Fordham Law


Missouri is among the states where hope is rising on death row

Deborah Denno in The Kansas City Star, March 29, 2014

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Missouri is among the states where hope is rising on death row
By TONY RIZZO
The Kansas City Star

Texas has been and likely will continue to be the undisputed king when it comes to putting prisoners to death.

But so far this year, Missouri nearly is matching the Lone Star State, lethal injection by lethal injection.

The execution early Wednesday of Jeffrey Ferguson for the rape and murder of a 17-year-old girl in St. Louis was Missouri’s third so far in 2014 and its fifth since November.

Only Texas and Florida, each with four, have carried out more executions this year than Missouri. Missouri’s record for a year was nine men put to death in 1999.

For opponents of capital punishment and for lawyers representing death row inmates in Missouri, it has been a grim stretch.

“It’s very emotionally draining,” said Rita Linhardt, who chairs the board of Missourians for Alternatives to the Death Penalty. “It’s hardest on the attorneys handling the cases.”

But court rulings last week in other states and indications that the U.S. Supreme Court may be considering a hearing on death penalty issues has capital punishment opponents cautiously optimistic.

The spate of Missouri executions came after a hiatus of about 21/2 years that was prompted by legal challenges to the state’s execution method and shortages of execution drugs.

Although legal challenges have continued since late last year, when Missouri adopted pentobarbital as its execution drug, state and federal courts have allowed Missouri executions to continue.

Much of the opposition has centered on the secrecy surrounding the pharmacy that prepares and supplies the drug. The Missouri Department of Corrections has made the pharmacy a member of its execution team, and Missouri law protects the identity of execution team members.

Attorneys have argued that condemned prisoners have a right to know how the drugs are manufactured and prepared. Without that knowledge, the lawyers contend, those awaiting execution can’t know if their constitutional protection against cruel and unusual punishment could be violated by improperly prepared drugs.

Deborah Denno, a law professor at Fordham University and a national expert on death penalty issues, said the same type of challenges to drug secrecy rules have been gaining traction in other states.

“There are differences in how courts in different states are handling those,” she said.

On Wednesday, a judge in Oklahoma ruled that by keeping the source of its execution drugs secret, the state was violating the inmates’ constitutional right of due process.

Denno said she expected that decision to have reverberations around the country, and on Thursday, a judge in Texas proved her right.

The judge ordered Texas prison officials to disclose the supplier of its drugs to lawyers representing death row inmates.

The secrecy issue also has been raised with the U.S. Supreme Court in two requests for a hearing, including one filed on behalf of Missouri inmates.

Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, said the high court is expected to announce its decision on whether to take the Missouri case on April 7.

But this Monday, Luby said, it is anticipated that the court will issue a decision in a similar secrecy challenge from Louisiana.

One indication of how the court may be leaning came shortly before Ferguson’s execution. The Supreme Court denied his request for a stay, but four of the nine justices said they would have granted it.

A month earlier, before Michael Taylor was executed in Missouri, only three of the justices noted that they would have granted a stay.

“You really can’t extrapolate anything from that,” Luby said. “But the fact that there are four indicates some level of interest.”

He noted that while it takes five justices to grant a stay, only four votes are needed for the court to accept a case for hearing.

The office of Missouri Attorney General Chris Koster, which handles death penalty litigation for the state, declined to comment for this story.