Missouri legislature considering expansion of death penalty to nonhomicide offenses

 The death penalty in Missouri doesn’t always seem like justice. Even if you’re a supporter of capital punishment in theory, the Show-Me State’s real-life track record is troubling, reported The Kansas City Star. Missouri officials often seem too eager to carry out executions, too slow to give credit to claims of innocence.

It’s only been a few months, for example, since Missouri put Marcellus “Khaliifah” Williams to death. Williams had long maintained his innocence of the 1998 killing that sent him to the death chamber, and his efforts to avoid execution were backed by both the prosecutor’s office and the victim’s family.

“If there is even the shadow of a doubt of innocence, the death penalty should never be an option,” St. Louis County Prosecutor Wesley Bell said at the time. That’s right. To execute an innocent man — or even a potentially innocent man — is horrifying. Or it should be. Missouri executed Williams anyway.

So it’s troubling that the Missouri General Assembly is now considering a bill that would actually expand the use of capital punishment. The bill, S.B. 196, would allow prosecutors to seek the death penalty for people accused of statutory rape and the sex trafficking of a child. It’s a bad idea.

Dispensing with the moral math Right now, capital punishment in Missouri — and across the country — is based on a simple “life for a life” math that might be morally debatable, but at least makes a certain amount of intuitive sense when it comes to the crime of murder: The taking of a life ends up being both the crime and the punishment.

The new bill, introduced by state Sen. Mike Moon, and Ash Grove Republican, dispenses with that logic. It would empower the state to execute people convicted of crimes where no death at all occurred. Again, bad idea. Make no mistake: Child sex crime cases are heinous, a shock to the conscience. I’ve personally seen a fellow journalist weep in court while listening to testimony in one case.

In another trial, I witnessed a prospective juror thrown off the panel after she started yelling in outrage about a father accused of molesting his daughter. It’s easy to see the appeal of applying the most extreme punishment to such terrible crimes. But executing somebody for a sex crime upends capital punishment’s moral math, doesn’t it? It’s a step away from “life for a life” territory that — whatever its merits and faults — at least puts pretty strict bounds on the legal ability of the state to kill its citizens.

If you’re a limited government fan, you probably should want to keep those particular limits in place. Death ‘reserved for the worst crimes’ The more immediate challenge, though, is that the U.S. Supreme Court has long since ruled that it is unconstitutional for states to execute people convicted of non-homicide crimes.

Capital punishment “must be reserved for the worst of crimes and limited in its instances of application,” Supreme Court Justice Anthony Kennedy wrote in 2008. In most cases, Kennedy ruled, “justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.” He was right. It was a good ruling. And it would seem to block the bill being considered in the Missouri Senate.

The Supreme Court is much more conservative now than it was in 2008, though, so who knows? Missouri, of course, has its own problems with the fair administration of justice. A 2023 report from the Death Penalty Information Center found that 40% of Missouri executions since 1972 were of Black people, who make up just 12% of the state population.

And of course, Missouri’s attorneys general — not just Andrew Bailey, the current holder of the office — are notorious about resisting every innocence claim that comes down the pike, no matter the merits. Which means the question, then, is this: Do you trust Missouri officials with even more death penalty powers? Maybe you shouldn’t.

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'Déjà vu all over again' Tennessee death row inmates challenge lethal injection

Nine Tennessee death row inmates are suing the state over its push for a new round of lethal injections after an execution was abruptly called off in 2022 and a follow-up investigation found scores of missteps in several executions, reported The Associated Press.

More than a decade ago, Richard Glossip, and several other death row inmates challenged lethal injection is Tennessee.  The U.S. Supreme Court denied his their claim of cruel and unusual punishment, Glossip v. Gross, 576 US 863 (2015). On a side note, Glossip made his way back to the Supreme Court this year, and the high court granted him a new trial and a chance to be exonerated, Glossip v. Oklahoma, 22-7466.

The lawsuit was filed March 14 in state court, nearly three months after officials announced a new lethal injection protocol using the single drug pentobarbital. The Tennessee Supreme Court recently agreed to schedule executions for four inmates with the first set for May.

The lawsuit argues that pain and suffering from executions using pentobarbital violate the Eighth Amendment’s ban on cruel and unusual punishment. They also contend that the Tennessee Department of Correction has failed to make changes to the execution process as the governor and an independent investigator recommended — or if it has, it has not told the public. Rather, the lawsuit claims, department officials wrote a new protocol with few specifics, making it harder to hold them accountable.

The attorney general’s office said it is reviewing the lawsuit. A Correction spokesperson declined to comment on it.

Tennessee’s lethal injection problem

Tennessee executions have been paused since 2022, when the state admitted it had not been following its most recent 2018 lethal injection protocol. Among other things, the Correction Department was not consistently testing the execution drugs for potency and purity. Tennessee’s last execution was by electrocution in 2020.

An independent review of Tennessee’s lethal injection practice, which GOP Gov. Bill Lee ordered while pausing executions, found none of the drugs prepared for the seven inmates executed since 2018 had been fully tested — including the canceled 2022 execution.

Later, the state attorney general’s office conceded in court that two of the people most responsible for overseeing Tennessee’s lethal injection drugs “incorrectly testified” under oath that officials were testing the chemicals as required. Two department officials with execution-related duties were fired.

The new lawsuit says the Department of Correction has said nothing publicly about whether it has fixed some issues raised, despite telling a federal judge it would complete recommendations by the governor and the independent investigator, former U.S. Attorney Ed Stanton.

For instance, the governor directed the department to review and overhaul its execution training procedures. Stanton, meanwhile, recommended hiring someone full-time or as a consultant with a pharmaceutical background to offer guidance on the lethal injection protocol. Stanton also suggested hiring a full-time specialist for chemical testing standards, and storage of testing results and the chemicals themselves.

From three drugs to one

Tennessee is moving from a three-drug series to just one, the barbiturate pentobarbital. Fifteen states and the federal government have used pentobarbital in executions, and five others plan to, according to the nonprofit Death Penalty Information Center. Previously, Tennessee struggled to obtain the drug because pharmaceutical companies were hesitant to fuel executions. The state has not said publicly how it plans to obtain pentobarbital.

In prior lawsuits, attorneys for the Tennessee prisoners had argued pentobarbital was preferable to the three drugs — midazolam, vecuronium bromide and potassium chloride.

That’s because U.S. Supreme Court precedent requires inmates challenging an execution method to detail a “known and available alternative,” even if they also consider the alternative unconstitutional. They’ve named other alternatives, including the firing squad.

In the latest lawsuit, the attorneys argue that death by pentobarbital could feel like drowning or suffocation as the lungs fill with liquid.

The lawyers cite research released after their previous lawsuits. And they noted that the Department of Justice under then President Joe Biden raised concerns about pentobarbital’s potential for causing “unnecessary pain and suffering” during executions.

The U.S. Supreme Court has never struck down an execution method as cruel and unusual punishment under the Eighth Amendment.

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CREATORS: Police Can Lie to a Suspect to Get a Confession

 Matthew T. Mangino
CREATORS
April 1, 2025

In 1969, Martin Frazier and an accomplice were convicted in Oregon of second-degree murder.

During an interview with police, "the officer questioning (Frazier) told him, falsely, that (his accomplice) had been brought in and that he had confessed." That was a lie. Frazier was still reluctant to talk, but when the officer persisted Frazier "began to spill out his story."

Frazier's case made it all the way to the U.S. Supreme Court. Frazier argued that his confession was involuntary because the police lied to him about his accomplice's confession. Justice Thurgood Marshall, writing for the majority, ruled "The fact that the police misrepresented the statements that (the accomplice) had made is, while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible."

The Frazier decision provided a precedent for a confession being voluntary, even though deceptive police tactics were used. Police departments have run with the decision ever since and haven't looked back.

According to the Cato Institute, police routinely employ a variety of manipulative practices, including lying about the existence of incriminating evidence like DNA, fingerprints or an accomplice's confession. Police also falsely imply leniency in exchange for "taking responsibility."

These techniques are core components of interrogations across the country. Deception is taught as a fundamental police training technique, tolerated by judges and considered a widely accepted law enforcement practice. The upside for police is the streamlining of investigations — a confession is often the end of an interrogation and the end of an investigation for that matter.

The downside is that the use of deceptive interrogation techniques significantly increases the risk of false confessions. The psychological pressure and manipulation inherent in deceptive interrogation tactics can induce even an innocent suspect to admit to a crime.

When faced with repeated assertions that incontrovertible evidence exists to secure a conviction — such as an eyewitness — some suspects begin to doubt their recollections, reported the Cato Institute.

Saul Kassin, professor emeritus of psychology at Williams College wrote in Time Magazine in December of 2022, "Within the scientific community, proof of the risk posed by the false evidence ploy is beyond dispute. Basic psychology research in a multitude of venues shows that misinformation can alter people's visual perceptions, beliefs, emotions, physiological states, memories, and the decisions they make."

Policymakers should question the role deception plays in criminal investigations and consider policies to limit its pervasiveness.

Ironically, Oregon recently became one of the first states in the country to ban police deception during the interrogation of juvenile suspects.

While juveniles and people with cognitive deficits or mental illnesses are particularly vulnerable when it comes to deceptive interrogation techniques, it is important to also understand that capable adults without any limitations regularly provide false confessions.

A person might falsely confess due to stress, exhaustion, confusion, feelings of hopelessness and inevitability, fear of harsher punishment for a failure to confess, substance use, mental health problems or a history of trauma due to sexual abuse or domestic violence.

Even more troubling is the fact that judges and juries often take confessions at face value. Confessions are often not critically scrutinized. The Innocence Project suggests regulating techniques and methods employed in the interrogation room.

For instance, policymakers should limit the length of interrogations, as research shows the reliability of statements after two hours of sustained interrogation decreases. Policymakers should also implement trauma-informed interviewing methods, which not only protect victims of emotional, physical and sexual violence, but also improve the reliability of statements made by suspects of crime.

In addition, interrogations from start to finish should be recorded. Currently, 30 states and the District of Columbia mandate the recording of interrogations, either by statute or court action.

In some states — California, Connecticut and New York — legislative proposals mandating an assessment of reliability for all confessions before admission at trial are currently pending.

These measures are meaningful attempts to reduce false confessions, but there is still a long way to go.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Lawyers need to join the fight!

The Trump administration is openly targeting Biglaw firms for their representation of clients and causes adverse to the president’s political agenda. Five top firms — Covington & Burling, Perkins Coie, Paul Weiss, Jenner & Block, and WilmerHale — have found themselves on the receiving end of Trump’s retaliatory executive orders, reported Above the Law. On top of these (likely unconstitutional) executive actions, Trump has sicced the EEOC on 20 Biglaw firms over their DEI policies, with the agency launching full-scale investigations into their alleged “unlawful” employment practices.

Outside support for these law firms has come from more than 50 bar associations, nearly 80 law school deans, and now more than 3,000 lawyers and legal organizations from both sides of the political spectrum have sent a letter to Attorney General Pam Bondi, pleading with America’s top government lawyer to step in and defend the rule of law by opposing not just attacks on these law firms, but on judges as well.

The letter, which was put together by the Society for the Rule of Law Institute and Democracy Forward, urges Bondi to live up to what she promised to do during her confirmation hearings and refuse to back “partisan weaponization” of the Justice Department. Here’s an excerpt from the letter:

It is your responsibility, as the lawyer ultimately entrusted with the representation of the United States in legal matters, to oppose attacks on the legal profession, on judges, and on the rule of law and to ensure that the Department of Justice uses its full power to protect the legal profession and equal justice under law for all people. …

It is incumbent on you to use all of the tools available to you to preserve and protect the independence and integrity of the legal profession, including opposing the use of the federal government to attack lawyers, law firms, and legal organizations for engaging in good faith representation of their clients.

Reuters has additional details on some of the lawyers who signed the letter:

Republican signatories included J. Michael Luttig, a former U.S. appeals court judge; former U.S. Representative Barbara Comstock, a senior advisor at Baker Donelson; Peter Keisler, a former acting U.S. attorney general under President George W. Bush; and Donald Ayer, a former top Justice Department lawyer under President George H.W. Bush.

Democrats who signed the letter included Marc Elias, a longtime lawyer for Democratic politicians whom Trump has criticized, and Norm Eisen, whose group the State Democracy Defenders Action is suing the Trump administration in several cases.

If you agree that Attorney General Pam Bondi should do her job properly by standing up for the legal profession and the rule of law, please click here to add your name to the list of signatories.

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AG Bondi indicates investigation into military operation breach unlikely

Attorney General Pam Bondi signaled that there was unlikely to be a criminal investigation into the sharing of military operation details in an unsecured text group, declaring that the specifics of when fighter jets would depart and when bombs would fall were “not classified,” reported The New York Times.

Ms. Bondi, speaking at a news conference in Virginia, was asked about the public debate surrounding Defense Secretary Pete Hegseth after he sent details of a coming attack on rebels in Yemen to senior administration officials in a Signal group chat that accidentally included a magazine editor.

“It was sensitive information, not classified, and inadvertently released,” Ms. Bondi said, while praising the military operation that ensued.

“What we should be talking about is it was a very successful mission,” she said, before quickly accusing Democrats from previous administrations of mishandling classified information.

“If you want to talk about classified information, talk about what was in Hillary Clinton’s home,” she said. “Talk about the classified documents in Joe Biden’s garage, that Hunter Biden had access to.”

The Justice Department opened investigations into Mrs. Clinton and Mr. Biden in those instances, but neither ultimately faced criminal charges. She did not mention the prosecution of Donald J. Trump over his handling of classified documents after his first term in office — a case that was ultimately abandoned when he won a second term.

In this case, Ms. Bondi seemed to be ruling out any similar investigation to determine all the facts.

Dating back to at least the Reagan administration, the government has considered the details of “military plans, weapons or operations” to be classified.

The F.B.I., along with the Justice Department, could still investigate the matter, but agents and prosecutors typically do not pursue cases if the information is not classified.

Under the Espionage Act, it is possible for people to be charged with crimes for mishandling national defense information that is not classified, but such prosecutions are very rare.

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Mangino discusses arrest of fire chief on Law & Crime Network

Watch my interview with Kennedi Walker of Law & Crime Network discussing the arrest of a Pennsylvania fire chief for fracturing the skull of his three month old son.

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The most outrageous post-verdict in court celebration ever!

Watch the most outrageous post-verdict in court celebration ever! Check out my response on Court TV with host Ted Rowlands.

 

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