29 Jul

If you don’t execute anybody, maybe you should stop pretending you have a death penalty

In a state where it’s tough to find long-term housing, one great exception has been Oregon’s Death Row. Since criminals continue to be sentenced to capital punishment in Oregon, but the state has executed just two people in 50 years – and those by the convicts’ request – anyone sent to Death Row is pretty clearly moving in until a hand higher than the state ends his residence.

In the words of federal judge Cormac J. Carney of Orange County, California, such a situation makes execution “so unlikely that the death penalty carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.”

Carney’s phrase came from a decision earlier this month that set the California capital punishment system against the Eighth Amendment’s ban on “cruel and unusual punishment.” Carney, a George W. Bush appointee, concluded that whether or not capital punishment was considered cruel, it was hard to deny that in California, it had become pretty clearly unusual. On that basis, Carney declared it unconstitutional.

The ruling by district judge Carney will go through federal appeals court and possibly the Supreme Court, and the full legal process could take a while – although not nearly as long as a capital punishment sentence. But if there is support for Carney’s argument – that a vast gap between the number of criminals sentenced to die and the few who actually executed invalidates the system – then his reasoning clearly extends to the long-term housing project that is Oregon’s Death Row.

The Golden State’s capital punishment system, outlined by Carney in his decision, is a different branch of the Hotel California: Convicts can’t leave, but it’s highly unlikely they will ever draw a final check-out from the state.

Since 1978, he notes, California has sentenced more than 900 people to death, but has conducted only 13 executions. Of the rest, 94 have died of other causes and 39 have had their death sentences set aside by federal judges, leaving 748 in extended residence. The mandated appeals process, through state and federal courts, goes on for Dickensian decades.

By the time the sentence has proceeded through the state courts, the process will likely have lasted 17 years. The convict who was the subject of the case before Carney was sentenced to death in 1995.

To Carney, the death sentence under these conditions is not only random and arbitrary – not to mention “unusual” – but unlikely to be much of a deterrent. “The realistic expectation of an individual contemplating a capital crime in California is that if he is caught, it does not matter whether he is sentenced to death – he realistically faces only life imprisonment,” noted Carney. “Under such a system, the death penalty is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going out in the rain.”

Oregon, being a legal footnote to California in these matters, has 36 people on its Death Row, not 750. But its frequency of actual execution is comparable, with two executions since the death penalty was restored by voters in 1984. Four of the convicts on Oregon’s Death Row have been there since 1988, and four more since 1989.

There could, of course, have been one more execution this year, when Gary Haugen asked to be executed, apparently the only way capital punishment can happen in Oregon. But Gov. John Kitzhaber, who was also governor for the other two executions, refused to sign off on another. If Kitzhaber is re-elected, that means no executions until at least 2019.

GOP candidate Dennis Richardson took a poke at Kitzhaber on the issue during their first debate. But while Richardson’s election might open a pathway to eternity for Haugen, it would be unlikely to move Oregon to a Texas-style execution pace.

Oregon has rested in a very Oregon-style compromise on capital punishment, having a death penalty and death sentences but not executing anybody. It seems it’s an arrangement Oregonians can live with – except, apparently, Haugen – but it does involve a certain philosophical contradiction, and an expenditure of state time and money.

“In California, the execution of a death penalty is so infrequent, and the delays preceding it so extraordinary,” ruled Carney, “that the death penalty is deprived of any deterrent or retributive effect it might once have had.”

Carney is just one judge, and in this and every other way, California is different from Oregon.

But the math looks familiar.

NOTE: This column appeared in The Oregonian, Sunday, 7/27/14.

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