As hard-fought campaigns go down to the wire, candidates are using everything they have. And in two states, Kansas and Colorado, that means borrowing a page from the 1988 election when Democrat Michael Dukakis was pilloried for supporting a weekend furlough program that released a felon who went on to commit assault, armed robbery, and rape. Willie Horton was his name, and the ad that showed dark shadowy figures going through a revolving door received universal condemnation as unfair and racially motivated.
Republican National Committee Chairman Lee Atwater had to resign from the board of Howard University, a historically black college, and for a time fear of a backlash put the brakes on the blatant exploitation of heinous crimes in a political context. It helped too that crime was no longer at the top of voter concerns, but the statute of limitations apparently has run out.
In Kansas, where Gov. Sam Brownback is struggling to win reelection, his campaign is airing an ad that says he will appoint tough judges, and his challenger, Democrat Paul Davis, stands with “liberal justices who let the Carr brothers off the hook.” The ad highlights five murders committed in 2000 by two brothers, Reginald and Jonathan Carr. Known as the Wichita Massacre, it has been likened in its brutality to the murders in Kansas that inspired Truman Capote’s In Cold Blood.
At issue is a July ruling by the Kansas Supreme Court that overturned, on varying technicalities, all but one of the multiple death penalties, insuring the case would become a political football even while the certain outcome for the Carrs is life without parole with execution still likely. The Democratic prosecutor of the brothers called the governor’s use of the case for political gain “reprehensible,” underscoring the ongoing fight between the legal community in Kansas and Brownback, who is trying to wrest control of state supreme court appointments. He has the power to name judges to the Kansas Court of Appeals, but a committee of lawyers and other notables screen supreme court nominees and provide three choices to the governor. Once appointed, supreme court nominees stand for election in order to be retained.
Two current Kansas Supreme Court justices are on the ballot Tuesday, and Brownback would like to see both tossed out by the voters. Dredging up the Wichita Massacre puts the two justices who were part of the 6-to-1 majority ruling in the spotlight.
“Willie Horton-style ads never went away in judicial elections,” Bert Brandenburg of the nonpartisan Justice at Stake told The Daily Beast. “Ever since the explosion of big money in judicial campaigns beginning in 2000, tough-on-crime ads are a staple. Campaign managers grab on to it because it’s the one issue that can move voters in judicial elections. Otherwise voters don’t know what to make of judges they don’t know anything about.”
The result he fears is a chilling effect on judges who will be looking over their shoulders when they’re trying high-profile criminal cases. “Any judge on the bench for half an hour will have decisions in criminal cases that please one side and not the other,” says Brandenburg. “Judges are not supposed to be rubber stamps [for prosecutors].” A citizens group, Kansans for Justice, has sprung up as well to oppose retention of Justices Lee Johnson and Eric Rosen. “What’s new is the public pressure,” says Brandenburg. “It wears away at the insulation we put around judges.”
In Colorado, Republican challenger Bob Beauprez is tied with once-popular Democratic Gov. John Hickenlooper in large part because Hickenlooper granted a reprieve last year to Nathan Dunlap, who has been on death row for opening fire and murdering four people at a Chuck E. Cheese restaurant 15 years ago. Hickenlooper won election saying he supported capital punishment, but once in office changed his mind. The Republican Governors Association began running an ad this week featuring the father of a 17-year-old girl who was gunned down by Dunlap, saying Hickenlooper “robbed” his victims of justice. “He’s a coward who doesn’t deserve to be in office,” the grieving father says.
The Denver Post in an editorial says the father’s words are “entirely within the bounds of permissible opinion,” but refutes the claim flashed on the screen that “Now John Hickenlooper is threatening a ‘full clemency’ for Nathan Dunlap that could set him free.” The ad cites the Denver Post as its source, which the editorial calls “preposterous…no doubt because freedom for Dunlap is unthinkable.”
It goes on to say that criticizing the governor for his handling of the Dunlap case and the death penalty is “fair game… However, the claim that the governor supports a policy that could release a mass murderer may take the cake for this political season’s whoppers. And even ‘whopper’ may be too kind a word. More like a malicious falsehood.” In the 26 years since the Willie Horton ads scandalized the country, not that much has changed.