In a narrow, 5-4 decision made public on Monday, June 26, 2006, the U.S. Supreme Court ruled that Kansas’ death penalty law is constitutional. The ruling resulted from the case of Kansas v. Marsh. The opinion, written by Justice Thomas, says that Kansas’ statute satisfies the constitutional mandates “because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination.” His opinion was supported by Justices Roberts, Scalia, Kennedy, and Alito.
Just Stevens issued a dissenting opinion, in which he argued that the Court should not have granted the writ accepting the case. “The State of Kansas petitioned us to review a ruling of its own Supreme Court on the ground that the Kansas court had granted more protection to a Kansas litigant than the Federal Constitution required. A policy of judicial restraint would allow the highest court of the State to be the final decisionmaker in a case of this kind.”
Justice Souter also filed a dissenting opinion, with Justices Stevens, Ginsburg, and Breyer signing on. Referring to the law’s requirement that when a jury finds aggravating and mitigating factors are equal it must bring a sentence of death, Souter said “A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the Court’s holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.” He referred to the many cases where people have been released from death row based on evidence of innocence, and stated “In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure, and unless application of the Eighth Amendment no longer calls for reasoned moral judgment in substance as well as in form, the Kansas law is unconstitutional.”
Despite the Court’s ruling, Michael Marsh will still get a new trial. In addition to striking down the death penalty statute, the Kansas Supreme Court had granted Marsh a new trial on the grounds that the trial judge erroneously excluded some evidence.