Sept. 6, 1996, was one of those days that make tourists want to stay in Oregon forever. The air was warm as birth, the cerulean sky cloudless. The leaves revealed cooling days that, just getting out of my car, I had not yet noticed. It was a lovely scene, but the looming structure in front of me was unmistakably a prison.

When I scheduled my appointment at the Oregon State Penitentiary (OSP) I did not know that my visit would coincide with the execution of serial killer Douglas Franklin Wright. The first person to be executed in Oregon by lethal injection, and the first person to be executed by any means since 1962, Wright had withdrawn his appeals, essentially volunteering to die.

I had just begun working with defense teams on capital murder cases. The client I was about to meet was already serving a term for drug charges when he was indicted for capital murder. This was my first time meeting an OSP inmate, and Wright’s pending execution compounded my nervousness.

A prison guard led me into the private interview room where I met a tall attractive man, who somehow made his prison outfit look like a tailored suit. After a brief introduction, he handed me a form with a box that inmates could check if they wanted to speak with the prison psychologist about Wright’s execution.

Read more: Q&A with Ellen Rogers

“Why would any inmate meet with this man? Share my feelings about Doug’s execution with a psychologist who’s part of the system that killed him? Not in this lifetime,” he said.  He informed me that inmates facing execution or awaiting trial on a death penalty don’t discuss executions, botched, or smoothly carried out, with anyone. Certainly not with a person who worked for the prison. Reacting to the execution would be a sign of weakness. “I choose to act as though this isn’t happening.”

This sad conversation was one that motivated me over my 27-year career as a mitigation investigator working on death penalty cases. I conducted interviews, gathered records, and developed reports used in defense of 45 people, each charged with capital murder.

It is arbitrary and abhorrent that ultimate punishment be determined by whoever happens to be in office at the time. A death sentence should not be a whimsical ruling based on the political climate of the day.

Today, I panic imagining my life without murder. What can possibly replace it?

These days, I am trying to disentangle the tendrils that bound me to murder; I step away, then sidle back. My bookcases are crammed with titles about the death penalty. During my career I read everything written by the big names in the field. Yet, in spite of my desire to take a break from murder, I was enticed by a new book, “A Descending Spiral: Exposing the Death Penalty in 12 Essays.”

Marc Bookman is the Bruce Springsteen of death penalty mitigation. In that world, not knowing Bookman’s name would be like a rocker asking, “Bruce who?” Bookman is co-founder and executive director of the Atlantic Center for Capital Representation and an internationally recognized expert in the field of capital litigation. A highly sought-after speaker, he has been educating audiences for years. After essays in The Atlantic, Mother Jones, VICE and Slate, on capital litigation "A Descending Spiral" is his first book. I am grateful to have read it.

Bookman writes, “Capital defense is not solitary work. To do it correctly requires a team of investigators, assorted experts, and most crucially, mitigation specialists.” Right away, I admire any lawyer who acknowledges his team, and Bookman routinely appreciates and credits others for doing the arduous work required to defend a person charged with murder.

More important, I can’t imagine anyone reading this book and still maintaining that the death penalty is properly and equally applied. Bookman directly criticizes egregious errors made by judges, prosecuting attorneys and defense attorneys. He eloquently puts the U.S. criminal justice system on trial and convicts them of everything from barbarism, bigotry, criminal malfeasance and witness tampering. He understands that problems with capital punishment go far beyond unfair legal representation. He identifies problems with concise language and disturbing examples.

The twelve essays collected here are gleaned from six southern and eastern states. Since Bookman resides in Philadelphia, the states from which he cites are relatively close by. But similar injustices occur in every single state that has the death penalty.

The numbers: 23 states have no death penalty, 27 states do have the death penalty, and three of those — Pennsylvania, California and Oregon — currently have a gubernatorial moratorium. This means a governor exercises his or her authority to stop all executions in the state for the remainder of their term.

In 2011, Gov. John Kitzhaber declared a moratorium on executions saying, “I refuse to be a part of this compromised and inequitable system any longer.” His successor, Gov. Kate Brown, has kept the moratorium in effect during both her terms. However, today’s moratorium may not continue beyond Brown’s term which, due to term limits, expires this year.

Many people in Oregon do not even know the state has the death penalty, nor its history. Abolished in 1964, it was restored in 1978 but the initiative petition was so badly worded that it was struck down by the Oregon Supreme Court in January 1981. Following several heinous murders, and pressure from the victims’ rights movement, the death penalty was reinstated in 1984. Death penalty experts describe two types of capital statutes, a Model Penal Code version and a Texas version. The former relies on a jury weighing mitigating and aggravating factors, while the latter requires the jury to evaluate ‘future dangerousness.’ Despite Oregon’s reputation as a progressive state, it was the only state other than Texas to adopt that Texas-style statute, back in the eighties.

In 1989 the U.S. Supreme Court ruled that a jury must be able to take into consideration and give “reasoned moral response” to evidence that the defendant might bring in mitigation of a death sentence. Following that ruling, the Oregon Supreme Court vacated, between 1990 and 1992, the sentences of the 23 men sentenced to death under the flawed statute. These inmates were remanded to circuit courts for new sentencing hearings where, with few exceptions, the men received sentences of life imprisonment.

In 2019, the Oregon State Legislature passed a new law, SB 1013, that narrowly limits the crimes for which the death penalty may even be imposed.

Consider some facts. In 2021, Mississippi re-started executions after a nine-year hiatus, and Nevada held hearings to determine if a firing squad is a less painful method of execution than lethal injection. Drug companies have made it clear that they don’t want states using their products to carry out death sentences. They’ve imposed strict limits on who can buy the drugs used for lethal injections, asked states to return some chemicals and, in one case, stopped making a drug to keep it out of the nation’s death chambers. Meanwhile, states continue to tinker with the machinery of death.

As of Oct. 2, 2021, the last time data was compiled, the Innocence Database maintained by the Death Penalty Information Center shows at least 186 exonerations of prisoners on death row since 1973. This statistic does not count individuals found to be innocent after they were executed. For every 10 people who have been executed since the death penalty was reinstated in the United States, one person has been set free.   

In 2020, under former President Donald Trump, the federal prison system carried out its first executions in seventeen years. An unprecedented 13 federal killings were imposed by the Trump administration, six of which were carried out in the last days of his presidency.

Lisa Montgomery was executed during the final week of the Trump administration, even though U.S. District Judge Patrick Hanlon had granted her a stay of execution pending a determination as to whether she was too mentally ill to be executed. An appellate court reversed that decision, paving the way for the execution to proceed.

Those 13 executions exceeded the number of federal executions in the combined 56 years previous to Trump’s 2017 inauguration. For myself and my colleagues, it came as a relief that President Joe Biden opposes the death penalty.

It is arbitrary and abhorrent that ultimate punishment be determined by whoever happens to be in office at the time. A death sentence should not be a whimsical ruling based on the political climate of the day. Abolishing Oregon’s death penalty at the state level is a start, but it’s not the solution. The death penalty needs to be abolished at the federal level.

Bookman poignantly wrote in his afterword, “The essays in this collection illuminate the misconduct, the biases and racism, the injustice of capital punishment; it is long past time to reckon with them.”

I will miss working with the death penalty community. The reader may not understand, as Bookman clearly would, how much I will miss my clients awaiting trial, serving true life sentences, or sitting on death row awaiting outcomes of their appeals. You don’t know them like I know them. It’s personal.

I have had the privilege of working with some of the most brilliant, kindest, most hardworking smart-asses imaginable. When I shut my last yellow legal pad and walk away from this life-altering work, I will be grateful that Marc Bookman, and others with his passion for death penalty litigation, will continue to fight for the abolishment of this flawed, antiquated and inhumane form of revenge. 

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