Supreme Court Upholds Kansas Death Penalty

Monday, June 26, 2006

In its final week before summer recess, the Supreme Court this morning announced their decision in Kansas v. Marsh. It was a splintered 5-4 ruling with Justice Alito once again breaking a tie-vote that resulted from O'Connor's departure.

Majority: Roberts, Scalia, Kennedy, Thomas, Alito
Minority: Stevens, Souter, Ginsberg, Breyer

The Court upheld the constitutionality of a Kansas law that instructs juries to impose the death sentence if aggravating evidence of a crime's brutality and mitigating factors explaining a defendant's actions are equal in weight.

Michael Lee Marsh was convicted in the June 1996 killings of Marry Ane Pusch and her 19-month-old daughter, Marry Elizabeth. Pusch was shot, stabbed and her throat was slit. Her body was set on fire. The toddler died several days later from severe burns.

Writing for the majority, Justice Thomas explains that the instruction, however unique, falls in line with the traditional practice of juries determining the sentence of a guilty defendant:

Kansas jurors, presumed to follow their instructions, are made aware that: a determination that mitigators outweigh aggravators is a decision that a life sentence is appropriate; a determination that aggravators outweigh mitigators or a determination that mitigators do not outweigh aggravators -- including a finding that aggravators and mitigators are in balance -- is a decision that death is the appropriate sentence; and an inability to reach a unanimous decision will result in a sentence of life imprisonment. So informed, far from the abdication of duty or the inability to select an appropriate sentence depicted by Marsh and JUSTICE SOUTER, a jury's conclusion that aggravating evidence and mitigating evidence are in equipoise is a decision for death and is indicative of the type of measured, normative process in which a jury is constitutionally tasked to engage when deciding the appropriate sentence for a capital defendant.

Continuing, Justice Thomas criticizes the dissenting opinion of Justice Souter for going off-topic in discussing DNA evidence:

JUSTICE SOUTER argues (hereinafter the dissent) that the advent of DNA testing has resulted in the "exoneratio[n]" of "innocent" persons "in numbers never imagined before the development of DNA tests." Post, at 5-6. Based upon this "new empirical demonstration of how 'death is different,'" post, at 8, the dissent concludes that Kansas' sentencing system permits the imposition of the death penalty in the absence of reasoned moral judgment. But the availability of DNA testing, and the questions it might raise about the accuracy of guilt-phase determinations in capital cases, is simply irrelevant to the question before the Court today, namely, the constitutionality of Kansas' capital sentencing system.

The dissent's general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose. While such a bright-line rule may be easily applied, it has no basis in law. Indeed, the logical consequence of the dissent's argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system. And those precedents do not empower this Court to chip away at the States' prerogatives to do soon the grounds the dissent invokes today.

Justice Scalia defends the majority's decision today and reminds his colleagues how often DNA evidence has been used to vindicate an innocent prisoner:

There exists in some parts of the world sanctimonious criticism of America's death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently - and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to the effect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

It should be noted at the outset that the dissent does not discuss a single case - not one - in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.

In dissent, Justice Souter calls the Kansas law "morally absurd" because the death penalty must be imposed when "the case for aggravation has failed to convince the sentencing jury:"

In Kansas, when a jury applies the State's own standards of relative culpability and cannot decide that a defendant is among the most culpable, the state law says that equivocal evidence is good enough and the defendant must die. A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the Court's holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.

But the case for aggravation hasn't failed just because there's an equal number of mitigating factors. Let's not forget that the defendant slashed a woman's throat and burned her daughter to death. His sentence is hardly "freakish." In fact I would want more than just one mitigating factor to outweigh the aggravating ones before commuting his sentence. But the jury was convinced beyond a reasonable doubt that the defendant was responsible for his crimes and found enough aggravating circumstances to sentence him accordingly per Kansas law.