This is the story of the nullification of the will of the voters of Oregon by the Oregon Legislature and Governor Kate Brown, and their betrayal of murder victims and their families.

In 1984, the voters of Oregon reinstated the death penalty by passing two ballot measures. Measure 6 passed with a 55.6% majority and Measure 7 passed with a 75.1% majority (reference 1).

Prior to SB 1013, Oregon law defined two crimes of murder: Murder and Aggravated Murder. A sentence of death was possible only after a conviction for Aggravated Murder. The overwhelming majority of Oregon murderers were convicted of Murder, not Aggravated Murder, and thus were not subject to the death penalty.

For every murderer currently on Oregon's death row, a conviction for Aggravated Murder required a unanimous vote of a 12-person jury plus four more unanimous jury votes to determine the sentence. Beside death, juries had two other options for Aggravated Murder sentences: life without parole ("true life") and life with the possibility of parole after 30 years. Most murderers convicted of Aggravated Murder receive non-death sentences.

As of January 1, 2019, there were 30 people on death row (reference 2). Some were convicted as far back as 1988. There are no Oregon death row inmates with a credible claim of innocence.

The death row inmates are literally the worst of the worst. There have been thousands of murder convictions in Oregon since 1984, and there are currently about 1,800 inmates in prison for homicide (reference 3), but these 30 people have the distinction of receiving the death penalty from a jury. In many cases, they have been sentenced to death multiple times.

The most notorious resident of death row is Dayton Leroy Rogers. He was convicted of six murders and has admitted to a seventh. The Oregonian writes:

Rogers is known as Oregon's most prolific serial killer. He tortured and stabbed six women in 1987, leaving their bodies in a remote wooded area outside Molalla. Rogers, a foot and bondage fetishist, targeted young women who were heroin addicts. He sawed off some of their feet. One woman was gutted from her sternum to her pelvis. Jurors sentenced Rogers to death in 1989, 1994 and 2006, but the Oregon Supreme Court overturned the verdicts when laws changed or on legal technicalities. Another jury sentenced him a fourth time in 2015. (reference 2)

Because of interminable appeals, all based on technicalities and legal moving of goalposts, no murderer has been executed in Oregon since 1997.

In 2011, Oregon Governor John Kitzhaber declared a moratorium on executions and in 2015, his successor Kate Brown, extended it (reference 4).

Despite the undermining of the death penalty, it still serves a purpose. First, it gives survivors the certainty that the murderer of their loved one will not leave prison alive. Second, the inmates on death row are separated from the general population. This protects prison officials and other inmates, reduces the chance of escape, and precludes the death row residents from participation in sports, entertainment, and other group activities.

One of the death row residents, Gary Haugen, was sentenced to death only after the brutal 2003 murder of another inmate while serving life for the 1981 bludgeoning murder of his girlfriend's mother. (reference 2)

Anti-death penalty activists have attempted several times to ban the death penalty in Oregon via a ballot measure but pulled back because of insufficient voter support.

In 2019, some powerful members of the Oregon Legislature sought another way to undermine the death penalty. They proposed Senate Bill 1013 (SB 1013), which creates a new crime, Murder in the First Degree. It shifted most murders that previously fell under Aggravated Murder to the new crime for which the death penalty is not an option.

The bill was sponsored by the Senate Judiciary Committee. Representative Jennifer Williamson and Senator Floyd Prozanski were its two chief proponents.

The first legislative hearing for SB 1013 was held on April 1, 2019 (reference 5). As originally proposed, only acts of terrorism that killed two or more people would have been eligible for the death penalty. Under pressure from law enforcement, district attorneys, victims groups, and Oregon voters, the bill was amended so that the pre-meditated murder of a law enforcement officer, the pre-meditated murder of a child under 14, and a murder committed in prison or jail by a convicted murderer, were added back as death-penalty-eligible crimes (reference 13).

Left out of the amended version of SB 1013 were: murder for hire, murdering multiple people in the same criminal episode, torture/murder, murdering a witness in a criminal proceeding, murder after a previous murder conviction, murder to conceal another crime, and murder during an escape. Even as amended, few of the 30 on death row would be eligible for the death penalty under SB 1013 (reference 14).

SB 1013 was passed by the Oregon Senate on May 21st, 2019 and, in amended form, by the Oregon House on June 19, 2019. The Senate passed the amended version on June 29, 2019. SB 1013 was signed into law by Governor Kate Brown on August 1, 2019 (reference 6). It went into effect on September 29, 2019.

Prior to its passage, SB 1013 proponents had assured legislators and the people of Oregon that the bill was not retroactive. This was uniformly understood to mean that it did not apply to crimes committed before the bill's effective date which meant that it did not apply to the murderers already on death row.

According to The Oregonian:

During a June 19 speech on the floor of the Oregon House, Williamson said the bill wasn’t retroactive and only “applies to aggravated murder cases going forward.” (reference 7)

The Oregonian also reported:

Lawmakers this year assured Oregonians that a new law significantly limiting the death penalty in Oregon would not affect death row cases returned to lower courts for retrial or new sentencing hearings. (reference 8)

Without these assurances, it is doubtful that the bill would have passed.

Representative Williamson reassured The Oregonian that the retroactivity problem had been fixed by another bill:

"State Rep. Jennifer Williamson, D-Portland, had told The Oregonian/OregonLive last month that lawmakers drafted a separate bill, Senate Bill 1005, to make clear that SB 1013 wouldn’t apply to those who have been previously sentenced but have been granted reversals." (reference 8)

But in August, the Solicitor General of the Oregon Department of Justice announced that, prior assurances notwithstanding, the bill is retroactive, meaning that it applies to crimes committed before the effective date of the bill (September 29, 2019) and therefore to murderers already on death row, should they be re-tried or re-sentenced. The claim by Representative Williamson that SB 1005 had fixed the problem was false. In fact, the Solicitor General said, "SB 1005 does not have any language limiting the application of SB 1013’s substantive provisions to cases being retried". (reference 8)

The retroactivity of SB 1013 means that none, or nearly none, of the 30 residents of death row who are retried or re-sentenced based on appeals will be eligible for the death penalty, Dayton Leroy Rogers included. This means that the parents, siblings, spouses, and other loved ones of victims in death penalty cases now have to live with the prospect that the murderer may be released from prison.

The revelation that the bill was not what proponents claimed or what legislators believed when they cast their votes prompted a call for the governor to order a special session of the Oregon Legislation to fix the bill. Among those calling for a special session was one of the bill's main proponents, Senator Floyd Prozanski (reference 9).

Representative Williamson, despite her June 19th assurance that the bill applied "only to aggravated murder cases going forward", and her August 13th statement that the bill needed to be fixed due to a "drafting error", opposed a special session and now said that the bill did what she intended (reference 9).

An August 8th Oregonian editorial characterized SB 1013 as:

"an even bigger legislative sleight of hand. The law doesn’t just guarantee fewer death-penalty cases in the future; it rewrites the possible outcomes for existing death-penalty cases for crimes committed decades ago." (reference 10)

The editorial further said:

Although the bill’s champions, Rep. Jennifer Williamson and Sen. Floyd Prozanski, repeatedly assured colleagues and the public that the bill was not retroactive, they failed to explain how selective their definition of “retroactive” was. Even prosecutors and top attorneys at the Oregon Department of Justice, which handles death penalty appeals for the state, didn’t understand until recently the potential impact of the new legislation on an unknown number of pending aggravated-murder cases. The lack of transparency and outright misdirection that has tainted the legislative process should offend Oregonians regardless of their position on the death penalty.

On August 28th, The Oregonian reported that "Gov. Kate Brown supports special session to ensure new death penalty law doesn’t affect old cases". The governor is quoted:

“Given the seriousness of the issues we’re dealing with and the impact on victims and families, I think it’s critically important that there be clarity about the law,” Brown told reporters on a phone call. "I would support a statutory fix to address the misunderstandings regarding the bill’s quote retroactivity.” (reference 11)

By September 18th, Governor Brown backed off her previous position, saying "No special session to ‘fixʼ Oregonʼs death penalty law". She said:

“While it is clear there is a misunderstanding regarding the intent of the words in Senate Bill 1013, it is also clear there is not sufficient support for a special session to pass a fix". (reference 12)

This is a cop out. Had Governor Brown called a special session and pushed a fix, SB 1013 would have been fixed. With her new stance, Governor Brown protected legislators from having to go on the record taking an unpopular position that subjects the families of Aggravated Murder victims to years, or decades, of uncertainty. Cases of SB 1013 retroactivity will fill the news for years to come, and the legislators responsible will remain anonymous.

Legislative and gubernatorial deceptiveness aside, the retroactivity of SB 1013 has created confusion and uncertainty, and raised serious legal issues. How can you re-sentence a person for a crime that did not exist at the time of their crime and for which they were not convicted? How can you re-convict a person for a crime that did not exist at the time of the crime?

These questions will stoke appeals for many years to come, inflicting more pain on the surviving loved ones of murder victims.

The governor and the legislators must fix the mess they have created.

References

1. https://sos.oregon.gov/blue-book/Documents/elections/initiative.pdf

2. https://www.oregonlive.com/pacific-northwest-news/page/oregon_death_row.html

3. https://www.oregon.gov/doc/Documents/offender-population-all.pdf

4. https://www.oregonlive.com/crime/2019/08/calling-death-penalty-costly-and-immoral-governor-signs-bill-limiting-its-use.html

5. https://www.opb.org/news/article/oregon-lawmakers-death-penalty-limits-senate-bill/

6. https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/SB1013

7. https://www.oregonlive.com/crime/2019/08/another-day-another-interpretation-of-oregons-new-law-limiting-the-death-penalty.html

8. https://www.oregonlive.com/crime/2019/08/oregons-new-law-limiting-the-death-penalty-applies-to-past-cases-new-legal-opinion-says.html (2019-08-12)

9. https://www.oregonlive.com/crime/2019/08/oregons-new-death-penalty-law-has-immediate-effect-confusion.html (2019-08-16)

10. https://www.oregonlive.com/opinion/2019/08/editorial-fix-retroactive-death-penalty-bill-in-special-session.html (2019-08-18)

11. https://www.oregonlive.com/news/2019/08/gov-kate-brown-announces-support-for-a-special-session-to-address-retroactivity-of-new-law-limiting-death-penalty.html (2019-08-28)

12. https://www.oregonlive.com/politics/2019/09/no-special-session-to-fix-oregons-death-penalty-law-says-gov-kate-brown.html (2019-09-18)

13. https://www.statesmanjournal.com/story/news/crime/2019/09/01/oregon-death-penalty-aggravated-murder-special-session/2130974001/ (2019-09-01)

14. https://www.opb.org/news/article/oregon-death-penalty-aggravated-murder/ (2019-10-01)