Death Penalty Jurisprudence of Former Missouri Supreme Court Judge Laura Denvir Stith
Author’s note: I recently retired from the Supreme Court of Missouri after serving as a judge of that court for 20 years. My brother, Richard Stith, a member of the Consistent Life Network, thought its members would be interested in learning about some of the death penalty decisions and dissents which I wrote while a member of the Court. I am not a member of the Consistent Life Network, and no doubt do not agree with all of the views of its membership. But, because I share the membership’s interest in the fair application of the death penalty, I have agreed to discuss some of my most important death penalty opinions and dissents. Please keep in mind as you read this or read about any legal decision that the role of a judge is to express the judge’s understanding of the law and justice, not the judge’s personal views. Because the law is complex, wise judges of good conscience may disagree as to how a case should be decided. It is through thoughtful expressions of their differing views in opinions and dissents that the law grows and improves.
The most significant opinion I have authored in terms of its impact on the law and on justice throughout the United States is State ex rel. Simmons v Roper, 112 S.W.3d 397 (Mo banc 2003), which was affirmed by the U.S. Supreme Court in Roper v. Simmons, 43 US 551 (2005). Mr. Simmons was found guilty of a murder committed when he was 17 in the 1990’s. The jury imposed a death sentence after the prosecutor argued that if he was this dangerous at age 17, how awful would he be later? This was then thought constitutional because while in 1987, the U.S. Supreme Court had held that it was cruel and unusual punishment to execute someone who committed murder at age 15 or younger due to their lack of maturity, by 1989 it had held it was not cruel and unusual punishment to execute someone who was 16 or 17 at the time of their crime, implicitly suggesting that such an execution would not violate our “evolving standards of decency.” Similarly, that year in a separate case the U.S. Supreme Court held that it was constitutional to execute someone who was intellectually disabled at the time of their crime under our evolving standards of decency.
So, when in 2002 the attorney general of Missouri asked the Missouri Supreme Court to sign Mr. Simmons’ death warrant, the latest U.S. Supreme Court decision would by itself indicate that was ok. But, that year, in Atkins, the U.S. Supreme Court had reversed its holding about the intellectually disabled and had held that it violated our evolving standards of decency to execute someone who was intellectually disabled.
To a majority of the Missouri Supreme Court, this raised the important question of whether the U.S. Supreme Court would find that standards for execution of juveniles also had evolved since 1989. In both cases, in the interim, additional state legislatures had barred such executions, while none had added in an approval not previously present, and more had been learned about the lack of full development of a juvenile’s brain while in their teens.
A minority of my colleagues said this was for the U.S Supreme Court to revisit if it wanted, and that it was presumptuous for us to do so, and many scholars around the country offered similar criticism. But, this view overlooked that the Missouri Supreme Court was almost certainly Mr. Simmons’ last opportunity for consideration of whether he was eligible to be executed, as the U.S. Supreme Court takes a case from Missouri or any other particular state only once every three or four years, and normally refuses cases that simply apply prior law. So, if it said he could be executed, the U.S. Supreme Court almost certainly would have denied review and Mr. Simmons would have been executed without anyone determining whether under then-current community mores, his execution was cruel and unusual. The majority of the Missouri Supreme Court explained that it believed it therefore was its obligation to determine this question. Further, we explained we believed the U.S. Supreme Court had invited us to do so by holding in their earlier cases that what is cruel and unusual varies over time, that it reflects the current community consciousness, and that evolving standards of decency might prohibit what had not been thought to be cruel or unusual in the past. So, my opinion stated, it turned out correctly, that Missouri had authority to look at the 2003 community standards and see if they had evolved to bar execution for crimes committed by juveniles.
The decision I authored for the court rejected the argument that only legislative enactments could be looked at to determine community standards, noting that the U.S. Constitution does not state that state legislatures shall decide what is cruel and unusual. Rather it broadly states that such punishment is prohibited, thereby leaving it to the courts to make this determination.
Accordingly, in prior cases the U.S. Supreme Court had looked to numerous sources in addition to legislatures, including religious and cultural and civic and medical groups. Applying this same analysis, the Missouri decision held it was a violation of the cruel and unusual punishment clause to execute someone for a crime committed as a juvenile. The U.S. Supreme Court affirmed using exactly our reasoning and quoting our decision twice. Execution of juveniles is now barred in the United States, and more than 70 youths were taken off death row around the country as a result of that ruling.
Another important majority decision I authored was State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003). It had multiple important holdings. First, the Missouri Supreme Court held that it believed the U.S. Supreme Court cases simply set a minimum standard which the states must follow in applying constitutional provisions, including the right to habeas corpus. But, we held in Whitfield, we believed states are free to set a higher standard. Therefore, even though the U.S. Supreme Court had refused to apply retroactively its decision that a jury rather than a judge must find every element of a crime necessary to impose the death penalty, we held Missouri would do so. The U.S. Supreme Court later held in a case called Danforth that this was correct, that states were free to apply the right to habeas corpus more liberally than the U.S. Supreme Court had, citing in the course of its decision a law review article I wrote that had been published in the interim in the Valparaiso Law Review, “Contrast of State and Federal Court Authority to Grant Habeas Relief,” 38 Valparaiso Law Rev. 421 (Spring 2004). Whitfield also held that because the jury had been unable to reach a decision whether to impose death, that was in effect an acquittal of death, since one can be given the death penalty only if all jurors agree to impose it. Therefore, the defendant’s sentence could not be relitigated.
A later decision of the Missouri Supreme Court narrowed another holding in Whitfield, in which it had held that juries had to make the determination whether factors in mitigation of punishment outweighed those in aggravation because it is a factual question. The majority said, over my dissent, that this is a subjective decision which the judge can make if the jury deadlocks. State v. Wood, 580 S.W.23d 566 (Mo. banc 2019).
Other important death penalty dissents I have written often have involved intellectual disability and whether and how it should affect imposition of the death penalty.
State ex rel Cole v. Griffith, 460 S.W.3d 349 (Mo banc 2015), dealt with a man who had a mental disability. Unusually, this was because, while he was not found incompetent at trial, in the years he was in prison his mental competence had so deteriorated that he was hearing voices and showing other symptoms of psychosis. The majority decided that his claims of incompetence were not sufficiently credible to entitle him to a hearing, even though, as I pointed out in my dissent, the U.S. Supreme Court has held that if a threshold showing of incompetence is made at the time of execution then one cannot be executed, because it would be cruel and unusual punishment to execute someone who did not understand the nature of and reason for his death. To deny a factual hearing on this key factual issue was manifestly unjust.
State ex rel. Clayton v Griffith, 457 S.W.3d 735 (Mo. banc 2015), involved what I stated in my death penalty dissent was a particularly egregious violation of the rights of a mentally disabled individual. Mr. Clayton had an injury causing him partial loss of his frontal lobe. He argued that made him ineligible for the death penalty. The majority said, in part, that he was required to show that he had this mental disability prior to age 18, and since his traumatic brain injury did not occur until he was 32, whatever it did to him did not constitute mental incompetence and therefore could not justify changing his sentence to life in prison. I argued in dissent that he was entitled to a hearing to show he was mentally incompetent as a result of the traumatic brain injury, without regard to how or when he got his injury. The requirement to show the mental disability was diagnosed before age 18 is to prevent someone faking a mental disability later — it serves no purpose where, as in that case, all agreed defendant suffered an injury which caused his mental disability after age 18. One should look to the purpose of a rule and not apply it blindly to do an injustice.
Finally, in Johnson v. State, 580 S.W.3d 895 (Mo. banc 2019), Mr. Johnson’s counsel failed to tell him that if he were found by the jury to be intellectually disabled, he could not get the death penalty. Instead, the lawyer told him he better take a plea deal for life in prison without parole because otherwise he likely would get the death penalty. The lawyer gave this advice because he did not understand the difference between intellectual disability, which if proven means you are less culpable and under the U.S. Supreme Court Atkins decision means you are not eligible for the death penalty, and mental incompetence, which means you cannot be held guilty because you did not know right from wrong. Under Atkins, even if you knew right from wrong and so were guilty, you could not get a death sentence. Had Mr. Johnson known this, he would not have pleaded guilty because the worst he could get was a life sentence, and if the jury believed his defenses that he was misled by others due to his disability, then he might have gotten a lesser sentence than that. The majority refused to provide even a hearing, although his I.Q. was without question below 70 – in fact, he tested at an I.Q. of 53. I said in dissent, “What is at stake is whether a man who is intellectually disabled must serve life in prison without parole because his counsel failed to understand the meaning or consequences of intellectual disability under the law governing imposition of the death penalty.”
For more of our posts on the death penalty, see:
Is the Death Penalty Unethical? / Hannah Cox
Why Conservatives Should Oppose the Death Penalty / Destiny Herndon-de la Rosa
Racism and the Death Penalty / David Cruz-Uribe