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

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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…

Texas: Why This Judge Dreads Execution Day

“I wondered whether the system I have been a part of for so long was, simply, barbaric.”

The execution was set for 6 p.m. I knew because I set the date and time myself.

With a little more than an hour to go, I sat alone by the phone in my office. More than three decades had passed since the defendant was first convicted of murdering a police officer. I had been the judge at his final trial, and now there was a chance I’d be called on to spare his life.

Higher courts and the Texas governor had already denied the man’s last-ditch appeals. His lawyers had tried to broker a deal with prosecutors to keep him alive, but that had failed, too. Now he was down to his last shot: The defense could present some new argument or evidence to convince me to intervene and stop the execution. If they did, I would have to make a life-or-death decision with essentially no time for research or discussion.

I waited. As the minutes passed, I felt a familiar sense of unease. In the years since I’d presided over his trial, the defendant had become a gray-haired, middle-aged man. He had put together a nearly flawless record helping other inmates. It was hard to see how he still constituted a violent threat to society, a requirement for death penalty cases in Texas. Now, barring a final legal maneuver, he would be erased from the Earth by a system in which I was a key participant.

I stared out the window, feeling jealous of folks headed home or to a happy hour. Eventually, the clock ticked to 6 pm. My phone never rang. I turned on the TV, and learned from the evening news that the execution had proceeded as planned.

As I left the office, I fell into a dark funk. Usually, I was proud and confident about my work as a judge, but a terrible feeling settled over me—the same feeling I had each time I was involved in a death penalty case. Sometimes I was able to rationalize that my role in the outcome of these cases was minimal. After all, jurors were the ones who weighed evidence and reached a lawful verdict. But other times I wondered whether the system I have been a part of for so long was, simply, barbaric.

I ran for office and took the oath knowing that the death penalty would be part of my job, whether I liked it or not. Each time I encountered a capital case — 8 came before me during my 2 decades on the bench - there would be at least one moment that brought my internal conflict starkly into focus. These moments are painfully fresh in my mind.

In my first death penalty trial, in 1998, the defendant had sexually assaulted and brutally slashed and stabbed a woman who had befriended him. The jury found him guilty of capital murder, but it was my duty to formally pronounce his sentence in open court. He displayed no emotion - during the trial, he’d only seemed interested in the crime scene and autopsy photos - and there was evidence he was a psychopath, that he felt no remorse. Still, after announcing his sentence, I felt an urgent need to drink and gulped 2 huge glasses of water.

I wondered: Is my throat dry, or am I trying to wash the words out of my mouth?

Years later, I had to sign the order setting a time for this man’s death—“by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead”—and I remember staring at the paper, feeling strange and unnerved. Later, in my journal, I wrote about how I felt I was “invading God’s province.” I heard about another judge who placed a smiley face next to his signature on a death warrant. I couldn’t comprehend that attitude.

Writing in my journal helped me stay balanced and objective. Once, I wrote about a defendant who was facing the death penalty, “He was almost always seated with his head tilted slightly downward and his eyes staring downward into space.” During the trial, he had showed little emotion. But when it was time for me to say the required words pronouncing his death sentence, I looked him in the eye. As I wrote later, “I was struck by a sight I will never forget. He looked so small, helpless, pathetic. His eyes looked like those of the proverbial deer in the headlights. He had been convicted of being a brutal, sadistic killer, and it was hard to argue that he was not getting what he deserved—but at that moment, for an instant, I saw the other side of the man, the side his family loved.”

I continued: “If only we could execute the bad side and keep the good side alive.”

On another occasion, as an execution was approaching, I was visited by the defendant’s lawyers. The appeals had been exhausted; there was nothing they could do. They suggested we get together on the night of the execution. At first, I thought the idea was sick, demented, heartless - a social hour during an execution! But I knew these lawyers; they were compassionate, serious. We kept talking about the idea, and I realized they were dreading the execution as much as I was. They thought sharing the moment would make things a little less difficult. I joined them, and it was a therapeutic, somber evening. Far better than sitting alone in my office.

For some time, I had been thinking about retiring, but it was a moment of pronouncing a death sentence—and thinking “no more of these” — that finally made me decide to leave the bench, six years ago. Since then, I have felt a deep satisfaction and pride about my career, despite those terrible, uncomfortable moments.

I suppose they were the price I had to pay.

Source: themarshallproject.org, Mike Lynch, April 12, 2018. Mike Lynch, a former judge in Texas District 167, retired in 2012.


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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