January Alert

Five death penalty bills have been introduced in the Kansas Legislature:

• Senate Bill 6- to abolish capitol punishment
• Senate Bill 28- to address how aggravating and mitigating factors determine who gets the death penalty.
• House Bill 2061- same as above
• Senate Bill 14- deals with the issue who meets the definition of mental retardation or cognitive disability in application of the death penalty
• Senate Bill 32- same as above

Monday January 24, at 9:30AM in Room 123 of the State Capitol, a public hearing on SB 28 will take place. Then Wednesday January 26th, same time and place, a public hearing on SB 6 will occur. Please attend, and/or contact your legislators with the message: "END it, don't MEND it!"

Major Legal Questions Exist

In a December 2004 ruling, the Kansas Supreme Court invalidated a key section of the Kansas death penalty law. In State of Kansas v. Michael Marsh II, the Court held K.S.A. 21-4624(e) unconstitutional. This section stated that if aggravating and mitigating factors were equal, a capital jury must sentence the defendant to death.

This section had previously drawn the attention of the same court in the case of State of Kansas v. Gary Kleypas. That court held in 2001 that this "equal" language was unconstitutional, but attempted to salvage the law by claiming the Legislature intended to pass a constitutional law. The Court vacated Kleypas' death sentence. This statutory language dilemma was expected to result in the reversal of death sentences for 3 other inmates who were sentenced using the unconstitutional provision. Marsh was one of those inmates.

When this issue was raised in Marsh, the Justices again ruled the section unconstitutional. This time however, the Justices said it was the Legislature's responsibility to fix the law, not the Court's. The Marsh opinion noted that the Legislature had been advised by the Attorney General in 1995 that this section needed to be changed, but the Legislature declined. The Court further found that this section of the law was contrary to the Eighth Amendment and to principles of fundamental fairness. All of this impacted on their finding of unconstitutionality.

Following the Marsh decision, the Attorney General filed a request for the Court to stay its decision to allow a request for review by the United States Supreme Court. That request was granted.

Implication: If the United States Supreme Court declines to review the case, or if it affirms the Kansas Supreme Court decision: All of Kansas' existing death sentences are wiped out. This would include future death sentences in cases tried under the infirm language. They would be resentenced using the Hard 40, Hard 50, and life without parole provisions of the law.

Serious Problems Documented in Kansas Death Penalty Process

Disparity in Application

In a study released on January 12, 2005, the Judicial Council reported: "...there is a geographic disparity in whether these capital charges are brought to trial. Based on the two counties with the most potential capital cases, Wyandotte and Sedgwick, it is obvious that a capital defendant in Sedgwick County is much more likely to proceed to trial than one in Wyandotte County. Thus, a capital defendant in Sedgwick County is also much more likely to receive a death sentence than a capital defendant in Wyandotte County."

(emphasis not in original)

Up to 70% More Costly than Non-Death Homicide Cases--Statewide

Legislative Post Audit, in its report released December 19, 2003, reported that the average cost of a death penalty case can be up to 70% more than a non death penalty homicide. The death penalty case cost was given as $1.2 million, while the non death penalty case cost was listed at about $740,000.

Prosecutorial Misconduct--Case of Gary Kleypas (Crawford County)

In its decision, the Kansas Supreme Court said "...we note that the instances of prosecutorial misconduct were numerous...Many of the instances...appear to stem from a misunderstanding of the law regarding the imposition of the death penalty and cannot be characterized as intentional. Others, however, would be improper in any proceeding and can only be explained by the pressure put on the prosecutor to secure the death penalty in a high profile case....." (emphasis not in original) (State v. Kleypas, 272 Kan. 1123 40 P.3d 139, 270) The Court stated that had they not reversed sentence because of other issues, the prosecutorial misconduct "might very well have provided an additional basis for reversal."

(State v. Kleypas, 272 Kan 894, 112340 P.3d 139, 293)

Jury Misconduct--Case of Gavin Scott (Sedgwick County)

On February 13, 1999, the Wichita Eagle reported that Judge David Kennedy threw out the death sentence of Gavin Scott. Judge Kennedy ruled that jury misconduct had occurred when one juror apparently tried to use religious documents to influence another juror. The Judge felt there was enough question regarding the possible influence of this behavior that he ordered a new sentencing hearing.

Trial Error by Judge--Case of Michael Marsh (Sedgwick County)

In an opinion released in December 2004, the Kansas Supreme Court vacated the capital murder and aggravated arson convictions of Michael Marsh. The Court found that District Court Judge's refusal to allow the defense to present evidence about a third party's involvement in the crime was a serious error, and thus threw out these convictions.

Provisions of the 1994 Death Penalty Law whose status is now uncertain

Eligibility for the Death Penalty

Kansas' 1994 Kansas death penalty law provided the option of a death sentence for intentional, premeditated murders that contain one or more of these seven factors:

• kidnapping or aggravated kidnapping for ransom
• contract murder
• murder of any person by an inmate in a correctional facility,
• murder of a victim of rape, criminal sodomy, or aggravated criminal sodomy in the attempt to commit or the commission of, subsequent to the crime,
• murder of a law enforcement officer,
• murder of more than one person during the same act, or in two or more acts connected as part of a common scheme,
• murder of a child under the age of 14 in the commission of kidnapping when the kidnapping is done with the intent to commit an unlawful sex offense upon or with the child, or with the intent that the child commit or submit to a sex offense.

To be eligible for the death penalty, the defendant must have been at least age 18 at the time of the crime. Persons who were found to be mentally retarded were not subject to the death penalty.

Alternative Sentence to Death

Persons convicted of capital murder prior to July 1, 2004, who were not given a death sentence were sentenced to either twenty-five or fifty years in prison. These were "hard" sentences meaning that number of years must be served before even being considered for parole. There was no good time credit.

For murders occurring after July 1, 2004, life without parole was the alternative sentence for offenders over age 18 and who were not mentally retarded.

Death Row

Death sentenced men are held at El Dorado Correctional Facility in the Administrative Segregation Unit. Any women sentenced to death would have been held at the Topeka Women's Correctional Facility.

Executions

Executions would have been by lethal injection at the Lansing Correctional Facility's execution chamber in the old Administration Building.