Senate Bill 1013 was the Oregon Legislature’s attempt to get as close as possible to abolishing the death penalty without going to voters. By significantly narrowing the definition of aggravated murder — the only crime that carries the possibility of capital punishment — lawmakers could largely shut down the pipeline of people to death row.
It was both a clever strategy and a pessimistic one. Legislators leveraged their statutory authority to take away the death penalty as an option long before a case ever got to a jury. But it also reflected their suspicion that, if asked, Oregon voters would reject a call to amend the constitution and abolish capital punishment.
However, as reports by The Oregonian/OregonLive’s Noelle Crombie show, SB 1013 was an even bigger legislative sleight of hand. The law doesn’t just guarantee fewer death-penalty cases in the future; it rewrites the possible outcomes for existing death-penalty cases for crimes committed decades ago.
Although the bill’s champions, Rep. Jennifer Williamson and Sen. Floyd Prozanski, repeatedly assured colleagues and the public that the bill was not retroactive, they failed to explain how selective their definition of “retroactive” was. Even prosecutors and top attorneys at the Oregon Department of Justice, which handles death penalty appeals for the state, didn’t understand until recently the potential impact of the new legislation on an unknown number of pending aggravated-murder cases. The lack of transparency and outright misdirection that has tainted the legislative process should offend Oregonians regardless of their position on the death penalty.
While Williamson denies that there’s any problem with the legislation, Prozanski, to his credit, concedes the new law needs additional work to limit the reach of SB 1013. Without Williamson’s support, he has asked Gov. Kate Brown to convene a special session before the law goes in effect on Sept. 29. The governor should acknowledge the legislation’s fatal lack of transparency, recognize the public interest in having an informed debate incorporating all the implications of this bill and grant Prozanski’s request.
From the start, Williamson and Prozanski repeatedly assured colleagues, prosecutors and the public that the new definition of aggravated murder created in SB 1013 would not be “retroactive.” Under SB 1013, the charge of aggravated murder can only be filed against defendants accused of killing two or more people in a terrorism act; killing a child younger than 14 intentionally and with premeditation, killing another person while incarcerated for a previous murder; or killing a law enforcement, correctional or probation officer. The law designated other crimes previously included in the aggravated murder category as first-degree murder.
Unfortunately, we’re all learning now that the legislators’ use of “retroactive” is far different from the way a layperson — and even top justice attorneys — understand the word. While many would assume that the new definition of aggravated murder would apply only to crimes occurring on or after SB 1013’s Sept. 29 effective date, the reality is that the legislation imposes the new definition on proceedings for which the expected sentencing date occurs on or after Sept. 29. So under SB 1013, any death-penalty defendant who wins a new trial or a new sentencing on appeal would have their charges re-evaluated under the narrower definition of aggravated murder.
This only came to light after a recent Washington County decision in the case of accused killer Martin Allen Johnson. Johnson, originally convicted and sentenced to death for the 1998 rape and murder of a 15-year-old girl, won the right to a new trial after an appeals court found in 2017 that his first trial was compromised by ineffective counsel. But with the passage of SB 1013, his attorneys successfully argued that the girl’s killing no longer met the standards for aggravated murder. With the lesser charge of first-degree murder, Johnson won’t face the possibility of the death penalty. The state’s solicitor general then recognized the broad implications of the law, alerting prosecutors earlier this month in an email, which reporter Crombie obtained.
It seems strange that justice officials, including the solicitor general, would not be aware that the law would so dramatically change the nature of the death penalty appeals that his team handles. But as Aaron Knott, DOJ’s legislative director noted to The Oregonian/OregonLive Editorial Board, the clear message from Williamson and Prozanski was that the law would not be retroactive. Knott, who spoke with the editorial board before Williamson clarified her views, had assumed there was a drafting error in the law that failed to incorporate the legislators’ intent.
Williamson made other misleading comments that raise questions about the integrity of the process surrounding this bill. She specifically told The Oregonian/OregonLive’s Aimee Green in early July that SB 1013 would not affect the resentencings of defendants granted reversals through appeals. She noted that legislators had specifically passed another bill, Senate Bill 1005, to prevent that for death-row defendants, including Angela McAnulty, who killed her 15-year-old daughter, and Billy Lee Oatney, who raped and murdered a 34-year-old woman, both of whom are awaiting resentencing.
Williamson told Green that lawmakers “wanted their intent to be clear so they added the language, on the advice of legislative lawyers,” the story states.
In a call with The Oregonian/OregonLive Editorial Board last week, Williamson offered shifting explanations for why she made those statements. First, she ascribed it to a mistake on her part and then suggested she had misstated the bill number that SB 1005 was fixing. (SB 1005 primarily resolves a retroactivity problem in SB 1008, a juvenile-justice reform bill). She also theorized that she might have thought McAnulty and Oatney’s crimes would still be considered aggravated murder under the new definition. They are not.
In any event, her position now is clear. She does not support Prozanski’s efforts to limit the law so that those facing resentencing — as opposed to those whose convictions are overturned — fall under pre-SB 1013 definitions.
This law and its potential impacts have created a mess. Legislation, particularly bills on such life-and-death issues with broad impact, should not turn on the semantic games that legislators play. Victims’ families, who already endure a long appeals process for death penalty defendants, don’t deserve to be collateral damage in the Legislature’s attempted end-run around the death penalty.
There is a strong case to be made that the death penalty is inhumane, ineffective and a waste of taxpayer dollars. Elected leaders and criminal justice reform advocates could easily show Oregonians all that the state would gain if they would vote to amend the constitution and abolish capital punishment.
But that’s the key element. It should be up to voters to get rid of the death penalty, not legislators. If lawmakers and the governor want to preserve that chance, they should recognize how such questionable maneuvers as those in passage of SB 1013 put their goal at risk. There are six weeks before the law takes effect. They should use them well to come clean with Oregonians.
— The Oregonian/OregonLive Editorial Board