Sedgwick County...working for you

District Attorney

Death Penalty

An Overview of the Prosecution of Capital Litigation and Homicide Cases

The purpose of this overview is to better educate and inform the public of the death penalty law in Kansas.

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.

Death Penalty

Other Issues Regarding Homicide Cases

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 persons between 1862 and 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 trial 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 premeditated first degree murder under the following limited factual circumstances:

  • during a kidnapping or aggravated 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, criminal sodomy, or aggravated criminal 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; and

  • 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; and

  • 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; and

  • 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 50 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.