Missourians for Alternatives to the Death Penalty 6320 Brookside Plaza, Suite 185, Kansas City, MO 64113 Tel: 816-931-4177 www.madpmo.org

Missouri’s Death Penalty in 2016: The Year in Review

A year-end compilation of death penalty data for the state of Missouri.

Table of Contents I. Executive Summary 2016 Highlights Days Ahead Budget Shortfall II. Missouri Death Row Current Missouri Death Row Demographics Race and Gender of Victims III. Missouri Executions IV. Capital Prosecutions V. Cost The Numbers Elements of Cost Costs in Other States Where Does the Money Come From? Reactions of Fiscal Conservatives VI. Public Safety VII. MADP Representatives

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2016 ANNUAL REPORT

I. Executive Summary 2016 Highlights • 1 execution in 2016. This is a significant decline from the 6 executions that took place in 2015, and the ten that took

place in 2014.

• No new death sentences handed down in Missouri in 2016. This is the third consecutive year without a new death sentence in Missouri. Despite approximately 30 ongoing capital prosecutions, Missouri juries have not demonstrated a desire for the death penalty, when faced with the possibility in a direct fashion.

• Missouri Conservatives Concerned About the Death Penalty formed to address concerns related to cost, as well as large government bureaucracies without accountability, associated with capital punishment. This group worked closely with Republican leadership in raising new voices against capital punishment.

• Based on his Catholic respect for life, in the 2016 legislative session, (R) Sen. Paul Wieland sponsored a Senate bill (S.B. 816) aimed at repealing the death penalty and establishing life without parole as the maximum penalty for murder in Missouri. Passed by a committee with Republican leadership, the bill made it to the senate floor for full debate. The voices of conservative youth and supporters of fiscal responsibility played a critical role in securing momentum for this bill. It marked the first time since 1974 that the full Senate considered a bill to abolish the death penalty.

• The Legislative Black Caucus and the NAACP called for the passage of the “Racial Justice Act.” (S.B. 758). The measure would require the Missouri Supreme Court, in performing a proportionality review, to consider whether race played a significant factor in the decision to seek or impose the death penalty. Where racial bias is found, the measure directs judges to commute an individual’s death sentence to life without parole. (February 22, 2016). Leaders tied racial bias in the application of the death penalty to larger challenges with the criminal justice system. NAACP State President Rod Chapel observed “nearly 77% of the individuals executed in Missouri were convicted of murdering a White victim, even though African-Americans comprised 60% of all homicide victims in the state over the past four decades.”

• Kim Gardner was elected as the St. Louis Circuit Prosecutor, with jurisdiction over St. Louis City. She was elected over Prosecutor Jennifer Joyce’s hand-picked successor, Mary Pat Carl, through a campaign predicated on achieving a culture change within the St. Louis City’s prosecutor’s office. She is the first African-American to assume this office, and her election was supported by civil rights activists who voiced concerns during the Ferguson protests. In addition, she represents a fundamental change from the history of the office, which housed Prosecutor Nels Moss, who was identified in Harvard Law School’s Fair Punishment Project publication, America’s Deadliest Prosecutors, for his 1

ethical misconduct in hiding evidence and condoning police brutality during the Reginald Clemons case. Prior to 2 3

Gardner’s election, NAACP leader Elston McCowan identified the lack of diversity in prosecution offices as a special concern, stating “The lack of racial diversity among Missouri prosecutors—those choosing whether to seek the death penalty is deeply troubling. Of the state’s 115 prosecutors, 99% are White. That level of institutional racism undermines potential public support and helps explain why Blacks disproportionately are sentenced to death and executed.” Kim Gardner’s election accords with the national trend of replacing prosecutors who overproduced the death penalty with reform prosecutors who are likely to use it more sparingly. These elections took place in Harris County, Texas (home to Houston); Duval County, Florida (home to Jacksonville); Hillsborough County, Florida (home to Tampa); and Jefferson County, Alabama (home to Birmingham). Also, Caddo Parish, Louisiana, saw the election of its first African American prosecutor, James Stewart, who countered the legacy of Shreveport District Attorney Dale Cox. Cox was widely known for a media interview in which he stated that Louisiana should “kill more people.”

America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty [PDF]1

King, C. (2012). Prosecutor in Clemons case tampered with police report, withheld evidence. Retrieved December 16, 2016, from 2

http://www.stlamerican.com/news/local_news/prosecutor-in-clemons-case-tampered-with-police-report-withheld-evidence/article_7d98c9d6-0191-11e2-b58b-001a4bcf887a.html State ex rel. Reginald Clemons, petitioner v. Steve Larkin, Superintendent, Respondent, Missouri Supreme Court, No. SC90197 3

(November 24, 2015)

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2016 ANNUAL REPORT

Days Ahead The Missouri Supreme Court has issued an execution order for Mark Christeson, setting his execution date as January 31, 2017, despite the existence of ongoing appeals to the 8th Circuit. The case highlights the financial costs associated with the death penalty and associated questions of fundamental guarantees of effective representation. Previously, on January 20, 2015, the U.S. Supreme Court stayed Christeson’s scheduled execution based on the ineffectiveness of his appointed counsel. The Court held that his attorneys abandoned him, by failing to communicate with him and missing a critical habeas appeal deadline. Christeson v. Roper, 574 U.S.____ (2015). Too poor to afford his own counsel, Mark relied on counsel appointed by a federal judge in western Missouri. Typically, contracted attorneys receive minimal amounts for representation in a capital case. (In the past, roughly $12,000 for trial work). On remand from the U.S. Supreme Court decision, new attorneys sought $161,000 in funding to secure experts to testify to Christeson’s mental impairments. Without explanation, the district court only provided $10,000.

Across the country, appellate costs often range in the hundreds of thousands of dollars. Attorneys from three leading criminal defense organizations and the MacArthur Justice Center in St. Louis are seeking to overturn the decision denying funding, arguing that it goes to the heart of the right to counsel. The imminent execution deadline places those 4

issues front and center as Missouri enters 2017.

Budget Shortfall As Missouri’s revenue has fallen short of projections, it means that Governor-elect, Eric Greitens, will immediately face a fiscal crisis when he takes office January 9, 2017, as well as an imminent execution. Missouri has accumulated $3,513,379,578 in debt, creating one of the most challenging budget cycles many have seen in the state. Missouri’s $27 5

billion budget for the 2016 fiscal year overestimated growth in state tax revenues and included significant expenditures on corrections and judiciary costs.

Incumbent Governor Jay Nixon’s proposed 2017 budget included over $1 billion on corrections, public safety and judicial matters (amounting to 11% of the budget). Governor-elect Greitens will need to determine how to best achieve 6

public safety with the most cost-effective use of state resources.

Given the centrality of cost to the opening of 2017 and Missouri’s choices related to the death penalty, this annual report will provide a deep investigation of associated issues. It will begin with the current landscape of capital punishment in Missouri, including an examination of Missouri’s death row, associated demographics, current capital prosecutions, the 2016 execution of Earl Forest, and the national and state trends away from the use of capital punishment.

http://www.nacdl.org/christeson_v_roper4

http://oa.mo.gov/sites/default/files/Debt%20Info%20for%20Web%20Page%20July%202016%20-%20Revised.pdf5

THE MISSOURI BUDGET FISCAL YEAR 2017 [PDF]. The recommended operating budget for 2017 lists Corrections & Public Safety 6

with a $751,162,123, or 8% distribution and Judiciary with $271,317,852, or 3%.

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2016 ANNUAL REPORT

II. Missouri Death Row Current Missouri Death Row Demographics The NAACP Legal Defense Funds’ Criminal Justice report titled Death Row USA, indicates that there are currently 26 inmates on Missouri’s death row, the lowest number in over a decade. The consistent decline in Missouri’s death row population over time reveals a diminished preference for use of capital punishment. This is reinforced by the absence of any new death sentences in 2014, 2015, and 2016.

A demographic breakdown of Missouri’s death row indicates that it currently houses 19 White males (65%) and 9 African-Americans males (35%). U.S. Census data shows, however, that Missouri has a population that is 83.3% White and 11.8% African-American. The overrepresentation of African-Americans on death row raises questions of racial bias in the administration of justice.

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65.4%

34.6%

Black White Latino/Latina Native AmericanAsian Unknown

Mis

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05

101520253035404550556065707580

Year

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

8075

71 69

57 5551 51 50 52 50

47 48 48

42

3126

2016 ANNUAL REPORT

Extensive research has shown that the criminal justice system seeks the harshest penalties in cases involving White female victims. Homicides involving White female victims are nearly 14 times more likely to result in an execution than those involving African-American male victims. 7

Race and Gender of Victims

These figures demonstrate the fact that Black males are severely underrepresented among victims in execution cases, considering that they constitute a majority of all homicide victims statewide.

Of the 87 men who have been executed in Missouri since 1976, 52 were White males, 34 were Black males, and one was a Native American male. The table below shows the relevant data.

One Native American male has been executed in Missouri; his victim was a White female. No Latino or Asian-American inmates have been executed in the state and only a single White person has been executed in Missouri for the crime of killing a Black person. In contrast, of the 34 Black men who were executed in Missouri, half of their victims have been White.

Number of Executions Racial Combination (Defendant/Victim)

87 51 W/W (59%) 17 B/W (20%) 17 B/B (20%) 1 N/W (0.5%) 1 W/B (0.5%)

https://www.unc.edu/~fbaum/articles/missouriexecutions.2015.pdf7

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12%10.8%

24.4%

52.4%

Black Male White MaleBlack Female White FemaleOther Race

All MO Homicides 1976 - 1999Based on all homicides from 1976 through 1999 as

reported by US DOJ.

37%

7.4%43.5%

12.0%

Black Male White MaleBlack Female White FemaleOther Race

All MO Executions 1976 - 2014Based on 80 executions from 1976 through 2014, with

108 victims.

2016 ANNUAL REPORT

III. Missouri Executions

In 2014 there were ten executions in Missouri, in 2015 there were six executions, and in 2016 there has been one execution, so far with one scheduled for 2017. Both nationally and in Missouri, the use of the death penalty is in sharp decline.

Missouri’s single execution in 2016 was that of Earl Mitchell Forrest II. He was sentenced to death for killing Michael Wells, Harriet Smith, and Deputy Sharon Joann Barnes in December 2002. Post conviction appeals, and testimony from Dr. Michael Gelbort, a neuropsychologist, indicated that impairments to the frontal portion of Earl’s brain, together with his history of substance abuse, eroded the cognitive tissue devoted to impulse control. Dr. Roswell Lee Evans, a psychiatric pharmacist, also testified that Forrest was in an alcoholic Blackout at the time of the crimes. Governor Jay Nixon denied a clemency request, and the high court refused to grant a stay of execution.

The fact that Missouri’s execution rate dropped to one, down from six last year, has marked a significant trend - the rates of executions in Missouri and nationwide are sharply declining. The number of new death sentences imposed in the U.S. fell from already historic lows in 2015, and executions dropped to their lowest levels in decades. Additionally, public opinion polls revealed this year that a majority of Americans prefer life without parole to the death penalty. Opposition to capital punishment polled higher than any time since 1972. 8

Oliphant, B. (2016). Support for death penalty lowest in more than four decades. from http://www.pewresearch.org/fact-tank/8

2016/09/29/support-for-death-penalty-lowest-in-more-than-four-decades/

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Num

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0

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Year

2010 2011 2012 2013 2014 2015 2016

16

10

2010

20

28

3539

434346

Executions Nationwide Executions in Missouri

Photo by: TheSalemNewsOnline.com

2016 ANNUAL REPORT

IV. Capital Prosecutions Marking a new shift in Missouri’s direction, is the reduction of capital sentences. In 2014, 2015, and 2016 no new capital sentences were handed down in Missouri. While there are currently 31 pending cases where prosecutors are seeking the death penalty, capital sentences are declining overall.

Where prosecutions continue, they are geographically isolated to a few counties, with the majority being focused around St. Louis City.

The graph below, Executions in Missouri 1976-2014, reflects historic patterns, which show the majority of Missouri’s 9

executions from 1976 - 2014 came from just 2.6% of the state’s 114 counties. Missouri’s application of the death penalty has been based on significant geographic factors: it is a mere handful of counties that are acting as the primary source of capital sentences handed down in Missouri.

https://www.unc.edu/~fbaum/articles/missouriexecutions.2015.pdf9

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Mis

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i Cou

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s w

ith A

ctiv

e D

eath

Pen

alty

Cas

es

Barton CountyCole County

Cape Girardeau CountyCrawford County

Dekalb CountyDent County

Dunklin CountyGreene County

Jackson CountyJasper County

Jefferson CountyMontgomery CountyNew Madrid County

Randolph CountyRipley CountyScott County

St. Francois CountySt. Louis City

Wayne CountyWarren County

Number of Active Death Penalty Cases (As of August 2016)

0 1 2 3 4 511

522

111

21111

21

211

31

2016 ANNUAL REPORT

Missouri’s Prosecutors Missouri has 115 elected prosecutors from each of the 114 counties and the City of St. Louis. Of those prosecutors, 98.26% are White, with the overwhelming majority of them being male.

Kim Gardner was elected this year to be the prosecutor for St. Louis City, and will serve as Missouri’s first and only elected African-American female prosecutor.

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20.00%

0.87%

78.26%

0.87%

Non-White Male White Male Non-White FemaleWhite Female

2016 ANNUAL REPORT

V. Cost The Numbers: Missouri While Missouri has never undertaken a full analysis of the cost associated with capital punishment, a preliminary estimate, based on available data, shows the costs are profound. In many cases where the death penalty is sought, it ultimately is never imposed. And even when it is imposed, it is rarely carried out. Yet taxpayers are burdened with the death penalty’s extra costs even in cases where the defendant is not sentenced to death or executed. In Missouri, for instance, from 1989 to July 2016, according to information from capital defense attorneys, there were:

• 604 Missouri cases where death was sought.

• 573 death penalty trials in 27 years (7 defendants died before trial).

• 87 of them got death verdicts and were executed.

• The State Public Defender’s office has indicated that defense costs alone, for a capital trial, amount to roughly $250,000 per case. On average, defense costs, for all other types of cases (including murder and low-level misdemeanors) amounts to $355 per case. (While these figures are not available, prosecution costs will naturally rise, as well, given the extensive proceedings involved in capital litigation.)

That means only 14% of sought capital executions were carried out. The result is that 86% of the time, the same outcome could have been achieved for far less money.

According to these figures, a conservative estimate is that each death penalty trial costs $250,000 more than a non-capital trial in defense costs alone. This means Missouri could have achieved the same outcome without spending $143 million dollars, or $5.3 million dollars per year for 27 years. Those resources could have been invested in public safety measures, as prioritized by those in the field.

Elements of Cost • The death penalty process involves more complicated proceedings due to the fact a life is on the line. Capital cases

involve more lawyers, more witnesses, more experts, a longer jury selection process, more pre-trial motions, an entirely separate trial for sentencing, and countless other expenses – racking up exorbitant costs before any appeal is ever filed. Broken down, additional costs result from:• Far more time is needed to prepare a death case – for both prosecution and defense.• A mitigation investigation/specialist required on capital cases.• The depth of mitigation investigation is significant – as it can take 600-800 hours for pre-trial work.• Many more motions and hearings.• Experts retained as consultants or testifying witnesses.• Lengthy voir dire processes (questionnaires, individual questioning, death qualification).• Sequestered juries in Missouri. • Costs for housing, food, and transport are all required.

• Two phases of trial: guilt/innocence and punishment.• Court costs: pay for judges, clerks, deputies.• Numerous appeals, potentially starting the whole trial process over again at various junctures.• Appeals in death penalty cases include: direct appeals, post-conviction filings, Missouri Supreme Court appeals,

US Supreme Court appeals, federal habeas corpus filings, 8th Circuit appeals.• Execution itself (lethal injection drugs, medication, prison staff, suicide watch, special meal preparations, preparing

the inmate, and accommodating family visits).

• According to a Columbia Law School study, many death penalty trials have been found to have substantial flaws, which has ultimately lead to 68% of cases to be overturned. 10

“A Broken System: Error Rates in Capital Cases, 1973-1995,” Columbia Law School, 2000.10

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2016 ANNUAL REPORT

• When prosecutors continue to seek the death penalty after a death sentence has been overturned, taxpayers have to pay for not just one, but multiple capital trials.

Costs In Other States • While finding the full costs of the death penalty can be difficult, states that have conducted cost analyses found that

death penalty cases are typically up to 10 times more expensive than equivalent non-death penalty cases.

• According to Equal Justice USA, one of the most thorough cost studies conducted in the United States found that a single death sentence in Maryland cost almost $2 million more than a comparable non-death penalty case. Before ending the death penalty, Maryland spent $186 million to carry out just five executions. A similar study revealed that 11

California has spent over $4 billion for the death penalty since 1978. 12

• In one of the most recent cost studies, conducted by Lewis & Clark Law School and Seattle University, they 13

examined the costs of hundreds of aggravated murder and murder cases in Oregon, concluding that “maintaining the death penalty incurs a significant financial burden on Oregon taxpayers.” The researchers found that the average trial and incarceration costs of an Oregon murder case that results in a death penalty are almost double those in a murder case that results in a sentence of life imprisonment or a term of years. It also found:• Excluding state prison costs, cases that result in death sentences may be three to four times more expensive. • The 61 death sentences handed down in Oregon cost taxpayers an average of $2.3 million, including incarceration

costs, while a comparison group of 313 aggravated murder cases cost an average of $1.4 million.• Excluding state prison costs, the difference was even more staggering: $1.1 million for death sentences vs.

$315,159 for other cases. • Death penalty costs were escalating over time, due to constitutionally required processes, from $274,209 in the

1980s to $1,783,148 in the 2000s. • Cost data from local jails, the Oregon Department of Corrections, the Office of Public Defense Services, and the

Department of Justice, provided information on appeals costs. Prosecution costs were not included because district attorney's office budgets were not broken down by time spent on each case. Among the reasons cited for the higher cost in death penalty cases were the requirement for appointment of death-qualified defense lawyers, more pre- and post-trial filings by both prosecutors and the defense, lengthier and more complicated jury selection practices, the two-phase death penalty trial, and more extensive appeals once a death sentence had been imposed.

• A study conducted in North Carolina examined cases in 2005 and 2006 and ultimately found that repealing the death penalty could have saved the state approximately $22 million in just those two years. 14

Where does the money come from for the death penalty? • A Dartmouth College study on the budgetary repercussions of the death penalty found that the costs are dealt with

primarily by increasing taxes and cutting services like police and highway funding, with county budgets bearing the brunt of the burden. 15

• Furthermore, the burden of cost is disproportionately higher on smaller counties. Jasper County, Texas, for instance, raised property taxes by nearly 7% just to pay for a single death penalty case.  Two capital cases forced Jefferson 16

County, Florida, to freeze employee raises and slash the library budget. 17

John Roman et al, “The Cost of the Death Penalty in Maryland”, Urban Institute, 2008.11

Death Penalty Information Center’s summary of Judge Arthur L. Alarcon & Paula M. Mitchell, “Executing the Will of the Voters?: A 12

roadmap to mend or end the California legislature’s multi-billion dollar death penalty debacle.” Kaplan, A., Collins, P., and Mayhew, V. “Oregon's Death Penalty: A Cost Analysis,” November 16, 2016; T. Hernandez, “How much 13

does the Oregon death penalty cost? New study examines 100s of cases,” The Oregonian, November 16, 2016; Press Release, “New Report Calculates Oregon’s Death Penalty Financial Costs,” Lewis & Clark Law School and Seattle University, November 16, 2016.)

“Potential Savings from Abolition of the Death Penalty in North Carolina,” American Law and Economics Review, 2009.14

Baicker, K. “The Budgetary Repercussions Of Capital Convictions,” Dartmouth College and the National Bureau of Economic 15

Research, October 2002. “Prosecuting Death-Penalty Cases Puts Huge Strain On Local Government Finances,” Wall Street Journal, January 9, 2002.16

Scullin, J. “Death Penalty: Is Price Of Justice Too High? States wonder if the extreme punishment is worth the cost,” The 17

Ledger (Florida), December 14, 2003.

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2016 ANNUAL REPORT

Is there a way to make the system cheaper? • Many of the costs attached to capital punishment are set up with the expectation of eliminating the risk of executing

an innocent person. From 1976 to October of 2015, 1,414 individuals were executed in the United States. In the same time frame, 156 individuals were exonerated from death row. So, for every ten executions one person was set free. It has been determined that to speed up the process would only heighten the already real risk of executing an innocent person.• Four individuals have been exonerated from Missouri’s death row: Clarence Dexter (1999), Eric Clemmons (2000),

Joseph Amrine (2003), and Reginald Griffin (2013)• States with the fewest protections and a faster process face exorbitant death penalty costs. In Texas, for example,

the death penalty costs an average of three times more than 40 years in prison at maximum security. 18

Reactions of Fiscal Conservatives

“Executions Cost Texas Millions,” Dallas Morning News, March 8, 199218

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“As a conservative, I celebrated the vote [to repeal the death penalty] as a reflection of our values to be efficient and judicious with taxpayer dollars and to rid our government of programs that don’t work.” -Karen Pfaehler, former Vice-Chair of the Montana State Republican Party, The Missoulian, March 18, 2011

“There’s a long history of the death penalty pushing municipal budgets to the brink of bankruptcy and even leading to tax increases.” -Mark Hyden, “The Cost of Capital Punishment,” Foundation for Economic Education

2016 ANNUAL REPORT

VI. Public Safety Is the Death Penalty a Deterrent? It was found that eighty-eight percent of the country’s top criminologists do not believe that the death penalty acts as a deterrent to homicide, according to one of the most comprehensive studies conducted in the U.S. The study was published in the Northwestern University School of Law’s Journal of Criminal Law and Criminology and is based on a survey of the pre-eminent criminologists in the 19

country. The research did not take into consideration the respondents' personal views on the death penalty, rather, only their views of deterrence based on empirical evidence.

Eighty-seven percent of the expert criminologists believed that abolition of the death penalty would not have any significant effect on murder rates. The authors concluded, “Our survey indicates that the vast majority of the world’s top criminologists believe that the empirical research has revealed the deterrence hypothesis for a myth… [T]he consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.”

Public Safety Expenditures As calculated above, there have been 604 cases in Missouri where a death sentence was sought. In total, there were 573 death penalty trials in 27 years, and 87 received death penalties and were subsequently executed. Broken down then, 14% (87 out of 604) of the cases where the death penalty was sought resulted in an execution. Thus, 86% of all capital cases could have resulted in the same outcome costing far less. Using the conservative estimate that each death penalty trial costs $250,000 more than a non-capital trial costs, it amounts to $143 million dollars Missourians have spent, or $5.3 million dollars per year for 27 years.

With $5.3 million dollars a year, Missouri could test all backlogged/untested rape kits. In May of 2015, the Kansas City Police Department reported it had 1,324 untested rape kits. According to Forensic Magazine, “most experts estimate the cost of testing a kit at over $1,000. If we calculate the cost for testing all backlogged rape kits in Kansas City alone, it 20

would amount to approximately $1,324,000. Other cities also struggle to address rape kit backlogs. By avoiding capital punishment, all kits could be tested. This is a profound example of an alternative investment in public safety.

Similarly, the $5.3 million invested in Missouri’s death penalty each year, could pay for an additional 106 police officer salaries (at $50,000 a year).

Police chiefs nationwide rate the death penalty as one of the most inefficient uses of taxpayer dollars. Surveys show that law enforcement would prefer adding police or reducing drug abuse. 21

Radelet, M., Lacock, T. "Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” 99 Journal of Criminal Law 19

and Criminology 489 (2009) Allocca, S. (2016). The Hidden Cost of the Rape-Kit Backlog. from http://www.forensicmag.com/article/2016/06/hidden-cost-rape-20

kit-backlog “Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis, 2009. Death Penalty Information Center. and “On 21

the Front Line: Law Enforcement Views on the Death Penalty,” Death Penalty Information Center, 1995.

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“In short, the consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.” -M. Radelet, T. Lacock

“Give a law enforcement professional like me that $250 million, and I'll show you how to reduce crime. The death penalty isn't anywhere on my list.” –Police Chief James Abbott, West Orange, New Jersey

2016 ANNUAL REPORT

MADP Representatives

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Staci Pratt Executive Director

Edward Norton Administration

Kate Siska Victim Outreach

Josh Schisler Conservative Outreach