Topeka — Advocates for the disabled on Monday sought changes to Kansas law that they said would protect from the death penalty people with severe mental disabilities who are convicted of murder.
"Kansas should not put people with significant cognitive disabilities to death," said Rocky Nichols, executive director of Kansas Advocacy and Protective Services. "Life in prison without parole is enough."
But a Wichita prosecutor who has helped convict several people of capital murder said state law and policy already shielded those with mental disabilities from the death penalty.
Any further protections through changes to the state death penalty law could give convicted killers who aren't mentally disabled an opportunity to escape punishment, Sedgwick County Deputy Dist. Atty. Kevin O'Connor said.
"They will say or do anything to avoid death and they may get experts who will say or do anything to avoid the death penalty," O'Connor said of death penalty defendants.
The issue is before the House-Senate Judiciary Committee, which will provide a recommendation to the full Legislature when the session starts in January.
In 2002, the U.S. Supreme Court declared that executing a mentally retarded person was unconstitutionally cruel and inhumane.
Prior to the ruling, Kansas law already had exempted the mentally retarded from the death penalty. But it's unresolved how and when during the judicial process state law determines if a person is mentally retarded.
Brain injuries
Advocates for disabled Kansans said the state's death penalty law had several problems. In current capital murder cases, only those who suffered disabilities from birth or childhood are exempt from the death penalty.
Experts: Kansas death penalty illegal (11-1-03)The advocates say the death penalty exclusion for the mentally retarded should apply to those who were born with disabilities and those who may have suffered disabilities as adults, such as Alzheimer's disease or brain injuries from an accident.
James Ellis, a University of New Mexico law professor who successfully argued the Supreme Court case on mentally disabled defendants, also said Kansas law should allow for a pretrial hearing to determine whether a defendant is mentally retarded.
"This saves the expense of capital murder trials when the death penalty is not available," he said.
Currently, the question of whether a defendant should be excluded from a death sentence may be decided after a conviction during the penalty phase of the trial.
But some committee members appeared hesitant to change the law, saying none of Kansas' current seven death row inmates has asserted a defense of being mentally retarded, and there were no cases currently in the state judicial system that could be affected by the 2002 Supreme Court decision.
"The longer I listen to this debate, the less convinced I am that there is an issue here that has practical applications," Sen. Derek Schmidt, R-Independence, said.
Not 'bloodthirsty'
O'Connor, the prosecutor, said prosecutors generally were opposed to seeking the death penalty if there was any question whether the defendant had the mental capacity to be held responsible for the crime.
"This isn't 'Law and Order.' We are not the cruel, bloodthirsty people you see on television," he said.
He said he feared proponents of the changes were seeking a "back-door" way to chip away at the death penalty: making capital murder cases more expensive through the hiring of expert witnesses to determine disabilities.
"You are creating a cottage industry of experts," he said.
But Rep. Jeff Jack, R-Parsons, said it seemed unfair that under Kansas law a person with Alzheimer's disease could face the death penalty if convicted of murder while a person who was born with a mental disability couldn't, even though the two defendants could be at the same level of mental ability.
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