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ANALYSIS: Kansas death penalty has cobwebs

Friday, May 24, 2013 | 11:17 a.m. CDT

KANSAS CITY — 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.

In January, the state Supreme Court ordered a new trial for Phillip Cheatham, who faced the death penalty for a 2003 double homicide in Topeka. Cheatham, the court found, was poorly defended by his lawyer.

Kansas Sen. Greg Smith of Overland Park — whose daughter Kelsey was murdered — holds the state's judges responsible for the lack of executions in Kansas.

"It's constitutional," he said. "It's just we have a lack of judicial will to use it."

The state's highest court delayed executions in the last decade by deciding the Kansas death sentencing procedure was constitutionally flawed. In 2006, the U.S. Supreme Court voted 5-4 to overrule that opinion and reinstate capital punishment in Kansas.

"The American people have determined that the good to be derived from capital punishment outweighs the risk of error," Justice Antonin Scalia wrote in the case. "It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment."

But the decision didn't entirely settle the matter.

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.

Lawyers who work with death penalty defendants say those multilevel appeal rights in state and federal courts are important and unavoidable, regardless of length.

"These cases are looked at closely, for due process," said Richard Dieter of the Death Penalty Information Center in Washington, D.C. "If there's any problem, it has to be done over."

That means sharply higher legal costs, for investigations, defense lawyers and appeals arguments.

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."

Arguments over safety versus cost play out regularly in state legislatures across the country.

Earlier this month, Maryland repealed its death penalty statute. Nebraska's repeal effort fell short this spring because of a filibuster, even though a majority of the state's one-house legislature indicated support for repeal.

Today, 32 states have a capital punishment statute, as does the federal government. Eighteen states and the District of Columbia do not.

Missouri has executed 68 people since 1976, according to the Death Penalty Information Center. Currently, 48 inmates face capital punishment in the state.

A bill abolishing the death penalty and replacing it with life without parole was introduced in the General Assembly this year, but it was not debated.

Kansas lawmakers also introduced death penalty repeal bills this session, but they went nowhere. The state's last serious debate on death penalty repeal came in 2010, when it fell a vote short in the Senate.

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.

"It represents an ambivalence in the state about the death penalty," Dieter said. "It may be wanted on the books, but carrying it out is problematic. And so it's delayed."

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, though 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?"

Death penalty opponents also suggest the long wait for death is itself cruel. Supporters, though, say those complaints are misplaced. A prisoner can't take advantage of every delay the law allows, they say, and then complain about how long it takes to die.

If Kansas ever executes a condemned prisoner, it will take place in the state prison in Lansing. Only death by lethal injection is authorized.

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."


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