I have lived in flyover states my whole life. People tend to overlook the transformational change and creative organizing that happens in the Midwest. But I have known our capacity to show up for justice and equality for years.

I went to law school in Kansas, and I stayed here because of the powerful community I found: organizers and activists who are “Midwest nice,” working tirelessly to make Kansas a more welcoming place for people like me — Black people, LGBTQIA people, and people with disabilities. It was in Kansas that I was able to reclaim my power and become an advocate for racial justice. Today in Wichita, I’m using that power with my colleagues at the ACLU of Kansas and the ACLU’s Capital Punishment Project to bring a constitutional challenge to the state’s death penalty on behalf of our client, Kyle Young.

American Civil Liberties Union

Kansas v. Kyle Young | American Civil Liberties Union

If the death penalty is racist, arbitrary and serves no valid penological purpose, does it violate the Kansas constitution?

In an unprecedented evidentiary hearing, the court will consider a critical question: If the death penalty is racially discriminatory, arbitrary, and serves no valid public safety purpose, does it violate the Kansas Constitution? We worked with a historian and statistical experts to examine how race impacted the development and application of the death penalty in Kansas. These experts will take the stand to illustrate our clear answer to that question — not only is the state’s death penalty is racially discriminatory and unfair; it is unconstitutional.

Though the modern Kansas death penalty statute was enacted in 1994, the state’s capital punishment system is the legacy of more than 150 years of racial violence against non-white Kansans, especially Black residents.

Kansas became a state through the violent struggle between slavery and abolition. Whether Kansas was to join the union as a slave or free state was put to a vote of residents in the territory. In the lead up to the vote, vigilantes and militias from pro-slavery and anti-slavery camps battled it out, earning Kansas the nickname “Bleeding Kansas.” Ultimately, Kansas joined the union as a free state, and the Civil War started shortly after that.

During the Civil War and after it ended, Black refugees fled the South and crossed the Missouri border into Kansas seeking freedom. Kansas’ growing Black population contributed to racial tensions and fear among many white Kansans, coalescing around the fear of Black men and white women having relationships.

Between 1860 and 1930, 13 Black men were lynched over rape accusations. One historical account found that rape accusations were the third most common reason for lynching.

This includes the 1901 lynching of Fred Alexander, a Black man in Leavenworth, who was accused of raping a white woman. The only “evidence” against him was that a witness heard whistling during the attack, and Mr. Alexander was known to like to whistle. A lynch mob tortured and burned Mr. Alexander at the stake behind the Leavenworth main streets. The state legislature was so horrified that this act of violence could happen in their “free state,” they considered pushing Leavenworth County out of the state and into Missouri.

“As lynchings declined and became less publicly palatable” in the early 1900s, our expert Shawn Leigh Alexander writes, “legislators across the western and southern states began to propose a state sanctioned alternative — a more rigorous application of the death penalty.”

The death penalty is an outgrowth of lynching. The line between the two is undeniable. As was the case with lynching, the death penalty in Kansas is applied disproportionately against Black men, especially when a white woman is the victim.

Our experts’ statistical studies show that in both Sedgwick County (where Wichita is located) and statewide, cases where the victim was a white woman were significantly more likely to be charged with capital murder, compared to cases where the victim was a person of color. In particular, where a Black man is charged with killing a white woman, the likelihood of prosecutors charging the defendant with capital murder, seeking a death sentence, and the death sentence being imposed, is greater than any other defendant-victim racial combination. No white person charged with killing a Black person in Kansas since 1994 has ever been sentenced to death.

The legacy of lynching and the death penalty is that Black Kansans overwhelmingly do not support the death penalty. However, because Black Kansans — especially Black women — oppose the death penalty, they are disproportionately excluded from serving on capital juries through a jury selection process known as death qualification.

As a result, Black Kansans are denied their right to serve on a jury, basic participation in our democracy. And defendants facing capital punishment are judged not by a jury of their peers, but a jury that is more white, more male, and engineered to favor the prosecution.

Kansas hasn’t executed a person since 1965. The state’s legislature and governor blocked reinstatement of the death penalty almost 50 times between 1976 and 1994, when it was ultimately passed in the legislature after being heavily influenced by the high-profile murder of a 19-year-old white woman in an affluent Kansas City suburb. There are currently nine people on death row, and three of them are Black.

In a state that has consistently resisted the death penalty — and has so infrequently used it — nothing justifies maintaining a practice born of yesterday’s racial violence and antithetical to today’s racial healing and democracy.

Racial violence wasn’t, and it isn’t, limited to lynching or the death penalty. Black Kansans continue to endure this violence through overrepresentation in the criminal legal system, segregated schools, and segregated neighborhoods that have been intentionally deprived of resources. The death penalty is just the culmination of a system designed to oppress Black people. By challenging it, and ultimately ending it, we will chip away at racial oppression and move toward justice.

Learn more about the death penalty in Kansas below:

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Last week, in a federal courtroom in New York City, a jury found Sayfullo Saipov guilty of intentionally driving a truck down a crowded lower Manhattan bike path, killing eight people and injuring several more. The crime was horrific — as a New Yorker, I was shocked by such a brazen and horrifying act of violence in my community and my heart broke for the families of the victims.

The jury’s decision virtually ensures that Saipov will be imprisoned for the rest of his life. The only question now is whether he will die in a prison of natural causes or be executed. If President Biden is going to keep his promise to eliminate the federal death penalty, his administration should announce it is no longer seeking death and stop the penalty trial.

During his presidential campaign, Biden pointed to America’s history of death-row exonerations and proclaimed: “Because we can’t ensure that we get these cases right every time, we must eliminate the death penalty.” He was right. Precisely because the capital punishment system is broken, we must end its practice for good, even where guilt is beyond dispute. Saipov provides a test case for whether Biden will keep his promise.

The death penalty in the United States is ridden with unfairness. Far too many people on death row have been exonerated, and of those, a disproportionate number are people of color. Of the 190 death row exonerees since 1973, 103 — or more than half — have been Black. As President Biden noted, that fact should give us pause. Even where guilt of the underlying crime is clear, whether a defendant is sentenced to death turns less on the gravity of their crime and more on the vagaries of geography, race, and legal assistance.

The Department of Justice understands this. As Attorney General Merrick Garland explained in a 2021 memorandum pausing federal executions, troubling questions swirl around the federal death penalty, “including arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases.” But given those facts, why are Biden and Garland pursuing a death sentence against Saipov?

Decades of evidence show the death penalty has not made Americans safer, as it doesn’t deter violent crime. It has also made us an outlier among our international peers — the U.S. is the only advanced Western democracy that maintains capital punishment. When Congress authorized the federal death penalty in 1988, new death sentences were at their highest levels in modern history and public opinion polls measured death-penalty support at nearly 80 percent. But every year since then, death-row exonerations, botched and barbarically cruel executions, ubiquitous legal errors, and other inequities have led to a rising opposition to the death penalty.

Americans increasingly understand the problems with capital punishment, but those doubts won’t be reflected on the jury that will decide Saipov’s fate if the Justice Department proceeds. Because of the process of “death qualification” used to select the jury in Saipov’s case, those opposed to the death penalty are barred from serving on juries, resulting in juries that are more male, less diverse, more trustful of law enforcement, and more likely to vote for guilt in the first instance. The ACLU has brought challenges to death qualification in North Carolina, Florida, and Kansas.

American Civil Liberties Union

The Sinister and Racist Practice Infecting Death Penalty Juries | ACLU

“Death qualification” is yet another way prosecutors stack the odds against Black defendants and in favor of capital punishment.

Death sentences represent the views of an increasingly small and decidedly unrepresentative segment of the community, but the process for qualifying a jury in death penalty cases results in juries that are inevitably skewed and don’t represent broader public sentiment. And this is particularly concerning when a jury is selected in a state such as New York that has turned against the death penalty, having last executed a person in 1963 and abandoned the death penalty years ago.

As President Trump was leaving office, his administration carried out 13 executions in a span of six months. That killing spree illustrated why many Americans and a growing number of states have turned away from the death penalty. Among those executed in our name were two Black men who were not the triggermen in murders committed by others; two Black men with significant claims of intellectual disability; one member of the Navajo Nation; two men who were teenagers when they committed their crimes; and a mentally ill woman who had been repeatedly abused and tortured as a child, teen, and young woman.

Every federal death case has to be authorized by the attorney general. Understanding these flaws, Attorney General Garland deauthorized the death penalty in over two dozen cases in which the prior administration had sought death. Also to his credit, Garland declined to authorize any new death cases. That is, until Saipov.

Put simply: if the system is flawed at its roots, we should never be using it, period. Biden was right to promise to eliminate the federal death penalty, and Garland was right to call out the system as arbitrary, discriminatory, and far too prone to human error. If the president and attorney general believe what they have said, they must not authorize another death sentence – not even in this case.