Pro-death arguments fail on facts.

Byline: WILLIAM LONG For The Register-Guard

THE TWIN PILLARS of Clatsop County District Attorney Josh Marquis' defense of the death penalty (Register-Guard, Feb. 28) are that the people support it and that it is administered in a fair and dispassionate manner.

The linchpin of Marquis' argument, however, is that the death penalty is reserved for the "worst of the worst" in our society, and that the judicial system fairly administers this ultimate punishment to the worst of the worst. Using this logic, the people who are in line for impending execution ought to be the worst of the worst.

From Oregon's recent (since 1984) experience with the death penalty, nothing could be further from the truth.

The "worst of the worst" serial murderer in Oregon's history is legally further away from death today than when he was first sentenced to death by a Clackamas County jury in 1989. A brief review of his case will show that the latest attempt by pro-death penalty forces to salvage the penalty is nothing more than a rhetorical flourish that founders on the facts.

Dayton Leroy Rogers viciously tortured and murdered seven women in the spring and summer of 1987. A Clackamas County jury, ironically consisting of 12 women, unanimously condemned him to death in May 1989.

Under Oregon law, such a decision must be directly reviewed by the Oregon Supreme Court. The court reviewed the decision and found error and remanded the decision for a new penalty phase trial in 1992. In mid-1994 a new Clackamas County jury reaffirmed its decision.

Because of a hitch with the interpretation of Ballot Measure 11, the 1994 initiative that lengthened prison terms for a number of crimes, all death penalty cases were put in abeyance in Oregon. Rogers' case did not return to the Oregon Supreme Court until 1999.

In 2000, the court remanded it again to Clackamas County because of another sentencing error. That case is scheduled to be considered in the summer of 2002.

In the meantime, a writ of mandamus will soon be submitted in his case to the Oregon Supreme Court because of some decisions made by the Clackamas County Circuit Court in pretrial motions in this round. Further delay is possible.

Rogers probably will be sentenced again to death - perhaps this year, perhaps next year. The Supreme Court must again review his sentence of death. This will take at least three or four years.

Once the Supreme Court has affirmed his sentence, optimistically by 2006 or 2007, Rogers will only then have passed through the first of 10 steps of appeals open to him. The remainder of his nine steps can take anywhere from 10 to 17 years, if everything runs "smoothly."

Dayton Leroy Rogers was born in 1953. We may not be able to execute him until his 70th birthday, if he has not already died in prison of old age or infirmity. It will have cost us millions of dollars to get to that point. The execution, if it ever takes place, will occur about 35 years after his crimes, at the earliest.

Meanwhile, many other men whose crimes are ghastly but not nearly as cruel as Rogers', will be facing lethal injection in Oregon.

The claim that the death penalty is being fairly administered to the worst of the worst in Oregon would be laughable if it were not so seriously and fatally flawed.

William Long is an attorney with Stoel Rives LLP in Portland and the author of "A Tortured History: The Story of Capital Punishment in Oregon." An expanded version of this column will appear in the April 2002 edition of the Oregon State Bar Bulletin. Before joining Stoel Rives, Long was a professor of religion at Reed College, an editorial writer for The Oregonian, a pastor at Westminister Presbyterian Church in Portland and a professor of history and government at Sterling College in Sterling, Kan.