Oregon Supreme Court Overturns Death Sentence in Decision that Could Clear the State’s Entire Death Row

In a deci­sion that advo­cates say could clear the state’s death row, the Oregon Supreme Court (jus­tices pic­tured) has over­turned death-row pris­on­er David Ray Bartol​’s death sen­tence because the crime he com­mit­ted is no longer statu­to­ri­ly eli­gi­ble for the death penalty.

In 2019, the Oregon state leg­is­la­ture passed a new law that nar­row­ly lim­its the crimes for which the death penal­ty may be imposed. The court on October 7, 2021 held with­out dis­sent that Bartol’s sen­tence vio­lat­ed the pro­hi­bi­tion on ​“dis­pro­por­tion­ate pun­ish­ments” con­tained in Article I, sec­tion 16 of the Oregon Constitution because his offense had been reclas­si­fied as non-capital.

In her opin­ion for the court, Justice Rebecca Duncan wrote: ​“The enact­ment of SB 1013 [the new law] reflects a leg­isla­tive deter­mi­na­tion that, regard­less of when it was com­mit­ted, the con­duct that had con­sti­tut­ed ​‘aggra­vat­ed mur­der’ does not fall with­in the nar­row cat­e­go­ry of con­duct for which the death penal­ty is appro­pri­ate. Given that deter­mi­na­tion, we con­clude that, although the leg­is­la­ture did not make SB 1013 retroac­tive as to sen­tences imposed before its effec­tive date, main­tain­ing defendant’s death sen­tence would vio­late Article I, section 16.” 

Duncan said that while the leg­is­la­ture was tasked with ​“establish[ing] penal­ties for crim­i­nal statu­to­ry vio­la­tions, it is the role of the courts to give effect to the con­sti­tu­tion­al pro­por­tion­al­i­ty require­ment — by set­ting aside pun­ish­ments that, under pre­vail­ing soci­etal stan­dards, are dis­pro­por­tion­ate to the offens­es for which they are imposed.” The legislature’s judg­ment as to what con­sti­tut­ed ​“the worst of the worst” mur­ders and what did not, the court said, made clear that Bartol’s con­duct was no longer con­sid­ered appro­pri­ate for the death penalty.

“My expec­ta­tion is that every death sen­tence that is cur­rent­ly in place will be over­turned as a result of this,” Jeffrey Ellis, co-direc­tor of the Oregon Capital Resource Center, told Oregon Public Broadcasting.

The 2019 leg­is­la­tion, SB 1013, reclas­si­fied all crimes that were pre­vi­ous­ly death-eli­gi­ble as ​“mur­der in the first degree” and clas­si­fied a new, much nar­row­er, set of crimes as ​“aggra­vat­ed mur­der” pun­ish­able by death. The new law restricts the death penal­ty to cas­es involv­ing acts of ter­ror­ism in which two or more peo­ple are killed, pre­med­i­tat­ed mur­ders of chil­dren aged thir­teen or younger, prison mur­ders com­mit­ted by those already incar­cer­at­ed for aggra­vat­ed mur­der, and pre­med­i­tat­ed mur­ders of police or cor­rec­tion­al offi­cers. Bartol and every­one else on the state’s death row were con­vict­ed under the pri­or law and could not be sen­tenced to death for the same crimes today. 

In revers­ing Bartol’s death sen­tence, the Oregon Supreme Court relied heav­i­ly on the con­cept of ​“evolv­ing stan­dards of decen­cy,” a stan­dard set by the U.S. Supreme Court for deter­min­ing whether a pun­ish­ment vio­lates the Eighth Amendment to the U.S. Constitution. The Connecticut Supreme Court also relied on that con­cept in 2015 when it struck down the death sen­tences of every­one on the state’s death row after the state legislature’s prospec­tive abo­li­tion of the death penal­ty in 2012. 

“Like the Eighth Amendment’s pro­por­tion­al­i­ty require­ment, Article I, sec­tion 16’s pro­por­tion­al­i­ty require­ment must be inter­pret­ed based on cur­rent soci­etal stan­dards,” the Oregon Supreme Court wrote. ​“It is not sta­t­ic; it evolves as soci­etal stan­dards change. When deter­min­ing whether a pun­ish­ment is dis­pro­por­tion­ate, courts apply the stan­dards that cur­rent­ly pre­vail.” The court found that SB 1013 pro­vid­ed strong evi­dence that the death penal­ty was no longer con­sid­ered accept­able for the crimes that were reclas­si­fied as first-degree murder. 

The court also empha­sized the arbi­trari­ness of SB 1013’s lack of retroac­tiv­i­ty. ​“Under SB 1013, whether a per­son who com­mit­ted con­duct that was pre­vi­ous­ly clas­si­fied as ​‘aggra­vat­ed mur­der’ but is now clas­si­fied as ​‘mur­der in the first degree’ can be sen­tenced to death depends on the person’s sen­tenc­ing date, not on the rel­a­tive grav­i­ty of the con­duct,” Justice Duncan wrote. ​“SB 1013 cre­ates a pro­por­tion­al­i­ty prob­lem: It allows the exe­cu­tion of per­sons whose con­duct the leg­is­la­ture has deter­mined is not the worst of the worst and whose cul­pa­bil­i­ty is no dif­fer­ent from those who can­not be exe­cut­ed. Under SB 1013, per­sons who engage in exact­ly the same con­duct, at exact­ly the same time, can receive unique­ly dif­fer­ent sen­tences: one can­not be exe­cut­ed, but the oth­er one can, even though the leg­is­la­ture has deter­mined that the con­duct is not the type for which death sen­tences can be imposed.”

The court also not­ed that, ​“when­ev­er a state’s laws have changed so that per­sons with exist­ing death sen­tences would not be eli­gi­ble for the death penal­ty if they were sen­tenced under the new law, those per­sons have not been exe­cut­ed.” In New Mexico and Connecticut, the state leg­is­la­tures repealed the death penal­ty prospec­tive­ly, but the respec­tive state supreme courts lat­er over­turned the death sen­tences of the peo­ple on death row. In New Hampshire, the death penal­ty was prospec­tive­ly repealed in 2019, and one per­son remains on the state’s death row.