Missouri’s death penalty statute, Section 565.030.4, unconstitutionally allows the trial judge to impose death when the jury deadlocks on sentencing — that is, when jurors cannot unanimously agree on life or death. Two cases now pending appeal in the Missouri Supreme Court, Marvin Rice and Craig Wood, present two constitutional problems with these judge-imposed sentences.
The easier problem is that the provision as currently applied violates Ring v. Arizona, the 2002 U.S. Supreme Court decision holding that any fact necessary to be found in order to impose death must be found by the jury, not the trial judge. (The Post-Dispatch’s July 25, 2002, headline was “Only juries can decide on death, justices rule.”) Although Missouri’s statute was pre-Ring, and was written backward (reciting the fact findings that require the jury to impose life), in 2003 the Missouri Supreme Court in Whitfield v. State held that Ring requires the affirmative unanimous finding of each of these facts, including that the evidence in mitigation does not outweigh the evidence in aggravation.
But the current verdict form used in capital trials in Missouri to report a deadlock verdict does not show whether the jury made this requisite finding. The deadlock verdict form asks: “Does the jury unanimously find that there are facts and circumstances in mitigation of punishment sufficient to outweigh the facts and circumstances in aggravation of punishment?” A “no” answer does not reveal what the jury found unanimously, only that it failed to make the finding that mandates life. Under these circumstances, it is unconstitutional for the judge to impose death.
In 2016, the federal district court in St. Louis recognized this Ring violation. For this reason alone, the existing death sentences imposed under this provision should be changed to life (without remanding for a new sentencing hearing pursuant to Missouri statute, Section 565.040.2).
The second problem is facial — meaning the provision is always unconstitutional. Even assuming Missouri corrects the form to ask, “Does the jury unanimously find that there are NOT facts and circumstances in mitigation of punishment sufficient to outweigh facts and circumstances in aggravation of punishment?”and the jury answers “Yes,” judge-imposed death sentences would still be unconstitutional. Allowing the judge to impose death when the jury deadlocks on the ultimate question — whether to impose life or death — ignores the critical role of the jury under the Constitution as the “conscience of the community.” In this regard, Missouri is far outside the norm, even among death penalty states
Judge-imposed death sentences are a modern invention. Traditionally, death sentences could only be imposed by a unanimous jury. Prior to 1984, Missouri law had explicitly prohibited judge-imposed death sentences: “If the jury cannot, within a reasonable time, agree to the punishment, the judge shall impose sentence within the limits of the law; except that, the judge shall in no instance impose the death penalty when, in cases tried by a jury, the jury cannot agree upon the punishment.”
The only other state with a similar deadlock provision, Indiana, added it even more recently, in 2002, and has never invoked it to impose a death sentence. Nebraska also has a problematic scheme in which a three-judge panel conducts weighing and sentencing after the jury has made the aggravator finding. All other states now prohibit judge-imposed death sentences following a hung sentencing jury. Most require life when the jury cannot agree on death, but a few provide for a second sentencing hearing before a new jury.
No Missouri jury has imposed a new death sentence since 2013. Over the years, Missouri judges have invoked this provision to impose death on 15 individuals. Of these 15 originally sentenced to death, three were corrected just after Ring, four were changed to life for other reasons, two — Rice and Wood — are pending appeal, two others are in prison under the judge-imposed death sentence, three were executed, and one committed suicide while in prison under death sentence.
This is a very problematic history. Missouri can and must do better. When juries deadlock, at least some members of the jury do not think death is appropriate. In these cases, death is not the right choice, no matter what a judge may think. Missouri should vacate the existing death sentences imposed under this provision and hold that the Constitution requires the jury to serve as the “conscience of the community” in capital sentencing. Further, the Legislature should clean up the statute by repealing the provision and reinstituting the explicit prohibition on judge-imposed death sentences.
Joseph C. Welling is an adjunct professor at St. Louis University School of Law and an attorney with Phillips Black Inc., a nonprofit public interest law firm.
