Equipoise, Collective Rights and the Future of the Death Penalty: Kansas V. Marsh

By Barron, Benjamin | Harvard Journal of Law & Public Policy, Fall 2006 | Go to article overview

Equipoise, Collective Rights and the Future of the Death Penalty: Kansas V. Marsh


Barron, Benjamin, Harvard Journal of Law & Public Policy


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. …

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