This piece was reported through The Marshall Project, a nonprofit news organization that covers the U.S. criminal-justice system.
Since Texas carried out the country’s first lethal injection in 1982, the state has performed far more executions than any other state. To date, 528 men and women have been put to death in Texas, more than the total in the next eight states combined.
But viewed from a slightly different angle, Texas has lost its place as the epicenter of the American death penalty, at least for the moment. Since November 2013, when Missouri began performing executions at a rate of almost one per month, the state has outstripped Texas in terms of the execution rate per capita. In 2014, both states executed 10 people, but Texas has more than four times the population of Missouri. This year, the difference is not quite as stark (Texas: 10, Missouri: 5) but Missouri still ranks number one. The state that has become the center of so many conversations about criminal justice through the courts and cops of Ferguson is now the center of one more.
The politicians, judges, and prosecutors who keep the system running at full steam simply say the death penalty is a good thing and the pace of executions is a sign that nothing is gumming up the pipes of justice. Defense attorneys are more eager to talk about the reasons for the current situation. They tend to use the word “crisis.”
The most important reason for the rise in Missouri’s rate of execution is also the most mysterious. As other states have dealt with the nationwide shortage in lethal-injection drugs by turning to new and experimental combinations—leading to grisly botched executions (Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, and Joseph Wood in Arizona) and lawsuits that have slowed down the pace of executions—Missouri has managed to get a steady supply of pentobarbital, a common execution drug.
Like their counterparts in all death-penalty states, Missouri officials are pushing in court to keep the source of their pentobarbital a secret. Texas has also exclusively used pentobarbital for executions in recent years, but has struggled to find a compounding pharmacy that will produce it. In Missouri, corrections officials had also struggled, but now have managed to stockpile the drug.
“We’re the only state in the union with no trouble getting pentobarbital,” says Cheryl Pilate, a Kansas City attorney who has represented death-row inmates. The pentobarbital made by small, generally unregulated compounding pharmacies—the choice in Texas—does not have a long shelf-life, leading Pilate and her colleagues to wonder whether Missouri officials are getting the drug from a veterinary supplier (the drug is often used to euthanize animals) or a manufacturer from overseas. Attorney General Chris Koster recently said in a court filing, quoted by BuzzFeed, that “Missouri uses pentobarbital as the lethal chemical in its execution process, but does not admit nor deny the chemical now used is compounded as opposed to manufactured.”
The Governor and the Attorney General
Attorney General Koster, as well as Missouri Governor Jay Nixon, are both Democrats and both outspoken supporters of the death penalty. Nixon himself was the attorney general before Koster, so both have overseen the state’s side in fighting the appeals of death-row inmates, pushing them along toward execution. Koster has suggested that the state set up a laboratory to make its own supply of lethal-injection drugs.
Nixon has the power to commute death sentences to life in prison, but he has done so once in his six and a half years as governor, and he provided no explanation for why. Many political commentators have speculated that Nixon and Koster, as Democrats in a primarily conservative state—where the electoral votes went to Mitt Romney in the 2012 presidential election—use executions to establish their tough-on-crime bonafides. “As a Democrat in public office, you would lose a lot of votes by not being enthusiastically in support of the death penalty,” says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City.
Nixon and Koster’s support for the death penalty fits a historical pattern of death-penalty support among blue governors in red states. In the 1990s, Texas Governor Ann Richards never commuted a death sentence and Arkansas Governor Bill Clinton famously flew home from the presidential campaign trail to preside over an execution of a man missing part of his brain. (Nixon had his own similar case earlier this year.) At the same time, Republicans in states near Missouri—Governor John Kasich in Ohio and former Governor Mike Huckabee in Arkansas—have regularly granted clemency to death-row inmates.
Nixon’s office did not respond to a request for comment on the politics of the death penalty, while Koster’s press secretary, Nanci Gonder, replied that he “has consistently supported the death penalty for the most serious murder convictions” and “one of the duties of the Attorney General is to ensure that legal punishments for violating Missouri’s criminal laws are carried out.”
Sean O’Brien, a professor at University of Missouri-Kansas City School of Law, spent much of his career defending death-row inmates and recalled a case in which the judges at the Missouri Supreme Court ruled against the prosecution. In 2003, the court ruled in favor of a man who committed a murder before turning 18, a decision that was later ratified by the U.S. Supreme Court and became the basis for a nationwide ban on the execution of juveniles.
Missouri Supreme Court judges are appointed by the governor, and in 2013 Judge Mary Russell became the chief justice, overseeing the setting of execution dates.* Her court set up the one-a-month schedule in November of that year. When she stepped down in July this year, she told several reporters that the pace of executions picked up because they had been on hold during the lethal-injection drug shortage. Once the state had the drugs, she said, “there were a number of people who had been backlogged whose appeals were exhausted.”
“It’s required by law that the Supreme Court shall set execution dates,” she added. “It’s not that we agree or disagree with the death penalty.”
The Eighth Circuit U.S. Court of Appeals, which has final say over death cases in Missouri, rarely stops executions, according to O’Brien, the law professor. “We’ve got a situation where all three”—the governor, attorney general, and supreme court—“are lickety-split gung-ho on this, and the federal courts aren’t stopping them.”
The Defense Bar
During a short phone interview last week, the Missouri capital-defense attorneys Cheryl Pilate and Lindsay Runnels used the words “crisis,” “disaster,” “horrific” and “overwhelming” as they described their “extremely small and embattled defense bar.” They see their cohort’s rushed work and missed deadlines and paltry resources as signs of broader problems with public defense in the state. Missouri was ranked 49th by the National Legal Aid & Defender Association in per-capita spending on indigent defense in 2009.
My colleague Ken Armstrong has chronicled the experience of one overburdened defense lawyer who dealt with the executions of two clients over two months at the end of 2013. In a March 2015 letter to the Missouri Supreme Court, members of the American Bar Association Death Penalty Assessment Team wrote, “The current pace of executions is preventing counsel for the condemned from performing competently.”
“You live in a perpetual state of tension,” Pilate said, “thinking your client could be next.”
This state of affairs may not last. A pending lawsuit over the secrecy of the lethal injection drugs might force the state to divulge its source, allowing for more litigation that could lead to a slow-down. The Missouri Supreme Court now has a new chief justice.* A future Republican governor or attorney general could follow the lead of Kasich or Huckabee. The defense bar may get more help from national anti-death penalty groups now that the state is ground zero. For now, though, as the death penalty declines nationally, Missouri is headed in the other direction.
* This article originally stated that Governor Jay Nixon selected Mary Russell to be the chief justice of the Missouri Supreme Court, but that position is rotated between the justices every two years, not appointed by the governor. It also stated originally that the court would soon have a new chief justice, but that justice, Patricia Breckenridge, has already taken office. We regret the errors.