On the day after Valentine’s Day, Kansas Attorney General Kris Kobach went to the Capitol and made a surprising announcement to the media: Nearly 60 years after the state carried out its last execution – and almost exactly 30 years after its current death penalty law went into effect – Kansas might soon be ready to once again put a convicted murderer to death.
“It’s possible,” he told reporters, “that one of the cases could be ready as early as nine months from now.”
There were several families on hand for Kobach’s news conference, relatives of people murdered by the nine men who now sit in Kansas prisons awaiting execution. (Two others convicted of capital murder, Kobach said, had died in prison while their appeals were ongoing. They “escaped justice,” he said.) All of the families have been waiting for years. Some of them for decades.
They are ready for the wait to end.
“My issue is this all happened to us 17 years ago to my daughter,” said Brian Sanderholm, whose daughter, Jodi Sanderholm, was killed in 2007. Justin Thurber, the man convicted of capital murder in her death, received his death sentence in 2009.
Brian Sanderholm and Jennifer Aldridge, the father and sister of Jodi Sanderholm, who was murdered in 2007, told reporters at a news conference in February at the Kansas Capitol that solace will never be theirs until Justin Thurber, the killer sentenced to die in 2009, is put to death.
“It’s just cruel and unusual punishment, the way I see what we’re going through, because it’s been 17 years,” Sanderholm said that day. “Every day when I go uptown to dinner, to eat or anything, to see anybody in the public – and I am in the public’s eye quite a bit – somebody’s talking about it. Somebody brings it up. Something happens that Jodi’s name and her issue comes up again.
“We have to live through it every day,” he told the assembled reporters. “There is no closure for us, and we need your help getting us closure. So please help us.”
Whether that closure is coming soon, though, is an open question. After Kobach’s news conference, Mark Manna – who leads the Kansas Death Penalty Defense Unit – sounded skeptical that a Kansas execution might come within the year.
“I think that’s highly unlikely,” Manna said, ticking off the appellate status of several cases. But, he acknowledged, some of those cases were entering their final stages. “So it’s possible in the next handful of years there could be a client ready for execution.”
It’s not unusual that Kansas has taken so long to conduct an execution under the law passed in 1994. Capital cases nationwide often take at least a decade or more to resolve, according to the Death Penalty Information Center, a nonpartisan outlet critical of how the penalty is applied.“More than half of all prisoners currently sentenced to death in the U.S. have been on death row for more than 18 years,” the center says on its website.
The process can take a toll on participants. Prosecutors say they warn the families of victims that capital cases take a very long time to resolve.
“For a case that starts this year, I don’t know what to tell you family members about how long this process will work,” said Sedgwick County District Attorney Marc Bennett at the press conference, “but I’m probably buying your grandchildren the misery of seeing this through.”
The history
As a state, Kansas has always had an ambivalent relationship with capital punishment. It had a death penalty law on the books from 1861 to 1907, but governors mostly refused to sign off on executions during that time. (There were several executions under military and federal law during that era, however.)
“Personally I have always been opposed to capital punishment,” Gov. Edward Hoch wrote in 1906, “and as a student of the subject have long since become convinced that it is not a deterrent of crime, but a promoter of it.”
The death penalty law was repealed the next year, then restored decades later, in 1935. But the law was used infrequently. Fifteen men were executed between 1944 and 1965. The last two — James Douglas Latham and George Ronald York – were Army deserters who in 1961 killed seven people in five states, including 62-year-old Otto Ziegler of Oakley. (Perry Smith and Richard Hickock, the infamous “In Cold Blood” killers, had been executed two months earlier.)
“There is nothing to say but that I am going home to heaven,” York said, moments before he was hanged at Lansing.
Seven years elapsed between that execution and the Supreme Court’s 1972 decision declaring the death penalty unconstitutional in all 50 states. The court restored the penalty – under limited circumstances – in 1976. But it took nearly two decades after that for Kansas to pass its new death penalty law.
It wasn’t for lack of trying. Gov. John Carlin vetoed bills in 1979, 1980, 1981 and 1985. “We must find other means of deterring murderers, punishing them and seeking retribution from them,” he wrote in 1985. “I am confident we can do that.”
There were more failed attempts during Gov. Mike Hayden’s term in the late 1980s, despite his advocacy for a bill. The process that resulted in the enactment of the 1994 law was yet another reflection of political ambivalence: Gov. Joan Finney let it go into effect without her signature.
“I am personally opposed to the death penalty,” she wrote to the Legislature on April 22, 1994, “but believe that a majority of Kansans support it as a matter of public policy.”
And then the wait began.
Why so long?
So why does the death penalty process take so long?
Prosecutors don’t necessarily jump into charging a defendant with capital murder. Kansas law allows the charges in a specific set of cases – “intentional and premeditated” murders generally, murders for hire, killings committed in connection with kidnapping or rape, and the killing of law enforcement officers all count. So do killings involving multiple victims or victims under the age of 14.
That might seem fairly straightforward. It’s not.
The kind of case that gets prosecuted for capital murder “shocks the senses,” says Kansas Deputy Attorney General Vic Braden, one of the state’s most experienced death penalty prosecutors. Those defendants include Jonathan and Reginald Carr, convicted of killing four people in Sedgwick County in 2000; and John Edward Robinson, an Olathe man convicted of killing eight women starting in the late 1980s.
Deputy Attorney General Vic Braden is the leader of the Kansas attorney general’s criminal division and over a career approaching three decades has handled numerous high-profile homicide cases. Credit: Courtesy of Kansas Attorney General’s Office
Even in the face of such horrors, determining whether to prosecute a homicide as a death penalty case “is not a decision to take lightly,” Braden says. The decision to bring capital murder charges “typically … takes at least a year to get to that point, sometimes a year and a half, two years.”
That’s just the beginning. “When I talk to the victim’s family, if we decide to go with the death penalty, I tell them, ‘It’s going to be at least three years from when the crime is charged before we get to a jury trial,’” Braden says.
Part of the reason is that a death penalty trial in Kansas is really two trials: There’s the first phase – determining whether a defendant is guilty – that happens in all trials. The second phase determines whether the death penalty will be applied.
That second phase looks a lot different from other court proceedings. Prosecutors must make the case that the murder was done in an especially “heinous, atrocious or cruel manner.” For the defense, it’s a chance to appeal to the jurors’ sense of mercy – a focus not just on the crime and the victim, but on reasons why a defendant might deserve life in prison rather than execution.
It requires intense preparation, on both sides.
Manna, who has served in the death penalty defense unit for 25 years and as its chief for the last decade, runs down a list of things that lawyers may want to get before jurors: The defendant’s background. How he or she got to this point. Why the crime occurred. The effect an execution would have within the defendant’s circle of family and friends.
“Is there some reason that a juror may feel that a life sentence is warranted? And that can be any reason – that can be mercy.”
At this stage of the process, though, defense teams are working uphill. To serve on a capital murder case, jurors must be “death qualified” – willing to impose the death penalty if they determine it’s merited. Jurors can’t serve if they’re unwilling or opposed to capital punishment.
“Most people who would tell you that they’re willing to impose a death sentence on an individual tend to be pro-law and order prosecution. Very conservative,” says Manna. “So going into the first stage, the guilt stage, you’re going to be dealing with a jury that’s already kind of leaning toward the state, the prosecution. They’re not going to be as open-minded about defenses.”
The Kansas Death Penalty Defense Unit is a part of the state’s public defender system and operates out of a drably appointed office in Topeka. Its staff handles all cases in which a defendant is charged with a crime that can result in execution. Credit: Joel Mathis
Braden is less convinced that prosecutors have an advantage with death-qualified juries.“Jurors have to say that – they may lean one way or the other – but they’re willing to listen to the evidence, listen to instructions and come to a verdict of both the guilt and the penalty phase,” he says, and adds: “The ones that really are willing to do that, they’re not heavily toward the defense, the death or no death. They’re somewhere in the middle. I think it works.”
All this takes a lot more resources, on both sides, than the typical murder trial.
“It is very expensive, it is very time consuming and it takes a long time,” Manna says.
Braden will consult with a wider range of prosecutors than in most cases, and is more likely to bring in expert witnesses. Manna, meanwhile, follows guidelines from the American Bar Association, which mandate that a defense team have at least two attorneys, an investigator and a “mitigation specialist” to focus on the information presented in the penalty phase.
“In a regular murder case, there may only be one defense attorney, there may be a second chair,” or assistant defender, Manna says, “but in a death penalty case, there’s a whole team.”
Then come the appeals
It can take years simply to get a conviction and death sentence. The appeals usually last much longer. The first step: The Kansas Supreme Court, where all capital murder convictions are automatically reviewed.
The case of Gary Kleypas shows how that process can be a long and winding road.
Kleypas was 40 years old – and on parole for a 1977 murder in Missouri – when he was arrested in 1996 for the rape and murder of Carrie Williams, a Pittsburg State University student. The next year he became the first defendant convicted of capital murder under Kansas’ then-new law.
The state Supreme Court overturned Kleypas’ sentence in 2001, then overturned the state’s death penalty law entirely in 2004. That was in the case of Michael Marsh, who had been convicted in Sedgwick County of the first-degree murder of Marry Ane Pusch and capital murder in the death of her 19-month-old daughter, Marry Elizabeth.
The U.S. Supreme Court restored Kansas’ death penalty law in 2006, and Kleypas was resentenced to death in 2008. The Kansas Supreme Court upheld that sentence in 2016. In 2017, the U.S. Supreme Court declined to hear the appeal in the more recent sentencing. (Marsh was later resentenced as well, to life in prison.)
Kleypas’ defense team does not argue his innocence. “We’re not arguing my client is exempt from criminal responsibility,” one attorney said during a 2015 hearing. “He’s guilty.”
Instead, Kleypas’ original sentence was overturned on grounds that jurors who recommended he be given the death penalty had been given insufficient information on how to weigh aggravating and mitigating factors in the crime. When appealing the second sentencing, his attorneys argued that jurors had been prejudiced when Larry Williams – Carrie’s father – lunged at Kleypas during a hearing.
“I have zero thought that he will be put to death,” Larry Williams told The Wichita Eagle in 2017. “I just don’t think it’s going to happen.”
Williams died two years later. Kleypas turns 70 next year.
Some appeals hinge on errors that might have been made at trial. Other cases take aim at the validity of the death penalty itself. In 2023, the American Civil Liberties Union and the ACLU of Kansas challenged the capital murder charges leveled at Kyle Young, accused of a 2020 double murder in Wichita. The ACLU claimed that the death-qualification process produced “white-washed and biased capital juries” that are “uniquely discriminatory” against defendants.
The ACLU “found that (the) race of victim really drives the decisions about when the death penalty is handed down and when it is not,” says Cassandra Stubbs, director of the ACLU Capital Punishment Project. “The death penalty is far, far more likely if there’s a female white victim in the case.”
Young pleaded guilty to first-degree murder charges in October, rendering the ACLU’s challenge moot. The hope, Stubbs says, is “that the evidence that we developed will be used in other cases.”
Which means more challenges are likely.
The future
In 2001, state officials led reporters on a tour of the lethal-injection chamber they had built at the Lansing Correctional Facility, which remains unused. All but one of the capital murder defendants are held at the El Dorado Correctional Facility — more than two hours away – to separate the staff who work with inmates on a day-to-day basis from those who might be responsible for implementing the penalty.
“An execution is something that has a certain amount of impact on all of the staff who participate,” then-Kansas Corrections Secretary Chuck Simmons told The Topeka Capital-Journal in 2001.
When Kansas’ 1994 death penalty law was passed, lethal injection – currently the only method of execution allowed under the law – was seen as a humane alternative to firing squads, hanging, the gas chamber or the electric chair. In recent years, though, that method has been challenged by critics as itself cruel and unusual. States that do carry out the death penalty have found it increasingly difficult to obtain the necessary drugs: Many pharmaceutical companies will no longer furnish the chemicals to prison systems.
That’s why Kobach in February asked the Legislature to add another form of execution to the state’s options: hypoxia. Prisoners would be deprived of oxygen until they died.
“In a way, we are lying to the people of Kansas if we say that we have the death penalty, but we actually can’t carry out an execution,” Kobach told reporters. When their 2024 regular session adjourned on May 1, however, legislators had taken no action on his request.
Even if hypoxia did become law, though, more court challenges and delays would be likely. Alabama conducted a hypoxia execution using nitrogen gas in January. Some witnesses said the condemned inmate “shook and convulsed” during the execution, making the method a poor candidate for humane death — and a target for a fresh round of lawsuits.
“I thought that given the bad P.R. that it (hypoxia) got, that it just seemed like, why now?” Manna says of Kobach’s proposal. “Why introduce this literally just weeks after this execution that was so controversial?”
Even if the Legislature were to follow Kobach’s lead, however, Gov. Laura Kelly might not.
“Governor Kelly has long supported repealing the death penalty, both as a state senator and on the campaign trail, because it is impractical, expensive and inhumane,” says spokesperson Grace Hoge. The state, she says, spends an “excessive amount of money” on death-penalty related cases, with little deterrent effect. (There were 170 reported homicides in Kansas in 1994; that number was 168 in 2022.)
In the meantime, the system grinds on. The most recent person sentenced to death in Kansas was Kyle Flack, convicted in 2016 of killing three adults and a toddler in Franklin County. (The Kansas Supreme Court rejected his appeal in January.) Those now facing capital murder charges include Michael Cherry, a Topeka man accused of killing 5-year-old Zoey Felix; and Donald Ray Jackson, a Leavenworth man accused of killing his two sons in 2020.
Manna continues his work, but hopes the death penalty will one day be repealed. A life sentence, he says, is always appropriate.
“I think it’s more appropriate than a death sentence. I think life sentences ensure the protection of the community at large, and I think then we avoid all the baggage that comes with, well, What if the person turns out to be innocent?” he says.
Braden, meanwhile, is headed to retirement in the coming months. He says it’s time for Kansas to update its never-used death penalty law, to be ready for the moment – coming sooner than later in his opinion – when one of the nine condemned men runs out of appeals.
“If we don’t want the death penalty, then the Legislature needs to have the courage to abolish it. But it’s on the books,” Braden says. Without the ability to carry out the one form of execution authorized under the law – lethal injection – the state remains “in a no-man’s-land, and we shouldn’t be. We should either get rid of it or fix it.”
Until then, the families of the victims wait. At that February news conference, Jennifer Aldridge – Jodi Sanderholm’s sister – made it clear that she is ready for some finality.
“The day that he was sentenced was not the end for us,” she said. “It was honestly just the beginning. We are still dealing with him, going to court with him, seeing his face, hearing his name.”
It’s not about revenge, Aldridge said, but justice.
“I don’t have hate in my heart anymore toward my sister’s killer,” she said. “I do want to witness his execution.”
Note: The Journal is published by the Kansas Leadership Center. This article was made available through the Wichita Journalism Collaborative.
