The Constitutionality of Mandating the Death Sentence with Mitigating Evidence in Equipoise

Kansas v. Marsh

Michael Lee Marsh laid in wait, brutally murdered Mary Ane Pusch, and burned her house down with her child inside. He was found guilty of murder, aggravated arson, and aggravated burglary. This case addresses the constitutionality of a law requiring the death penalty when the jury finds at least one aggravating circumstance and when aggravating and mitigating circumstances are in equipoise. Prior to this question, however, the Court addresses whether it has jurisdiction, and whether the lower court’s decision is supported on independent state grounds.

28 U.S.C. §1257 grants the Court jurisdiction over the final judgment of the highest court in a state where the federal claim, on which the state law is challenged, is “finally decided, with further proceedings on the merits in the state courts to come,” but where the federal issue cannot be readdressed. The Court decides that what avenues remain theoretically available to the defendant are effectively closed, and that the lower court overruled a portion of a previous Kansas Supreme Court ruling which was itself based on the Eighth and Fourteenth Amendments. It is therefore not supported on independent state grounds.

In Walton v. Arizona the Court held that so long as a law does not diminish the State’s burden of proving every aspect of a charge a defendant’s constitutional rights are not violated by placing the burden of proving mitigating factors on him. In Walton the defendant was required to prove mitigating circumstances in response to the prosecution’s showing of aggravating circumstances, whereas the statute at issue here requires the State to prove that its aggravating factors are not outweighed by whatever mitigating factors may exist, a greater burden on the State. Therefore, since Walton controls this case, the Court is compelled to find the statute constitutional.

Alternatively, Furman v. Georgia and Gregg v. Georgia require a state capital punishment system to “(1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.” The Court has also held that a state is effectively precluded from limiting the range of mitigating factors. That mitigating factors must be considered is part of the individuality requirement from Furman and has not been held to necessarily imply any given method of balancing.

The Court then considers the Kansas statute in light of the Furman requirements. The statute rationally limits death sentence eligibility to those found guilty of capital murder; allows jurors to consider any mitigating evidence relevant to moral culpability or blame; and does not create a general presumption in favor of death (the defendant bears the burden of production while the State bears the burden of proving that aggravating factors outweigh mitigating factors). Marsh argues that a jury determination that aggravating and mitigating factors are in equipoise cannot result in a valid sentence of death because jurors that determination either shows juror confusion or allows a jury to shrink its constitutional duty to render a moral decision. The Court rejects the first argument, and argues that the balancing is a means, not an end. Therefore, the duty to render a moral decision can be found in the determination of the sentence itself. The majority accuses the dissent of raising an incendiary debate over DNA evidence that is entirely outside the scope of the question at hand.

Justice Scalia, concurring, presents responses to Justice Stevens’ arguments about why the Court should not have granted certiorari. Scalia also accuses Stevens of endorsing a misguided view of federalism where the Supreme Court cannot interfere with state court determinations of federal law. According to Scalia, when a state Supreme court mistakenly reads federal law the people of the State are stripped of any power to overturn the decision. Therefore, the Supreme Court returns power to the people of the State by correcting the mistake. He also points out that the capital punishment system of those countries bemoaning the one in the US were abolished in spite of public sentiment and attacks the dissent’s decision to address the broader question of the death penalty per se. Scalia sees the exoneration of death row inmates as the badge of a functioning legal system, since it is that very system that let them go, and emphasizes the number of “exonerations” that have come on the basis of technical matters of law, rather than pure evidence.

Justice Stevens argues that Justice Blackmun, dissenting in Walton, denied that the plurality in that case addressed the issue of the death sentence with evidence in equipoise. Stevens therefore does not believe that stare decisis binds the Court in this case. Stevens points out that in this case it was Kansas, not Marsh, that applied for certiorari, and accuses Scalia of overlooking the absence of an interest in protecting against unconstitutional conviction when the petitioner is a State.

Justice Souter states that the constitutional duty to make a reasoned moral response requires that a jury’s sentence be informed by the actual circumstances and uniqueness of the crime and the defendant, as well as requiring that the death penalty be reserved for the worst of the worst. The Kansas statute fails on both counts: the dispositive factor is nothing unique or individual about the circumstances and it does not single out the worst of the worst. Souter calls this rule “morally absurd” and accuses the majority of defying “decades of precedent aimed at eliminating freakish capital sentencing.” He then presents the contested evidence regarding exonerations in order to illustrate the “reality that must be addressed.”