By Tim O'Neil
Of the Post-Dispatch
The Missouri Supreme Court's four Democratic appointees inserted themselves into the national death penalty debate last week, earning praise with a 4-3 ruling as bold visionaries and condemnation as brazen activists.
The court managed all that with a decision released Tuesday that struck down the death sentence of Christopher Simmons.
He was 17 when he tied up Shirley Crook of Fenton and threw her from a railroad bridge into the Meramec River after a botched robbery in 1993. The ruling says that executing someone who was younger than 18 when the murder was committed would violate the U.S. Constitution's ban on cruel and unusual punishment.
If the ruling stands, Simmons will spend the rest of his life in prison.
The court earned the kudos and brickbats primarily for getting ahead of the U.S. Supreme Court, which last ruled directly on the issue of juvenile offenders in 1989. Then, it permitted the execution of those who were at least 16 at the time of their crimes. The Missouri ruling says that given other decisions the U.S. high court has made in recent years in death penalty cases, it surely has changed its views on this as well.
"This court finds the (U.S.) Supreme Court would today hold such executions are prohibited ..." says the Missouri ruling, written by Judge Laura Denvir Stith.
In the dissent, Judge William Ray Price Jr. wrote that the 4-3 ruling is "directly in conflict" with U.S. Supreme Court precedent. He added, "It is the United States Supreme Court's prerogative, and its alone, to overrule one of its decisions."
Attorney General Jay Nixon agrees with Price. He said he will ask U.S. Supreme Court to review the Missouri decision. Nixon said he disagreed with the court's reasoning and its claim that Simmons should be spared because of age.
"We should live under the rules of the Supreme Court until they're overturned, not use legal Ouija boards," Nixon said. "And I don't believe that Chris Simmons' life would have been turned around by one more birthday party."
Unless the Missouri Supreme Court ruling is overturned, Missouri prosecutors can no longer seek the death penalty against offenders who are younger than 18, said St. Louis County Prosecutor Robert P. McCulloch.
Opponents of capital punishment hailed the Simmons ruling. And three law school professors who were interviewed for this article endorsed Stith's reasoning. The ruling cited the U.S. court's decision last year barring the execution of mentally retarded offenders and what Stith called growing public opposition to executing juveniles. (All three professors oppose the death penalty, at least as currently practiced in Missouri.)
Jeff Stack, legislative coordinator of Missourians to Abolish the Death Penalty, said the ruling "helps us catch up with the norms of most of the world. We welcome a challenge to the U.S. Supreme Court."
Another element in the debate is the 4-3 split on the Missouri court. Gov. Bob Holden's appointment in February 2002 of Richard B. Teitelman of St. Louis, a former legal-aid lawyer, gave the Missouri Supreme Court its first majority of Democratic appointees in years.
Since then, the court has reversed proportionately more death cases than it had during the years when Republican appointees of former Gov. John Ashcroft, now U.S. attorney general, held sway. And the 4-3 split, while not common, showed up in two other high-profile death cases during the past year.
The same majority voted one year ago to grant a new trial to Kenneth Baumruk, who murdered his wife in a shooting rampage in the St. Louis County Courthouse in 1992. And it also granted the order in April that eventually freed Joseph Amrine. He was sent to death row in 1985 for a prison murder based upon testimony from three other inmates who since have recanted.
Joining Stith and Teitelman in the Simmons case Tuesday were judges Ronnie L. White and Michael A. Wolff. Joining Price in dissent were Chief Justice Stephen N. Limbaugh Jr. and Duane Benton. Holden appointed Stith and Teitelman, the late Gov. Mel Carnahan appointed White and Wolff, and Ashcroft appointed Price, Limbaugh and Benton before he left the governor's office in 1993.
The Post-Dispatch reviewed state Supreme Court death penalty rulings since 1997, the first year in which the court published decisions on its Web site. The review shows the court has affirmed six death sentences and reversed six others so far this year. Most of those reversals were unanimous rulings.
In 2002, the court affirmed seven and reversed six.
That roughly 50-50 reversal rate is much higher than the court's record from 1997 through 2001, when it affirmed 61 death cases and reversed 18. Until March 2001, when Stith was appointed, Ashcroft appointees still had a 5-2 majority on the court.
McCulloch, who criticized the Simmons ruling, said the Missouri Supreme Court "is certainly heading in the direction" of hostility to death sentences. To Stack, of the coalition opposing capital punishment, the court's shift "shows the judges are giving a more critical eye to these cases, rather than serving as a rubber stamp."
Missouri Senate President Pro Tem Peter Kinder, R-Cape Girardeau, called the shift on the court "one of the most undernoticed developments in Missouri government."
"This decision is especially alarming," said Kinder, who also is a lawyer. "It reads like something pulled out of the air. It is not law, properly understood."
Kinder warned that more such decisions could inspire an effort to unseat one of the majority judges when they stand for voter retention. State law requires that Supreme Court judges be retained in office by statewide vote at least one year after they are appointed and then every 12 years. Stith was retained last November, but Teitelman must stand before voters next year.
Sen. Michael Gibbons, R-Kirkwood and majority floor leader in the Missouri Senate, said: "We now have a very activist majority on our court that is stepping into the legislative arena. Presuming what the U.S. Supreme Court might do is not its role."
Stith's ruling goes like this:
In 1989, the U.S. Supreme Court ruled in separate cases that states could execute offenders who were 16 or older at the time of their crimes and that there was no constitutional bar to executing offenders who may be mentally retarded. Since then, only six states, including Missouri, have executed offenders who were younger than 18 at the time. (In 1993, Missouri executed Frederick Lashley of St. Louis, who was 17 when he killed his stepmother, Janie Tracy, in 1981.)
Meanwhile, five states outlawed executing juveniles, bringing to 16 the number that prohibit the practice. Numerous religious and civic organizations oppose it, as well as the United Nations. Clearly, therefore, evolving standards in the United States support a ban, the ruling says.
"This court clearly has the authority and obligation to determine the case before it based on current - 2003 - standards of decency," Stith wrote.
In a poll taken in May 2002, the Gallup Organization found that 70 percent of its respondents support the death penalty for murderers, but only 26 percent endorse executing juveniles.
The Missouri Legislature's spring session considered, but did not pass, bills to raise the minimum age to 18 from the current 16. State Rep. Robert Mayer, R-Dexter and crime committee chairman, said there was no strong push to change it. Missouri considers an offender to be an adult as of his or her 17th birthday, but allows courts to certify 16-year-olds as adults in death cases.
Illinois does not allow execution of offenders who were under 18 when they committed their crimes.
Only two people in Illinois have been sentenced to death since January, when outgoing Gov. George Ryan commuted the death sentences of all 167 Illinois death row prisoners.
And the state's freeze on executions remains in force. The Illinois Legislature in June adopted an overhaul of the death penalty system, although Gov. Rod Blagojevich vetoed a small part that legislators will reconsider in the November veto session.
Other than Simmons, the only other Missouri offender whose case fits the issue is Antonio Richardson. He was 16 when he raped sisters Julie and Robin Kerry and tossed them from the old Chain of Rocks Bridge in 1991.
The three law professors who endorsed Stith's reasoning are Roger Goldman of St. Louis University, Peter Joy of Washington University and professor emeritus Edward Hunvald of the University of Missouri. They said death penalty cases are special matters and noted that the U.S. Supreme Court already is known to be one vote short of endorsing Stith as well, although it declined to take up a similar case only last January.
"It's like reading tea leaves," said Goldman. "I know that Justice (Sandra Day) O'Connor has her problems with the death penalty, so you're talking about how one justice might go. And the court did, all of a sudden, reverse the retardation case."
Said Joy, "The Missouri Supreme Court isn't absolutely bound by old precedent. What it has done is consistent with the (U.S.) Supreme Court's own decision on executing the mentally retarded. . . . It's a fundamental matter of what's right and wrong, and the United States doesn't stand in very good company on the (juvenile) issue."
Hunvald called the state court's strategy "unusual. But one way to look at it is that this approach makes it much more likely for the U.S. Supreme Court to hear this case."
The Supreme Court ruling that banned the execution of mentally retarded offenders was Atkins v. Virginia.
Reporter Tim O'Neil is on general assignment for the Post-Dispatch.
Reporter Tim O'Neil
E-mail: toneil@post-dispatch.com
Phone: 314-340-8132