Kansas v. Marsh Quick Point
TMcD chides me to post on the Court's end of Term decisions. I've been working on a post on Hamdan, but haven't finished it yet. Unlike the nattering nabobs of knownothing on the television, some of us need time to think about the meaning of landmark decisions.
I will oblige, however, with a quickie on the Kansas death penalty case, Kansas v. Marsh. TMcD writes: The Kansas sentencing case, for example, in which the conservative majority upheld a "tie goes to the hangman" rule, strikes me as reasonable judicial restraint. States are due a fair amount of deference in sentencing guidelines, and the idea that mitigating factors must "outweigh," not merely "balance out," aggravating factors in DP cases seems a plausible enough rule.
I don't really have a view on the merits of the "tie goes to the hangman" rule, in the abstract. It's not 100% clear to me that that rule is consistent with the Court's previous death penalty jurisprudence, but that jurisprudence is about as clear as mud, anyway. In other words, a close question, and no surprise how it came out. Anyhoo. My point is that Marsh cannot plausibly be described as "reasonable judicial restraint." The case caption gives this one away. Note that Kansas comes first, which means that the State of Kansas is the petitioner here. Which means that the State of Kansas lost this case in its own state court of last resort and then appealed to the U.S. Supreme Court. Four justices, at least, voted to grant certiorari, almost certainly with reversing the Kansas high court in mind. In sum, at least four justices decided that this was a sleeping dog that should be poked with the cert stick.
This is a pretty aggressive grant of cert, in my opinion. The Kansas decision applied only to the Kansas death penalty statute, which the state legislature could have easily redrafted to avoid the "tie goes to the hangman" situation. (I believe, but don't quote me, that the statute has actually been redrafted.) So deciding this case only impacts Kansas cases, and there aren't that many Kansas death penalty cases . . . so, taking this case, not an example of restraint.
Add to that that the Court had this case re-argued after O'Connor was replaced by Alito. It would be hard to argue that this case was important enough for that treatment. (Btw, this issue is discussed in the opinions in the case--Scalia's concurrence and Stevens's dissent, I think.)
posted by Number Three @ 11:47 AM
3 Comments:
I'll grant your point on cert. But take the decision on its merits. What's really wrong with the Kansas law? Now, maybe there's a problem under the Kansas constitution, but I have trouble seeing where this runs afoul of "cruel and unusual punishment" or "due process."
Well, I think there's an argument that, when the jury has found mitigating circumstances in a given case that counterbalance the aggraating factors that the State has proven, to impose death under those circumstances, that raises the question whether the aggravators really justify imposition of death, in that [hypothetical] case. I think that Justice Thomas's argument that the rule is that death cannot be imposed when the mitigating circumstances outweigh the aggravators is a reasonable place to draw the line. But I also think that it's reasonable to draw the line where the aggravators do not outweigh the mitigating circumstances. The problem with this whole line of cases is really the metaphor of "weighing" aggravators against mitigating circumstances. Does, for example, having had a disadvantaged upbringing counterbalance the fact that the defendant purposefully killed more than one person? That's the sort of measurement that the law presently makes. In terms of "due process," death penalty jurisprudence is a whole different, and arcane set of rules.
The Kansas court's ruling was based on the federal constitution, otherwise the Court wouldn't have taken the case. My point was that where a state court decision has very limited effect, and where a state government can address the decision, without Court intervention, then in most cases a "restrained" Court will stay out of the issue.
I hate to step into a legal argument where I'm way out of my league, but I merely wish to point out that for a signficant part of the planet's inhabitants, the death penalty is considered, ipso facto, "cruel and unusual punishment." In fact, many people from many different countries have gone out of their way to tell me that a country's stand on the death penalty is a personal litmus test for them on whether they place a country in the column of civilized nations.
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