Kansas Race: The Politics of Death : Law: Support for penalty is high in all regions, but has less impact in states that resist capital punishment.

Former Kansas Gov. John W. Carlin represents something of an endangered species in American politics: an opponent of the death penalty who is willing to publicly say so.

Now he is about to learn whether that conviction has a cost. On Monday, Carlin, a Democrat who vetoed the death penalty four times before the state constitution barred him in 1986 from seeking a third consecutive term, announced he is running again. If he wins the nomination in the August primary, as most politicians here expect, he will face Republican Gov. Mike Hayden, an ardent death penalty proponent.

“This is a position where we are (completely) opposed,” said Hayden.

Such a direct conflict on this visceral issue has become extremely rare. In the races that have focused on the death penalty this year--primarily the gubernatorial elections in Texas, California and Florida--the battle has been over which candidate is most committed to executing criminals, not whether executions deter crime.

But in Kansas, the trend among elected officials is moving in the opposite direction--to the point where the Republican-controlled Legislature has now turned against the capital punishment measures it passed during Carlin’s tenure.

Kansas’ experience highlights the topsy-turvy politics of death in this macabre campaign year: Voter support for the death penalty is high in all regions of the country, but the issue, ironically, is having less political impact in the states that are resisting capital punishment. The governor’s race here could test that trend--and provide one measure of the depth of public demand for the death penalty in the 14 states that still ban it.

So far, despite all the passion capital punishment has stirred this year, opponents have been able to hold the line in each of those states. Only in New York, where Democratic Gov. Mario M. Cuomo recently vetoed a capital punishment statute for the eighth consecutive year, is the prohibition under intense and immediate pressure.

With the recent conversion of one Democratic state legislator, death penalty advocates finally may have enough votes to override Cuomo’s veto in the state Assembly. The Senate, meanwhile, appears to be only one vote short of the two-thirds needed to reverse the governor. Besides Kansas and New York, only two other states without capital punishment are even actively debating the issue.

In Massachusetts, death penalty advocates are optimistic about their prospects because virtually all of the gubernatorial candidates in both parties support it--in contrast to retiring Gov. Michael S. Dukakis, a staunch opponent.

But for now, the legislative drive behind the measure has been complicated by the outcry over the bewildering Stuart murder case. Just hours after the brutal murder last fall of Carol Stuart, apparently by a young black man, state Republican Party officials contended at a press conference that the case demonstrated the need for the death penalty. But when further evidence implicated the woman’s husband, Charles Stuart, as the killer, liberals retorted that the accusation of the wrong man reaffirmed the danger of capital punishment.

In Michigan, which in 1846 became the first English-speaking jurisdiction in the world to ban the death penalty, the issue has been given unusual prominence because Rep. Bill Schuette is stressing it in his campaign to win the Republican U.S. Senate nomination. Carl Levin, the Democratic incumbent, is one of the Senate’s leading death penalty opponents.

The pressure for the death penalty is persistent in the large urbanized states of New York, Massachusetts and Michigan because they fit the profile of the typical state with capital punishment. Most of the states that ban the death penalty are more like Kansas: small, with low crime rates and minority populations well below the national average.

Many analysts consider the number of minority residents especially crucial. Ten of the 14 states without capital punishment have minority populations less than half the national average, and two of those with large concentrations of minorities are special cases: Alaska and Hawaii.

“The difference between Kansas and, say, California is that we are a little more homogenous in our population,” said William J. Lucero, a Topeka psychiatrist and a leader of the state’s anti-death penalty lobby. “States that have a high percentage of non-white populations are those states that tend to want to use the death penalty.”

Almost half of the states without capital punishment are clustered in the Midwest: Michigan, Wisconsin, Minnesota, North Dakota, Kansas and Iowa. If the South and West have become the death belt in American politics, the Midwest, with its progressive and communitarian traditions, has emerged as the region probably least hospitable to execution.

Kansas has long evidenced all of the region’s ambivalence about capital punishment. In 1907, it became one of the first states to abolish it.

But like most of the states that eliminated capital punishment during the Progressive era, it brought back the noose to reassure residents shaken by the violent crime sprees of Bonnie and Clyde and other Midwestern bandits during the Depression. From 1944 through 1972, when the U.S. Supreme Court struck down the death penalty, Kansas hanged 15 people--including Perry E. Smith and Richard E. Hickock, who were executed for the murder of the Clutter family chronicled in Truman Capote’s book, “In Cold Blood.”

By 1976, when the Supreme Court gave its approval to re-crafted death penalty statutes in Texas, Florida and Georgia, 35 states had reimposed capital punishment. But not Kansas, whose Legislature rejected bills during the term of Republican Gov. Robert F. Bennett, a death penalty supporter.

When Carlin defeated Bennett in 1978, he promised to sign a bill reinstating the death penalty if the Legislature sent him one. But when it did only a few weeks after he took office, the 38-year-old governor hesitated.

As a state legislator, Carlin had opposed capital punishment. His campaign promise seemed to him nothing more complicated than agreeing to abide by the will of the people. But when the decision became his alone, it suddenly appeared less simple.

“What happened to me,” he said, “is what happens to jurors across the country who swear to the prosecutors they support the death penalty, . . . then are faced with knowing that with that vote, that decision, that signature, someone is going to die and at some point, somebody innocent is going to die. It was just like reality set in. There was no way I could sign it.”

To the Legislature’s astonishment, Carlin vetoed the bill--and the three succeeding ones they sent him. When Hayden was elected in 1986 after stressing the issue, death penalty proponents assumed their time had finally come.

But enough state senators, including some Republicans, changed their votes to sink the measure. When the bill resurfaced in the Senate last year, it failed. The Kansas Legislature’s shift illustrates the differing dynamics of the debate in states without capital punishment.

In states with the death penalty, any hesitation about enforcement is seen as a threat against an existing line of defense against crime. Especially in those states, support for the death penalty has become a symbol of a candidate’s willingness to crack down on crime and drugs.

But with each passing year, opponents in Kansas maintain, it becomes more clear that the lack of a death penalty has not made this state less secure.

“We sit here without the death penalty surrounded by states that have it, and (most of them) have a higher per capita murder rate than we do,” Carlin said. Even proponents have anxiously watched the costs of capital crime litigation in other states explode. The state Legislative Research Office estimates that by the time all appeals are exhausted, it costs more to execute murderers than to imprison them for life.

Even more important than either of those substantive considerations may be the growing political sense that Kansans--despite the strong support for the death penalty they demonstrate in polls--will not punish politicians for voting their conscience on the issue. Most observers in the state expect that a furor over rising property tax bills will dominate the November elections. But Gov. Hayden and even some wary Democrats expect the death penalty issue to surface before election day.

“This will be an issue until it is resolved,” Hayden said. “Seventy percent of the people here believe capital punishment should be available, . . . and they will continue to press it until the Legislature approves it.”

WHERE MURDERERS CAN’T BE EXECUTED

Of the 14 states that do not impose the death penalty, most have minority populations and murder rates below the national average.

Percentage of Murder Rate Non-White per 100,000 States Population 1988 people, 1987 Alaska 22.9 10.1 Hawaii 71.4 4.8 Iowa 3.3 2.1 Kansas 10.0 4.4 Maine 1.6 2.5 Massachusetts 8.4 3.0 Michigan 16.3 12.2 Minnesota 4.2 2.6 New York 27.8 11.3 North Dakota 4.8 1.5 Rhode Island 7.1 3.5 Vermont 1.7 2.7 West Virginia 3.8 4.8 Wisconsin 6.5 3.5 National average 21.4 8.3

Source: Statistical Abstract of the United States, 1989