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Supreme Court Decision Update - Kansas v. Marsh

supreme1.jpgIn Kansas v. Marsh (PDF of the opinion here), the Supremes take up the Constitutionality of Kansas’ death penalty statute, reversing the Kansas Supreme Court and ruling that the statute does not violate the Eighth or Fourteenth Amendments.

QuizLaw Analysis: At the end of the day, the law of this case is probably less important than the underlying discussion/argument between the Justices over the greater issue of the propriety of the death penalty. And, whatever your position on the issue, with the conservative Justices in control of the voting numbers, you know that the death penalty isn’t going anywhere for the foreseeable future.

Luckily, we don’t have to worry much about the gruesome facts underlying this case. Suffice it to say that Michael Lee Marsh II was found to have broken into a woman’s home. He camped out there, and when she returned with her 19-month-old daughter, Marsh shot the woman, stabbed her and slashed her throat, and then burnt down the house which ended up killing the toddler. Marsh was convicted by a jury for, among other things, capital murder (of the daughter), first-degree premeditated murder (of the woman), and aggravated arson. The jury then turned to sentencing, and Marsh was given the death penalty for the capital murder charge, and a lot of prison time for the other crimes. In sentencing him to die, the jury found that there were several aggravating circumstances supporting the death penalty and that these were not outweighed by any mitigating circumstances.

Marsh appealed, arguing that the Kansas capital statute was unconstitutional. That statute says that a jury “shall” sentence a defendant to death if it unanimously finds, beyond a reasonable doubt, that there were one or more aggravating circumstances which outweighed any mitigating circumstances; otherwise, the jury must sentence the defendant to life imprisonment. Marsh argued that the “shall” requirement basically created a presumption of death which violated the Eighth and Fourteenth Amendments (i.e., it’s cruel and unusual punishment). The Kansas Supreme Court sided with Marsh, finding the statute unconstitutional on its face, and remanding the case for a new trial on the capital murder conviction (as well as remanding for a new trial on the aggravated arson conviction, on unrelated grounds not at issue here).

In a 5-4 decision, the Supremes ruled that Kansas got it wrong, finding that the Kansas capital statute is constitutional. The majority decision was penned by Justice Thomas, and joined by Chief Justice Roberts and Justices Scalia, Kennedy and Alito. Before turning to the substantive issue, Thomas addresses two jurisdictional issues which the parties were asked to brief and argue. The first jurisdictional issue was whether the Supremes had jurisdiction to hear this case even though the criminal proceedings were ongoing (since a new trial was ordered). Thomas notes that federal law allows the Supremes to review any decision coming from the highest court of a state if that decision turns on the validity of a state statute in light of the federal Constitution. That’s exactly what was going on here. And prior Supreme Court decisions have ruled that this jurisdiction exists even if the underlying state proceedings aren’t over yet, as long as the federal claim has been given a final determination with no chance of additional review. Since the Kansas Supreme Court made such a final determination of the constitutional issue, and there was no chance of it being able to review the matter again, the Supremes were entitled to review this case even though Marsh will be having a new trial - that trial will only address the substantive merits of the charges against him, not any issues relating to the constitutionality of the Kansas statute.

The other question about jurisdiction relates to a doctrine well known to students of federal civil procedure, namely, that the Supreme Court does not have jurisdiction over a state case if the state decision is supported by “adequate state grounds independent of federal law.” If the state decision is supported in this way, the Supremes don’t have jurisdiction because they really can’t do anything. That is, even if they decide the state court got the federal issue wrong, the state decision would still stand because it had independent state grounds supporting it, and the Supremes aren’t entitled to overturn those state grounds. Here, however, Thomas says that the Kansas decision had no such independent and adequate state grounds - the Kansas Supreme Court’s decision rested clearly on the finding that the sentencing statute violated the federal Constitution, and there was simply no state basis in support of this decision.

So, finding that the Supremes have jurisdiction over the case, Thomas turns to explaining why the Kansas Supremes got it wrong, and he has two reasons. The first relies on a prior Supreme Court case, Walton v. Arizona, which Thomas says requires the Supremes to find the Kansas statute constitutional. In Walton, the Court found that a state death penalty statute could place the burden on the defendant to prove that any mitigating circumstances outweighed aggravating circumstances, in order to avoid a death penalty. While Walton did not discuss the “equipoise” issue currently before the court (the case where mitigating and aggravating circumstances balance), Thomas says this issue was inherent in that decision, since Walton was all about whether the defendant could be required to show that mitigating factors outweigh aggravating factors; since the Court ruled that this is ok, inherent in that ruling is a decision that, if the factors simply balance, the defendant hasn’t met his or her burden. Don’t worry if this doesn’t make total sense – the point it that Thomas says that the Court is mandated to find the Kansas statute constitutional, as Walton controls the day.

And even if Walton didn’t mandate this outcome, Thomas says the Supremes’ prior decisions rereading the death penalty do. The Court has previously said that a state has discretion in implementing the death penalty, including how it determines aggravating and mitigating circumstances should be weighed and balanced, so long as (i) the state law defines a “rationally narrow” class of defendants that are eligible for death and (ii) permits the jury to make a reasonable and individualized determination of sentencing in each such case. In other words, the Supreme Court has never said how aggravating and mitigating factors should be balanced; rather, it has simply said that defendants are entitled to present mitigating factors and the jury must consider those factors (but how the jury should consider and weigh those factors is up to the individual states). So, Kansas’ law is ok because it falls within this standard - it keeps the class of defendants eligible for death rationally narrow and it lets the jury consider mitigating evidence. All Kansas is doing, according to Thomas, is providing “guided discretion” by saying that the jury has discretion to waive the death penalty if it finds that mitigating circumstances outweigh aggravating circumstances (although this seems like a poor choice of words, since the jury actually has no discretion in that case and must issue a life sentence). Thomas says this does not create any presumption of death because there is no death penalty unless and until the State makes a primary demonstration, beyond a reasonable doubt, that there was some aggravating circumstance - if the State can’t do this, or if it can’t show beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances, or if the jury can’t unanimously agree on any of that, then the defendant gets a life sentence. So there is no presumption, according to Thomas, and the Kansas statute meets the constitutional requirements of the Eighth Amendment.

Finally, Thomas turns to an argument raised by the dissent, that DNA testing has changed the landscape and that Kansas’ statute imposes the death penalty without allowing for a reasoned moral judgment. Thomas poo-poo’s this argument, finding that DNA testing and any issues it raises about the determination of a defendant’s guilt has nothing to do with the issue of sentencing, which is what this case is all about. And he doesn’t find any legal support for the dissent’s purported notion that all disputes in a capital case should be resolved in whatever way acts to further limit the death penalty. In others word, “shut up, dissent.”

Justice Scalia files a concurring opinion in which he notes that he joins with the majority because Walton defiantly controls the day. But he also joins with the rest of the decision, despite finding that the Court’s capital jurisprudence has become “incoherent,” because he has previously said that he will never “vote to uphold an Eighth Amendment claim that the sentencer’s [i.e., the jury] discretion has been unlawfully restricted.” Scalia then turns most of the focus of his opinion on the two dissenting opinions, and we’ll discuss Scalia’s comments within the context of those dissents.

First, Justice Stevens files a solo dissenting opinion for two reasons. He wants to explain why he doesn’t think Walton is controlling here, even though he joined in the dissent of that case back in 1990, a dissent which specifically says that Walton addressed this very issue. The reason he says, contrary to Thomas’ accusations, that this isn’t inconsistent is because the plurality in Walton totally ignored the issue and the dissent was merely pointing that out. More importantly, Stevens doesn’t think that the Supremes should have even granted certiorari to hear this case because, in his estimation, the Supreme should let the state handle its own business; particularly as the Kansas Supreme Court decision would hold no weight over other states, which could treat the issue as they would like. He basically thinks the Supremes’ only interest in hearing this case was an interest in ensuring the death penalty remained valid in Kansas, and that’s not good enough for him. In Scalia’s concurrence, Scalia says that Stevens is simply wrong that the Supremes shouldn’t hear this case. To Scalia’s mind, Stevens’ logic could apply to the review of many, if not all, state cases. Not to mention, the Supremes have a duty to make sure the Constitution is being applied properly when a state court relies on it. In other words, “shut up, Stevens.”

The main dissenting opinion was penned by Justice Souter and joined by Justices Stevens, Ginsburg and Breyer. Souter agrees with the Kansas Supreme Court that, essentially, the Eighth Amendment forbids a mandatory death penalty in “doubtful cases,” and that this is precisely what the Kansas statute does (that is, a case where mitigating factors equally balance aggravating factors is a “doubtful case” in Souter’s estimation). Souter’s problem is that in such a case, which he calls a tie, the tiebreaker has nothing to do with the details of the crime or any facts about the defendant, but that the statute presents mandatory death as the tiebreaker. Souter is particularly troubled by this in light of the fact that the past decade has shown DNA test exonerating numerous death row defendants. “In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure.” This issue is what gets most of Scalia’s attention in his concurrence (he even recognizes that he has “more than a few” word to say about the issue). Scalia basically thinks Souter is improperly judging the merits of having a death penalty and that he’s trying to force the Court stick its nose in business that should be left to the legislature, regardless of any judge’s personal opinion of the death penalty. And he also thinks Souter’s reliance on DNA evidence and other anti-death penalty arguments is inappropriate, sloppy and wrongfully employed.