316 Or. 561 - State v. Pratt

How this case has been cited

Cited by 26 later decisions (1 by the Supreme Court) — most recently February 2019 · most notably State v. Lafferty (2001), State v. Montez (1996)

2 federal appellate · 19 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

*584FADELEY, J.,

¶1dissenting.

¶2The Oregon death penalty statute did not meet federal constitutional muster at the time that the homicide in this case occurred, according to the Supreme Court of the United States. That court vacated a death sentence imposed under that statute and remanded the case to this court in Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989).

¶3After Wagner v. Oregon, supra, was decided, this court added 100 words to the 1984 statute in an effort to permit use of the deficient statute to impose death.. See State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley, J., dissenting), and State v. Wagner (II), 309 Or 5, 20, 786 P2d 93 (1990) (Linde, J., dissenting). This court had no authority to do that.1 Only the legislative branch (which in the case of an initiated statute includes the voters) may enact penal laws. See State v. Isom, 313 Or 391, 395, 837 P2d 491 (1992) (“the power of punishment is legislative”).

¶4That being true, the statute is deficient as it applies to the death penalty in this case. Accordingly, life in prison is the penalty supported by the 1984 statute, as enacted, that survives the decision rationale in Wagner v. Oregon, supra. I dissent from the majority’s approval of a sentence other than that authorized by the surviving portion of the Oregon statutory law applicable at the time of the murder in this case.

¶5 ORS 174.010. See, e.g.,Rosentool v. Bonanza Oil and Mine Corp., 221 Or 520, 527, 352 P2d 138 (1960) (legislature would have placed the words “upon proof of a proper purpose” in the statute had it so intended, and this court is precluded from adding the words to the statute).