Oregon moving closer to effective abolishment of the death penalty

Frank Thompson oversaw the only two state executions in the last 50 years in Oregon, the most recent in 1997. He’s been working to abolish capital punishment ever since. Former Governor John Kitzhaber placed a moratorium on the practice in 2011, which Gov. Kate Brown extended in her administration. In 2019, the legislature narrowed the crimes that are eligible for the death penalty. And last week Brown commuted the sentences of the last remaining death row inmates and ordered the dismantling of the execution chamber itself, moving Oregon closer than it’s been in decades to being a state without capital punishment. Thompson joins us to share his reflections about his experience and the direction the state is headed.

Rosemary Brewer is the executive director of the Oregon Crime Victims Law Center. She says the people she represents have their own perspectives on the death penalty, and those attitudes reflect a wide range — just like all Oregonians. But she says victims have a right under the Oregon Constitution to have a meaningful role in the justice system. Brewer says whether or not there was a legal obligation to victims or not, giving significant notice to victims when their offender’s death sentence is being commuted would reflect empathy and respect. In the recent commutations, victims were notified the same day. Brewer joins us to talk about the role that respect for victims plays in the justice system at large.

This transcript was created by a computer and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Last week, in one of her final weeks in office, Governor Kate Brown commuted the sentences of all 17 people on Oregon’s death row. She also ordered that the state’s execution chamber be dismantled. These were the latest acts of Democratic leaders in Oregon in their decade-long effort to effectively end capital punishment in Oregon. In a few minutes, we’ll get a response to Governor Brown’s actions from a victims’ rights advocate, but we start with Frank Thompson. He oversaw the last two executions in Oregon in his role as a superintendent of the Oregon State Penitentiary in the 1990s. He has since become a prominent opponent of capital punishment. Frank Thompson, welcome back to Think Out Loud.

Frank Thompson: Thanks for having me.

Miller: Thank you for joining us. What went through your mind when you heard the news of these commutations?

Thompson: I was elated, and I’m in such a happiness. It was just such pleasing news to me.

Miller: I should note that we talked about capital punishment with you in a series of conversations with a number of other people about five years ago, but that was a while ago and it’s likely that many of our current listeners never heard that episode, never heard your story. What made you change your mind about the death penalty? You have not always been in opposition to it?

Thompson: Well, there is a story. Back in Arkansas, when I was in corrections, there was a prisoner by the name of Ricky Ray Rector, who had been rendered mentally incompetent because he shot himself as he was trying to escape from police officers and rendered him mentally incompetent, not much better than a baby. And when they were executing him, he could be heard groaning’ and moaning and assisting the officers in getting the needles placed into his vein. Now I was a warden in Arkansas at that time, and I can remember the ordeal. It didn’t change my mind about the penalty, but that is a very significant occurrence, in capital punishment. It stuck in the back of my mind, and I eventually was hired out here in Oregon. I was brought to Oregon to put inmates to work, not having had any executions in 32 years. I thought I might be able to slide through and not have to perform one. But I was a supporter of the death penalty.

And when I got the order from the governor that I was gonna have to pull off an execution, immediately – oh, there’s so many stories to this – but immediately the well-being of my staff became a concern to me because, in part, I remembered the staff person (he was a traveler) who was affected by a botched execution. And you have to understand, when I was notified that I was gonna have to perform an execution, the protocols for an execution in Oregon were by gas, but the law was by lethal injection. So I had to go and dust the rules off and work with the Justice Department to get the laws changed over time and construct an entirely new protocol for capital punishment. So it’s that in-depth involvement in pulling off the capital punishment program that caused me to look at capital punishment on a fairly academic database [and] outcomes based kind of level. I began second guessing what I was doing in that process.

Miller: I should note that many of our listeners may remember that John Kitzhaber, the Governor at that time, in his first two-term set of being Governor. He was the one who was ultimately responsible for those two executions, and like you, he too, after that experience, became an opponent of the death penalty. In fact, he said in 2011 that no executions would go forward on his watch, known as a moratorium. Kate Brown maintained that moratorium and incoming governor Tina Kotek has said that she’ll do the same thing. So practically speaking, even without these commutations, how likely was it that there was going to be an execution anytime soon?

Thompson: Well, I’m not the official expert, but from where I stand and stood, it’s very unlikely that an execution will take place.

Miller: Hmm.

Thompson: Given the laws… that Senate bill 1013 (and I’m not familiar with what the labeling of the law is) narrowed [a] capital punishment crime so thinly that it’s a rare occasion for a person to commit a crime where he could be sentenced to be executed.

Miller: In other words just for people who missed that: not only now are [the] people who had previously been sentenced to death for crimes, their sentences have been commuted to life without the possibility of parole. But going forward, because of this recently passed law in the legislature, a much narrower set of crimes can lead somebody to get that sentence going forward. So it’s an even narrower version of the death penalty in the state, let’s say, even if Christine Drazen had won the Governorship in November. As I’m sure you know, one of the most common arguments made by proponents of the death penalty is that this is too important and too divisive an issue to take out of the hands of voters. Oregon voters put the death penalty into the Constitution when they were allowed to do so because of the U.S. Supreme Court and that people should take it out as opposed to a de facto repeal, which is essentially what we have now from Democratic Governors and a narrowing because of Democratic lawmakers. Broadly, how do you respond to this argument?

Thompson: I can understand what I feel is primarily an emotional response, and a righteous emotional response, by a lot of the victims in our state. I had a cousin who was killed. His name was Bryant, a State Trooper in Arkansas, and I was a supporter of the death penalty at the time. I was in law enforcement, I was avidly for the death penalty. But I was avidly for the death penalty as a person, as an individual. But my experience has carried me to another level, an “other” level. Not a better level, but an “other” level which calls on me looking at the same act, that same murder, in terms of academic proof, data. I’m more of a pragmatist as a public administrator now.

And I think that’s what our elected officials are called upon to do. They are elected to call shots that I may not be aware of as an individual. There are reams and reams of information that is pouring in that’s indicting the death penalty as a viable public policy, not an individual policy for Frank Thompson, back when he was a State Trooper. The victim, that’s a tough situation, I understand. And quite frankly, if I take my public administrator suit off and go back and revisit the murder of my cousin, I can identify with each of those emotions. But there are two different charges in coming about with the law and the practice.

Miller: At this point, it seems that Governors Kitzhaber and Brown have done everything that they could or can do with executive actions, but technically the death penalty is still in the Oregon Constitution. It has not been abolished. It’s a potential punishment for a narrow set of crimes. Only a vote of the people would change that. Will opponents of capital punishment, and I include you in this, put something in front of voters to repeal the death penalty in Oregon any time soon?

Thompson: Ahh…we are talking about that in our organization –

Oregonians for Alternatives to the Death Penalty [OADP]. The set of circumstances that exist in Oregon put a lot of momentum behind the wisdom of going for or getting a referendum or an initiative. Let me just rattle off a few things as the moratorium, that’s Senate Bill 1013. Oregon hasn’t had an execution in over 50 years. They’re about two or three others. I can’t recall right now. But right now, there is a perfect gathering of criteria and incidents that will support making a move. So to answer your question more briefly, there has not been as much conversation about trying to get something before the legislature as soon as possible.

Miller: There has not been much of a conversation, you’re saying, because there’s, there’s no need to right now because of the moratorium and, and these commutations?

Thompson: Oh, thank you for asking for clarification. There is a need. We want capital punishment off the books – for Oregon to be a “no capital punishment” state. And no time is better than now, is our thinking right now. And there’s a lot of strategy going on about how and when to put some legislation out there to have it repealed.

Miller: Frank Thompson, thanks very much for your time, once again.

Thompson: Thank you for having me.

Miller: Frank Thompson oversaw the last two executions in Oregon in his role as a superintendent of the Oregon State Penitentiary. That was in the mid 1990s. Joining me now with a different perspective on this is Rosemary Brewer. She is the executive director of the Oregon Crime Victims’ Law Center. Rosemary Brewer, welcome to the show.

Rosemary Brewer: Thank you. Thank you for having me.

Miller: Thank you very much for joining us. What went through your mind when you heard about the Governor’s commutations?

Brewer: Well, the first thing I thought when I saw that was to wonder whether or not the victims had been notified that this was coming and if so, how far in advance had the victims been notified? I also wondered if the victims had been consulted at all by anyone in the Governor’s office, and I found out that they had not, and that they had received notification the same day that the commutations became public – on Tuesday.

Miller: Why is it that these were the very first things that you thought about? What’s significant about these two levels of conversations – both notice, and consultation?

Brewer: So, the Oregon Constitution guarantees victims a right to a meaningful role in the criminal justice system. It guarantees victims a right to justice and the right to be treated with dignity and respect. The victims in these crimes – these crimes committed by these 17 inmates in particular – have been traumatized worse than anyone we can possibly imagine in the system and none of us wants the system to re-traumatize people who are already suffering. Providing them a voice goes a long way to helping alleviate some of that traumatization, some of that suffering. The Oregon Constitution guarantees for victims is a recognition that victims have rights and they have interests and they have a voice in the system – and when that isn’t taken into consideration, when these policy decisions are being made, then were causing these victims just increased suffering, traumatization and we’re not fulfilling our obligations that the Oregon Constitution guarantees them.

Miller: If I hear you correctly, it sounds like you’re making two related arguments that maybe are in some ways hard to disentangle. One is a moral one about what we owe people, in this case – family members of victims of heinous crimes. But another is a legal argument about what is owed to them under the state constitution. So I and I want to drill down into this legal one for a second. Is it clear, what a meaningful role for crime victims would be, in this particular situation? In commutations?

Brewer: I don’t think so, I don’t think it’s totally clear. But what I would say is that victims’ rights are civil rights. Victims’ rights to protection, victims’ right to privacy, victims’ right to participation. Those are civil rights that we all have and we all have an interest in protecting. When those rights are disregarded, it undercuts faith in the system. And I think that’s really problematic here. What we’re asking for is that victims have a voice in the process. Not a veto, not an override, but to have their concerns taken into consideration before policy decisions are made before these kinds of commutations are made.

There is a statutory scheme for commutations in Oregon, where someone who’s applying for a commutation sends a petition to the governor. The statute is clear that the governor then sends that petition to the DA’s office, who notifies the victim and lets the victims know that they have a right to provide the governor with any relevant information for the governor to make her decision.

That’s clear that the legislative intent was to ensure that victims were part of the process. The governor’s power to commute sentences? It seems to be unlimited. But if our state’s intent was to include victims in the process, to just completely ignore them… it seems wrong. We’re treating victims the way that none of us want to be treated.

Miller: Is there a meaningful distinction for you between a governor looking at an individual case and saying, “I have really studied the crime that was committed by this person and the way they’ve behaved and the time served. And so I’m going to commute their sentence for those reasons.” So that scenario on the one hand, and on the other hand, a Governor, which, and I think the other hand is where we are right now, Governor saying, “I do not believe in this particular aspect of our criminal justice system. So instead of looking individually at any of these cases, I’m going to commute all of them because this is not about individuals, this is about a broader policy.” Does that distinction make any difference to you?

Brewer: I still think that victims need to be included. I understand that this is a broader policy decision. But even when Governor Kitzhaber made a similar policy decision in an individual case, he met with the victims in advance to let them know what he was thinking, why he was doing that. It would have been very simple for the governor, [or] the governor’s council, to arrange a meeting with victims to face them and let them know that this is happening so that they didn’t find out about it from the media – they didn’t find out about it two hours before it was printed in The Oregonian.

Miller: In other words, she could have said, “Hey, you may hate me forever for this. You may wish the worst things on me, but I’m going to tell you what I’m doing and why. I want to look you in the face and tell you what I’m doing.”

Brewer: Exactly. And by not doing that, she really is undercutting peoples’ faith and confidence in the justice system. Not just for victims, but for all of us, because we all have [a] significant interest in civil rights in the justice system and ensuring that everybody is treated with dignity and respect. And by not following through, not showing empathy, not showing dignity and respect to these people who have suffered so badly, I think it’s really unfair.

Miller: As is very clear in our conversation right here. You and I have not been talking about your thoughts or the Oregon Crime Victims’ Law Center’s official position on capital punishment. Instead, you’re talking about the rights of crime victims and their families have under our system and also what they’re owed, morally, by leaders in this state. But I do want to turn to where we ended with Frank Thompson. Obviously, he is hoping – and he’s not alone – that Oregonians will vote at some point to repeal capital punishment, to repeal the death penalty in this state. How do you feel about the possibility of that vote?

Brewer: I think that’s the way it should go. I think it should go to the people. Victims are not a monolith. There’s a wide range of opinions among victims about capital punishment, and no one person speaks for all victims. I certainly don’t speak for all victims. I’ve spoken to thousands of victims by now and some favor the death penalty, others are opposed. Even those who have been victimized in situations like the 17 that were just commuted, I think it should be up to the people of Oregon who initially voted in favor of capital punishment to decide to repeal it. But no, this is not for us. It’s not a question of the morality of the death penalty or whether the death penalty is right or wrong. It’s a question of acknowledging a balance in the system between the rights of victims and the rights of defendants and acknowledging that victims have an interest and that they should be consulted and given an opportunity to voice their interests.

Miller: Rosemary Brewer, thanks very much for your time today. I appreciate it.

Brewer: Thank you for having me.

Miller: Rosemary Brewer is the executive director of the Oregon Crime Victims’ Law Center.

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