Under Kansas' death penalty statute, it takes 12 jurors to hand down a death sentence, which must be unanimous. But as Kansans learned last week, a 20-20 tie vote in the state Senate lets the death penalty itself stand as state law.
Because of House disinterest, that likely is the end of this year's effort to end the death penalty, starting with crimes committed July 1 and beyond, in favor of creating a new charge of "aggravated murder" with a sentence of life without parole.
Still, the Senate's emotional debate Friday revealed that support for capital punishment has weakened some since it passed the chamber in 1994 on a 22-18 vote. This time, 12 of 31 Republicans opposed the death penalty (compared with 7 of 27 Republicans in 1994).
State Sen. Carolyn McGinn, R-Sedgwick, deserves credit for bringing up the issue last year and framing a repeal as one way to help the state's fiscal problems, suggesting Friday that the savings could be invested in solving cold cases. Capital punishment's costs are secondary to other concerns — such as justice — but they aren't irrelevant, especially now.
And on its face, the statute has nothing to show for itself but the high cost of capital cases — an estimated 75 percent higher than cases in which the death penalty is not sought. Yes, 10 men are on Kansas' death row, including notorious area killers Jonathan and Reginald Carr, Douglas Belt and Justin Thurber. But their appeals are pending, with no end in sight. The state last executed someone in 1965.
And while the guilt of all of Kansas' condemned men looks unequivocal, the state is not automatically immune to the problems that have led to exonerations and otherwise dogged the death penalties in other states — including poor representation and inconsistent application.
During Friday's debate, McGinn asked a question of her fellow pro-life senators that still deserves an answer: "We pass abortion laws because we say 'child of God,' " she said. "Please, somebody — although these people become terrible people — tell me at what point in time did they lose that status and who made that decision?"
That line of inquiry caused Sen. Sam Brownback, R-Kan., to say several years ago that his view of the death penalty "has tightened a lot to where I only support capital punishment in cases where we cannot protect the society from the individual," mentioning only Osama bin Laden by name.
There will be more than passing interest in Brownback's narrowed view should he become governor next January and the repeal be reconsidered next year. (Interestingly, Brownback's newly announced Democratic opponent, Sen. Tom Holland, D-Baldwin City, was the only Democrat to vote against repeal Friday.)
Capital punishment is final, but the Legislature's 1994 commitment to it should not be. At least current Kansas senators now can say they've gone on record about whether the state's death penalty statute is working and worth the expense.