A Kansas capital defendant is challenging the prosecution’s decision to pursue the death penalty in his case, invoking a heightened standard of review the Kansas constitution applies to infringements of fundamental rights.

The pretrial challenge, which will be the subject of a hearing in the Sedgwick County District Court beginning February 6, 2023, was filed by the ACLU in the case of Kyle Young, an African-American defendant who faces capital charges in a 2020 double murder at a Wichita hotel. The motion alleges that the Kansas death penalty violates state and federal prohibitions against cruel and unusual punishment because it denies capital defendants a fair and impartial jury, is arbitrarily and discriminatorily applied, and serves no legitimate penological purpose.

The Kansas Bill of Rights declares that “life, liberty, and the pursuit of happiness” are “inalienable natural rights.” Young’s lawyers argue that a landmark 2019 Kansas Supreme Court ruling on abortion rights that applied a “strict scrutiny” standard of state constitutional review for laws that infringe on fundamental rights should apply to capital punishment. “For the very same reasons liberty applies to reproductive rights, life should apply to the death penalty,” said ACLU Capital Punishment Project senior counsel Henderson Hill.

In 2022, the Kansas Supreme Court ruled in a different case that the death penalty, as written, did not violate the state constitution’s “inalienable” right to life. It held, “when a person is convicted of capital murder beyond reasonable doubt, he or she forfeits the inalienable right to life … and the state may impose lawful punishment for that crime.” Young, who has not been convicted and is presumed innocent, argues that he is entitled to the benefit of strict scrutiny review and that the death penalty is unconstitutional as it is applied in the state of Kansas.

Young has submitted to the court more than a dozen expert reports addressing a broad range of issues related to Kansas’ death penalty. A report by Columbia University Professor Jeffrey Fagan, who examined death-eligible cases in Sedgwick County from 1994 to 2020, found that prosecutors’ decisions to seek the death penalty were influenced by race and gender. Fagan’s analysis “identified a consistent pattern of preferences by prosecutors to charge capital murder and seek the death penalty in cases where the victim is White, and especially when the victim is a White female.”

A report by University of California – Irvine Professor Mona Lynch on the part of capital jury selection known as “death-qualification” — the process of removing potential jurors from service in a capital case because of their expressed opposition to the death penalty — presented the results of a survey of 573 jury-eligible adults in Sedgwick County. Lynch’s survey found significant differences based on race and gender in potential jurors’ views about the death penalty and their vulnerability to being excluded from jury service because of those views. While 63.4% of white potential jurors indicated that they support the death penalty, 55.7% of potential Black jurors said they opposed it. In particular, 67.3% of white men expressed support for the death penalty, while 64.3% of Black women said they opposed it.

The death-qualification process, Lynch found, would reduce the share of Black jurors eligible to serve on Sedgwick County capital jurors by 13.8%, “from 10.9% of the jury-eligible sample [to] only 9.4% of the death qualified sample,” She concluded that “death qualification has the potential to disproportionately exclude Black jury-eligible citizens, especially impacting Black women.”

Young also presented a report by University of California – Berkeley Law Professor Elizabeth Semel, director of the school’s Death Penalty Clinic, who reviewed 133 Kansas court decisions on claims that Kansas prosecutors had discriminatorily exercised discretionary jury strikes on the basis of race. Semel found that Kansas prosecutors “disproportionately exercised peremptory strikes against Black jurors, and … relied upon racial stereotypes to justify their strikes,” further reducing the representation of African Americans on Kansas juries. She reported that in the past thirty years, Kansas courts had issued only published opinion overturning any conviction based on a defendant’s jury discrimination challenge.

A fourth study, conducted by University of North Carolina-Chapel Hill Professor Frank Baumgartner, examined rates of capital prosecution from filing charges to imposing a sentence of death and their relationship to homicide data. He found what he called “important disparities both with regards to the race and gender of the victims of the crime, and in the combined racial characteristics of the offender and victim of the crime,” showing that the death penalty is disproportionately sought and obtained in cases with white victims, and particularly white female victims, as compared to Black victims. “Though Black men account for roughly a third of all Kansas homicide victims, this State has never imposed the death penalty for the murder of a Black man,” Baumgartner wrote.

Baumgartner also found “no statistical correlation at all between homicides and death sentences over time, and very little correlation across counties.”

An expert report by veteran capital defense lawyers, Professor Sean O’Brien, University of Missouri, Kansas City School of Law, and Marc Bookman, Executive Director of the Atlantic Center for Capital Representation, reviewed the state’s procedures and mechanisms for providing legal representation to Kansas capital defendants at trial and in the appellate process. They found that the state’s capital defense system “cannot guarantee effective representation to every person who may face capital charges and sentences in the future” and that “[i]n the absence of such a guarantee, the Kansas system for administering capital punishment will inevitably produce arbitrary and unreliable death sentences.”

In court filings, Sedgwick County District Attorney Marc Bennett, derided Young’s motion. “According to these experts, even well-meaning efforts … have proven ineffective to correct an underfunded criminal justice system built on a centuries-old foundation of racism, given what the defense experts describe as racist prosecutors, a racist media, ineffectual judges, and racist jurors incapable of following the court’s instructions.”


Jonathan Shorman, Kansas death penal­ty faces new chal­lenge with ACLU invok­ing land­mark abor­tion deci­sion, The Kansas City Star, January 182023

Read the expert reports filed in Kansas v. Young.