Hearings Begin on Constitutional Challenge to Kansas’ Death Penalty and Capital Jury Selection Process

On October 28, 2024, hear­ings began in Kansas’ Wyandotte County District Court regard­ing the con­sti­tu­tion­al­i­ty of the state’s death penal­ty and its cap­i­tal jury selec­tion process. A coali­tion of the ACLU Capital Punishment Project, the ACLU of Kansas, the Kansas Death Penalty Unit, and the law firms Hogan Lovells and Ali & Lockwood brought the chal­lenge. The team argues that the death penal­ty, which is rarely used in Kansas, is ​“arbi­trary, racial­ly dis­crim­i­na­to­ry, unre­li­able, and unnec­es­sary” and con­sti­tutes cru­el and unusu­al pun­ish­ment in vio­la­tion of both the state and fed­er­al con­sti­tu­tions. The team also char­ac­ter­ized as dis­crim­i­na­to­ry the require­ment for jurors to be ​“death-qual­i­fied,” or will­ing to impose a death sen­tence, to serve on a capital jury. 

“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.” According to a press release from the ACLU, stud­ies have demon­strat­ed the prac­tice of death qual­i­fi­ca­tion often excludes ​“Black peo­ple, women, and those of reli­gious faith,” who often oppose the death penal­ty. This results in a cap­i­tal jury that is ​“whiter, more male, more con­vic­tion prone, less like­ly to debate the evi­dence, and far more like­ly to sen­tence a defen­dant to death,” rather than a jury of one’s peers, which also con­tributes to the high­er rate of wrong­ful con­vic­tion in capital cases. 

The ACLU-led chal­lenge is brought on behalf of pre­tri­al cap­i­tal defen­dant Antoine Fielder, who is accused of killing two sheriff’s deputies dur­ing pris­on­er trans­port, and anoth­er pre­tri­al cap­i­tal defen­dant, Hugo Villanueva. During open­ing state­ments, Wyandotte County District Attorney Mark Dupree argued that ​“nei­ther of these argu­ments are ripe for hear­ing,” since nei­ther defen­dant has been tried and convicted. 

Kansas rarely uses the death penal­ty — a point high­light­ed in the defendant’s peti­tion to sup­port the deter­mi­na­tion of the prac­tice as ​“unusu­al pun­ish­ment,” which is con­sti­tu­tion­al­ly pro­hib­it­ed. The peti­tion, ref­er­enc­ing a 2024 report by Columbia Professor Jeffrey Fagan, notes that the ​“odds of any Kansan con­vict­ed of mur­der being sen­tenced to death are ​‘less than one tenth of one per­cent,’” and ref­er­enc­ing a 2024 report by University of North Carolina at Chapel Hill Professor Frank Baumgartner, notes that ​“the death penal­ty has been imposed in less than 1% of all homi­cides in Kansas.” The state, which cur­rent­ly has 9 pris­on­ers on death row, has not car­ried out an exe­cu­tion since 1965. 

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 & 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.”