Death Penatly 2011-2020

When I wrote A Tortured History: The Story of Capital Punishment in Oregon (2001), and I shared my thesis with liberal friends, that the big issue for the death penalty for the next decade would be the costs of administration, they rejected my argument. "Bill," they patiently (or sometimes impatiently) said, "we cannot get away from the fact that it is a moral issue, and we have to be able to make the credible argument that the state's taking of life is an immoral act." Then, on one occasion, someone tried to take a personal dig at me, "And, to think that you as a minister would reduce the issue to economics, well that is beyond me!"

I quietly told them I felt they were wrong, but I was tickled as the decade unfolded to see, in state after state, the argument from economics take wing. What my friends didn't count on in 2001 and 2002 is that states would face such severe economic crises by the end of the decade that governors and legislators would be looking for any legitimate means to save money in trying to balance unruly state budgets. Finally, I broke into a broad smile when the New York Times, in the summer of 2009, finally took a position against the death penalty, grounded in financial considerations.

The Next Frontier in the Death Penalty

The death penalty is waning in popularity in America now for other reasons, too, especially the possibility of putting an innocent person to death. But one issue that should be pursued by opponents of the penalty as this decade opens is what I call the "argument from proportion." It isn't as easy to say in such a short word as "cost," but the issue can be as easily envisioned. In a nutshell, the argument from proportion is keyed, in large measure, to two issues: (1) that two people can commit crimes of similar heinousness and that one will get the death penalty and the other will not; and (2) that sometimes two people will commit crimes of dissimilar heinousness, and the one committing the "less heinous" crime will get the sentence of death, while the one committing the worse crime gets a life sentence. My contention is that as the decade goes on, courts will become more attuned to this argument and will say that this practice violates the basic principle that the death penalty ought to be reserved for the "worst of the worst." In addition, courts will increasingly say that this violates state and, possibly, federal constitutional principles about proportionality or equal protection. For example, Oregon has a section (I.16) in its state constitution providing that "all penalties shall be proportioned to the offense." While provisions like this are currently interpreted primarily in conjunction with a "shocks the conscience" standard--that a penalty/sentence is disproportionate to the crime if the severity "shocks the conscience" of reasonable people, I can see how courts will increasingly become open to the points (1) and (2) above and link them to the doctrine of proportional punishment.

Historical Roots

The argument from proportionality will take wings when defense counsel connect it to the concurring opinion of Justice Potter Stewart in the landmark 1972 case of Furman v. Georgia, which held, 5-4, the death penalty unconstitutional as applied (violating the "cruel and unusual punishment" clause of the 8th Amendment). In fact, his words most to the point are the following:

"These death setnences are cruel and unusual in the same way that being struck by lightning is cruel and unusual--they are capriciously, freakishly and wantonly imposed."

It is this notion of whimsicality or capriciousness that will be the linchpin in the argument to bring the idea of proportionality to the fore. It was this notion that led to the creation of the bifurcated death penalty process approved by the Supreme Court in the Gregg case in 1976. Such a process was designed to sort out the difference between guilt and sentence, and to do so in a dispassionate fashion, to the extent that was possible. But if an argument can be made that the current death penalty practice in America partakes of whimsicality or capriciousness, perhaps in who gets charged and who gets sentenced, then the argument easily follows that this is, like the Court found in 1972, cruel and unusual punishment.

Conclusion--Oregon 2010

I have argued recently that two cases arising in my own county in 2008 and 2009 perfectly illustrate this disproportion. One of them produced two deaths (the Woodburn bank bombing of December 2008); one of them produced three deaths (the Salem case from 2009). The former has co-defendants currently facing the death penalty; final arguments in the case are next week. The scuttlebutt among lawyers is that this case, however it turns out, will be "coming back" (i.e., retried) because the judge decided to allow defense attorneys to question the mother of one of the defendants, who happened to be the wife of the other one. Thus, the judge decided that the constitutional right to call witnesses of one's own choosing "trumped" the statutory spousal privilege. Yet, this issue shouldn't obscure the fact that the two Turnidge's (defendants) face the death penalty, while the one defendant who killed three people in Salem in March 2009 submitted an Alford plea and got three consecutive terms of 30 years for each death. The county DA no doubt had his reasons for pursuing one rather than two death penalties, but most think that the reasons had more to do with economics than anything else (i.e., you are allowed only one death penalty case at a time).

It is cases like this, which easily can be multiplied, that should convince defense attorneys to broaden the argument from proportionality currently used. I believe it is a winner.

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