Hearings Conclude in Historic Challenge to the Death Penalty and Death Qualification in Kansas

KANSAS CITY, Kan. — The death penalty in Kansas is racist, unconstitutional, and irretrievably broken, said witnesses in a series of hearings challenging the state’s use of capital punishment and the practice of death qualification in jury selection. Over the course of a week in October and concluding today, the American Civil Liberties Union, the ACLU of Kansas, the Kansas Death Penalty Defense Unit, Hogan Lovells, Democracy Forward, and Ali & Lockwood presented expert testimony from historians and legal experts demonstrating that the death penalty in Kansas undermines the principles at the core of our legal system.

“The testimony presented throughout these hearings has made it abundantly clear that the death penalty in Kansas is unjust and unconstitutional,” said Cassandra Stubbs, director of the ACLU’s Capital Punishment Project. “Every step of the capital process is rife with racism and error, from who gets charged to who sits on capital juries. The expert testimony has conclusively proved what we have long known to be true: If you are charged with capital murder, you are effectively denied your constitutional right to a fair trial.”

The case, filed in October, challenges the constitutionality of the death penalty in Kansas as well as death qualification, the practice of jury selection in capital cases which dictates that a prospective juror must be willing to impose the death penalty to serve on a capital jury. By systemically excluding groups that are more likely to oppose capital punishment, this practice disproportionately discriminates against Black people, women, and people of faith. Monsignor Stuart Swetland, president of Donnelly College, testified about the discriminatory impacts of death qualification because of his faith.

“The death penalty is a direct attack on human dignity—something no one can lose, no matter what crime they’ve committed,” said Monsignor Swetland. “As Catholics, we’re called to respect and protect that dignity, which is why we work to abolish the death penalty worldwide. But here in death penalty trials across the country, people like me are excluded from serving on capital juries simply because of our faith. This exclusion undermines the principle of a jury as the conscience of the community and silences a large segment of the population in critical decisions about life and death.”

Professor Scott Sundby presented overwhelming evidence that death qualification results in juries that are more likely to convict than other juries, ultimately creating an unfair trial for capital defendants. Local studies in Sedgwick and Wyandotte Counties, conducted and presented by Mona Lynch, reinforce what national studies of death qualification repeatedly show: Black prospective jurors are significantly more likely to oppose the death penalty and distrust the criminal justice system, and more likely to be excluded for opposition to the death penalty as part of the death qualification. Professor Elisabeth Semel presented evidence about the discriminatory use of peremptory strikes, which compounds the discriminatory effects of death qualification.

Professors Shawn Alexander and Brent M. S. Campney testified about the legacy of racism in Kansas, drawing connections between the state’s history of societal exclusion, racial terror, and police violence and its application of the death penalty today.

“Kansas has a long and troubling history of racist violence against Black communities,” said Campney. “Racial violence in the state has taken many forms over the years, from mob lynchings in the 1800s to police violence in the 20th century, but the goal has always been the same: to exert control over Black communities. This legacy of racial terror continues to cast a long shadow over the state’s criminal legal system today.”

Professor and expert on police practices, Charles Epp, presented a study that shows a modern-day variation of these themes, wherein Black residents of Wyandotte County described mistreatment by police leading to a profound distrust of law enforcement, a fact which itself contributes to their exclusion by the death qualification process.

Three scholars conducted statistical analyses across Kansas that revealed one uniform truth: Capital charging decisions are impermissibly influenced by race. Professor Frank Baumgartner presented a statewide study that showed that death sentences are sought more often when the victim is white or female, and particularly when the victim is both white and female. Law professor and criminologist Jeff Fagan presented a second study, in Sedgwick County, indicating the same. Finally, Professor Brent Never of the University of Missouri, Kansas City, examined capital charging decisions in the Wyandotte County District Attorney’s

Other historians and legal experts testified about the fundamental flaws with the death penalty.

• Brittany Street, economics professor at University of Missouri, testified about the enormous costs associated with the death penalty, highlighting how these tax dollars could be better spent on crime prevention and community programs.
• In addition to sharing results of his Sedgwick County charging study, Professor Fagan presented evidence that the death penalty has no deterrent effect on homicides.
• Executive director of the Midwest Innocence Project, Tricia Bushnell, and law professor, Carol Steiker, testified about the myriad unconstitutional aspects of capital punishment, including the well-documented failure to protect the innocent.

“Researchers have tried to extrapolate from the known number of people who have been exonerated off of death row to the likely rate of mistakes in capital cases, and they say their conservative estimate, is 4 percent, or one in 25,” said Steiker. “If someone said one in 25 airplanes will crash, no one would fly. And yet we accept the fact that one in 25 people convicted of a capital crime are innocent. It is clear that the American death penalty is irretrievably broken; it cannot be fixed.”