Oregon Death Penalty II

Bill Long 10/10/04

Willamette Week Article 10/06/04

Ever since the Morgan and Weaver plea bargains at the end of September, a few articles have appeared on the death penalty in Oregon. My Op-Ed piece in the Oregonian appeared on 10/07/04 (a longer version is on this page, entitled Oregon Death Penalty.) The day before my Oregonian piece appeared, free-lance writer Janine Robben's article called "Oregon's Final Offer," appeared in the Willamette Week (10/06, p. 9). In this unabashedly "pro-DA" article (she was an attorney in the Clackamas County DAs office early in her career), Ms. Robben argues that the Oregon death penalty actually saves money because the threat of its use against defendants forces them to cop to lesser pleas, and Oregonians are thereby saved the costly expense of a trial. Norman Frink, Multnomah County Deputy DA then cites my book on the subject (A Tortured History: The Story of Capital Punishment in Oregon, [Eugene, OR: OCDLA Press, 2001]) and mentions that I do not even refer to this kind of savings in my book.

My Approach

Of course I don't, because this argument in defense of the death penalty is so new (and relatively outlandish) that it wasn't even being made by DAs in the years I wrote the book. The tone of the debate on the death penalty in Oregon until 2004 has included the following three "DA" arguments: (1) the death penalty is a deterrent; (2) the death penalty only affects the "worst of the worst;" and (3) the death penalty is retributive justice in action. Only in 2004 has this "new argument" arisen, principally because of the bankruptcy of the other three. The first is never mentioned any more by a DA because they realize they will be laughed out of the room if they make it (i.e., what deterrent value is a punishment that only attaches to 1/100 aggravated murderers, and may be imposed after 20 or 25 years after 10 rounds of appeals?). The second is ignored now because of the patent inappropriateness of the argument (that was the point of my 10/07 piece in the Oregonian). Finally, the third argument isn't made by many because it requires some philosophical subtlety and ability to argue theories of penology with skill. Thus, they are left with what I call the "Scarecrow" argument [see the letter I sent to the Willamette Week below]. The argument has no more than a surface plausibility and really founders on the capriciousness problem that I identify in the Oregonian piece.

So, in the wake of the WW article, I composed a 300-word letter to the Editor, sent it in on October 8, and it will probably appear either October 13 or 20. I reproduce it here for you. Please let me know, at blong@willamette.edu, your thoughts.

My Letter

To the Editor:

The latest argument by death penalty proponents, that its threat (not its imposition) actually saves the state money is the last arrow in a dwindling quiver of arguments that death penalty proponents now have at their disposal. The argument is both ludicrous on its face and patently untrue in its application.

As Deputy Multnomah County DA Norman Frink contends, it is the threat of the death penalty that actually brings some sense to a defendant, usually leading him to plead guilty. By so using the death penalty, however, Frink and others demonstrate that it is a tool of arbitrary and capricious activity, this time of District Attorneys. Rather than it being a tool to punish "the worst of the worst," which was the DA argument in 2000-2003, it is now being used to separate defendants, not by the nature of their crime but by their willingness to capitulate to threat. The US Supreme Court has unequivocally stated that a death peanlty that is subject to whimsicality and capriciousness violates the Eighth Amendment to the US Constitution.

More practically, however, Deputy Frink has argued for anew use of the death penalty law: either as an actual or a threatened punishment. We can wave it around to get a waiver of rights. If it is an actual punishment, let's use it non-capriciously (which I now do not think we can--see my Op Ed peice in the 10/07/04 Oregonian). If it is a threatened punishment, it becomes just that: a threat. As Shakespeare's Angelo says:

"We must not make a scarecrow of the law/ Setting it up to fear the birds of prey--/ And let it keep one shape till custom make it/ Their perch, and not their terror." Measure for Measure 2.2.1-4.

The Oregon Death Penalty is now Norm Frink's Scarecrow.

William R. Long, M. Div., Ph. D., J. D.