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Hours, Days, Decades: Capital Punishment In And Out Of Kansas

Rennett Stowe

The State of Kansas hasn’t executed an inmate since 1965, despite capital punishment being legal in the state and nine men currently sitting on death row. This story takes a look at why that is, as well as the story of Curtis McCarty, an Oklahoma man who was exonerated after spending 21 years in prison, the majority of those years on death row. He spoke about his life in prison at Wichita State University last week.

“Imagine being locked in your bathroom for a decade. It's that kind of existence, but surrounded by violence, indifference and mental illness in the people around you.”

Credit Sean Sandefur
Curtis McCarty gives a talk at Wichita State University. McCarty travels to a number of cities to share his story of exoneration

Curtis McCarty is a man who has been broken. He’ll tell you the same. He spent over 20 years in a state penitentiary in Oklahoma—most of it in a 9 x 9 cell.

“I had to get over that shock, the disbelief that I'm not supposed to be here,” he goes on. “Nobody wants to hear that and the truth is, that's where you live now, that's your home.”

In 1982 a woman was found dead. She had been raped and murdered. McCarty says he was an acquaintance of hers and was immediately questioned by the police. McCarty provided hair and DNA samples and was then released. He then went back to his normal way of life.

“I failed to learn a lesson from ( her being killed] and continued to live a life of addiction and petty crime and the police knew it,” McCarty says. “Three years later, they had enough of me. They heard a rumor that while it wasn't me who did it, I might know who did. In their frustration, they took me by force and they tried to compel me to give information I didn't have, it escalated and before I knew what happened, I was charged with murder.”

The forensic chemist who was assigned to his case has since been found to have fabricated her reports. During a sworn testimony during his trial she stated that a hair sample from the scene of the crime matched those taken from McCarty. Because of that false evidence, he was found guilty and sent to death row.

“We were locked in our cage 23 hours a day,” he says. “There were no programs, no services, no educational opportunities. Those types of resources are spent at the other end, for men who are going to be returning to the community, who need job training and access to education.”

Years slowly passed for McCarty. Then, in 2001, the forensic chemist who testified against him was fired over the mishandling of evidence in a different case. His lawyers seized this opportunity and were successful in getting his case reviewed once more. A collection of semen and a bloody fingerprint, which were absent in his trial 20 years prior, now indicated that McCarty had not been the one who raped and murdered the woman. Prosecutors dropped their case before a trial took place and a judge released him.

McCarty says he’s angriest about what happened to the family of the victim, who live their lives knowing that the man who killed their family member is still out there.

“He got away with murder. It's not that the wrong person wen in, it's that the right person never will go in. It's horrifying,” McCarty says.

Since his release in 2007, McCarty has moved to Nebraska. He says he still hasn’t adjusted to the outside world. He enjoys keeping to himself, but he is involved in the Innocence Project, a group of over a hundred other exonerated criminals. He is strongly opposed to the death penalty--even for those who are truly guilty. McCarty now travels to different cities to share his story and advocate against capital punishment. He says it gives him something to live for.

“I have some pride in myself again. I'm doing something good and decent. I wasn't in a bar drinking, I wasn't in some flophouse with my crazy friends doing drugs,” he says. “[I can now say],  that I was in a church today and I met beautiful people who are doing good things with their life. Or, that I'm at a university and I saw all of these kids who have so much promise.'”

Capital Punishment In Kansas

A nondescript building along Main St. in downtown Wichita holds the offices of attorney Jeffery Wicks, who works with Kansas’ death penalty defense team. He’s one of three public defenders who are called when a capital murder charge has been issued in the state. This is his day job, but he’s also an outspoken critic of the state’s death penalty.

“I can't tell you what the purpose is, in having an outdated and outmoded form of punishment that every civilized country in the world, save us, has gotten rid of,” Wicks says.

Credit Sean Sandefur
Jeffery Wicks is a public defender for Kansas' death penalty defense team.

He’s got a tough job—he not only defends his clients during their initial trial, but if they are found guilty, he then has to convince a jury not to put them to death. To do that, public defenders try to find answers as to why the individual committed the crime and what external factors led them to a jail cell.

“You have to meet with people over and over, because it takes awhile to develop a rapport,” he explains. “You're not going to go meet your client's mom for the first time and have her admit to you that every time he would cry as a child, she would put tequila in his bottle to make sure he would go to sleep. It takes a while before she will finally admit she wasn't the best mom.”

In 1972, the U.S. Supreme Court ruled that the death penalty was unconstitutional, but reversed that ruling four years later, allowing states to continue capital punishment under certain guidelines. It took until 1994 for Kansas to reinstate their death penalty. There have since been 85 charges of capital murder and 13 convictions, nine of which still stand. There have been no executions. Jeffrey Wicks says that’s because of a lengthy appeal process. He says that death row inmates spend decades in prison waiting on these appeals and that life sentences would be a more effective way of dealing with capital cases.

“In Kansas, we now have life in prison without parole and there are no mercy exceptions. The Department of Corrections cannot say that someone is 102 years old, they're are bed ridden, they have dementia and they don't even know who you are anymore, we're going to move them to a nursing home. If you get life without parole, you will die in prison.”

According to a report issued this yearby the state of Kansas, a capital murder case in which a death sentence is sought costs nearly four times that of a capital eligible murder case in which a death sentence is not sought.

Just across the street from Jeffrey Wicks’ office is the Sedgwick County courthouse, where District Attorney Marc Bennett has his offices. He says the expense of capital murder cases come from procedural mandates from the U.S. Supreme Court. He says expense shouldn’t be a factor when determining capital punishment.

Credit File Photo
Sedgwick County District Attorney Marc Bennett

“If we're going to start making decisions based upon the cost to the tax payers, then I think we've cheapened justice,” he says. “There's a lot of ways we could make things cheaper, we could just give everybody two or three years in the pen and we'd be done with it. I guess my point is, cost should not me the driver of justice.”

Bennett says he’s handled four capital murder cases and has helped send someone to death row at the El Dorado Correctional Facility. He says in order for a case to be considered capital murder, it must meet certain criteria, such as killing multiple people, committing a separate felony while committing murder, or killing a police officer in the line of duty. For Bennett, as long as capital punishment is legal in Kansas, he will seek it for those who deserve it.

“The prosecutors in the state that I know, we don't take a position. Our only position is that if we're going to have it, then we're going to follow the law and impose it when it's appropriate,” Bennett says. “If they want to take it off the books, that’s fine. Then we'll go with life without parole or whatever else that the state and public policy deems appropriate.”

When asked if he thought any of the nine inmates currently sitting on death row would ever be executed, Bennett said he wasn’t sure.

“We’ll have to see.”

Those nine inmates are all currently appealing their sentences.

The most violent criminal in the history of Kansas, Dennis Rader, or the BTK killer, did not receive the death penalty. His crimes were committed before Kansas adopted the death capital punishment again in 1994.

Follow Sean Sandefur on Twitter, @SeanSandefur