Equipoise, collective rights and the future of the death penalty: Kansas v. Marsh.

• Author: Barron, Benjamin

The evaluation of evidence is an inherently subjective process, yet deliberating jurors are routinely expected to rummage for purportedly objective criteria such as "reasonable doubt." No less troublesome is the concept of equipoise. In the context of capital punishment, equipoise occurs when jurors determine that mitigating and aggravating factors presented to them at the sentencing phase are of equal weight. (1) These factors often can not be objectively balanced, as there is no limit to what evidence a defendant may present to dissuade the jury from sentencing him to death. (2) Nevertheless, in the event of equipoise, jurors in Kansas are required to impose the death penalty. (3)

Last Term, in Kansas v. Marsh, (4) the Supreme Court upheld the constitutionality of a Kansas statute mandating a sentence of death where mitigating and aggravating factors are in equipoise. The decision was a straightforward application of Supreme Court precedent. The case is fascinating, however, not for the merits of the majority opinion but for the heated dissents by Justices Stevens and Souter and the response to them in a concurrence by Justice Scalia. (5) Justice Souter's dissent, joined by the three other dissenting Justices, reveals that the Court is bitterly divided on the future of the death penalty. Justice Souter questioned the constitutionality of capital punishment in light of the increasing number of former death row inmates exonerated by DNA evidence. (6) This concern could foreshadow a broader attack on the death penalty by the Court's liberal wing that may culminate in an explicit move to overturn it. Moreover, both Justice Stevens and Justice Scalia use Marsh to delve into a debate concerning grants of certiorari. Justice Stevens argued that the Court should generally refrain from reviewing capital cases in which the state is the petitioner, as those cases do not implicate the Court's interest in preventing wrongful executions. (7) This claim, and Justice Scalia's response, (8) present the potentially far-reaching question of whether the Supreme Court should protect the freedom of a state and its citizens to enact criminal legislation as vigorously as it protects the rights of individual defendants.

On June 17, 1996, Michael L. Marsh II broke into the Wichita home of Marry Ane Pusch and lay in wait. (9) Marsh planned to hold Marry Ane hostage when she returned home and to demand ransom from her husband. (10) Carrying Marry Elizabeth, her 19-month-old daughter, Marry Ane arrived earlier than Marsh expected. (11) In his surprise, Marsh shot Marry Ane three times in the head and then stabbed her in the heart. (12) Marsh then set the house aflame and fled the scene, leaving Marry Elizabeth to suffer fatal injuries in the blaze. (13)

The jury found Marsh guilty of capital murder of Marry Elizabeth, first-degree murder of Marry Ane, aggravated arson, and aggravated burglary. (14) At the sentencing phase, the prosecution relied upon three statutorily provided aggravating circumstances (15) in seeking the death penalty: that "Marsh knowingly or purposely killed or created a great risk of death to more than one person"; that Marsh "committed the crime in order to prevent a lawful arrest or prosecution"; and that Marsh "committed the crime in an especially heinous, atrocious, or cruel manner." (16) The jury found that all three aggravating circumstances existed beyond a reasonable doubt and "were not outweighed by any mitigating circumstances." (17) Marsh was sentenced to death. (18)

Marsh argued on appeal that, in requiring the imposition of the death penalty in the event of equipoise, title 21, section 4624(e) of the Kansas Statutes created a presumption in favor of death in violation of the United States Constitution. (19) The Kansas Supreme Court had previously considered the constitutionality of the equipoise rule in State v. Kleypas. (20) While Kleypas held that the equipoise rule is facially unconstitutional, (21) it applied the canon of constitutional avoidance and construed section 4624(e) as requiring the death penalty only where aggravating circumstances outweigh mitigating circumstances. (22) In State v. Marsh, the Kansas Supreme Court overruled Kleypas, holding that section 4624(e) unambiguously requires imposition of the death penalty in the event of equipoise and is therefore facially unconstitutional under the Eighth and Fourteenth Amendments. (23)

The United States Supreme Court reversed. (24) Writing for the Court, Justice Thomas (25) held that section 4624(e) is "controlled by" Walton v. Arizona (26) and thus is constitutional. (27) The Court in Walton had sought to resolve a conflict between jurisdictions regarding the constitutionality of title 13, section 703 of the Arizona Revised Statutes--Arizona's capital sentencing statute. (28) Despite a prior decision by the Ninth Circuit in Adamson v. Ricketts (29) that section 703 was unconstitutional in part because it imposes on the defendant the burden of proving at the capital sentencing phase that the mitigating factors outweigh the aggravating factors, the Arizona Supreme Court in State v. Walton (30) upheld the statute's constitutionality. A plurality of the U.S. Supreme Court in Walton then held that while the Constitution guarantees that the existence of aggravating circumstances must be proven beyond a reasonable doubt, a state may allocate the burden of proving mitigating circumstances in any way that its legislators choose. (31)

In Marsh, the Court held that although the Walton plurality did not use the term 'equipoise,' "the question presented in [Marsh] was squarely before [the] Court in Walton." (32) While the majority observed that the Arizona capital sentencing statute at issue in Walton is distinguishable from section 4624(e) insofar as the former placed the burden on the defendant to prove that sufficient mitigating circumstances exist to outweigh any aggravating factors and the latter placed the burden on the prosecution to prove the existence of aggravating factors that outweigh any mitigating factors, it argued that this distinction cut in favor of the Kansas statute. (33) The Court therefore held that, under Walton, a capital sentencing statute may require a jury to impose the death penalty when it finds that mitigating and aggravating circumstances are of equal weight. (34)

Justice Thomas then held that even if Walton does not apply to the equipoise rule, section 4624(e) is nonetheless constitutional on its face. (35) While a defendant must have the unfettered ability to present mitigating evidence under the individualized sentencing requirement, (36) the majority noted that the Court has "never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required." (37) Rather, the Court has repeatedly upheld statutes that provide juries with "guided discretion" (38) at the capital sentencing phase "by providing [them] with criteria by which [they] may determine whether a sentence of life or death is appropriate." (39) The majority argued that in requiring the death penalty in the event of equipoise, Kansas's capital sentencing statute merely provided such "guided discretion." (40) Furthermore, the majority rejected Marsh's claim that equipoise reflects juror confusion or indecision, holding instead that it is a "measured" conclusion by jurors that mitigating and aggravating circumstances are of equal weight. (41)

Justice Stevens issued a solo dissent. He first briefly argued that the...