NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Capital Punishment Handbook: State Law Summaries - Oregon

        a.     History
        b.     Capital Offenses
        c.     Representation In Capital Cases
        d.     Trial Of Capital Offenses
        e.     Capital Sentencing: Penalty Hearing
        f.      Aggravating Circumstances
        g.     Mitigating Circumstances
        h.     Appellate Review Of Capital Sentences
        i.      Collateral Remedies
        j.      Post-Conviction Relief
        k.     Habeas Corpus
        l.      Appellate Review Of Collateral Proceedings
        m.    Procedural Bar/Waiver/Exhaustion
        n.     Execution
        o.    Competency for Execution
        p.     Stays Of Execution
        q.     Clemency Procedures

Oregon’s death penalty history reflects ambivalence toward capital punishment. In 1864, the legislature established the death penalty for first degree murder and provided the court with discretion to decide punishment. In a 1914 constitutional amendment initiative, Oregon voters abolished capital punishment. However, six years later the legislature reinstated the death penalty but allowed the jury to make a binding recommendation for a life sentence. In 1964, voters again abolished capital punishment by popular vote. Although voters reinstated the death penalty in 1978, the Oregon Supreme Court invalidated the new law.

In 1984, voters adopted Oregon’s current death penalty law for aggravated murder. The law, modeled after a Texas capital punishment statute approved by the U.S. Supreme Court in Jurek v. Texas, 428 U.S. 262 (1976), allowed for a jury to impose the death penalty after a sentencing hearing if it answered three statutory questions affirmatively. In response to the Supreme Court’s decision in Penry v. Lynaugh, 492 U.S. 302 (1989), the 1989 Oregon legislature amended its statute by adding a fourth sentencing question that assured jury consideration of all mitigating circumstances. In State v. Wagner, 309 Or. 5, 786 P.2d 93 (1990), the Oregon Supreme Court, troubled with the imprecise grammar of the 1989 amendment, clarified the constitutional requirements of the new legislation. Consequently, the 1991 legislature rewrote the fourth question to simply ask the jury whether the defendant should receive a death sentence.

Penry v. Lynaugh, 492 U.S. 302 (1989) (requiring jury consideration of mitigating evidence at death sentencing).

Jurek v. Texas, 428 U.S. 262 (1976) (upholding Texas capital punishment statute against Eighth and Fourteenth Amendment attacks).

State v. Wagner, 309 Or. 5, 786 P.2d 93 (holding pre-1989 death penalty statute requires submission of additional question to sentencing jury, allowing jury to conclude mitigating evidence justifies life sentence; clarifies additional question to be asked pursuant to 1989 amendment), cert. denied, 498 U.S. 879 (1990).

State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981) (finding Oregon 1978 death penalty statute unconstitutional because it required the court to base its death penalty decision on a factual determination of the criminal act, which should be a jury decision).

Or. Rev. Stat. § 163.150 (2005) (requiring sentencing hearing, before trial jury, to determine death or life sentence).

Aggravated murder is the only capital offense in Oregon. A defendant convicted of aggravated murder is sentenced to death, life imprisonment without possibility of release, or life imprisonment (a minimum of thirty years without possibility of parole).

Aggravated murder requires a finding of murder, as defined in Oregon Revised Statutes § 163.115, plus a finding of one of twelve aggravating circumstances. In State v. McDonnell, 313 Or. 478, 837 P.2d 941 (1992), the Oregon Supreme Court found that the aggravating circumstances listed in Oregon Revised Statutes § 163.095 presumptively constitute a narrow class of conduct sufficient to justify a death penalty. 

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court held that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on those who were under the age of 18 at the time their crimes were committed. Prior to Roper, Oregon law also provided that the death penalty may not be imposed upon a person who was a minor at the time the offense was committed, although the offender will be prosecuted as an adult if older than 15 years at the time of the offense. 

Although no Oregon statute currently prohibits execution of the mentally retarded, on June 20, 2002, the U.S. Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the execution of the mentally retarded constitutes cruel and unusual punishment prohibited by the Eighth Amendment. See § 1.6.

Roper v Simmons, 543 U.S. 551 (2005) (holding that Eighth and Fourteenth Amendments forbid imposition of death penalty on those who were under the age of 18 at time their crimes were committed).

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment).

State v. McDonnell, 313 Or. 478, 837 P.2d 941 (1992) (holding aggravating circumstances listed in § 163.095 presumptively constitute narrow class of conduct sufficient to justify death penalty).

Or. Rev. Stat. § 137.707 (2005) (prohibiting death penalty for offenders under 18 at time of offense).

Or. Rev. Stat. § 163.105 (2005) (providing death, life without parole, or life sentences for aggravated murder).

An indigent defendant’s right to counsel attaches at arraignment. In Oregon, all counsel appointed to represent indigent defendants at trial and postconviction proceedings are contract appointments. Effective October 1, 2001 the Public Defense Services Commission (PDSC) assumed responsibility for the Office of Defense Service (formerly the state public defender). The PDSC maintains contracts with capital counsel who meet established competency standards. Upon a determination of indigency, the circuit court appoints counsel in compliance with the applicable PDSC contracts for all stages of capital representation.

Upon imposition of a death sentence and a showing of indigency, the Oregon Supreme Court appoints counsel to represent the defendant on automatic appeal. The supreme court appoints counsel from the Legal Services Division of the Office of Public Defense Services unless that office has a conflict of interest or lacks the capacity to undertake the representation for budgetary or other reasons, or the court has a reasonable and objective basis to believe that the office could not provide adequate representation to the defendant. Generally, trial counsel is not reappointed for the appeal. The supreme court may limit the number of compensable hours appellate counsel may expend on the case without further review. At all stages of representation, capital counsel’s pay is $55 per hour

State v. McDonnell, 313 Or. 478, 837 P.2d 941 (1992) (holding defendant has no state constitutional right to act as co-counsel in capital punishment trial proceedings).

Or. Rev. Stat. § 135.045 (2005) (providing for court appointment of criminal counsel at arraignment).

Or. Rev. Stat. § 138.590 (2005) (providing for court appointment of counsel at postconviction proceeding).

Or. Qualification Standards for Ct. Appointed Counsel 3.1 (providing competency standards for capital counsel at trial, appeal, and state postconviction proceeding).

Or. Indigent Defense Compensation Policies & Procedures § 3.1(B) (providing fee schedule for contract appointments).

The circuit court is the state trial court of general jurisdiction. It has original jurisdiction over all civil and criminal cases, including felonies, habeas corpus, and postconviction review. Oregon’s general criminal trial procedures apply to the guilt phase of a capital case. In aggravated murder cases, both the defendant and the state are entitled to twelve peremptory challenges instead of the usual six. To be convicted of aggravated murder, the state must prove at least one aggravating circumstance listed in § 163.095.

Or. Rev. Stat. § 136.230 (2005) (allowing twelve peremptory challenges in capital cases).

Or. Rev. Stat. § 163.095 (2005) (defining circumstances that constitute aggravated murder).

Or. Rev. Stat. § 163.150 (2005) (requiring separate sentencing hearing for aggravated murder).

When a defendant is convicted of aggravated murder, the same trial jury, after a sentencing hearing, determines whether the defendant should receive a sentence of death, life, or life without the possibility of release. 

At the sentencing hearing, the court may admit new evidence that it deems relevant to sentencing, including victim impact evidence and any evidence bearing on the issue of whether the defendant should receive a death sentence. The jury may consider all evidence received at trial, but the evidence cannot be reintroduced at the penalty hearing.

At the conclusion of the sentencing hearing, the court instructs the jury to consider any mitigating evidence and to return unanimous special verdicts on four statutory questions: (1) whether the murder was deliberate and with expectation that death would result, (2) whether it is probable that the defendant will be a continuing violent threat to society, (3) whether the murder was an unreasonable response to provocation, if any, by the deceased, and (4) whether the defendant should receive the death penalty.

State v. Guzek, 336 Or. 424, 86 P.3d 1106 (2004) (holding that failure to give jury instructions on “true life sentencing option” in defendant’s third penalty phase proceeding was reversible error where defendant moved to have trial court instruct jury on that sentencing option and expressly waived all ex post fact guarantees), vacated on other grounds, 2006 WL 397856 (U.S. Feb. 22, 2006) (see above).

State v. Sparks, 336 Or. 298, 83 P.3d 304 (holding that nonfamily members of a murder victim could present victim impact evidence during the penalty phase of the trial and that sentencing defendant “to death on all fifteen counts” of aggravated murder did not improperly impose multiple sentences of death), cert. denied, 125 S. Ct. 219 (2004).

State v. Oatney, 335 Or. 276, 66 P.3d 475 (2003) (holding that Ring v. Arizona (see § 4.6.1) does not require that “deliberateness” be charged specifically in the indictment before the question of deliberateness can be submitted to a jury, and that unlike in Ring, the trial court did not impose on defendant any punishment that the jury’s answers in the special verdict in the penalty phase did not require).

State v. Rogers, 330 Or. 282, 4 P.3d 1261 (2000) (vacating death sentence and holding that trial court erred in refusing to permit jury to consider option under § 163.150(5)(a) of sentencing defendant to life in prison without possibility of parole and to permit defendant to waive ex post facto objection to jury's consideration of that option).

State v. Barone, 328 Or. 68, 969 P.2d 1013 (1998) (holding victim’s opinion on death penalty not relevant to fourth sentencing question; conduct of past crimes admissible at sentencing hearing to establish future dangerousness, notwithstanding stipulation to charge or conviction), cert. denied, 528 U.S. 1135.

State ex rel. Carlile v. Frost, 326 Or. 607, 956 P.2d 202 (holding all evidence properly admitted at first trial and sentencing hearing admissible in new penalty proceeding without an Oregon Evidence Code Rule 403 balancing analysis), remand after reversal, 155 Or. App. 260, 958 P.2d 909 (1998).

State v. Cunningham, 320 Or. 47, 880 P.2d 431 (1994) (en banc) (holding federal and state constitutions do not require district attorney to disclose statewide information about similarly situated defendants to analyze disparate treatment in plea bargaining or sentencing), cert. denied, 514 U.S. 1005 (1995).

State v. Stevens, 319 Or. 573, 897 P.2d 162 (1994) (stating that standard of relevance set forth in Oregon Evidence Code Rule 401 applies in penalty-phase hearing). 

State v. Boots, 315 Or. 572, 848 P.2d 76 (1993) (holding trial court did not err limiting retrial to aggravation enhancement when underlying murder conviction affirmed).

Or. Rev. Stat. § 163.150 (2005) (requiring bifurcated capital sentencing hearing; allowing any evidence relevant to sentencing; guilty or no contest pleas; resentencing). 

Or. Rev. Stat. § 163.150(1)(b) (2005) (enumerating four questions requiring special verdict at sentencing hearing).

To be convicted of aggravated murder, the district attorney must prove at least one of the following eleven aggravating circumstances: (1) receipt of money for committing the murder, (2) solicitation of another to commit the murder, (3) a prior homicide conviction, (4) multiple murder victims, (5) murder involved intentional maiming or torture, (6) victim was under 14 years old, (7) victim was a police, correctional, or judicial officer, juror, witness, or employee of the court or parole board, (8) defendant was in custody or had escaped from a penal or correctional facility at the time of the murder, (9) the murder was committed by use of explosives, (10) intentional felony murder, and (11) murder committed to conceal a crime. The jury must agree unanimously on the same aggravating circumstance.

Additionally, the sentencing jury must answer four interrogatories affirmatively to impose the death penalty: (1) Did the defendant act deliberately and with the reasonable expectation that death would result? (2) Is there is a probability that the defendant would constitute a continuing threat to society? (3) Was the defendant’s conduct an unreasonable response to provocation, if any? and (4) Should the defendant receive a death sentence? The jury must agree unanimously on each of the first three questions in order to render a “yes” response.

State v. Compton, 333 Or. 274, 39 P.3d 833 (holding that § 163.150(1) and its related jury instruction did not violate Eighth or Fourteenth Amendments and that federal constitution does not require court to instruct jury in penalty phase that it is entitled to consider only aggravating factors that relate to defendant’s character or to circumstances of defendant’s crime in deciding whether to impose death sentence), cert. denied, 537 U.S. 841 (2002).

State v. Barrett, 331 Or. 27, 10 P.3d 901 (2000) (holding three aggravated murder convictions, involving same conduct and same victim, did not violate two or more statutory provisions, for purposes of constituting two or more separately punishable crimes).

State v. Langley, 314 Or. 247, 839 P.2d 692 (1992) (holding terms “confined” and “otherwise in custody” as used in §163.095(2)(b) not vague under state or federal constitutions).

State v. Isom, 313 Or. 391, 837 P.2d 491 (1992) (appeal after remand) (holding that state correctional facility, as referenced in § 163.095(2)(f), includes a state correctional facility in any state; § 163.095(2)(f) not unconstitutionally vague under state and federal constitutions).

State v. Farrar, 309 Or. 132, 786 P.2d 161 (1990) (en banc) (holding § 163.095(2)(d) and (2)(e), defining aggravated felony murder and aggravated murder by concealment, not unconstitutionally vague under state and federal constitutions).

State v. Boots, 308 Or. 371, 780 P.2d 725 (1989) (holding jury must unanimously agree on manner in which aggravated murder was committed when alternative theories of aggravated murder charged).

State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988) (holding second interrogatory, regarding defendant being a threat to society, is not unconstitutionally vague under state constitution), vacated on other grounds, 309 Or. 5, 786 P.2d 93, cert. denied, 489 U.S. 879 (1990).

State v. Maney, 297 Or. 620, 688 P.2d 63 (1984) (holding that term “witness in a criminal proceeding,” found in § 163.095 includes someone who has not yet been subpoenaed but whose testimony is desired in a criminal proceeding or grand jury investigation).

Or. Rev. Stat. § 163.095 (2005) (listing circumstances that qualify murder as aggravated murder).

Or. Rev. Stat. § 163.150(1) (2005) (allowing victim impact evidence at sentencing; listing four issues jury must decide after presentation of evidence at sentencing; requiring proof beyond a reasonable doubt on non-mitigating issues).

Oregon death penalty law requires the court to instruct the sentencing jury to consider any mitigating circumstances offered in evidence, including, but not limited to, the defendant’s age, the extent and severity of the defendant’s prior criminal conduct, and the extent of the mental and emotional pressure under which the defendant was acting at the time the defendant committed the offense. The Oregon Supreme Court, in State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988), rejected the contention that only mitigating evidence causally related to the offense is relevant to the sentence.

The fourth special verdict that a jury must return in a capital case is whether the defendant should receive a death sentence. The legislature added this special verdict to the statute in 1991 so the jury could consider mitigating factors and choose a punishment less than death even when all aggravating factors are present. The court must instruct the jury to answer the fourth interrogatory negatively if one or more of the jurors believe the death penalty inappropriate after considering any aggravating evidence, mitigating evidence concerning the defendant’s character or background, any victim impact evidence, and the circumstances of the offense.

State v. Wright, 323 Or. 8, 913 P.2d 321 (1996) (stating that to be relevant to fourth question, evidence must relate to some aspect of defendant’s character or background or to any circumstance of the crime).

State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988) (rejecting contention that all mitigating evidence causally related to offense is relevant to sentence), vacated on other grounds, 309 Or. 5, 786 P.2d 93, cert. denied, 498 U.S. 879 (1990).

Or. Rev. Stat. § 163.150(1)(c) (2005) (enumerating mitigating factors; requiring “no” verdict if at least one juror finds sentence less than death is justified).

Or. Rev. Stat. § 163.150(2) (2005) (requiring life sentence if no unanimous jury verdict reached).

When a defendant receives a capital sentence, the judgment of conviction and the sentence receive automatic direct review by the Oregon Supreme Court. The trial court clerk commences the review by serving statutorily mandated papers on the Supreme Court Administrator. Court proceedings are transcribed and forwarded to the supreme court. However, jury selection proceedings are not part of the appellate record unless requested by a party upon a showing of good cause. Death penalty cases take priority over other supreme court cases.

Section 138.012 of the Oregon Revised Statutes provides procedures for resentencing when a death sentence is set aside. At the election of the state, the trial court sentences the defendant to life or impanels a jury to determine if the defendant should be sentenced to death, life imprisonment, or life imprisonment without release.

State v. Moore, 324 Or. 396, 927 P.2d 1073 (1996) (holding that fourth sentencing question, which vests jury with discretion to impose death sentence and contains no burden of proof, does not unconstitutionally preclude meaningful appellate review).

State v. Quinn, 289 Or. 727, 618 P.2d 412 (1980) (holding automatic review is sole direct review in capital cases).

Or. Rev. Stat. § 138.012 (2005) (providing direct and automatic review for capital cases; defining procedure for resentencing after remand).

Or. R. App. P. 12.10(1) (providing procedure for automatic supreme court review of death cases).

The legislature enacted Oregon’s Post-Conviction Hearing Act to replace the multitude of common law remedies that were available to challenge the lawfulness of criminal convictions. The Act replaces all postconviction collateral remedies except habeas corpus.

Or. Rev. Stat. § 138.540(1) (2005) (providing exclusive means for challenging lawfulness of criminal judgment or proceedings; replacing, with the exception of habeas corpus, all common law postconviction remedies).

A defendant may seek postconviction relief under Oregon’s Post-Conviction Hearing Act, codified at Oregon Revised Statutes §§ 138.510–138.680. This relief is not available if direct appellate review of the sentence or the conviction is pending. 

For conviction or appeals becoming final after August 5, 1989, the petition must be filed within two years of either the trial judgment or the date that the state supreme court’s automatic review is final. The 1993 legislature set a one-year time period in which to file petitions for convictions and appeals which became final prior to August 5, 1989. Grounds for relief under the Act are: (1) federal or state constitutional violations at trial and on appeal, (2) lack of trial court jurisdiction, (3) illegal or unconstitutional sentence, and (4) unconstitutional charging statute.

The postconviction statute limits standing to the convicted criminal defendant, who may waive the right to file. Although the Oregon Supreme Court held that the statute does not recognize the right of a third party or “next-friend” to file such a claim, see Bryant v. Thompson, 324 Or. 141, 922 P.2d 1219 (1996), the 1999 legislature enacted law providing for next friend representation. However, the court must personally serve the defendant with copies of all documents filed in a next friend petition proceeding.

The postconviction relief petition is filed in the circuit court in the jurisdiction where the petitioner is imprisoned but can be transferred to the circuit court in the jurisdiction where the conviction occurred. The state responds to the petition by demurrer, answer, or motion within thirty days unless the court grants an extension. After the state responds, if the petition states a ground for relief, the court conducts a hearing on the merits. A petitioner has a right to be present at any hearing unless the state demurs or the hearing involves only issues of law. The capital inmate has the burden of proving the contents of the petition by a preponderance of the evidence. 

The failure of a petitioner to seek appellate review does not preclude relief under the postconviction relief act. However, a petitioner waives any grounds that could have been raised on appeal unless the petitioner did not have counsel on appeal. Finally, the petitioner must raise all known grounds for relief available in the original or amended petition for postconviction relief. The petitioner waives any grounds not raised in the original petition unless petitioner shows that the grounds could not reasonably have been raised in the first petition.

Wallis v. Baldwin, 152 Or. App. 295, 954 P.2d 192 (holding one-year limitation period without escape clause constitutional on pre-1989 convictions), review denied, 327 Or. 174, 966 P.2d 218 (1998).

Wright v. Thompson, 324 Or. 153, 922 P.2d 1224 (1996) (denying third-party-counsel standing to litigate).

Bryant v. Thompson, 324 Or. 141, 922 P.2d 1219 (1996) (ruling no next-friend standing in postconviction death penalty case).

Page v. Cupp, 78 Or. App. 520, 717 P. 2d 1183 (holding defendant required to raise all grounds for relief available in original or amended petition for postconviction relief), review denied, 301 Or. 338, 722 P.2d 737 (1986).

Or. Rev. Stat. § 137.482 (2005) (providing for personal service to defendant of all documents in a § 138.510(2) proceeding).

Or. Rev. Stat. § 138.510(3) (2005) (providing two-year deadline for filing postconviction petition).

Or. Rev. Stat. § 138.540 (2005) (limiting postconviction relief to challenging lawfulness of judgment or conviction).

Certain collateral relief is also available by petition for a writ of habeas corpus. Habeas corpus is available for challenging confinement on grounds other than the lawfulness of the judgment or the grounds upon which it is based; therefore, it is rarely sought in death penalty cases. Grounds for filing a habeas petition are statutorily limited to matters such as revocation of parole, completion of service of the sentence imposed, and conditions of confinement.

Bedell v. Schiedler, 307 Or. 562, 770 P.2d 909 (1989) (providing comprehensive discussion of Oregon’s habeas procedure).

Or. Rev. Stat. § 34.330 (2005) (providing that relief available under postconviction petition may not be sought under habeas corpus).

Or. Rev. Stat. § 34.360 (2005) (setting forth contents of petition challenging conditions of confinement).

Either party may appeal to the court of appeals within thirty days after the entry of the final judgment on a postconviction petition. The scope of review is the same as in appeals for other criminal actions except that the trial court may provide that the transcript contain only the evidence relevant to the issues on appeal. Also, there is no “escape hatch” provision for an untimely appeal. The scope of review is limited to questions of law appearing on the record, and the appellate court is not authorized to examine disputed questions of fact.

The court of appeals may dismiss the appeal without oral argument or submission of briefs if it finds that the appeal presents no substantial question of law. Such a dismissal constitutes a decision on the merits of the appeal. A decision on habeas corpus may be appealed pursuant to Oregon Revised Statutes § 34.710.

Hartzog v. Keeney, 304 Or. 57, 742 P.2d 600 (1987) (holding neither court of appeals nor supreme court may try questions of fact on appeal in postconviction proceeding). 

Alcorn v. Gladden, 237 Or. 106, 390 P.2d 625 (1964) (holding trial court findings of fact in postconviction proceeding are conclusive and supreme court not authorized to reexamine disputed questions of fact, citing §138.650).

Postconviction relief is not available until completion of direct appellate review in capital cases. Any grounds for relief that could reasonably have been asserted in the direct appellate review may not later be asserted in a postconviction action unless the petitioner was not represented on appeal. Section 138.550(1) of the Oregon Revised Statutes provides that the failure of petitioner to seek appellate review or to preserve an issue at trial does not preclude postconviction review of the issue. 

Any known ground for relief that is not asserted in the original or amended petition for postconviction relief is deemed waived and may not be asserted in subsequent postconviction petitions, unless petitioner shows that the grounds could not reasonably have been raised in the first petition.

Or. Rev. Stat. § 138.540 (2005) (providing when postconviction petition may be filed; availability of relief).

Or. Rev. Stat. § 138.550(1) (2005) (providing that availability of relief not precluded by failure to appeal or failure to raise issue at trial).

Or. Rev. Stat. § 138.550(2) (2005) (providing waiver of claims that reasonably could have been asserted in direct review).

Or. Rev. Stat. § 138.550(3) (2005) (providing waiver of claims that reasonably could have been asserted in earlier postconviction petition).

The trial court issues a death warrant upon a hearing after the supreme court’s direct review of the sentence. The defendant must be present at the hearing. If the defendant wishes to waive counsel, the court is statutorily directed to determine whether the waiver is constitutional. At the hearing, the court makes a finding as to the defendant’s competency to be executed and advises the defendant of the right to pursue certiorari to the Supreme Court, state postconviction and federal habeas. The trial court then issues a death warrant to be delivered to the superintendent of the correctional institution. The court is required to personally serve the defendant with all papers filed in a death warrant proceeding, even if the defendant is represented by counsel. The trial court’s orders resulting from the death warrant hearing are not appealable. 

Oregon’s method of execution is lethal injection. In 2001, the legislature amended the statute to provide that representatives of the media may be invited to witness an execution.

Oregon Newspaper Publishers Ass’n v. Oregon Dep’t of Corrections, 329 Or. 115, 988 P.2d 359 (1999) (holding limited access rules as to executions promulgated by Oregon Department of Corrections invalid because they limit too severely activities witnesses may see and holding that nondisclosure rules promulgated by the department of corrections invalid to extent they purport to place limits on expression rights of persons who are granted right by statute to be present at executions).

Or. Rev. Stat. § 137.463 (2005) (providing for death warrant hearing and delivery of warrant to prison; providing for no appeal of trial court order).

Or. Rev. Stat. § 137.473(1) (2005) (providing lethal injection as method of execution; providing who may witness execution).

Or. Rev. Stat. § 137.476 (2005) (providing that inflicting lethal injection does not constitute practicing medicine).

Or. Rev. Stat. § 137.482 (2005) (providing personal service of documents in death warrant hearing).

The initial death warrant is issued after the supreme court affirms the judgment and sentence on automatic review. See “Executions,” supra. However, the death sentence is automatically stayed for 90 days and, if the defendant files a petition for certiorari, the sentence is further stayed until the Supreme Court rules on the petition.

Once the Oregon Supreme Court’s review is final, the death warrant is again automatically stayed for 30 days to provide the defendant the opportunity to file a notice of intent to file a postconviction review petition. If a notice of intent is filed and the defendant files a postconviction petition within 90 days, the death warrant is stayed until the postconviction petition is finally resolved. If the petition is not filed within 90 days following the notice of intent filing, the stay of execution will continue provided the defendant demonstrates to the circuit court that progress is being made in the preparation of the petition.

Or. Rev. Stat. § 138.686 (2005) (providing stays of execution to file petition for certiorari and to file state postconviction petition).

The state constitution provides that the governor shall have the power to grant reprieves, commutations, and pardons for all offenses except treason. The governor’s discretion is without limitation, except that the governor must exercise it in good faith. 

The applicant must serve an application for clemency on the district attorney, the state board of parole and postprison supervision, and the director of the department of corrections. These agencies must provide the governor with all information and records relevant to the application, including, but not limited to, photos of the victim, statements by the victim’s family members, the autopsy report, and a statement by the district attorney.

After receiving the application, the governor cannot grant a request for clemency for at least thirty days. If the governor does not act upon the request within 180 days of receipt, the request lapses. The governor must report each reprieve, commutation, or pardon to the Oregon Legislative Assembly and include a statement of particulars for each case.

Delaney v. Shobe, 235 F. Supp. 662 (D. Or. 1964) (holding governor’s discretion is without limitation, except that it must be exercised in good faith).

Or. Const. art. V, § 14 (providing for reprieves, commutations, pardons; power of governor).

Or. Rev. Stat. § 144.649 (2005) (formerly § 144.640) (providing governor power to grant reprieves).

Or. Rev. Stat. § 144.650(4) (2005) (providing that governor must act on clemency request between thirty and 180 days of receipt).