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Oregon Governor John Kitzhaber made a decision on Tuesday to impose a moratorium on the death penalty for the duration of his term in office. The state under his previous stewardship has used it twice in the 1990s (Douglas Wright in 1996 and Harry Moore in 1997), and Kitzhaber is on record as claiming regret for those decisions. ‘I do not believe those executions made us safer. Certainly I don’t believe they made us nobler as a society’ (News24, Nov 23).
The galvanizing force in many ways was Gary Haugen, who was penciled in to be executed in December for killings committed in 1981 and 2003. He waived several appeals, having testified previously that the death penalty was an exorbitantly expensive waste of tax payer funds served up with a good deal of injustice. Fed up, he decided to take the plunge. Kitzhaber himself called it a ‘perversion of justice when the single indicator of who will and will not be executed has nothing to do with the circumstances of the crime or the findings of the jury’ (NYT, Nov 22). In fact, volunteering to be executed is a fundamental feature of the process.
Oregon’s decision places it the company of four other states that have also placed breaks on the death penalty. While it would be overly optimistic to detect a trend against the infliction of state based executions, various states have stolen a march against it. The Illinois Legislature voted to ban the death penalty in January this year. New Jersey abolished the sentence in 2007. New Mexico voters abolished it in 2009. California is ruminating over a ballot measure in 2012 that might do the same thing.
Nor can one assume that Oregon has charted out an irreversible course, given the governor’s limited powers on the subject. Haugen’s sentence remains on the books, having been granted a mere temporary reprieve. Capital punishment has been abolished twice by popular vote, only to have it reinstated on both occasions. Death by popular vote is the métier of capital punishment in the US.
As jurist David Garland did so convincingly in his insightful work on the death penalty Peculiar Institution, that form of punishment can only be targeted at the state level. To regard some states as progressive and others as backward on the subject is to ask the wrong question. The issue rather, is based on long held divisions in terms of race and socioeconomic status. ‘Capital punishment’, explained Garland, ‘is often understood as a necessary means of crime control. But it is better understood as a kind of retaliation against those whose human worth is not valued by their neighbours.’
The battle on that level is often bitter – opponents of Kitzhaber’s decision cite his direct assault on the wishes of those who support the death penalty. Clatsop County district attorney Josh Marquis decided to use the democratic line on penalties. ‘It is arrogant and presumptuous for an elected official, up to and including the governor, to say, “I don’t care what the voters say, I care what the courts say,”’ and impose his own opinion.’
Similarly, the Governor’s criticism of the review system has been dismissed by supporters of the penalty who simply see it as a matter of well applied housekeeping. For Kent S. Scheidegger, legal director for the Criminal Justice Legal Foundation, ‘the answer is to fix the review system.’
The federal system is secondary in the process – as long as states within the US see the death penalty as an expression of some form of sovereignty and independent will, however atavistic it may seem, they will use it. Democracy by capital punishment is here to stay.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: email@example.com