to him, he shot at that officer and 8) finally, when surrounded by armed police officers, he surrendered. State v. Lotches, 331 Or 455, 457-60, 17 P3d 1045 (2000).

Does the additional information cast a different light on whether Mr. Lotches should be on death row? Although we may have disagreements about the death penalty, the very least we can do is be honest about why the law has been used against certain defendants. And we must always remember that the jurors — not Mr. Long or anyone else, no matter how well-intentioned — are in the best position to determine who is the "worst of the worst."


1. The district attorney represents the populace of each county and can be replaced by the voters. That is also part of the criminal legal process.

2 A thoughtful proponent of the idea that some murders require the death penalty is Robert Blecker, a professor at New York Law School. He has written extensively on the ancient roots of the death penalty and the moral obligation of the community to execute the worst of the worst. See, e.g., To Live or Die?, New York Law Journal Magazine, September 2002; The Death Penalty: Where Are We Now?, New York Law School Law Review, Vol 46, Number 3-4, 2002-2003.

© 2005 Kathleen Cegla

Kathleen Cegla is assistant attorney general in the appellate division of the Oregon Department of Justice. The foregoing thoughts are her own and are not written on behalf of the attorney general or the Department of Justice.

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