State legislators this year made repeated assurances that a new law significantly limiting the death penalty in Oregon wouldn’t apply to death row cases returned to lower courts for retrial or new sentencing hearings.
Now, a top lawyer with the Oregon Department of Justice has told prosecutors that the law does indeed affect those cases -- and pending aggravated murder cases as well.
Benjamin Gutman, Oregon’s solicitor general, wrote the email, which was distributed Friday and later obtained by The Oregonian/OregonLive.
Gutman said the issue came up during the agency’s review of a Washington County trial court ruling last week involving Martin Allen Johnson who authorities say raped and murdered a 15-year-old Tigard girl in 1998 before throwing her body off an Astoria bridge.
As soon as Gov. Kate Brown signed Senate Bill 1013, which limits the crimes eligible for the death penalty, Johnson’s lawyers raised the issue of whether the law applies to their client. Circuit Judge Eric Butterfield determined that Johnson’s crime no longer qualifies as aggravated murder under the new law and therefore he isn’t eligible for the death penalty.
“I know that I have had conversations with many of you in which I suggested otherwise but after careful review of the issue … we have concluded that we don’t have a plausible basis for an appeal,” Gutman wrote.
State Rep. Jennifer Williamson, D-Portland, had told The Oregonian/OregonLive last month that lawmakers drafted a separate bill, Senate Bill 1005, to make clear that SB 1013 wouldn’t apply to those who have been previously sentenced but have been granted reversals.
The second bill passed at the close of the session and was signed into law this month by Brown.
Williamson on Monday was unavailable for comment, according to her legislative aide. Williamson, an attorney, stepped down as House Majority Leader last month and has been rumored to be interested in a run for Oregon attorney general.
A representative of Sen. Floyd Prozanski, a leading proponent of SB 1013, said the senator hadn’t seen Gutman’s email and wasn’t available to talk about it.
It is unclear how the opinion will affect some of the state’s most notorious cases.
The new law narrows the definition of aggravated murder, which is the only crime in Oregon eligible for a death sentence. Aggravated murder is now limited to defendants who kill two or more people as an act of organized terrorism; kill a child younger than 14 intentionally and with premeditation; kill another person while locked in jail or prison for a previous murder; or kill a police, correctional or probation officer.
Gutman, who as solicitor general oversees the state’s appellate division, said the Justice Department’s analysis has broad implications. Lawyers for the agency handle all appeals for criminal cases.
He sent the email to prosecutors with aggravated murder cases that have been sent back for retrial.
“I thought all of your offices would want to know about our conclusion because it also means that we do not think we could defend a death sentence (or even an aggravated murder conviction) obtained in any of the pending cases even if the trial courts were to rule differently than the court” in the Washington County case, he wrote.
Gutman wrote that he had been under the impression that lawmakers had addressed concerns over the law’s retroactivity by passing SB 1005, “but on a closer read, SB 1005 does not have any language limiting the application of SB 1013’s substantive provisions to cases being retried.”
Gutman’s opinion sent prosecutors reeling.
Tim Colahan, executive director of the Oregon District Attorneys Association, and other prosecutors said the opinion has injected uncertainty into the most serious cases and undermined the families of murder victims.
“This contradicts the express intent that the proponents of SB 1013 stated during the legislative process and also is contrary to the stated legislative intent expressed by legislators when the bill passed,” Colahan said. The organization opposed Senate Bill 1013.
District attorneys are trying to determine how many cases may be affected by the opinion, he said.
Meanwhile, Washington County District Attorney Kevin Barton said the legislation has thrown the state’s most serious statutes into chaos.
“Oregon’s murder laws are now a mess after the passage of SB 1013,” he said. “This is what happens when politicians ignore the will of Oregon voters and disregard the experience and input of Oregon’s prosecutors.”
Barton said Senate Bill 1013 was passed without regard for its “real world impact to our communities and to our victims.”
“There are victims and families across Oregon who are suffering right now as a result of the mess that has been created,” he said.
Katie Suver, a longtime deputy district attorney in Marion County, said the law was hastily passed and poorly crafted. She said her testimony before the Legislature was limited to two minutes -- not enough time, she said, to discuss concerns about implications of major change to Oregon murder statutes.
“There needed to be a lot more care in passing this law,” she said.
Lane County District Attorney Patty Perlow said prosecutors worried that the new law would have implications for cases sent back for new trials or sentencing hearings.
“This is why I have been saying all along this bill isn’t going to save any money,” she said. “We are going to have to litigate every issue.”
Here is the text of Gutman’s email to prosecutors:
Colleagues,
We at DOJ have concluded that the new, narrower definition of aggravated murder in SB 1013 does apply to pending cases—including cases that have been sent back for new penalty or guilt phases. That means that most of those cases could no longer be prosecuted as capital aggravated-murder cases; they presumably would have to be prosecuted as first-degree murder cases instead.
I know that I have had conversations with many of you in which I suggested otherwise, but after careful review of the issue in a Washington County case (Martin Johnson) where the court ruled that the death penalty was not available, we have concluded that we don’t have a plausible basis for an appeal, as I just told Bracken. I thought all of your offices would want to know about our conclusion, because it also means that we do not think we could defend a death sentence (or even an aggravated-murder conviction) obtained in any of the pending cases even if the trial courts were to rule differently than the court in the Johnson case.
This was a surprise to me. Many of us, myself included, were under the impression that SB 1005 ensured that SB 1013 would not apply to cases that had previously been tried and were being retried after an appeal or post-conviction relief. There are news stories citing legislators as saying as much. But on a closer read, SB 1005 does not have any language limiting the application of SB 1013’s substantive provisions to cases being retried. The relevant part of SB 1005 is section 4, and I’ve highlighted the important language:
SECTION 4. If both Senate Bill 1008 and Senate Bill 1013 become law, section 32, chapter , Oregon Laws 2019 (Enrolled Senate Bill 1008), as amended by section 3c, chapter , Oregon Laws 2019 (Enrolled Senate Bill 1013), is amended to read:
Sec. 32. (1) Sections 24 and 25, chapter , Oregon Laws 2019 (Enrolled Senate Bill 1008), and the amendments to ORS 137.071, 137.124, 137.705, 137.707, 137.712, 144.185, 161.610, 161.620, 163.105, 163.115, 163.155, 163A.130, 163A.135, 339.317, 339.319, 339.321, 419C.005, 419C.050, 419C.346, 419C.349, 419C.352, 419C.355, 419C.358, 419C.361, 420.011, 420.081 and 420A.203 and section 3 [of this 2019 Act], chapter , Oregon Laws 2019 (Enrolled Senate Bill 1013), by sections 1 to 23 and 26 to 29, chapter , Oregon Laws 2019 (Enrolled Senate Bill 1008), and section 3a [of this 2019 Act], chapter , Oregon Laws 2019 (Enrolled Senate Bill 1013), apply to sentences imposed on or after January 1, 2020.
(2) Notwithstanding subsection (1) of this section, sections 24 and 25, chapter , Oregon Laws 2019 (Enrolled Senate Bill 1008), and the amendments to ORS 137.071, 137.124, 137.705, 137.707, 137.712, 144.185, 161.610, 161.620, 163.105, 163.115, 163.155, 163A.130, 163A.135, 339.317, 339.319, 339.321, 419C.005, 419C.050, 419C.346, 419C.349, 419C.352, 419C.355, 419C.358, 419C.361, 420.011, 420.081 and 420A.203 and section 3, chapter , Oregon Laws 2019 (Enrolled Senate Bill 1013), by sections 1 to 23 and 26 to 29, chapter , Oregon Laws 2019 (Enrolled Senate Bill 1008), and section 3a, chapter , Oregon Laws 2019 (Enrolled Senate Bill 1013), do not apply to persons who were originally sentenced before January 1, 2020, and who are subsequently resentenced on or after January 1, 2020, as the result of an appellate decision or a post-conviction relief proceeding or for any other reason.
So the only part of SB 1013 (as opposed to SB 1008) that does not apply to resentencing proceedings is section 3a—a section that made a minor technical correction to section 3 that is not at issue in any capital cases. The rest of SB 1013 is unaffected by SB 1005.
That leaves us with the effective-date provision of SB 1013 itself, section 30, which says that the provisions of the new statute “apply to crimes committed before, on or after the effective date”—September 29, 2019—“that are the subject of sentencing proceedings occurring on or after the effective date.” Thus, if the case has sentencing proceedings after September, regardless what happened in the case before, the new provisions apply.
We have looked hard at whether there are any statutory-construction or constitutional arguments against following that language for pending cases, but we have not found any plausible arguments. I am of course open to hearing any ideas that we may have overlooked.
Please let me know if any of you would like to discuss this further. I think I have included all the DA’s offices that currently have cases sent back for retrial, but of course if there are any others I can share the information with them as well. I will be out of the office Monday and Tuesday but should be reading email, and I’ll be at the ODAA conference at the end of the week if anyone would like to talk then.
Thanks.
Ben
-- Noelle Crombie
503-276-7184
Visit subscription.oregonlive.com/newsletters to get Oregonian/OregonLive journalism delivered to your email inbox.