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Herb Rothschild Jr.: Why care about the death penalty in Oregon?

Edwin Edwards, who served four terms as governor of Louisiana beginning in 1972, was a thoroughly corrupt man. Nonetheless, like most of us, he was a morally mixed bag.

When he first ran for the office in 1971, he promised the ACLU of Louisiana, of which I was then president, that he wouldn’t sign any death warrants, a promise he kept during his first two terms. In 1973, the U.S. Supreme Court made it easier for him to keep it by ruling in Furman v. Georgia that, as administered up to that time, the death penalty was unconstitutional. That ruling emptied death rows across the country.

Unfortunately, when states passed statutes that separated the trial stage from the sentencing stage in capital cases, they began filling again. In Edwards’ third term, from 1984-1987, he signed 12 warrants.

There’s some likelihood that at least one who died was innocent. Since 1973, 167 people on death row have been exonerated. These are the ones lucky enough to have had their cases taken up by organizations like the Innocence Project, founded in 1992, that have competent lawyers and money for investigators, and especially if DNA samples have been preserved in their cases. It’s fair to assume that many other innocent people who weren’t so lucky have died.

Some governors have been deeply disturbed by the possibility of signing the death warrants of innocent people. In 2000, Gov. George Ryan of Illinois declared a moratorium on executions after 13 death row inmates had been exonerated during the same period that the state had executed 12. In 2011, Oregon Gov. John Kitzhaber, who had signed two warrants in a previous term, also announced a moratorium, and his successor, Kate Brown, affirmed her commitment to it.

In the past 50 years, Oregon has executed only two people, Douglas Franklin White in 1996 and Harry Charles Moore in 1997. Nonetheless, district attorneys continue to seek capital sentences. Currently, 29 people live in prison under the shadow of death.

Last week, the Department of Corrections announced that it would eliminate death row at the state penitentiary in Salem, where 27 have been held, and put them in with the general prison population as a cost-saving measure. It can’t commute their sentences, however. Only the governor can do that.

She should. Further, the state Legislature should pass a bill referring to the ballot a measure to end capital punishment in Oregon. Voters will have to decide, because in 1984, they amended the state constitution to reinstate the death penalty, having voted in 1964 to abolish it. (The same changes of mind had occurred in 1914 and 1920.)

Why should either supporters or opponents of capital punishment care that it exists in Oregon if nobody is being executed? Its leading supporters are district attorneys. Why? Because their ability to bring a capital charge is a powerful threat to the defendant in every prosecution that state law allows them the discretion to bring it, including cases in which their evidence is shaky. The only voice raised in opposition to the elimination of death row was the Oregon District Attorneys Association.

And why should opponents of the death penalty care? Well, a future governor might sign death warrants. But the greater concern is what the death penalty says about us as a people. It’s no accident that the large majority of executions take place in Southern states. They have a long history of barbarity. Oregonians should declare ourselves a civilized society.

Herb Rothschild’s column appears in the Ashland Tidings every Saturday.

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