If the death penalty is racist, arbitrary and serves no valid penological purpose, does it violate the Kansas constitution? The Sedgwick County District Court will grapple with this question at an unprecedented evidentiary hearing beginning on April 11, 2022. The ACLU, together with the ACLU of Kansas and law firm Hogan Lovells US LLP, is challenging the Kansas death penalty statute under the Kansas Constitution and United States Constitution in the case of Kansas v. Cornell McNeal. Mr. McNeal is a Black man facing a capital trial in Sedgwick County, Kansas. Prosecutors are seeking a death sentence.

 Over the past two years, a group of leading state and national experts have conducted a groundbreaking factual examination of the death penalty as applied in Kansas. This new evidence shows that the death penalty in Kansas violates the state and federal Constitutions in three key ways:

1.     White-washed and biased capital juries violate capital defendants’ rights to fair and impartial juries. The process of selecting juries in death penalty trials in Kansas results in juries that are uniquely discriminatory: capital juries are whiter and more guilt prone than any other criminal jury. To learn more, read the expert reports of Mona Lynch, Elisabeth Semel, Wanda Foglia and Scott Sundby.

2.    The arbitrary and discriminatory imposition of the death penalty violates the prohibition on cruel or unusual punishment. The imposition of the death penalty in Kansas has been exceedingly rare: the vast majority of counties has never sought or imposed death. Where the death penalty has been imposed has much to do with racial bias and quality of counsel problems. Statewide and in Sedgwick County alike, the death penalty is far more likely in cases with White female victims. To learn more, read the expert reports of Shawn Leigh Alexander, Frank R. Baumgartner, Jeffrey Fagan, and Marc Bookman.

3.    The death penalty doesn’t deter crime and is extremely costly. The lack of a valid penological purpose means the death penalty cannot withstand any level of constitutional scrutiny. Kansas has not executed anyone since 1965. New cost, deterrence, and innocence studies show the irrationality of the death penalty in Kansas. To learn more, read the expert reports of Jeffrey Fagan, Philip J. Cook, Carol Steiker, Floyd Bledsoe, and Tricia Rojo Bushnell. 

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