Kansas v. Marsh, 548 U.S. 163 (2006)
Kansas v. Marsh, 548 U.S. 163 (2006)
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
KANSAS v. MARSH
CERTIORARI TO THE SUPREME COURT OF KANSAS
No. 041170. Argued December 7, 2005Reargued April 25, 2006
Decided June 26, 2006
Finding three aggravating circumstances that were not outweighed by
mitigating circumstances, a Kansas jury convicted respondent Marsh
of, inter alia, capital murder and sentenced him to death. Marsh
claimed on direct appeal that Kan. Stat. Ann. 214624(e) establishes
an unconstitutional presumption in favor of death by directing impo
sition of the death penalty when aggravating and mitigating circum
stances are in equipoise. Agreeing, the Kansas Supreme Court con
cluded that 214624(e)s weighing equation violated the Eighth and
Fourteenth Amendments and remanded for a new trial.
Held:
1. This Court has jurisdiction to review the Kansas Supreme
Courts judgment under 28 U. S. C. 1257. That provision authorizes
review of a States final judgment when a state statutes validity is
questioned on federal constitutional grounds, and it permits review
even when the state-court proceedings are not complete where the
federal claim has been finally decided and later review of the federal
issue cannot be had, whatever the cases outcome, Cox Broadcasting
Corp. v. Cohn, 420 U. S. 469, 481. Although Marsh will be retried,
the State Supreme Courts determination that the death penalty
statute is unconstitutional is final and binding on the lower state
courts. Thus, the State will be unable to obtain further review of its
law in this case. This Court has deemed lower court decisions final
for 1257 purposes in like circumstances, see, e.g., Florida v. Meyers,
466 U. S. 380 (per curiam). Pp. 34.
2. The State Supreme Courts judgment is not supported by ade
quate and independent state grounds. Marsh maintains that the
judgment was based on state law, the State Supreme Court having
previously reviewed the statute in State v. Kleypas. However, Kley
KANSAS v. MARSH
Syllabus
pas itself rested on federal law. In this case, the State Supreme
Court chastised the Kleypas court for avoiding the constitutional is
sue, squarely found 214624(e) unconstitutional on its face, and
overruled Kleypas in relevant part. Pp. 45.
3. Kansas capital sentencing statute is constitutional. Pp. 519.
(a) Walton v. Arizona, 497 U. S. 639, requires approval of the
Kansas statute. There, the Court held that a state death penalty
statute may give the defendant the burden to prove that mitigating
circumstances outweigh aggravating circumstances. A fortiori, Kan
sas death penalty statute, consistent with the Constitution, may di
rect imposition of the death penalty when the State has proved be
yond a reasonable doubt that mitigators do not outweigh aggravators,
including where the two are in equipoise. Pp. 59.
(b) Even if, as Marsh contends, Walton does not directly control
here, general principles in this Courts death penalty jurisprudence
lead to the same conclusion. So long as a state system satisfies the
requirements of Furman v. Georgia, 408 U. S. 238, and Gregg v.
Georgia, 428 U. S. 153that a system must rationally narrow the
class of death-eligible defendants and must permit a jury to render a
reasonable, individualized sentencing determinationa State has a
range of discretion in imposing the death penalty, including the
manner in which aggravating and mitigating circumstances are
weighed. The use of mitigation evidence is a product of the individ
ual-sentencing requirement. Defendants have the right to present
sentencers with information relevant to the sentencing decision and
sentencers are obliged to consider that information in determining
the appropriate sentence. The thrust of this Courts mitigation juris
prudence ends here, for the Court has never held that the Constitu
tion requires a specific method for balancing aggravating and miti
gating factors. Pp. 911.
(c) Kansas death penalty statute satisfies the constitutional
mandates of Furman and its progeny because it rationally narrows
the class of death-eligible defendants and permits a jury to consider
any mitigating evidence relevant to its sentencing determination.
The States weighing equation merely channels a jurys discretion by
providing criteria by which the jury may determine whether life or
death is appropriate. Its system provides the kind of guided discre
tion sanctioned in, e.g., Walton, supra. Contrary to Marshs argu
ment, 214624(e) does not create a general presumption in favor of
the death penalty. A life sentence must be imposed if the State fails
to demonstrate the existence of an aggravating circumstance beyond
a reasonable doubt, if the State cannot prove beyond a reasonable
doubt that aggravating circumstances are not outweighed by mitigat
ing circumstances, or if the jury is unable to reach a unanimous deci
Syllabus
sion in any respect. Marshs contentions that an equipoise determi
nation reflects juror confusion or inability to decide between life and
death or that the jury may use equipoise as a loophole to shirk its
constitutional duty to render a reasoned, moral sentencing decision
rest on an implausible characterization of the Kansas statutethat a
jurys determination that aggravators and mitigators are in equipoise
is not a decision, much less a decision for death. Weighing is not an
end, but a means to reaching a decision. Kansas instructions clearly
inform the jury that a determination that the evidence is in equipoise
is a decision for death. Pp. 1116.
278 Kan. 520, 102 P. 3d 445, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. SCALIA, J., filed a
concurring opinion. STEVENS, J., filed a dissenting opinion. SOUTER, J.,
filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER,
JJ., joined.
No. 041170
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KANSAS v. MARSH
Opinion of the Court
1 The Kansas Supreme Court found that the trial court committed
reversible error by excluding circumstantial evidence of third-party
guilt connecting Eric Pusch, Marry Anes husband, to the crimes, and,
accordingly ordered a new trial on this ground. 278 Kan., at 528533,
102 P. 3d, at 454457.
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2 Ariz.
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12
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3 The
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6 Additionally,
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No. 041170
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SCALIA, J., concurring
1 The dissent observes that Congress did not initially grant us the full
jurisdiction that the Constitution authorizes, but only allowed us to
review cases rejecting the assertion of governing federal law. See post,
at 34, n. (opinion of STEVENS, J.). That is unsurprising and immate
rial. The original Constitution contained few guarantees of individual
rights against the States, and in clashes of governmental authority
there was small risk that the state courts would erroneously side with
the new Federal Government. (In 1789, when the first Judiciary Act
was passed, the Bill of Rights had not yet been adopted, and once it
was, it did not apply against the States, see Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet. 243 (1833).) Congress would have been most
unlikely to contemplate that state courts would erroneously invalidate
state actions on federal grounds. The early history of our jurisdiction
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SCALIA, J., concurring
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SCALIA, J., concurring
2 Not only are the dissents views on the erroneous imposition of the
death penalty irrelevant to the present case, but the dissents proposed
holding on the equipoise issue will not necessarily work to defendants
advantage. The equipoise provision of the Kansas statute imposes the
death penalty only when the State proves beyond a reasonable doubt
that mitigating factors do not outweigh the aggravators. See ante, at 2.
If we were to disallow Kansass scheme, the State could, as Marsh
freely admits, replace it with a scheme requiring the State to prove by a
mere preponderance of the evidence that the aggravators outweigh the
mitigators. See Tr. of Oral Rearg. 36. I doubt that any defense counsel
would accept this trade. The preponderance rule, while it sounds
better, would almost surely produce more death sentences than an
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SCALIA, J., concurring
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15
But Smith could not leave well enough alone. He had the
gall to sue, under 42 U. S. C. 1983, for false imprison
ment. The Court of Appeals for the Third Circuit affirmed
the jury verdict for the defendants, observing along the
way that our confidence in Smiths convictions is not
diminished in the least. We remain firmly convinced of
the integrity of those guilty verdicts. 210 F. 3d, at 198.
Another exonerated murderer in the Gross study is
Jeremy Sheets, convicted in Nebraska. His accomplice in
the rape and murder of a girl had been secretly tape re
corded; he admitted that he drove the car used in the
murder . . . , and implicated Sheets in the murder. Sheets
v. Butera, 389 F. 3d 772, 775 (CA8 2004). The accomplice
was arrested and eventually described the murder in
greater detail, after which a plea agreement was arranged,
conditioned on the accomplices full cooperation. Ibid.
The resulting taped confession, which implicated Sheets,
was [t]he crucial portion of the States case, State v.
Sheets, 260 Neb. 325, 327, 618 N. W. 2d 117, 122 (2000).
But the accomplice committed suicide in jail, depriving
Sheets of the opportunity to cross-examine him. This, the
Nebraska Supreme Court held, rendered the evidence
inadmissible under the Sixth Amendment. Id., at 328,
335351, 618 N. W. 2d, at 123, 127136. After the central
evidence was excluded, the State did not retry Sheets.
Sheets v. Butera, 389 F. 3d, at 776. Sheets brought a
1983 claim; the U. S. Court of Appeals for the Eighth
Circuit affirmed the District Courts grant of summary
judgment against him. Id., at 780. Sheets also sought the
$1,000 he had been required to pay to the Nebraska Vic
tims Compensation Fund; the State Attorney General
far from concluding that Sheets had been exonerated
and was entitled to the moneyrefused to return it. The
court action left open the possibility that Sheets could be
retried, and the Attorney General did not believe the
reversal on the ground of improper admission of evidence
16
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SCALIA, J., concurring
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No. 041170
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KANSAS v. MARSH
STEVENS, J., dissenting
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STEVENS, J., dissenting
see ante, at 45to take this difference in federal interests into account
in considering whether to grant a petition for writ of certiorari.
JUSTICE SCALIA also fails to explain why there is such an urgent need
to ensure the integrity and uniformity of federal law. Ante, at 2. If
this perceived need is a primary basis for the Constitutions allowing
us to be accorded jurisdiction to review state-court decisions, ibid.
(citing Art. III, 2, cls. 1 and 2), then one would think that the First
Judiciary Act would have given us jurisdiction to review all decisions
based on the Federal Constitution coming out of state courts. But it did
not. Unconcerned about JUSTICE SCALIAs crazy quilt, ante, at 4, the
First Congress only provided us with jurisdiction over such cases
where [there] is drawn in question the validity of a statute of, or an
authority exercised under any State, on the ground of their being
repugnant to the constitution, treaties or laws of the United States, and
the decision is in favour of such their validity. Act of Sept. 24, 1789,
25, 1 Stat. 85 (emphasis added). Not until 1914 did we have jurisdic
tion over decisions from state courts which arguably overprotected
federal constitutional rights at the expense of state laws. Act of Dec.
23, 1914, ch. 2, 38 Stat. 790; see also Delaware v. Van Arsdall, 475 U. S.
673, 694697 (1986) (STEVENS, J., dissenting). Even then, our review was
only by writ of certiorari, whereas until 1988 defendants had a right to
appeal to us in cases in which state courts had upheld the validity of state
statutes challenged on federal constitutional grounds. See 28 U. S. C.
1257 (1982 ed.). In other words, during the entire period between
1789 and 1988, the laws enacted by Congress placed greater weight on
the vindication of federal rights than on the interest in the uniformity
of federal law.
No. 041170
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KANSAS v. MARSH
SOUTER, J., dissenting
respectfully dissent.1
II
More than 30 years ago, this Court explained that the
Eighth Amendments guarantee against cruel and unusual
punishment barred imposition of the death penalty under
statutory schemes so inarticulate that sentencing discre
tion produced wanton and freakish results. See Furman v.
Georgia, 408 U. S. 238, 309310 (1972) (per curiam) (Stew
art, J., concurring) ([T]he Eighth and Fourteenth Amend
ments cannot tolerate the infliction of a sentence of death
under legal systems that permit this unique penalty to be
. . . wantonly and . . . freakishly imposed on a capriciously
selected random handful of individuals). The Constitution
was held to require, instead, a system structured to pro
duce reliable, Woodson v. North Carolina, 428 U. S. 280,
305 (1976) (plurality opinion), rational, Jurek v. Texas, 428
U. S. 262, 276 (1976) (joint opinion of Stewart, Powell, and
STEVENS, JJ.), and rationally reviewable, Woodson, supra,
at 303, determinations of sentence.
Decades of back-and-forth between legislative experi
ment and judicial review have made it plain that the
constitutional demand for rationality goes beyond the
minimal requirement to replace unbounded discretion
with a sentencing structure; a State has much leeway in
devising such a structure and in selecting the terms for
measuring relative culpability, but a system must meet an
ultimate test of constitutional reliability in producing a
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SOUTER, J., dissenting
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III
KANSAS v. MARSH
SOUTER, J., dissenting
3 The authors state the criteria for their study: As we use the term,
exoneration is an official act declaring a defendant not guilty of a
crime for which he or she had previously been convicted. The exonera
tions we have studied occurred in four ways: (1) In forty-two cases
governors (or other appropriate executive officers) issued pardons based
on evidence of the defendants innocence. (2) In 263 cases criminal
charges were dismissed by courts after new evidence of innocence
emerged, such as DNA. (3) In thirty-one cases the defendants were
acquitted at a retrial on the basis of evidence that they had no role in
the crimes for which they were originally convicted. (4) In four cases,
states posthumously acknowledged the innocence of defendants who
had already died in prison . . . . Gross 524 (footnote omitted). The
authors exclude from their list of exonerations any case in which a
dismissal or an acquittal appears to have been based on a decision that
while the defendant was not guilty of the charges in the original convic
tion, he did play a role in the crime and may be guilty of some lesser
crime that is based on the same conduct. For our purposes, a defendant
who is acquitted of murder on retrial, but convicted of involuntary
manslaughter, has not been exonerated. We have also excluded any
case in which a dismissal was entered in the absence of strong evidence
of factual innocence, or in whichdespite such evidencethere was
unexplained physical evidence of the defendants guilt. Ibid., n. 4.