This article first appeared in the St. Louis Beacon: In a properly functioning democratic system, the legislature should make the key policy decisions, and executive officials should implement those decisions. There is no more important policy decision than determining what types of crimes merit capital punishment. In Missouri, the legislature has effectively delegated that decision to county prosecutors.
Two co-authors and I recently completed a detailed empirical study of capital punishment in Missouri. The data show that only 2.5 percent of defendants prosecuted for intentional homicide are sentenced to death. In about 2.5 percent of cases, juries reject the death penalty. This means that 95 percent of intentional homicide cases are never presented to juries as capital cases. However, more than 76 percent of intentional homicide cases are eligible for the death penalty under the statute.
Discretionary choices by individual prosecutors account for the difference between the 76 percent of cases that are death-eligible and the 5 percent that are presented to juries as capital cases. In sum, in 71 percent of intentional homicide cases in Missouri, prosecutors decide not to pursue a capital trial even though the case is death-eligible under the rules promulgated by the legislature.
If prosecutors in different counties exercised their discretion in similar ways, the system would not produce arbitrary results. In fact, though, substantial variations exist across counties.
Prosecutors in St. Louis County pursued capital trials in more than 7 percent of their intentional homicide cases. In contrast, prosecutors in Jackson County (Kansas City) pursued capital trials in fewer than one-half of 1 percent of their cases. These disparities raise the disturbing possibility that decisions about who lives and who dies may be guided more by the philosophical predilections of individual prosecutors than the culpability of individual defendants.
Two key factors contribute to the breadth of prosecutorial discretion and the arbitrariness associated with large variations across counties.
The first is the statutory line that separates first degree murder (M1) from second degree murder (M2). M1 cases are death-eligible; M2 cases are not.
Under Missouri law, about 85 percent of intentional homicide cases are statutorily eligible to be prosecuted as M1. However, only about 23 percent of the cases yield M1 convictions. Discretionary decisions by individual prosecutors account for the vast majority of the difference between the 85 percent of cases that are M1-eligible, and the 23 percent that yield M1 convictions.
Not surprisingly, there are substantial variations across counties in the rate at which prosecutors pursue M1 charges. For example, prosecutors in St. Louis city charged M1 in 85 percent of their intentional homicide cases, whereas prosecutors in Jackson County charged M1 in only 29 percent of their cases. This striking contrast provides compelling evidence that, in practice, the distinction between M1 and M2 is left almost entirely to prosecutorial choice.
The second key factor is the statutory list of aggravating factors. Under current law, if a defendant is convicted of M1, the prosecutor must still prove the presence of one or more aggravating factors to obtain a death sentence. However, this is a remarkably low hurdle, as at least one aggravating factor is present in about 90 percent of M1-eligible cases. In theory, the aggravating factors should narrow the class of murder cases that are eligible for the death penalty. In practice, though, the factors are so numerous and broad that 90 percent of M1-eligible cases are death-eligible.
If Missouri is going to continue imposing capital punishment on about 2-3 percent of defendants who commit intentional homicides, the death penalty should be reserved for the "worst of the worst." My co-authors and I have proposed a narrower statutory definition of M1 that would require real premeditation. (The current statute requires "deliberation," but this requirement is virtually meaningless because the killer can deliberate "in the blink of an eye.") Under our proposed statute, only about 36 percent of intentional homicide cases would be M1-eligible. We also propose legislation that would reduce the number of statutory aggravating factors and narrow the scope of the factors that remain. Under this proposal, only about 40 percent of M1-eligible cases would be death-eligible.
By adopting these proposed statutory reforms, the legislature could promote greater consistency across counties in prosecutorial decision-making and re-assert legislative control over key policy decisions about which homicide defendants are truly the "worst of the worst."
David Sloss is a professor of law at St. Louis University School of Law.