Oregon’s New Law Narrowing Use of Death Penalty: How Retroactive is ​“Not Retroactive”?

When Oregon​’s leg­is­la­tors passed a new law lim­it­ing the scope of the state’s death penal­ty, the spon­sors of the mea­sure offered assur­ances that it would not apply retroac­tive­ly to pris­on­ers on the state’s death row. Now, a new legal opin­ion by the Oregon Department of Justice has raised ques­tions as to how retroac­tive ​“not retroac­tive” actu­al­ly is and whether the new law applies to legal pro­ceed­ings involv­ing cur­rent death-row pris­on­ers whose con­vic­tions or death sen­tences may lat­er be found to be uncon­sti­tu­tion­al. As pros­e­cu­tors cried foul, the spon­sors of the bill are split over whether that is what they intend­ed, and Governor Kate Brown has not decid­ed on whether to call a spe­cial leg­isla­tive ses­sion to address the issue before the law goes into effect September 29. 

SB 1013, signed into law by Governor Kate Brown on August 1, restricts Oregon’s future use of the death penal­ty to cer­tain acts of ter­ror­ism, prison mur­ders by those already incar­cer­at­ed for a pri­or mur­der, pre­med­i­tat­ed mur­ders of chil­dren age thir­teen or younger, and pre­med­i­tat­ed mur­ders of law enforce­ment per­son­nel. A sec­ond bill, SB 1005, signed into law August 9, was sup­posed to clar­i­fy that SB 1013 did not apply retroac­tive­ly to the 30 cur­rent death-row pris­on­ers who were sen­tenced under the old law. Only one of those pris­on­ers would be sub­ject to the death penal­ty under the new law. 

During leg­isla­tive debate on the death-penal­ty reform, bill spon­sors Sen. Floyd Prozanski (D‑Eugene) and Rep. Jennifer Williamson (D‑Portland) repeat­ed­ly empha­sized that the lim­i­ta­tions on death-eli­gi­bil­i­ty would not apply to over­turn the con­vic­tions or death sen­tences of those already sen­tenced to death in the state. However, on August 9, 2019, Oregon Solicitor General Ben Gutman sent an email to state pros­e­cu­tors advis­ing them that the pro­vi­sions of the new law applied to all future cap­i­tal tri­als or sen­tenc­ing hear­ings, includ­ing retri­als or resen­tenc­ings of per­sons pre­vi­ous­ly sen­tenced to death. Oregon Department of Justice lawyers, Gutman wrote, ​“have con­clud­ed that the new, nar­row­er def­i­n­i­tion of aggra­vat­ed mur­der in SB 1013 does apply to pend­ing cas­es — includ­ing cas­es that have been sent back for new penal­ty or guilt phas­es. That means that most of those cas­es could no longer be pros­e­cut­ed as cap­i­tal aggra­vat­ed-mur­der cas­es; they pre­sum­ably would have to be pros­e­cut­ed as first-degree mur­der cas­es instead.” Prosecutors expressed out­rage at what they con­sid­ered to be the retroac­tive appli­ca­tion of the law. 

Lewis & Clark Law School pro­fes­sor Aliza Kaplan — who pro­vid­ed leg­isla­tive tes­ti­mo­ny in favor of the bill — said the law is clear on how it should be applied and expressed sur­prise at the con­tro­ver­sy. ​“There is a real­ly big dif­fer­ence between retroac­tiv­i­ty and resen­tenc­ing,” she said. The law does not retroac­tive­ly apply to over­turn exist­ing cap­i­tal con­vic­tions and death sen­tences, she told The Oregonian, but it does apply to future legal pro­ceed­ings for for­mer death-row pris­on­ers whose cas­es have been are over­turned on appeal. ​“If we got those cas­es right the first time, then they would be set­tled and done but they are not because of uncon­sti­tu­tion­al behav­ior,” Kaplan said. ​“Putting those cas­es in the same place as set­tled cas­es is incorrect.” 

Responding to the pros­e­cu­to­r­i­al crit­i­cism, Prozanski said the intent of the bill was ​“it was not retroac­tive” and that its appar­ent retroac­tiv­i­ty result­ed from ​“a draft­ing error.” However, after sign­ing on to an August 13 let­ter with Prozanski say­ing there had been ​“an unfor­tu­nate tech­ni­cal draft­ing error … [that] we will work to fix,” Williamson — the for­mer House Majority Leader — said she had always intend­ed the death-penal­ty reforms to apply to all future tri­als and sen­tenc­ings, whether they were new tri­als or resen­tenc­ing pro­ceed­ings. In inter­view with the edi­to­r­i­al board of The Oregonian, Williamson said: ​“This is not a tech­ni­cal error. It does what we said it was going to do.” Her ini­tial state­ment, a House staffer lat­er said, had been based on incom­plete infor­ma­tion about the impact the DOJ thought the law would have on unre­versed cap­i­tal con­vic­tions and death sentences. 

The Oregon DOJ first con­front­ed the retroac­tiv­i­ty issue after a tri­al judge barred pros­e­cu­tors from seek­ing the death penal­ty against Martin Johnson, who was fac­ing a poten­tial cap­i­tal retri­al fol­low­ing the rever­sal of his 2001 con­vic­tion and death sen­tence for the mur­der of a 15-year-old girl. ​“When you look at the plain lan­guage of [SB] 1005, it just doesn’t apply to our case,” said Dean Smith, one of Johnson’s lawyers. ​“I don’t know what the inten­tion of the leg­is­la­tors was, but if they wished to make it so that [SB] 1013 did not apply to peo­ple like Mr. Johnson, that was not that hard to do.” 

Prozanski has asked Governor Brown to sched­ule a spe­cial leg­isla­tive ses­sion before the September 29 effec­tive date of the leg­is­la­tion to address the con­fu­sion, a move that Williamson oppos­es. In an August 16 memo to law­mak­ers, she explained the intent of the law and charged that the Oregon District Attorneys Association had delib­er­ate­ly sewn con­fu­sion about the retroac­tiv­i­ty issue. The pros­e­cu­tors, she wrote, ​“used this same coor­di­nat­ed strat­e­gy to oppose lim­i­ta­tions to the death penal­ty dur­ing ses­sion and con­tin­ue to oppose this new law after its passage.”