CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, December 18, 2004

Breaking Case News: Kansas Supreme Court Strikes Down State's Death Penalty Law reports:  "Six inmates will be resentenced and avoid execution after the Kansas Supreme Court ruled Friday that the state's death penalty law is unconstitutional. In its 4-3 opinion, the state high court said the 1994 law is flawed because of a provision about how jurors should weigh death penalty arguments during sentencing.  The Kansas law states that when juries find arguments for and against execution equal, their decision should favor a death sentence.  But a majority of the justices said such a requirement violates the Eighth and 14th amendments of the U.S. Constitution, according to court officials.

The Kansas statute's 'express language was clearly intended to mandate the imposition of a death sentence when the existence of aggravating circumstances was not outweighed by any mitigating circumstances,' the opinion states." 

The case is State v. Marsh, and the decision can be found here.  To read the report, click here.  [Mark Godsey]

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CrimProf and Douglas A. Berman both discuss the Kansas Supreme Court (KSC) decision, State v. Marsh. The KSC declared the state's death penalty law unconstitutional, but did not declare the death penalty, if the Kansas legislature could write a good la... [Read More]

Tracked on Dec 19, 2004 4:25:04 AM


As a criminal law prof in Kansas, I thought I'd flag and critique the reasoning of the KSC's 4 to 3 decision in State v. Marsh. The decision has the dramatic effect of invalidating the death penalty in all 7 cases in which it has been returned and precluding use of the death penalty until the Legislature enacts a new statute. And, of course, the new statute may apply only to crimes committed after its effective date.

The Court's reasoning is interesting. In a prior decision handed down a couple of years ago called Kleypas, the KSC held that the KS statute violates Due Process and the Eighth Amendment by providing for death in the event that a jury concludes that aggravating circumstances and mitigating circumstances have equal weight. KSA 21-4624(e), the so-called equipose provision, says that the defendant shall be sentenced to death if aggravating circumstances are "not outweighed" by mitigating circumstances. Ties go to the State.

The question then becomes what is the remedy for this constitutional defect: Invalidate the statute in its entirety, which would nullify all death sentences imposed under it and prevent any resentencing that includes death as an option, or remand cases for resentencing with instructions to the jury that it must find aggravators to outweigh mitigators to return a death sentence? It is here that Marsh goes beyond Kleypas. Contrary to the Kleypas decision, Marsh holds that the entire statute is invalid on its face. The majority reasons that otherwise it would be rewriting the statute in a way that would constitute a usurpation of the legislative function. The majority notes that the Legislature deliberately retained the equipose provision over the objections of the Attorney General, who urged that the version of the statute then under consideration be revised to require that ties go to the defendant.

Whatever one thinks of the wisdom or correctness of Kleypas' holding that the equipose provision is unconstitutional, Marsh, I think, gets it wrong on the remedy. When it enacted the statute, the Legislature thought it had the following choices: 1) A death penalty statute in which ties between aggravators and mitigators are resolved in favor of death, 2) a statute in which ties are resolved against death, and 3) no death penalty statute at all. Kleypas, and now Marsh, say that the first choice is unconstitutional. I don't think that anyone here in KS has any doubt that if the Legislature had had to choose between ## 2 & 3, then it would have chosen #2.

Thjs point can be dressed up by and supported with the language of the statute's severability provision. KSA 21-4630 provides that, "If any provisions of this act or the application thereof . . . is held invalid, the invalidity should not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable." Applications of the death penalty statute in which the jury concludes that aggravators outweigh mitigators can be given effect without running afoul of the Kleypas defect. So, too, can applications in which the jury concludes that mitigators outweigh aggravators, in which case the statute directs that it shall not return a death sentence. The only application that may not be given effect is the statutory directive for the jury to return a death sentence when it concludes that aggravators and mitigators have equal weight. This application must be severed and given no effect. But the severability provision tells us that that does not invalidate the entire statute.

In other words, the Marsh majority ignores the severability provision. And it does so in a way that is contrary to what the Legislature obviously would have chosen had it been presented with the choice Kleypass gives to it. In both of these respects, the Marsh majority ironically engages in the very kind of judicial legislation that it claims its decision is needed to avoid.

I oppose the death penalty, even while I think the KS statute and system are quite different from and less dangerous than, say, Texas'. On the dimension of legal interpretation, however, the KSC decision is pretty clearly wrong.

Posted by: Tom Stacy | Dec 18, 2004 11:50:13 AM


I see your point, but if the equipoise provision is gone, is it not the case that there is no statutory direction to sentencers? In that case, it is not appropriate for the court to ask the legislature to decide what to do? Perhaps rather than patch up the law to save a few cases, the legislature would rather insist on their "ties to the state" statute, and seek a state constitutional amendment or pursue U.S. Supreme Court review of the question. Even when courts can identify broad legislative preferences and goals, I think as a general matter, courts are ill-equipped to translate that sense into specific resolutions of statutory gaps. The very first post on this blog is an article with some related ideas.

Jack Chin

Posted by: Jack Chin | Dec 18, 2004 2:59:29 PM

If the equipose provision is gone there remains statutory direction to sentencers: 1) Impose death when aggravators outweigh mitigators. 2) Do not impose death when mitigators outweigh aggravators. The statute, as enacted, so dictates. Courts don't need to translate broad legislative preferences and goals into some constructive resolution of a statutory gap. They only must give effect to legislative judgments that are indisputably part of the statute and follow the statute's severability provision (which the KSC opinion did not mention).

I don't understand your points about USSC review and a state constitutional amendment. USSC review remains available if the equipose provision is invalidated while the rest of the statute is left intact. Such review would determine whether the KSC was right to hold that "ties go to the State" equipose provision violates the Eighth Amendment and substantive due process. This, in turn, would determine whether all of the 7 persons currently under a sentence of death must be resentenced with proper jury instructions, which make clear that ties go to the D.

A state constitutional amendment would be of no consequence because the KSC invalidated the equipose provision as a matter of federal constitutional law.

Posted by: Tom Stacy | Dec 18, 2004 4:52:50 PM

My point is that some or all of the people now on death row or who might be on death row in the future could be put there because of the equipoise statute. Perhaps the U.S. Supreme Court would say that the equipoise statute is indeed constitutional if they had the chance (unless they've already decided this precise question; if so, I agree that you are right). Yet, if the current statute is employed, should a jury find equipoise in a particular case, the trial court would apply the judicial fix ("tie goes against death") which is directly contrary to the legislative judgment, and which would likely preclude US Supreme Court review. (If the verdict is death, the jury would have found that aggravators outweighed mitigators, so the defense would have no appealable issue, and prosecution appeals of life verdicts would (probably) be prohibited by Bullington.) It seems perfectly understandable instead to return to the legislature the choice of whether to patch up the statute and move on, or stick to their policy and insist on a Supreme Court test. Of course, the legislature could act even if the courts also act, but they are less likely to do so if the problem has been "fixed", and that approach trains the legislature not to take a responsibility that belongs to them.

I don't dismiss the severability clause point, but severability clauses are not enforced to the bitter end. I don't think the legislature should be able to instruct a court to rewrite a statute to make it constitutional, for example. If a court can't conclusively identify which among two or more alteratives would have been chosen by the legislature, it is appropriate (or at least reasonable) to conclude that a severability clause cannot save the statute.

Posted by: Jack Chin | Dec 18, 2004 5:45:27 PM

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