arguments against a sentence of death and expert witness testimony and evidence in mitigation

This essay will highlight the changes made to ORS 163.150 especially as they relate to introduction of relevant evidence at the sentencing phase of a capital trial in Oregon.

In the mid 1990s, the Oregon Legislature, recognizing the arguments of victims' rights advocates, modified a crucial sentence in the statute (ORS 163.150(1)(1)) so that it now reads:

"In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim's family and any aggravating or mitigating evidence relevant to the issue in paragraph (b)(D) of this subsection..."

Then, if you go to paragraph (b)(D) of the subsection, it providees: "Whether the defendant should receive a death sentence."

On its face, then, the current Oregon statute includes three things: (1) victim impact evidence; (2) any aggravating or mitigating evidence relating to whether the defendant should receive a death sentence; and (3) other relevant evidence. The reason I add (3) to the list is because the statute says that all evidence shall be admitted that is relevant to the sentence, including but not limited to (1) and (2). That is, by revising the statute as it has, the Legislature has said that relevant evidence in a sentencing trial shall not be limited to the traditional categories of mitigation (or aggravation) evidence brought by the prosecution or defense. What might that additional evidence be? The statute (and case law) doesn't say, but we can infer that it goes beyond the issues of the crime, the victim and the defendant's life. Thus, it is left to the ingenuity of lawyers to argue the full extent of the "including but not limited to" language.

Some Help

We can, however, look elsewhere in the statute to help us make the case that whatever might aid the jury mitigate the sentence of death would be relevant evidence in the penalty phase. Look at the last sentence of ORS 163.150(1)(a).

"The state and the defendant or the counsel of the defendant shall be permitted to present arguments for or against a sentence of death and for or against a sentence of life imprisonment with our without the possibility of release or parole."

In court yesterday I argued, and counsel for the defendant argued and lost, that evidence of the length of time necessary in Oregon to execute a condemned person could be framed as an argument against a sentence of death. In other words, when a jury sentences a person to death, they think they are getting death. If, in fact, it can be shown that in all likelihood they are not going to be getting the defednants' death but rather simply a serious of interminable legal proceedings that will cost the taxpayers far more than another option, life imprisonment without the possibility of parole, then this could be perceived by one or more jurors to be an argument against a sentence of death.

Let's take an analogy from buying goods. All of us are consumers with some degree of sophistication. Some of us just buy what appeals to the eye, while others of us "read up on" the products with lots of interest. The more expensive a purchase, the more a "consumer" is entitled to know about the product and the likelihood of the consumer's taking lots of time to "check out" the product. The same applies in the case of the death penalty. In a sense the jury is buying a product--the state-sanctioned process and means of execution. Granted, it is in the legislature's purview to set the general rules for operation of the system. But shouldn't a jury, the one who is actually "buying" the product, be able to learn what they are buying?

Contrary Arguments and Conclusion

Limiting mitigation evidence solely to the defendant's crime, past, future dangerousness and "character" or "desserts" may have the effect of limiting the kind of evidence that a jury would find persuasive in imposing a sentence of death. It might not enable the defense fully to give "arguments....against a sentence of death."

By thus expanding mitigation evidence, the concern arises whether the result would be to "open a door" that will allow anything and everything into evidence, thereby excessively prolonging the penalty phase and turning it into a circus. If defense counsel can bring in evidence beyond the defendant himself, where will it stop?

My experience with judges, however, is that this really isn't a problem. Almost all whom I have met have a fine sense of what constitutes a real argument and what is attentuated bullshit.

Finally, one might argue that it is a the purview of the legislature to change the process, and that arguments relating to costs or length of time in executing a sentence are "policy" rather than "legal" questions. Certainly the Legislature can, within constitutional limits, alter death penalty procedure based on policy judgments. But the decision to spare someone's life, based on fuller information about the workings of the death penalty is no more a "policy" decision than granting a lesser penalty based on the offender's past life. Both are responses to arguments made against a sentence of death.

2018