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A court in Kansas is reconsidering the death penalty

STEVE INSKEEP, HOST:

The death penalty goes on trial today in Kansas. The ACLU argues that a correct reading of the Kansas Constitution would throw out capital punishment in the state. As Frank Morris of member station KCUR reports, the multiday hearing is challenging the death penalty in a new light.

FRANK MORRIS, BYLINE: In Wichita, a man stands accused of stalking and killing his former girlfriend and her new boyfriend. The accused is Black, and so is one of the victims. The prosecutor wants the death penalty, but that case is on hold while the ACLU makes its case against capital punishment here.

HENDERSON HILL: We're bringing litigation under the Kansas Constitution, challenging many aspects of the administration of the death penalty.

MORRIS: Henderson Hill is senior counsel with the ACLU's Capital Punishment Project. He says the big issue here has to do with jury selection. In death penalty trials, prosecutors disqualify prospective jurors who say they could never impose capital punishment. He says Black people are far more likely than whites to feel that way.

HILL: And so essentially, that standard weeds out Black citizens from service in death penalty cases.

MORRIS: Hill argues the death penalty process is racist throughout. He says it shortchanges people with mental disabilities and results in an alarming number of false convictions. None of these arguments are new. But Richard Dieter, who directs the Death Penalty Information Center, says they should get a fresh hearing in Kansas.

RICHARD DIETER: It's building on a prior ruling from the Kansas Supreme Court about how carefully court has to protect certain fundamental rights.

MORRIS: Dieter says that when the Kansas Supreme Court upheld a right to abortion three years ago, it set a high standard for the state to justify laws that infringe on fundamental rights. Support for capital punishment has dropped in recent decades to about 6 in 10 Americans in favor. But Dieter says the actual number of executions in death sentences has fallen much faster - from about a hundred executions and 300 death sentences a year in the late 1990s, down to 18 executions and about 20 death sentences last year.

DIETER: This is a phenomenal change, and it's carved across the country.

MORRIS: Not evenly. Twenty-four states still have the death penalty, but just two of them - Texas and Oklahoma - accounted for more than half of last year's executions. Kansas hasn't killed anyone since 1965, when it hanged two murderers in the case that inspired Truman Capote to write "In Cold Blood."

SEAN O'BRIEN: If you're looking for a program that can't withstand a cost-benefit analysis, this is it.

MORRIS: University of Missouri law professor Sean O'Brien says capital murder cases cost taxpayers at least 10 times more than other murder trials. Marc Bennett, the county district attorney in Wichita, has heard all this before, and all the arguments brought by the ACLU. He says the courts have, too, and that the death penalty is settled law. What's more, he says, the trial at hand hasn't even started, so there's nothing to critique.

MARC BENNETT: We won't know if we had a constitutionally sound jury selection or a constitutionally sound trial until we try it. And to have this hearing ahead of time is premature.

MORRIS: No one involved in this pretrial hearing in Wichita expects it to trigger a ban on the death penalty in Kansas. Opponents hope it will keep pressure on the courts and the legislature and make justifying capital punishment just a little bit tougher.

For NPR News, I'm Frank Morris. Transcript provided by NPR, Copyright NPR.

Frank Morris