By Casey Parks
The Oregonian
PORTLAND, Ore. — A Portland judge ruled this year that a double murderer could not be executed for his crimes.
Michael Davis suffers from an intellectual disability, Multnomah County Circuit Judge Michael Greenlick said. His IQ was measured at 61 or 62.
And executing people with intellectual disabilities is unconstitutional, the U.S. Supreme Court ruled in 2002, because it amounts to cruel and unusual punishment.
Despite that ruling, according to a report released Tuesday, most of the inmates on Oregon’s death row are much like Davis. Two-thirds suffer from impaired mental and emotional capacity, Harvard Law School’s Fair Punishment Project found.
More than a quarter of Oregon’s 35 death row inmates have evidence of an intellectual disability or traumatic brain injury. Others endured “devastatingly severe” childhood trauma. Six were younger than 21 when they were arrested.
Oregon’s rate of impaired inmates is on par with states such as Alabama and Texas, the report found. Researchers said they didn’t examine the cause of Oregon’s rate.
One death row inmate, Issac Creed Agee, has a psychotic disorder and suffers from partial fetal alcohol syndrome, visible defects in his corpus callosum and a low IQ, the report said. He has an adaptive functioning equivalent to that of a 71/2-year old.
“We are just not getting the worst of the worst,” said Rob Smith, director of the Fair Punishment Project. “We’re getting the most broken of the broken, the most vulnerable of the vulnerable. Any observer who is looking at how the death penalty is functioning has to conclude that there is no possible way Oregon’s death row represents a restrained, humane or constitutional use of the justice system.”
Oregon has not executed anyone since the 1997. Gov. Kate Brown’s office announced this year that Brown will continue former Gov. John Kitzhaber’s moratorium on executions. The state’s death row prisoners all stay in their cells 23 hours a day.
The Fair Punishment Project began researching Oregon, Smith said, expecting to find a “more progressive, more civilized, more careful” justice system.
The Project had reported on the U.S. counties with the highest execution rates and thought the Pacific Northwest might offer an alternative. Instead, Smith said, researchers found Oregon’s death row inmates have the same, and at times higher, rates of impairments as some southern states.
“You have a little bit of the deep South in Oregon’s death row,” Smith said. “When you have an image of a state as progressive and fair, it should be disturbing that your death penalty looks a lot like Birmingham, Alabama’s.”
Clatsop County District Attorney Joshua Marquis, a national figure in the death penalty debate, called the comparison “deeply offensive.”
Marquis has prosecuted many murder cases and said he agrees people charged with violent crimes tend to come from disadvantaged backgrounds. But, Marquis said, Oregon’s judicial system has rigorous safeguards to ensure those who end up on death row belong there.
“Are they there because they are poor or black? If they are, that’s wrong,” Marquis said. “Or are they there because they committed a deliberate, horrific much-worse-than-average murder? If you look at every person on death row, you will find they have. And it was no snap deliberation by a prosecutor or a jury or appeals court to make that decision.”
Sometimes jurors decide violent criminals are capable of redemption, Marquis said. “Sometimes jurors say, ‘Yeah, they were really young,’ or ‘They were really stoned.’”
Harvard’s report mentions Randy Guzek, an inmate whom Marquis prosecuted three times. The report calls Guzek “a boy who was just one month past his 18th birthday and who appears to have been high on meth at the time of the crime.”
Marquis said he was so upset reading the report, he let out a small shout. He allowed that Guzek had a rough childhood. Guzek’s father was an alcoholic who sexually assaulted his daughters. But Marquis said juries three times considered whether Guzek was capable of redemption. He remains on death row.
“Randy Guzek is the most calculated sociopath I have encountered in 40 years of law enforcement,” Marquis said. “We very, very rarely find people who are this evil.”
Both sides agree: No inmate is likely to be executed under Brown’s watch. Though anti-death-penalty activists may take solace in that, Smith said the uncertainty amounts to torture for inmates.
“It’s tormenting to wake up every day and not know if you’re going to die,” Smith said. “When you’re someone who has a severe mental illness, it’s increasingly hard to understand that circumstance. That is a punishment that goes beyond even the actual sentence.”