Douglas County District Attorney Rick Wesenberg and other attorneys have raised concerns about a recent bill passed this year to restrict the death penalty.
After Gov. Kate Brown announced Wednesday plans to call a special session later this year to resolve what she says is an error in the bill, it appears the Oregon Department of Justice has similar concerns.
Under the bill, signed by Brown, only the killing of a child younger than 14, killing two or more in a terrorist act, killing a police officer or if someone with an aggravated murder commits another murder could be eligible for an aggravated murder charge. The bill is set to go into effect on Sept. 29.
Douglas County District Attorney Rick Wesenberg feels the bill disrespects the will of the Oregon voters who passed the death penalty law in 1984 by radically changing what crimes can be prosecuted as aggravated murder.
“It’s really disappointing on multiple levels,” Wesenberg said. “What this law does is defacto, eliminate the death penalty that was enacted by the voters in 1984 by radically changing and narrowing the definition of what constitutes the crime of aggravated murder.”
Wesenberg said the most profound failure of Senate Bill 1013 is that it fails to honor the suffering of the victims of horrendous crimes.
“One of the most horrible and profound things is that you have these families that suffer this most grievous, horrible loss you can have family members slaughtered and taken from you,” Wesenberg said. “Then you go through a court process and then years later you go through the court process again, and yet again, and it’s beyond excruciating for these folks.”
Wesenberg said the issue of whether or not SB 1013 is retroactive is one that could have a large impact on cases already tried in the Douglas County and appeals are filed and without the death penalty option, it will be tougher to get a plea bargain, and more cases will end up going to court.
“Sure, especially until the law gets to a place where it’s more settled, defense attorneys would not be doing their job if they don’t maximize everything they can for their client, so I think it does change the dynamic of the plea agreement,” Wesenberg said.
Dan Bouck with the Umpqua Valley Public Defenders Office in Roseburg, which supplies court-appointed attorneys in Douglas County cases, agreed. Bouck said his office expects to get more of the murder cases that could have been tried as aggravated murder under the current guidelines.
“It would mean more cases would be eligible for our office,” Bouck said. “When you know they’re not going to be using the death penalty, some have figured that out and say well I won’t plead out.”
During legislative hearings, lawmakers said the bill would not apply to previous cases in which offenders had already been sentenced.
However, recently the Oregon Department of Justice said that the law could potentially be applied to the 30 inmates on Oregon’s death row who can still appeal. That means if a death row inmate were granted a new trial on appeal, SB 1013 could bar prosecutors from again seeking a death penalty.
Sen. Floyd Prozanski, D-Cottage Grove, a main proponent of the bill, said he is trying to fix the bill that was not intended to be retroactive.
“I want to get it fixed because that’s not what I told my colleagues and if it’s been misinterpreted or misread, we want to make certain we get it right,” Prozanski said.
Prozanski said his intent was that if you had a person who had their sentence overturned that they would not get the benefit of 1013 because their guilt was ruled constitutional. But if the court said the conviction was being thrown out, he felt that would be a basis for the new law to apply.
The legislature has until Sept. 29 to make the changes before the law goes into effect.
Wesenberg said if that doesn’t get fixed, cases that are sent back for re-sentencing will be subject to the new law.
“What that means in effect is that literally, everything surrounding these cases will be subject to days, weeks, months, even years of litigation,” he said. “So the victims are going to have to live and suffer through these things.”
Prozanski said part of the goal of the bill was to address the cost of carrying out an aggravated murder case.
‘It costs the state about a million dollars more than it does for a life sentence, so those saving could be put back into the criminal justice system,” Prozanski said.
Wesenberg said he doesn’t see how the change in the law could save money.
“Absolutely not, because we’re going to be litigating every single part of this and so the state already pays a tremendous amount of money for indigent defense,” Wesenberg said. “This is not going to save money.”
Wesenberg said his office will not be deterred from pursuing the death penalty sentence if they feel it is justified.
“Our job is, if there is a violation of the law, if it’s aggravated murder and we believe it’s an appropriate case to receive the death penalty, we’re going to do that,” Wesenberg said. “ If their goal was to undue the potential for the death penalty, they were very successful, because that’s what they did. The scope was made intentionally very, very narrow.”
Douglas County has three men on death row, although there were four before one of the sentences was overturned.
Michael Martin McDonald, 68, has been on death row for 35 years for the murder of a Roseburg woman near Yoncalla after he had escaped from the Oregon State Prison. He was sentenced April 8, 1984, and was the second person charged with capital murder in Oregon since the voters reinstated the death penalty in 1984.
Clinton Wendell Cunningham, 51, was sentenced to death on Oct. 27, 1992, for killing a Canadian woman in western Douglas County. He’s been on death row for almost 27 years.
Horacio Alberto Reyes Camarena, 64, has been on death row for 22 years. He was sentenced on Jan. 21, 1997, for murdering one woman and leaving another for dead along highway 101 in western Douglas County.
Jesse Fanus, 39, was sentenced to death in 1999, for the murder Marion Carl of Glide, a highly decorated World War II fighter ace, record-setting test pilot. He was on death row for 13 years before his death penalty sentence was overturned by a Marion County court in 2012.
The Associated Press contributed to this story.