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Kansas death penalty faces new challenge with ACLU invoking landmark abortion decision

Jan. 18, 2023 Updated Wed., Jan. 18, 2023 at 9:14 p.m.

By Jonathan Shorman The Kansas City Star The Kansas City Star

The ACLU is mounting a major new effort to overturn Kansas’ death penalty, arguing it’s racially discriminatory and that, because of a landmark state Supreme Court decision upholding abortion rights, officials must clear a high legal bar to show capital sentences are constitutional.

The Sedgwick County murder case against Kyle Young, who is accused of a double killing in downtown Wichita on Jan. 2, 2020, has become ground zero in the death penalty abolition push. The American Civil Liberties Union has quietly filed an extensive legal briefing in the case, with numerous expert reports, attacking capital punishment as violating the Kansas Constitution.

Henderson Hill, senior counsel at the ACLU’s capital punishment project, said Kansans have a healthy skepticism of government that should extend to the death penalty.

“Government acts no larger than when it chooses to take the life of a citizen,” Hill said in an interview. “And when we have our doubts about whether government can deliver mail, educate its children, feed the hungry … Why should Kansas have confidence that its administration of the death penalty is constitutional?”

The ACLU says that when the Kansas Supreme Court in 2019 found that the state constitution protects abortion, a decision called Hodes, the justices set a “strict scrutiny” standard for laws that infringe on fundamental rights. The ACLU argues this high bar means Kansas has the burden of proof to demonstrate why the death penalty shouldn’t be thrown out.

“For the very same reasons liberty applies to reproductive rights, life should apply to the death penalty,” Hill said.

Black jurors in Kansas, especially Black women, are disproportionately likely to be excluded from juries weighing whether to impose the death penalty, the ACLU claims. How Kansas conducts death penalty trials biases jurors toward imposing death sentences, the organization argues, and the death penalty violates the state constitution’s protections against cruel and unusual punishment.

The ACLU’s involvement in the Young case is part of a set of legal challenges nationwide over how juries are selected in death penalty cases. The ACLU has also launched litigation in North Carolina and Florida, arguing death penalty jury selection in those states is racially discriminatory.

“Far from severing its historical ties to racial violence and terror, the death penalty continues to perpetuate racial discrimination. Racial bias drives jury selection, the use of discretion by prosecutors and police, and the imposition of jury verdicts,” Bria Nelson, an attorney with the ACLU of Kansas, wrote in a legal briefing filed in October.

Sedgwick County District Court Judge Jeffrey Goering has scheduled a hearing over the death penalty challenge for Feb. 6. Young’s trial, which was scheduled to begin Feb. 7, has been continued until October 2023.

Sedgwick County District Attorney Marc Bennett, a Republican, has urged Goering not to take up the issue because Young hasn’t yet been convicted, let alone sentenced to death. Even so, Bennett wrote in a December filing, “the issues raised have all been litigated and resolved by existing case law.”

Nine currently sentenced to death

The legal fight over the death penalty playing out in Young’s case comes as the U.S. Supreme Court this month declined to hear appeals from Jonathan and Reginald Carr, brothers who killed four people in Wichita in December 2000. Kansas hasn’t executed anyone since the state reinstated the death penalty in the 1990s.

The last Kansas execution was carried out in 1965. For comparison, Missouri has regularly executed inmates since 1989, with two in 2022. Oklahoma has also regularly carried out executions since the early 1990s.

Kansas is one of 24 states with the death penalty, but as of 2019 was among 11 states that hadn’t conducted an execution in more than a decade, according to the Pew Research Center. Periodic attempts to repeal the death penalty have faltered in the Legislature. Gov. Laura Kelly, a Democrat who began her second term this month, said during her campaign she supports repeal.

Rep. Mark Schreiber, an Emporia Republican, has twice introduced legislation seeking to abolish the death penalty but his bills have never made it through the committee process. He said Friday he plans to meet with advocates to determine whether or not to file a bill this year.

He was unsure how court challenges to the death penalty would impact legislative efforts.

“I don’t think it’s been a high priority, as long as I’ve been in the Legislature, to move it,” said Schreiber, who voiced concern about the possibility of executing an innocent person. “I think there’s beginning to get more interest in something like that to pass, it’s just a matter of getting it through the committee process and up to the floor and getting it passed there. It’s not one I ever expected would move real quickly.”

Nine men currently have death sentences in Kansas, with seven having finished direct appeals. The latest effort to overturn the death penalty holds the potential to create years of additional litigation, especially if the challenge eventually reaches the Kansas Supreme Court.

Nearly a year ago, the Kansas Supreme Court in two opinions affirmed the death penalty sentences of the Carr brothers. The court rejected arguments that the death penalty was unconstitutional and that errors at trial should void the death sentences.

The decisions capped years of litigation over the Carr brothers. The Kansas Supreme Court overturned their death sentences in 2014, but the U.S. Supreme Court later overruled that ruling. The Kansas Supreme Court’s 2014 decision led to a backlash and an unsuccessful campaign to oust the justices who had been involved in the opinion.

The Kansas Supreme Court ruled in 2022 that the Hodes decision itself doesn’t mean the death penalty violates the state constitution. The court’s majority opinion said that the Kansas Constitution “acknowledges a person’s inalienable right to life, but that right is not absolute or nonforfeitable.”

In those decisions, the state’s high court rejected a “facial” challenge to how Kansas seats a jury to weigh whether to impose a death sentence. In other words, the court ruled the process itself wasn’t unconstitutional as written.

But the ACLU in Young’s case is now challenging the process as it is actually practiced.

“As applied, death qualification systematically excludes Black and female jurors, biases jurors against the defendant, and produces a jury disproportionately prone to conviction and death,” Nelson’s October filing says.

Racial discrimination claimed

The ACLU has filed several expert reports to bolster its argument.

A survey of 600 jury-eligible adults in Sedgwick County in late December 2021 and January 2022 found that Black and white jury-eligible residents had significantly different views of the death penalty. Sixty-three percent of white respondents supported the death penalty, compared to 44% of Black respondents.

The survey was conducted by a public opinion firm for Mona Lynch, a professor of criminology, law and society at the University of California-Irvine, who produced an expert report that the ACLU has filed in Young’s case. The survey asked respondents the same kind of questions that a judge would ask when seating a jury qualified to impose the death penalty – a process called death qualification.

Lynch wrote that “death qualification has the potential to disproportionately exclude Black jury-eligible citizens, especially impacting Black women.”

“The results also indicate that the death qualification process will result in a jury pool that is significantly and substantially more supportive of the death penalty than is the broader jury-eligible population in the county,” Lynch wrote.

The ACLU also cites a report by Jeffrey Fagan, a professor of law and epidemiology at Columbia University in New York, who studied capital murder cases in Sedgwick County between 1994 and 2020. Fagan found that prosecutors were more likely to seek the death penalty in cases where victims were white or women, and overwhelmingly more likely in cases with white female victims.

Additionally, Black or Hispanic defendants who kill white victims are significantly more likely to be charged with capital crimes and death-noticed compared to other death-eligible cases, according to Fagan.

A statewide review of murder prosecutions between 1994 and 2021 by Frank Baumgartner, a political science professor at the University of North Carolina-Chapel Hill, found that while the vast majority of homicide victims in Kansas were men, most death penalty cases involved female victims. At the same time, individuals who murdered Black men have avoided the death penalty.

“Though Black men account for roughly a third of all Kansas homicide victims, this State has never imposed the death penalty for the murder of a Black man,” Baumgartner wrote.

According to documents posted on the ACLU’s website, some of the expert reports appear to have been originally prepared for the Sedgwick County case against Cornell McNeal, a Wichita man convicted of a 2014 capital murder. Bennett didn’t seek the death penalty for McNeal, who in August was sentenced to life in prison without parole.

The ACLU’s filing also cites reporting by The Wichita Eagle to argue that Black capital defendants face discrimination “from the moment police begin investigating until the moment the jury sentences them to die, and at every step in between.”

The Eagle reported in March on racist text messages between Wichita police officers. Three officers were suspended in the wake of the reporting. An investigation found 13 Wichita police officers, three Sedgwick County sheriff’s deputies and two Wichita firefighters had sent and received inappropriate text messages.

The three police officers who were suspended included a Black officer who sent a racist George Floyd meme during protests in 2020, a white officer who sent the meme to others, and a third white officer who identified with the “Three Percenters,” an anti-government militia group connected to the Jan. 6 attack on the U.S. Capitol.

Bennett, the Sedgwick County district attorney, has argued in response to the ACLU that the judge shouldn’t allow Young, through the ACLU, to call witnesses on the death penalty since the trial hasn’t even begun. And he has suggested the ACLU’s experts are promoting an extreme viewpoint.

“The supportive documentation filed in support of defendant’s motion calls into question not merely the death penalty but the American criminal justice system at large,” Bennett wrote.

“According to these experts, even well-meaning efforts … have proven ineffective to correct an underfunded criminal justice system built on a centuries-old foundation of racism, given what the defense experts describe as racist prosecutors, a racist media, ineffectual judges, and racist jurors incapable of following the court’s instructions,” Bennett wrote.

Hill, the ACLU lawyer focused on capital punishment, said the arguments that the ACLU is making – that the jury selection process for death penalty cases is discriminatory – only underscore the need for a decision before Young’s trial.

“Part of our claim and part of the evidence is this process distorts the compilation of the jury,” Hill said. “You get jurors that are much more conviction-prone, you get jurors that are much more death-prone.”

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