Federal Government To Resume Capital Punishment After 16-Year Hiatus

Today, the Justice Department announced that it will carry out the death penalty for the first time in nearly two decades.

Attorney General William Barr directed the Bureau of Prisons to schedule the execution of five inmates after adopting an updated execution protocol.

After 16 years without an execution, Barr has directed the head of the Bureau of Prisons to execute “five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society — children and the elderly” in December and January, according to a statement from the Department of Justice.

In his statement, Barr said the government was moving to seek justice against the “worst criminals” and bring relief to victims and family members. At the same time, however, the government’s move is likely to reignite legal challenges to the specific protocol and reinvigorate a debate concerning the constitutionality of lethal injection.

The move represents a dramatic reversal after more than a decade-long hiatus in the federal use of capital punishment, as President Donald Trump has taken on the issue and called to “bring back the death penalty.” The death penalty is legal in 29 states and the federal government, though there have been no federal executions in nearly two decades and the number of people facing state executions has been on the decline.
The debate over capital punishment has been longstanding. Advocates argue that it’s a deterrent against serious crime and that justice is served for the victims or victim’s families. Opponents point to the racial disparities of death row inmates, the financial costs, and wrongful convictions.
At Barr’s direction, the Bureau of Prisons has adopted the Federal Execution Protocol Addendum which “replaces the three-drug procedure previously used in federal executions with a single drug—pentobarbital,” the Justice Department announced.
Legal Challenges Ahead

Barr’s announcement directs the federal government to use a new protocol — similar to what several states use — that has been under review for a number of years.

The executions are slated for the end of the year. But will likely face legal challenges and delays. Legal experts question whether any execution will take place as soon as December.

“Saying that you are going to adopt a protocol is not the same thing as having a protocol properly adopted through the required administrative procedures,” said Robert Dunham, the executive director of the Death Penalty Information Center, a group that has been critical of how the penalty is administered. “You can’t just say it and have it happen. There is a legal process for a protocol to go into effect and there is a legal process for challenging the protocol.”

Opposition will continue once the protocol is formally proposed.

Already in the District of Columbia there has been an ongoing lawsuit involving the federal lethal injection process. There will be a range of questions about how the federal government is obtaining the drug it intends to use.

We will closely monitor whether federal prosecutors in Southwest Missouri decide to seek the death penalty.

Springfield Criminal Defense Attorney Adam Woody Explains How More Missourians Can Be Excused from Jury Duty

Last week, Missouri Governor Mike Parson signed a bill into law that will allow certain people to automatically opt-out of jury duty at their choice. People who can now-opt out of the jury selection process are: healthcare providers, people that would endure extreme physical or financial hardship, nursing mothers, and those over 75 years old.  Springfield CBS affiliate KOLR10 did a story on the new law featuring Woody.

Old Law: Opt-Out With Oversight

Anyone summoned for jury duty goes through a selection process. Potential jurors are questioned extensively by attorneys for each party and by the judge and they can at that time give reasons why they wouldn’t be able to serve on the jury.

Attorneys for the State and for the defendant each have 6 “peremptory” strikes, which means they can strike a potential juror for no reason at all.  There are an unlimited number of “for cause” strikes, which are usually based on a hardship, such as age, work, financial hardship, etc. Criminal Defense Attorney Adam Woody says a new law allows some people to opt-out completely prior to having to appear for jury duty and go through the questioning process.

New Law: Opt-Out Without Oversight

“What this law does is essentially skips that step, and instead allows these people to be excused from jury service before even appearing, before even having to show up for service to go through the jury selection process,” Woody explains.

At age 72, Ruby McDaris has sat on a jury once, but her several times in the jury selection process opened her eyes to a lot of things.

“There was some things, ‘Oh I wouldn’t want to do that,’ but then I think, ‘That’s how the law works.’ So I saw a lot of insight for myself. I enjoyed it,” McDaris says.

McDaris can opt-out after she turns 75. Since the constitution provides anyone on trial a jury of his or her peers, Woody thinks that this could be an issue if many people are opting out.

“There are cases in which I would want a healthcare professional on the jury. There are cases which I may want an elderly person on the jury,” says Woody.

The change takes effect August 28.

This change could lead to interesting challenges by defendants who feel that their constitutional right to a jury trial by their peers has been impacted by allowing a large cross-section of the community to opt-out without any oversight. We look forward to monitoring how many potential jurors opt-out in Southwest Missouri once these changes are in effect.  At some point, the Constitutionality of this new law is sure to be challenged.


New Missouri Law Could Free Hundreds from Mandatory Prison Terms

Yesterday, Missouri Governor Mike Parson signed a new law that could make hundreds of prisoners immediately eligible for parole, probation, or early release. The new law exempts some non-violent offenses from a state law that requires people to serve at least 40, 50, or 80 percent of their prison terms, depending on the number of previous convictions. These changes begin on August 28, when the new law goes into effect.

Governor Parson, a former sheriff, said that the bill would help bring “reform to Missouri’s criminal justice system.” Click here to read the full text of the new law.

National Trend

The new Missouri law reflects a national trend toward more lenient prison terms for some low-level criminals as governments shift toward alternative strategies focused on rehabilitation. It received strong support from both Republican and Democrats as it passed Missouri’s Republican-led Legislature earlier this year.

Decreasing Missouri’s Prison Population

Missouri’s prison population peaked at 33,243 in September 2007, but fell to 28,038 as of Monday. The Missouri Department of Corrections noted that the decrease is due to other recent changes to Missouri’s criminal sentencing laws.

The Department estimated that the new law could decrease Missouri’s prison population by 192 people this year and by 925 people by the 2023 fiscal year. That could save the State {and taxpayers} $1 million in avoided prison costs this year alone. And nearly $5.9 million by 2023.

Mandatory Minimums Still in Place for Violent Offenses

The measure would keep in place mandatory minimum sentences for murder, assault, rape, child sex crimes, and the most serious levels of arson, burglary, and robbery, as well as various other crimes. It also would subject people convicted of top-tier drug trafficking offenses to mandatory minimum sentences.

This is a positive change for our criminal justice system and our state’s economics. We will continue to monitor how this law is put into effect. It will be interesting to see how many non-violent offenders get released from custody and how much money this saves tax payers in Southwest Missouri.


Missouri’s New Rules for Setting Bond Take Effect

Missouri’s new rules on setting bond for criminal defendant’s went into effect on July 1–and some last minute tweaks by the Missouri Supreme Court might avoid some logistical problems that could have arisen.

Judge’s Must First Consider Non-Monetary and Least Restrictive Conditions

The most prominent aspect of the new bond regime is that, in general, once a suspect is arrested and confined, judges have an explicit 48-hour deadline to set bond at an initial appearance, whether in-person or on video. In that bond setting, a judge must first consider imposing conditions of release that are non-monetary and as unrestrictive as possible in order to secure the defendant’s appearance at trial or protect the community or victim.

Right to Bond-Review Hearing Within 7 Days

If, however, the judges do order further detention, they must be able to show clear and convincing evidence it is necessary — and in that case, the defendant will have a right to a bond-review hearing within seven days. Both this seven-day window and the 48-hour window exclude weekends and holidays.

Jackson County Presiding Judge David M. Byrn suggested that the new rules were prompted by a nationwide movement against the practice of holding defendants before trial only because they cannot afford to post a bond.

Under the new bond rules, a defendants ability to pay, his or her family situation, and the danger posed to the public by release are now crucial points for judges to consider.

These new rules also apply to probation violations. Under the old rules, these arrestees needed to have a hearing within 96-hours of re-arrest; that window has expanded to seven days, excluding holidays and weekends.

When Does the Clock Start Ticking?

The initial bond appearance must be held within 48-hours after the defendant is “confined under the warrant in the county that issued the warrant.” Because many counties do not have their own jails and send their pretrial defendants to neighboring counties, the clock starts running when they are confined “in a county with which the issuing county has a contractual agreement to hold the defendant.” Additionally, the initial appearances can occur via interactive video technology.

New Rules Apply Retroactive to “Backlog” County Jail Population

On June 11, 2019, U.S. District Judge Audrey G. Fleissig issued a preliminary injunction to several inmates in the city jail for an inability to afford bail in a class-action lawsuit against the St. Louis Circuit Court. Judge Fleissig cited evidence in a random sample of 222 cases in St. Louis Circuit Court, the duty judge set a bond 98 percent of the time, without any information about the defendant’s ability to pay.

In her opinion, Fleissig wrote: “These practices do no comport with applicable Supreme Court and Circuit precedent.” Moving forward, Judge Fleissig mandated that the court not only conduct initial appearance in compliance with the new bond rules–which would be required anyway–but also that the court hold bond-review hearings within seven-days for all defendants currently in jail who had been detained for longer than 48-hours. Click here to read Judge Fleissig’s opinion.

Avoiding Clogging the Courtrooms

Some critics have voiced concerns that these new bond rules will clog the courtrooms. However, some jurisdictions have already prepared for implementing the new rules. In the city of St. Louis, Presiding Judge Rex Burlison said that his court is setting up a standalone courtroom outfitted with a closed-circuit video system between it and the county jail to hold the mandated initial appearances within 48-hours. Judge Burlison said that this change will prevent the bond hearings from clogging up the courtrooms.

We will certainly be monitoring how courts in Southwest Missouri implement the new bond rules and the consideration judges give to non-monetary conditions of release. If you or someone you love gets detained on criminal charges, it is critical that you hire an attorney familiar with these new rules and as soon as possible after arrest to be represented by an attorney at the new mandatory bond hearings.


Click here to read the Rules on Bond for Misdemeanors.

Click here to read the Rules on Bond for Felonies.

Click here to read the Rules on Initial Bond Appearance for Felonies.