Guest column by Joshua Marquis
Bend Bulletin, 3 November 2021

The initiative and referendum system was introduced by an obscure Oregon politician, Willian U’Ren. It’s been copied across the nation, allowing the people to decide important issues through direct votes.

It was used in 1914 to vote out the death penalty that Oregon had adopted shortly after the Civil War, in 1864. In 1920, voters reinstated it, and it stayed in effect until 1964, when Oregon became the last state, to date, to abolish the death penalty by vote of the people. In 1978 and again in 1984 voters made clear they wanted the penalty back.

Since then there have been many attempts to get voters to abolish capital punishment — all have failed, including two efforts in blue California in the last decade, and one in red Nebraska. This is not a classic liberal/conservative or Democrat/Republican issue.

Death row was abolished by Gov. Kate Brown earlier this year, and this month the Oregon Supreme Court reversed all but perhaps four of the 31 remaining inmates who had received a death sentence. The court based its decision, in theory, on 2019 legislation in Senate Bill 1013, sponsored by avowed enemies of the death penalty who knew they could never muster the legislative votes to overturn the people. Supporters and sponsors claimed the bill was nothing more than a cleanup of a messy law, that narrowed eligible murders to a tiny number of highly improbable murders (organized terrorists killing multiple victims).

Passage of SB 1013 required a major political sleight of hand by then-Rep. Jennifer Williamson and Sen. Floyd Prozanski, who specifically promised skeptical colleagues the bill would apply only to future cases. Attorney General Ellen Rosenblum’s office and Gov. Brown joined the chorus of deceit. After SB 1013 passed, Rosenblum’s office announced: the law would be retroactive. Brown continued to equivocate, promising to call a special session to consider the matter. She never did.

Christian Longo drowned his wife and young children in Newport. Dayton Leroy Rogers is a serial killer with six known victims. Randy Guzek murdered Rod and Lois Houser in Terrebonne in 1987. He’s been sentenced to death by four different Deschutes County juries over a 22-year period. None of these killers will ever receive their sentences. The supporters of SB 1013, now law, implied those murders just weren’t “bad enough.” The Oregon Supreme Court echoed that claim by saying murders like these three “do not fall within the narrow category of conduct that can be punished by death, as opposed to lesser sentences...”

Oregon executed two men in the mid-1990s, and they were “volunteers.” Under current law, killing two or even 20 people doesn’t qualify for the death penalty unless the murder was carried out by members of an organized terrorist group.

Tim McVeigh’s killing of 168 people in the Oklahoma City bombing would not qualify in Oregon.

The state Supreme Court’s decision cannot be appealed to the federal courts because its decision wasn’t based on the federal ban on cruel and unusual punishment. It was based on a state provision that is written identically to federal law, but interpreted in a way that resembles “states’ rights” — claims of the last century that allowed the depravities of slavery and various forms of discrimination.

Randy Guzek will be eligible for parole as soon as the parole board dockets his case. He’s eligible because at the time of his murders the only other sentence was life with a minimum of 30 years, and he completed his 30 about four years ago. The current district attorney showed up at the 2019 parole hearing for Mark Wilson, who was Guzek’s co-killer. John Hummel astonished the Houser family by announcing he supported granting parole for Wilson, who had agreed to a 40-year minimum.

The parole board has thus far ignored Hummel’s recommendation. Perhaps it will ignore Guzek, but the board is working with a different law now. If you don’t want to see him or the other killers released, write your district attorney and the governor.

Some people have moral, religious, or political reasons for opposing the death penalty. National polling in 2021 by Pew Research Center revealed that more than 60% of Americans continue to support the penalty. 
​
What do Oregonians think? Why not ask them, instead of engaging in trickery and deceit?

###END

This is a sad coda by a State Supreme Court unwilling to accept the will of the people or the decisions of the US Supreme Court (not just recently, but for 50 years) that the death penalty is constitutional if voters of a state want it available.

The court endorsed the sleazy move by largely Democratic legislators in 2019 to neuter the death penalty, because they could do that without the 2/3rds votes they didn’t have.
Sen. Johnson and Rep. Witt voted AGAINST SB 1013, so please thank them.
​
Some of these news stories are fuzzy. The result is all current death sentences will be vacated and the killers sentenced to life, either true life, or in about 4 cases, including Randy Guzek, who I tried three times, will get an immediate chance of parole.

Dave Houser is the son in law of Rod and Lois Houser, the couple gunned down by Randy Guzek. This is a travesty of justice. Essentially the elites of the Democratic Party (and some Republicans) know they don’t have the votes to overturn repeated votes for a limited death penalty. So the trick is to “limit” it, without full abolition, which would require voter approval.

The Court invoked the Oregon constitution, which although is identically worded to the federal constitution, allows the state Supreme Court to invoke “independent state grounds,” which is little different from southern states in the 1960s claiming “states’ rights” to try to evade federal civil rights laws.
​
To respond to one anonymous troll on the KTVZ site, he cannot receive any other sentence than one that gives him immediate parole eligibility because that was the only alternative sentence in 1988.

People should write my successor, DA Ron Brown, and Governor Kate Brown to express their horror at the attempt by Jesse McAllister to get his sentence commuted. He murdered Brook Goza and Frank Nimitz on the Seaside beach in July 1997. He and co-defendant Brad Price fled to Mexico for a year. When McAllister was arraigned I was ready to seek the death penalty, but he offered to plead straight up to True Life, no possibility of parole.

Guest Column, Bend Bulletin
August 30, 2021

Race has played a role in Oregon politics and the law in Deschutes County, and not just a century ago. In what is deemed by some to be a great “reckoning,” many Americans are examining their histories with race.

I grew up in Oregon. If it weren’t for my parents’ involvement in the early civil rights and anti-Vietnam War movements, I might never have met a Black person until I was older, like many Oregonians.

One of my first cases as the No. 2 lawyer in the Deschutes County District Attorney’s Office (when I served in that job from 1990-94) was the murder of Lynn Oliverio, a Bend woman who worked downtown and whose only mistake was using the rail line as a shortcut to work. On Nov. 9, 1989, Robert Fort robbed, raped and murdered her, and then fled by hopping on a train. Good police work tracked down a piece of jewelry he had stolen and hocked. He was caught in the Midwest and brought back to Bend for trial.

The case was horrific. The victim was blameless, and Fort ’s crime was particularly cruel and vicious.

The crime and his previous record clearly made Fort a good candidate for the death penalty, which Oregon had reinstated just five years earlier.

My boss, then -DA Mike Dugan, made clear the decision was mine.

I had bitterly opposed the death penalty while growing up but had gradually changed my mind as I worked as a prosecutor. I decided to offer Fort a deal — a life sentence — which he accepted.

I made the offer in no small part because Fort was a Black man, and at the time Deschutes County had the smallest percentage of Black residents of any of the midsized or larger counties in Oregon.

Without question his jury would have been all white.

In all the subsequent trials I led in Deschutes County, I found the jurors to be intelligent, thoughtful and more diverse than I expected — and certainly more diverse than I expected at this first murder trial there.

But as the person with the power to decide whether the gate to the death penalty should be unlocked for Fort, I had misgivings. I had read about racist juries in the South acquitting sheriffs of murdering civil rights workers and similar horrors. Given the power of the state, I decided to err on the side of caution.

No part of America is free of racism, but Oregon was not founded, as some claim, as some sort of “white paradise.” Until 1987 the state motto was “The Union,” fighting words in 1859 when Oregon was admitted and just before the Confederacy declared war on the United States. The Oregon territorial governor, Joseph Lane, was a southerner and a die-hard racist. But more Oregonians of the era were Northerners who detested slavery. If a slave owner brought a slave into Oregon, that slave was then free, years before the 13th Amendment. When that amendment was debated, immortalized in the 2012 movie “Lincoln,” Congress was deeply divided. Yet the Democratic Senator from Oregon, James Nesmith, who represented a party that defended slavery, cast his vote to free the slaves, one of only two Democrats in the U.S. Senate to do so.

You want and need a district attorney who reflects the values of the community but ultimately is loyal to the law, not to the crowd or the moment. Over the next year Deschutes County voters will have the chance to put the DA’s office back on the right track, from which it strayed about 6 years ago.

History surrounds us. It is the preface, and sometimes an explanation about where we are as a people and a nation. But it shouldn’t be a yoke that can be weaponized to stifle debate.
​
We would do well to heed Lincoln’s admonition in his first inaugural to “heed the better angels of our nature.”

read the column on the Bulletin's website.