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The hangman coughs: Should Kansas again kill in the name of justice?


The hangman coughs: Should Kansas again kill in the name of justice?

Feb 25, 2024 | 4:33 am ET
By Max McCoy
The hangman coughs: Should Kansas again kill in the name of justice?
A 2017 photo of the gas chamber at the Museum of Colorado Prisons at Cañon City. No longer in use, the chamber was used in 1939 to execute Joe Arridy, a mentally disabled man who was wrongfully convicted of the murder of a 15-year-old girl. Arridy was exonerated in 2011. (Max McCoy/Kansas Reflector)

Kansans haven’t had to think much lately about the death penalty. The state’s last execution was in 1965, when spree killer George Ronald York was hanged from a gallows in a warehouse at Lansing State Penitentiary. For six decades, we’ve been spared the gut-wrenching legal and ethical arguments that surround capital punishment.

But now that Kansas Attorney General Kris Kobach wants to make nitrogen asphyxia the state’s designated method of execution, it’s time to start talking again about whether the state should kill people in our name.

Even though the death penalty is law in Kansas, we are, in practice, a death penalty abolition state, because we haven’t chosen to use it in so long. Of course it would be Kobach, the GOP poster boy for bad ideas, who would be pushing a measure to make sure we could.

Kobach’s plan to change state law to allow district judges, and not the state supreme court, to sign death warrants, and to designate hypoxia (a clinical word for suffocation) as the method of execution, is a warning to prepare ourselves for a bitter fight about justice, forgiveness and vengeance. The effort has little chance of becoming law, because it would take a supermajority to override the governor’s presumed veto, but Democrat Laura Kelly will only be governor for another couple of years.

The House bill Kobach is pushing was inspired by the first-of-its kind execution by nitrogen suffocation last month of an inmate in Alabama, a method the Yellowhammer State turned to because it couldn’t find anybody to sell the drugs needed for lethal injection or the medical personnel to administer them.

Nitrogen is a harmless gas — it makes up 78% of the air we breathe, while oxygen accounts for about 21%. But breathed without the appropriate mix of oxygen, nitrogen is deadly and the cause of several accidental industrial deaths each year.

The use of a benign gas to kill seems crueler, or at least more hypocritical, than using a rope. There is no way to “humanely” murder someone. At least climbing the 13 steps to the gallows and then having a noose of strong hemp rope slung around your neck is more honest.

The hangman coughs: Should Kansas again kill in the name of justice?
Kansas Attorney General Kris Kobach urges state lawmakers to approve hypoxia as a means of executing the death penalty. Critics call the practice torturous and inhumane. (Allison Kite/Kansas Reflector)

The legacy of hanging permeates our Kansas heritage and, depending on your cultural background, is either history or a terrifying reminder of injustice. I grew up in Baxter Springs, where nothing was said about the lynching of dozens of Black people in the state’s early history, but where much was written about the hanging tree down by the creek that ran through town.

The tree fell in the 1950s and was just a rotting stump by the time I was a boy. But the tree, when alive, was cited as one of the town’s most famous sites by the WPA Guide to Kansas, published in 1939:

“On HANGMAN’S ELM, between Park and Military Aves., two blocks south of the (public library) park, 19 men are said to have been hanged in the early days of the town.”

Those 19 are generally referred to in old newspaper clippings as “horse thieves” or “Texas horse thieves,” and few names or details are given. This was vigilante vengeance, sanctioned by no court, and I wonder now how many of those who dangled from the old elm weren’t horse thieves at all. But a kid doesn’t entertain such doubts. Few westerns didn’t include at least one hanging. The sure way to stop a man, good or bad, is with a rabble of other men with a rope.

Kansas has put to death 59 individuals since territorial days, not counting supposed horse thieves dispatched by vigilantes and those lynched by mobs. Kansas abolished the death penalty in 1907 in favor of life imprisonment, then brought it back in 1935 in response to a crime wave of kidnappings and murders. The U.S. Supreme Court suspended capital punishment in 1972, beginning the decades-long moratorium in the Sunflower State.

Capital punishment was reinstated by the Kansas Legislature in 1994, with lethal injection as the designated means of extinction. At present, 27 states have death sentence laws, and Texas has executed 586 people since the death penalty was reinstated.

Although Kansas isn’t first in numbers, we remain near the top of the states in the popular culture of execution because of one book by Truman Capote about a pair of small-time hoods who killed a family out in western Kansas and who were sent to the gallows for it.

Perry Hickock and Dick Smith killed the four members of the Clutter family at their Holcomb farm on Nov. 15, 1959, making off with less than $50 in cash and a pair of binoculars. In his book “In Cold Blood,” Capote — who witnessed the April 14, 1965, executions — describes the moments before Hickock’s death:

“The hangman coughed — impatiently lifted his cowboy hat and settled it again, a gesture reminiscent of a turkey buzzard huffing, then smoothing its neck feathers — and Hickock, nudged by an attendant, mounted the scaffold steps.”

Smith was hanged shortly after.

This house in Holcomb was the setting for the murder of four members of a farm family in 1959 that led to the writing of one of the first "true crime" bestsellers: "In Cold Blood," by Truman Capote.
This house in Holcomb was the setting for the murder of four members of a farm family in 1959 that led to the writing of one of the first “true crime” bestsellers: “In Cold Blood,” by Truman Capote. (Library of Congress)

York, the spree killer, and his accomplice, James Douglas Latham, were also hanged within minutes of one another. They had murdered seven people in a cross-country crime spree that passed through Kansas.

“The hangings took place in a musty old warehouse on the prison grounds,” reported the Associated Press on June 21, 1965. They were executed alphabetically. York’s last words, according to the AP, were, “I know it won’t do much good to say I’m sorry.”

A few years after York dropped to eternity from the gallows at Lansing, the death penalty became moot.

In 1972, the U.S. Supreme Court struck down capital punishment, as applied, as “cruel and unusual” under the Eighth Amendment. Justice Potter Stewart said the death penalty was like a bolt of lightning because its application appeared to be random. Other justices expressed concerns about racial bias and wrongful execution.

In the four years that followed, states came up with new laws to address the high court’s concern about the arbitrary nature of capital punishment. In 1976, the Supreme Court allowed the death penalty to be reinstated, saying that it did not violate the Eighth Amendment if applied objectively and if the judge or jury could take into account the character of the individual to be sentenced.

In 1977, execution in the United States resumed with the death by firing squad of Gary Gilmore in Utah. Gilmore was a double murderer who said he wanted to die and was the subject of the 1979 Pulitzer-prize winning book, “The Executioner’s Song,” by Norman Mailer.

At present, there are nine individuals on death row in Kansas — although Kansas doesn’t really have a “row,” because it doesn’t segregate capital punishment prisoners. Of those, I encountered one of them, Gary Kleypas, when I was living in Pittsburg and he was working at a restaurant there. He seemed unremarkable except for his size — he was a few inches over 6 feet and well-muscled — and his affect, which made me uneasy. I didn’t know it at the time, but he was on parole for a 1977 killing in Missouri, for which he had served 15 years.

Kleypas raped and stabbed to death 20-year-old college student Carrie Williams in 1996. He was the first person condemned to death under the revised Kansas death penalty law. The Kansas Supreme Court overturned his death sentence in 2001. He was retried, and a jury re-imposed the death sentence in 2008.

While Kleypas telegraphed his menace — I can still see in my mind the way he carried a tub of dirty dishes as if he were about to hurl them — other murderers seem chillingly normal. Of the death row inmates I’ve interviewed, the most normal-seeming was likely the most dangerous.

In the early 2000s I interviewed Tommy Lynn Sells at the Polunsky Unit near Livingston, Texas. I remember the death row protestors with their signs clustered at the entrance to the facility, and the sign on the wall inside that warned in case of riot or other unrest, the state of Texas would not negotiate for the safety of civilians inside the walls.

Sells had been condemned for killing 13-year-old Kaylene “Katy” Harris after breaking into her family’s trailer in Del Rio, Texas. He was also believed by authorities to have killed at least 22 other individuals, although he claimed at least 70 victims. He had a sense of humor, could carry his end of a conversation, and claimed to have trouble recalling his crimes. The only thing that seemed unusual was that he said he’d kill me if we hadn’t been separated by the wire-and-glass cage between us, but that seemed more like prison bravado for a reporter than an actual threat.

Sells was executed by lethal injection April 3, 2014. He had no last words.

I was disappointed in his death not because I had any sympathy for him, but because I thought he still held secrets that might bring the families of some of his victims closure, if not comfort. It’s hard to imagine the emotional agony of the families and friends of the murdered. Yet, I believe the state’s first concern should be justice, not vengeance.

The U.S. Supreme Court released a new ethics code on Monday, Nov. 13, 2023, but Sen. Dick Durbin, chairman of the Senate Judiciary Committee, said the new rules “fall short of what we could and should expect when a Supreme Court issues a code of conduct.”
The U.S. Supreme Court struck down capital punishment in 1972. It allowed the death penalty to be reinstated four years later. (Al Drago/Getty Images)

As the father of daughters, I have often pondered what my reaction would be if the unimaginable happened. I’m no pacifist. My urge would be to seek my own justice. As the husband of Kim, my instinct would be to seek revenge. But committing murder does not bring other murdered people back. You can’t get away with this sort of thing, so there would be prison. And there’s always the chance you might have the wrong person.

The risk of executing the innocent is considerable for the state as well.

Between 1973 and 2023, according to the American Civil Liberties Union, 192 death row prisoners were exonerated and released. Nearly 1 in 5 condemned to death are innocent and the victims of police or prosecutorial misconduct or false witness statements. The vast majority of those exonerated from death rows, according to the Innocence Project, are Black or Latino. Those who are white and affluent stand a much lower chance of being condemned to death than minorities and poor people do.

The arbitrary application of the death penalty, as recognized by the Supreme Court in 1972, continues to haunt us. Only a perfect judicial system would be able to deliver a warrant of death free from racial and cultural biases. Any attempt by our inescapably flawed institutions to deliver perfect justice will fail because the human beings who run such institutions are inescapably flawed themselves. The application of the death penalty is cruel and unusual, and capital punishment itself incompatible with the guarantee of an inalienable right to life.

The United States is among the few developed countries that continues to cling to the idea of state-sponsored murder. That should be no surprise, given the myths of vigilante justice and Hanging Elms we’ve grown up with.

But there are signs of change.

A 2023 Gallup poll found that support for capital punishment is at a generational low in America, with just over half supporting it. That’s down from 69% in 2007. Also, half of Americans in the same poll said the death penalty is applied unfairly, and most favored life imprisonment with no chance of parole over capital punishment.

For all the poisonous frontier myths we grew up with, allow me to suggest an antidote. It’s “The Ox-Bow Incident,” a 1940 novel by Walter Van Tilburg Clark. It’s considered to be the first modern western, free of the cliches and tired tropes that went before.

Set in 1885, it’s about the vigilante hanging of three men presumed to be rustlers and killers. It won’t be much of a spoiler to reveal that the three weren’t guilty at all, but were lynched on circumstantial — but wrong — evidence.

“True law, the code of justice, the essence of our sensations of right and wrong, is the conscience of society,” says Art Davies, the novel’s deepest character. “It has taken thousands of years to develop, and it is the greatest, the most distinguishing quality which has developed with mankind.”

If we can touch God at all, Davies says, it is with our conscience.

All the rope and the bullets and lethal injections and the suffocating nitrogen delivered by medical facemask won’t deliver a single moment of justice for any of us. Instead, we should look deeply into the conscience of our culture and find the transcendent divinity that allowed us to frame a set of laws that weren’t about vengeance, but were about humanity.

What Kris Kobach needs isn’t another bill throwing red meat to the Old Testament buzzards in the Kansas GOP.

It’s a library card.

Max McCoy is an award-winning author and journalist. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.