“Missouri doesn’t have a death penalty,” a former prosecutor remarked to me last Christmas. He was wrong, as he well knew. The Revised Statutes of Missouri specifically allow for capital punishment. But as a practical matter, the man was right. At the time he spoke, Missouri had not put a person to death since 1965, even though around 65 persons reside on the state’s death row. In January, however, George “Tiny” Mercer came to rest at last on a gurney in the nondescript surroundings of a Jefferson City prison. He was the first person this state has executed by lethal injection, and the first person Missouri has executed in more than 20 years. Mercer had survived on death row for almost a decade. Prison officials had prepared to execute certain inmates four other times between October and January, to no avail; the rest of the condemned have managed to stay alive with strategically filed appeals, writs, motions, and so forth.
Pro-death penalty forces may reasonably wonder what the point is of bothering with death penalty statutes. Execution is too infrequent to be a deterrent to others, and too distant from the crime itself to seem retributive or principled. Only 11 criminals were executed in 1988, though more than two thousand are condemned to death. Furthermore, US Supreme Court decisions indicate the situation will not change.
Nonetheless, these statutes have benefits that are often overlooked—benefits that even anti-death penalty partisans should acknowledge. These statutes streamline the administration of justice and keep dangerous criminals off the streets longer than would be likely without them. The reason? Death statutes encourage guilty pleas and other deals. Though casual with the lives of others, murderers have a great fear for their own. Therefore, they sometimes plead guilty to the most serious charges to save their lives. Just recently, Robert Berdella, a homosexual mass murderer in Kansas City, pleaded guilty to six homicides in exchange for his life. He will never be paroled. Another Missourian pleaded guilty to two murders to avoid his execution, and received life in prison without parole as well. Both plea bargains were reached under the specter of the death sentence, even though at the time Missouri had not put a person to death in nearly a quarter of a century. Significantly, the latter had professed his innocence until the death-qualified jury was actually in place. Deals may also include agreements by the criminals to testify against comrades. Obviously, the death statutes have clout even when they are not used for their intended purpose.
Obviously also, a prosecutor without the death penalty backing him has less to bargain with. In states without a death penalty, perpetrators of grisly murders are more likely to go to trial or plea bargain for much less proportionate punishment. Trial means expending untold sums and energy, risking reversible trial error, and fretting over witness and jury unpredictability, in order, if the state is lucky, to get the results Missouri got more easily in the cases mentioned above.
The outcome in the Missouri cases-has its unsatisfactory side. The evidence suggests that both murderers not only killed for thrills but tortured as well, and the state had reliable witnesses who were willing to say so. The death sentence for these men, assuming a trial with no surprises, was an absolute certainty. Now these criminals can be expected to live a long life at the taxpayers’ expense. But such was probably the case even if these criminals had been sentenced to death.
Why, then, does the mere existence of these statutes set off the anti-death penalty crowd like nothing else? In my limited experience, the answer is that some people are uncomfortable with the notion of any type of serious punishment for the violent, especially life prison terms. These are the people who write letters to the editor of their local paper reminding us that most murderers were abused as children and economically deprived. Maybe. Maybe not. It has been my observation that most violent criminals are compulsive liars, in addition to everything else.
Some lawyers will describe their clients as victims of circumstances—given too easy access to alcohol and weapons at the same time, for example. These lawyers indicate further that they blame the prison environment for the ever-apparent deficiencies in their clients’ characters. Recently, I was describing to a public defender the utter depravity of one of my clients, who is seeking post-conviction relief. This lawyer opposes the death penalty and, judging from her lapel button, favors peace and justice in Central America. She told me that my point of view was understandable, but that I must realize that post-conviction relief clients have been in a poisoned environment for a while and that the prison experience is the cause of their appalling nastiness. “When they first get to prison, they’re really nice,” she said. “Even murderers are nice.”