Missouri

Missouri

Missouri is Disproportionately Producing Federal Death Sentences Amidst Pattern of Inadequate Representation

Federal capital defendants are disproportionately sentenced to death in Missouri compared to other states, with 14.5% of the 62 prisoners currently on federal death row having been prosecuted in Missouri's federal district courts. By contrast, a DPIC analysis of FBI Uniform Crime Reporting Statistics shows that Missouri accounted for only 2.26% of murders in the United States between 1988, when the current federal death penalty statute was adopted, and 2012. Not surprisingly, an article in The Guardian by David Rose reports that, since the 1990s, the chances that a defendant will be sentenced to death in a Missouri federal court are significantly greater than in other federal jurisdictions. Rose suggests that the questionable performance of defense counsel and repeated failures to investigate and present mitigating evidence relating to the backgrounds and life histories of Missouri federal capital defendants has significantly contributed to that disparity. Though federal funding for defense attorneys is more generous than state funding, Rose says the federal death penalty system shows evidence of the same failures in representation that so often appear in state death penalty cases. Four of the nine prisoners sentenced to death in Missouri were represented by the same lawyer, Frederick Duchardt. In the three cases of Duchardt's clients that have reached the appeals stage, all three raised claims of ineffective assistance of counsel. In each case, Duchardt failed to employ a mitigation specialist, in violation of American Bar Association guidelines. Mitigation specialists investigate a client's background to find evidence that may convince a jury to impose a sentence less than death. Duchardt's clients all suffered serious abuse during their childhoods. One had an IQ of 68, placing him on the threshold of intellectual disability. Another had been diagnosed with psychosis, bipolar disorder, and post-traumatic stress disorder. None of these issues were presented to the jury, a decision Duchardt later claimed was "strategic," but which his client's appeal attorneys argue was a result of failure to prepare or investigate. Professor Sean O'Brien of the University of Missouri Law School, described the appointment of counsel for indigent defendants as a "lottery," saying, "Many defendants lose that lottery, and they get a lawyer more worried more about pleasing the court and the prosecutor than about fighting for the client. Those are the ones who die. When one lawyer produces nearly half the federal death sentences in a state, there’s a problem."

Missouri Execution Pharmacy Calls Sale of Drugs to State 'Political Speech,' Claims First Amendment Right to Secrecy

A pharmacy that has received more than $125,000 in cash payments from Missouri for providing lethal injection drugs that the state has used in 16 executions has argued in a court filing that its identity should remain secret, claiming that selling execution drugs to the state's Department of Corrections is political speech protected by the First Amendment. The supplier's information was requested in a subpoena by Mississippi death row inmates who are challenging that state's execution protocol, and seeking information about other state practices as part of their lawsuit. The pharmacy, which is identified in court documents as "M7," filed a motion stating that its "decision to provide lethal chemicals to the Department was based on M7’s political views on the death penalty, and not based on economic reasons. ...The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights." BuzzFeed News reports that Missouri paid the pharmacy $7,178.88 for two vials of pentobarbital per execution, which it describes as well above market value, amid concerns that the cash payments may have violated federal tax laws. Analyzing M7's claim, Bloomberg News columnist Noah Feldman described the pharmacy's constitutional argument as "deeply flawed." Feldman writes that "there’s an enormous difference between speaking and acting—particularly when that action is a for-profit commercial transaction with the government. ... [I]n a democracy, it’s crucially important for the government to disclose its vendors, both to avoid corruption and to promote transparency." M7 asserted in its filing that releasing its identity could subject the pharmacy to harassment and boycotts, relying on statements from a security consultant, Lawrence Cunningham, whose previous statements about the potential threats to execution drug suppliers have been exposed as unsupported or exaggerated. "The M7 situation helps demonstrate why it’s so dangerous to treat corporations as though they have fundamental constitutional rights while doing business," Feldman writes. "Those basic rights are designed to protect individuals against government power. They aren’t supposed to be used to exempt businesses from regulation or publicity whenever it’s convenient for them."

FBI Documents Show States' Claims of Threats to Execution Drug Suppliers Were Exaggerated

FBI records show that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists are largely unsubstantiated and exaggerated, according to an investigation by BuzzFeed NewsBuzzFeed found that "few concrete examples" of the alleged harassment, intimidation, and physical threats states claim have been made against drug suppliers, and that "the states’ marquee example — in which the FBI allegedly investigated a serious bomb threat sent to a drug supplier — is contradicted by internal FBI documents." Instead, BuzzFeed found, "the real danger to drug suppliers appears to be legal and economic risk, not risk of violence." Texas and Ohio have claimed secrecy was necessary to protect the safety of potential drug suppliers, citing an alleged threat against a disgraced and now defunct Tulsa, Oklahoma pharmacy, The Apothecary Shoppe, that had been supplying execution drugs to Missouri. That "threat" appears to have consisted of an email sent by a retired college professor who used his own name and included his own phone number, and which the professor has characterized as a warning to the pharmacy to be cautious. An expert witness for the two states—a former Secret Service officer named Lawrence Cunningham who is now employed by a private security company—testified in litigation over their secrecy policies that the email constituted a "serious threat," as evidenced by the fact that it was investigated by the FBI. However, FBI and Tulsa Police Department records show that neither agency was aware of any threats against the pharmacy until a reporter called the FBI months later to ask about alleged threats. The pharmacy had not filed any complaint about the email and, FBI records show, did not come forward with copies of any threatening emails after having been given an opportunity to do so. Cunningham also testified in the Ohio case that the Texas Department of Public Safety had investigated the email, including interviewing the professor—a claim that is contradicted by Cunningham's own sworn testimony in the Texas case and, BuzzFeed says, by Texas DPS documents, sworn statements of the DPS department head, and FBI internal documents. Indeed, Colonel Steven McCraw of Texas DPS testified in a deposition, “I did not do any investigations. We didn’t look at any people. We didn’t do anything.” Officials in Mississippi, Ohio, and Missouri also exaggerated threats by stating suppliers were "harmed" or "threatened" by facing lawsuits or disparaging comments in the media. 

Former Judges, Criminal Defense Associations File Briefs Supporting Missouri Inmate Who Was Denied Funding for Counsel

A group of 16 former state and federal judges and three of the nation's preeminent criminal defense organizations have filed briefs in the U.S. Court of Appeals for the Eighth Circuit in support of Missouri death row inmate Mark Christeson's efforts to be afforded a meaningful opportunity to investigate and present his claims to the federal courts. Christeson was nearly executed in 2014 without ever having any federal court hear his case, after the lawyers appointed to represent him in his federal proceedings failed to meet with him until six weeks after his filing deadline had passed. After the U.S. Supreme Court ordered the district court to appoint new lawyers, a Kansas City-based court directed them to submit a proposed budget for the case. Then, without explanation, it refused to fund 94% of their requested budget, limiting the defense to $10,000 for the entire capital case. The amicus briefs urge the Eighth Circuit to overturn the funding decision, arguing that it effectively deprives Christeson of his right to counsel. The former judges brief, organized by Constitution Project, calls the district court’s ruling “nakedly partisan,” reading “less like a judicial opinion and more like a prosecutor’s brief.” They say "“When attorneys lack adequate funds to investigate and prepare submissions in a capital habeas case, the adversarial process cannot perform its essential function of revealing the truth.” In particular, they say the funding ruling prevented counsel from developing and presenting mental health evidence that Christeson's severe cognitive impairment left him unable to assert his own rights after his previous counsel had abandoned him. The second brief, filed by the National Association for Public Defense, the National Association of Criminal Defense Lawyers, and the National Legal Aid and Defender Association, joined by the MacArthur Justice Center at St. Louis, argued that, "It is not possible to maintain the integrity and fairness of capital punishment, and habeas proceedings generally, if district court judges continue to interfere with representation in this manner with no check on their abuse of discretion." Mae Quinn, the Director of the MacArthur center, said the denial of resources "is sadly consistent with the culture and ongoing challenges faced by the Missouri criminal and juvenile defense bar." Missouri ranks 49th in the nation in funding indigent defense.

As Legitimate Market for Execution Drugs Dries Up, States' Secret Execution Practices Become Increasingly Questionable

Pfizer's recent announcement that it was tightening controls against what it calls the misuse of its medicines in executions highlights an on-going struggle between states desperate for execution drugs and a medical community that believes its involvement in the lethal injection process violates its medical and corporate missions and the ethical standards of the pharmaceutical and health professions. As Pfizer and nearly two dozen other pharmaceutical companies have ended open market access to drugs potentially used in executions, states have responded by increasingly shrouding the execution process in secrecy. The states "are mainly concerned about losing their providers of lethal-injection drugs should the companies’ names become public," says Linc Caplan in a recent article in The New Yorker. Otherwise, "companies that do not want their products associated with executions will know that their drugs are being used." He reports that since the Supreme Court upheld Kentucky's execution protocol in 2008, 20 states have responded to drug shortages by abandoning protocols that had been substantially similar to Kentucky’s, making "unfettered substitutions" to their protocols in "desperate attempts to adhere to their execution schedules.” Caplan reports that States "have also been increasingly misleading in their efforts to obtain drugs for executions." He cites documents showing that one Ohio official urged state drug purchasers to identify themselves as from the Department of Mental Health and warned they should "not mention anything about corrections in the phone call or what we use the drug for." Louisiana similarly obtained execution drugs from a local hospital, which mistakenly assumed they were needed for medical use. Last week, an Oklahoma grand jury report described that state's secrecy practices as producing a "paranoia" that "clouded [prison officials'] judgment and caused administrators to blatantly violate their own policies." An article by Chris McDaniel in BuzzFeed after the release of that report documented that the same secrecy and lack of oversight criticized by the Oklahoma grand jury is common in other states, and has contributed to execution problems in Missouri, Georgia, and Ohio. Arizona and Missouri paid executioners in cash, and Missouri's mismanagement of that fund likely violated federal income tax law. Missouri's secrecy, McDaniels writes, also "allowed it to purchase execution drugs from a pharmacy in Tulsa, Oklahoma, that was not licensed in Missouri and had questionable pharmaceutical practices." Other states, like Texas and Arizona "have used the secrecy to purchase drugs illegally," he reports. 

Support for the Death Penalty by Republican Legislators No Longer a Sure Thing

One year after the Nebraska legislature voted to repeal the death penalty and overrode a gubernatorial veto of that measure, actions in legislatures across the country suggest that the state's efforts signalled a growing movement against the death penalty by conservative legislators and that support for the death penalty among Republican legislators is no longer a given. Reporting in The Washington Post, Amber Phillips writes that Republican legislators in ten states sponsored or co-sponsored legislation to repeal capital punishment during the current legislative sessions. She reports that although these repeal bills have not become law, they have made unprecedented progress in several states. In Utah, a repeal bill sponsored by Sen. Stephen Urquhart (pictured)—a former death penalty proponent who supported the state's firing squad law—came closest, winning approval in the state Senate and in a House committee. Missouri's bill saw floor debate in the Senate, and Kentucky's received a committee hearing for the first time in 40 years. An effort to return death penalty support to the platform of the Kansas Republican Party failed by a vote of 90-75, and the Kansas College Republicans passed a resolution calling for the abolition of the death penalty, highlighting a generational divide on the issue. Dalton Glasscock, former president of Kansas College Republicans, said, "My generation is looking for consistency on issues. I believe if we say we're pro-life, we need to be truly pro-life, from conception to death." The National Association of Evangelicals also changed their stance on the issue, acknowledging "a growing number of evangelicals," who now call for abolition. Though a majority of Republicans still support the death penalty, Phillips writes that "it's notable that a year after we wondered whether Nebraska was an anomaly or the start of a trend, there's plenty of evidence to suggest that conservative opposition to the death penalty may indeed be a trend -- a small but growing one."

Missouri Execution Drug Supplier Being Sold After Committing Nearly 2,000 Violations of Pharmacy Regulations

The assets of The Apothecary Shoppe, a Tulsa, Oklahoma compounding pharmacy that provided lethal injection drugs to Missouri, have been auctioned off after the company defaulted on its loans, and is being sold after admitting to nearly two thousand violations of pharmacy regulations, according to a report by BuzzFeed News. Inspectors from the federal Food and Drug Administration and the Oklahoma Board of Pharmacy found that the drug compounder had committed "significant" violations of pharmacy regulations, including engaging in questionable potency, disinfecting, and sterilization practices. State investigators witnessed improper refrigeration, storage, and sterilization practices at the pharmacy and caught the company producing drugs without legitimate medical need, improperly expanding drug expiration dates, and operating during periods in which its lab was not certified. In 2013 and 2014, the pharmacy prepared execution drugs for at least three Missouri executions, receiving cash payments from the Department of Corrections. In challenges to Missouri's lethal injection practices, death-row prisoners – hampered by state execution secrecy provisions – argued in court that “Compounding-pharmacy products do not meet the requirements for identity, purity, potency, efficacy, and safety that pharmaceuticals produced under FDA regulation must meet.” Among the possibilities they listed, were that the drug may not be sterile, may be less potent than it needs to be, or may be contaminated. Missouri responded in its court filings that the condemned prisoners' concerns were speculative and that the inmates did "not make a plausible claim that Missouri’s execution procedure is sure or very likely to cause serious illness or needless suffering and give rise to sufficiently imminent dangers.” The problems found at The Apothecary Shoppe confirmed the prisoners' concerns. 

Missouri Likely to See Change After Historic High in Executions

A decline in executions is likely in Missouri after two years of unusually high numbers. In 2014, Missouri tied with Texas for the most executions in the U.S., and it was second to Texas in 2015. However, changing attitudes about the death penalty--similar to national shifts--are evident in Missouri's sentencing trends: no one was sentenced to death in Missouri in 2014 or 2015, and less than one person per year has been sentenced to death in the past seven years. Moreover, a bill with bi-partisan support has been introduced to repeal the death penalty. It passed the Senate General Laws committee in late January. An editorial in the Columbia Daily Tribune highlighted the political diversity in the legislative support for the measure. Among those who voted the bill out of committee were two Democrats and two Republicans. Sen. Paul Wieland cited his pro-life views as a reason for support, while Sen. Rob Schaaf said, as long as it is "not fairly applied...I'm going to be opposed to the death penalty."

Pages