Oregon’s new death penalty law is not retroactive, it’s how the law works
The Oregon Department of Justice recently released an opinion that says the new law applies to pending cases, and to cases where death penalty convictions and sentences have been overturned but no new death sentence has been imposed. Prosecutors—who largely opposed the bill during the legislative session—cried foul, claiming they’d been misled. They’re now demanding the legislature “fix” the new law.
This call is perplexing, and potentially damaging. As law professors who closely tracked the legislative process, and supported and testified for SB 1013, the DOJ opinion aligns with our understanding of SB 1013’s language, intent and impact. Changing SB 1013 now, as some prosecutors are suggesting, would have serious unintended consequences.
Like most Oregonians, we believe accountability in our criminal justice system is paramount. People who are guilty of crimes must be held accountable for them. And if there are errors in how cases have been tried, people accused of crimes deserve due process to be sure that they are not inappropriately sentenced to death and innocent individuals are not executed.
SB 1013 was professionally and carefully drafted in alignment with those values, and the new law is not retroactive. That means it does not automatically reverse the convictions or sentences of people on Oregon’s death row. In fact, it has no effect on anyone currently under a death sentence.
If the new law were retroactive, it would mean that even those with a valid death sentence could request a new trial or sentencing under SB 1013. Such a bill was introduced in the House this session, but was not passed. Under SB 1013, the bill that did pass, when original convictions and death sentences are valid, they continue to stand.
But SB 1013 does—and should—apply to death row cases that are overturned on appeal for reasons unrelated to SB 1013, where the old trial or sentence is ruled unconstitutional or unfair. That’s not retroactivity—that’s retrial or resentencing to correct serious errors. Moreover, a reversal of a death sentence (where the conviction remains valid) does not mean release, it means life in prison, often without the possibility of parole.
This isn’t an issue of semantics; rather, it’s how the law works. When someone is re-prosecuted after a reversal, current laws at the time of retrial or resentencing will apply.
The “fix” some prosecutors are asking for would effectively take away due process rights that everyone deserves, even those accused of a very serious crime. Unfortunately, the death penalty is too often unconstitutionally applied, and sometimes innocent people are sentenced to death; Since 1973, over 156 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed. When the stakes are this high, it is critically important that defendants receive a fair trial and sentencing proceeding.
Finally, we cannot let this debate distract from the numerous benefits of SB 1013. By clarifying when the death penalty can be applied, SB 1013 will make prosecutors’ jobs easier. They won’t be forced to make as many difficult discretionary decisions, or allocate scarce resources toward expensive capital trials where a death penalty sentence is not likely to be obtained, or is likely to be overturned if it is obtained. Instead, our state can focus our finite public resources on effective violence prevention measures including mental health treatment and addiction recovery programs, victim services, and public defense. These are expenditures that are more likely to have a positive impact on the safety of our communities.
We applaud Representative Jennifer Williamson and Senator Floyd Prozanski. They have worked diligently and with integrity to make this needed change to our state’s death penalty laws, and have championed doing the right thing from the beginning. Our communities will be safer, and our criminal justice system more effective because of SB 1013. The law should stand as adopted.
Stephen Kanter, Emeritus Dean and Professor of Law, Lewis & Clark Law School
Aliza B. Kaplan, Professor and Director, Criminal Justice Reform Clinic, Lewis & Clark Law School