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May 18, 2013

A (dynamically?) dormant death penalty in Dorothy's domicile

Kansas-state-flag-stampThe playfully alliterative headline for this post is spurred by this lengthy and effective local piece headlined "The Kansas death penalty has cobwebs." Here are excerpts:

It may be weeks before Kansans know if prosecutors will seek the death penalty for Kyle Flack, accused of killing four people in Franklin County this spring.   It will take far longer — 10 years or more — before anyone in the state is actually put to death for a crime.

And that time gap, advocates on both sides of the death penalty debate say, suggests the state remains deeply uneasy about the punishment — an ambivalence that muddies its value.  “When a law isn’t applied, it isn’t really a law,” said David Muhlhausen, a death penalty supporter and expert with the conservative Heritage Foundation.

Capital punishment opponents aren’t eager to speed up executions, of course.  But they say the state’s lengthy death penalty procedure is costing taxpayers millions of dollars in legal fees and other expenses without significantly improving public safety.  “Constituents have said to me, ‘We have a theoretical death penalty, but we don’t carry it out in practice,’” said Mary Sloan, executive director of the Kansas Coalition Against the Death Penalty.  “So if we’re not going to carry it out in practice, why do we pay all that cost?”

No one has been put to death in Kansas since 1965.  “Kansas is 10 years and $20 million away from its first execution,” predicted lawyer and capital punishment opponent Sean O’Brien of Kansas City.

But death penalty supporters say the state’s ultimate sanction shouldn’t be judged solely by the number of times it’s actually used.  The mere threat of death — or decades locked in isolation, waiting for death — plays an important role, they say, in the state’s justice system.

Kansas lawmakers reinstated the state’s death penalty in 1994.  Since then, 13 men have been condemned to death for murder.  All remain alive.  Only nine sit on the state’s death row, according to the Kansas Department of Corrections’ website.  The others’ sentences were reduced after appeals and plea agreements, or have been vacated pending a new trial.

Since 1976, when the U.S. Supreme Court validated rewritten capital punishment laws, only two states with death penalty statutes — Kansas and New Hampshire — have not executed a single inmate.

The long gap between capital crime and capital punishment in Kansas is the result of several interlocking factors, experts say.  The state’s death penalty law is narrow, providing a way for even the most brutal killers to escape the punishment.  Some prosecutors use the death penalty more as a negotiating tool than a criminal sanction, and some politicians remain ambivalent about executions, as do many residents in the state.

And the courts play a critical role.  All death sentences in Kansas are automatically reviewed by the state’s Supreme Court.  It’s uniquely allowed to “scour the record” for trial and sentencing errors in capital cases, even those not raised by defense lawyers.  That further raises the chances for delays....

This fall, the U.S. Supreme Court will consider Kansas death row inmate Scott Cheever’s case — he claims his Fifth Amendment protection against self-incrimination was violated during his trial and sentencing for killing a sheriff....

In 2003, a legislative audit examined the state’s death penalty expenses in the previous decade.  Kansas, the audit found, had spent or would spend almost $20 million on its 14 death penalty cases, including cases where the death penalty was sought but not granted. By contrast, taxpayers spent $6.3 million on eight cases where the prosecutors did not ask for death in a murder case.

The most expensive death penalty case involved Johnson County’s John E. Robinson Sr., convicted on two capital murder counts.  Ten years ago, the state said Robinson’s case would cost taxpayers $2.4 million, a bill that has continued to grow.  “Nobody in his right mind defends the death penalty because it saves money, anywhere, anytime, under any circumstances,” O’Brien said.  “Because it doesn’t.”...

Gov. Sam Brownback said last week that his view on capital punishment has changed in recent years, putting him to the left of most in his Republican Party.  He now believes it should be reserved for inmates who pose a future threat to society, using Osama bin Laden as an example. “You’re always looking to protect life,” he said.  “That’s a very narrow definition of the use of the death penalty.”

Brownback’s views on capital punishment in Kansas, though, may be less important than they appear.  Even if he is re-elected in 2014, it’s unlikely he would still be in office when any death row clemency requests might be filed.  But they do suggest many Kansans, even some conservatives, remain uncomfortable with the ultimate sanction....

Some prosecutors and supporters, though, say keeping the death penalty on the Kansas books remains important.  Studies show the death penalty is still a deterrent, Heritage’s Muhlhausen said, although the effect drops in states that don’t actually carry it out.

Other experts dispute his conclusion. The Kansas murder rate is 3.5 per 100,000 people, according to the Death Penalty Information Center.  In Missouri, it’s 7 murders per 100,000.  Both have the death penalty, but only Missouri has carried it out in recent years. Iowa has no death penalty.  Its murder rate is 1.3 per 100,000 people.

But even the threat of capital punishment can focus a defendant’s attention on plea agreements that spare victims’ families from long trials, some lawyers say.  In most agreements, almost all future appeals are waived, ending the trauma of court appearances and media stories about the crime.  Additionally, death penalty defendants have more to worry about than death.

Paul Cramm represented Edwin Hall, now serving a sentence of life without parole after pleading guilty to murdering Kelsey Smith. Clients, Cramm said, are often as worried about the conditions of death row as they are about the execution chamber itself, which encourages plea deals. Death row inmates are kept in El Dorado, Kan., in isolation from almost all other prisoners. Most defendants realize “the likelihood of an acquittal or a finding of not guilty is not real high,” Cramm said. “The likelihood of being executed in your lifetime is not real high. So I guess what we’re negotiating for is, what sort of life do you want to have while you’re incarcerated?”...

Asked if the gap between sentence and execution in Kansas is too long, Brownback hesitated for several seconds. “I’ve been at the chambers in Lansing, where the death penalty would have to be administered,” he said. “That’s a very sobering place to see.

“But I think it’s kind of actually worked for the state,” he added. “Most Kansans would look at it as wanting this to be very, very, very sparingly used.”

May 18, 2013 at 11:23 AM | Permalink

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