TOPEKA — A coalition led by the American Civil Liberties Union has asked a state court to abolish the death penalty in Kansas, arguing it violates constitutional rights, is racially biased and fails to deter crime.
The ACLU joined the Kansas Death Penalty Unit and attorneys from the Washington, D.C., law firms of Hogan Lovells and Ali and Lockwood in filing motions Tuesday in Wyandotte County District Court on behalf of Antoine Fielder. The 36-year-old is accused of killing deputies Patrick Rohrer and Theresa King in 2018 as they escorted him to jail after a court hearing.
The coalition’s court filings point to a 2019 decision by the Kansas Supreme Court that established a right to terminate a pregnancy. That decision was based on the state constitution’s right to bodily autonomy and set a high standard for any law that threatens the right. The argument now is that such a right should also protect individuals from execution.
Additionally, the coalition argues the death penalty violates constitutional rights to be free from cruel and unusual punishment, and the right to equal protection. Research shows the death penalty results in unequal treatment based on race and gender, the coalition argues.
A motion signed by 10 attorneys reads: “Decades of experimentation under the modern death penalty regime compel the conclusion that Kansas’s death penalty has outlived any conceivable use. It is imperfect in application, haphazard in result, and of negligible utility.”
The coalition also challenged a “death qualification” rule for jury selection. In order to serve on a capital murder jury in Kansas, a prospective juror must be willing to impose the death penalty.
“Every person accused of a crime is entitled to a fair, impartial jury, but that’s never the reality in capital cases,” said Cassandra Stubbs, director of the ACLU’s Capital Punishment Project. “The evidence is overwhelmingly consistent that Black Kansans are disproportionately disqualified from serving on capital juries. Death qualification, like the death penalty itself, is unconstitutional and undermines justice for everyone. We are committed to ending both.”
Kansas has not carried out an execution since 1965. The U.S. Supreme Court invalidated the death penalty nationwide in 1972, then cleared the way for new death penalty laws in 1976. Kansas reinstated the death penalty in 1994. Currently, nine people are sentenced to death in Kansas.
The court filings on Tuesday raise concerns with the “arbitrary, racially discriminatory, unreliable, and unnecessary” application of capital murder charges. Nationwide since 1977, 295 Black defendants have been executed for murders of white victims, while only 21 white defendants have been executed for murders of Black victims. In Kansas, the state has never imposed the death penalty for the murder of a Black man. The state is most likely to impose a death penalty if the victim is a white woman.
The court filings highlight instances where police have falsified evidence or exchanged racist messages, as well as the lack of racial and ethnic diversity on jury panels.
Additional concerns deal with the political nature of the death penalty. A national study found that judges affirm twice as many death penalties during election years. Kansas Supreme Court rulings on death penalty cases became a focal point of the 2014 gubernatorial race, as well as an unsuccessful campaign to unseat justices who faced a retention vote in 2016.
“The death penalty in Kansas is a cruel, unusual, and discriminatory lottery, where the only predictability is supplied by impermissible factors such as race, gender, and geography,” one of the court documents reads. “With no executions — and exceptionally rare sentencing — the modern Kansas death penalty serves no legitimate penological purpose.”
The death penalty is applied to less than 1% of homicides in Kansas, according to court documents, and research in Kansas and nationally has shown the death penalty has no effect on homicide rates.
“The death penalty in Kansas is unjust from start to finish and goes against all of the most fundamental principles of justice,” said Katie Ali, attorney at Ali and Lockwood. “From its disproportionate impact on Black Kansans to the high risk of wrongful convictions, it is clear that the death penalty serves neither fairness nor public safety. It’s time for Kansas to abandon this deeply unjust system.”
