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September 2, 2012

After six capital case reversals over two decades, should Kansas give up on the death penalty?

The question in the title of this post is prompted in part by this AP piece headlined "Critics: Death penalty must go; Activist says growing number of people against capital punishment."  Specifically, these excerpts from the story makes me wonder whether even strong supporters of capital punishment might conclude that, in the Jayhawk State, the capital punishment game just ain't worth the candle:

A leading death penalty opponent says it's time for Kansas to stop sentencing criminals to be executed after the latest appealed conviction was overturned, the sixth such reversal in six cases before the state's high court.  Donna Schneweis, chairwoman of the Kansas Coalition Against the Death Penalty, says she realizes the odds of repealing the 1994 law are slim, but a growing segment of society is changing its view on capital punishment in the United States....

Attorney General Derek Schmidt said "it's always possible" that the law would get repealed, but he supports keeping it as an option.  "I think that with each year that passes and an increasing body of case law that we are inching closer to a law that can be carried out," said Schmidt, a Republican and former state senator.

Republican Gov. Sam Brownback has spoken out in the past about the death penalty, including his presidential run in 2007 when he said the nation should strive to create a culture of life.  He said at the time that it should be held out for special cases, such as Osama Bin Laden or other terrorist figures.  Sherriene Jones Sontag, the governor's spokeswoman, said Friday that Brownback supports the death penalty "when there are no other options to protect society."...

The last execution in Kansas was in June 1965 by hanging.  The latest case to be overturned was announced Aug. 24 when the court struck the conviction of Scott Cheever for the 2005 shooting death of Greenwood County Sheriff Matt Samuels.  Cheever admitted to killing the sheriff at a southeast Kansas home but said it wasn't intentional and he was under the influence of methamphetamines.

The court struck down the conviction because of testimony given by an expert witness presented by prosecutors who divulged information about a psychological evaluation of Cheever when his case was originally filed in federal court.  Cheever's case began at the federal level because the Kansas death penalty law was ruled unconstitutional by the state court, a decision reversed by the U.S. Supreme Court....

Sen. Terry Bruce, a Hutchinson Republican and member of the Senate Judiciary Committee, said the justices have been "hyper technical" when interpreting the state's death penalty law but that many of the errors identified would be found with any trial.  "It may be that the judiciary is going to scrutinize these cases so much that we never will have an execution in Kansas," he said.

I wonder if a strong but sober capital punishment supporter might actually get behind repeal of the Kansas death penalty if hw were to agree with Senator Bruce's suggestion that the Kansas Supreme Court will likely continue to reverse any and every capital sentencing that comes its way.  Notably, as the most recent reversal highlights, without a seemingly functional capital punishment system, the worst-of-the-very-worst murderers in Kansas (such as a Jayhawk version of Osama Bin Laden or similar terrorist) could and should be capitally prosecuted by the federal government.  (Moreover, I suspect the Tenth Circuit would be generally less likely to reverse a capital sentence than the Kansas Supreme Court.)

Though every case is different and brings up different feelings for different families of victims, I would suspect that many victims' families would prefer the closure of an LWOP sentence than to an initial death sentence that is all but certain to be reversed and then perhaps require retrials.  And an LWOP sentence is likely to be more cost-effective, too.  Then again, if just the possibility of a death sentence may help Kansas prosecutors efficiently get deserving killers to agree to an LWOP sentence, perhaps one can consider capital punishment to still play a useful role even if there is a strong likelihood that the Kansas Supreme Court will never find a capital sentence it can approve.

September 2, 2012 at 03:33 PM | Permalink


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From the article: "The court struck down the conviction because of testimony given by an expert witness presented by prosecutors who divulged information about a psychological evaluation of Cheever when his case was originally filed in federal court."

What on earth does this have to do with whether Cheever deserves the death penalty?

And why is the suggested answer for procedural error during the trial always to repeal the DP? Why isn't the answer to get judges who are interested in substantive justice?

Posted by: Bill Otis | Sep 2, 2012 4:31:55 PM

This sounds like the Bird Court in California back in the late 70's and early 80's. Look for any error they can to reverse.

Posted by: DaveP | Sep 2, 2012 5:48:48 PM

The democratic process should never bend to lawless courts. Fight the bastards tooth and nail.

Posted by: federalist | Sep 2, 2012 5:51:18 PM

What's up with Kansas? I always thought of Kansas as a very conservative state. How does it have such a liberal supreme court? Someone enlighten me please.

Posted by: jb | Sep 2, 2012 9:10:44 PM


This is the opinion.

The AP's lay-friendly description seems somewhat misleading. From my quick perusal of the opinion, it seems that the defendant underwent a mandatory court-ordered examination, triggered by his noticing of a mental defense. The examination was only impeach or rebut any such defense. In state court proceedings, he did not present a mental defense but the State still introduced his statements made to the federal shrink. This was found to be compelled self-incrimination, since the implied waiver was only limited to possible impeachment evidence in the federal proceeding to rebut his mental defense

Posted by: SashokJD | Sep 3, 2012 1:15:18 AM

From what Bill Otis quoted, it appeared to me that the decision rested on a bizarre rule of state law. Instead, it rested on the Fifth Amendment on on Chapman's "harmless beyond a reasonable doubt" direct review prejudice standard.

So, we may indeed see a cert petitoin. I don't recall anything since the Kansas Supreme Court got rebuffed in Kansas v. Marsh (2006) (holding constitutoinal a state law requiring death even when aggravating and mitigating factors are in equipoise)

Posted by: SashokJD | Sep 3, 2012 1:19:11 AM

Doug, you said that federal capital prosecutions in Kansas can be used to execute the very worst of the worst.

Unfortunately, in what is a scandalously unreported newsworthy story, the federal government (under both Presidents Bush and Obama) has allowed lethal-injection litigation to languish in the DC District Court since 2006.

A good many federal death-row inmates have exhausted their normal appeals and would otherwise be eligible for execution dates. However, the federal government seems to have no serious intention of actually putting them to death. Surely, if the government were actually serious about carrying out executions, there would've been a decision one way or the other by now.

Posted by: alpino | Sep 3, 2012 1:50:25 AM

alpino, not exactly sure it's fair to pin the languishing on Bush---the federal LI proceedings were stayed for Baze.

Posted by: federalist | Sep 3, 2012 9:40:35 AM

It is better to impeach the Supreme Court of Kansas. If that fails, the Governor should send state troopers to the court, take these out of control criminal lovers by the scruff of the neck, and kick them to the curb. If any says a single word, Taze them, bro.

Replace them with members of a local jury pool. Lawyers should not sit on any bench, because they are unfit, mentally, with conflicts of interest, and primary loyalty to the criminal cult enterprise rather than to the public safety.

Posted by: Supremacy Claus | Sep 3, 2012 10:24:13 AM

SashokJD --

I repeat, what does any of this have to do with whether Cheever deserves the death penalty? Does substantive justice count for nothing at the penalty phase?

And even if one adopts your premise, the conclusion doesn't follow. Cheever might have been compelled to attend a federal psychiatric interview, but he was NOT compelled to say anything in particular in response to particular questions. He could have answered every question, "I prefer to say nothing."

Posted by: Bill Otis | Sep 3, 2012 11:27:39 AM

Baze was decided on April 16, 2008. So, federalist, you're quite right--there were less than nine months left for the Bush administration at that point.

Anyway, why has there been absolutely no movement on resolving federal lethal-injection litigation and setting federal execution dates? Why has the media not reported on this story (after all, some federal capital cases resulting in death sentences have been very high profile)? Why have neither Obama nor Romney (nor Holder for that matter) offered an opinion on this subject and/or been asked their opinion?

Posted by: alpino | Sep 3, 2012 10:34:07 PM

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