Kobach wants change in state law that would require death warrants – the formal judicial documents authorizing officials to kill a prisoner – to be issued within 30 days of a death row prisoner exhausting their appeals. His proposal would take the responsibility for issuing death warrants away from the Kansas Supreme Court and place it with district judges.
Kansas should also allow executions by hypoxia, Kobach says. The controversial execution method deprives a person of oxygen and was used in the United States for the first time last month, when Alabama executed a man using nitrogen gas. Witnesses said he writhed violently, according to the Associated Press.
At a news conference on Thursday, Kobach voiced concern that existing law would prevent an execution from taking place because it does not clearly state how an execution is ordered and lethal injection drugs are difficult to obtain.
Kobach, who was joined by the family members of crime victims, said the Legislature needs to address the situation soon as death row prisoners may soon begin exhausting their appeals. He said at least one death row prisoner could exhaust his appeals in 9 months. In a statement prior to the press conference he said Kansas was likely to execute a prisoner in the next year or two.
“We are lying to the people of Kansas if we say that we have the death penalty but we actually can’t carry out an execution,” Kobach said.
The changes would ensure family members of victims don’t have to wait any longer than already necessary to see justice served, Kobach said.
“There is no closure,” Brian Sanderholm said of the years he’s spent waiting for his daughter’s killer, Justin Thurber, to be executed.
But critics say the bill allows executions in an inhumane manner and speeds up the execution process in a way that risks limiting a defendant’s ability to exhaust their federal and state appeals.
Micah Kubic, executive director of the ACLU of Kansas, called the proposed legislation extreme.
“We are truly disturbed by AG Kobach’s desire to not only boost the power of the state to kill in a novel, potentially painful way – but to also remove the safeguards against this most brutal kind of government overreach. Looking across the country, states that use the death penalty actively are far from safer because of it,” Kubic said.
Others say the bill contains vague language open to interpretation that would lead to litigation.
Nine people are on death row in Kansas. None have exhausted their appeals.
New Death Warrant Process
Under existing law, the Kansas Supreme Court issues a death warrant once a prisoner has exhausted the appeals process. But the law imposes no required timeline.
Kobach’s bill would instead require the high court to notify the district court where the case began that appeals have been exhausted. Within 30 days that district court judge would be required to present a death warrant to the Kansas Department of Corrections.
Rep. John Carmichael, a Wichita Democrat, said it seemed to him that the bill may be crafted to bypass a state Supreme Court or governor unwilling to let an execution go forward.
“I think what they’re attempting to do here is to shortcut if you will so that when the judge pronounces the sentence of death the judge can also sign the so-called warrant,” Carmichael said.
The Kansas Supreme Court has not recently considered the legality of the death penalty. Still, Justice Caleb Stegall, the court’s most conservative member, said in a concurring decision affirming a death sentence last month that he was open to considering whether the death penalty is constitutional.
And Gov. Laura Kelly, a Democrat, has long been a vocal opponent to the death penalty, voting as a state senator to abolish the practice and reiterating that belief on the campaign trail in 2022.
In a statement this week, Kelly’s office said the governor still opposes the death penalty, but did not say how she would respond if an execution was ordered while she remained in office. Kelly has the power to offer clemency to any Kansas prisoner, eliminating or reducing their sentence.
“Governor Kelly has long supported repealing the death penalty, both as a state senator and on the campaign trail, because it is impractical, expensive, and inhumane,” Kelly spokeswoman Grace Hoge said in a statement.
She added that the office has not received any clemency applications from a defendant facing a death sentence.
“If our office were to receive one, it would first have to be reviewed by the Prisoner Review Board and then Governor Kelly would make a determination based on the details of the case.”
Sedgwick County District Attorney Marc Bennett said Kobach’s bill adds needed clarity to the death penalty process by making district courts responsible for ordering an execution rather than landing with the Kansas Supreme Court. He said this mirrors other types of cases where the Supreme Court decides a legal issue and sends it back to lower courts to deliver a sentence.
“When the appeals are finally over, the new law would dictate that the order of the Supreme Court would go back to the district court directing the KDOC to implement a specific schedule to implement the death sentence,” Bennett said in an email. “That clarity would seem to benefit the families of the victims.”
Use of Hypoxia
Robert Dunham, director of policy for the Death Penalty Policy Project, said Kansas’ bill was problematic for several reasons, especially in light of Alabama’s use of hypoxia.
Witnesses to the Alabama execution reported Kenneth Smith was convulsing and gasping for several minutes.
“If we go down that path, Kansas will be an international pariah,” Dunham said. “The U.S. will lose even more moral authority on issues of human rights.”
Dunham also said bills in other states specify that nitrogen gas be used in executions while Kansas’ bill says hypoxia, which is a broader term. Either way, Dunham said, using gas equates to “human experimentation.”
It also presents risks to corrections staff and spiritual advisors, who are allowed in an execution chamber during a prisoner’s last moments, Dunham said.
Heather Cessna, executive director of the Kansas State Board of Indigents’ Defense Services, said hypoxia was not clearly defined in the bill.
“We have a lot of concerns about hypoxia, both the definition of hypoxia because of its vagueness and the variety of things that could be covered underneath it,” she said. “I think it’s going to open up the doors to a whole slew of litigation.”
The language has prompted questions about specific procedures that could be used as well as worries about cruel and unusual punishment. Hypoxia is defined as the deprivation of oxygen. Alabama used nitrogen gas for its hypoxia execution, but Kobach’s bill does not specify.
“I have human concern for any of our clients that might be subjected to that sort of treatment at the hands of the state,” Cessna said.
Cessna said the proposal would almost certainly prompt a new round of litigation over the method of execution. She called Kobach’s timeline for an execution in Kansas “ambitious.”
Kobach told reporters he believed hypoxia was the most humane way to conduct an execution, but said he did not limit the form to the most common method of hypoxia via nitrogen gas, suggesting other gasses, like helium, could be used.
The Alabama Attorney General’s Office, Kobach said, has said the descriptions of the Alabama execution using hypoxia were inaccurate.
“Even if there were some discomfort, which I don’t think there was in the Alabama case, we need to remember the victims who suffered extraordinary pain,” Kobach said.
‘It’s Dangerous’
The language of Kobach’s bill has prompted wide ranging concerns among opponents to the death penalty.
The measure directs district courts to send the secretary of corrections a death warrant within 30 days after a final judgment. But it doesn’t specify whether a federal or state court makes that final judgment.
Ron Wurtz, vice chair of Kansas Coalition Against the Death Penalty, is a retired attorney who worked on capital cases. He said if final judgment refers to the Kansas Supreme Court, it causes problems because a defendant could still pursue a federal case. Thirty days is not much time to file a federal court challenge, he said.
“It’s dangerous,” he said. “There’s definitely a problem there.”
Wurtz also voiced other longstanding concerns with the death penalty that go beyond Kobach’s proposal, including the cost of litigating death penalty cases and the possibility of executing someone who is innocent. More than 130 people have been exonerated from death row, according to the National Registry of Exonerations.
Kobach said the final judgment would only come after a court had determined both federal and state appeals were exhausted.
The Kansas attorney general’s push for changes come as Kansas death penalty opponents have tried for years to eliminate it altogether.
Rep. Mark Schreiber, an Emporia Republican who has introduced several bills to abolish the death penalty, said he would oppose any effort to expedite executions or greenlight a new execution method.
While Kobach’s bill may open a door for amendments to abolish the death penalty, Schreiber said he didn’t believe the Legislature would ban it before a prisoner has exhausted their appeals process in the coming years.
“There’s a substantial number of my colleagues that would support abolishing the death penalty, I don’t know if we’d get to 63 in the House,” he said, referring to the number of votes needed to pass a bill through the chamber.
Kubic, with the ACLU of Kansas, urged legislators to reject the bill, which he said was “utterly antithetical to the values of this state.”
“Kansans have lost the appetite for this brand of false justice.”
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