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Presciently and rhetorically in Federalist Paper Number 78, Alexander Hamilton asked “Are the representatives of the people superior to the people themselves?” In what has become an all-too-common occurrence, many Oregon representatives recently voted to void another voter-approved law — this time, Oregon’s death penalty.

In 1984, Oregon voters voted to apply the death penalty to some aggravated murders. This past session, Senate Bill 1013 redefined most aggravated murder as “murder in the first degree,” virtually eliminating the death penalty in Oregon.

Concerns were raised that, by defining away the will of the voters, the new law would create a retroactivity problem for all pending aggravated murder cases. Those concerns were ignored. In a stroke of cosmic irony, at a hearing held on April Fool’s Day, advocates of the bill represented “this bill is not retroactive” and “there is not a retroactive bone in Senate Bill 1013.”

After Gov. Kate Brown signed SB 1013, Oregon’s solicitor general declared there is “no plausible basis” to say this bill is not retroactive. Consequently, Oregon now has a big retroactivity problem looming. That problem will arrive next week, when SB 1013 becomes law.

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Right now, there is one aggravated murder case pending in Linn County. That case illustrates the absurdity found in SB 1013 that will be replicated throughout Oregon. The defendant there was charged with aggravated murder. However, because SB 1013 is retroactive, the defendant cannot be sentenced for aggravated murder. He can’t be charged with murder in the first degree either (that crime didn’t exist on the date the murders occurred). You can’t enforce a law ex post facto. Consequently, the defendant can be found guilty of aggravated murder, but not sentenced for it. He can be sentenced for murder in the first degree; he just can’t be charged with it. Thus, Oregon citizens were given a ridiculous Catch-22.

This problem will not be fixable after next week. Once the law goes into effect, the absurdities described above will attach as defendant rights. This is the type of crazy result that gets created when those who swore to represent us pass laws without open and honest debate.

The fix to SB 1013 is simple. As of right now, we are told there are not enough votes to fix the bill during a special session. Again, where is the open process? Who decided there aren’t enough votes to support a fix at the session? Who voted against fixing these problems during a special session? When was the debate over the issues surrounding these problems and the potential for a special session? Yet again, the public is left on the outside of a closed-door process. The victims of these serious crimes deserve better.

Our system works best when the representatives of the people respect principles of open and honest debate. It works especially well when they respect the will of those they represent. We call upon our leadership to convene a special session. Repeal SB 1013 and refer a death penalty measure to the voters, or pass a bill that makes SB 1013 prospective only. Let us all see an open debate and let us see who specifically votes to either prevent or allow this important fix.

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Doug Marteeny is the Linn County district attorney. Shelly Boshart Davis and Sherrie Sprenger both represent portions of Linn County in the Oregon House of Representatives; both voted against Senate Bill 1013.

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