17 Mar

On capital punishment, Oregon’s pointless pretense proceeds

Despite rumors on the subject, former Gov. John Kitzhaber did not commute Oregon’s 34 pending death sentences before resigning last month – although it wasn’t like it would have gotten him into any more trouble.

Kitzhaber, who’d been governor during Oregon’s only two executions of the last half-century, had made it clear he wasn’t going to sit through any more, but didn’t feel the need to extend the ban beyond his own tenure.

That left incoming Gov. Kate Brown as the new landlady of Oregon’s Death Row, and the subject came up almost immediately. Last week, Brown told The Oregonian’s Jeff Mapes that she personally opposed the death penalty and expected to continue Kitzhaber’s moratorium. But she wouldn’t say an execution was impossible, explaining that her thinking on the issue had become “more nuanced.”

It’s possible to overstate the uncertainty here; offhand, you might expect Kate Brown to sign an execution order when Earl Blumenauer trades his bicycle for a rickshaw. And as she says, “I think there are a whole lot of issues that need to be resolved. And one of them is, can we even carry this out at this point in time in this country?”

Technique is everything. And lately, all over the country, there are issues about not only why but how we execute people.

(Or in Oregon’s case, of course, how we don’t.)

Supplies of the drugs that have been part of the three-drug combination used in most U.S. executions have been running out, as European manufacturers, opposed to capital punishment, have been refusing to supply them. (After Kitzhaber declared his moratorium, Oregon said it would sell its supply back.) Replacement drugs have produced extended, messy executions in Arizona and Oklahoma, and some states, such as Ohio, have declared their own moratoriums until the situation is sorted out.

For various reasons, the feds – who don’t execute a lot of people anyway – have declared their own freeze, and outgoing Attorney General Eric Holder has urged states to do the same. There’s anticipation of a Supreme Court ruling on which drugs are and aren’t acceptable.

Last month, Pennsylvania Gov. Tom Wolf, another new Democratic governor – and there aren’t many new Democratic governors – declared an execution moratorium, as he said he would during his campaign. There are more than 180 convicts on Pennsylvania’s Death Row; since the state restored its death penalty in 1976, it has executed exactly three people. During that time, it’s estimated, going through the motions of capital punishment has cost the state $350 million.

It’s said that more people on Pennsylvania’s Death Row die of natural causes than of execution. Since six residents have been freed on appeal, you could also say more have been released than executed.

“This unending cycle of death warrants and appeals diverts resources from the judicial system and forces the families and loved ones of victims to relive their tragedies each time a new round of warrants and appeals commences,” Wolf wrote in the moratorium order. “The only certainty in the current system is that the process will be drawn out, expensive, and painful for all involved.”

Pennsylvania’s situation, in fact, has been greatly like Oregon’s – maintaining at considerable effort and expense a penalty virtually never used. Pennsylvania managed to execute one more convict over 40 years than Oregon did, but it had many more sentenced – and unlike Oregon’s, its executions may not have been voluntary.

Both states, like all the others, are dealing with the drug shortage. Last month, Utah’s House of Representatives passed a bill restoring execution by firing squad; it now moves to the state Senate, and Wyoming is also taking aim. It’s not as easy to imagine Oregon going in that direction, although we could probably find volunteers.

There is talk about putting a repeal of capital punishment on the 2016 ballot, where the odds might be against it; many voters like the idea of capital punishment, even if it hardly ever happens in practice.

People on Oregon’s Death Row have been convicted of doing hideous things, making it even more curious for Oregon to spend large amounts on a decades-long appeals process that ends up giving them the choice of departure. Now that process is muddied even more by the challenges of actually carrying it out, with legal and procedural complications joined by pharmacological ones.

And despite the great deal of attention that that the idea has gotten recently, we’re probably not going to take up beheading.

Although on this issue, we’ve been in no hurry to use ours.

NOTE: This column appeared in The Oregonian, 3/4/15.

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