Testimony in Support of HB 2468 – Closing the Judicial Loophole for the Death Penalty

Date: March 26, 2024
To: Representative Alex Riley, and members of the House General Laws Committee
From: Gwen Smith, Criminal Justice Policy Manager, Empower Missouri
Re: Our support for HB 2468

Founded in 1901, Empower Missouri advocates for the well-being of Missourians through civic leadership, education, and research. As part of our work, we organize a statewide Community Justice Coalition with the goal of decreasing recidivism, decreasing the prison population, and decreasing Missouri’s criminal justice costs all while ensuring our communities are safe. Many coalition members are formerly incarcerated or have currently incarcerated loved ones, and all are connected by a vision for a future without mass incarceration. We support HB 2468 and the repeal of provisions that allow judges to assess the death penalty without the unanimous decision of a jury. 

This judicial loophole means that when there is a hung jury in the punishment phase of a capital case, meaning the jury cannot unanimously agree to one sentence or the other however, the courts have said the judge can then make the decision and sentence the defendant to life without the possibility of parole or death by utilizing a loophole in Missouri statute. This statute states “If the trier is a jury it shall be instructed before the case is submitted that if it is unable to decide or agree upon them punishment the court shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor or death.” The intent of the original language was to specify that the defendant cannot be released from their imprisonment except by a Governor’s pardon or when they die, and that the default sentence when the jury is hung is life without parole. A court interpretation of the plain language of the statute granted the ability to sentence the defendant to death in the case of a hung jury to a single judge by adding a comma into the sentence that doesn’t exist. This interpretation undermines the power of the jury, a critical component of our legal system. To close this loophole,  HB 2468 would remove the “or death” language in the statute, requiring the judge to sentence the defendant to life without the possibility of parole in the case of a hung jury. The death sentence could still be applied when unanimously agreed upon by the jury. This simple change would place the power of sentencing back into the hands of the jury of our peers instead of one person.

The provisions that allow a court-assigned death penalty in the event of a non-consensual verdict on punishment present significant ethical and judicial concerns. Primarily, this practice can unduly influence the jury’s decision-making process, coercing them towards a consensus out of fear that their inability to agree might directly lead to the death penalty. This scenario puts undue pressure on jurors, potentially swaying their judgment towards a guilty verdict or a specific punishment, not on the basis of evidence or moral conviction, but on the apprehension of indirectly causing a death sentence. Such a provision undermines the integrity of the jury system, which is designed to reflect impartial community standards and values in the judicial process. 

Moreover, informing the jury of the potential for a court-determined death penalty can have profound implications on the fairness and impartiality of the trial. It introduces an external factor into the jurors’ deliberations, which should ideally be confined to the evidence presented and the applicable law. By hinting at a possible death sentence by the court, it not only burdens the jury with the weight of this potential outcome but also risks skewing the punishment phase towards the most severe penalty available, regardless of the nuances of the case or the possibility of mitigating circumstances. Such a provision can inadvertently encourage a punitive rather than a rehabilitative approach to justice, counteracting efforts to ensure that the death penalty is reserved for the most heinous crimes and applied as fairly and sparingly as possible. Repealing this provision could restore the jury’s role as an impartial body meant to deliver justice based on evidence and legal principles, free from undue influence regarding sentencing outcomes.

We can all agree that we want communities across Missouri to be safe, secure, and healthy. That includes a justice system that operates with fairness and integrity–something the passage of HB 2468 helps us work toward. We urge the committee to vote YES on HB 2468.

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