Killing Time

Dead Men Waiting on Oregon's Death Row.

In a forgotten cinder-block room in Salem lurks a monument to Oregon's cowardice and ambivalence toward the death penalty.

A metal gurney with extensions like the arms of a cross, it stands waiting to hold the next person executed by lethal injection under Oregon's 24-year-old capital punishment statute. The gurney has been used only twice in those years, and only then because those men, both convicted of multiple murders, volunteered for death by waiving their appeals.

The last one—Harry Charles Moore, who shot his half-sister and her ex-husband to death in Salem—died 11 years ago in this gray fluorescent-lit room, tied down with leather straps cracked and dried with age.

When an inmate is scheduled for execution, he spends his final days in a death-watch cell under 24-hour observation. When the time comes, he's moved across the hall to the execution room. The executioner and the victims' families, if they choose, watch through one-way mirrors. The prison superintendent stands beside the gurney. A blue phone in the hall outside connects directly to the office of the attorney general. A red phone goes to the governor, who gives the final go-ahead.

In the last moments, the executioner pushes a series of plungers from a small room off the death chamber, sending a three-drug cocktail of lethal poison down tubes strung through holes in the wall.

Oregon's machinery of death is clearly in place. But since the U.S. Supreme Court allowed states to resume executions in 1976, Oregon has killed only Moore and Douglas Wright, who was executed in 1996 for killing three homeless men in a remote area of Wasco County.

Contrast that record with that of Texas, a state that has offed 405 convicted criminals since 1982, making it the No. 1 state for executions.

Oregon's execution chamber has stood empty for 3,900-plus days—since before Harry Potter became a household name. Meanwhile, 35 men sit alone this week in their cells on Oregon's death row. The longest-serving inmate, a murderous prison escapee named Michael McDonnell, was sentenced to death 23 years ago. Yet his case, like all the others, remains on appeal. There are no executions scheduled.

"We have a situation in Oregon where nobody but a volunteer gets executed," says Norm Frink, the Multnomah County senior deputy district attorney who oversees murder prosecutions in the county.

That's because we live in one of 10 states that have capital punishment but have executed fewer than three people since 1976. Experts say Oregon's next involuntary execution will probably take place around 2012 at the earliest.

Death penalty opponents may think it's fine that executions aren't happening. But bear in mind the state intends to kill these men someday—though they may go to the gallows with a walker or in a wheelchair.

Meanwhile, we spend millions to keep all 35 men on death row. Millions more in public money is spent paying lawyers to wage endless battles in court. Victims' families must relive their tragedies again and again while attending multiple court hearings. And prosecutors continue to pursue new death penalty cases each year.

Inmates on Oregon’s Death Row

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Whether you're for or against capital punishment, you should be outraged by what's happening. To please the tough-on-crime crowd, we keep the death penalty. But to appease progressives, or to assuage our own conscience, nobody actually gets killed.

"Clearly, in terms of quick justice, it's a system that's not working," says Judge Michael McShane, who presides over capital murder trials in Multnomah County Circuit Court.

Yet for the most part, this shameful situation stays hidden. Death row is tucked away on the third floor of a building deep inside the Oregon State Penitentiary. The rarely used execution chamber is behind locked doors in the same prison. And no executions means no front-page headlines.

"A lot of people aren't even aware that we have a death penalty here," says Rachel Hardesty, a Portland State University criminal justice professor who has spent a decade studying capital punishment in Oregon.

At the same time as Oregon dithers over literally a life-or-death decision, the rest of the country is undergoing a radical rethinking of capital punishment.

New Jersey repealed its death penalty system last year after racking up an Oregon-esque record of zero executions in 26 years. The legislatures in Montana and Nebraska last year tried but narrowly failed to do the same. Even Uzbekistan is ahead of Oregon—the Central Asian autocracy repealed its death penalty last year.

Meanwhile, 2007 saw the lowest number of executions nationwide after the U.S. Supreme Court put executions on hold last September while it hears a case on whether the three drugs used in lethal injections cause unnecessary suffering.

But Oregon remains stuck with a backward system in which the state has the power to kill criminals yet refuses to do so—offending just about everyone who cares about the issue either way.

Irene James supports the death penalty but calls Oregon's system "senseless." A 78-year-old retired schoolteacher from Tualatin, she has endured 113 days in court since her 26-year-old daughter was murdered in 1987, watching serial killer Dayton Leroy Rogers get re-sentenced twice on appeals. And his case remains years from being resolved.

Authorities dubbed Rogers the "Molalla Forest Killer" during the 1980s for torturing James' daughter Maureen and at least seven other women to death—occasionally sawing off their feet before killing them to satisfy a fetish, then scattering their bodies in the woods of Clackamas County.

"It's not easy," James says of the endless court appearances. "I'm really resentful about the way it works. I'm resentful, because he keeps coming back."

High-profile supporters of the death penalty share her frustration, saying the system takes far too long. "What we have right now is unacceptable, no doubt about that," says Kevin Mannix, a former Republican gubernatorial candidate who ran in 2002 on a law-and-order mantra.

Even though we don't execute people, Frink considers capital punishment a valuable tool for prosecutors. The threat of death, he says, leads defendants to enter plea deals for life without parole or life with a minimum of 30 years—the two other penalties, besides death, that Oregon allows for aggravated murder.

Fiscal watchdogs, however, say death penalty cases waste millions each year in public-safety money. Common sense says it's cheaper to kill someone than keep him in prison for life. But since Oregon keeps convicts on death row for decades—essentially paying for a life sentence anyway—we spend millions on attorney fees moving their cases through a rigorous first trial and long appeals process that are unique to death penalty cases.

"The typical guy on the street thinks the death penalty is cheap because you flip the switch and walk away," says Richard Dieter, head of the Death Penalty Information Center in Washington, D.C. "They don't count the 20 years it takes to get there."

Nationwide, experts say capital cases are 20 times more expensive to prosecute because of the length of appeals. Oregon officials don't make guesses about how much it will cost here, because after 24 years of letting juries sentence killers to death, not a single case has yet gone all the way through the appeals system.

But Bill Long, a Willamette University law professor and death penalty opponent who wrote the only book on capital punishment in Oregon, has estimated Oregon's oldest cases could end up costing more than $10 million per defendant (the national average for capital cases is around $3 million). Hardesty estimated in 2005 that Oregon and its counties spend at least $9 million a year pursuing death penalty cases.

Officials in Salem project the state government will spend more than $1 million on attorney fees prosecuting and defending each death penalty case. That includes the cost of defense investigators, but not county prosecutors or local police. It also doesn't include several levels of appeals. That estimated $1.02 million alone—only a fraction of the total cost—is the same as the price of keeping a convict in prison for 36 years at the current cost of incarceration.

Added up for all 35 capital-punishment cases, that totals $35.7 million in public-safety money. The money is more than what's budgeted to run the forensics division at the cash-strapped Oregon State Police in 2007-09 ($32.2 million), and nearly enough to fund OSP's entire criminal investigation division for the same period ($40.2 million).

Meanwhile, there are about 50 more defendants currently charged with death penalty crimes in Oregon, which will suck more than $50 million more out of the state budget if the defendants are sentenced to death. Despite the expense, they may never see execution. Nationwide, only 12 percent of people who are sentenced to death are actually executed.

That leaves even death penalty proponents questioning whether the cost is worth it—people like Mannix, who now wonders if it's time to look at other alternatives.

"In this state, we need to ask ourselves if we are willing to plunge the syringe or flip the switch," he says. "You need to understand that the public has mixed emotions on this issue."

Clatsop County District Attorney Joshua Marquis, a national advocate for the death penalty, told The New York Times last month that many prosecutors are "ambivalent" about capital punishment.

"It's very hard to find people who are in favor of capital punishment, or involved in practicing it, who are not at least cautious about it or examine their beliefs from time to time," Marquis told WW. (Marquis shares that ambivalence but says he's certain some people are so evil they deserve to die.)

At the other end are prosecutors like Multnomah County District Attorney Michael Schrunk, who opposes the death penalty just as passionately. Despite his personal views, Schrunk says his office pursues capital cases because it's the law.

"You mess with my kids or my grandkids, I'll kill you," Schrunk says. "But as a government entity, I just don't think you ought to."

Despite Oregon's reputation as a progressive state—the first to allow assisted suicide and medical marijuana—people on both sides of the death penalty debate say the public here supports capital punishment.

Portland pollster Lisa Grove did the last survey on the death penalty in Oregon in fall 2001 for a now-defunct death penalty prohibition group called Life for Life. Both Grove and Angela Martin, a former member of Life for Life, declined to release the results of the poll. Martin says the results were skewed by the Sept. 11 terrorist attacks.

But activists for and against the death penalty who are familiar with the results say about 70 percent of Oregonians supported capital punishment. National polls show about 65 percent support.

And while the U.S. Supreme Court examination of lethal injections turns on whether the practice causes unnecessary suffering, the states that have tried to repeal capital punishment point to cost as the main factor in the equation.

Inmates on Oregon’s Death Row

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There's good reason death penalty opponents talk about the cost to public safety—it's a lot more palatable than arguing why killers like Dayton Leroy Rogers should be kept alive. "It seems more fruitful to have a conversation about what we share than it is to have a conversation about things we are unalterably opposed about," says Hardesty, a death penalty opponent.

But some are convinced progressives have rigged the appeals system and driven up costs merely to justify abolishing capital punishment. Or in a similar line of reasoning, instead of trying to repeal the law directly, judges and lawyers who oppose the death penalty have made the appeals process so long no one actually gets killed.

"That segment of the population most opposed to the death penalty are generally members of the Oregon State Bar, and they have managed to cook the books," Mannix says. Frink agrees, calling it a "self-fulfilling prophecy."

The national average length of death penalty cases on appeal is 12.3 years. Cases in Oregon will take at least 20 years—and some as long as 45 years—to move through the appeals process.

Why the longer delay in Oregon? Death penalty cases everywhere take longer to try and to appeal, but additional wrenches have been thrown into Oregon's system.

Several local decisions have forced cases back to square one, including a 1989 state law allowing juries to sentence for life without parole, a 1996 ballot measure changing mandatory minimum sentences, and a 1999 court decision challenging the inclusion of victim-impact evidence. On top of all that, there's the glacial pace of the Oregon Supreme Court, which took more than a year to hand down its most recent death penalty ruling.

To see how all this plays out, take the complicated case history of Michael McDonnell. He was 33 years old and high on meth on Dec. 22, 1984, when he forced his way into Joey Keever's car at a stop sign near Yoncalla and stabbed her 42 times.

Want to see just how convoluted an Oregon death penalty case can get? Read all the gritty details in the next five paragraphs.

McDonnell killed Keever, 22, just 16 days after Oregon's death penalty law went into effect. During his first trial in 1985, defense attorneys argued successfully in Douglas County Circuit Court that Oregon's new death penalty law might be unconstitutional. The case went to the state Court of Appeals, which rejected the appeal in 1986, sending the case back to Douglas County, where a jury convicted McDonnell of aggravated murder and sentenced him to death in 1988.

That moved the case up for an automatic appeal to the Oregon Supreme Court, which in 1990 sent the case back to Douglas County for a judge to determine whether prosecutors improperly consulted the victim's family. The judge ruled there was no impropriety, sending the case back to the Oregon Supreme Court.

But a 1989 U.S. Supreme Court decision meant all defendants in Oregon death penalty cases had to be resentenced. The Oregon Supreme Court sent the case back down to Douglas County, where McDonnell was sentenced to death for the second time in 1994. The case went back to the Oregon Supreme Court, but it and many other death penalty cases were put on hold because of Measure 40, the 1996 voter initiative establishing mandatory-minimum sentences.

In 1999, the Oregon Supreme Court once again returned the case to Douglas County for resentencing—this time because the last jury was given only two sentencing options, death or life with the possibility of parole. This time a jury was given a third option, life without parole, and for the third time, McDonnell was sentenced to death in 2002.

In 2002, the case once again went to the Oregon Supreme Court for its automatic appeal. It was argued on Nov. 6, 2006, and on Dec. 19, 2007, the court upheld Circuit Judge Robert Millikan's death sentence for McDonnell, nearly 23 years to the day after the original crime.

That two-decade odyssey completed just the first step of McDonnell's 10-step appeals process stretching through the state and federal courts. Long predicts McDonnell won't be executed until 2024 at the earliest—and that's if all the other steps go without a hitch. If McDonnell lives that long, he'll be 73.

Yet few people in positions of power care to make changes. Mannix says the Legislature failed twice in the late 1990s to streamline the appeals process. More recently, a proposal last year by two death penalty opponents merely to study Oregon's capital punishment system died in the Legislature without even getting a hearing.

"We really didn't feel like there was sufficient momentum," says state Rep. Chip Shields (D-Portland), who along with state Sen. Ginny Burdick (D-Portland) was a prime supporter of the proposal.

Any legislator could take up the cause of reforming Oregon's system, but there are just a handful of officials in key positions to make a change.

In Salem, Gov. Ted Kulongoski has the sole power to grant clemency in capital sentences but has never done so. The state's chief executive, he could also drive debate on changing or revoking the death penalty law. Kulongoski spokeswoman Anna Richter Taylor says Kulongoski is personally against the penalty but committed to upholding the law.

The 2008 race to replace Attorney General Hardy Myers, who's personally opposed to the death penalty, has one serious candidate who supports capital punishment and one who's opposed. Candidate John Kroger, a law professor at Lewis&Clark College, says he supports the death penalty but would form a committee to consider options for reform, including possibly ending capital punishment in Oregon.

Candidate Greg Macpherson, a pension benefits lawyer and former state representative, says he's opposed to capital punishment but would leave any changes up to Oregon voters. Neither candidate seems eager to lead a charge on the issue—their campaign websites don't even mention it.

Meanwhile, 35 inmates still languish on death row. One is Karl Anthony Terry, the only death-row inmate who agreed to comment for this story. (The Oregon State Penitentiary declined to ask the inmates if they would agree to be interviewed in person, so WW wrote all of them.)

In an eight-page handwritten response, Terry—who was convicted of murdering brothers Jeffry and Dale Brown with a samurai sword in 1994, while the three were on a camping trip near Milwaukie—says he spends his days reading, meditating and watching the TV show Stargate Atlantis.

"The best times, here, on death row (as before my incarceration) are those quiet moments of peaceful clarity that we all, as human beings, experience now and again," Terry writes.

"The worst times, well, for me, at least, are those horrific occasions of sudden, deep, painful anguish when it feels as if my heart is falling in on itself and I am overborne by this profound feeling of grief and loneliness and an agony to realize I am cut off from everyone I love, unable to help them in their need, and reduced to a state of utter uselessness and non-productivity without a means to contribute to the good [of] the world that I so desperately wish to contribute as a human being," he writes.

Terry, who is 34, still maintains his innocence.

Thirty-seven states allow the death penalty. Thirty-six of those states use lethal injection; only Nebraska uses the electric chair. Oregon voters approved the state's current death penalty statute in 1984 with 55 percent of the vote.

The only crime in Oregon that can receive the death penalty is aggravated murder. These include multiple murders, murder where torture is involved, murders that occur while committing another felony, or cases where the killer had committed a prior murder or manslaughter.

Forty-two people were executed nationally in 2007, the lowest number since 1994, when there were 31. There were 53 executions in 2006 and 98 in 1999, the highest year since the U.S. Supreme Court allowed states to resume capital punishment in 1976.

Because doctors are forbidden from participating in executions, an emergency medical technician who works for the prison inserts the needle into the criminal's arm. If there's resistance or trouble finding a vein, the EMT must cut into the criminal's skin to insert the needle.

At death row at the Oregon State Prison, inmates are kept alone in cells 8 1/2 feet deep and 6 feet wide. They're fed three meals a day through a slot in the bars, are allowed to talk, and are allowed outside for 90 minutes each day.

Prison officials say the cost of keeping a man on death row is the same as an inmate in general population—$77.78 a day, or $28,389.70 a year.