Five years ago, former Gov. John Kitzhaber made an announcement that was as bold as it was surprising: His voice shaking with emotion, Kitzhaber declared that he would not allow any executions to take place as long as he was governor.
The decision immediately halted the impending execution of death-row inmate Gary Haugen, who had waived his legal appeals to protest the justice system. But it was also meant to kickstart a statewide conversation about the legitimacy of the death penalty in Oregon, a punishment so rarely carried out that only two of 63 people sentenced to die since 1984 have been executed. Both men, like Haugen, were volunteers.
But five years and a new governor later, the debate Kitzhaber envisioned hasn't begun. Meanwhile, the death-penalty machinery continues to run, with prosecutors seeking death sentences, juries granting them and the state spending millions in legal challenges, fighting for the right to execute someone who most likely will never be executed. Last week’s anniversary of the moratorium marked yet another year of missed opportunity.
There is, however, no better time than now to start changing that trajectory. Two studies, one by the Oregon Justice Resource Center and one by Gov. Kate Brown's general counsel's office, provide some ammunition for doing so.
First is cost: The Oregon Justice Resource Center, an anti-death penalty legal-services nonprofit, funded a study to quantify the cost of the death penalty to taxpayers, although it captured only some of the expenses. But the data it gathered showed that aggravated murder cases that resulted in death sentences cost taxpayers almost $1 million more than those that don't, as The Oregonian/OregonLive's Tony Hernandez reported. That's not even including the cost of housing them in separate death-row quarters, a statistic that the Department of Corrections doesn't split out from the overall prison population.
The second piece comes from a report compiled by Brown's general counsel. The report, which includes fascinating accounts of the preparations state officials undertook for Haugen's planned execution, detail significant legal, medical and logistical issues if Oregon were to resume executions. Among the chief problems: Manufacturers of drugs used in the lethal injection sequence are no longer making them or selling them to prisons.
All of this helps bolster the case for having this discussion. And while Brown has said she opposes the death penalty and will continue the moratorium, she hasn't signaled that she will drive the debate any further. Her spokesman, Bryan Hockaday, said her priority now is on the state's budget and that she has not identified any legislative priorities relating to the death penalty.
Certainly, the $1.7 billion budget shortfall that the state faces is and should be her primary focus. But the projected deficit also highlights why she and other leaders must move the death-penalty debate forward. The state's spending on such prosecutions that seek a theoretical punishment is the definition of wasting taxpayer money.
A good start would be in getting our arms around what we don't know. For example, Lewis & Clark Law School professor Aliza Kaplan, who was one of the authors of the report, notes that prosecutors don't tally the hours they spend on a case.
The state could direct district attorneys' offices to start tracking their time per case, just as lawyers in private practice bill clients for their work.
Similarly, the Department of Corrections could break out the portion that it devotes to death-row operations, which require more intensive management or special arrangements that aren't in place for the general prison population. The governor's report, for instance, noted that death-row inmates generally aren't allowed to leave their cells to seek medical care, requiring that medical staff visit inmates there each week.
Getting better data is something both supporters and opponents of capital punishment should get behind. It simply makes no sense to spend millions of dollars on a system that doesn't do what it says it will do. It's equally non-sensical to refuse to even talk about it.