Other than the Reproductive Freedom bills above, no other death penalty legislation was heard this session. Three bills were introduced, HB 2668, HB 2669 and HB 2670, all of which would have created a procedure for considering the issue of whether a defendant who is charged with aggravated murder (eligible for death sentence) is a person with mental retardation. The bills were not heard and died in committee.

This has been a contentious issue for years, even before the U.S. Supreme Court ruled that persons with mental retardation cannot be executed. The issue has resisted attempts at resolution because there have been consistent disagreements between the Oregon District Attorneys Association on one side, and ACLU, the criminal defense bar and those advocating for persons with disabilities on the other. District attorneys want the mental retardation determination made by the jury after the defendant has gone through a trial and been convicted of aggravated murder. The other groups, including ACLU, believe the determination should be made by a judge prior to the trial.

Evidence of mental retardation is based on years of documentation, often going back to the person’s childhood. As such, we believe this evidence is best heard by a judge, independent of the evidence of the underlying crime and prior to the trial. If the defendant is found to be a person with mental retardation, the defendant would still be tried for the crime but would not be subject to the much more complex trial involving the possibility of a death sentence. Since the rules for death penalty juries eliminate any person from the panel who opposes the death penalty, a “death qualified” jury may be quite different in composition from a non-death penalty jury.

Prior to session, under the auspices of then-Attorney General Hardy Myers and Rep. Sara Gelser (D-Corvallis), all the stakeholders met numerous times to see if we could agree on these issues. We could not, and the result was the introduction of three bills, attempting to reflect the various positions. Because of the difficult nature of the issues and lack of agreement, the bills were not heard and died in committee.