An amend­ed bill to nar­row the cir­cum­stances in which the death penal­ty may be imposed in Oregon has eas­i­ly passed the state sen­ate. On May 21, 2019, by a vote of 18 – 9, the Oregon Senate passed SB 1013, which would lim­it the state’s use of cap­i­tal pun­ish­ment to three aggra­vat­ing cir­cum­stances and elim­i­nate spec­u­la­tion about a defendant’s future dan­ger­ous­ness from a jury’s cap­i­tal sen­tenc­ing delib­er­a­tions. The bill would allow pros­e­cu­tors to pur­sue the death penal­ty for only three crimes: acts of ter­ror­ism in which at least two peo­ple are killed, the mur­der of a child younger than age 14, and mur­der com­mit­ted in prison by a per­son already incar­cer­at­ed for a pre­vi­ous mur­der con­vic­tion. Under Oregon’s cur­rent law, 12 aggra­vat­ing fac­tors can make a mur­der death-eli­gi­ble. The bill also revis­es the state’s death-penal­ty jury instruc­tions to remove a ques­tion about whether the defen­dant presents a future risk of dan­ger. The pro­pos­al now advances to the state House, where the prospects for its pas­sage are considered good.

The bill’s chief spon­sor, Sen. Floyd Prozanski (D‑Eugene), offered a range of rea­sons why he believed the leg­is­la­ture should lim­it Oregon’s death penal­ty. He said cap­i­tal pun­ish­ment has not been shown to be a deter­rent, 60% of Oregon’s death sen­tences have been over­turned, and the aver­age death penal­ty case costs $1.4 mil­lion, as com­pared to an aver­age cost of $335,000 for a non-death penal­ty mur­der case. Prozanski said the elim­i­na­tion of the jury ques­tion on future dan­ger­ous­ness was designed to reduce the arbi­trari­ness of cap­i­tal sentencing decisions.

Studies have shown that pre­dic­tions of future dan­ger­ous­ness are unsci­en­tif­ic and noto­ri­ous­ly inac­cu­rate. A 2016 study of Oregon pris­on­ers con­vict­ed of aggra­vat­ed mur­der between 1985 and 2008 showed that ​“jurors’ pre­dic­tions of future vio­lent con­duct appeared ​‘to be com­plete­ly unre­lat­ed to the actu­al com­mis­sion of such acts’” and that “[m]ost cap­i­tal offend­ers, whether sen­tenced to death or placed in the gen­er­al prison pop­u­la­tion after being sen­tenced to life with­out parole or obtain­ing relief from a death sen­tence, do not com­mit seri­ous acts of vio­lence while in prison.” The study also found that defen­dants who were sen­tenced to life, defen­dants who were sen­tenced to death, and defen­dants whose death sen­tences were reversed and were resen­tenced to life had vir­tu­al­ly iden­ti­cal low rates of seri­ous vio­lence while in prison. A 2004 Texas study of 155 cap­i­tal cas­es in which expert wit­ness­es pre­dict­ed that the defen­dant would be a future dan­ger found that those pre­dic­tions were wrong 95% of the time.

Oregon is one of four states with a gov­er­nor-imposed mora­to­ri­um on exe­cu­tions. Governor John Kitzhaber first announced the mora­to­ri­um in November 2011, say­ing that ​“Oregon has an expen­sive and unwork­able sys­tem that fails to meet basic stan­dards of jus­tice.” In February 2015, in her first press con­fer­ence since tak­ing office, cur­rent Governor Kate Brown — who was reelect­ed in November 2018 — said she would con­tin­ue the mora­to­ri­um. Only two peo­ple have been exe­cut­ed in Oregon since vot­ers rein­stat­ed cap­i­tal pun­ish­ment in 1984. Both waived their appeals and ​“vol­un­teered” for execution.

The pro­posed bill would apply only to future cas­es and would not affect the 33 pris­on­ers cur­rent­ly on Oregon’s death row. Because Oregon’s death penal­ty was adopt­ed in a vot­er ref­er­en­dum, it can only be abol­ished by pop­u­lar vote. The orig­i­nal ver­sion of SB 1013 had lim­it­ed the use of the death penal­ty to mul­ti­ple killings com­mit­ted dur­ing an act of terrorism.

(Audrey Wieber, Measure 11 reform, oth­er crim­i­nal jus­tice bills move for­ward, Salem Reporter, May 21, 2019; Noelle Crombie, Oregon Senate approves bill to lim­it death penal­ty; now heads to House, Oregon Live, May 21, 2019.) See Recent Legislative Activity.

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