Federal Constitutional Requirements Governing Trial, Sentencing and Direct Review in Capital Cases

JurisdictionKansas,United States,Federal
CitationVol. 64 No. 10 Pg. 20
Publication year1995
Kansas Bar Journals
Volume 64.


Journal of the Kansas Bar Association
October, 1995


Stephen McAllister

Copyright (c) 1995 by the Kansas Bar Association; Stephen McAllister

The State of Kansas has not executed a murderer for almost thirty years. [FN1] Indeed, from 1972 until 1994, Kansas did not have an operative system of capital punishment. In 1994, the legislature passed a capital punishment bill that the Governor permitted to become law without her signature. [FN2] The statute applies to capital crimes committed on or after July 1, 1994. [FN3] The first capital murder charges under the new statute were filed on September 20, 1994, in Saline County. [FN4] Kansas courts, prosecutors and defense counsel now must undertake the extraordinary task of administering a capital punishment system.

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The Supreme Court of the United States altered the fundamental nature of capital sentencing in 1972 when in Furman v. Georgia [FN5] it effectively declared all state capital punishment systems then in use unconstitutional. Importantly for any state such as Kansas seeking to implement a constitutional system of capital punishment today, the Court did not end its involvement in this area of the law with Furman. In 1976, the Court upheld three statutes from a new generation of capital punishment statutes enacted in response to the Furman decision. [FN6] Since then the Supreme Court has developed a vast framework of federal constitutional rules that govern trial, sentencing and direct review in capital cases. Virtually every provision in the new Kansas statute is based on a constitutional rule the Supreme Court created during the past twenty years.

This article provides an overview of both the Kansas capital punishment statute and the modern federal constitutional rules that govern trial, sentencing and direct review in capital cases. [FN7] In an effort to assist those who have been charged with the difficult task of implementing the Kansas system in a constitutional manner, the article identifies and explains the federal constitutional bases for many of the provisions in the new Kansas statute. The article also provides limited commentary on the constitutionality of various statutory provisions.


Like the capital punishment statutes of many other states, the Kansas statute creates a new offense of capital murder that significantly limits the class of murderers eligible for capital punishment. The statute applies only to offenses committed on or after July 1, 1994. [FN8] Under the statute, capital murder is the intentional and premeditated killing of a person:

(1) "in the commission of kidnappingor aggravated kidnappingwhen the kidnapping or aggravated kidnapping was committed with the intent to hold such person for ransom;" (2) "pursuant to a contract or agreement to kill such person or being a party to the contract or agreement pursuant to which such person is killed;" (3) "by an inmate or prisoner confined in a state correctional institution, community correctional institution or jail or while in the custody of an officer or employee of a state correctional institution, community correctional institution or jail;" (4) "of the victim of one of the following crimes in the commission of, or subsequent to, such crime: Rape, criminal sodomy,or aggravated criminal sodomy,or any attempt thereof;" (5) "of a law enforcement officer;" (6) "of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct;" and (7) "of a child under the age of 14 in the commission of kidnapping,or aggravated kidnapping,when the kidnapping or aggravated kidnapping was committed with intent to commit a sex offense upon or with the child or with intent that the child commit or submit to a sex offense." [FN9] As a procedural matter, the state may seek the death penalty only if it files and serves written notice of intent to do so no later than five days after the defendant's arraignment. [FN10] Also, a death sentence is not an option for the state if the defendant was less than eighteen years of age [FN11] or mentally retarded [FN12] at the time the murder was committed. [FN13]

Capital murder is an off-grid person felony. [FN14] Following a conviction on capital murder charges, the statute requires a second trial on the issue of sentencing. Generally, the jury that determined a defendant's guilt also will make a recommendation regarding the defendant's sentence. The defendant, however, has the option of waiving the right to a jury and being sentenced solely by the

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court. [FN15] When the sentencing proceeding is conducted before a jury, the jury must determine unanimously and beyond a reasonable doubt whether any statutory aggravating circumstances [FN16] exist and whether such circumstances are not outweighed by any mitigating circumstances. [FN17] If the jury unanimously concludes that death is the appropriate sentence, then the trial judge may, but is not required to, impose a death sentence. [FN18] If the jury cannot reach a unanimous determination that death is the appropriate sentence, then the judge must sentence the defendant under other available sentencing options--a death sentence is not permitted. [FN19] The other permissible sentencing options appear to be a hard 40 sentence [FN20] or a sentence of imprisonment without possibility of parole for 25 years. [FN21]

All death sentences are subject to automatic and expedited review in the Kansas Supreme Court. [FN22] The statute specifically directs the Kansas Supreme Court to determine (1) whether the evidence supports the jury's recommendation that death be imposed and (2) whether the jury's recommendation was the result of passion, prejudice or any other arbitrary factor. [FN23] The method of execution in Kansas is lethal injection. [FN24]


For most of this nation's history, the Supreme Court of the United States rarely considered constitutional challenges to capital punishment. The few decisions that imposed any constitutional rules in the trial, sentencing and direct review of capital cases were based on due process considerations. [FN25] As late as 1971, the Court held that in capital cases (1) giving the sentencer unlimited discretion was not unconstitutional and (2) the Constitution did not require a second trial separate and apart from the guilt phase to determine the appropriate sentence. [FN26] Thus, for most of this century, the states' capital punishment systems developed largely without federal oversight. [FN27]

A. The Fundamental Principles

1. Guided Discretion

The Supreme Court's capital jurisprudence effectively dates back only to 1972, when the Court decided Furman v. Georgia. [FN28] In that case, the Court held that virtually all state capital punishment statutes then in existence were unconstitutional because they lacked adequate standards to guide the sentencer's discretion. In the Court's view, the pre-1972 statutes permitted the arbitrary and capricious imposition of the death penalty, including the potential for sentencing on the basis of pernicious and unacceptable grounds such as the defendant's race. [FN29] The Court concluded that it was impossible to differentiate on a rational basis between the capital defendants who received the death penalty and those who did not. [FN30]

The Supreme Court's opinions in Furman squarely base the holding in that case on the Eighth Amendment's prohibition on the imposition of "cruel and unusual punishments." [FN31] The Court's subsequent decisions have continued that emphasis. Thus, the Eighth Amendment's prohibition on cruel and unusual punishments is the touchstone of the Supreme Court's capital jurisprudence.

The Supreme Court's decision in Furman, rather than resulting in the demise of capital punishment as some might have predicted, prompted over thirty states to enact new capital statutes. The states designed this second generation of capital punishment statutes to respond to the concerns the Court expressed in Furman regarding arbitrary and discriminatory sentencing. In 1976, in five consolidated cases, the Supreme Court upheld three of these statutes against constitutional challenge while striking down two others.

In Gregg v. Georgia, [FN32] Proffitt v. Florida, [FN33] and Jurek v. Texas, [FN34] the Supreme Court upheld death penalty statutes that created a bifurcated process in which guilt was determined in the first phase of the proceeding and the propriety of a death sentence was determined in a second, separate phase. The three statutes that the Court approved utilized "aggravating" and "mitigating" circumstances to limit and guide the sentencer's discretion in the sentenc ing

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phase of the process. The Court emphasized that, in order to satisfy the Constitution, a system of capital punishment must (1) provide specific and detailed guidance to the sentencer (the "guided discretion" principle) and (2) require the sentencer to focus on the circumstances of the crime and the character of the defendant (the "individualized sentencing" principle). [FN35] Specifically, in Gregg the Court upheld a Georgia statute that required the jury to find one or more aggravating circumstances in order to make the defendant eligible for the death penalty but did not provide for weighing such factors in determining the actual sentence. In Proffitt the Court upheld a Florida statute that required the sentencer to weigh mitigating and aggravating circumstances when deciding whether to...

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