A new study in Oregon highlights the problems with the state's death penalty statute, which has been in a state of limbo for five years now. Former Governor John Kitzhaber implemented a moratorium on the death penalty in 2011, stating that he would not permit the state to execute anyone during his tenure. At the time, many hoped it was the beginning of the end for Oregon's death penalty. “The decision immediately halted the impending execution of death-row inmate Gary Haugen, who had waived his legal appeals to protest the justice system,” stated an editorial this week in The Oregonian. “But it was also meant to kick-start a statewide conversation about the legitimacy of the death penalty in Oregon.”
Such a conversation never happened, though, and the death penalty has remained technically legal, though on pause. In October, after much consideration, Governor Kate Brown promised to continue the moratorium if she were re-elected to office. From last month’s piece in The Oregonian:
Reasons for her decision include the "uncertainty of Oregon's ability to acquire the necessary execution drugs required by statute," [her spokesman] Bryan Hockaday said by email. "Looking nationally, America is on the verge of a sea change both by legislation and, more profoundly, through court decisions. The past few years have already seen a major shift in the landscape on capital punishment law, and Gov. Brown expects more changes are on the horizon."
Oregon voters approved the death penalty in 1984, and the state and U.S. Supreme Courts have repeatedly upheld its legality.
Oregon's death row has 34 prisoners, all of whom stay in their cells 23 hours a day.
Brown won her re-election earlier this month, and the execution moratorium continues.
But meanwhile, prosecutors continue to seek death penalty convictions. "[T]he death-penalty machinery continues to run, with prosecutors seeking death sentences, juries granting them and the state spending millions in legal challenges," The Oregonian reports, "fighting for the right to execute someone who most likely will never be executed."
A recent study establishes just how expensive and unworkable the state's death penalty statute is. The new report, written by Lewis & Clark Law School Professor Aliza Kaplan and Seattle University Criminal Justice Professor Peter Collins and released last week, examines the cost of the death penalty in the state. From Kaplan and Collin's cost analysis:
Results indicate that the costs for aggravated murder cases that resulted in death sentences range, on average, from about $800,000 to over $1,000,000 more per case when compared to similar non-death aggravated murder cases.
To determine these final numbers, the authors and their research assistants looked at all the information they could access.
The information contained within this research report reflects a thorough analysis of data collected from hundreds of aggravated murder and murder cases over 13 years in Oregon, from 2000 through 2013. We also examined the appeals process of aggravated murder cases that resulted in death sentences between 1984 until 2000 […]
We were able to get cost-related information from local jails (costs associated with incarceration during trial), Department of Corrections (DOC) (incarceration costs), Office of Public Defense Services (OPDS) (trial, appeals, and all stages of post-conviction costs), and the Department of Justice (DOJ) (Oregon’s Attorney General’s Office) (costs related to appeals and all stages of postconviction).
But "[a]lthough these categories make up a great deal of the overall costs related to aggravated murder cases," the report says, "they only represent a portion of the total costs for pursuing the death penalty in Oregon." That's because prosecutors and courts would not provide the authors with cost information, meaning that the data provided is just a fraction of the true total. “Over a period of three months we sent letters to 29 of the 36 DAs before receiving a letter from the Oregon District Attorneys Association (ODAA) severing our opportunity to conduct further individual interviews,” states the report.
Local media has been critical of prosecutors’ refusal to share or track data. “Getting better data is something both supporters and opponents of capital punishment should get behind,” stated this week’s editorial. “It simply makes no sense to spend millions of dollars on a system that doesn't do what it says it will do. It's equally nonsensical to refuse to even talk about it.”
In their cost analysis, Kaplan and Collins stated clearly that they “approached all data and cost estimations from a conservative standpoint, meaning the costs are intentionally underestimated." And yet, even with that conservative estimation and without that additional data, death penalty costs are still exorbitant—especially to secure a sentence that will in all likelihood never be carried out. From the Statesman Journal:
Special defense lawyers are required, defense filings double, prosecutorial filings triple and defendants spend more time in expensive, secured housing at local jails. Cases with the death penalty option are required to be two-phase jury trials. Jury selection is lengthier and costlier in death penalty cases, and trials can span months.
Each death penalty case receives an automatic, direct review by the Oregon Supreme Court. This process lasts years, even decades. The four longest serving inmates on death row have spent a total of 110 years on death row. None of their appeals have gone very far past the direct review.
The cost analysis, funded by the non-profit Oregon Justice Research Center (OJRC), is the first of its kind in Oregon. But as it notes, studies done in other states come to the same conclusion: death penalty cases cost significantly more than cases where the death penalty is not on the table.
"This report confirms what many had long suspected about the cost of Oregon's death penalty, but the actual figures are staggering," said OJRC spokeswoman Alice Lundell. "We're spending four times more on death penalty cases than on comparable cases without death sentences despite having only executed two people since Kennedy was president."
Prosecutors' dogged pursuance of the punishment is especially infuriating in light of these costs. The appeals process for death penalty convictions lasts years, eats up resources, requires expensive lawyers, and costs literally millions of dollars. Yet prosecutors continue to push for capital convictions, despite the fact that they know very well that the likelihood of an execution is almost nonexistent.
The moratorium's extension angered some Oregon prosecutors, including Clatsop County District Attorney Josh Marquis, who said he was "seething" when he learned the news last month.
Many others, however, are hoping that Brown will lead the fight to end the death penalty once and for all. Last fall, The Oregonian editorial board called on Brown to "work with legislators to refer a measure to the November 2016 ballot asking voters to amend the Constitution and abolish the death penalty." That didn't happen. Of course, now that she's been re-elected Brown has another opportunity to lead the charge.
But this week, Brown's staff implied that further efforts to end the death penalty were unlikely in the near future. From The Oregonian:
Hockaday, said her priority now is on the state's budget and that she has not identified any legislative priorities relating to the death penalty.
Certainly, the $1.7 billion budget shortfall that the state faces is and should be her primary focus. But the projected deficit also highlights why she and other leaders must move the death-penalty debate forward. The state's spending on such prosecutions that seek a theoretical punishment is the definition of wasting taxpayer money.
The newly released cost analysis only supports this conclusion.
“Every Oregon taxpayer—including those in the 20 counties that haven’t sent anyone to death row since it was reinstated in 1984—is bearing the burden of funding this broken system,” said Lundell. “That’s money that’s not being invested in our schools, in services for victims and their families, and in programs that would actually increase public safety. While the decision by Governor Brown to reaffirm the moratorium is a very welcome step, costs associated with Oregon’s death penalty continue to mount.”