Death penalty in Kansas: Will the state ever execute another prisoner?
Moments before he was hanged to death, George York expressed contrition for his sins.
“There is nothing to say but that I’m going to heaven,” he said, according to newspaper reports from the time. “I know it wouldn’t do me much good to say I’m sorry. God has forgiven me and I hope you people can see fit to do the same.”
The state of Kansas had not forgiven York, convicting him of one of several murders he had confessed to as part of a cross-country killing spree with fellow Army deserter James Latham. So on June 22, 1965, York was led up the 13 steps of the gallows at the Kansas State Penitentiary in Lansing. A prison chaplain read from the 23rd Psalm as the noose was placed around York’s neck. At 12:53 a.m., the trap door dropped. The 22-year-old was pronounced dead 19 minutes later.
York was the last person executed by the state of Kansas. In recent years, several states have banned capital punishment. It is on hiatus in some states because of problems obtaining the drugs used in lethal injections, which has led to botched executions, mostly recently in Oklahoma. But in Kansas, the death penalty is in a sort of legal limbo: still on the books, just not being carried out.
There have been no executions in the 20 years since the death penalty was reinstated in Kansas, due, observers say, to an exhaustive appeals process, a cautious state Supreme Court dealing with a fairly new and restrictive law, and the state’s relatively low murder rate. Nine men are currently on death row in Kansas.
Only two other states besides Kansas — Nebraska and California — have a lethal injection chamber that has never been used. The only death penalty state that has gone longer without an execution is New Hampshire, which last killed a prisoner in 1939 and has only one person on death row. Kansas doesn’t even have lethal injection drugs in stock because a possible execution is so far in the future.
“Kansas has sort of a historical ambivalence about the death penalty,” said Rebecca Woodman, a former appellate defender for capital cases in Kansas who now directs the Death Penalty Litigation Center in Kansas City, Mo. “If you look at the records, there haven’t very many executions in Kansas in its history. Kansas abolished the death penalty soon after becoming a state, then it was reinstated a couple of times.”
What’s the cost?
Death penalty opponents often cite the high cost of capital cases. In a study released earlier this year, the Kansas Judicial Council found that from 2004-2011 the state spent an average of $395,762 on cases where the death penalty was sought compared to $98,963 where it was not. The annual cost of housing a prisoner in administrative segregation is $49,380, compared to $24,690 in the general population. Kansas’ death row inmates are kept in administrative segregation, where they allowed one hour outside their cells each weekday. Eight of them are at the El Dorado Correctional Facility; Scott Cheever stays at Lansing (where the death chamber is located) because the widow of the man he is convicted of killing works at El Dorado.
Capital cases cost district courts more than three times as much, $72,530 to $21,554, the report found. Death penalty trials also were found to take more than twice as long, while Supreme Court justices who write the opinions in death penalty appeals spend 20 times as many hours on them as they do on non-capital cases. The state Supreme Court has two full-time staff members who work strictly on death penalty appeals.
“It’s very expensive for taxpayers for prosecutors to seek the death penalty,” said Mary Sloan, executive director for the Kansas Coalition Against the Death Penalty. “The U.S. Supreme Court says death is different, and it is different. If you make a mistake in that process and the person has been executed, you can’t go back and redo that.” Sloan believes that many of the inmates currently on death row in Kansas will die from natural or other causes before they’re executed.
Lengthy appeals process
Earlier this year, the Kansas legislature debated a bill that proponents said would speed up the appeals process in capital cases. The legislation didn’t pass. One of its supporters, state Sen. Greg Smith, R-Olathe, was asked why there have been no executions in Kansas in recent years.
“Four words: the Kansas Supreme Court,” he said. “It’s not that we don’t use the death penalty in Kansas. It’s that the Kansas Supreme Court refuses to apply the law and allow a lawful sentence to be carried out.”
Smith, whose daughter was murdered in Missouri in 2007, refuses to name death row inmates, instead invoking the names of victims when discussing cases. “What we tend to forget is the people who do this had zero mercy for the people they killed,” he said. “The people who are murdered go through hell. After they’re murdered, we forget about the victim. People say, let’s not be inhumane, but what about the people they killed?”
He said the drawn-out appeals process puts families of victims “right back into that emotional mess they were in when they loved ones were killed.”
The state’s top prosecutor, Attorney General Derek Schmidt, also supported the changes, saying the Supreme Court should review only the sentencing rather than the whole case and that defendants’ ability to file successive, unnecessary motions clogs up the appellate system.
“Attorney General Schmidt has a long record of supporting Kansas’ narrowly tailored death penalty,” said his spokesman, Clint Baes. “In addition, our office this year supported a legislative proposal which would have held the courts accountable to their own procedural rules. A lack of adherence to these rules by our appellate courts has led to the long delays in death penalty appeals.”
The state Supreme Court not only declared Kansas’ death penalty statute unconstitutional in 2004 (a decision later reversed by the U.S. Supreme Court), it has overturned the death sentences in all five of the modern capital cases it has issued opinions on.
Michael Marsh, who murdered his friend’s wife and left their 19-month-old daughter to die in a fire in 1996, and Gavin Scott, who shot a Goddard couple to death while robbing their home in 1996, reached plea agreements with prosecutors and were sentenced to life in prison.
Phillip Cheatham, originally convicted of killing two women and wounding another in Topeka in 2005, will be retried in Shawnee County, while Cheever, convicted of murdering a county sheriff in Virgil in 2005, awaits another appeal in front of the Kansas Supreme Court after its decision was reversed by the U.S. Supreme Court.
Gary Kleypas has twice been sentenced to die for stalking, raping and killing a 20-year-old college student in 1996, but, because each death penalty case is automatically reviewed by the Supreme Court, his case is again being appealed.
Whether a murderer is sentenced to death in Kansas largely depends on when he committed his crime. BTK killer Dennis Rader, for instance, was convicted in 2005 of murdering 10 people in Sedgwick County. But because the killings occurred between 1974 and 1991, when the state didn’t have a death penalty statute, prosecutors weren’t able to seek a death sentence.
The only capital case in Douglas County since 1994 involved Damien Lewis, who killed Pete Wallace and Wyonna Chandlee, both 71, when they returned to their Lawrence home while he was robbing it. Lewis avoided the death penalty when prosecutors agreed to a plea deal that earned him a 158-year prison term.
Some legal experts say the Supreme Court takes so much time reviewing death penalty cases because the law in its current form has only existed for 20 years.
“The law is still relatively new and the justices are meeting issues for the first time and having to analyze and consider them,” said Elizabeth Cateforis, a clinical associate professor of law at Kansas University. “It really behooves them to take their time and make sure they have the law right and understand the law. The law is incredibly complex, so the court has to learn it as well.”
Jeffrey Jackson, a Lawrence attorney and law professor at Washburn University, said he believes that the death penalty statute has a deterrent effect. The state’s murder rate has declined since capital punishment was reinstated, from 170 in 1994 to 84 in 2012, though that mirrors a similar drop in homicides across the country.
He also noted that as the state Supreme Court continues to work through the issues surrounding Kansas’ death penalty statute, the appeals process will likely quicken.
“Unless the Legislature repeals the death penalty, I think there will eventually be an execution,” he said. (A recent bill to abolish capital punishment in Kansas would not have applied to the nine men already on death row). “The more cases you have, the better the judges get at figuring out how to do these things. They’re still going to take a lot of time, but it’s not going to increase. It’s almost assured that we will have an execution as long as the statute is in place.”
That execution, if it comes, probably won’t be happening in the near future. Even if the Kansas’ high court affirms a death sentence, it will then have make its way through the federal appeals system.
“The death penalty is by far the most complex set of laws there could be in criminal law,” said Ron Wurtz, the former chief of the state’s Death Penalty Defense Unit, who doesn’t see a Kansas inmate being put to death anytime soon. “It’s not even close right now. I’d say it’s probably 10 more years out, at the very least.”