Posted: December 17, 2004
The Kansas Supreme Court has ruled that the state's 1994 death penalty law is unconstitutional because it contains a provision giving the state an advantage when jurors find the aggravating and mitigating factors presented at sentencing to be equal. In that circumstance, the current law states that the defendant must be sentenced to death. The Court ruled that such a provision does not allow the jury to express a reasoned moral response to the evidence, and the process does not comport with the human dignity required by the Eighth Amendment . 

Just like that, Kansas no longer has a death row. At least that's one interpretation of the Kansas Supreme Court's stunning declaration on Friday that the state's 10-year-old death penalty law is unconstitutional.

Still, it's important to remember that even if the decision holds, the state's condemned murderers, including spree killers Reginald and Jonathan Carr, are not about to go free. At best, they face the miserable fate of life in prison.

No place is the 4-3 decision felt more profoundly than in Sedgwick County, where the Carrs and three others among the seven men on Kansas' death row committed their murders.

It was the appeal of the 1998 sentence of Wichitan Michael Marsh that prompted the decision. In ordering that he get a new trial and invalidating his and other death sentences, the court pointed to wording in the current law that requires jurors to impose the death penalty when the reasons for capital punishment equal the arguments against it.

Shock about the ruling quickly gave way to questions: Why didn't the court come to this sweeping conclusion 3 years ago, when it first cited problems with the law? What about the will of the Legislature and the juries? What about the taxpayer dollars spent on these cases, an average $1.2 million each compared with $740,000 for a non-death penalty case? What about the victims and their families? Indeed, some would add, what about justice?

Answers are harder to come by at this point, though both Kansas Attorney General Phill Kline and Sedgwick County District Attorney Nola Foulston say they will appeal the ruling to the U.S. Supreme Court. That seems a logical next step in the process, considering how much Kansas has invested in the current law.

The death penalty also suddenly becomes an issue before the 2005 Legislature, which likely will try to correct the problem with the law to allow for its future use.

This editorial board also hopes, however, that legislators won't just rush to rewrite the law, but will take a hard look at its troubled 10-year history. The high costs and problems on appeal are making it harder all the time to see why the death penalty is worth having in Kansas.

Wichita Eagle

HISTORY OF THE DEATH PENALTY IN KANSAS

- February 1863: The Kansas Territorial Legislature passes the state's 1st death penalty law and makes hanging the method of execution. 9 men are executed between then and August 1870.

- Jan. 30, 1907: The Kansas Legislature abolishes the death penalty. Gov. Edward Hoch approves the bill.

- 1931: Gov. Harry Woodring vetoes an attempt to reinstate the death penalty.

- March 13, 1935: Gov. Alf Landon signs a law providing for capital punishment if ordered by a trial jury, or a sentence of life in prison without eligibility for parole. The law gives the governor the power to modify a life sentence to a determinant number of years.

- March 10, 1944: First prisoner is executed by hanging under the 1935 law. 8 more will follow over the next decade.

- 1954-60: There are no state executions in Kansas, mainly because of the actions of Gov. George Docking: "I just don't like killing people." Docking is defeated for re-election in 1960 in a race that centers on his opposition to the death penalty.

- April 15, 1965: Richard Hickok and Perry Smith are hanged for the 1959 murders of the Clutter family in Holcomb, the crime which served as the basis for Truman Capote's book "In Cold Blood."

- June 22, 1965: James D. Latham and George R. York are hanged, marking Kansas' last executions.

- 1972: The U.S. Supreme Court rules the death penalty as carried out at that time unconstitutional.

- 1976: The U.S. Supreme Court rules that capital punishment itself isn't unconstitutional and that states can pass death penalty laws if they follow certain procedures, including two phases of jury trial -- with separate proceedings for conviction and penalty -- and automatic appeals of death sentences.

- July 1, 1994: Kansas' new death penalty law takes effect, passed by the Legislature the previous April and neither approved nor vetoed by Gov. Joan Finney.

- Dec. 28, 2001: The Kansas Supreme Court rules that the state's death penalty law is unconstitutional but that it can be corrected through instructions given to the jury at trial.

- Dec. 17, 2004: The Kansas Supreme Court rules the death penalty law is unconstitutional on its face.

(Sources: Kansas Department of Corrections, Kansas Coalition Against the Death Penalty, Kansas Supreme Court records)

Kansas death penalty ruled unconstitutional----State's high court throws out law in decision affecting 6 inmates

6 inmates will be resentenced and avoid execution after the Kansas Supreme Court ruled Friday that the state's death penalty law is unconstitutional.

In its 4-3 opinion, the state high court said the 1994 law is flawed because of a provision about how jurors should weigh death penalty arguments during sentencing.

The Kansas law states that when juries find arguments for and against execution equal, their decision should favor a death sentence.

But a majority of the justices said such a requirement violates the Eighth and 14th amendments of the U.S. Constitution, according to court officials.

The Eighth Amendment addresses "cruel and unusual punishment." The 14th Amendment addresses guaranteed rights, due process and equal protection for U.S. citizens.

The Kansas statute's "express language was clearly intended to mandate the imposition of a death sentence when the existence of aggravating circumstances was not outweighed by any mitigating circumstances," the opinion states.

The Kansas court said it would be up to the Legislature to write a law that is constitutional.

Kansas Supreme Court spokesman Ron Keefover said the six death row inmates affected by Friday's ruling will be resentenced, including one case in which an appeal has not yet been filed.

"These cases will be immediately remanded for resentencing without the death penalty," Keefover said.

The ruling came in an appeal brought on behalf of Michael L. Marsh II, who was convicted of capital murder and arson in the June 1996 deaths of Marry Ane Pusch and her daughter.

Marry Ane and her 19-month-old daughter, Marry Elizabeth, were murdered in their Wichita home. Marry Ane was shot and stabbed, and the child left to burn to death in a fire.

In addition to addressing the death penalty issue, the justices unanimously ordered a new trial for Marsh on the capital murder conviction in the girl's death and aggravated arson charge, saying the trial judge prejudiced the defense by not admitting evidence that Pusch's husband may have been involved in the slayings.

Marsh remains convicted of aggravated burglary and premeditated 1st-degree murder in Pusch's death. The court affirmed his sentence on those charges of 42 years in prison without the option of parole.

Kansas City Star

Ruling could invalidate death sentences of Robinson, 6 others

The Kansas Supreme Court ruled 4-3 today that the state's 10-year-old death penalty law is unconstitutional.

The decision in the Sedgwick County case of Michael L. Marsh II could also invalidate the death sentences of 6 other men, including convicted Johnson County serial killer John E. Robinson Sr.

And it could prevent prosecutors from seeking death sentences in pending capital murder cases such as the one recently filed against Benjamin Appleby, who is charged in the death of Leawood teenager Ali Kemp.

The decision authored by Justice Donald Allegrucci makes it clear that the technical flaw in the law cited by the majority is an issue that must be addressed by the Kansas Legislature, which could re-write it "to pass constitutional muster."

The offending section of the law according to the majority has to do with the method jurors are instructed to decide if a death sentence or life in prison is imposed.

The Kansas law as written requires jurors to vote for death if the "aggravating factors" offered by prosecutors and the "mitigating factors" offered by the defense balance each other out, the justices said.

In essence the fact that a tie goes to the state renders the law unconstitutional, the court said.

The three dissenting justices disagreed, and argued that the U.S. Supreme Court has already "implicitly approved" the Kansas law by upholding an Arizona law that is "functionally identical" to the one in Kansas.

Sedgwick County District Attorney Nola Foulston said she will ask the U.S. Supreme Court to review today's decision.

KANSAS:  NATIONAL COALITION TO ABOLISH THE DEATH PENALTY PRESS RELEASE

CONTACT: David Elliot, NCADP Communications Director

202-543-9577, ext. 16 ---- delliot@ncadp.org -- www.ncadp.org 920 Pennsylvania Ave. SE, Washington, D.C. 20003

KANSAS SUPREME COURT STRIKES DOWN DEATH PENALTY LAW; 16 STATES NOW WITHOUT CAPITAL PUNISHMENT

Dec. 17, 2004 - The Kansas Supreme Court Friday struck down that state's death penalty law, making 14 states free of capital punishment, the National Coalition to Abolish the Death Penalty said today.

Earlier this year, a New York state court took similar action. Kansas and New York are the 2 most recent states to reinstate the death penalty, with Kansas reinstating it in 1994 and New York in 1995. Neither state has executed anyone since reinstatement. Today's ruling vacates all 6 death sentences in Kansas.

"Today's development should not surprise anyone," said NCADP Executive Director Diann Rust-Tierney. "Our experience in looking at the death penalty teaches us that it is exceedingly difficult to craft a system that is both procedurally fair and mistake-free. Without the death penalty, we hope Kansas will be able to focus its resources on providing more support for crime victims as well as crime prevention efforts."

The Kansas Supreme Court struck down the state's death penalty law on a 4-3 vote because it said the law gave the state an unfair advantage over defendants during the sentencing process. Rust-Tierney noted that Kansas has a history of antipathy toward the death penalty; the state abolished capital punishment in 1907, brought it back in 1935 and then observed a moratorium in the late 1950s and early 1960s, when the Republican governor at the time said, "I just don't like killing people."

One year ago, Kansas officials released a cost study that showed the state's death penalty system costs approximately 70 % more than comparable non-death penalty cases. The study found that the median cost of a death penalty trial and appeals was $1.26 million while non-death penalty cases cost a median of $740,000.