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Time for Oregon to re-examine capital punishment

John Kitzhaber was re-elected to a fourth term as Governor of Oregon. This in and of itself is a remarkable achievement. The situation is even more interesting when considering the swarm of scandals which Kitzhaber successfully swatted in winning. Yet I would like to focus on a single issue which did not end up playing as prominent of a role in the campaign as I thought it would: capital punishment. Given the relative silence on this issue during the campaign, and given the governor's re-election, I think it is highly significant for the near future of Oregon politics.

Capital punishment was up for discussion because early in his term, Governor Kitzhaber effectively halted all capital punishment proceedings in the state. This came to a head because a particular death row inmate had forsworn further appeals and was electing to die.

Kitzhaber was deeply troubled by the memory of the two executions which happened during his first pair of terms. Likewise, he questioned the logic of a death row system which effectively only proceeded to execution if the inmate gave up and asked to die. Therefore he issued an indefinite stay on this inmate's execution. Moreover, the Governor announced that no other executions would proceed during the duration of his term in office. (He was not commuting the inmates' sentences, so it is possible that a subsequent governor could reverse course and executions could continue.)

This act raised various levels of controversy. On the first level, the inmate wanted to reject the clemency and demanded to be put to death in spite of the Governor's action. The case went to the Oregon Supreme Court, which ruled that the Governor's power of reprieve is unconditional.

Above that, some citizens were upset that Kitzhaber was unilaterally stopping capital punishment in Oregon. This, they argued, was contrary to the law and the will of the people of Oregon, and against the intent of the clemency powers given the governor in the state constitution. In this, the Governor was essentially shirking his duties.

I was among Kitzhaber's supporters in this move. And now the Governor has been re-elected with this policy still standing. I believe this possibly signals that Oregon voters are ready to remove capital punishment in this state.

The only way to know for sure would be to have an initiative on this topic in the next election. Oregon voted the death penalty into law in 1984. That is more than a generation ago. Popular opinion on gay marriage changed in ten years, and Oregon voters reversed themselves on marijuana legalization in only two. It's time to put the question to the people again. I believe the measure would pass, and the death penalty will be repealed in Oregon.

In addition to his personal objections, Kitzhaber is ultimately calling for the same re-examination. The system should be scrapped or fixed, he says. Let's find out the will of the people.

Reasonable doubts about capital punishment

If you have not seen it already, see this exchange from a recent 2012 Republican presidential candidate debate:

(Texas Governor Rick Perry is questioned about the 234 executions which have occurred under his watch and the crowd applauds).

We cannot be very surprised by the audience's support for Perry on this issue, though I think it took an odd form as applause. Capital punishment has fairly significant popular support in the United States. Some states allow it, and some don't. Of those who allow it, some do not really actively execute death-row inmates. But Texas is the king of the death penalty.

The US finds itself in league with some strange partners in the use of capital punishment. We find ourselves in the company of North Korea, Libya, Zimbabwe, China, Iraq, and Iran. None of our traditional allies in Europe or Canada practice it, and many of the countries we regard as the most despicable do.

I know that the Declaration of Independence is not a binding legal document for the US. Still, it is the statement of the spirit of our republic, and many politicians invoke it. So I wonder how it could be true that "Life" is an "unalienable Right" where capital punishment is practiced. Let me be clear: I am not trying to portray the death penalty as a departure from our idealistic roots. The founders supported capital punishment in various forms. So there is some form of ideological hypocrisy there. Mostly I just want Americans to consider how the God-given, unalienable rights of life, liberty, and the pursuit of happiness relate to our current criminal justice system.

I found Perry's phrasing here interesting: "the ultimate justice." The word I was expected was "punishment," not "justice." I think it is useful to maintain a distinction between justice and punishment in our rhetoric. If the death penalty is carried out in error, it is the ultimate injustice. Rick Perry does not express doubts about 234 convictions, but I find it hard to believe that every single one of those condemned was truly guilty. That's a level of accuracy that is hard for humans to achieve in even the simplest matters.

Christianity has a mixed witness on capital punishment. I do not feel I can make an authoritative appeal to scripture or tradition one way or the other. So when I address the death penalty, I typically do so from the standpoint of reasonable doubt. I believe that the burden of proof for capital punishment should be higher than what can be delivered by our legal system. In other words, I never trust a judge and jury to get it right when the stakes are so high. We cannot afford to get it wrong.

I am surprised that more people do not distrust the government to make a life and death decision. So many people who are otherwise skeptical of government competence are supportive of an irreversible punishment. I think that is because most people never have to consider the possibility of a wrongful execution for themselves or their loved ones. But then cases like Troy Davis come along, and the media attention raised by them may help people to at least think about the issue.

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