Notes: Senate Judiciary 1/19/2010

RE: Death Penalty Abolition (SB208/375)

1. Senate Judiciary—No bill introductions.

2. Death Penalty Review of 2009 Actions by T. Owens—The abolition bill
passed Senate Judiciary in 2009 on a 6-5 vote as SB208. Before
Committee as a Whole, Senate debated for three hours, but D. Schmidt
found technical problems with the bill and Owens pulled from 2009
Session and sent back to Senate Judiciary. Senate Judiciary referred
bill for review to the Kansas Judicial Council. KJC reviewed and sent
back SB208 plus a recommended new bill (SB375) that cleaned up the
technical problems with SB208.
3. SB208 Bill Review—SB208 created a new crime of aggravated murder,
removing references to capital murder under Kansas Statute. SB208
tied death penalty to the time of conviction instead of the time of when
the crime was committed.
4. SB375—New bill introduced by the Kansas Judicial Council. Amended
208 by:
a. Amending the enactment of the bill; would tie imposition of
death penalty sentence to when the crime was committed. If
committed before 7/1/2010, then death penalty would still be
available as a sentence; but if crime committed after7/1/2010,
then no death penalty would be available. KJC explained that
this amendment was necessary because it’s typically how such
statutes operate in order to avoid due process constitutional
issues.
b. Creates the new crime of aggravated murder and removes
references to “capital” offenses.
c. Addresses the multiplicity issues that were raised by the both
the State v. Scott and State v. Appleby courts: that if multiple
murders are used to justify the death penalty and to convict of
capital murder, prosecutor cannot then use each of those
murders individually in an alternative count. Would result in
double jeopardy.
d. Punishment is now “life in prison without the possibility of
parole.”
e. Juveniles and mentally retarded defendants cannot be
sentenced to life without parole.
5. Presentation by the Prof. Jeffrey Jackson (Washburn Law) representing
the Kansas Judicial Council—
a. SB375 is based on when the crime was committed, not when the
defendant is sentenced.
b. Costs saved within SB375? Jackson said some costs would be
saved, but no specific analysis or amount was volunteered by
Jackson.
6. Jordan Steiker, Co-Director of the Capital Punishment Center at the
University of Texas School of Law—
a. Proponent for bill. Begins by noting that the ALI has removed
capital punishment from the Model Penal Code. The Model Penal
Code, after capital punishment was again allowed by SCOTUS,
served as the model for all death penalty state statutes across
the nation.

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Notes: Senate Judiciary 1/19/2010
RE: Death Penalty Abolition (SB208/375)

b. In 2007, ALI commissioned a study on possibly withdrawing

capital punishment from the Model Penal Code. In Oct. 2009,
ALI removed the capital punishment provisions after Steiker
drafted report for ALI.
c. The current SCOTUS jurisprudence is against the death penalty.
d. Lack of resources & the high degree of politicization of death
penalty cases make trying such case difficult and result in a high
degree of reversible error on appeal.
7. Catholic Bishop—
a. Capital punishment should be used only if there are no other
legitimate means to protect against unjust action. Recourse
should be made to bloodless means first.
8. Prof. Mike Rathlatt, University of Colorado-Boulder Sociology Professor
—
a. The death penalty presents a “marginal deterrent effect” to
persons committing such crimes.
b. Once the punishment is so severe, the deterrent effect is no
longer effective. Professor used the analogy of “Why turn range
to hot when medium will have the same deterrent effect of not
to touch?”
c. “Certainty of apprehension” is the most important deterrent to
crime.
d. The only types of homicide deterred by the death penalty are
intra-family murders. Felony murder instances actually
increase.
9. Committee Questions—
a. Haley—On Governor commutation provisions & right to speedy
trial, is there any way to speed up the trial & appeals. Prof.
Rathlatt answered that there have been some recent instances
of trials & appeals being sped up, but that was the result of a
defendant with death penalty imposed giving up on hope for
appeal and asking for the execution to appeal.

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