Finally, a legal victory against the death penalty

Kansas District Court Judge Bill Klapper is no one’s idea of a liberal anti-death penalty activist, having been originally appointed to fill a vacancy on the bench by Gov. Sam Brownback (R) in 2013. 

But on April 17, Klapper handed down a stunning indictment of his state’s death penalty that would make any abolitionist proud. It is as comprehensive a criticism as has ever handed down from the bench, and highlights a path forward for what I call “death penalty swing states.” 

Those states have the death penalty on the books but no longer execute anyone — and there are lots of them. Some are red states like Kansas and Ohio; some, like California, are deep blue. All of them are stuck in a kind of death penalty limbo. 

In Kansas, as the Death Penalty Information center notes, the practice “has been abolished and reinstated three times” since 1907. No execution has been carried out there since 1965, and no one has received a death sentence since 2016. Currently, there are nine people awaiting execution in the Jayhawk state. 

In October 2024, two people, Antoine Fielder and Hugo Villanueva, brought forward a suit claiming that the Kansas death penalty “constitutes a legally prohibited cruel and unusual punishment” and violates both the state and federal constitutions. They argued that it “has outlived any conceivable use ... [and] is imperfect in its application, haphazard in its result, and of negligible utility.” 

At hearings convened by Klapper, American Civil Liberties Union lawyers representing Fielder and Villanueva presented testimony from a series of nationally known death penalty experts about racial and gender bias, problems in jury selection, the death penalty’s economic costs, and whether it deters.  

They also put forth a “targeted challenge to a unique aspect of capital trials known as death qualification,” according to public radio — “a rule requiring that anyone serving on a capital jury must believe state execution is a valid form of punishment.” 

“Under death qualification,” the report states, “a juror who says they oppose the death penalty on principle is automatically struck. Critics say the practice is discriminatory because some types of people are more likely to be excluded from juries than others.”  

The ACLU contends that “This practice disproportionately discriminates against Black people, women, and people of faith.”  

The state cross-examined the expert witnesses but offered no experts of its own. And it argued there was “no longer a case for the court to consider” since “the death penalty cannot be a possible punishment” for either of the defendants, and “the proper way to abolish the death penalty would be to urge legislators to change or repeal the law itself.” 

Ultimately, Klapper was convinced that “a defendant may not challenge the constitutionality of a statute … if it does not affect him but may conceivably be applied unconstitutionally in other circumstances.” But what looked like a defeat for Fielder and Villanueva was a total victory for death penalty abolitionists. The judge incorporated the expert testimony almost verbatim, calling it “decidedly persuasive and well-reasoned.”  

Klapper’s opinion put aside the “moral issues” surrounding the death penalty, focusing instead on the very issues the ACLU had highlighted. 

Starting with capital punishment’s financial costs, he found that, across the nation, capital cases cost on average “$700,000 more than non-capital cases.” In Kansas alone, “More than $4 million has been spent with the results being no death penalty sentences and zero executions.” 

Beyond their costliness, Klapper determined that “The factors which distinguish death sentence cases from non-death sentence cases are the race and gender of the victim, and the race and gender of the defendant.” Murder cases involving white and female victims, the judge found, are much more likely to result in capital prosecutions. 

And, if that were not enough, Klapper concluded that “The scientific community has found no reliable evidence of the death penalty being a deterrent to homicides.”  

Throughout, his opinion is pragmatic rather than ideological; it offers people in death penalty swing states a way forward by emphasizing the fairness of the death penalty process and its costs and benefits. As Klapper puts it, they should question the “propriety” of keeping a death penalty as a possible punishment when the state will “never impose it.”   

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.