Dear Vice President Joe Biden:  Thank you for speaking your convictions when you recently affirmed the right to marry. 

Can you go on TV next week and announce your opposition to the death penalty?

THE EDURING FAILURE TO PROTECT AGAINST RACISM

Twenty five years ago this week in a case entitled McClesky v. Kemp, the United States Supreme Court was faced with disturbing proof that race influences who is sentenced to death in the United States. In Georgia, where the case originated, black defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as white defendants charged with killing black victims. This prompted Justice Brennan to write:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white….In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence… Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

Although our criminal justice system aspires to be color blind we are tethered to our unfortunate history of racism.

Despite this proof, the Supreme Court held that it was powerless to act. This failure to make good on the guarantee of “justice for all” makes McClesky one of the most criticized decisions in United States history.

The Supreme Court’s failure to act meant that states, like Oregon, who still had a death penalty in place, had an increased burden to guard against the infection of racism. Perhaps even more disturbing than the Supreme Court’s ruling in McClesky is the fact that Oregon did absolutely nothing. Instead, we buried our heads in the sand by refusing to monitor the influence of race on our death penalty.

North Carolina and Kentucky created a racial justice acts designed to protect against the result described in McClesky. Washington has a system in place which requires judges to report on the race of the defendant, victim, and all the jurors in every aggravated murder case. Oregon has nothing.

Like the rest of the nation, Oregon has not eradicated racism in our criminal justice system. Less than 2% of our population is African-American, yet African-Americans comprise 11% of our death row. However, if you looked for this or other information about the influence of race on Oregon’s death penalty you would not be able to find it. Oregon does not officially keep statistics on race of the defendants, victims, or jurors in aggravated murder cases. Does the murder a white victim by a black defendant make it much more likely that a death sentence will be imposed? How many death row defendants have been sentenced by all white juries? We don’t know because Oregon did not answer the Supreme Court’s failure in McClesky by setting up a vigorous system to protect against using the color of a person skin to make the most profound decision our government allows—to take a human life in all of our names. The Supreme Court failed in McClesky. But, then we failed, too.

Governor Kitzhaber has recently called for Oregonians to examine our death penalty. This is one of the tough questions he has asked us to examine. Let’s hope we answer the challenge this time. After all, the question has been posed for at least the last quarter of a century.

The Right Side of History -- Guest Post by Pat Ehlers

Looking back today on black and white photos of the past we find ourselves ashamed of what we see. Everyone has seen these pictures. Bodies of men hanging from the ends of ropes. Sometimes as many as a half-dozen, or more, at a time. Dangling there, murdered, as a carnival of on lookers celebrates while enjoying a picnic during a sunny afternoon execution. That's shameful. So, we don't do it that way anymore.

Today, out of the public eye, at a time just after midnight, when most people are asleep, members of the strap down team make their way to the cell of the condemned. He's escorted to a gurney, told to lie down, and he complies. Restrained at his ankles, wrists and chest, he is readied for the needles. There are three. One for each of the poisons chemically designed to take his life. They're inserted into his veins. This doesn't always go well but it gets done. He's allowed a moment for a few last words, usually heard by a small group of witnesses, and then, on cue, anonymous volunteers, hidden behind a wall, and out of view, press plungers, shoving poisons down IV lines into veins. At first, nothing much seems to happen –– but then things change. The condemned appears to fall asleep, the chest rises, then falls heavily, then rises again. It sounds, sometimes, like deep snoring. Then that slowly subsides, and finally it ceases all together. There's silence. Six minutes from start to finish. I have sat late at night and watched this happen six different times to six different people I knew really well. I had spent years working with them.

The federal courts of Oklahoma appointed me to represent these men. Despite my best efforts, in these cases, I did not prevail. There wasn't one among those six men who had a life that was even close to normal. There wasn't one who hadn't suffered horrific abuse as a child. Some were mentally ill. Others were brain damaged. Overwhelming poverty, deprivation, neglect, and untreated addictions were constants in many of their lives. And, although each of them committed acts of horrible violence, there wasn't one execution I thought made sense.Why? Because for each case that ended in death, I knew there were many, many more that involved the exact same violence but a different punishment. A punishment equally effective, less costly, and far more humane – – life imprisonment. Most troubling, was that I could never explain to any of my condemned clients why they'd been selected for death when others had not. I never had an answer for that question. I still don't. But, here's what I do know, what we're doing today in Oregon with our death penalty just does not make sense. And, in standing up against the use of this penalty, I've got no shame at all, not a single reservation about what I'm doing, what we're doing. Why? Because we're right.We are on the right side of history. There is no debate about it.

There can't be. Without question, it is only a matter of time before Oregon will look back on its history, feeling a shame indistinguishable from looking at those old lynching photos, and ask ourselves why we didn't act sooner to eliminate the use of death as a punishment. Why we couldn't see that the midnight march of a strap down team and the use of IV lines, and poisons, wasn't one bit different than hanging people by a rope at a picnic. The time for change is now.Think about this. I told you I'm a lawyer. Let me share with you about something that happens in my world. Justices of the United States Supreme Court retire. After life long careers working with, and watching the results of, hundred and hundreds of cases, this is what some of them have said as they've stepped down from the bench: "From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored ... to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed." –- Justice Harry Blackmun near the end of his career in 1994. Expressing regrets about the death penalty in her retirement, Justice Sandra Day O'Connor stated in 2001 that: "Serious questions are being raised about whether the death penalty is being fairly administered in this country." "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Justices David Souter and Lewis Powell, too. joined a chorus of regret about the death penalty as they ended their careers. And, most recently, at the end of 30 years of judicial service, Justice John Paul Stevens reached the conclusion that, in his words: "[T]he imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.
"A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment'". What are these justices really saying? They're saying that if they had it to do all over again, they'd do it differently. That after thinking about it for years and years, they realized, after it was all over, that the death penalty just doesn't work. Unfortunately, Supreme Court Justices don't get "do overs." They get one career and then they step down. And these insights they have, unfortunately, came too late.

In life, "do overs" don't come along often. In fact, they're exceedingly rare. But, we've got someone in Oregon who has precisely that opportunity. He gets a "do over."

My hope, our hope collectively, is that he uses it well. John Kitzhaber is our governor again. And, he has the absolute power to commute the sentence of Gary Haugen, stop his volunteer execution, and start the process of changing Oregon's history. The governor can choose to step to the right side of history, as other governor have done, and say to the people of Oregon, we can be, we must be, better than we have been. He can say that Oregon's death penalty does not make sense. He would be right about that. He can say that life imprisonment is enough, that it works, that it keeps people safe. He'd be right about that, too. He would have to say, that yes, cases like the Haugen case sometimes happen but they can be avoided and they are extremely rare. He can say that life imprisonment is less costly. He would certainly be right about that. He could tell the people of Oregon that as we face this coming "decade of deficits" that we can help ourselves by eliminating our wasteful, shameful death penalty. He could tell the people of Oregon that over the next decade we'll expend more than $170 million dollars on the death penalty. If he told the people of Oregon that, he'd be conservative in his estimate. And, if Governor Kitzhaber told the people of Oregon these things, wouldn't they listen? Coming from a position of leadership, sending this message from the top, that would cause people to pay attention. And, when they paid that attention, it would be hard for people to justify using millions upon millions of dollars for our death penalty. For all the millions that have been spent, and will continue to be spent if we don't change, what do we have to show for it all? In 49 years, two frustrated people opted out of their appeals, and out of their lives, because our misguided death penalty provided the option. That's what we have to show for all those millions. And, when people here in Oregon really thought about it, really discussed it, considered the issue in depth, wouldn't they conclude that we are better than our history. That we can and should change. That we are a progressive caring state, and that while we so often lead in what is right, and what is good here, that we have failed up until now to take the right course.

With our help, and with the help of our Governor, and his "do over" opportunity, I know we can get this right the second time.

Pat Ehlers is a capital defense attorney in Oregon and a member of the Advisory Board for Oregonians for Alternatives to the DeathPenalty. He presented this speech at an OADP event.

On the Right and Wrong Sides of History

Today, Gov. Quinn signed legislation abolishing the death penalty in Illinois. He also commuted the current death sentences to life without release.

Today, Illinois joins fifteen other states on the right side of history.

Today, thirty-four states, plus the federal government remain on the wrong side of history.

Over the next decade, the number of states which have abolished the death penalty will grow and grow until we finally end this experiment with the death penalty in this Nation.

Our current situation reminds me of those juveniles who were executed only months before the United States Supreme Court ended that practice as fundamentally inconsistent with our standards of decency. Those who watch history knew that a national ban on the execution of juveniles was coming. The only question was who and how many would be killed before the ban was erected.

On May 28, 2002, Napoleon Beazley, who was 17 when he committed the murder that led to his death sentence, was executed. He had asked the US Supreme Court to block his execution because he was a juvenile. He asked too soon. Only months later, the Missouri Supreme Court held that the execution of juveniles was unconstitutional. That case then went to the US Supreme Court, which agreed in its opinion issued in early 2005. Nothing had changed between Beazley's execution in 2002 and the US Supreme Court's decision in 2005, legally speaking. Put another way, it was clear by May 28, 2002, that the prohibition against killing juveniles would be put in place very soon. It was only a matter of time. It was only a question of when.

Napoleon Beazley knew it, too. He told me so.

However, between Mr. Beazley's execution and the constitutional ban in 2005, three more juveniles were executed.

We are in the same place today with regard to the death penalty in this country. It will be abolished nationwide soon. The only question is: How many more people will be executed between now and then?

We should not wait to place ourselves on the right side of history. Instead, the actions in Illinois today must compel the remaining states to join the abolitionist states on the right side of history and to do so now.

A Murder in the Cold, Dark Night

May the family and friends of Holly Washa be blessed as they move forward in their lives. They suffered needlessly as a result of Mr. Brown's murder of a beautiful, young woman. Our community must reach out and embrace them. And, we must remember and celebrate Holly's life and goodness.

However, we can no longer promise the family of a murder victim the life of the killer in return.

Today, the State of Washington rejoins China and Iran, Texas and North Carolina, as jurisdictions that violate human rights and international norms of decency.

Today, the State of Washington killed a mentally disordered man after misleading his jury that he was not afflicted with a mental disease.

Tomorrow, we will not wake up any safer. Tomorrow, we will not know a more perfect justice. Tomorrow, we will not have taken steps to prevent the next murder.

We will, however, know the name of the last person killed before Washington ended its experiment with the death penalty; when we recognized that our standards of decency had evolved so that we could no longer permit state-sanctioned killing--killing another to prove that killing is wrong. We will then look back and wonder why we felt we needed to kill Cal Coburn Brown--what justification existed--just as we look back now and wonder why we executed juveniles and the intellectually disabled in this Nation only a few, short years ago.

Time to Get Smart on Crime

We all want to live in safe communities. The truth about the death penalty is that is makes us less, not more, safe. Given the severe budget restraints that exist in our criminal justice system, it is high time to consider whether maintaining our costly and largely symbolic death penalty system is being smart on crime.

We are in a recession. The criminal justice system is hardly immune from the downturn in our economy. Police departments are cutting back, state employees are being furloughed, trials are being delayed, and layoffs are common in prosecutors’ and public defenders’ offices. The justice system was already overburdened—now it is being pushed to (and some would argue, past) the breaking point. The death penalty in this state is an enormously expensive and wasteful program with no clear benefits. All of the studies on the cost of capital punishment conclude it is much more expensive than a system with life sentences as the maximum penalty. Perhaps most importantly, the death penalty rarely results in what it promises.

In this state, only slightly more than 1% of the eligible cases results in an execution. Stated in the converse, we spend millions and millions of taxpayer dollars on a system that fails 99% of the time. We can no longer tolerate such wasteful spending. The death penalty without executions is a very expensive form of life without parole. We could redirect millions of taxpayers’ dollars every year to community safety and services for victims and still lock up murderers until their death if we ended the death penalty.

Over the last decade, opposition to the death penalty on practical grounds has grown rapidly. This Nation’s police chiefs rank the death penalty last in their priorities for effective crime reduction. The officers rate it as one of most inefficient uses of taxpayer dollars in fighting crime. Instead, lack of law enforcement resources, poor funding for drug and mental illness treatment, and crowded courts were listed as the problems that most need fixing. Sadly, these problems need fixing here, as recent events have vividly demonstrated.

Clearly, eliminating the death penalty cannot solve all of these problems, but the savings would be significant. Where comprehensive studies have been done, the excess expenditures per year for the death penalty typically are close to $10 million per state. If a new police officer (or teacher, or ambulance driver) is paid $40,000 per year, this death penalty money could be used to fund 250 additional workers in each state to secure a better community.

In 2009, eleven state legislatures considered bills to end capital punishment and its high costs were part of these debates. As the economic crisis continues, the trend of states reexamining the death penalty in light of its costs is expected to continue. It is time for Washington to join this growing list.

Lost Opportunity Costs

Recently, a prosecutor explained his practical opposition to the death penalty: "I can successfully prosecute 10 murders or 30 sexual abuse cases in the time that it will take to do one death penalty case. Then, even if I get a death sentence, it will likely be overturned somewhere down the line. I'd rather give murder victims families closure now--get a conviction, put the guy in prison for life, forget about him, and let's help the victims rebuild their lives."

In short, the death penalty is costly, comes with a high reversal rate, and results in lost opportunities to provide real community safety and more community support for victims.

In the wake of the murders of four polcie officers by Maurice Clemmons, the Governor and various state legislators have called for a variety of criminal justice reforms. Those reforms will cost money and may not get put in place simply because of budget concerns. That would be a shame. Why not take money from the administration of the death penatly and fund those reforms? We are throwing away good money chasing something that we don't get and meanwhile lose the opportunity to do things that will work.

Rather than spend millions seeking a death sentence for the person who shot Officer Tim Brenton, why not take the money and put five new officers on the street?

Gov. Gregoire has a great idea--we should guarantee a fully paid college education for the children of the fallen officers. I agree. Let's get rid of the death penalty and instead of paying for decades of lawyers for killers, let's pay for four years of college education.

The death penalty is costly, both in terms of dollars and in lost opportunity costs. Those costs will not go away. Those costs are a required part of the administration of the death penalty--any judge, police officer or prosecutor will tell you that.

If we abolish the death penalty, we can save millions. We can also make our community safer, while providing services to victims.

Our criminal justice system, which is critically underfunded, is not working the way it should. On that point, we can all agree.

If we elimate the gallows, we will still sentence killers to die in prison--when their time is up. The difference will be instead of spending millions on the small chance that we'll execute one guy every decade or so, we can start making real reforms that can, at their best, prevent the next murderer from roaming free.

Abolition in Washington State...

....begins on Friday, January 22, at 1:30, when there's a hearing in Olympia, WA before the Senate Judiciary Comm. More details to follow.