Kansas v. Marsh, No. 04–1170.

CourtUnited States Supreme Court
Writing for the CourtJustice THOMAS delivered the opinion of the Court.
Citation74 USLW 4465,126 S.Ct. 2516,165 L.Ed.2d 429,548 U.S. 163
Decision Date26 June 2006
Docket NumberNo. 04–1170.
PartiesKANSAS, Petitioner, v. Michael Lee MARSH, II.

548 U.S. 163
126 S.Ct.
2516
165 L.Ed.2d 429
74 USLW 4465

KANSAS, Petitioner,
v.
Michael Lee MARSH, II.

No. 04–1170.

Supreme Court of the United States

Argued April 25, 2006.
Decided June 26, 2006.






Negative Treatment Reconsidered
K.S.A. 21–4624(e)

Syllabus*

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. § 21–4624(e) establishes an unconstitutional presumption in favor of death by directing imposition of the death penalty when aggravating and mitigating circumstances are in equipoise. Agreeing, the Kansas Supreme Court concluded that § 21–4624(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 Court's judgment under 28 U.S.C. § 1257. That provision authorizes review of a State's final judgment when a state statute's 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 case's outcome, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 481, 95 S.Ct. 1029, 43 L.Ed.2d 328. Although Marsh will be retried, the State Supreme Court's 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, 104 S.Ct. 1852, 80 L.Ed.2d 381(per curiam). Pp. 2521 – 2522.

2. The State Supreme Court's judgment is not supported by adequate 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, Kleypas itself rested on federal law. In this case, the State Supreme Court chastised the Kleypas court for avoiding the constitutional issue, squarely found § 21–4624(e) unconstitutional on its face, and overruled Kleypas in relevant part. P. 2522.

3. Kansas' capital sentencing statute is constitutional. Pp. 2522 – 2529.

(a) Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511, 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

[548 U.S. 164]

outweigh aggravating circumstances. A fortiori, Kansas' death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the two are in equipoise. Pp. 2522 – 2524.

(b) Even if, as Marsh contends, Walton does not directly control here, general principles in this Court's 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, 92 S.Ct. 2726, 33 L.Ed.2d 346, andGregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859—that a system must rationally narrow the class of death-eligible defendants and must permit a jury to render a reasonable, individualized sentencing determination—a 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 individual-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 Court's mitigation jurisprudence ends here, for the Court has never held that the Constitution requires a specific method for balancing aggravating and mitigating factors. Pp. 2524 – 2525.

(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 State's weighing equation merely channels a jury's discretion by providing criteria by which the jury may determine whether life or death is appropriate. Its system provides the kind of guided discretion sanctioned in, e.g.,Walton, supra. Contrary to Marsh's argument, § 21–4624(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 mitigating circumstances, or if the jury is unable to reach a unanimous decision in any respect. Marsh's contentions that an equipoise determination 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 statute—that a jury's 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

[548 U.S. 165]

inform the jury that a determination that the evidence is in equipoise is a decision for death. Pp. 2525 – 2528.

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, post, p. 2529. STEVENS, J., filed a dissenting opinion, post, p. 2539. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 2541.


Rebecca E. Woodman, Topeka, Kansas, for Respondent.

Theodore B. Olson, Mark A. Perry, Matthew D. McGill, Gibson, Dunn & Crutcher LLP, Washington, D.C., Chad A. Readler, Mary Beth Young, Jones Day, Columbus, Ohio, Phill Kline, Attorney General, Jared S. Maag, Deputy Attorney General, Kristafer Ailslieger, Assistant Attorney General, Topeka, Kansas, for Petitioner.


Justice THOMAS delivered the opinion of the Court.

Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. Kan. Stat. Ann. § 21–4624(e) (1995). We must decide whether this statute, which requires the imposition of the death penalty

[548 U.S. 166]

when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.

I

Respondent Michael Lee Marsh II broke into the home of Marry Ane Pusch and lay in wait for her to return. When Marry Ane entered her home with her 19–month–old daughter, M. P., Marsh repeatedly shot Marry Ane, stabbed her, and slashed her throat. The home was set on fire with the toddler inside, and M.P. burned to death.

The jury convicted Marsh of the capital murder of M. P., the first-degree premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. The jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. On the basis of those findings, the jury sentenced Marsh to death for the capital murder of M.P. The jury also sentenced Marsh to life imprisonment without possibility of parole for 40 years for the first-degree murder of Marry Ane, and consecutive sentences of 51 months' imprisonment for aggravated arson and 34 months' imprisonment for aggravated burglary.

On direct appeal, Marsh challenged § 21–4624(e), which reads:

“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21–4625 ... exist 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.”

Focusing on the phrase “shall be sentenced to death,” Marsh argued that § 21–4624(e) establishes an unconstitutional presumption

[548 U.S. 167]

in favor of death because it directs imposition of the death penalty when aggravating and mitigating circumstances are in equipoise.


The Kansas Supreme Court agreed, and held that the Kansas death penalty statute, § 21–4624(e), is facially unconstitutional. 278 Kan. 520, 534–535, 102 P.3d 445, 458 (2004). The court concluded that the statute's weighing equation violated the Eighth and Fourteenth Amendments of the United States Constitution because, “[i]n the event of equipoise, i.e., the jury's determination that the balance of any aggravating circumstances and any mitigating circumstances weighed equal, the death penalty would be required.” Id., at 534, 102 P.3d, at 457. The Kansas Supreme Court affirmed Marsh's conviction and sentence for aggravated burglary and premeditated murder of Marry Ane, and reversed and remanded for new trial Marsh's convictions for capital murder of M.P. and aggravated arson.1 We granted certiorari, 544 U.S. 1060, 125 S.Ct. 2517, 161 L.Ed.2d 1109 (2005), and now reverse the Kansas Supreme Court's judgment that Kansas' capital sentencing statute, Kan. Stat. Ann. § 21–4624(e), is facially unconstitutional.

II

In addition to granting certiorari to review the constitutionality of Kansas' capital sentencing statute, we also directed the parties to brief and argue: (1) whether we have jurisdiction to review the judgment of...

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233 practice notes
  • Garcia v. Shinn, CV-15-00025-PHX-DGC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • April 20, 2022
    ...(“A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision.”). In Kansas v. Marsh, 548 U.S. 163 (2006), the Supreme Court explained: In aggregate, our precedents confer upon defendants the to present sentencers with information relevant ......
  • U.S. v. Jacques
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • May 4, 2011
    ...based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime." Kansas v. Marsh, 548 U.S. 163, 17374 (2006) (citations omitted). Because the FDPA creates a bifurcated scheme which narrows the class of death-eligible defendants using statutory and......
  • State v. Santiago, SC 17413
    • United States
    • Supreme Court of Connecticut
    • August 25, 2015
    ...legitimate penological objectives, and is not imposed in an impermissibly arbitrary or discriminatory manner. See, e.g., Kansas v. Marsh, 548 U.S. 163, 181, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006); McCleskey v. Kemp, supra, 481 U.S. 291-92. That court, however, never has addressed the spe......
  • Lewis v. Davis, Case No. 1:03-cv-06775-LJO-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 20, 2018
    ...based on a death-eligible defendant's record, personal characteristics, and thePage 271 circumstances of his crime." Kansas v. Marsh, 548 U.S. 163, 173-74 (2006). If the "state system satisfies these requirements," then the "state enjoys a range of discretion in imposing the death penalty, ......
  • Request a trial to view additional results
231 cases
  • Garcia v. Shinn, CV-15-00025-PHX-DGC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • April 20, 2022
    ...(“A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision.”). In Kansas v. Marsh, 548 U.S. 163 (2006), the Supreme Court explained: In aggregate, our precedents confer upon defendants the to present sentencers with information relevant ......
  • U.S. v. Jacques
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • May 4, 2011
    ...based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime." Kansas v. Marsh, 548 U.S. 163, 17374 (2006) (citations omitted). Because the FDPA creates a bifurcated scheme which narrows the class of death-eligible defendants using statutory and......
  • State v. Santiago, SC 17413
    • United States
    • Supreme Court of Connecticut
    • August 25, 2015
    ...legitimate penological objectives, and is not imposed in an impermissibly arbitrary or discriminatory manner. See, e.g., Kansas v. Marsh, 548 U.S. 163, 181, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006); McCleskey v. Kemp, supra, 481 U.S. 291-92. That court, however, never has addressed the spe......
  • Lewis v. Davis, Case No. 1:03-cv-06775-LJO-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 20, 2018
    ...based on a death-eligible defendant's record, personal characteristics, and thePage 271 circumstances of his crime." Kansas v. Marsh, 548 U.S. 163, 173-74 (2006). If the "state system satisfies these requirements," then the "state enjoys a range of discretion in imposing the death penalty, ......
  • Request a trial to view additional results
2 books & journal articles
  • Proportionality and parole.
    • United States
    • University of Pennsylvania Law Review Vol. 160 Nbr. 6, May 2012
    • May 1, 2012
    ...extreme culpability makes them the most deserving of execution." (quoting Roper v. Simmons, 543 U.S. 551, 568 (2005))); Kansas v. Marsh, 548 U.S. 163, 206 (2006) (Souter, J., dissenting) ("[T]he death penalty must be reserved for the 'worst of the worst.'" (citing Roper, 543 U.S. at 568)). ......
  • Adolescent brain science after Graham v. Florida.
    • United States
    • Notre Dame Law Review Vol. 86 Nbr. 2, March 2011
    • March 1, 2011
    ...states so provide). Further, even capital-sentencing states impose LWOP more frequently than death. See, e.g., Kansas v. Marsh, 548 U.S. 163, 178-79 (2006) (noting that Kansas' sentencing scheme "is dominated by the presumption that life imprisonment is the appropriate sentence for a capita......

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