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…

Delaware Lawmakers Announce Bill to Reinstate Death Penalty

A bipartisan group of lawmakers announced Monday that they are pushing ahead with a legislative effort to bring back the death penalty in the First State after the Delaware Supreme Court last year struck down the state's capital sentencing statute as unconstitutional.

Dubbed the Extreme Crimes Protection Act, the bill aims to address flaws that led a bare majority of Delaware's 5 justices last August to rule, in the case Rauf v. State, that the scheme violated a defendant's Sixth Amendment right to a trial by jury.

By a 3-2 vote, the court said that the statute unconstitutionally allowed sentencing judges to independently find the existence of aggravating circumstances and to weigh them against mitigating factors. In light of a recent U.S. Supreme Court case, those determinations, the justices said, can only be made by a jury, unanimously and beyond a reasonable doubt.

The ruling effectively wiped out capital punishment in the state, though the law remains on the books. But it also left to the General Assembly the decision of whether to fix and reinstate the statute or to scrap it altogether.

Last summer, a bloc of 15 Republican legislators vowed to rework the statute and introduce legislation this session to revive it. On Monday, four Republican lawmakers, joined by two Democrats, took the first public step toward realizing that goal. The legislation, they said, was circulating for sponsorship and was expected to be introduced sometime early next week in the House of Representatives.

"This is a thoughtfully crafted, constitutionally sound bill. Once enacted, I believe this legislation will serve as a deterrent against our most heinous crimes," said state Sen. Brian Pettyjohn, R-Georgetown, one of the bill's sponsors, said in a joint press release. "For those who do commit these vile acts, this statute will ensure that capital sentences are justly and fairly applied."

Specifically, the bill would require a jury to unanimously find the existence of at least 1 aggravating factor beyond a reasonable doubt in order to make a defendant eligible for death.

It would also apply the reasonable doubt standard to the weighing phase. Under the stricken statute, a determination that aggravating factors outweigh mitigating circumstances was made by a preponderance of evidence, a lower bar that the Supreme Court found to be unacceptable. A trial judge would then have to sign off on the jury's decision.

The bill would also keep in place a provision of the old law that allows a jury to mitigating circumstances, even if a defendant has not proven their existence beyond a reasonable doubt.

Bill sponsor Rep. John "Larry" Mitchell, D-Elsmere, said the measures were enough to avoid the constitutional pitfalls of the old sentencing scheme.

"Capital punishment is the most serious sentence we as a state can carry out. This legislation sets a higher standard, which reserves the punishment for only the most extreme cases," said Mitchell, a retired sergeant with the New Castle County Police Department, who chairs the House committee that will first consider the bill.

Still, lawmakers are expecting a heated battle to unfold in Legislative Hall. Opponents of capital punishment have argued that the practice is inhumane, overly expensive and fundamentally tinged with racial bias.

Supporters of capital punishment say the death penalty is essential to public safety because it acts as a necessary deterrent to committing the most heinous crimes. Opponents, however, vigorously dispute that assessment.

But there did seem to be some early agreement on Monday that the measures, as drafted, fit the constitutional framework laid out in Rauf.

Kathleen MacRae, executive director of the American Civil Liberties Union of Delaware, said the provisions of the bill appeared consistent with the court's landmark holding; however, she said, her organization remains "totally opposed" to the death penalty and would lobby aggressively against it in Dover.

"From our perspective, it makes absolutely no sense to reinstate a practice we know to be broken," she said.

MacRae said the bill's passage was likely - but not assured - in the House, where the most recent bid to repeal the death penalty died in the House last January after clearing a Senate vote. But she noted that the politics of the death penalty in Delaware had changed in the past 14 months.

"To actively vote to allow the state to kill its citizens is a different vote, and I'm hoping that will give some members pause," she said.

The 12 men previously condemned to die have been resentenced to life in prison without the possibility of parole. Delaware's last execution occurred in 2012, when Shannon Johnson died by lethal injection.

Source: delawarelawweekly.com, March 28, 2017

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