Kansas v. Marsh: a Thumb on the Scale of Death? - Elizabeth Brandenburg

• Publication year: 2007

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Kansas v. Marsh: A Thumb on the Scale of Death?

In Kansas v. Marsh,¹ the United States Supreme Court held that it is not unconstitutional for a state's death penalty statute to require a death sentence when a sentencing jury finds aggravating and mitigating factors to be in equipoise.² Extending its previous decision in Walton v. Arizona,³ the Court explicitly determined that this type of sentencing met the requirements of Furman v. Georgia⁴ and Gregg v. Georgia,⁵ holding that no other constraint is imposed by the Constitution.⁶ While the repercussions of this decision may not be widely felt, they do indicate the direction the Court is heading in death penalty jurisprudence.

I. Factual Background

Michael Lee Marsh II wanted to take a trip to Alaska. In order to obtain the money for the trip, Marsh devised a plan to hold his friend Eric Pusch's wife, Marry, and child, M.P., captive, threatening to hurt them unless Pusch gave Marsh the money. However, Marry arrived home with her nineteen-month-old baby girl earlier than Marsh had expected, and in a panic, he shot Marry several times, stabbed her, and slashed her throat. Marsh then set fire to the Pusch home, using an accelerant on Marry's body to start the fire. M.P. died in the fire. When the police questioned Marsh, he confessed to killing Marry, but alternately admitted and denied setting the fire.⁷

Marsh was charged with capital murder of M.P., first-degree murder of Marry, aggravated arson, and aggravated burglary.⁸ The jury convicted Marsh, finding three statutory aggravating factors to support a death sentence: "(1) Marsh knowingly or purposely killed or created a great risk of death to more than one person; (2) he committed the crime in order to avoid or prevent a lawful arrest or prosecution; and (3) he committed the crime in an especially heinous, atrocious or cruel manner."⁹ The jury further found that no mitigating factors existed to outweigh the aggravating factors and unanimously voted to impose the death penalty on Marsh. The trial judge found sufficient evidence to support the sentence. Marsh was also sentenced to eighty-five months imprisonment for his other crimes.¹⁰

Marsh appealed his sentence directly to the Kansas Supreme Court, facially challenging the wording of Kansas's death penalty statute, Kansas Statutes Annotated section 21-4624(e),¹¹ that called for a death sentence when aggravating factors and mitigating factors are found by a jury to be in equipoise:

If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 214625 . . . exist[s] and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise the defendant shall be sentenced [as provided by law].¹²

The Kansas Supreme Court agreed with Marsh's argument that the statute created an unconstitutional presumption in favor of death because of its requirement of death when the aggravating and mitigating factors are equal.¹³ The United States Supreme Court granted certiora- ri to consider whether the requirement of the Kansas death penalty statute was unconstitutional.¹⁴

II. LEGAL BACKGROUND

A. The Modern Era of Capital Punishment

The way capital punishment is administered in this country was forever changed in 1972 when the Supreme Court decided Furman v. Georgia,¹⁵ abolishing the death penalty as it was currently being applied. The Court held the application of the death penalty to be "cruel and unusual" in violation of the Eighth and Fourteenth Amendments.¹⁶ The Court's main issue with the death penalty was its arbitrary application, allowed by broad jury discretion. Justice Stewart, in his concurring opinion, went so far as to describe the death penalty as "wantonly and . . . freakishly imposed."¹⁷

After Furman was decided, the states bustled to enact death penalty legislation that would satisfy the Supreme Court's qualms. In Gregg v. Georgia,¹⁸ in 1976, the Court allowed the states to reinstate the death penalty with new, less arbitrary statutes.¹⁹ The Court rejected the notion that the death penalty is unconstitutional per se because there are real goals that capital punishment serves: retribution and deterrence, and the reason the death penalty was abolished in Furman, its arbitrary application, could be remedied.²⁰ The Georgia statute that the Court approved in Gregg remedied the concerns of Furman by providing for bifurcated proceedings, in which guilt and sentencing would be decided separately by a jury.²¹ The statute also narrowed the class of defendants that was eligible for the death penalty by creating aggravating circumstances, one of which must be found by the jury to exist before the death penalty can be considered as a punishment.²² The statute therefore sufficiently limited the jury's discretion in imposing a death sentence.²³

Decided the same day as Gregg, Woodson v. North Carolina²⁴ established another requirement in the new application of the death penalty. North Carolina tried to cope with the Court's aversion to the arbitrary application of the death penalty by making the death penalty mandatory for first-degree murder, thus eliminating jury discretion altogether.²⁵ The Court held that this was not an appropriate way of dealing with the constitutional violations that arise from too much jury discretion.²⁶ Juries must be guided in wielding their discretion, an issue that mandatory death penalty statutes neither address nor remedy.²⁷ Finally, and most pertinent to the present case, Woodson held the North Carolina statute unconstitutional on the basis that it did not allow for an individualized determination for each defendant facing the death penalty.²⁸ In essence, juries must consider any mitigating evidence of the circumstances of the offense and the character of the offender.²⁹ The Court came to this conclusion on the basis that "death is . . . different" from any other punishment that may be imposed, therefore an individualized determination is necessary to ensure that death is appropriate in each case in which it may be imposed.³⁰

B. Mitigating Factors

In 1978 in Lockett v. Ohio,³¹ a plurality of the Supreme Court held that under no circumstances may a jury be precluded from considering any relevant mitigating evidence.³² The plurality defined relevant mitigating evidence as those "aspect[s] of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."³³ The plurality cited its "death is different" philosophy in allowing so much latitude to capital defendants in presenting their cases at the sentencing phase.³⁴ The plurality reversed the defendant's death sentence because the sentencer was only allowed to consider three statutory mitigating factors in determining the sentence.³⁵ The plurality was unwilling to take the risk that defendants may be executed where evidence exists that may justify a more lenient sentence.³⁶ The plurality's approach was accepted by a majority of the Court in Eddings v. Oklahoma,³⁷ four years later.³⁸ Further, the Court held that the sentencer must not only be able to consider mitigating evidence but must actually consider the evidence.³⁹

In 1983 in Zant v. Stephens,⁴⁰ the Court determined that some procedures must be left up to the states.⁴¹ Death penalty statutes must narrow the class of defendants eligible for the death penalty and allow each defendant an individualized determination based on the defendant's character and the circumstances of the crime.⁴² As long as a state's statute allows for the jury's individualized determination of a defendant's case, a state does not have to outline a specific procedure for weighing aggravating evidence against mitigating evidence.⁴³ The Court upheld the defendant's death sentence partly on the grounds that all mitigating factors were considered by the jury in imposing the sen-tence.⁴⁴

C. Weighing Statutes

As long as the death-eligible class of offenders is narrow and the jury is able to make an individualized determination of the defendant, states are authorized to structure their death penalty statutes in a variety of ways. One way of structuring a statute is to mandate the weighing of aggravating and mitigating factors. In Blystone v. Pennsylvania,⁴⁵ the Court held that the defendant did get an individualized determina-tion.⁴⁶ The defendant challenged the Pennsylvania statute that required imposition of the death penalty if the jury found that aggravating factors outweighed mitigating factors.⁴⁷ The Court held that the statute was not a mandatory death penalty statute barred by Woodson because before imposing the death penalty, the statute first required a jury determination that the aggravating factors outweighed the mitigating factors.⁴⁸ If the jury determined that the aggravating factors did not outweigh the mitigating factors, there would be no death sentence.⁴⁹ The jury found one aggravating factor against the defendant and no mitigating factors. The aggravating factor narrowed the defendant into the class of those eligible for the death penalty, and the jury's instruction to consider "any 'matter concerning the character or record of the defendant, or the circumstances of his offense'" was sufficient to give him an individualized determination.⁵⁰

In the same term, the Court decided Boyde v. California,⁵¹ similarly holding that it was enough that the jury be instructed to consider all relevant mitigating evidence to satisfy a defendant's right to an individualized determination.⁵² In Boyde the defendant did proffer mitigating evidence on his own behalf, unlike in Blystone, but the Court allowed the jury's determination that Boyde's mitigating evidence did not outweigh the aggravating evidence against him.⁵³ The Court rejected the defendant's argument that the...