The Gamut of Missouri Death Penalty Injustice (1830-2009)*

The state is like the human body. Not all of its functions are dignified. Anatole France Les Opinions de Jerome Coignard(1893)

Missouri occupies an ambiguous space in the minds of most present-day Americans and in the imaginations of most Missourians as well. Missouri was admitted to the union via the Missouri Compromise as the slave state in 1821, along with Maine representing the free North the year previous. Fearful that slavery would spread to the enormous territory of the Louisiana Purchase, the Missouri Compromise settled [temporarily] the terrible question, with a line drawn at 36 degrees 30 minutes north latitude, to be free soil above it and slave below it-the
*
Sincere thanks should expressed to Bill Swift of the Missouri Public Defenders

Office who provided the data sources for this research, Michael Radelet, who critiqued earlier drafts, and John Galliher who conceived of and developed the proportionality studies of Missouri executions, as well as training the author. 168 KEYS

present State of Missouri being sole the exception. The compromise entry of free Maine followed by slave Missouri, in effect allowed a legislative balance to be maintained in the Congress. Missouris first constitution accordingly confined citizenship to whites only. The article so offended John Quincy Adams (JQA) that the former president favored a declaratory act in the
Legislature of one of the free states . . . that so long as the article in the Constitution of the State of Missouri deprived colored citizens of the State . . . of their rights as

citizens of the United States within the State of Missouri, that white citizens of the State of Missouri should be held as alien within the Commonwealth of Massachusetts, not entitled to claim or enjoy within the same any right or privilege of a citizen of the United States (quoted from Miller 1996: 191).

JQAs characterization of colored citizens of the State was a concept that Missourians rejected and the US Supreme Court officially annulled in Scott v. Sanford (1857). Chief Justice Roger B. Taney remarked that Mr. Scott, a slave in Missouri who was transported by his owner Sanford to free soil in Illinois, had no rights that any white man might be obligated to recognize or respect, thus relegating Scott to the legal status of property. The wording of Taneys opinion was particularly onerous in that it mentioned not only slaves, but stated that all black persons presumably including freedmen were civilly set aside as well. The courts in Missouri needed no help from the
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and Oklahoma, and remained one of the few states to execute its last homicide offender in the 1960s.

The New York Situation at Present

New Yorkers, either from the five boroughs or upstate, are familiar with frustration where government is concerned. Similar to the rest of nation, if a referendum were conducted asking citizens of New York if they supported executions, the result would be a clear approval. Also similar to the rest of nation, New Yorkers are wary of state governments [in]ability to navigate the unpredictable waters of policy-making and formulate measures that achieve their manifest functions. Since the status of capital punishment in New York is in limbo, there will be no executions. At present, the operational law

designating capital punishment as the maximum penalty for homicide is unconstitutional in New York for the reasons mentioned above. Nevertheless, in 2005, the New York legislature has attempted remedy the situation. Republicans, led by longtime State Senator John J. Marchi, have attempted amend state laws, effectively removing the objectionable phrasing pertaining to deadlock provision and substituting a life without parole alternative (see references NY State Senate Bill S4918). At the same time in the Assembly, Senator Liz Krueger attempted, before the New York State Court of Appeals finding in 2005) to institute a death penalty moratorium (see S3073). Subsequently, Representative Keith Wright has sponsored a series of bills (A542, A1452) intended to entirely eliminate the death penalty from New York. All died in legislative committee.
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The Work of David Kaczynsky and New Yorkers Against the Death Penalty
After the legal reinstatement of capital punishment in New York in 1995, New Yorkers Against the Death Penalty (NYADP) set as its principal aim the abolition of the death penalty in New York and, following the Court of Appeals found the new law unconstitutional, the prevention of reinstatement of the death penalty. It was NYADPs express purpose to progress toward the longer-term goal of affirmative repeal of the states death penalty (Kaczynsky 2009). Following New York State Court of Appeals ruling that the states death penalty law was unconstitutional in June 2004, a statewide coalition led by NYADP quickly retooled its moratorium campaign to oppose a legislative quick fix of the death penalty statute (Kaczynsky 2009). Combining with Equal Justice USA/ Quixote Center (EJUSA)a national organization working state by state for moratorium and abolitionNYADP embarked on a campaign to inform the Democratic-controlled state Assembly of a need for a careful

analysis of the problems associated with executions, both in New York and outside. The campaign included the enrolling of approximately 300 groups from religious caucuses (e.g. NYS Council of Churches, NYS Catholic Conference), the legal community represented by the New York State Bar Association, the New York Chapter of the National Association of Social Workers (NASW), major labor unions including the powerful New York State Teachers Association, and the city councils of the states five largest cities (New York City, Buffalo, Albany, Syracuse, and
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Rochester) in an effort to convince the Assembly that there was a political reasoning to seriously question the fairness, effectiveness, and fiscal soundness of capital punishment. Although there was an attempt by a conference committee of the State Senate and Assembly memberships to reinstate executions through an overhaul of the law, Speaker Silver realized stiff resistance by Democrats to the reform efforts. A succession of Democrats rose in opposition to the quick fix and no members openly supported it. The quick fix never moved to an up-and-down vote and the Assembly adjourned without considering the measure. When New Yorks death penalty law was struck down by the Appeals Court in 2004, the New York Assembly readdressed capital punishment with a round of five committee hearings in the winter of 2004-2005. New York State became the first of 38 executing states in the post-Furman era, on April 12, 2005, to abolish executions by legislative initiative. The Assembly, led by Speaker Silver, voted down a Senate bill in the Legal Codes committee that attempted statutory reform of the unconstitutional death penalty law. NYADPs efforts at the state capital coincided with op-ed writing across the state, grass-roots lobbying by victims groups, and presented voters and their representatives with

a united front against reinstatement. The campaign came to its climax when Silver, historically a supporter of capital punishment, announced that the Assembly would hold public hearings on the death penalty. It was in the interest of the assembled groups that the NYADP staff worked with the Assembly to insure that the hearings would be open and inclusive, that all relevant testimony would be considered,
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The United States expects Mexico to continue to respect its legal obligations on water rights, tariffs, extradition, and drug trafficking, not to mention the Vienna Convention requirements when US citizens are arrested south of the border.(One would think most Texans gladly would trade a delay in two executions for progress on water rights and extradition.) But a high price may be paid if the United States continues to ignore international law on an issue that Mexico regards as vital (Miller 2003a: 38).

The idea behind the Vienna Convention is that foreign consuls are uniquely placed to provide essential services to their nationals, including legal advice and assistance, translation, notification of family, the transferring of documentation from the native country, and observing court hearings. Part of the philosophy of non-compliance that local jurisdictions hold is based in the reality that consular personnel have legally obstructed attempts of law enforcement to extract confessions from suspects and mitigated the efforts of prosecutors to pressure defendants into pleading guilty. In turn, part of the resentment by foreign governments is founded on the emphasis placed by US Department of State on Article 36, specifically that it considers notification for American citizens taken into custody beyond U.S. borders to be a serious matter, but has taken no real steps to ensure compliance of U.S. justice agencies with the Vienna Convention

or to correct past violations where foreign nationals have been condemned death and executed. In the face of these circumstances, the ICJ ruled
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in March of 2005 that the U.S. should review the cases of 51 Mexicans whose consular rights were believed to be violated. President Bush stated publically that he believed that state criminal courts should comply with the ICJ ruling, but no significant changes are apparent. At its very core, the habit of ignoring the concerns of foreign government efforts on the part of their citizenry, endangers Americans that travel abroad. This point was cited by Associate Justice Breyer in his dissent in a denial ofcertiorari in Elledge v. Florida (1998). However, the US Supreme Court ruled (5-4) on Sanchez-Llamas v.
Oregon (2006) joined with Bustillo v. Johnson (2006) in reference to

the Vienna Convention on Consular Relations. In both cases, those foreign nationals were not informed by police of their consular rights and were unable to notify their respective consulates of their arrests. Under questioning, both made statements that were inculpatory and instrumental in their respective convictions. Despite that fact that Article 36 was not observed, the High Court concluded that their statements made following their arrests were admissible and would not be suppressed, even though the defendants had not been apprized of their consular rights. Part of the High Courts reluctance to exclude statements in the presence of Article 36 violations rested with the idea that noncompliance might become grounds for exclusion of evidence. Chief Justice Roberts cited the fact that the US commonly uses an exclusionary rule for evidence that is improperly obtained, a novelty in the world, and that it would be startling if the Vienna Convention required such a suppression of evidence in a US court. Taken from the Mexican perspective, immigration crackdowns and

systematic refusals to grant of internationally guaranteed rights are a

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seamless U.S. policy of exclusion and calculated symbolism designed to threaten Mexicans in the U.S. and deter further immigration. Chief among these symbols are treatment, convictions, and executions of Mexican nationals in the United States where their crimes would not have merited a death sentence in Mexico. In a larger sense, the failure to comply with ICJ rulings is a serious blow to US credibility in a proportion previously unheard of as Miller (2003a) puts it:
With its rejection of virtually every major UN [United Nations] initiative, from the Kyoto Treaty to the International Criminal Court [add the war on Iraq and the negation of the Nuclear Non-Proliferation Treaty of 1995], the Bush Administration has given the impression that it lacks a long-term commitment to international law (Miller 2003a: 38).

The conduct of state courts in these death penalty cases creates two troubling realities:
it reverses or obstructs a trends in international (a) law-making that has sought to institute standards and norms that acknowledges a nexus between our nations own judicial traditions and the opinions of mankind (Levesque 2001: 756); creates the impression that US courts are motivated (b) not by respect for international law, but, as articulated by Justice Blackmun, that they are at best, the
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present Supreme Court enforces some principles of international law and some of its obligations some of the time (Levesque 2001: 757).

This view has been buttressed by a series of half-hearted measures and statements by US officials. In 2004 Governor Davis of California signed Senate Bill #1608, which stated, that foreign nationals would have the option to serve the remainder of his or her term in his or her nation of citizenship. The bill would also impose additional notification requirements upon the director, including notifying consulates or embassies provided there is no objection by the foreign national, and compliance with the 1963 Vienna Convention on Consular Relations Treaty. The bill raised consular notification requirements of authorities by requiring that lists of imprisoned nationals be provided to consulates upon their request. Similarly, in December 2004 the US Supreme Court granted review to Medellin v. Dretke in observance of an ICJ decision that cited the US for not providing Mr. Medellin with full information regarding his consular rights, in violation of Article 36. Eventually the High Court subsequently remanded the case to the appellate division in 2005. Complicating the implementation of international law and the prerogatives of state and local jurisdictions, the issue of the executions of juveniles has become a serious stumbling block. The ICCPR states sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women (ICCPR, Article 6). Although the US signed and ratified this treaty, the federal government has not acted to implement
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it in local circumstances, as expressed by declarations and reservations expressed:

(2) the United States reserves the right, subject to its Constitutional constrain, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age (ICCPR Declarations and Reservations 1992). (4) That because US law generally applies to an offender the penalty in force at the time the offense was committed, the United States does not adhere to third clause of paragraph 1 of article 15 (ICCPR Declarations and Reservations 1992). (5) . . . the United States reserves the right, in exceptional circumstances, to treat juveniles in the criminal justice system (ICCPR Declarations and Reservations 1992).

In March 2004 the ICJ elaborated on its definition of advisement of consular rights without delay cited in Article 36 of the Avena Case of Mexico v. US. The ICJ concluded the meaning as a duty upon the arresting authorities to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign