For blackadder!

As a practitioner of capital litigation (someone who actually tries death penalty cases) for a couple years as a defense attorney and much longer as a prosecutor, it is interesting to see that every year for the last two decades, some wag will proclaim "the imminent death of the death penalty."

The latest salvo was a piece from a writer for Slate citing six reasons (he's hoping) that public support for the death penalty is waning.

He's wrong on every count. The two polls he cites most heavily are the highly politicized PEW organization and the Gallup polling system. Anyone following Oregon politics knows that PEW has abandoned any pretense of objectivity and become an advocacy organization opposed to incarceration and capital punishment. They declared over 1,000 Oregon inmates "low risk" and suggested they should be released until Clackamas County District Attorney John Foote showed that this included two people on death row and over 50 convicted of homicide or attempted homicide.

Gallup isn't biased, but as a trial lawyer or any researcher knows, an answer to a question depends almost entirely on how it's asked. Gallup has for decades asked the question about the death penalty in this fashion: "Do you think murderers should get the death penalty?" As a person who believes it is necessary to retain the death penalty for serial killers like Dayton Rogers, Ted Bundy and Wesley Allen Dodd, even I would answer "usually not" to that question. When the question is asked "Is there ANY crime that could ever merit the death penalty?" Americans answer yes at rates over 80 percent.

In Oregon, and nationally, the death penalty is rarely sought, rarely handed down by a jury and even more rarely carried out.

But what is missing in the polling analysis is the one poll that counts: The people's votes. In the United States 34 of the 50 states have the possibility of a death penalty. Some use it more than others. There has not been a single state since Oregon in 1964 where voters were given the choice and they abolished the death penalty. In 2012 California, a blue state by every definition, rejected a vastly over-funded effort to abolish the death penalty by a decisive margin. In 2006 the voters of Wisconsin, where there hasn't been a death penalty since the Civil War, voted to reinstate it. The legislature simply ignored them.

The method of execution is ironically the exact drug veterinarians use to euthanize beloved pets and, more ironically, the most frequently prescribed drug in Oregon for physician-assisted suicide. The drug, sodium thio-pentol, is now controlled by a giant European pharmaceutical corporation that wishes to express its distaste for those of us on this side of the pond.

The author also proposes life without parole (LWOP) as a terrific alternative. Except the opponents of the death penalty have already succeeded in making it impossible to give certain classes of murderers LWOP. In a moment of candor in 2001, the national chief of the ACLU refused to commit when asked on NPR whether the ACLU agreed that LWOP was not cruel and unusual punishment banned by the 8th Amendment.

The last issue the Slate writer raises is innocence. Yet despite trying to redefine innocence to include a "not guilty" verdict (news flash: O.J. Simpson has been exonerated!) or the refusal of the prosecution to retry a case decades after a conviction, there is literally no one on Oregon's death row who has even made a claim of actual innocence. The number of documented innocents executed in the "modern" era of capital punishment (since 1976) is exactly zero.

Yet the number of innocents murdered by killers released through sloth, escape and the stupidity of parole boards and bureaucrats can be counted and, more sadly, named in the hundreds if not thousands. As former Obama friend and cabinet member Cass Suunstein proposed in a controversial paper in 2005, "how can you morally justify NOT having the death penalty if in fact it saves the lives of innocent victims?"

Joshua Marquis is the Clatsop County district attorney and co-author of "Debating the Death Penalty," published by Oxford University Press. He has tried and defended capital cases in Oregon for 24 years.

http://www.oregonlive.com/opinion/in...ts_ignore.html