The discussion on reinstatement of the death penalty in Kansas
has been emotional. Many matters have been debated, including the
issues of deterrence, retribution, arbitrariness and danger of
mistake. The purpose of this overview is to better educate and
inform the public of the law of Kansas, and not to continue debate
of these issues.
The Office of the District Attorney is committed to complying
with the law and to following the ethical and legal standards of
prosecution mandated by the Supreme Courts' of the United States and
Kansas and the National District Attorney's Association.
On 12/17/04, the Kansas Supreme Court issued a ruling in State v.
Marsh declaring the Kansas death penalty statute
unconstitutional. That ruling has been stayed pending review
and/or appeal.
Death Penalty
Other Issues Regarding Homicide Cases
Death Penalty
Historical Perspectives
At the time of statehood in 1861, the Kansas Territory had
already enacted a death penalty. Over the ensuing years, the law
was amended, and in 1907, legislative action abolished capital
punishment in favor of life imprisonment. It was not until the
great debates of 1935 that capital punishment again became law in
Kansas after having been defeated in the prior years of 1931 and
1933. Historical journals at the time credit passage of the bill as
a "drastic step to stamp out the epidemic of brutal crimes"..... and
suggest that gangster activity and several murders in Kansas at that
time were the impetus for passage in 1935. Although signed into law
by Governor Alf Landon in 1935, the death penalty was not applied
until the first legal execution in Kansas in the Twentieth Century
that occurred in 1944. While Kansas historical records suggest that
between 1880 and 1932 over 200 hangings occurred in the state,
mainly for horse-stealing and murder, Kansas legally executed only
43 person during the period of 1862 until 1964; including 13
executions under military law; and, 6 hangings under federal law.
In 1972, the United States Supreme Court, in the case of
Furman v. Georgia invalidated all state death penalty statutes
as unconstitutional because death sentences were arbitrarily
imposed. The Furman ruling invalidated 32 state death
penalty laws, and removed 629 inmates from "death row". In later
years, the Supreme Court reviewed changes that had been enacted in
state laws, finding that where the imposition of capital punishment
would only be applicable in cases of murder, and where specific
criteria was to be considered by a trier of fact in making a death
penalty decision, capital punishment statutes could be
constitutional. Because of the Furman decision, from 1973
until its passage in 1994, Kansas did not have the death penalty.
In the 1993-1994 session, the Kansas legislature passed a number
of important criminal justice laws and enacted K.S.A. 21-3439 that
reinstated the death penalty in the state of Kansas. Also known as
capital murder, the law provides for a sentence of death
for certain crimes committed after July 1, 1994, the date that the
law became effective.
Can a juvenile be given the
death penalty?
No. The death penalty only applies to those crimes committed by
individuals over the age of 18 years at the time of commission of
the act. However, a juvenile referred to stand trail as an adult
for capital murder committed after
July 1, 1994 may be sentenced to the Hard 50 in appropriate
circumstances.
Can a mentally retarded person
be executed?
No. If the court finds that a defendant is mentally retarded, as
defined by law, the death penalty may not be ordered and the
defendant will be sentenced as otherwise provided by law.
What circumstances constitute
"capital murder"?
The death penalty may only be given in circumstances where a
defendant is convicted of pre-meditated first degree murder
under the following limited factual circumstances:
- during a kidnapping for ransom
- during a killing committed under a contract or agreement
- the killing of any person by someone confined in a state
correctional institution, community correction institution or
jail or while in official custody
- a killing during the commission of, or attempt to commit, a
rape or aggravated sodomy of any person
- the killing of a law enforcement officer
- the killing of more than one person as part of the same act
or in two or more acts connected together
- the killing of a child under age 14 during a kidnapping or
aggravated kidnapping with the intent to commit a sex offense
upon the child
Who decides if the defendant is
given the death penalty?
If the facts of a case legally support a request for the death
penalty, the county or district attorney is required to notify the
defendant that the prosecutor intends to seek capital punishment.
The final decision as to whether the defendant is given the death
penalty is determined by a unanimous jury verdict, or, if a jury is
waived, the decision is made by the judge.
How many trials will there be?
There will be one trial for the defendant. The jury will be
called upon first to determine if the defendant is guilty of capital
murder, and if so, the jury will then determine if the death penalty
should be the recommended punishment.
Are there any other factors
that the jury must consider?
In addition to finding that the crime was committed under one of
the seven factual circumstances for capital murder, the jury must
decide if the aggravating circumstances of the case outweigh the
mitigating factors.
What are the aggravating
factors a jury may consider?
Aggravating factors that the jury may consider are limited to the
following:
- the defendant was previously convicted of a felony in which
he/she inflicted great bodily harm, disfigurement, dismemberment
or death on another;
- the defendant knowingly or purposely killed or created a
great risk of death to more than one person;
- the defendant committed the crime for the defendant's self
or another for the purpose of receiving money or any other thing
of monetary value;
- the defendant authorized or employed another to commit the
crime;
- the defendant committed the crime in order to avoid or
prevent a lawful arrest or prosecution;
- the defendant committed the crime in an especially heinous,
atrocious or cruel manner;
- the defendant committed the crime while serving a sentence
of imprisonment on conviction of a felony;
- the victim was killed while engaging in or because of the
victim's performance or prospective performance as a witness in
a criminal proceeding.
What are the mitigating
factors a jury may consider?
There is no limit to the mitigating factors that a jury may
consider, but they include the following:
- The defendant has no significant history of prior criminal
activity;
- The crime was committed while the defendant was under the
influence of extreme mental or emotional disturbance;
- The victim was a participant in or consented to the
defendant's conduct;
- The defendant was an accomplice in the crime committed by
another person, and the defendant's participation was relatively
minor;
- The defendant acted under extreme distress or under the
substantial domination of another person;
- The age of the defendant at the time of the crime;
- The capacity of the defendant to appreciate the criminality
of the defendant's conduct or to conform the defendant's conduct
to the requirements of the law was substantially impaired;
- At the time of the crime, the defendant was suffering from
post-traumatic stress syndrome caused by violence or abuse by the
victim.
- A term of imprisonment is sufficient to defend and protect
the people's safety from the defendant.
How many jurors must agree on
the death penalty as punishment?
All twelve jurors must agree. The decision must be unanimous.
What if the jury finds the
defendant not guilty of the crime?
The defendant will be discharged and released.
What if the jury finds the
defendant guilty of capital murder but does not recommend the death
penalty?
The court must then decide the punishment. Under appropriate
circumstances, the court may sentence the defendant to life
imprisonment without parole or with the Hard 50 (which is fifty years before parole
eligibility) or a sentence of life with a possibility of parole
after 25 years if the aggravating circumstances are not present or
do not outweigh the mitigating circumstances. If the defendant is
convicted of any lesser crime, the court must sentence the defendant
to the appropriate sentence provided by the sentencing guidelines for
the crime of conviction.
How long is the appeals process for a person
convicted of capital murder?
Any defendant convicted of any crime has a right to appeal the
decision. This legal process takes time. The process is much
longer and more complicated in death penalty cases. In some states,
prisoners have been on death row for over eleven years awaiting
decision on all their appeals
How is a person executed in
Kansas?
Kansas will execute by lethal injection.
Other Issues Regarding Homicide Cases
When a death occurs by criminal means, many issues are presented
as to what charges might potentially be filed against a criminal
defendant. No conduct constitutes a crime unless it is made
criminal in the Kansas Criminal Code. Based upon proof of
required legal elements, Kansas law provides for the filing of four
(4) different degrees of murder or manslaughter
charges and one law pertaining to vehicular homicide. Those
laws and a brief explanation are as follows:
Murder in the First Degree
Murder in the first degree is the killing of a human being
committed intentionally and with premeditation.
The range of punishment for conviction of this crime is
detailed above.
Murder in the First Degree -
Felony Murder
Murder in the first degree also includes Felony Murder
which is the killing of a human being during the commission of or
attempt to commit an inherently dangerous felony.
Inherently dangerous felonies generally include sexual assault
crimes, robberies, child abuse, arson, burglary, treason, drug
sales, and other murder and manslaughter charges.
The sentencing guidelines provide for a term of imprisonment of
life and fifteen (15) years must be served before parole eligibility
upon conviction of felony murder occurring between 7/1/93 and
6/30/99. Twenty (20) years must be served before parole eligibility
for felony murder occurring on or after 7/1/99.
Second Degree Murder
Second degree murder is an intentional killing that was
not premeditated. Second degree murder can also be charged
in instances where the killing was unintentional but
reckless under circumstances manifesting extreme indifference to
the value of human life.
The sentencing guidelines provide a range of sentence from a
minimum of 147 months imprisonment to a maximum prison term of 653
months on an intentional killing, and a range of 109 months
to a maximum of 493 months on an unintentional but reckless
killing.
Voluntary Manslaughter
Voluntary Manslaughter is the intentional killing of a
human being upon a sudden quarrel or in the heat of passion or upon
the unreasonable but honest belief that circumstances existed
that justified deadly force.
The sentencing guidelines provide a range of sentence from a
minimum of 55 months imprisonment to a maximum prison term of 247
months.
Involuntary Manslaughter
There are two statutes dealing with involuntary
manslaughter. The first defines involuntary manslaughter as the
unintentional killing of a human being, committed recklessly or in
the commission of a felony other than an inherently dangerous
felony, or during the commission of a misdemeanor enacted for the
protection of human life. Involuntary manslaughter charges can also
be brought in circumstances where a death occurs during the
commission of a lawful act in an unlawful manner.
The sentencing guidelines provide for a range of
sentence from 31 months to a maximum prison term of 136 months.
The second statute defines involuntary manslaughter
as the unintentional killing of a human being committed while a
person was operating a vehicle under the influence of alcohol, drugs
or both.
The sentencing guidelines provide for a range of
sentence from 38 months to a maximum prison term of 172 months.
Vehicular Homicide
Vehicular homicide is the unintentional killing of a human
being committed by the operation of a vehicle or means of conveyance
in a manner which creates an unreasonable risk of injury to the
person or property of another and which constitutes a material
deviation from the standard of care which a reasonable person
would observe under the same circumstances. Simple negligence
does not constitute a legal basis to charge Vehicular Homicide.
The maximum penalty for conviction of this offense is a
jail term not to exceed one year and a fine not exceeding $2500.00.
*Note: The range of punishment for conviction varies with
each crime and the Severity Level assigned the crime by the Kansas
Sentencing Guidelines Commission and Kansas Legislature and with the
defendant's criminal history category.
©, Copyright, 1989-2006, District Attorney Nola
Tedesco Foulston, 18th Judicial District of Kansas
last update:
12/02/06
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