Missouri must get its death penalty right
The Kansas City Star
Over the past two years, our team of judges, lawyers, former prosecutors, defense attorneys and law professors undertook the most comprehensive examination of the death penalty ever conducted in Missouri. While members of our team have varied opinions on capital punishment, we did not consider whether Missouri should retain the death penalty. Our 400-page report, sponsored by the American Bar Association and released earlier this month, makes a number of recommendations on the administration of the death penalty in Missouri to ensure fairness and to reduce, to the extent possible, the risk of executing the innocent. Regardless of one’s views on capital punishment, we can all agree that we must get it right every time.
Our comprehensive analysis and recommendations for reform address all stages of the process, including the investigation and prosecution of capital cases, appeals, and clemency proceedings.
Our study finds that several persons in Missouri have been wrongfully convicted of murder and other serious crimes due to eyewitness misidentifications, false confessions and untruthful jailhouse informant testimony. Studies demonstrate that certain ways of conducting police lineups and showups significantly reduce the risk of eyewitness misidentifications, and Missouri should require law enforcement agencies to adopt these best practices. To enhance the reliability of confessions, Missouri should amend its interrogation recording statute to require officers, except in emergency circumstances, to video record all custodial interrogations of persons suspected of committing or attempting murder.
Moreover, Missouri does not require law enforcement to preserve biological evidence in a capital case for as long as the inmate remains incarcerated. Innocent inmates may not be able to prove their innocence if evidence in their case is missing or destroyed. These are preventable miscarriages of justice, and we recommend fixes to guard against wrongful convictions and to ensure that evidence is properly maintained.
Some simple trial reforms can address juror confusion. A study of Missouri capital jurors found significant misunderstanding regarding the law and the meaning of a life sentence without parole. Among those asked how long an offender would remain incarcerated upon receiving a life sentence without parole, their median estimate was twenty years. The truth is that life without parole effectively means the offender will die in prison, and jury instructions should convey that fact.
Furthermore, Missouri’s death penalty statute should be amended. According to the U.S. Supreme Court, the Constitution requires that the death penalty be reserved for a “narrow category” of the most culpable murderers to ensure that it is applied in a rational, non-arbitrary manner. Under Missouri’s current statute, however, the aggravating circumstances—the circumstances that make a case death penalty-eligible—are so broad that virtually any murder case could qualify for the death penalty. These circumstances should be revised to provide a meaningful basis for distinguishing those who are eligible to receive the death penalty and who are not.
While there are problems with Missouri’s death penalty system, we found areas of strength. For instance, Missouri has established a public defender system that represents most capital defendants. A statewide entity dedicated to the representation of capital defendants and death row inmates helps to ensure the fairness of death penalty proceedings. Also, our legislature, organized bar, and other interested parties thoughtfully evaluate and debate the merits of Missouri’s judicial selection process, and the Missouri Bar is committed to educating the public on the importance of an impartial judiciary.
Our Missouri Death Penalty Assessment Team took its job very seriously, and began its investigation with no preconceived notions about the report’s outcome. Members were Attorney Douglas Copland (St. Louis), former prosecutor Dee Joyce-Hayes (St. Louis), Judge Nanette K. Laughrey (Columbia), Judge Stephen N. Limbaugh, Jr. (Cape Girardeau), law professor Paul Litton (Columbia), Judge Harold L. Lowenstein (Kansas City), law professor Stephen C. Thaman (St. Louis) and law professor Rodney J. Uphoff (Columbia). Even with different views on the death penalty, we unanimously approved the report and strongly encourage adoption of the recommendations found therein.
Strong opinions on both sides of the death penalty too often prevent thoughtful, fact-based dialog on the issue. With the release of this extensive study, we hope that Missourians of all viewpoints can agree that, as former ABA President Jack Curtin once said, “A system that takes life must first give justice.”
*Douglas A. Copeland, of the St. Louis firm Copeland Thompson Farris, is a former president of the Missouri Bar. Harold L. Lowenstein is a retired judge in the Missouri Court of Appeals, Western District. Paul Litton is an associate professor of law at the University of Missouri School of Law, Columbia. *