The Court decided today that Kansas' "tie goes to the gurney"* statute requiring a jury to sentence a defendant to death if the aggravating factors and mitigation were in equipoise was perfectly constitutional. Relying in part upon Walton v. Arizona, the Court determined that a defendant can be obligated to prove that mitigation outweighs aggravating circumstances in order to avoid a death sentence. Walton, of course, is not a direct decision on that point, instead determining that a jury does not have to determine a death sentence (since overruled on that point, of course). While Apprendi would not do anything to change the result in Walton, given that the statute's maximum penalty was death, it was just practically taken off the table, the Apprendi revolution seems to be getting surprisingly short shrift in today's decision.
In Walton, the Court noted that under Arizona's statutory scheme:
The burden of establishing the existence of any of the aggravating
circumstances is on the prosecution, while the burden of establishing mitigating
circumstances is on the defendant.
It becomes difficult, if one accepts the Court's determination in Marsh, to uphold the conclusion in Woodson v. North Carolina, since the presumption against death only means that a state must rationally narrow those who are eligible to the death penalty to those who have some peppercorn of aggravation above the statutory violation itself. Moreover, it is unclear why a mere outweighing of aggravation would be sufficient. Under Marsh and Walton's resurrected non-holding, the court permits placing a burden on a defendant to present mitigation "sufficiently substantial to call for leniency." As a result, there doesn't appear to be any reason that a state could not rquire mitigation to substantially outweigh any aggravating factors. The jury merely has to be permitted to consider all the mitigating evidence that a convict wants to present.
If a tie can go to the gurney, effectively the aggravating factors have been written out of the statute entirely, because aggravation and mitigation are in equipoise if neither is offered. While it is perhaps a contrivance to argue that the evidence was perfectly equal, and that an Allen charge was more likely the appropriate result, Marsh will likely be a springboard to states who want to tweak their death penalty statutes to ensure a larger number of people end up on death row, finally being given a way to combat Ring and Woodson.
We can see Kansas v. Marsh a number of ways, none of them positive. Maybe it's a pointlessly narrow case that just explains why the Michigan v. Long presumption is purely a silly O'Connor equity contrivance that should be eliminated instantly, especially in the context of the death penalty, where there is a presumption against AISG for Marsh now, but in habeas, the presumption switches immediately to the rule of Coleman v. Thompson, where the trap of AISG will once again swing to open the door to the death house. Even Stevens' rights-narrowing approach would make more sense than the mess of Long here.
Most likely, it is a statement that John Roberts really is a big fan of the death penalty, no matter what the habeas work and his Catholicism might have indicated. Kennedy thinks he's being innocuous after standing out as a hippie in Roper and Atkins, so he's joining a devastating death penalty opinion.
Fundamentally, the case is the death knell for the presumption against death. Perhaps it's finally clear that the Supreme Court needs more sports fans. Think of the aggravating circumstances and mitigation evidence as a scoreboard. While quantifying evidence is ludicrous, this demonstrates a dire flaw with the practicality of the system we have, and I won't attempt to correct it in this post. The jury found three aggravating circumstances
Only in law could the result in a 2-2 or 1-1 game be different than a 0-0. If it's zero-zero, Marsh wins a lovely parting gift to life in prison with no possibility of parole. If it's zero-one, Marsh wins life in prison with no possibility of parole. If it's 1-1...Marsh is executed. No wonder they say defense wins championships.
A professor of mine had offered three theories as to how the Supreme Court resolved cases...and it fits here. Marsh got cute -- or at least might have. The Supreme Court's decision is, typical of Justice Thomas, utterly uninstructive, saying only that Marsh did not outweigh the aggravating factors. It's unclear whether the mitigation was actually regarded as "equal" to the aggravation.
If not, then the don't get cute principle definitely applies here. Marsh would have lost on the scoreboard 3-0, and convinced the Kansas Supreme Court that the statutory provision was unconstitutional, because the tie went to the gurney.
Never mind if there wasn't a tie, the statute was unconstitutional. Kansas' Supreme Court got it right, the statute ought to be considered unconstitutional. It's just that there's no as applied challenge here, so Marsh got lucky, his sentence was struck down because of a statute that might have ended up having no impact on him whatsoever.
And, now, as a result, more people will die. Marsh's reign of terror continues, but now he has five accomplices wearing black robes, luring states to execute or execute with red tape more and more offenders and inspiring legislatures to bring back the presumption in favor of the death penalty.
It's a deadly game, and the Court's credibility is the big loser.
*The phrase is mine. Yes, I do feel pretty damn clever.
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