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May 6, 2011

Data and debates over the death penalty's administration in Oregon

The Oregonian has this interesting piece, headlined "Oregon debate: How to cut the high cost of death penalty cases," which includes notable data on the application of the death penalty in a northwestern state.  Here is the reported data:

Death penalty in Oregon since 1984:

  • Aggravated murder cases with death penalty possible: 795
  • Cases dismissed or acquitted: 36
  • Cases still open: 31
  • Men sentenced to death: 60
  • Death sentences overturned or reduced on appeal: 21
  • Death penalty cases on appeal: 36
  • Men currently on death row: 35
  • Executions: 2

Here are parts of the debate as reported in the Oregonian article:

[There is] a debate under way in the Oregon Legislature about how to contain costs in death penalty defenses that run up to a combined $12 million a year.

Defense attorneys say changing how murderers are prosecuted could get the public the same result most often seen now -- life sentences -- at less cost.  Prosecutors are pushing back, saying defendants would be far less likely to take plea deals if the death penalty weren't hanging over them.  The savings that reformers promise would be swallowed by new and expensive criminal trials, they say.

No one is suggesting repeal of Oregon's death penalty, instituted by voters in 1984, though a handful of other states have abolished capital punishment in recent years.  In Oregon, the death penalty is rarely meted out, according to research by the state Public Defense Services Commission, which presented its findings at a recent legislative hearing....

Kathryn Aylward, business services director for the state Public Defense Services Commission, estimated the public spends $40,000 defending someone charged with aggravated murder -- $200,000 if the death penalty is involved.  The Senate Judiciary Committee, by a 3-2 vote, passed a measure (Senate Bill 369) that would force prosecutors to declare within six months of filing a charge whether they will seek the death penalty.

Attorney Jeff Ellis, director of the Oregon Capital Resource Center, which helps in death penalty cases, said earlier notice would avoid some of those costs.  Prosecutors disagree. "The cost savings are illusionary," said Norm Frink, Multnomah County chief deputy district attorney.  Defendants would more often take their chances by going to trial if they knew they wouldn't face the death penalty, he said, resulting in fewer plea deals sparing such costly trials.

"We have many people who are aggravated murder defendants who plead guilty to aggravated murder and either take a true life sentence or an extremely long mandatory minimum who would never do that if there was not a death penalty involved in the equation," Frink said.  Mary Williams, Oregon deputy attorney general, said forcing prosecutors to decide too early on a death sentence would mean "you are likely to simply have prosecutors keep all doors open."

But Ellis noted that most aggravated murder cases in Oregon already are resolved without a death penalty.  He said Oregon should follow Washington, where prosecutors must give early notice of their intent regarding the death penalty.

With the state's budget hole well into the billions of dollars, a growing group of people in the state and in the Legislature want to dramatically reduce the number of people who get death sentences because of the exorbitant costs of prosecuting and defending these cases.  "They save money early on," Ellis said. "Here, we've got that open spigot."

Another reform passed by the Senate committee, also part of SB369, requires the state Supreme Court chief justice to appoint a judge with no connection to the case to mediate appeals of death penalty cases.  Defense attorneys say the intent is to short-circuit years-long appeals that can cost millions.

Frink said the reform is aimed in the wrong direction.  "Maybe we should do something about restricting the endless and frankly silly lengths to which post-conviction relief is allowed," Frink said.  Williams agreed, saying defense attorneys "flood you with paperwork, make is so expensive to litigate, that they hope you're going to give up."

May 6, 2011 at 01:55 PM | Permalink


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"defendants would be far less likely to take plea deals if the death penalty weren't hanging over them"

AWESOME!!! Extortion!!!

Posted by: anon | May 6, 2011 4:14:40 PM

Extortion? How is that extortion?

Posted by: justice seeker | May 6, 2011 4:47:54 PM

shame on you justice seeker!

what else could the statement "take this plea or we KILL you" possibly be ANYTING but extortion!

Posted by: rodsmith | May 6, 2011 6:50:02 PM

rodsmith --

"...what else could the statement 'take this plea or we KILL you' possibly be ANYTING but extortion!"

It could be consistent with Supreme Court precedent. Bordenkircher v. Hayes, 434 U.S. 357 (1978).

Posted by: Bill Otis | May 6, 2011 7:01:40 PM

and of COURSE the Supreme Court is NEVER wrong! oh wait they once went so far as to so not only was slavery legal...but northern states had to return those who escaped!

Posted by: rodsmith | May 7, 2011 1:18:41 AM

as for a 1978 case! lol that would be useless since it's from 15 years after our former president JFK got the govt convinced WE were placed here to serve them instead of the other way around!

Posted by: rodsmith | May 7, 2011 1:20:15 AM

If a death row inmate kills or injures another after the original execution date, it is the fault of the defense attorney filing pretextual appeals and that of the judges allowing them to proceed.

Because there is 100% certainty that the deceased cannot cause damages, the injury of the plaintiff is foreseeable. The defense attorney and the appellate judge should pay out of personal assets for these damages.

Posted by: Supremacy Claus | May 7, 2011 2:13:00 AM

rodsmith --

The Supreme Court is often wrong, and I have loudly criticized many of its opinions (Miranda, Dickerson, Blakely, Booker, Gall, Kimbrough, Kennedy v. Louisiana and Skilling, to name only a few). The Justices are sufficiently bright and serious people, however, that an opinion should have at least the rebuttable presumption of being correct, until a persuasive counter-argument is made. No one here has made a persuasive conter-argument to Bordenkircher; indeed, like the Imbler v. Pachtman opinion on immunity I have cited, not a single liberal has even mentioned it, much less fairly summarized and then taken on the Court's reasoning.

On a legal blog written by a distinguished professor of law, one would think the citation of Supreme Court cases would be the touchstone of argument in the commentary. But no liberal is willing even to whisper Bordenkircher or Imbler's name.

Posted by: Bill Otis | May 7, 2011 2:08:46 PM

From Bordenkircher at 434 U. S. 358:

"The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky.Rev.Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the Commonwealth's Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences, the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that, if Hayes did not plead guilty and "save the court the inconvenience and necessity of a trial," he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act, [Footnote 1] then Ky.Rev.Stat. § 431.190 (1973) (repealed 1975), which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. [Footnote 2] Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the prosecutor was in possession of this evidence at the time of the original indictment, and that Hayes' refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute."

Posted by: Fred | May 7, 2011 2:23:20 PM

If I claim that my product will grow hair in bald people, and it does not, I will be prosecuted for false advertisement. If I have assets, I wil be made to give customers refunds and to pay for the prosecution and court costs.

When a legislature passes a law, and it is not enforced, that is the same, false notice. Those who have prevented the law from being enforced should be made to pay for the cost of its false notice.

Posted by: Supremacy Claus | May 7, 2011 2:36:54 PM

You do approach self-parody when your list of wrong Supreme Court opinions contains only pro-defendant criminal cases.

Posted by: Jay | May 8, 2011 11:53:05 AM

Jay --

My supposed self-parody is of no consequence. Prosecutorial immunity and the permissible terms of plea bargaining are of considerable consequence. Do you have any substantive rebuttal to either Imbler or Bordenkircher, or do you just want to talk about other commenters?

Posted by: Bill Otis | May 8, 2011 1:35:07 PM

Bill: For the civilians, a simple list, 1., 2., 3., ...

Why should the prosecutor have immunity from civil liability and not the welder, or not the maker of military explosives, for that matter (since both the prosecutor and the explosives maker hurt people in the course of their ordinary business)?

The original reason, "The Sovereign speaks with the voice of God," is less persuasive today, than it used to be, and unacceptable in a secular nation. I can think of no other reason that does not apply to the welder. To put things in perspective. The County DA has a budget of $5 million a year. The welder has a gross revenue of $5 million a year. The welder will have 400 civil suits simultaneously, permanently. As one is settled, another comes in. These will be from all around, regulatory agencies, customers, employees, providers, neighbors, competitors. The public has valued each the same, $5 million a year.

Why is one privileged, and not the other?

If we put welders on the Supreme Court, and they supported immunity for welders, and only for welders, how does that look?

I am not being sarcastic. If I am missing something, I am willing to learn.

Here is one sure consequence of immunity, growth, without legislative oversight. Immunity grows the entire enterprise, and liability shrinks the entire enterprise. It deters the entire industry, and not just the defendant. So there is an explosion of prosecution for mala prohibita to sustain the growth of criminal prosecutions. Meanwhile, welding is moving overseas, and moribund.

Posted by: Supremacy Claus | May 8, 2011 5:14:15 PM

SC --

I answered your question on another thread, but you might not have seen it, so I repeat it below:

"Why the prosecutor, and not the welder?"

Because, among other reasons, welders are in private contractual relationships with their customers where they can work out in inadvance how disputes will be settled. There is no such relationship between criminal and prosecutor. The criminal wants nothing from the prosecutor other than to disable him. That's his best outcome.

Without immunity, the prosecutor would have to answer 100 or 200 or 5000 trifling, vexatious lawsuits filed by even the most obviously guilty and menacing of defendants. One can scarcely think of a better way to tie down the prosecutor's office so that it would never be able to put away the guilty (and thus be even less effective than what you criticize it for being now).

And there's the practical side as well. People who sue welders have to bear their own costs and invest their own time, so they have an incentive to avoid frivolous claims. People who sue prosecutors are almost all in forma pauperus (indigent) and have their costs paid for them, either by the taxpayers or by pro bono groups and firms. Mostly they're just sitting there in prison either watching TV or going to some rehab program in which they have no interest. So we have a huge class of plaintiffs with time on their hands, no costs to bear and nothing to lose by trying. Plus they gain "street cred" with their fellow inmates by being a "tough guy" with the DA.

There are occasional instances where the doctrine of immunity seems unfair. But there are occasional instances where every legal doctrine ever created seems unfair. The overall advantages and disadvantages of having it are such that the judgment in Imber was unanimous. Even Brennan and Marshall explicitly approved of absolute immunity and "much of the reasoning" supporting it.

Finally, thank you for actually addressing the merits of Imbler, something those on this board who view themselves as superior to you have refused to do.

Posted by: Bill Otis | May 8, 2011 9:33:54 PM

Bll: Nice review of the standard cannon.

I do not want to pile it on, so one question at a time.

If a duty o a party exists, is it possible to not have liability? A duty cannot exist without liability, save by the charitable, magnanimous professional standards , which would have to be self imposed. Self imposition of standards is an human impossibility. No human can regulate himself.

The prosecutor has dozens of statutory and common law duties to the defendant, in the Rules of Conduct, the Rules of Evidence, the Rules of Criminal Procedure.

Here is a brief list of the duties of the lawyer to the general adverse third party. The special duties of the prosecutor to the defendant are on top of these. For those who do not wish to wander the internet, the list has over a dozen enumerated duties. That means, liability for violating any of these not only was the intent of the legislature but liability for their violation would be per se.


How can duties exist if liability does not? The judge of the case may hold the prosecutor in contempt and assess costs to his personal assets, but isn't ordinary liability preferable, fairer to the district attorney, and coverable by insurance?

Posted by: Supremacy Claus | May 8, 2011 10:14:20 PM

I guess it is time for Oregon to consider a different approach.

Posted by: ATO SMSF | Nov 23, 2011 9:27:37 PM

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