This post was co-authored with Rob Smith, Associate Professor of Law at the University of North Carolina at Chapel Hill.
Governor Kitzhaber has given 35 years of steadfast service to the people of Oregon. His tirelessness and courage have helped to forge a State that is the envy of the nation -- a community as strong and prosperous as it is just and fair. But the job is not yet done. In his last few hours in the Capitol Building, Governor Kitzhaber has the opportunity to undertake perhaps the most courageous act of his career, one that would create his most enduring legacy -- the Governor can commute the death sentences of the 34 men and one woman on Oregon's death row.
A decision to commute the death sentences would align with contemporary standards of decency in Oregon, and increasing it aligns with the norms of the nation. A recent poll in the Oregonian showed that 74 percent of respondents would support a Kitzhaber decision to commute all existing death sentences. This same sense of decreasing support for capital punishment resonates throughout the country. Within the last decade, six states have abolished the death penalty. Even in states like Oregon where the punishment is authorized on paper, jurors rarely impose it. Indeed, 2014 brought the fewest executions in over 20 years and the fewest death sentences in the modern era. From Alabama to Louisiana, Mississippi to Texas, death sentences and executions are in a steep decline.
The death penalty will end nationally when the United States Supreme Court detects a national consensus against its use. A decision to commute the death row in Oregon would help push the country towards the tipping point. Last year, in a case called Hall v. Florida, the Supreme Court counted Oregon "on the abolitionist side of the ledger" noting that Kitzhaber had "suspended the death penalty" and the State had "executed only two individuals in the past 40 years." A bold move to clear death row could ensure that Oregon permanently remains "on the abolitionist side of the ledger." It also could reverberate beyond the State's borders, creating needed momentum for governors in other moratorium states -- for instance, Colorado, Pennsylvania and Washington -- to follow Kitzhaber's lead.
In the end, though, the most sacred duty of the Governor is to preserve the basic human dignity of the people of Oregon. This duty extends to each of Oregon's citizens, including those whom have committed serious crimes. The people who occupy death row tend to be people who suffer from serious mental illness, intellectual impairments, torturous childhood abuse, and other extreme disadvantage. Often times these individuals do not receive adequate legal representation; and, in states across the nation, innocent men and women emerge from the ranks of the condemned.
Recognizing these shortcomings, Governor Kitzhaber declared a moratorium on the death penalty back in 2011. He labeled the State's practice of imposing death sentences "neither fair nor just" and concluded that a "compromised and inequitable" capital punishment system is not befitting of Oregon. Nothing has changed and nothing will: the death penalty in Oregon is too broken to fix.
In his resignation letter, Governor Kitzhaber told us that he was proud to not have presided over any executions. Yet, as Governor, he presided over a state that has sentenced people to death under the same unjust system that led him to impose the moratorium. The Governor has the power to leave the troubled history of this disreputable death penalty system in Oregon's rearview mirror; and doing so would enhance the integrity of the criminal justice system without compromising public safety.
Governor Kitzhaber: You lit the torch in 2011; and now, in these few remaining hours, please carry that torch across the finish line.