Third Party & Independents Archives

Supreme Court Upholds Kansas Death Penalty

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 then 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 that suggests a four-member minority on the Supreme Court is itching to dismantle capital punishment from the American criminal justice system:

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 just how often DNA evidence has been used to vindicate a wrongly convicted defendent:

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, joined by the other three dissenters, 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 to life without parole. But the jury was convinced beyond a reasonable doubt that the defendant was responsible for his crimes in addition to finding enough aggravating circumstances to sentence him accordingly per Kansas law.

Posted by Scottie at June 26, 2006 3:37 PM
Comment #161920

What i really wonder is, why is it that the supreme court gets to hear the case of a guy who burned a woman and her child, as opposed to someone who was wrongfully imprisoned and put on death row for several years due to prosecutors withholding evidenec. Those are the cases that worry those of us who are against the death penalty.

Posted by: iandanger at June 26, 2006 4:17 PM
Comment #161961

The issue here is state’s rights to set these particular rules regarding the imposition of the death penalty. The court rightly ruled there is no breach of the Constitutional protections for individual rights for this case given that the death penalty has been upheld in previous cases.

iandanger, the S.C. has heard some cases regarding wrongful imprisonment. I am waiting for the test case that permits tort reform rules to limit the award achievable by a wrongfully accused and imprisoned individual. That will be a test case that will separate the lefties from the righties.

Posted by: David R. Remer at June 26, 2006 5:40 PM
Comment #161962

Those are the cases the ACLU and fellow lefties bring to them.

The logic is rather simple… if somewhat bizarre.

If you can overturn the conviction of the most egregious of criminals, then the whole basis for capital punishment falls.

The murder committed by the three Missouri “juveniles” (aged 17 and 18) were more pre-meditated and heinous than those in the Kansas case.

Yet, SCOTUS threw out their death sentence because we can’t be assured that juveniles know that murder is wrong. And, because “the civilized countries of the world” don’t have capital punishment (per Justice Breyer).

My son is 6-years old and he knows murder is wrong. So, the “they don’t know” criteria is absurd.

And, I don’t particularly care what the citizens of Italy, Belgium and Norway think about capital punishment. They have a national legislature they elect, their laws are up to them. And should have no impact on US laws or SCOTUS decisions.

Posted by: Right-of-Way at June 26, 2006 5:41 PM
Comment #161963


As a “rightie”, I think any prosecutor who misuses their authority to prosecute a crime should face the same sentence as the individual they falsely accuse/convict.

Let’s start with Ronnie Earle (TX) and Nifong (NC).

Posted by: Right-of-Way at June 26, 2006 5:44 PM
Comment #161964

The Rest of Us also reports:

As Toni Locy reports for the AP in the Washington Post, today the U.S. Supreme Court struck down Vermont’s law which set limits on the size of permissible political contributions and on how much candidates could spend on a campaign. And as the judicial branch was busy siding with wealthy interests over the rest of us, the legislative branch was busy sitting on its hands on lobbying reform, as reported by Jeffrey Birnbaum and Jim VanDeHei in the Washington Post.

Posted by: David R. Remer at June 26, 2006 5:45 PM
Comment #161975

How many innocent people are there on Death Row?
How many were put there by DAs withholding evidence?
Answer: Everyone of them.
Don’t believe me? Ask them, they’ll tell ya.
The Supreme Court picks the cases it wants to hear. Just because an appeal is filed with it doesn’t mean that the court is obligated to hear the case. How they go about choosing the cases they hear I don’t know.

As a “rightie”, I think any prosecutor who misuses their authority to prosecute a crime should face the same sentence as the individual they falsely accuse/convict.

Let’s start with Ronnie Earle (TX) and Nifong (NC).

That’s a good starting point. And I’m sure there’s more out there.
Nifong is sure enough abusing his power. The case is falling apart even before indictments are being handed down. But he’s up for reelection and I reckon he wants the votes of minorities.

Posted by: Ron Brown at June 26, 2006 6:05 PM
Comment #161987

Amen Ron… I agree on both points.

Posted by: Right-of-Way at June 26, 2006 6:31 PM
Comment #162030

C’mon, guys. Do you really believe DeLay is such a wuss that he would lay down and resign if Earle didn’t have a very damaging case to make?

Get real guys! I even give DeLay more credit than you do.

Posted by: David R. Remer at June 26, 2006 9:11 PM
Comment #162042

I don’t think that DeLay would lay down without cause. But if there’s any kind of case against him I haven’t heard about it.

I personally hope the Supreme Court stays out of death penalty case. This is something that’s up to the states.

Posted by: Ron Brown at June 26, 2006 9:37 PM
Comment #162056

Add another DA to the list. Rush has been busted again, this time entering the country.

Posted by: jlw at June 26, 2006 10:07 PM
Comment #162062

Ron Brown, I don’t agree. The Supreme Court is duty bound to review cases where the state deprives individuals of life, liberty, or the pursuit of happiness without due process. Hence, where there are questions regarding the suitability of due process as performed, the Supreme Court has a duty to review such cases.

If in the future, our justice system goes terribly awry and we are executing far too many innocent victims, do you not think the Supreme Court should have jurisdiction to review the Constitutional protections surrounding any state’s exercise or implementation of the death penalty?

Posted by: David R. Remer at June 26, 2006 10:17 PM
Comment #162445

The sad part of state sponsored execution in my mind is not the execution itself. It is the fact that we are not taking these often young,healthy bodies,and using them for organ transplants. What better way to pay back society than to give kidneys,hearts,lungs,eyes to a deserving citizen? It’s the least amount of payback that a convicted murderer can do.

After all, if we have the right to take their very lives from them,whats a kidney?

Posted by: jblym at June 27, 2006 6:14 PM
Comment #162573

I doubt that 1 in 100,000 are innocent. Most death sentences are over turned on minor technicalities. Not because the party is innocent.

The method of execution would have to be changed. Electrocution and lethal injections do to much damage to organs. Perhaps a bullet to he head would be wore appropriate if you want to harvest organs.
But then you’d have the bleeding hearts screaming cruel and unusual punishment. Of course they’re doing it now.

Posted by: Ron Brown at June 27, 2006 11:57 PM
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