Profs Kanter & Kaplan Work with State Legislature to Limit the Death Penalty

Capital punishment is the most severe action a state can take against its people. The framers of the US Constitution referenced the death penalty in the Fifth Amendment, referring to “capital and other infamous crimes,” and providing that the US cannot deprive citizens “of life, liberty, or property, without due process of law.” The death penalty has since challenged American legal practitioners, scholars, and judges on ethical and Constitutional grounds — remaining a legal dilemma to this day. 

This June, the Oregon legislature passed a bill to substantially narrow Oregon’s death penalty, SB 1013. Governor Brown ’85 signed the bill into law on August 1, 2019, in a ceremony attended by Emeritus Dean and Professor of Law Steve Kanter and Director of CJRC, Professor of Law Aliza Kaplan, Legislative Director of ACLU Kimberly McCullough ’13, and Legislative Director of Oregon Criminal Defense Lawyers Association Mary Sofia ’10. Each of them has dedicated countless hours to get this bill passed into law. 

Since 1973, Kanter has worked to prevent and then eliminate the death penalty in Oregon, a state in which voters have enacted and repealed it seemingly in conjunction with the changing of the tide. 

The last reinstatement of the death penalty statute in Oregon was caused by a backlash against the 1977 passing of a statute that instituted mandatory minimums before someone convicted of aggravated murder could be eligible for parole. Right-leaning Oregonians were outraged by the possibility of parole for aggravated murder convictions and preferred the opposite: the possibility of capital punishment.

“The proponents of the death penalty were sufficiently energized and upset,” Kanter recalls. “They managed to get the death penalty statute on the ballot, and that was passed by the voters in the fall of 1977.”

At that time, Kanter was practicing criminal defense law, teaching at Lewis & Clark Law School, and writing law review articles denouncing the death penalty. In 1981, he argued before the Oregon Supreme Court in State v. Quinn. The Court declared the death penalty unconstitutional under the Oregon Constitution on the basis that a judge was responsible for determining the mental state of the defendant during the murder rather than a jury, which violated the jury trial provision.

Another setback followed this major accomplishment. Through Ballot Measure 6, proponents of capital punishment moved to amend the Oregon Constitution in order to allow the possibility of the death penalty for individuals charged with aggravated murder. The measure received 55.59% of the vote and was ratified in 1984, making it impossible to amend without another ballot measure popular vote. 

“The legislature doesn’t have the power to repeal, but it does have both the power and responsibility to review and define what aggravated murder crimes there should be, which ones should be eligible for the death penalty, and also to deal with the process that is used in death cases,” Kanter argued. 

Enter Aliza Kaplan, director of the Criminal Justice Reform Clinic (CJRC) and professor of lawyering. Kaplan wrote a law review article in 2013 examining the practicality of the death penalty in Oregon. Citing Kanter’s earlier work on this topic, she analyzed the complicated history of the dysfunctional death penalty system and explained how turbulent jurisprudence, wrongful convictions, and taxpayer costs render it ineffective.

With the help of her clinic students, Portland Attorney Venetia Mayhew ’17, and Professor Peter A. Collins of Seattle University, Kaplan began to see capital punishment not only as a constitutional and moral quandary, but as an economic problem. Their co-authored 2016 report, Oregon’s Death Penalty: A Cost Analysis, revealed that cases resulting in life with or without parole cost taxpayers less than 1/4th of death penalty cases (averaging $334,522 and $1.4 million, respectively).

Invigorated by this finding, Kanter and Kaplan joined forces to testify before the legislature on SB 1013 this spring, this time with a compelling two-pronged argument for limiting the reach of capital punishment: it does not make citizens safer but it sure does cost them more. 

“There is simply no conclusive evidence that the death penalty prevents crime or deters crime better than life in prison. So it does not improve public safety,” Kanter argued.

“The funds currently spent on maintaining the death penalty could be used for indigent defense services, to enhance law enforcement such as solving cold cases and improving forensic science, and on other criminal justice needs,” Kaplan urged.

With regard to the families of victims who seek the death penalty, Kanter believes the system is a “cruel deception.” In the event that a defendant is sentenced to death, the victim’s family is forced to relive the event over and over again through several trials and reversals spanning decades—which may never result in the defendant’s death. “Life without parole at least allows that family to move on and get some sort of closure,” Kanter believes.

Kanter and Kaplan participated in extensive hearings before the Senate Judiciary Committee and the House Rules Committee, fought to keep the bill high in the queue, battled the clock against Senate Republicans walking out on an unrelated cap and trade bill, and ultimately passed through the legislature with only 28 hours to spare before the deadline. 

“It was exciting that there was momentum for narrowing the death penalty in and out of the state Capitol—there was a lot of agreement that our death penalty system is broken and too expensive,” Kaplan said. “I spent a lot of time with Steve at the Capitol, speaking to legislators, advocates, and citizens. Advocating on this issue with one of my mentors was the icing on the cake for me.”

While the death penalty lives on in Oregon, Kanter and Kaplan see the passage of SB 1013 as a necessary first step to removing it completely. The bill limits aggravated murder charges to defendants who have killed two or more people in a terrorist act, children under the age of 14, correctional officers or other inmates while incarcerated for a murder conviction, or police officers. With these changes, Oregon can expect between zero to five cases eligible for the death penalty per year, rather than the 30 to 50 it processes today. 

“It removes a lot of discretion from district attorneys, so they can’t just file a death penalty case because they want to put pressure on somebody to plead guilty—it has to fit in one of the new categories,” Kanter said. 

Further, the bill removes the controversial question of whether there is a probability that the defendant will be dangerous in the future from jury deliberation. According to many constitutional scholars including Kanter, this question violates the ‘proof beyond a reasonable doubt’ bedrock principle and is impossible for a jury to answer.  

“This was the right move for Oregon, where over 65 percent of our death penalty cases currently get reversed. They take decades and cost the taxpayers millions. This new law will narrow who will get the death penalty going forward, and makes very clear who is eligible for it,” Kaplan said.