In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Washington state has 8 people on death row - and no plans to ever execute them

Washington Governor (D) Jay Inslee
Family argues against reprieve for death penalty cases.

20 years ago, Dwayne Anthony Woods was convicted of murdering 2 women, sentenced to die and sent to Washington's death row at the state penitentiary in Walla Walla.

Claiming he was innocent, he launched a series of appeals that kept him alive and denied the victims' families the justice they wanted. The appeals came to an end this month when Woods, 46, died of a heart attack.

It was the only death on death row since Gov. Jay Inslee issued a moratorium on executions in 2014. At the time of his edict, there were 9 inmates on death row.

If Inslee has his way, the 8 who remain will also die of disease or old age.

In the broadening fight against capital punishment, his strategy for clearing death row now plays a key role, with similar moratoriums in place in Oregon, Colorado and Pennsylvania.

Opposition to the death penalty has grown in recent years amid concerns over whether some innocent people have been put to death, discrimination against African Americans in sentencing, the costs of appeals, and the methods states use to carry out killings.

"The fact is that the death penalty is not anywhere close to being used in an equitable measure," Inslee said at the time he announced the moratorium. "One person gets life, the other person gets death - it depends on which side of the county line you are."

Nationwide, the number of executions has fallen dramatically, from a peak of 98 in 1999 to 20 last year, according to the nonprofit Death Penalty Information Center. There are about 2,900 people on death rows across the country, down from a peak of nearly 3,600 in the year 2000.

Over the last decade, New York, New Jersey, Illinois, New Mexico, Connecticut, Maryland and Delaware have abolished capital punishment, placing them among the 18 states, along with the District of Columbia, where the most severe punishment is life in prison without the possibility of parole.

The moratoriums are a way for governors to halt executions without putting the issue directly to voters in a referendum or to state legislatures.

Although public support for the death penalty is at a 40-year low, 56% of U.S. residents are still in favor of it, according to a poll last year by the Pew Research Center. Despite California's liberal credentials, voters there narrowly rejected one ballot proposition in November to abolish capital punishment and approved another to speed up executions.

Washington, where appeals can take 20 years, has executed just 5 people in the last 54 years, most recently in 2010. Nonetheless, Inslee has failed to persuade the Legislature - where Republicans narrowly control the Senate and Democrats narrowly control the House - to abolish capital punishment.

The political risks of his stance became apparent as Inslee faced reelection last year. His Republican challenger, Bill Bryant, made the death penalty an issue, saying that a governor shouldn't choose which laws to enforce and vowing that if he were elected, "so as long as it is the law in Washington state, I will enforce it."

Inslee won with almost 55% of the vote.

The victory will allow him to delay executions through 2020, when his term expires. It has also made him optimistic that the next governor would keep his moratorium in place. That the state has not elected a Republican governor in more than 30 years only bolsters that hope.

"Any Dem who follows Jay will be hard put to coming in and reversing the moratorium," Nick Brown, Inslee's general counsel, said.

"My sense is we have ended the death penalty and will not see another execution in Washington state," he said.

A similar dynamic is in play in Oregon, which has had only Democratic governors over the last 3 decades.

Oregon Governor Kate Brown
Oregon Governor (D) Kate Brown
Gov. John Kitzhaber, a doctor who saw the death penalty as a "perversion of justice" that went against his medical oath, imposed a moratorium in 2011, and his successor elected last year, Gov. Kate Brown, continued it. Currently, 34 inmates are on death row there.

In Colorado, where there are only 3 inmates on death row, Democratic Gov. John Hickenlooper, citing costs and concerns about fairness, imposed a moratorium in 2013 and extended it upon reelection the following year.

In Pennsylvania, where Gov. Tom Wolf suspended the penalty in 2015 for the same reasons, 186 inmates are on death row, but there have been only 3 executions in the last 40 years, the most recent in 1999.

As effective as moratoriums can be, death penalty opponents view them as a stepping stone to laws that offer a more permanent end to executions. That happened in Illinois, which eliminated the death penalty in 2011 after a long moratorium.

The moratoriums do not prevent prosecutors from seeking the death penalty, though given the difficulties of carrying out executions, some have backed away from it.

Inslee's effort to clear death row is a race against mortality. 6 of the 8 inmates on Washington's death row were born in the 1950s.

The youngest inmate there is 35-year-old Conner Michael Cross, who was convicted in 2010 of killing a woman, her sister and 2 young sons.

The oldest is 65-year-old Clark Richard Elmore, who was convicted in 1995 of raping and murdering a 14-year-old girl after she threatened to report him for having molested her.

His appeals reached the U.S. Supreme Court in October. It chose not to hear the case despite concerns from Justices Sonia Sotomayor and Ruth Bader Ginsburg, who pointed out that his defense lawyer never investigated his questionable mental state or told the jury about his life growing up around pesticides or handling Agent Orange in Vietnam.

With his appeals run out, Elmore was sentenced to die this month.

Under the moratorium, the governor must act to stop each execution. Inslee has said he will not commute sentences or pardon death row inmates, and instead will issue reprieves that keep inmates on death row but delay their executions as long as he remains in office.

That is what he did in the case of Elmore.

Dave McEachran, the Whatcom County prosecutor who handled Elmore's case and met with Inslee in hopes of changing his mind, said he was "disappointed that after 21 years of appeals in which the sentence of death has been upheld by the highest courts in the state and the United States, the governor has derailed the sentence."

Inslee issued a statement assuring that Elmore will "remain in the State Penitentiary in Walla Walla for the rest of his life."

That will be true even if the next governor lifts the moratorium.

Source: Los Angeles Times, January 16, 2017

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