Death penalty not practical

The recent decision of the Kansas Supreme Court invalidating the Kansas death penalty statute presents the Kansas Legislature an opportunity and a choice. Although the attorney general will appeal this ruling to the U.S. Supreme Court, there is no reason the Legislature cannot revisit the statute on its own.

When legislators convene in January, they can decide to pass a new death penalty statute with sufficient changes to pass muster if the U.S. Supreme Court upholds the Kansas Supreme Court ruling. With some legal advice and some good drafting this shouldn’t be a difficult task to accomplish. Alternatively, the Legislature could decide to take the Kansas Supreme Court’s invalidation of the current statute as an opportunity to rethink whether Kansas ought to abolish the death penalty altogether.

I hope that the members of the Legislature see the current situation as an opportunity to do the latter. I am not, in principle, an opponent of the death penalty. I believe that, at a certain point, a human being can forfeit the right to continue to live. Some acts are so heinous that, in my opinion, death may be an appropriate penalty if society deems it necessary. On the other hand, while I do not have philosophical objections to the death penalty, so long as it is fairly applied and is limited to only a very few crimes, I do have some very practical objections. Of these, two are paramount.

First, under current law, when the decision is made to seek the death penalty, the protections required to ensure a fair trial and legal process as a whole are so extensive that they guarantee that the state will be required to expend millions of dollars and that the prisoner will not be executed for many years, if at all, and only after numerous appeals and other avenues are exhausted. I do not believe that we can avoid this expense and delay.

If we are going to have a death penalty statute then we must do everything possible to avoid convicting and executing an innocent man or woman. But the net effect of these necessary legal protections is great public expense and often interminable delays. California’s situation is a perfect example of this.

Currently, California has more than 600 prisoners on death row. Many have been there for decades. Even more important, few will die as a result of being executed for their crimes. During the past decade far more condemned prisoners in California have died from illness or suicide than have been executed. There is no reason to think that the next decade will be any different. Does it make sense to spend so much public money and clog the courts to have a death penalty when few, if any, prisoners condemned to death will ever actually be executed?

My second practical objection to continuing to have a death penalty in Kansas concerns the deterrent effect of such a statute. One of the principal justifications for imposing the death penalty is that the existence of such a penalty will deter people from committing crimes that carry this penalty. Studies, however, are far from conclusive that this is, in fact, the case. Indeed, because very few condemned prisoners are executed and most American adults are aware of this, how can there be any effective deterrent from death penalty statutes. If the death penalty does not have a deterrent effect, then we must ask what practical utility does it provide other than revenge? If it is primarily for revenge, is it worth it? My answer to this question is “no.”

It seems to me that, regardless of the philosophical arguments, maintaining the death penalty as a sentencing option in Kansas makes little sense. Instead, we would be better off with a statute that permits life imprisonment without possibility of parole for those crimes that currently carry the death penalty. As far as providing closure for a victim’s family and societal revenge, I would argue that life imprisonment without possibility of parole is, in many ways, a far more terrifying possibility for many people than execution. By making this change, we could then abandon the special legal processes now in place for capital cases and simplify — and lessen the expense — 0of our criminal justice system. There are better ways to spend scarce resources.

— Mike Hoeflich, a professor in the Kansas University School of Law, writes a regular column for the Journal-World.