Often when people think of the death penalty, their minds go to individual cases. That is understandable. What cannot be forgotten however are the questions about how our law operates on a systemic scale.
On Monday October 28th Judge Klapper in Wyandotte County District Court began hearing a constitutional challenge to the Kansas death penalty. This pretrial challenge is applicable to the cases of two men facing the death penalty in that county.
The State Board of Indigent Defense Services, the American Civil Liberties Union, the Kansas ACLU, and attorneys from Hogan Lovells, and Ali & Lockwood are collaborating in this case.
In a motion filed with the court, they note “Three decades of experience with the modern Kansas death penalty have shown that the protections built into the State’s death penalty scheme have failed to achieve the goals of reliable, rational, consistent, fair, non-arbitrary, and non-discriminatory application of the death penalty.” page 13 of “Motion Challenging Capital Punishment in Kansas as Unconstitutional Under State and Federal Constitutions”.
In support of their motion they present evidence by researchers on a variety of systemic aspects of capital punishment including:
- the process of death qualification (who can serve on a jury and who is excluded),
- how jurors make decisions on who lives and who dies,
- disparities in how potentially capital crimes are charged,
- the risk of error in capital cases and wrongful convictions in Kansas first degree murder cases, and
- how race and gender influence which cases end up in a death penalty.
To read the expert reports and the legal motions, see: https://www.aclu.org/cases/challenging-death-qualification-and-the-death-penalty-in-kansas-kansas-v-fielder and click on the drop down arrow by “Legal Documents: Kansas State District Court”.