STATE OF OREGON, Plaintiff-Respondent, v. DAVID RAY BARTOL, Defendant-Appellant.
(CC 14C46903); (SC S064485)
Supreme Court of Oregon
Argued and submitted November 14, 2019; October 7, 2021
368 Or 598 (2021) | 496 P3d 1013
DUNCAN, J.
En Banc. On automatic and direct review of the judgment of conviction and sentence of death imposed by the Marion County Circuit Court. Tracy A. Prall, Judge.
Defendant was convicted of committing a murder while confined in a penal or correction facility, a crime that, at the time, constituted aggravated murder—the only crime that is punishable by death in Oregon. Defendant was sentenced to death. While defendant‘s automatic and direct appeal of his conviction and death sentence was pending in the Oregon Supreme Court, the legislature enacted Senate Bill (SB) 1013 (2019), which amended the death penalty statutes such that all of the forms of murder that previously had constituted aggravated murder, including the one of which defendant had been convicted, were reclassified as murder in the first degree and no longer were subject to the death penalty. SB 1013 provided that the change applied only to crimes committed before, on, or after the bill‘s effective date, September 29, 2019, that were the subject of sentencing proceedings occurring on or after that date—meaning that it did not affect defendant‘s death sentence. Defendant, who already had filed briefs raising numerous challenges to his conviction and death sentence, and amicus curiae Oregon Capital Resources Center filed supplemental briefs, arguing, among other things, that maintaining defendant‘s death sentence when his crime of conviction no longer constituted aggravated murder and thus no longer was subject to the death penalty violated the prohibitions on cruel and unusual punishment in the Oregon and United States constitutions. Held: Defendant‘s death sentence cannot be maintained because doing so would violate the two special proportionality requirements under Article I, section 16, of the Oregon Constitution: the requirement that the death penalty be limited to offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution and the requirement that there be a fundamental, moral distinction between crimes that are punishable by death and those that are not.
The judgment of conviction is affirmed. The sentence of death is vacated, and the case is remanded to the circuit court for resentencing.
En Banc
On automatic and direct review of the judgment of conviction and sentence of death imposed by the Marion County Circuit Court.
Tracy A. Prall, Judge.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. Timothy A. Sylwester and Jordan R. Silk, Assistant Attorneys General filed the briefs. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender.
Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, and Richard L. Wolf, Richard L. Wolf PC, Portland, filed the brief for amicus curiae Oregon Capital Resource Center.
DUNCAN, J.
The judgment of conviction is affirmed. The sentence of death is vacated, and the case is remanded to the circuit court for resentencing.
DUNCAN, J.
I. BACKGROUND
While in custody in the Marion County Jail awaiting trial, defendant killed another person who was also in custody. The state charged defendant with aggravated murder, which, at the time, was defined to include murder committed by a person who was “confined in a state, county or municipal penal or correctional facility or was otherwise in custody when the murder occurred.”
After the parties filed their initial briefs on review, the 2019 Legislative Assembly enacted SB 1013 (2019), which substantially revised Oregon‘s death penalty statutes. Or Laws 2019, ch 635.
A. SB 1013
Prior to the enactment of SB 1013 in 2019, Oregon had two categories of murder: “murder” and “aggravated murder.” “Murder” was defined to include certain forms of criminal homicide,
SB 1013 changed that. It created a new category of murder, “murder in the first degree“; reclassified all the forms of murder that previously had been “aggravated murder” as “murder in the first degree“; and provided a maximum sentence of life imprisonment without the possibility of parole for “murder in the first degree.” Or Laws 2019, ch 635, §§ 1, 3(1), (2). Thus, SB 1013 eliminated the death penalty for all the forms of murder that previously had been eligible for it, including the form that defendant had committed—murder committed when confined to a penal or correctional facility or otherwise in custody.
Although SB 1013 eliminated the death penalty for all the forms of murder that previously had been eligible for it, SB 1013 did not eliminate the death penalty entirely. It redefined “aggravated murder” to include different forms of murder, most of which are more serious forms of murder than those that previously had been classified as “aggravated murder.” Or Laws 2019, ch 635, § 1;
The legislative history of SB 1013 shows that the legislature‘s purpose in narrowing the definition of “aggravated murder” was to ensure that Oregon‘s death penalty statutes do not violate the
Opponents of SB 1013 understood that passage of the bill would reflect a new assessment of the gravity of the criminal conduct that was classified as “aggravated murder” at the time. In written testimony, Marion County Deputy District Attorney Katie Suver stated that the bill would change the “entire definition of Aggravated Murder” and, thereby, “repeal what the voters knew to be Aggravated Murder in 1984,” when they enacted the death penalty statute that SB 1013 would amend. Testimony, House Committee on Rules, SB 1013, June 5, 2019, Ex 14 (statement of Katie Suver). Lane County District Attorney Patricia Perlow argued that the legislature should not reclassify the conduct that was classified as “aggravated murder” at the time because the 12 aggravating circumstances in the definition were “truly * * * aggravated circumstances, worthy of whatever our most severe punishment is going to be.” Video Recording, Senate Committee on Judiciary, SB 1013, June 5, 2019, at 1:22 (testimony of Patricia Perlow), https://olis.oregonlegislature.gov (accessed Sept 23, 2021).
When SB 1013 was presented on the floor of each legislative chamber, legislators told their colleagues that SB 1013 would narrow the definition of “aggravated murder” so that it would apply only to the “worst of the worst,” in order to comply with constitutional requirements. Senator Prozanski carried the bill on the Senate floor, explaining:
“What Senate Bill 1013 will do is the following. It will narrow the number of circumstances that qualif[y] for aggravated murder. Specifically, premeditated and intentional killing of two or more individuals carrying out a terrorist act would be a qualifier. Also, committing murder while the individual is incarcerated in a corrections facility and has already been previously convicted of any type of homicide. Third, for the intentional and premeditated murder of a victim under the age of 14[.]”
Video Recording, Senate Committee on Judiciary, SB 1013, May 21, 2019, at 38:00 (statement of Sen Floyd Prozanski), https://olis.oregonlegislature.gov (accessed Sept 23, 2021). After discussing the history of the death penalty in Oregon, Senator Prozanski discussed the constitutional concerns that motivated the bill:
“Currently, aggravated murder is subject to constitutional challenges, as I stated. Number one, the U.S. Supreme Court has made it very clear under the Eighth Amendment that it needs to be very narrow in space [sic]. As the U.S. Supreme Court has stated, aggravated murder must be reserved for those that are known as the worst of the worst. We believe by narrowing the statute that we currently have, we will in fact comply with what the U.S. Supreme Court has stated.”
Id. (emphasis added). Likewise, when explaining the bill on the House floor, Representative Williamson stated:
“I believe our aggravated murder statute, and therefore our death penalty system in Oregon, is at serious constitutional risk. The U.S. Supreme Court has held that a death penalty system must be reserved for the worst of the worst crime[s] in order to be constitutional, and that it must be limited in its application. I believe this bill brings us closer to the constitutional standards and requirements outlined by the U.S. Supreme Court.”
Video Recording, House Committee on Judiciary, SB 1013, June 19, 2019, at 3:07 (statement of Rep Jennifer Williamson), https://olis.oregonlegislature.gov (accessed Sept 23, 2021) (emphasis added). With the issues thus framed, both chambers approved SB 1013.
Governor Brown signed SB 1013 into law on August 1, 2019. In keeping with the expressions of the legislative intent underlying SB 1013, when the Governor signed the bill, she stated that, among other things, it “reserve[s] death sentences for only the rarest
SB 1013 provides that its changes to the definition of “aggravated murder” apply to “crimes committed before, on or after the effective date of this 2019 Act that are the subject of sentencing proceedings occurring on or after” the bill‘s effective date, September 29, 2019. Or Laws 2019, ch 635, §§ 30, 31. Therefore, under SB 1013, whether a person can be sentenced to death for criminal conduct that was classified as “aggravated murder” before SB 1013 but is now classified as “murder in the first degree” depends on whether the criminal conduct is the subject of a sentencing proceeding on or after September 29, 2019. Under the bill, if a person engaged in conduct that was classified as “aggravated murder” before September 29, 2019, but is not sentenced until after that date, the person cannot be sentenced to death. As described above, SB 1013 was enacted after defendant had been convicted and sentenced and had filed his opening brief on review.
B. Defendant‘s Arguments About the Effect of SB 1013 on the Constitutionality of His Death Sentence
One week after SB 1013 was signed by the Governor, defendant moved to file a supplemental brief to address the implications of the new law, and this court granted the motion.
In his opening brief, defendant had argued, among other things, that the death penalty is unconstitutional for all crimes because it violates
In his opening brief, defendant had also argued that his death sentence violated
The case proceeded to oral argument, after which this court allowed the Oregon Capital Resource Center (OCRC) to appear as amicus curiae.4 In its subsequently filed
“a longstanding and vigorous local and national consensus against the execution of an individual for a crime no longer subject to the death penalty—even where the reclassification and removal of that crime from eligibility for the death penalty is by prospective only (or partially-prospective) legislation.”
OCRC described historical facts that, in its view, demonstrate that consensus, but it asked to supplement the appellate record because the facts “are not in [defendant‘s] trial record * * * as SB 1013 was not adopted at the time of his trial.” This court allowed the parties and OCRC to file statements of facts, as well as supplemental briefs addressing what relevance, if any, those facts have to the constitutionality of defendant‘s death sentence.
Defendant and OCRC filed a joint statement of facts, the accuracy of which the state does not dispute.5 The statement reviews the history of the death penalty in Oregon and every other state. It details when the death penalty was first authorized in each state and whether the death penalty has ever been repealed by the state‘s legislature, voters, or courts. If the death penalty has been repealed, the statement reports whether any person was executed while the repeal was in effect. The statement covers more than 100 years of the history of the death penalty, and its comprehensive and detailed survey shows that, when the death penalty has been repealed—in part or in full—no person who was sentenced to death before the repeal, but who could not be sentenced to death after the repeal, has been executed. In other words, according to defendant and OCRC, it shows that “no state has executed someone for a crime that was not subject to the death penalty on the day of the execution.”
After the filing of the statement of facts, defendant and OCRC filed a supplemental brief addressing the implications of the history recounted in the statement of facts and of SB 1013. The state also filed a supplemental brief.
There have been four rounds of briefing in this case, including two rounds after oral argument. Defendant and OCRC have raised many issues. In the first round of briefing, defendant challenged both his conviction and his sentence. In the subsequent rounds, which followed the enactment of SB 1013,
As noted at the outset, we reject defendant‘s challenges to his conviction—many of which have been raised and rejected in other death penalty cases—without further discussion. But, for the reasons explained below, we agree with his argument that, in light of the enactment of SB 1013 in 2019, his death sentence violates
II. ANALYSIS
As mentioned, defendant argues that his sentence violates both
A. Whether Defendant‘s Article I, Section 16, Challenge Is Barred
In 1984, Oregon voters approved two ballot measures, Measure 7, which reinstated the death penalty, and Measure 6, which provided:
“The Constitution of the State of Oregon is amended by creating a new section 40 to be added to and made a part of Article I and to read:
“Section 40. Notwithstanding sections 15 and 16 of this Article, the penalty for aggravated murder as defined by law shall be death upon unanimous affirmative jury findings as provided by law and otherwise shall be life imprisonment with minimum sentence as provided by law.”
The state argues that the “notwithstanding” clause of
This court addressed the scope of
In Rogers, the defendant argued that
“When two or more amendments shall be submitted * * * to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.”
(Emphasis added.) As the court in Rogers explained, the “‘separate vote’ requirement is ‘aimed at ensuring that the voters are able to express their will in one vote as to only one constitutional change.‘” 352 Or. at 514 (quoting Armatta v. Kitzhaber, 327 Or. 250, 269, 959 P.2d 49 (1998)). It “focuses on the form of the submission of an amendment and the potential changes to the existing constitution that the amendment proposes.” Id. at 515. An amendment violates the “separate vote” requirement if it proposes two or more substantive changes to the constitution that are not “closely related.” Id. Consequently, when determining whether an amendment violates the “separate vote” requirement, a court must determine how many substantive changes it makes to the constitution and whether those changes are closely related.
In Rogers, the parties disputed how many substantive changes Measure 6 had made to the constitution. The defendant argued that the measure eliminated all types of challenges to death sentences based on either
This court agreed with the state, explaining that Measure 6
“changes sections 15 and 16 by eliminating any constitutional barriers that those sections potentially posed to death as a sanction for aggravated murder; it does not render sections 15 or 16 otherwise inoperable. In other words, the text of the measure appears to preclude challenges to the death penalty as a sanction for aggravated murder; it does not preclude other challenges under Article I, sections 15 and 16.”
Later in the Rogers opinion, when determining whether all the substantive changes made by Measure 6 were closely related, this court again addressed the scope of the measure‘s limitation on challenges based on
“contains only one provision and proposes to do only one thing—prescribe the penalty for aggravated murder. All of the other changes that Measure 6 effects are directed at eliminating the potential constitutional barriers to the imposition of that penalty posed by Article I, sections 15 and 16.”
Id. at 522-23. Thus, the only challenges to the death penalty that Measure 6 precludes are those based on theories that the death penalty violates either
This court reiterated that understanding of Measure 6 in response to the defendant‘s argument that the measure did not allow voters to express their will in one vote as to only one constitutional change, explaining:
“Defendant argues * * * that a voter conceivably could favor one or more of the changes that Measure 6 effects and oppose others. For example, defendant suggests, a voter could support the measure‘s directive that the penalty for aggravated murder is death, but oppose excepting that directive from the relevant provisions of Article I, sections 15 or 16. But, in so contending, defendant fails to recognize the limits of the measure‘s effect on those sections. As we have explained, Measure 6 ensures that Article I, sections 15 and 16, will not stand as barriers to imposition of the death penalty. It does not otherwise permit that penalty to be imposed in violation of those sections—for example, by methods that are cruel and unusual. Because the measure did not propose to eliminate all or any of the protections afforded by sections 15 and 16, it was not possible for voters to separately decide whether they wished to do so. A voter who favored death as a penalty for aggravated murder could not achieve that objective without also favoring removal of potential barriers to imposition of that penalty, specifically those found in Article I, sections 15 and 16.”
Id. at 524 (emphases added).
Thus, the only challenges to the death penalty that
Rogers makes clear that
B. Whether Defendant‘s Death Sentence Violates Article I, Section 16
As mentioned, defendant argues that his death sentence violates both
1. Overview of the Eighth Amendment
The
The
“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” Trop, 356 U.S. at 100 (plurality opinion). “While the State has the power to punish, the Amendment stands to assure that this power be exercised
Consequently, whether a punishment is excessive is “determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that ‘currently prevail.‘” Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (quoting Atkins, 536 U.S. at 311); see also Roper, 543 U.S. at 561 (stating that the Court has “established the propriety and affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress of maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual” (quoting Trop, 356 U.S. at 100-01 (plurality opinion))).
Courts play a critical role in protecting against disproportionate punishments. Generally, legislatures determine the punishments that may be imposed for crimes, and courts defer to those determinations. But the fact that a punishment is authorized by a legislature does not mean that the punishment comports with current standards of decency as required by the
“[a]lthough legislative measures adopted by the people‘s chosen representatives provide one important means of ascertaining contemporary values, it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power.”
Gregg v. Georgia, 428 U.S. 153, 174 n 19, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (citing Weems, 217 U.S. at 371-73); see also State v. Santiago, 318 Conn. 1, 135, 122 A.3d 1 (2015) (“When an appellate court is asked to pass on the constitutionality of a mode of punishment, it is, almost invariably, after a defendant has been found guilty of a crime and sentenced in accordance with a duly enacted penal statute. If the fact that an elected legislature had authorized and enacted the punishment in question were enough to insulate it from judicial scrutiny, then the freedom from cruel and unusual punishment would be a hollow one.“).
The Supreme Court has held in a number of cases that a sentence violated the
2. Overview of Article I, section 16
When construing
“In order to justify the court in declaring punishment cruel and unusual with refence to its duration, the punishment must be so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances[.]”
The court cited the Supreme Court‘s decision in Weems as the source of that standard. Id. In Weems, the Court concluded that the
In State v. Wheeler, 343 Or. 652, 175 P.3d 438 (2007), this court noted that, although it had interpreted
“The term ‘proportion’ indicates a comparative relationship between at least two things. See, e.g., 2 Noah Webster, An American Dictionary of the English Language 45 (1828) (<proportion> indicates a <comparative relation>). Here, the two things being related are <penalties> and <the offense>, and the provision requires that the penalties for each particular offense be <proportioned>—that is, comparatively related—to that offense.
The strong implication of that requirement is that a greater or more severe penalty should be imposed for a greater or more severe offense, and, conversely, that a less severe penalty should be imposed for a less severe offense.”
Id. at 655-56 (emphasis added). The court then examined the history of the requirement, tracing its roots to early English laws and reviewing William Blackstone‘s views on the necessity of proportionality in sentencing, noting that those sources had informed the efforts of the drafters of early American state constitutions. Id. at 656-67. Blackstone, the court recounted, had “maintained that punishment should be proportional to the offense in question and to the social aims of criminal punishment generally. ‘The method * * * of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means exceed it[.]‘” Id. at 658 (quoting 4 William Blackstone, Commentaries on the Laws of England 12 (1769) (ellipsis and brackets in Wheeler)). And the court quoted Blackstone‘s observation that
“[i]t has been therefore ingeniously proposed, that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least; but, if that be too romantic an idea, yet at least a wise legislator will mark the principal divisions, and not assign penalties of the first degree to offenses of an inferior rank.”
Id. at 662 (quoting 4 Blackstone, Commentaries at 18 (emphasis added)).
After reviewing proportionality requirements in early state constitutions and noting that the records of the Oregon Constitutional Convention do not reveal any discussions of
Regarding the test for determining whether a punishment violates
“In order to justify the court in declaring punishment cruel and unusual with reference to its duration, the punishment must be so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.”
Wheeler, 343 Or. at 668 (quoting Sustar, 101 Or. at 665); see also id. (noting that the court had “used the ‘shock the moral sense’ standard” in subsequent cases). The court then refined that test, explaining that it did not think that, in Sustar, the court had
“intended the test literally—that is, that a penalty for a particular crime would meet the proportionality requirement if a single ‘reasonable person’ could be found whose moral sense was not ‘shocked’ by that penalty. Rather, we read the court‘s words as attempting to articulate a standard that would find a penalty to be disproportionately severe for a particular offense only in rare circumstances.”
343 Or. at 670. The court also noted that, when it had applied the test in some cases, it had “looked to the legislative enactment of the particular penalties at issue as an external source of law to assist in determining whether those penalties would shock the moral sense of reasonable people.” Id. at 670-71. In other words, it had looked to legislative enactments as indicators of current societal standards.
In Wheeler this court emphasized that it is the legislature‘s role to establish the penalties for violations of criminal statutes, and that the court‘s role is only to determine whether those penalties exceed constitutional limits. Id. at 671-72. Later, in State v. Rodriguez/Buck, 347 Or. 46, 58, 217 P.3d 659 (2009), the court reiterated that point, stating that the legislature plays “the central role” in establishing penalties for crimes and that “[i]t is not the role of this court to second-guess the legislature‘s determination of the penalty or range of penalties for a crime.” “However,” the court continued,
“it is the role of the court to ensure that sentences conform to requirements that have been in our constitution for 150 years. And, when we conclude that, because of its length, a sentence is inconsistent with Article I, section 16, as we have on at least three occasions, we should hold that sentence unconstitutional.”
Id. (citing State v. Shumway, 291 Or. 153, 630 P.2d 796 (1981); Cannon v. Gladden, 203 Or. 629, 281 P.2d 233 (1955); State v. Ross, 55 Or. 450, 104 P. 596, modified on reh‘g, 55 Or. 474, 106 P. 1022 (1910), appeal dismissed, 227 U.S. 150, 33 S. Ct. 220, 57 L. Ed. 458 (1913)). Thus, this court must give effect to the proportionality requirement of
This court has fulfilled its role under
To summarize,
3. Special proportionality requirements for the death penalty
The basic proportionality concept that the gravity of an offense should correspond to
The death penalty is the most severe punishment, and it differs in kind from all other punishments. It is “unique in its severity and its irrevocability.” Gregg, 428 U.S. at 187 (opinion of Stewart, Powell, and Stevens, JJ.). “Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering.” Furman v. Georgia, 408 U.S. 238, 287, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Brennan, J., concurring). “The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself.” Id. at 289. It is “qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)
Because death is the most severe punishment, it must be reserved for the most serious offenses. As the Supreme Court has held, the death penalty “must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.‘” Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at 319). “The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application.” Kennedy, 554 U.S. at 446-47. That is, it must be reserved “for those crimes that are so grievous an affront to humanity that the only adequate response may be the penalty of death.” Id. at 437 (internal quotation marks omitted).
Relatedly, because the death penalty must be reserved for the most serious crimes, death-eligibility factors must provide a “fundamental, moral distinction” between a crime that is serious enough to deserve the death penalty and one that is not. Id. at 438. A factor justifying imposition of the death penalty must both “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” See Zant, 462 U.S. at 877 (so holding when evaluating whether statutory aggravating circumstances sufficiently circumscribe the class of persons eligible for the death penalty).
We agree with the Supreme Court that the death penalty must be reserved for the “worst of crimes,” Kennedy, 554 U.S. at 446-47, and that there must be a “fundamental, moral distinction” between crimes that are punishable by death and those that are not, id. at 438. Those requirements are consistent with
4. The effect of SB 1013 on defendant‘s death sentence
As recounted above, through the enactment of SB 1013, the legislature chose to narrow the definition of “aggravated murder” so that it would be limited to conduct that the legislature regarded as the “worst of the worst.” In hearings on SB 1013, proponents and opponents of the bill alike explained that the bill asked legislators to make an assessment regarding the relative gravity of the conduct that was classified as “aggravated murder” at the time. Specifically, they explained that the bill asked legislators to determine that that conduct was not the “worst
Importantly, the legislature made that determination with respect to conduct committed both before and after the effective date of SB 1013. That is evidenced by the fact that the legislature provided that SB 1013 applies to “crimes committed before, on or after [its effective date] * * * that are the subject of sentencing proceedings that occur on or after” that date. Or Laws 2019, ch 635, § 30. That provision shows that the legislature did not regard conduct committed before the effective date as more culpable than conduct committed after it.
Under SB 1013, whether a person who committed conduct that was previously classified as “aggravated murder” but is now classified as “murder in the first degree” can be sentenced to death depends on the person‘s sentencing date, not on the relative gravity of the conduct. To illustrate: If two persons jointly engaged in conduct that was previously classified as “aggravated murder” but is now classified as “murder in the first degree,” and the first person was sentenced before SB 1013‘s effective date but the second person was sentenced after that date, the first person could be sentenced to death, but the second person could not. As that hypothetical illustrates, SB 1013 creates a proportionality problem: It allows the execution of persons whose conduct the legislature has determined is not the worst of the worst and whose culpability is no different from those who cannot be executed. Under SB 1013, persons who engage in exactly the same conduct, at exactly the same time, can receive uniquely different sentences: one cannot be executed, but the other one can, even though the legislature has determined that the conduct is not the type for which death sentences can be imposed.
Here, defendant was sentenced to death before the effective date of SB 1013, so that legislation does not directly apply to his sentence. But our task is not to determine the application of SB 1013 to defendant‘s sentence—instead, we must evaluate the constitutionality of his sentence under
The judgment of conviction is affirmed. The sentence of death is vacated, and the case is remanded to the circuit court for resentencing.
“When the death penalty was thrice eliminated here in Oregon—in 1914 and 1964 by constitutional amendment and in 1981 by this Court‘s decision in State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981)—all outstanding death sentences were vacated. And the same result appears in other states: every state that has enacted legislation prospectively abolishing the death penalty has nevertheless overturned all remaining death sentences. Likewise, when states have exempted certain defendants from execution but otherwise left the death penalty in place, courts have overturned the death sentences of condemned prisoners who would otherwise have fit within the exemption, but for the date of their crimes. This has been the outcome even where the legislature clearly and expressly intended that its repeal not reach existing death sentences.”
Notes
“(1) Criminal homicide of two or more persons that is premeditated and committed intentionally and with the intent to:
“(a) Intimidate, injure or coerce a civilian population;
“(b) Influence the policy of a government by intimidation or coercion; or
“(c) Affect the conduct of a government through destruction of property, murder, kidnapping or aircraft piracy; or
“(2) Murder in the second degree, as defined in ORS 163.115, that is:
“(a)(A) Committed while the defendant was confined in a state, county or municipal penal or correctional facility or was otherwise in custody; and
“(B) Committed after the defendant was previously convicted in any jurisdiction of any homicide, the elements of which constitute the crime of aggravated murder under this section or murder in the first degree under ORS 163.107;
“(b) Premeditated and committed intentionally against a person under 14 years of age;
“(c) Premeditated, committed intentionally against a police officer as defined in ORS 801.395, and related to performance of the victim‘s official duties; or
“(d) Premeditated, committed intentionally against a correctional, parole and probation officer or other person charged with the duty of custody, control or supervision of convicted persons, and related to the performance of the victim‘s official duties.”
As a result of SB 1013, there are now three categories of murder: “aggravated murder,” “murder in the first degree,” and “murder in the second degree,” which consists of the forms of murder that had been classified as “murder” prior to the enactment of SB 1013.
The
In addition, we note that our conclusion is consistent with how others have responded to similar changes in the law. As the historical information submitted by defendant and OCRC shows, whenever a state‘s laws have changed so that persons with existing death sentences would not be eligible for the death penalty if they were sentenced under the new law, those persons have not been executed. As defendant and OCRC summarize: