Challenging Death Qualification and the Death Penalty in Kansas (Kansas v. Fielder)

Death qualification is discriminatory. Echoing a long history of racial bias in the criminal legal system, the practice dictates that to serve on a capital jury, a prospective juror must be willing to impose the death penalty. Those who are unwilling cannot serve. Death qualification disproportionately excludes Black people, women, and those of religious faith, who are all groups more likely to oppose the death penalty.

By systemically barring Black community members from fully participating in jury service, death qualification violates the rights of both the accused and the prospective jurors alike. The removal of Black voices from capital juries unjustly skews juries to be whiter, less likely to consider all of the evidence, and more prone to conviction, perpetuating the legacy of all-white juries that have historically condemned Black individuals to death.

In Kansas, there is an undeniable line connecting the state’s violent struggles over slavery and history of racial terror to its modern administration of the death penalty. When lynching became less publicly and politically acceptable, new forms of racialized violence emerged, including police brutality and the death penalty. As was the case with lynching, the death penalty in Kansas is applied disproportionately against Black men, especially when a white woman is the victim. The longstanding harm and racial violence inflicted on Black Kansans has left deep distrust in the criminal legal system, including skepticism of and opposition to the death penalty.

Since Black Kansans are more likely to disagree with capital punishment, they are disproportionately excluded from serving on capital juries. Without representation on juries, the racist cycle continues: death qualification leads to the exclusion of Black jurors and whitewashed juries that disproportionately sentence Black people to death, which prompts further distrust in the racist system. Ending death qualification is a step towards overcoming this shameful history of exclusion and injustice.

Death qualification is just one piece of the failed death penalty in Kansas that we are challenging. Every aspect of the death penalty, from who gets charged, to who has a fair trial, and to who gets sentenced is infected with racial discrimination. Beyond racial discrimination, the death penalty in Kansas is flawed in a myriad of unconstitutional ways. It fails to protect the innocent, costs taxpayers far more than the alternative, and does not deter crime.

For these reasons, the ACLU and its partners are putting the death penalty on trial in Wyandotte County, Kansas. In a series of hearings beginning on October 28, we will present evidence demonstrating that the death penalty in Kansas is unconstitutional and that death qualification is racially discriminatory and undermines the principles at the core of our legal system.