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Death penalty should go before voters

Nearly two months have passed since the 2019 Legislature wrapped up its work, but there’s still plenty of confusion surrounding one of the session’s most significant bills, the measure that limits how the death penalty can be applied in Oregon.

The key question is this: Is the bill retroactive — that is, does it apply to the 31 inmates who currently are on death row in Oregon?

One of the bill’s key backers, state Sen. Floyd Prozanski, a Eugene Democrat, has said a special legislative session is required to make it clear the law doesn’t apply to death penalty cases sent back for new sentencing hearings as well as new trials. But another backer, former House Majority Leader Jennifer Williamson, D-Portland, has said no additional work is needed on the bill and that it always was intended to cover situations such as new sentencing hearings in old cases and new trials.

A recent opinion by the state Department of Justice sided with Williamson’s interpretation, noting that the new law applies to death penalty convictions and sentences that have been overturned, in addition to pending cases.

The measure in question, Senate Bill 1013, narrows the definition of “aggravated murder,” the only crime in Oregon that can be punished by death. The death penalty in Oregon now can only be applied in four types of crimes: killings motivated by terrorism, murders of children 14 years or younger, killings by an incarcerated person who’s serving a previous aggravated murder sentence and premeditated killings of police or corrections officers.

Other crimes that used to be considered aggravated murder, such as slayings committed during a rape or robbery, no longer can be punished with the death penalty.

The bill was carefully constructed (perhaps too carefully) to ensure that it didn’t require a vote of the people; such a vote would be required of a measure that called for completely doing away with the death penalty in Oregon.

It’s probably fair to say that many, if not most, legislators believed that the bill was not meant to apply retroactively. In that light, the measure didn’t seem likely to make much difference for death-row inmates: It’s been more than two decades since Oregon executed a prisoner and Gov. Kate Brown is continuing a moratorium on the death penalty that was instituted by her predecessor, John Kitzhaber.

But the idea that the bill could be applied retroactively to some cases changes that calculation to some extent: As The Oregonian’s Noelle Crombie reported, it’s not at all unusual for aggravated-murder convictions or death penalty sentences to be overturned or remanded to a lower court. In fact, Crombie noted, seven cases have been reversed in the last two-and-a-half years, and not one of Oregon’s death row inmates has exhausted their legal challenges. It would be interesting to see if legislators approach the bill differently should it come up again in a special session or next year’s short session.

Regardless of what happens to Senate Bill 1013, legislators should stop sneaking around the issue of the death penalty and fully confront it by referring to voters a measure to abolish capital punishment in Oregon.

Oregonians have a long and tangled history with the death penalty. Capital punishment was outlawed by Oregon voters in 1914 and then reenacted in 1978. Three years later, the state Supreme Court ruled that the death penalty was unconstitutional, a ruling that paved the way for a 1984 initiative in which voters reaffirmed capital punishment.

Since then, the topic rarely has been revisited in Oregon, and the gubernatorial moratoriums have had the effect of sweeping the debate about capital punishment under the rug. Meanwhile, the national conversation about the death penalty has taken fascinating turns.

It’s been almost four decades since state voters affirmed the death penalty. It’s long past time to bring this conversation to all of Oregon.