The Death Penalty in America--Oregon II, 2007

Before moving on to the other three factors which, in my judgment, are turning the tide on the death penalty in modern America, I want to mention one historical point. Those who study history often notice "trends" or large historical movements that reflect the ebb and flow of life. The longer we live, the more we see these trends. With respect to the death penalty, for example, there have been three "periods of abolition" in American history: (1) Late 1840s-early 1850s--4 states; (2) Progressive period from about 1900-1915--about 12 states (with four or five restoring the penalty after WWI); (3) Late 1950s-1960s--about 18 states--receding to 12, our current situation, in the 1980s. That is, abolition movements seem to crest about every fifty to sixty years since the mid 19th century. Thus, if we were just taking a "macro" look at the death penalty in America, the decade of the 2010s would be the next "abolition" decade. And, it may happen that way...

Factor # 3--The Dawning Reality of LWOP

LWOP, for those of you not familiar with death-penalty lingo, means "Life without the possibility of parole." When I talk about LWOP as a "dawning reality," I mean that even though nearly every state with the death penalty now has it as a sentencing option for capital/aggravated murder, the public is only gradually waking up to that reality. When juries are confronted with the choices of LWOP or death, they are increasingly chosing the former. That means that fewer death sentences are being handed down these days than in previous days.

The situation in Oregon is typical. Our death penalty statute was reinstated (by initiative petition) in 1984 but, at that time, juries were only given two sentencing possiblities for one convicted of aggravated murder--death or life (with the possibility of parole after 30 years). Because the latter option had been used previously in Oregon history and had often been ignored in practice, i.e., people convicted of first-degree murder as it was known at the time would often be out within a decade, juries would chose death. In fact, in the 18 months before Oregon passed its LWOP statute in 1989, juries were sentencing men to death in Oregon at a rate of one per month. That rate continued would have placed Oregon in the highest "second tier" states (OK, VA, CA) for death penalty convictions. But now, with LWOP in place, death sentences in OR are one to two per year.

It is gradually dawning on Oregonians, and Americans in general, that one of the principal aims of punishment (safety of the public) is now guaranteed through LWOP. Because of this reality, the death penalty, to speak ironically, may almost be snuffed out by LWOP in the future. I didn't know until last Friday that TX, by far the largest "user" of the penalty in America, just passed its LWOP statute in June 2005. We may, therefore, see a decline in death penalty convictions even in that state in the near future.

When the public gradually believes that LWOP "works," the growing support for its use instead of the death penalty will grow even stronger. I think it takes about a generation for most good ideas to "sink in" to the larger population. It seems as if this is happening now with LWOP.

Factor # 4--The Costs of the Death Penalty System

One of the central arguments in my book, A Tortured History: The Story of Capital Punishment in Oregon (2001) was that the cost of imposing the death penalty in Oregon, with all the legal protections now available to a defendant, exceeds the cost of LWOP and that, therefore, it doesn't make economic sense to have the death penalty. When I made the argument for the first time in 1999 (as I was researching the book), I was greeted with polite notice but no one really took the argument very seriously. In 1999 we were still in what I call the "moral paradigm" of understanding the death penalty--you were either "unalterably" opposed to it on moral grounds or you thought that an "eye for an eye" meant that the death penalty was legitimate. All talk between the two sides had stopped.

My purpose in making the economic argument was to frame the issue differently--and in a way that would put the death penalty on the public policy plate just like any other issue. That is, the death penalty would be one of the "competing realities" for funding, just like education or health care or Oregon's parks. The question that then lay behind this agenda was: "Is the death penalty more expensive than LWOP (which brings us the same security) and, if so, is it a good public policy choice when scarce dollars are in view?" Thus, some of my work, even posted on my web site, has shown that the costs of implementing the death penalty in Oregon are much more than those of LWOP. Just do a search on this site for "death penalty costs" or "Oregon death penalty."

Now, about eight years after I made the argument, it seems to be gaining traction. Just this legislative session (Jan-July 2007) a bill was introduced which would urge a moratorium on the death penalty until the costs of the system were studied. Attorney General Hardy Myers, in a small meeting with me and Rep. Chip Shields, Clarence Pugh and Solicitor General Mary Williams, declared his support for the study (without, however, the moratorium).

This essay isn't the proper place for speaking about those costs or detailing why it is more expensive to put a person to death than to grant him LWOP. The point is that people are becoming more and more convinced that the death penalty system, at least in Oregon, is a process of throwing money at a problem to fulfill the law and perhaps keep things "out of public view" but, in fact, it is a very inefficient way of doing things. The New Jersey Death Penalty Commission concluded the same thing in their Jan. 2007 report for that state. I think this argument will gain momentum in the next few years and that fairly soon some visionary legislators will say that we need to get rid of the death penalty because prosecuting, defending, appealing, etc. etc. in these cases is often simply is a waste of taxpayer money.

V. Fifth Factor--An Unlikely Ally--The US Supreme Court

You wouldn't think that the US Supreme Court, with its current configuration, would be much of an ally for death penalty abolitionists. And, generally, it isn't. But its two decisions in 2002 and 2005 in the Atkins and Roper cases, took away the death penalty for the mentally retarded and for those who had committed their crimes before their 18th birthday. These were split decisions at the Court--but they show that even as conservative a Court as we now have is aware that the application of the death penalty must be done very cautiously and narrowly.

Conclusion

America seems more open now than at any time in the last 30 years to consider arguments for abolition of the death penalty. I, for one, think that the possibility of complete abolition through a federal constitutional decision by the US Supreme Court is highly unlikely. I do see, however, more states wanting to join the 12 abolition states in the next few years, and many more will functionally not have a death penalty--without formal abolition. I have my thoughts on where Oregon will go in the next decade, but that is the subject for another essay--as yet unwritten!

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