The Abolition of New Jersey's Death Penalty: Lessons for Oregon?

Today New Jersey Governor Jon Corzine signed into law a bill, which passed both Houses of the NJ Legislature, abolishing the death penalty in NJ. NJ had reinstated the penalty in 1982, six years after the US Supreme Court said states could execute again, but it hadn't actually executed a person since the early 1960s. In the heady confidence of abolition, Corzine, whose previous national claim to fame was getting his leg broken when his gubernatorial SUV, traveling 94 miles an hour, was involved in an accident and Corzine wasn't wearing a seatbelt, said that he hoped NJ could serve as a model for other states in abolishing the death penalty. My reflections here consider the issue of whether NJ's experience may "help" Oregon abolish our death penalty.

New Jersey and Oregon--Differences

Before we try to translate NJ's experience directly into Oregon's hopes, we ought to consider significant differences between the states. NJ's population is nearly 9,000,000 with Oregon's being about 3,800,000 but NJ only had eight men on Death Row, while Oregon has more than four times that many. That is, NJ eliminated a penalty that in fact wasn't, to use a bad pun, a "live" option. Juries in Oregon, in contrast, often are presented with the question of whether to give the death penalty to an aggravated murderer. Second, NJ is a wealthy state, and OR is a middling to low-middling state with respect to wealth. Studies have confirmed that people feel "magnanimous" towards the death penaltly (i.e., vote to eliminate it) when good economic times prevail. Finally, NJ eliminated the penalty by a legislative vote, while in Oregon it would have to come through an initiative petition or legislative referral. This, in my judgment, will make it much more difficult to abolish the penalty in Oregon.

The Oregon Experience with the Death Penalty

Differences between Oregon and NJ should not obscure the fact that the Oregon death penalty has been a public policy, financial and moral failure. Reinstated by an overwhelming majority of Oregon voters in 1984 (75%-25%), the death penalty has only been used twice since then. In both instances "volunteers" were executed. "Volunteers" are people who gave up their appeals after step one of a ten-step process, i.e., after their conviction and sentence were affirmed by the Oregon Supreme Court. It has been a public policy failure because none of the "promises" of the death penalty has been "delivered." The promises in 1983-84 were that it was a quick and relatively inexpensive way to handle the "worst of the worst" offenders, and that its use would deter others from committing heinous murders. None of these are true, and indeed, they are patently false. In fact, if Oregon invested $80 million into any other project and got no results, we would consider that other project a colossal public policy failure.

Second, the Oregon death penalty has been a financial failure. Because of the Oregon Postconviction Act, condemned defendants have 10 possible appeals/hearings after a death sentence. Since all of those on Death Row are indigent, the state ends up footing the bill for both prosecution and defense at every step of the way (except the federal defense near the end of the process). Studies I have done indicate that enforcing the death penalty costs from 1.5 to 4 times the cost of LWOP (life without the possibility of parole).

Finally, the Oregon death penalty has been a moral failure. It has been a moral failure because rather than increasing respect for law, it has done the opposite. The Supreme Court's Harberts decision, for example, not only sticks deeply in the craw of the Department of Justice, but has been and probably will be behind efforts to replace certain Supreme Court Justices in the future. The Oregon death penalty is also a moral failure because it has betrayed the families of victims. Promising to give them "closure," it has done nothing but reopen old wounds and perpetuate anguish. And, when you consider that for some of those who are on Death Row it may take between 40 and 45 years from the commission of their crime until their execution (if we still have the death penalty), we see that no respect for law has been generated by the death penalty. In short, nothing good for the citizens of Oregon has come from the Oregon death penalty.

Conclusion--Time To Abolish?

I have believed, ever since I studied the Oregon death penalty in detail (A Tortured History: The Story of Capital Punishment in Oregon, 2001), that abolition is the only responsible course to follow. Yet I have my doubts whether it can happen any time soon. Why? Simply because of the invisible nature of the death penalty in Oregon. No one that I know of is arguing for mistaken convictions; no one is claiming that there is systematic problem with poor representation of defendants or scurrilous dirty tricks of prosecutors. No one can make a credible claim at this point about disproportionate representation of minority groups on Oregon's Death Row. No one is about to be executed. No one is "mad as hell" either about the presence of the death penalty or the fact that some people aren't being sentenced to death.

In addition, we have had a spate of rather heinous murders in the last five years, one of the most visible being Christian Longo's murder of his family. These kinds of things are too "fresh" in the Oregon psyche to be easily forgotten, forgiven or overlooked. Thus, in my final analysis, I think that Oregon, though gaining strength and encouragement from NJ's efforts, probably won't successfully abolish its death penalty now. But, I would love to be surprised...

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