Will The Death Penalty Debate Determine Who Is On The Kansas Supreme Court?

Oct 9, 2016

It’s been a half century since Kansas has executed a convicted killer and generally speaking, it’s not much of a political issue in the state.

But conservatives are banking on capital punishment in their campaign to oust four state Supreme Court justices.

When it comes to whether or not the Supreme Court justices should be kept on the bench or voted out, we’ve heard mostly about school finance and whether the high court should even be a player in that.

But lurking in the background, especially around Wichita and in western Kansas, is the death penalty.

"There are a number of issues that are before this court that have to be decided that impact every Kansan. So the death penalty is definitely one piece of that," says Ryan Wright from Kansans for Fair Courts, the group leading the effort to retain the justices on the ballot in November.

The other piece is abortion. Over the years the justices have overturned some restrictions.

That resonates with pro-life voters but probably won’t lure many others to oppose the justices.

But, the death penalty just might.

"I think good political consultants know which emotional buttons to push and fear is one of the most popular because it’s one of the most effective," says Michael Smith, a political scientist from Emporia State.

School finance, he says, is too complicated. Voters just want their schools open, class sizes relatively small and stable funding. "Whereas when you talk about 'they let murders off,' which is not technically correct, but when you frame it that way that pushes an immediate and very visceral button."

And there is nothing more visceral around the death penalty in Kansas than the Carr brothers murder case.

The Carrs murdered five people in Wichita in 2000. They were sentenced to death but the Kansas Supreme Court overturned the sentence, though not the convictions. Eventually, the U.S. Supreme Court reinstated the death sentences and the Carrs are back on death row.

Republicans fiercely maintain that four of the justices up for retention ignored the law and struck down the Carrs' death sentences for political reasons.

The state Republican Party passed a resolution at its convention in May calling for the ouster of justices Carol Beier, Dan Biles, Maria Lucket and Chief Justice Lawton Nuss. Though any mention of the death penalty was left out of the party platform

The newest member of the high court, Caleb Stegall, has not been targeted by the conservatives because he's seen as a conservative himself. Stegall was Gov. Sam Brownback's chief legal counsel before being appointed to the Court of Appeals and then going through the merit selection process that landed him on the state Supreme Court.

House GOP leaders are leading the charge against the other four. Their Facebook page and Twitter feed are dotted with memes targeting the justices, including one with a red slash over their faces.

While House Republicans regularly send out incendiary emails and tweets, no one would agree to an interview. Not Speaker Ray Merrick from Stilwell. Not Majority Leader Jean Vickery from Louisburg. Not party director Clay Barker.

But Senate President Susan Wagle was tough on the high court on a recent episode of KCUR’s political podcast, Statehouse Blend. She's from Wichita. 

"My community is very upset with this court because of the Carr brothers murders," Wagle says. "They overturned that death penalty and we had to go to the Supreme Court, spend a lot of money, to get our court back in line. So to me, they have overstepped their authority."

In February, a Fort Hays State University poll showed only 21 percent of Kansans were dissatisfied with the high court, while 61 percent were dissatisfied with the Legislature.

Ryan Wright from Kansans for Fair Courts is pretty confident the justices will be kept on the bench. "Even with that case in Wichita I think that we’re going to see voters rally behind these courts because they think it’s important to have fair and impartial courts in Kansas."

A bipartisan quartet of Kansas governors also think so and recently went on a barnstorming tour of the state to campaign in favor of retention.

Because there’s more politics surrounding the court this year than ever before, most believe this may be one of the closest judicial retention elections in Kansas ever.

Sam Zeff  is co-host of the political podcast Statehouse Blend and covers education for KCUR, which is a partner in a statewide collaboration covering elections in Kansas. Follow Sam on Twitter @SamZeff.