I.

EXECUTION SET

1. The death of Martsay Bolder by execution is set by order of the Supreme Court for January 27, 1993.

2. Appeal has been filed with the U.S. Supreme Court but no stay has been granted.

II.

PARDON POWER IS INHERENT TO THE PEOPLE;

CITIZENS HAVE STANDING TO APPLY

3. The power to pardon, reprieve or commute is inherent in the sovereignty of the people of the State who have conferred the exercise of this power on the Governor by virtue of Article IV, Section 7 of the Constitution of Missouri. The power exists to serve the Common Good and not merely the individual under sentence.

offender) who, on no sound principle, ought to have any voice in what the law should do for the welfare of the whole." Biddle v. Perovich, 274 US 479, 487 (Justice Holmes). "A pardon in our days is not a private act of grace from an indi- vidual happening to possess the power. It is a part of the Con- stitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than the judgment fixed. * * * The public wel- fare, not his (the prisoner's) consent, determines what shall be done." Biddle, supra p. 486.

5. Precedent has been established for the right of these Applicants as citizens of the State to apply for reprieve or commutation in behalf of the common good and to have the Board of Probation and Parole review such application pursuant to Section 217.800, RSMo. On October 31, 1984 religious leaders and others, including some of the present applicants, filed an Application for Reprieve or Commutation relating to the capital execution of Gerald Smith with then Gov. Christopher S. Bond. Gov. Bond accepted the Application, referred it to the Board of Probation and Parole for review. Prior to the action of the Board on the Application, a federal stay order intervened and subsequently Gerald Smith resumed his legal appeals thus making the Application moot. This clemency process was subsequently used in relation to George Mercer, Leonard Laws, Bobby Lewis Shaw, Leonard Laws,

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George Gilmore, Maurice Byrd and Ricky Grubbs. Such "citizen" applications have been presented and acted upon since the earliest years of Missouri statehood. One of the earliest women prisoners was pardoned upon the application of her neighbors.

III.

REVIEW UNDER SECTION 217.800, RSMO. REQUESTED

6. The undersigned invoke the requirements of Section 217.800, RSMo, which requires that "all applications for pardon, commutation of sentence or reprieve shall be referred to the Board (of Probation and Parole) for investigation." Further we request timely notice of the Board's proceedings and an opportunity to be heard prior to the completion of their investigation. The undersigned respectfully request an opportunity to be heard prior to the completion of their investigation. We request that the reasons for mercy and commutation outlined in this application be considered in granting commutation, not simply the prior conviction records and related parole materials of Martsay Bolder. We request a written response to this Application.

IV.

COMMUTATION SHOULD BE GRANTED BECAUSE OF MENTAL

HEALTH PROBLEMS EXPERIENCED BY MR. BOLDER

7. Some background information on Mr. Bolder is pertinent. Mr. Bolder attended school until 8th or 9th grade. A report of psychiatric examination by Humberto Parraga, M.D., Fulton State Hospital in October, 1979, indicated that Mr. Bolder had been in special education classes as a youth and that at the time of the examination was given a diagnosis of "310.8 Borderline intellectual Functioning."

8. The same examination indicated that he had a "Diagnosis 301.7 of Personality Disorder, Antisocial." As additional information, it was stated

that he had a chaotic family background and a history of substance abuse. He also was a patient at Western Missouri Mental Health Center for almost a year in 1973.

9. Given the mental condition of Mr. Bolder, clemency would be justifiable. Given the above diagnosis, it would be possible to seriously question whether Mr. Bolder could think through the consequences of his actions. He would have less ability then other individuals to work through thought processes and come to a responsible resolution of the situations of conflict which resulted in the death of Theron King.

V.

A REPRIEVE SHOULD BE GRANTED PENDING ANALYSIS OF THE PROPORTIONALITY OF THE

DEATH PENALTY'S USE IN THIS AND SIMILIAR CASES.

10. A sentencing commission has been established by Section 559.019, RSMo. Supp 1992. The Commission is charged with studying disparities in sentencing. The Commission has special duties to study sentencing in relation to the death penalty. The Commission is working on its assigned task.

11. The public policy of Missouri is to make the use of the death pen-

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alty contingent upon whether the penalty is proportionate. Section 565.035, RsMo., expresses this policy by requiring the Missouri Supreme Court to examine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. Subsection 6 of Section 565.035 establishes a special legal assistant to the Supreme Court charged with collecting records in all cases in which the sentence of death or life imprisonment with probation or parole was imposed.

12. Over 200 offenders has received life without parole and 100 offenders are now on death row. There is sufficient experience to analyse proportionality as between this sentences.

13. The dissenting opinion by Judge Robert Seiler of the Missouri Supreme Court in State v. Bolder, 635 SW2d 673, 691-692, states:

"If the murder in the present case had occurred in a tavern or on a parking lot or elsewhere outside the prison walls by someone not in confinement, there would have been no reasonable likelihood, in my opinion, of the prosecutor being able to obtain a capital murder conviction, much less the death penalty. it would work out as a second degree murder case."

Fairness does not seem to exist if a murder in one place could result in a sentence of life in prison and in another place could result in death. While it is fair that some punishment exist, the disparity between the life sentence on the one hand and death on the other is too great, based simply on the condition of -olace.

14. Therefore, we call upon the Governor to issue a reprieve in this matter until the Sentencing Commission has had a reasonable opportunity to analyse the data on proportionality in connection with the use of the death penalty in Missouri. To proceed with executions now would be to disregard or make a fraud of the public policy set forth in Section 559.019 and 565.035.

VI.

COMMUTATION SHOULD BE GRANTED

BECAUSE THE DEATH PENALTY IS NOT A DETERRENT

IN FACT ITS USE MAY THREATEN THE COMMON GOOD

15. A recent study concluded the following:

"During the 1950's there is no evidence that executions had even the slightest deterrent effect on murder. In addition, based upon our analysis of this decade, we find no support for the argument that a return to past execution practices will provide an effective solution to the murder problem. Rather, if executions are to again receive a prominent role in the criminal Justice system, their use will have to be justified on grounds other than deterrence."

This study compared murder and executions in death penalty states in the

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16. There is an alarming correlation between the date of the last period of executions in Missouri and a significant increase in the number of homicides. Prior to the recent renewed use of execution, the last execution in Missouri occurred on February 26, 1965. In 1964, the year prior to the execution, there were 240 homicides in Missouri. The executions occurred early in 1965. In 1965 there were 300 homicides in Missouri, an increase of 60 over the preceding year. In 1966, the year following the executions, there were 246 homicides in Missouri, a decrease of 54 from 1965. That is, there were significantly more homicides during the year of the last executions in Missouri than either the year before or after. This correlation must be given serous consideration in light of the opinions of psychiatrists that killing by the state is an incentive to those with a murder-suicide syndrome and a trigger to increasing intentional homicide.

17. The renewal of executions in January, 1989 shows a similar correlation of increased homicide following the use of capital punishment.

Capital punishment does not protect society; rather, the correlation is that homicide increases when the State uses capital punishment. Apparently the State by the use of violence, is teaching that killing is an acceptable means of solving personal problems.

18. Reliance on capital punishment wastes resources which could be better used by society, including the development of better ways to reduce crime. The cost of capital punishment litigation exceeds the cost of life imprisonment. Estimates are that it is about six times as expensive.

19. The Common Good of the people of Missouri would be better served by commutation of the death sentence.

20. Society abhors violence. Violence begets more violence. The death penalty is clearly no more of a deterrent than imprisonment; in fact, it appears to be an incentive to more murders. Execution destroys human life, a gift of our Creator, Redeemer God. It debases humanity, encourages revenge, precludes repentance and sanctions violence as a solution. ' It is in the interest of the Common Good of the people of our state that the cycle of violence be broken.

FOR THE FOREGOING REASONS, a reprieve staying the carrying out of the death penalty pending further actions as hereinabove described should be granted or in the alternative, the death sentence should be commuted to life

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Eugene P. Schwartz
Ethical Action Committee, Ethical Society of St. Louis

Edna Silvestri
Chair, Missouri CURE

Most Rev. John J. Sullivan
Bishop of the Catholic Diocese of Kansas City-St. Joseph

Dr. John Williams
Presbyterian Synods of Mid-America

Women's International League for Peace and Freedom, St. Louis Branch

Dated January 25, 1993

Louis C. DeFeo, Jr.
Attorney at Law
P.O. Box 1022
Jefferson City, MO 65102
314/635-7239
(Attorney for Applicants)