Kansas

Kansas

BOOKS: "The Case of Rose Bird," and the Continuing Power of Money in Judicial Elections

In 1986, California voters removed Rose Bird, the state's first female supreme court chief justice, from office after conservative groups spent more than $10 million in a recall effort that portrayed her as "soft on crime," emphasizing her court opinions overturning death sentences that had been unconstitutionally imposed. Ten years later, Tennessee Supreme Court Justice Penny White lost a retention election after death penalty proponents and other conservative groups targeted her for voting with the court majority in a 3-2 decision overturning a death sentence that had been imposed in a rape-murder case. Similar efforts to remove justices from state supreme courts in Kansas and Washington failed in the November 8, 2016 elections. As recent events illustrate the continuing power of money in judicial elections, a new book, The Case of Rose Bird: Gender, Politics, and the California Courts, chronicles Bird's career and the repeated efforts to remove her from office. A recent report from the Brennan Center for Justice suggests that outside money continues to play an outsized role in judicial elections today. The Brennan Center found that this year, TV spending in state supreme court races set a record of $19.4 million. Seventeen of the 20 groups that spent money on such elections this cycle do not disclose their donors, making it difficult to identify the people and groups weighing in on judicial races. But in Kansas, four of the five justices facing reelection were targeted for their decision to overturn the death sentences of Reginald and Jonathan Carr, and in the Washington Supreme Court retention election, business interests attempted to portray Justice Charlie Wiggins as "enabling predators." Both efforts to remove the justices failed. In Kansas, outside groups spent approximately $1.7 million on TV ads, but while a group calling itself Kansans for Justice attempted to oust the justices, another group called Kansans for Fair Courts spent almost equal amounts supporting retention. All five justices were reelected, but the four who were targeted by ads averaged about 56% support, as compared to 71% of the vote for the fifth justice, who was not the focus of TV ads. Alicia Bannon, Senior Counsel at the Brennan Center's Democracy's Program, said, "This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all."

Pro-Death Penalty Referenda Prevail in 3 States; Kansas Retains 4 Justices Attacked for Death Penalty Decisions

Voters in three states approved pro-death penalty ballot questions Tuesday, while in a fourth, voters turned back an effort to oust four Justices who had been criticized for granting defendants relief in capital cases. Amid widespread agreement that California's death penalty system is broken, the state's voters rejected Proposition 62, which would have abolished the state's death penalty and replaced it with life without possibility of parole plus restitution, and narrowly approved a competing ballot initiative, Proposition 66, which seeks to limit state court death penalty appeals and expedite executions. With 99% of precincts reporting, Prop 62 trailed 54%-46%, with 3,964,862 Yes votes and 4,643,413 No votes. Prop 66 prevailed 51%-49%, with 4,203,801 Yes votes and 4,051,749 No votes. Earlier in the day, Nebraska voters, in a closely watched referendum, overturned the state legislature's repeal of the state's capital punishment statute and reinstated the death penalty. With 99% percent of precincts reporting, Nebraskans voted in favor of the death penalty by a margin of 61%-39%, casting 443,506 "repeal" votes on Referendum 426 to overturn the legislature's abolition of the death penalty, against 280,587 "retain" votes to keep the legislative repeal in place. Wednesday morning, Governor Pete Ricketts pledged to take action to carry out executions in Nebraska, while long-time death penalty opponent, State Senator Ernie Chambers, vowed to introduce a new bill in the next legislative session to abolish capital punishment. In Oklahoma, voters by a nearly 2-1 margin approved State Question 776, which constitutionalizes the state legislature's power to adopt any execution method not prohibited by the U.S. Constitution and prevents Oklahoma's state courts from declaring the death penalty cruel and unusual punishment. With 100% of precincts reporting, Question 776 prevailed 66%-34%, with 941,336 Yes votes and 477,057 No votes. The death penalty was also a central focus in judicial retention elections in Kansas, where pro-death penalty groups targeted four justices of the state supreme court and spent more than $1 million in an attempt to oust them for their votes overturning several Kansas death sentences. Voters retained all four Justices. Chief Justice Lawton Nuss, speaking on behalf of the challenged justices, said "The supreme court’s ability to make decisions based on the rule of law—and the people’s constitution—has been preserved." Ryan Wright of Kansans for Fair Courts, which opposed the efforts to remove the Justices, added “Kansans have sent a very clear message . . . : hands off our court.” 

Support for the Death Penalty by Republican Legislators No Longer a Sure Thing

One year after the Nebraska legislature voted to repeal the death penalty and overrode a gubernatorial veto of that measure, actions in legislatures across the country suggest that the state's efforts signalled a growing movement against the death penalty by conservative legislators and that support for the death penalty among Republican legislators is no longer a given. Reporting in The Washington Post, Amber Phillips writes that Republican legislators in ten states sponsored or co-sponsored legislation to repeal capital punishment during the current legislative sessions. She reports that although these repeal bills have not become law, they have made unprecedented progress in several states. In Utah, a repeal bill sponsored by Sen. Stephen Urquhart (pictured)—a former death penalty proponent who supported the state's firing squad law—came closest, winning approval in the state Senate and in a House committee. Missouri's bill saw floor debate in the Senate, and Kentucky's received a committee hearing for the first time in 40 years. An effort to return death penalty support to the platform of the Kansas Republican Party failed by a vote of 90-75, and the Kansas College Republicans passed a resolution calling for the abolition of the death penalty, highlighting a generational divide on the issue. Dalton Glasscock, former president of Kansas College Republicans, said, "My generation is looking for consistency on issues. I believe if we say we're pro-life, we need to be truly pro-life, from conception to death." The National Association of Evangelicals also changed their stance on the issue, acknowledging "a growing number of evangelicals," who now call for abolition. Though a majority of Republicans still support the death penalty, Phillips writes that "it's notable that a year after we wondered whether Nebraska was an anomaly or the start of a trend, there's plenty of evidence to suggest that conservative opposition to the death penalty may indeed be a trend -- a small but growing one."

U.S. Supreme Court Reverses 3 Kansas Decisions Overturning Death Penalties

In an 8-1 decision in Kansas v. Carr, the U.S. Supreme Court reversed the decisions of the Kansas Supreme Court granting new sentencing hearings in three capital cases, restoring the death sentences of Jonathan Carr, Reginald Carr, Jr., and Sidney Gleason pending further appellate review. The Kansas Supreme Court had vacated the men's death sentences because the jury had not been informed, as required by the Kansas Supreme Court, that mitigating factors presented during the sentencing proceeding to spare a defendant's life do not need to be proven beyond a reasonable doubt. In his opinion for the Court, Justice Antonin Scalia wrote that such an instruction was not constitutionally required. "Jurors," he said, "will accord mercy if they deem it appropriate, and withhold mercy if they do not." He wrote that on the facts of these cases, there was little possibility that the jury was confused about its role in finding and giving effect to mitigating evidence. The Court also rejected an argument that the Carr brothers should have had separate sentencing proceedings, saying that even if any evidence against the brothers had been improperly admitted, it did not affect the fundamental fairness of their penalty trial. The lone dissenter in the case, Justice Sonia Sotomayor, wrote that the case should not have been reviewed, saying, "Kansas has not violated any federal constitutional right. If anything, the State has overprotected its citizens based on its interpretation of state and federal law." The decision leaves open the possibility that the Kansas courts could revisit these issues under state law.

NEW VOICES: Kansas Federation of College Republicans Urges Repeal of Death Penalty

The Kansas Federation of College Republicans unanimously adopted a resolution calling for repeal of the death penalty in their state. “More young conservatives like myself recognize that our broken and fallible system of capital punishment in no way matches up with our conservative values,” said Dalton Glasscock, a Wichita State University student and chairman of the federation. Citing pro-life views and fiscal responsibility, the group urged Kansas legislators to repeal the state's death penalty. Eric Pahls, president of Kansas University College Republicans, said, "I think if, as Republicans, we call ourselves pro-life, that is from birth through natural death, not from birth until we decide your life is less important or less valuable." Glasscock and Pahls think there is a generational shift in views about the death penalty among young Republicans. A recent Pew Research Center poll indicated that death penalty support is weakest among younger Americans, among whom it has dropped by 8 percentage points since 2011. The federation joins the Republican Liberty Caucus of Kansas, who last year announced support for repeal of capital punishment. The Kansas Republican Party has dropped death penalty support from its platform, and now takes a neutral stance on the issue. Kansas has not carried out any executions since it reinstated the death penalty in 1994.

REPRESENTATON: Death Row Inmate Received Bizarre Defense

Phillip Cheatham was represented at his death penalty trial by a lawyer who failed to develop a readily available alibi defense and portrayed Cheatham as a possible killer. The lawyer, Ira Dennis Hawver (pictured at his disbarment hearing, left), presented Cheatham as a drug-dealing killer who would not have left a witness alive to identify him and would have taken fewer shots to kill the victims. Hawyer admitted he might not have jumped through every "American Bar Association hoop" in defending his client. He appeared at his disciplinary hearing before the Kansas Supreme Court dressed as Thomas Jefferson. In overturning Cheatham's conviction in 2013, the state Supreme Court concluded, "Hawver's representation bore a greater resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a responsibility for zealous advocacy."

NEW VOICES: Bi-Partisan Support for Death Penalty Repeal Growing in Kansas

The Republican Liberty Caucus of Kansas has officially announced its opposition to the death penalty. The Caucus chair, Dave Thomas, said, “Any time you give the government a power that can be abused, it will or may be abused in the future. And taking a citizen's life is kind of the ultimate power the government can have.” The Caucus joined several Republcan legislators, such as Sen. Carolyn McGinn and Rep. Steve Becker, in supporting repeal of capital punishment. The Kansas Republican Party chose to omit a death-penalty stance from of its platform this year, leaving it as "a matter of individual conscience." The Kansas Libertarian Party opposes the death penalty. In 2013, a repeal bill sponsored by two Republicans and one Democrat received hearings, but was not passed. Kansas has 10 people on death row but has not had an execution since capital punishment was reinstated in 1994.

COSTS: Kansas Study Examines High Cost of Death Penalty Cases

Defending a death penalty case costs about four times as much as defending a case where the death penalty is not sought, according to a new study by the Kansas Judicial Council. Examining 34 potential death-penalty cases from 2004-2011, the study found that defense costs for death penalty trials averaged $395,762 per case, compared to $98,963 per case when the death penalty was not sought. Costs incurred by the trial court showed a similar disparity: $72,530 for cases with the death penalty; $21,554 for those without. Even in cases that ended in a guilty plea and did not go to trial, cases where the death penalty was sought incurred about twice the costs for both defense ($130,595 v. $64,711) and courts ($16,263 v. $7,384), compared to cases where death was not sought. The time spent on death cases was also much higher. Jury trials averaged 40.13 days in cases where the death penalty was being sought, but only 16.79 days when it was not an option. Justices of the Kansas Supreme Court assigned to write opinions estimated they spent 20 times more hours on death penalty appeals than on non-death appeals. The Department of Corrections said housing prisoners on death row cost more than twice as much per year ($49,380) as for prisoners in the general population ($24,690). 

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