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Gov. Kate Brown says that she'll continue a moratorium on the death penalty in Oregon that was started by her predecessor, John Kitzhaber. Proposals are being floated for the 2019 Legislature that could gut capital punishment in Oregon.  

Oregon legislators are considering proposals to dramatically limit the types of crimes in which the death penalty can be applied — a roundabout way to essentially gut capital punishment in the state. 

The proposals under consideration are clever ways to get around the fact that it would take a vote of the public to outlaw the death penalty in Oregon. But it's been decades since Oregonians voted on whether to retain capital punishment, and it's possible (perhaps even likely) that public sentiment has changed on the topic since then. Why not just refer the question to voters instead of finding ways to work around the will of the electorate?

Oregon Public Broadcasting reported last week on the proposals floating around in Salem. One proposal being discussed by Rep. Mitch Greenlick, D-Portland, and Sen. Floyd Prozanski, D-Eugene, would alter the definition of aggravated murder — currently, the only crime punishable by death in Oregon. Under current law, the crime of aggravated murder includes elements such as multiple victims, the inclusion of torture in committing the crime, or an exchange of payment for the killing.

The proposal Greenlick and Prozanski are considering would remove those factors and would limit aggravated murder to deaths resulting from acts of domestic or international terrorism.

Another proposal in Salem involves changing the questions that juries must answer in the sentencing phase of the trial, with an eye toward making death sentences less likely.

One change being eyed: Eliminating a question that asks jurors to determine if there is a "probability" that a defendant will commit violence in the future. Another change would increase the burden of proof jurors face when dealing with the question of whether a defendant should be sentenced to death; under the proposal, jurors would have to be certain beyond a reasonable doubt.

There may be some merit to these proposals, but they tiptoe around the main issue: Whether Oregon voters still believe in the death penalty. In 1984, voters approved a pair of death penalty-related initiatives. But those elections were more than three decades ago, and it's possible that developments since then regarding the death penalty might have changed some minds on the issue. And there's an entire generation of voters who haven't had the chance to weigh in on the question.

In fact, we've been surprised that there hasn't been more of a push on the part of state officials and lawmakers to refer the death penalty to voters. After then-Gov. John Kitzhaber put a moratorium on capital punishment in 2011, he made a halfhearted effort to goad the Legislature into action, but the proposal didn't gain any traction. Gov. Kate Brown has continued the moratorium, but has otherwise been quiet on the issue.

Oregon hasn't executed a prisoner since May 1997; the state has 32 men and one woman on death row. It's not clear whether any of the legislative maneuvers now under consideration would retroactively affect any of those 33 cases.

This new discussion opens a new chapter in the state's convoluted history with the death penalty: Capital punishment was outlawed by Oregon voters in 1964 and then was re-enacted in 1978. Three years later, the state Supreme Court ruled that the death penalty was unconstitutional, paving the way for the 1984 initiative in which voters reaffirmed capital punishment.

Since then, though, the topic has been rarely revisited in Oregon, even though there's been action elsewhere: Since 2007, six states have ended capital punishment, although voters in Nebraska reinstated it in a 2016 election. Earlier this year, the Washington state Supreme Court ruled that the death penalty was unconstitutional, on grounds that it was administered in an arbitrary and racially biased manner.

Some of those arguments against the death penalty may be resonating now with Oregon voters. But the only way to be sure is to let them vote on the issue. (mm)

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