mitigation evidence and mitigation testimony and relevant evidence and sentencing proceeding and penalty phase

During the sentencing phase of a capital murder trial, the defense is able to put on all relevant evidence that could mitigate a sentence of death. This principle derives from the US Supreme Court's jurisprudence in Gregg, Jurek, Lockett, Penry I and several other death penalty cases decided in the last 30 years. Each state has also articulated in its death penalty sentencing statute the kind of evidence that may be introduced in mitigation of a sentence of death. The question I raise in these essays is whether evidence that doesn't relate to the individual defendant but, nevertheless may help the jury come to a "reasoned moral response" (Justice O'Connor's language in Penry I--1989) as to whether the death penalty is appropriate in this instance, ought to be admissible in the penalty phase. Specifically, I refer to the relevance of costs and procedural issues in the administration of the death penalty.

Let me hasten to add that if testimony regarding costs/procedure is admitted, it would lead to a departure from traditional death penalty jurisprudence, which sees relevant mitigation evidence as "defendant-driven." For example, a fairly recent summary of the scope of relevant evidence in mitigation is this:

"This inclusiveness notwithstanding, mitigation evidence comes in three basic categories. The first category, pertaining to offender culpability and responsibility, encompasses information concerning defendant's background, history, and role in the predicate crime. Evidence relating to an offender's youth, history of emotional or physical abuse, or relative lack of involvement in the predicate murder falls into this category. The second category involves considerations of future dangerousness. Although not mitigating in a strict sense, an offender's capacity to be rehabilitated, or otherwise act peacefully in prison, merits admission pursuant to Lockett's requirement that evidence possibly warranting a "sentence less than death" be available to the sentencing authority. The third category of mitigation evidence, that of most interest here, concerns the offender's "character" or general "deserts." Although the Court has yet to define "character" in mitigation, it plays a crucial role insofar as it provides insight into the defendant's essential social or "moral worth," the lynchpin of the capital sentencing decision." Wayne A. Logan, "When Balance and Fairness Collide: An Argument for Execution Impact Evidence in Capital Trials," 33 U Mich JL Reform 1, 10 (1999).

Mr. Logan's statement argues that the evidence in mitigation must be defendant-specific, covering the defendant's past, possible future and general "character" or "deserts."

Moving to the Oregon Statute

Yesterday, a Multnomah County (OR) judge agreed with this long line of interpretation by excluding my potential expert witness testimony in the penalty phase trial of Tracy Krueger, whom the jury last week found guilty of aggravated murder in two 2003 killings. His decision came after a lengthy (more than an hour) offer of proof hearing in which I narrated what I was planning to testify: that the procedure and length of time needed in Oregon to execute defendants may be a factor that would influence the jury to mitigate the sentence of death.

Just as Oregon has frequently prided itself on the fact that some of its protections under state constitutional law exceed those of the federal constitution (e.g., free speech under 1.8 of the Oregon Constitution), so the question arises whether the Oregon death sentencing statute, ORS 163.150, allowing introduction of evidence in mitigation of a sentence of death ought to be read more broadly than traditional mitigation theory. The remainder of this essay and the next will review some of the language of the Oregon statute and encourage defense attorneys to consider whether arguments to expand the scope of mitigation can responsibly be made.

The Language of ORS 163.150

This statute was first passed by initiative petition in 1984 and has been revised by the legislature many times. The appendix to my book, A Tortured History: The Story of Capital Punishment in Oregon, shows the evolution of the statute from its passage in 1984 through the 1999 legislative session. I will only cite two iterations of the statute for my purposes here: the original wording and the wording today, after victim's impact evidence was allowed to be considered in the 1995 and 1997 Legislative Assemblies. When passed by the people, the relevant sections of ORS 163.150 provided:

"Upon a finding that the defendant is guilty of aggravated murder, the court shall conduct a separate sentencing proceding to determine whether the defendant shall be sentenced to life imprisonment or death. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. If the defendant has pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence; however, neither the state nor the defendant shall be allowed to introduce repetitive evidence that has previously been offered and received during the trial on the issue of guilt. The court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States and of the State of Oregon. The state and the defendant or the counsel of the defendant shall be permitted to present arguments for or against a sentence of death."

As we see, the only limitations on the introduction of evidence in the sentencing/penalty phase are that it be "relevant to sentence," and that it not have been introduced previously at trial.

The next essay summarizes the important change made to this statute in the mid-1990s and then looks at a possible broad way of reading the statute.

2017