Kansas v. Marsh

(Slip Opinion) OCTOBER TERM, 2005 1

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.

SUPREME COURT OF THE UNITED STATES

Syllabus

KANSAS v. MARSH

CERTIORARI TO THE SUPREME COURT OF KANSAS

No. 04–1170. Argued December 7, 2005—Reargued 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. §21–4624(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 §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. 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 (per curiam). Pp. 3–4.

2. The State Supreme Court’s 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

2 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 §21–4624(e) unconstitutional on its face, and

overruled Kleypas in relevant part. Pp. 4–5.

3. Kansas’ capital sentencing statute is constitutional. Pp. 5–19.

(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. 5–9.

(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, and Gregg v.

Georgia, 428 U. S. 153—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 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 Court’s 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. 9–11.

(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 discre

tion sanctioned in, e.g., Walton, supra. Contrary to Marsh’s argu

ment, §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 mitigat

ing circumstances, or if the jury is unable to reach a unanimous deci

Cite as: 548 U. S. ____ (2006) 3

Syllabus

sion in any respect. Marsh’s 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 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

inform the jury that a determination that the evidence is in equipoise

is a decision for death. Pp. 11–16.

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.

Cite as: 548 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1170

_________________

KANSAS, PETITIONER v. MICHAEL LEE MARSH, II

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS

[June 26, 2006]

JUSTICE THOMAS delivered the opinion of the Court.

Kansas law provides that if a unanimous jury finds that

aggravating circumstances are not outweighed by mitigat

ing 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 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, ag

gravated arson, and aggravated burglary. The jury found

beyond a reasonable doubt the existence of three aggravat

ing circumstances, and that those circumstances were not

outweighed by any mitigating circumstances. On the

2 KANSAS v. MARSH

Opinion of the Court

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 aggra

vated burglary.

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

reads:

“If, by unanimous vote, the jury finds beyond a rea

sonable doubt that one or more of the aggravating cir

cumstances 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 unconstitu

tional presumption 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 weigh

ing equation violated the Eighth and Fourteenth Amend

ments 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 miti

gating 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 mur

der of Marry Ane, and reversed and remanded for new

Cite as: 548 U. S. ____ (2006) 3

Opinion of the Court

trial Marsh’s convictions for capital murder of M. P. and

aggravated arson.1 We granted certiorari, 544 U. S. 1060

(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 constitu

tionality of Kansas’ capital sentencing statute, we also

directed the parties to brief and argue: (1) whether we

have jurisdiction to review the judgment of the Kansas

Supreme Court under 28 U. S. C. §1257, as construed by

Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); and

(2) whether the Kansas Supreme Court’s judgment is

supported by adequate state grounds independent of

federal law. 544 U. S. 1060. Having considered the par

ties’ arguments, we conclude that we have jurisdiction in

this case and that the constitutional issue is properly

before the Court.

A

Title 28 U. S. C. §1257 authorizes this Court to review,

by writ of certiorari, the final judgment of the highest

court of a State when the validity of a state statute is

questioned on federal constitutional grounds. This Court

has determined that the foregoing authorization permits

review of the judgment of the highest court of a State,

even though the state-court proceedings are not yet com

plete, “where the federal claim has been finally decided,

with further proceedings on the merits in the state courts

to come, but in which later review of the federal issue

——————

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 Ane’s husband, to the crimes, and,

accordingly ordered a new trial on this ground. 278 Kan., at 528–533,

102 P. 3d, at 454–457.

4 KANSAS v. MARSH

Opinion of the Court

cannot be had, whatever the ultimate outcome of the

case.” Cox Broadcasting, supra, at 481.

Here, although Marsh will be retried on the capital

murder and aggravated arson charges, the Kansas Su

preme Court’s determination that Kansas’ death penalty

statute is facially unconstitutional is final and binding on

the lower state courts. Thus, the State will be unable to

obtain further review of its death penalty law later in this

case. If Marsh is acquitted of capital murder, double

jeopardy and state law will preclude the State from ap

pealing. If he is reconvicted, the State will be prohibited

under the Kansas Supreme Court’s decision from seeking

the death penalty, and there would be no opportunity for

the State to seek further review of that prohibition. Al

though Marsh argues that a provision of the Kansas

criminal appeals statute, Kan. Stat. Ann. §22–3602(b)

(2003 Cum. Supp.), would permit the State to appeal the

invalidation of Kansas’ death penalty statute, that conten

tion is meritless. That statute provides for limited appeal

in only four enumerated circumstances, none of which

apply here. We have deemed lower court decisions final

for 28 U. S. C. §1257 purposes in like circumstances, see

Florida v. Meyers, 466 U. S. 380 (1984) (per curiam); South

Dakota v. Neville, 459 U. S. 553 (1983); New York v.

Quarles, 467 U. S. 649 (1984), and do so again here.

B

Nor is the Kansas Supreme Court’s decision supported

by adequate and independent state grounds. Marsh main

tains that the Kansas Supreme Court’s decision was based

on the severability of §21–4624(e) under state law, and not

the constitutionality of that provision under federal law,

the latter issue having been resolved by the Kansas Su

preme Court in State v. Kleypas, 272 Kan. 894, 40 P. 3d

139 (2001). Marsh’s argument fails.

Kleypas, itself, rested on federal law. See id., at 899–

Cite as: 548 U. S. ____ (2006) 5

Opinion of the Court

903, 40 P. 3d, at 166–167. In rendering its determination

here, the Kansas Supreme Court observed that Kleypas,

“held that the weighing equation in K. S. A. 21–4624(e) as

written was unconstitutional under the Eighth and Four

teenth Amendments” as applied to cases in which aggra

vating evidence and mitigating evidence are equally bal

anced. 278 Kan., at 534, 102 P. 3d, at 457. In this case,

the Kansas Supreme Court chastised the Kleypas court for

avoiding the constitutional issue of the statute’s facial

validity, squarely held that §21–4624(e) is unconstitu

tional on its face, and overruled the portion of Kleypas

upholding the statute through the constitutional avoid

ance doctrine and judicial revision. 278 Kan., at 534–535,

539–542, 102 P. 3d, at 458, 462. As in Kleypas, the Kan

sas Supreme Court clearly rested its decision here on the

Eighth and Fourteenth Amendments to the United States

Constitution. We, therefore, have jurisdiction to review its

decision. See Michigan v. Long, 463 U. S. 1032, 1040–

1041 (1983).

III

This case is controlled by Walton v. Arizona, 497 U. S.

639 (1990), overruled on other grounds, Ring v. Arizona,

536 U. S. 584 (2002). In that case, a jury had convicted

Walton of a capital offense. At sentencing, the trial judge

found the existence of two aggravating circumstances and

that the mitigating circumstances did not call for leniency,

and sentenced Walton to death. 497 U. S., at 645. The

Arizona Supreme Court affirmed, and this Court granted

certiorari to resolve the conflict between the Arizona

Supreme Court’s decision in State v. Walton, 159 Ariz.

571, 769 P. 2d 1017 (1989) (en banc) (holding the Arizona

death penalty statute constitutional), and the Ninth Cir

cuit’s decision in Adamson v. Ricketts, 865 F. 2d 1011,

1043–1044 (1988) (en banc) (finding the Arizona death

penalty statute unconstitutional because, “in situations

6 KANSAS v. MARSH

Opinion of the Court

where the mitigating and aggravating circumstances are

in balance, or, where the mitigating circumstances give

the court reservation but still fall below the weight of the

aggravating circumstances, the statute bars the court

from imposing a sentence less than death”). See Walton,

497 U. S., at 647.

Consistent with the Ninth Circuit’s conclusion in

Adamson, Walton argued to this Court that the Arizona

capital sentencing system created an unconstitutional

presumption in favor of death because it “tells an Arizona

sentencing judge who finds even a single aggravating

factor, that death must be imposed, unless—as the Ari

zona Supreme Court put it in Petitioner’s case—there are

‘outweighing mitigating factors.’ ” Brief for Petitioner in

Walton v. Arizona, O. T. 1989, No. 88–7351, p. 33; see also

id., at 34 (arguing that the statute is unconstitutional

because the defendant “ ‘must . . . bear the risk of nonper

suasion that any mitigating circumstance will not out

weigh the aggravating circumstance’ ” (alteration omit

ted)). Rejecting Walton’s argument, see 497 U. S., at 650,

651, this Court stated:

“So long as a State’s method of allocating the burdens

of proof does not lessen the State’s burden to prove

every element of the offense charged, or in this case to

prove the existence of aggravating circumstances, a

defendant’s constitutional rights are not violated by

placing on him the burden of proving mitigating cir

cumstances sufficiently substantial to call for leni

ency.” Id., at 650.

This Court noted that, as a requirement of individualized

sentencing, a jury must have the opportunity to consider

all evidence relevant to mitigation, and that a state stat

ute that permits a jury to consider any mitigating evi

dence comports with that requirement. Id., at 652 (citing

Blystone v. Pennsylvania, 494 U. S. 299, 307 (1990)). The

Cite as: 548 U. S. ____ (2006) 7

Opinion of the Court

Court also pointedly observed that while the Constitution

requires that a sentencing jury have discretion, it does not

mandate that discretion be unfettered; the States are free

to determine the manner in which a jury may consider

mitigating evidence. 497 U. S., at 652 (citing Boyde v.

California, 494 U. S. 370, 374 (1990)). So long as the

sentencer is not precluded from considering relevant

mitigating evidence, a capital sentencing statute cannot be

said to impermissibly, much less automatically, impose

death. 497 U. S., at 652 (citing Woodson v. North Caro

lina, 428 U. S. 280 (1976) (plurality opinion), and Roberts

v. Louisiana, 428 U. S. 325 (1976) (plurality opinion)).

Indeed, Walton suggested that the only capital sentencing

systems that would be impermissibly mandatory were

those that would “automatically impose death upon con

viction for certain types of murder.” 497 U. S., at 652.

Contrary to Marsh’s contentions and the Kansas Su

preme Court’s conclusions, see 278 Kan., at 536–538, 102

P. 3d, at 459, the question presented in the instant case

was squarely before this Court in Walton. Though, as

Marsh notes, the Walton Court did not employ the term

“equipoise,” that issue undeniably gave rise to the ques

tion this Court sought to resolve, and it was necessarily

included in Walton’s argument that the Arizona system

was unconstitutional because it required the death pen

alty unless the mitigating circumstances outweighed the

aggravating circumstances. See supra, at 5. Moreover,

the dissent in Walton reinforces what is evident from the

opinion and the judgment of the Court—that the equipoise

issue was before the Court, and that the Court resolved

the issue in favor of the State. Indeed, the “equipoise”

issue was, in large measure, the basis of the Walton dis

sent. See 497 U. S., at 687–688 (opinion of Blackmun, J.)

(“If the mitigating and aggravating circumstances are in

equipoise, the [Arizona] statute requires that the trial

judge impose capital punishment. The assertion that a

8 KANSAS v. MARSH

Opinion of the Court

sentence of death may be imposed in such a case runs

directly counter to the Eighth Amendment requirement

that a capital sentence must rest upon a ‘determination

that death is the appropriate punishment in a specific

case’ ”). Thus, although Walton did not discuss the equi

poise issue explicitly, that issue was resolved by its

holding. Cf. post, at 2 (STEVENS, J., dissenting); cf. also

post, at 2, n. 1 (SOUTER, J., dissenting).

Our conclusion that Walton controls here is reinforced

by the fact that the Arizona and Kansas statutes are

comparable in important respects. Similar to the express

language of the Kansas statute, the Arizona statute at

issue in Walton has been consistently construed to mean

that the death penalty will be imposed upon a finding that

aggravating circumstances are not outweighed by mitigat

ing circumstances.2 See State v. Ysea, 191 Ariz. 372, 375,

956 P. 2d 499, 502 (1998) (en banc); State v. Gretzler, 135

Ariz. 42, 55, 659 P. 2d 1, 14 (1983) (in banc); Adamson,

865 F. 2d, at 1041–1043. Like the Kansas statute, the

Arizona statute places the burden of proving the existence

of aggravating circumstances on the State, and both stat

utes require the defendant to proffer mitigating evidence.

The statutes are distinct in one respect. The Arizona

statute, once the State has met its burden, tasks the de

fendant with the burden of proving sufficient mitigating

circumstances to overcome the aggravating circumstances

and that a sentence less than death is therefore war

ranted. In contrast, the Kansas statute requires the State

——————

2 Ariz.

Rev. Stat. Ann. §13–703(E) (Supp. 2005) provides:

“In determining whether to impose a sentence of death or life impris

onment, the trier of fact shall take into account the aggravating and

mitigating circumstances that have been proven. The trier of fact shall

impose a sentence of death if the trier of fact finds one or more of the

aggravating circumstances enumerated in subsection F of this section

and then determines that there are no mitigating circumstances

sufficiently substantial to call for leniency.”

Cite as: 548 U. S. ____ (2006) 9

Opinion of the Court

to bear the burden of proving to the jury, beyond a reason

able doubt, that aggravators are not outweighed by miti

gators and that a sentence of death is therefore appropri

ate; it places no additional evidentiary burden on the

capital defendant. This distinction operates in favor of

Kansas capital defendants. Otherwise the statutes func

tion in substantially the same manner and are sufficiently

analogous for our purposes. Thus, Walton is not distin

guishable from the instant case.

Accordingly, the reasoning of Walton requires approval

of the Kansas death penalty statute. At bottom, in

Walton, the Court held that a state death penalty statute

may place the burden on the defendant to prove that

mitigating circumstances outweigh aggravating circum

stances. A fortiori, Kansas’ death penalty statute, consis

tent with the Constitution, may direct imposition of the

death penalty when the State has proved beyond a rea

sonable doubt that mitigators do not outweigh aggrava

tors, including where the aggravating circumstances and

mitigating circumstances are in equipoise.

IV

A

Even if, as Marsh contends, Walton does not directly

control, the general principles set forth in our death pen

alty jurisprudence would lead us to conclude that the

Kansas capital sentencing system is constitutionally

permissible. Together, our decisions in Furman v. Geor

gia, 408 U. S. 238 (1972) (per curiam), and Gregg v. Geor

gia, 428 U. S. 153 (1976) (joint opinion of Stewart, Powell,

and STEVENS, JJ.), establish that a state capital sentenc

ing system must: (1) rationally narrow the class of death-

eligible defendants; and (2) permit a jury to render a

reasoned, individualized sentencing determination based

on a death-eligible defendant’s record, personal character

istics, and the circumstances of his crime. See id., at 189.

10 KANSAS v. MARSH

Opinion of the Court

So long as a state system satisfies these requirements, our

precedents establish that a State enjoys a range of discre

tion in imposing the death penalty, including the manner

in which aggravating and mitigating circumstances are to

be weighed. See Franklin v. Lynaugh, 487 U. S. 164, 179

(1988) (plurality opinion) (citing Zant v. Stephens, 462

U. S. 862, 875–876, n. 13 (1983)).

The use of mitigation evidence is a product of the re

quirement of individualized sentencing. See Graham v.

Collins, 506 U. S. 461, 484–489 (1993) (THOMAS, J., concur

ring) (discussing the development of mitigation precedent).

In Lockett v. Ohio, 438 U. S. 586, 604 (1978), a plurality of

this Court held that “the Eighth and Fourteenth Amend

ments require that the sentencer . . . not be precluded from

considering, as a mitigating factor, any aspect of a defen

dant’s character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sen

tence less than death.” (Emphasis in original.) The Court

has held that the sentencer must have full access to this

“‘highly relevant’” information. Id., at 603 (alteration omit

ted) (quoting Williams v. New York, 337 U. S. 241, 247

(1949)). Thus, in Lockett, the Court struck down the Ohio

death penalty statute as unconstitutional because, by limit

ing a jury’s consideration of mitigation to three factors

specified in the statute, it prevented sentencers in capital

cases from giving independent weight to mitigating evidence

militating in favor of a sentence other than death. 438

U. S., at 604–605. Following Lockett, in Eddings v. Okla

homa, 455 U. S. 104 (1982), a majority of the Court held

that a sentencer may not categorically refuse to consider

any relevant mitigating evidence. Id., at 114; see also Skip

per v. South Carolina, 476 U. S. 1, 3–4 (1986) (discussing

Eddings).

In aggregate, our precedents confer upon defendants the

right to present sentencers with information relevant to

the sentencing decision and oblige sentencers to consider

Cite as: 548 U. S. ____ (2006) 11

Opinion of the Court

that information in determining the appropriate sentence.

The thrust of our mitigation jurisprudence ends here.

“[W]e have never held that a specific method for balancing

mitigating and aggravating factors in a capital sentencing

proceeding is constitutionally required.” Franklin, supra,

at 179 (citing Zant, supra, at 875–876, n. 13). Rather, this

Court has held that the States enjoy “ ‘a constitutionally

permissible range of discretion in imposing the death

penalty.’ ” Blystone, 494 U. S., at 308 (quoting McCleskey

v. Kemp, 481 U. S. 279, 305–306 (1987)). See also 494

U. S., at 307 (stating that “[t]he requirement of individual

ized sentencing in capital cases is satisfied by allowing the

jury to consider all relevant mitigating evidence”); Gra

ham, supra, at 490 (THOMAS, J., concurring) (stating that

“[o]ur early mitigating cases may thus be read as doing

little more than safeguarding the adversary process in

sentencing proceedings by conferring on the defendant an

affirmative right to place his relevant evidence before the

sentencer”).

B

The Kansas death penalty statute satisfies the constitu

tional 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. It does not

interfere, in a constitutionally significant way, with a

jury’s ability to give independent weight to evidence of

fered in mitigation.

Kansas’ procedure narrows the universe of death-

eligible defendants consistent with Eighth Amendment

requirements. Under Kansas law, imposition of the death

penalty is an option only after a defendant is convicted of

capital murder, which requires that one or more specific

elements beyond intentional premeditated murder be

found. See Kan. Stat. Ann. §21–3439. Once convicted of

12 KANSAS v. MARSH

Opinion of the Court

capital murder, a defendant becomes eligible for the death

penalty only if the State seeks a separate sentencing

hearing, §§21–4706(c) (2003 Cum. Supp.), 21–4624(a);

App. 23 (Instruction No. 2), and proves beyond a reason

able doubt the existence of one or more statutorily enu

merated aggravating circumstances. Kan. Stat. Ann.

§§21–4624(c), (e), and 21–4625; App. 24 (Instruction No.

3).

Consonant with the individualized sentencing require

ment, a Kansas jury is permitted to consider any evidence

relating to any mitigating circumstance in determining

the appropriate sentence for a capital defendant, so long

as that evidence is relevant. §21–4624(c). Specifically,

jurors are instructed:

“A mitigating circumstance is that which in fairness

or mercy may be considered as extenuating or reduc

ing the degree of moral culpability or blame or which

justify a sentence of less than death, although it does

not justify or excuse the offense. The determination of

what are mitigating circumstances is for you as jurors

to resolve under the facts and circumstances of this

case.

“The appropriateness of the exercise of mercy can

itself be a mitigating factor you may consider in de

termining whether the State has proved beyond a rea

sonable doubt that the death penalty is warranted.”

Id., at 24 (Instruction No. 4).3

Jurors are then apprised of, but not limited to, the factors

that the defendant contends are mitigating. Id., at 25–26.

They are then instructed that “[e]ach juror must consider

every mitigating factor that he or she individually finds to

——————

3 The “mercy” jury instruction alone forecloses the possibility of

Furman-type error as it “eliminate[s] the risk that a death sentence

will be imposed in spite of facts calling for a lesser penalty.” Post, at 4

(SOUTER, J., dissenting).

Cite as: 548 U. S. ____ (2006) 13

Opinion of the Court

exist.” Id., at 26.

Kansas’ weighing equation, ibid. (Instruction No. 5),

merely channels a jury’s discretion by providing it with

criteria by which it may determine whether a sentence of

life or death is appropriate. The system in Kansas pro

vides the type of “ ‘guided discretion,’ ” Walton, 497 U. S.,

at 659 (citing Gregg, 428 U. S., at 189), we have sanc

tioned in Walton, Boyde, and Blystone.

Indeed, in Boyde, this Court sanctioned a weighing jury

instruction that is analytically indistinguishable from the

Kansas jury instruction under review today. The Boyde

jury instruction read:

“ ‘If you conclude that the aggravating circumstances

outweigh the mitigating circumstances, you shall im

pose a sentence of death. However, if you determine

that the mitigating circumstances outweigh the ag

gravating circumstances, you shall impose a sentence

of confinement in the state prison for life without the

possibility of parole.’ ” 494 U. S., at 374 (emphasis in

original).

Boyde argued that the mandatory language of the instruc

tion prevented the jury from rendering an individualized

sentencing determination. This Court rejected that argu

ment, concluding that it was foreclosed by Blystone, where

the Court rejected a nearly identical challenge to the

Pennsylvania death penalty statute. 494 U. S., at 307.4

In so holding, this Court noted that the mandatory lan

guage of the statute did not prevent the jury from consid

ering all relevant mitigating evidence. Boyde, 494 U. S.,

at 374. Similarly here, §21–4624(e) does not prevent a

——————

4 In Blystone, the Pennsylvania statute authorized imposition of a

death sentence if the jury concluded “that the aggravating circum

stances outweigh[ed] the mitigating circumstances present in the

particular crime committed by the particular defendant, or that there

[were] no such mitigating circumstances.” 494 U. S., at 305.

14 KANSAS v. MARSH

Opinion of the Court

Kansas jury from considering mitigating evidence.

Marsh’s argument that the Kansas provision is impermis

sibly mandatory is likewise foreclosed.5

Contrary to Marsh’s argument, §21–4624(e) does not

create a general presumption in favor of the death penalty

in the State of Kansas. Rather, the Kansas capital sen

tencing system is dominated by the presumption that life

imprisonment is the appropriate sentence for a capital

conviction. If the State fails to meet its burden to demon

strate the existence of an aggravating circumstance(s)

beyond a reasonable doubt, a sentence of life imprison

ment must be imposed. §21–4624(e); App. 27 (Instruction

No. 10). If the State overcomes this hurdle, then it bears

the additional burden of proving beyond a reasonable

doubt that aggravating circumstances are not outweighed

by mitigating circumstances. Ibid. (Instruction No. 10);

id., at 26 (Instruction No. 5). Significantly, although the

defendant appropriately bears the burden of proffering

mitigating circumstances—a burden of production—he

never bears the burden of demonstrating that mitigating

circumstances outweigh aggravating circumstances.

——————

5 Contrary to JUSTICE SOUTER’s assertion, the Court’s decisions in

Boyde and Blystone did not turn on the “predominance of the aggrava

tors” in those cases. Post, at 3 (dissenting opinion.). Rather, those

decisions plainly turned on the fact that the mandatory language of the

respective statutes did not prevent the sentencing jury from “con

sider[ing] and giv[ing] effect to all relevant mitigating evidence.”

Blystone, supra, at 305. See also Boyde, 494 U. S., at 377 (“[T]he legal

principle we expounded in Blystone clearly requires rejection of Boyde’s

claim as well, because the mandatory language of [California jury

instruction] 8.84.2 is not alleged to have interfered with the considera

tion of mitigating evidence”). The language of the Kansas statute at

issue here no more “dictate[s] death,” post, at 3, than the mandatory

language at issue in Boyde and Blystone. See Blystone, supra, at 305

(explaining that the Pennsylvania statute is not “ ‘mandatory’ as that

term was understood in Woodson [v. North Carolina, 428 U. S. 280

(1976)] or Roberts [v. Louisiana, 428 U. S. 325 (1976)]” because “[d]eath is

not automatically imposed upon conviction for certain types of murder”).

Cite as: 548 U. S. ____ (2006) 15

Opinion of the Court

Instead, the State always has the burden of demonstrating

that mitigating evidence does not outweigh aggravating

evidence. Absent the State’s ability to meet that burden,

the default is life imprisonment. Moreover, if the jury is

unable to reach a unanimous decision—in any respect—a

sentence of life must be imposed. §21–4624(c); App. 28

(Instruction No. 12). This system does not create a pre

sumption that death is the appropriate sentence for capi

tal murder.6

Nor is there any force behind Marsh’s contention that

an equipoise determination reflects juror confusion or

inability to decide between life and death, or that a jury

may use equipoise as a loophole to shirk its constitutional

duty to render a reasoned, moral decision, see California

v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concur

ring), regarding whether death is an appropriate sentence

for a particular defendant. Such an argument rests 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—and thus misses the mark. Cf. post, at 4–5

(SOUTER, J., dissenting) (arguing that Kansas’ weighing

equation undermines individualized sentencing). Weigh

ing is not an end; it is merely a means to reaching a deci

sion. The decision the jury must reach is whether life or

death is the appropriate punishment. The Kansas jury

instructions clearly inform the jury that a determination

that the evidence is in equipoise is a decision for—not a

——————

6 Additionally, Marsh’s argument turns on reading §21–4624(e) in

isolation. Such a reading, however, is contrary to “ ‘the well-established

proposition that a single instruction to a jury may not be judged in

artificial isolation, but must be viewed in the context of the overall

charge.’ ” Boyde v. California, 494 U. S. 370, 378 (1990) (citing Boyd v.

United States, 271 U. S. 104, 107 (1926)). The constitutionality of a

State’s death penalty system turns on review of that system in context.

We thus reject his disengaged interpretation of §21–4624(e).

16 KANSAS v. MARSH

Opinion of the Court

presumption in favor of—death. Kansas jurors, presumed

to follow their instructions, are made aware that: a deter

mination that mitigators outweigh aggravators is a deci

sion that a life sentence is appropriate; a determination

that aggravators outweigh mitigators or a determination

that mitigators do not outweigh aggravators—including a

finding that aggravators and mitigators are in balance—is

a decision that death is the appropriate sentence; and an

inability to reach a unanimous decision will result in a

sentence of life imprisonment. So informed, far from the

abdication of duty or the inability to select an appropriate

sentence depicted by Marsh and JUSTICE SOUTER, a jury’s

conclusion that aggravating evidence and mitigating

evidence are in equipoise is a decision for death and is

indicative of the type of measured, normative process in

which a jury is constitutionally tasked to engage when

deciding the appropriate sentence for a capital defendant.

V

JUSTICE SOUTER argues (hereinafter the dissent) that

the advent of DNA testing has resulted in the “exonera

tio[n]” of “innocent” persons “in numbers never imagined

before the development of DNA tests.” Post, at 5–6.

Based upon this “new empirical demonstration of how

‘death is different,’ ” post, at 8, the dissent concludes that

Kansas’ sentencing system permits the imposition of the

death penalty in the absence of reasoned moral judgment.

But the availability of DNA testing, and the questions it

might raise about the accuracy of guilt-phase determina

tions in capital cases, is simply irrelevant to the question

before the Court today, namely, the constitutionality of

Kansas’ capital sentencing system. Accordingly, the accu

racy of the dissent’s factual claim that DNA testing has

established the “innocence” of numerous convicted persons

under death sentences—and the incendiary debate it

Cite as: 548 U. S. ____ (2006) 17

Opinion of the Court

invokes—is beyond the scope of this opinion.7

The dissent’s general criticisms against the death pen

alty are ultimately a call for resolving all legal disputes in

capital cases by adopting the outcome that makes the

death penalty more difficult to impose. While such a

bright-line rule may be easily applied, it has no basis in

law. Indeed, the logical consequence of the dissent’s ar

gument is that the death penalty can only be just in a

system that does not permit error. Because the criminal

justice system does not operate perfectly, abolition of the

death penalty is the only answer to the moral dilemma the

dissent poses. This Court, however, does not sit as a

moral authority. Our precedents do not prohibit the

States from authorizing the death penalty, even in our

imperfect system. And those precedents do not empower

this Court to chip away at the States’ prerogatives to do so

on the grounds the dissent invokes today.

* * *

We hold that the Kansas capital sentencing system,

which directs imposition of the death penalty when a jury

finds that aggravating and mitigating circumstances are

——————

7 But see The Penalty of Death, in Debating the Death Penalty:

Should America Have Capital Punishment? The Experts on Both Sides

Make Their Best Case, 117, 127–132, 134, (H. Bedau & P. Cassell eds.

2004). See also Comment, Protecting the Innocent: A Response to the

Bedau-Radelet Study, 41 Stan. L. Rev. 121, 126–145 (1988) (examining

accuracy in use of the term “innocent” in death penalty studies and

literature); Marquis, The Myth of Innocence, 95 J. Crim. L. & C. 501,

508 (2005) ( “[w]ords like ‘innocence’ convey enormous moral authority

and are intended to drive the public debate by appealing to a deep and

universal revulsion at the idea that someone who is genuinely blame

less could wrongly suffer for a crime in which he had no involvement”);

People v. Smith, 185 Ill. 2d 532, 545, 708 N. E. 2d 365, 371 (1999)

(“[w]hile a not guilty finding is sometimes equated with a finding of

innocence, that conclusion is erroneous. . . . Rather, [a reversal of

conviction] indicates simply that the prosecution has failed to meet its

burden of proof”).

18 KANSAS v. MARSH

Opinion of the Court

in equipoise, is constitutional. Accordingly, we reverse the

judgment of the Kansas Supreme Court, and remand the

case for further proceedings not inconsistent with this

opinion.

It is so ordered.

Cite as: 548 U. S. ____ (2006) 1

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1170

_________________

KANSAS, PETITIONER v. MICHAEL LEE MARSH, II

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS

[June 26, 2006]

JUSTICE SCALIA, concurring.

I join the opinion of the Court. I write separately to

clarify briefly the import of my joinder, and to respond at

somewhat greater length first to JUSTICE STEVENS’ con

tention that this case, and cases like it, do not merit our

attention, and second to JUSTICE SOUTER’s claims about

risks inherent in capital punishment.

I

Part III of the Court’s opinion—which makes plain why

Walton v. Arizona, 497 U. S. 639 (1990), controls this

case—would be sufficient to reverse the judgment below. I

nonetheless join Part IV as well, which describes why

Kansas’s death penalty statute easily satisfies even a

capital jurisprudence as incoherent as ours has become.

In doing so, I do not endorse that incoherence, but adhere

to my previous statement that “I will not . . . vote to up

hold an Eighth Amendment claim that the sentencer’s

discretion has been unlawfully restricted.” Id., at 673

(concurring in part and concurring in judgment).

II

JUSTICE STEVENS’ dissent gives several reasons why this

case, and any criminal case in which the State is the

petitioner, does not deserve our attention. “ ‘[N]o rule of

law,’ ” he says, “ ‘commanded the Court to grant certio

rari.’ ” Post, at 3 (quoting California v. Ramos, 463 U. S.

2 KANSAS v. MARSH

SCALIA, J., concurring

992, 1031 (1983) (STEVENS, J., dissenting)). But that is

true, of course, of almost our entire docket; it is in the very

nature of certiorari jurisdiction. Also self-evident, since

the jurisdiction of the Kansas Supreme Court ends at the

borders of that State, is the fact that “ ‘[n]o other State

would have been required to follow the [Kansas] precedent

if it had been permitted to stand.’ ” Post, at 3 (STEVENS, J.,

dissenting) (quoting Ramos, supra, at 1031 (STEVENS, J.,

dissenting)). But if this signaled the impropriety of grant

ing certiorari, we would never review state-court determi

nations of federal law, even though they patently contra

dict (as the determination below does) the holdings of

other state courts and Federal Courts of Appeals, compare

278 Kan. 520, 534–537, 102 P. 3d 445, 457–459 (2004)

(case below), and State v. Kleypas, 272 Kan. 894, 1005–

1007, 40 P. 3d 139, 225–226 (2001), with, e.g., State v.

Hoffman, 123 Idaho 638, 646–647, 851 P. 2d 934, 942–943

(1993), and Jones v. Dugger, 928 F. 2d 1020, 1029 (CA11

1991)—and indeed, even when they patently contradict

our own decisions. Our principal responsibility under

current practice, however, and a primary basis for the

Constitution’s allowing us to be accorded jurisdiction to

review state-court decisions, see Art. III, §2, cls. 1 and 2, is

to ensure the integrity and uniformity of federal law.1 See

——————

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 3–4, 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

Cite as: 548 U. S. ____ (2006) 3

SCALIA, J., concurring

this Court’s Rule 10(b), (c). Fulfillment of this responsibil

ity is, to put it mildly, an adequate answer to the charge

that “ ‘[n]othing more than an interest in facilitating the

imposition of the death penalty in [Kansas] justified this

Court’s exercise of its discretion to review the judgment of

the [Kansas] Supreme Court.’ ” Post, at 3 (STEVENS, J.,

dissenting) (quoting Ramos, supra, at 1031 (STEVENS, J.,

dissenting)).

The dissent’s assertion that our holding in Ramos was

“ironi[c],” post, at 2 (opinion of STEVENS, J.), rests on a

misguided view of federalism and, worse still, of a republi

can form of government. Only that can explain the dis

sent’s suggestion that Ramos’s reversal of a state-court

determination somehow undermined state authority. The

California Supreme Court had ruled that a jury instruc

tion inserted into the state penal code by voter initiative,

see 463 U. S., at 995, n. 4, was invalid as a matter of fed

eral constitutional law. See id., at 996, 997, n. 7. When

state courts erroneously invalidate actions taken by the

people of a State (through initiative or through normal

operation of the political branches of their state govern

ment) on state-law grounds, it is generally none of our

business; and our displacing of those judgments would

indeed be an intrusion upon state autonomy. But when

state courts erroneously invalidate such actions because

——————

assuredly does not support the dissent’s awarding of special preference

to the constitutional rights of criminal defendants. Even with respect

to federal defendants (who did enjoy the protections of the Bill of

Rights), “during the first 100 years of the Court’s existence there was

no provision made by Congress for Supreme Court review of federal

criminal convictions, an omission that Congress did not remedy until

1889 and beyond.” R. Stern, E. Gressman, S. Shapiro, & K. Geller,

Supreme Court Practice 66 (8th ed. 2002). In any case, present law is

plain. The 1988 statute cited by the dissent and forming the basis of

our current certiorari jurisdiction places States and defendants in

precisely the same position. They are both entitled to petition for our

review.

4 KANSAS v. MARSH

SCALIA, J., concurring

they believe federal law requires it—and especially when

they do so because they believe the Federal Constitution

requires it—review by this Court, far from undermining

state autonomy, is the only possible way to vindicate it.

When a federal constitutional interdict against the duly

expressed will of the people of a State is erroneously pro

nounced by a State’s highest court, no authority in the

State—not even a referendum agreed to by all its citi

zens—can undo the error. Thus, a general presumption

against such review displays not respect for the States,

but a complacent willingness to allow judges to strip the

people of the power to govern themselves. When we cor

rect a state court’s federal errors, we return power to the

State, and to its people.

That is why our decision in Ramos was necessary. Our

solemn responsibility is not merely to determine whether

a State Supreme Court “ha[s] adequately protected [a

defendant’s] rights under the Federal Constitution,” post,

at 2 (STEVENS, J., dissenting). It is to ensure that when

courts speak in the name of the Federal Constitution, they

disregard none of its guarantees—neither those that

assure the rights of criminal defendants, nor those that

assure what Justice Black, in his famous dissent in In re

Winship, 397 U. S. 358, 385 (1970), called “the most fun

damental individual liberty of our people—the right of

each man to participate in the self-government of his

society.” Turning a blind eye to federal constitutional

error that benefits criminal defendants, allowing it to

permeate in varying fashion each state Supreme Court’s

jurisprudence, would change the uniform “law of the land”

into a crazy quilt. And on top of it all, of course, what the

dissent proposes avowedly favors one party to the case:

When a criminal defendant loses a questionable constitu

tional point, we may grant review; when the State loses,

we must deny it. While it might be appropriate for Con

gress to place such a thumb upon the scales of our power

Cite as: 548 U. S. ____ (2006) 5

SCALIA, J., concurring

to review, it seems to me a peculiar mode of decisionmak

ing for judges sworn to “impartially discharge . . . all the

duties” of their office, 28 U. S. C. §453.

Our decision to grant certiorari is guided by the consid

erations set forth in Rule 10. None of them turns on the

identity of the party that the asserted misapplication of

federal law has harmed. When state legislation is

thwarted—not on the basis of state law, but on the basis of

a questionable application of the Federal Constitution or

laws—I shall continue to vote to grant the resulting peti

tion for certiorari.

III

Finally, I must say a few words (indeed, more than a

few) in response to Part III of JUSTICE SOUTER’s dissent.

This contains the disclaimer that the dissenters are not

(yet) ready to “generaliz[e] about the soundness of capital

sentencing across the country,” post, at 9; but that is in

fact precisely what they do. The dissent essentially argues

that capital punishment is such an undesirable institu

tion—it results in the condemnation of such a large num

ber of innocents—that any legal rule which eliminates its

pronouncement, including the one favored by the dissent

ers in the present case, should be embraced. See ibid.

As a general rule, I do not think it appropriate for

judges to heap either praise or censure upon a legislative

measure that comes before them, lest it be thought that

their validation, invalidation, or interpretation of it is

driven by their desire to expand or constrict what they

personally approve or disapprove as a matter of policy. In

the present case, for example, people might leap to the

conclusion that the dissenters’ views on whether Kansas’s

equipoise rule is constitutional are determined by their

personal disapproval of an institution that has been de

mocratically adopted by 38 States and the United States.

But of course that requires no leap; just a willingness to

6 KANSAS v. MARSH

SCALIA, J., concurring

take the dissenters at their word. For as I have described,

the dissenters’ very argument is that imposition of the

death penalty should be minimized by invalidation of the

equipoise rule because it is a bad, “risk[y],” and “haz

ard[ous]” idea, ibid. A broader conclusion that people

should derive, however (and I would not consider this

much of a leap either), is that the dissenters’ encumbering

of the death penalty in other cases, with unwarranted

restrictions neither contained in the text of the Constitu

tion nor reflected in two centuries of practice under it, will

be the product of their policy views—views not shared by

the vast majority of the American people. The dissenters’

proclamation of their policy agenda in the present case is

especially striking because it is nailed to the door of the

wrong church—that is, set forth in a case litigating a rule

that has nothing to do with the evaluation of guilt or

innocence. There are, of course, many cases in which the

rule at issue does serve that function, see, e.g., House v.

Bell, 547 U. S. ___ (2006). (Marsh himself has earned a

remand by application of one such rule, see ante, at 2–3.)

But as the Court observes, see ante, at 16–17, guilt or inno

cence is logically disconnected to the challenge in this case

to sentencing standards. The only time the equipoise pro

vision is relevant is when the State has proved a defen

dant guilty of a capital crime.2

——————

2 Not only are the dissent’s views on the erroneous imposition of the

death penalty irrelevant to the present case, but the dissent’s 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 Kansas’s 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

Cite as: 548 U. S. ____ (2006) 7

SCALIA, J., concurring

There exists in some parts of the world sanctimonious

criticism of America’s death penalty, as somehow unwor

thy of a civilized society. (I say sanctimonious, because

most of the countries to which these finger-waggers belong

had the death penalty themselves until recently—and

indeed, many of them would still have it if the democratic

will prevailed.3) It is a certainty that the opinion of a

near-majority of the United States Supreme Court to the

effect that our system condemns many innocent defen

dants to death will be trumpeted abroad as vindication of

these criticisms. For that reason, I take the trouble to

point out that the dissenting opinion has nothing substan

tial to support it.

It should be noted at the outset that the dissent does not

discuss a single case—not one—in which it is clear that a

person was executed for a crime he did not commit. If

such an event had occurred in recent years, we would not

——————

“equipoise beyond a reasonable doubt” requirement.

3 It is commonly recognized that “[m]any European countries . . . abol

ished the death penalty in spite of public opinion rather than because of

it.” Bibas, Transparency and Participation in Criminal Procedure, 81

N. Y. U. L. Rev. 911, 931–932 (2006). See also id., at 932, n. 88.

Abolishing the death penalty has been made a condition of joining the

Council of Europe, which is in turn a condition of obtaining the eco

nomic benefits of joining the European Union. See Waters, Mediating

Norms and Identity: The Role of Transnational Judicial Dialogue in

Creating and Enforcing International Law, 93 Geo. L. J. 487, 525

(2005); Demleitner, Is There a Future for Leniency in the U. S. Crimi

nal Justice System? 103 Mich. L. Rev. 1231, 1256, and n. 88 (2005).

The European Union advocates against the death-penalty even in

America; there is a separate death-penalty page on the website of the

Delegation of the European Commission to the U. S. A. See

http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm (as

visited June 17, 2006, and available in Clerk of Court’s case file). The

views of the European Union have been relied upon by Justices of this

Court (including all four dissenters today) in narrowing the power of

the American people to impose capital punishment. See, e.g., Atkins v.

Virginia, 536 U. S. 304, 317, n. 21 (2002) (citing, for the views of “the

world community,” the Brief for the European Union as Amicus Curiae).

8 KANSAS v. MARSH

SCALIA, J., concurring

have to hunt for it; the innocent’s name would be shouted

from the rooftops by the abolition lobby. The dissent

makes much of the new-found capacity of DNA testing to

establish innocence. But in every case of an executed

defendant of which I am aware, that technology has con

firmed guilt.

This happened, for instance, only a few months ago in

the case of Roger Coleman. Coleman was convicted of the

gruesome rape and murder of his sister-in-law, but he

persuaded many that he was actually innocent and be

came the poster-child for the abolitionist lobby. See Glod

& Shear, DNA Tests Confirm Guilt of Man Executed by

Va., Washington Post, Jan. 13, 2006, p. A1; Dao, DNA Ties

Man Executed in ’92 to the Murder He Denied, N. Y.

Times, Jan. 13, 2006, p. A14. Around the time of his

eventual execution, “his picture was on the cover of Time

magazine (‘This Man Might Be Innocent. This Man Is Due

to Die’). He was interviewed from death row on ‘Larry

King Live,’ the ‘Today’ show, ‘Primetime Live,’ ‘Good

Morning America’ and ‘The Phil Donahue Show.’ ”

Frankel, Burden of Proof, Washington Post, May 14, 2006,

pp. W8, W11. Even one Justice of this Court, in an opin

ion filed shortly before the execution, cautioned that

“Coleman has now produced substantial evidence that he

may be innocent of the crime for which he was sentenced

to die.” Coleman v. Thompson, 504 U. S. 188, 189 (1992)

(Blackmun, J., dissenting). Coleman ultimately failed a

lie-detector test offered by the Governor of Virginia as a

condition of a possible stay; he was executed on May 20,

1992. Frankel, supra, at W23; Glod & Shear, Warner

Orders DNA Testing in Case of Man Executed in ’92,

Washington Post, Jan. 6, 2006, pp. A1, A6.

In the years since then, Coleman’s case became a rally

ing point for abolitionists, who hoped it would offer what

they consider the “Holy Grail: proof from a test tube that

an innocent person had been executed.” Frankel, supra, at

Cite as: 548 U. S. ____ (2006) 9

SCALIA, J., concurring

W24. But earlier this year, a DNA test ordered by a later

Governor of Virginia proved that Coleman was guilty, see,

e.g., Glod & Shear, DNA Tests Confirm Guilt of Man

Executed by Va., supra, at A1; Dao, supra, at A14, even

though his defense team had “proved” his innocence and

had even identified “the real killer” (with whom they

eventually settled a defamation suit). See Frankel, supra,

at W23. And Coleman’s case is not unique. See Truth and

Consequences: The Penalty of Death, in Debating the

Death Penalty: Should America Have Capital Punish

ment? The Experts on Both Sides Make Their Best Case,

128–129 (H. Bedau & P. Cassell eds. 2004) (discussing the

cases of supposed innocents Rick McGinn and Derek

Barnabei, whose guilt was also confirmed by DNA tests).

Instead of identifying and discussing any particular case

or cases of mistaken execution, the dissent simply cites a

handful of studies that bemoan the alleged prevalence of

wrongful death sentences. One study (by Lanier and

Acker) is quoted by the dissent as claiming that “ ‘more

than 110’ death row prisoners have been released since

1973 upon findings that they were innocent of the crimes

charged, and ‘hundreds of additional wrongful convictions

in potentially capital cases have been documented over the

past century.’ ” Post, at 8 (opinion of SOUTER, J.). For the

first point, Lanier and Acker cite the work of the Death

Penalty Information Center (more about that below) and

an article in a law review jointly authored by Radelet,

Lofquist, and Bedau (two professors of sociology and a

professor of philosophy). For the second point, they cite

only a 1987 article by Bedau and Radelet. See Miscar

riages of Justice in Potentially Capital Cases, 40 Stan.

L. Rev. 21. In the very same paragraph which the dissent

quotes, Lanier and Acker also refer to that 1987 article as

“hav[ing] identified 23 individuals who, in their judgment,

were convicted and executed in this country during the

20th century notwithstanding their innocence.” Lanier &

10 KANSAS v. MARSH

SCALIA, J., concurring

Acker, Capital Punishment, the Moratorium Movement,

and Empirical Questions, 10 Psychology, Public Policy &

Law 577, 593 (2004). This 1987 article has been highly

influential in the abolitionist world. Hundreds of aca

demic articles, including those relied on by today’s dissent,

have cited it. It also makes its appearance in judicial

decisions—cited recently in a six-judge dissent in House v.

Bell, 386 F. 3d 668, 708 (CA6 2004) (en banc) (Merritt, J.,

dissenting), for the proposition that “the system is allow

ing some innocent defendants to be executed.” The article

therefore warrants some further observations.

The 1987 article’s obsolescence began at the moment of

publication. The most recent executions it considered

were in 1984, 1964, and 1951; the rest predate the Allied

victory in World War II. (Two of the supposed innocents

are Sacco and Vanzetti.) Bedau & Radelet, supra, at 73.

Even if the innocence claims made in this study were true,

all except (perhaps) the 1984 example would cast no light

upon the functioning of our current system of capital

adjudication. The legal community’s general attitude

toward criminal defendants, the legal protections States

afford, the constitutional guarantees this Court enforces,

and the scope of federal habeas review, are all vastly

different from what they were in 1961. So are the scien

tific means of establishing guilt, and hence innocence—

which are now so striking in their operation and effect

that they are the subject of more than one popular TV

series. (One of these new means, of course, is DNA test

ing—which the dissent seems to think is primarily a way

to identify defendants erroneously convicted, rather than a

highly effective way to avoid conviction of the innocent.)

But their current relevance aside, this study’s conclu

sions are unverified. And if the support for its most sig

nificant conclusion—the execution of 23 innocents in the

20th century—is any indication of its accuracy, neither it,

nor any study so careless as to rely upon it, is worthy of

Cite as: 548 U. S. ____ (2006) 11

SCALIA, J., concurring

credence. The only execution of an innocent man it alleges

to have occurred after the restoration of the death penalty

in 1976—the Florida execution of James Adams in 1984—

is the easiest case to verify. As evidence of Adams’ inno

cence, it describes a hair that could not have been his as

being “clutched in the victim’s hand,” Bedau & Radelet,

supra, at 91. The hair was not in the victim’s hand; “[i]t

was a remnant of a sweeping of the ambulance and so

could have come from another source.” Markman & Cas-

sell, Protecting the Innocent: A Response to the Bedau-

Radelet Study, 41 Stan. L. Rev. 121, 131 (1988). The

study also claims that a witness who “heard a voice inside

the victim’s home at the time of the crime” testified that

the “voice was a woman’s,” Bedau & Radelet, supra, at 91.

The witness’s actual testimony was that the voice, which

said “ ‘ “In the name of God, don’t do it” ’ ” (and was hence

unlikely to have been the voice of anyone but the male

victim), “ ‘sounded “kind of like a woman’s voice, kind of

like strangling or something . . . .” ’ ” Markman & Cassell,

Protecting the Innocent, at 130. Bedau and Radelet failed

to mention that upon arrest on the afternoon of the mur

der Adams was found with some $200 in his pocket—one

bill of which “was stained with type O blood. When Ad

ams was asked about the blood on the money, he said that

it came from a cut on his finger. His blood was type AB,

however, while the victim’s was type O.” Id., at 132.

Among the other unmentioned, incriminating details: that

the victim’s eyeglasses were found in Adams’ car, along

with jewelry belonging to the victim, and clothing of Ad

ams’ stained with type O blood. Ibid. This is just a sam

ple of the evidence arrayed against this “innocent.” See

id., at 128–133, 148–150.

Critics have questioned the study’s findings with regard

to all its other cases of execution of alleged innocents for

which “appellate opinions . . . set forth the facts proved at

trial in detail sufficient to permit a neutral observer to

12 KANSAS v. MARSH

SCALIA, J., concurring

assess the validity of the authors’ conclusions.” Id., at

134. (For the rest, there was not “a reasonably complete

account of the facts . . . readily available,” id., at 145.) As

to those cases, the only readily verifiable ones, the authors

of the 1987 study later acknowledged, “We agree with our

critics that we have not ‘proved’ these executed defendants

to be innocent; we never claimed that we had.” Bedau &

Radelet, The Myth of Infallibility: A Reply to Markman

and Cassell, 41 Stan. L. Rev. 161, 164 (1988). One would

have hoped that this disclaimer of the study’s most strik

ing conclusion, if not the study’s dubious methodology,

would have prevented it from being cited as authority in

the pages of the United States Reports. But alas, it is too

late for that. Although today’s dissent relies on the study

only indirectly, the two dissenters who were on the Court

in January 1993 have already embraced it. “One impres

sive study,” they noted (referring to the 1987 study), “has

concluded that 23 innocent people have been executed in

the United States in this century, including one as re

cently as 1984.” Herrera v. Collins, 506 U. S. 390, 430, n. 1

(1993) (Blackmun, J., joined by STEVENS and SOUTER, JJ.,

dissenting).4

Remarkably avoiding any claim of erroneous executions,

the dissent focuses on the large numbers of non-executed

“exonerees” paraded by various professors. It speaks as

though exoneration came about through the operation of

some outside force to correct the mistakes of our legal

system, rather than as a consequence of the functioning of

our legal system. Reversal of an erroneous conviction on

appeal or on habeas, or the pardoning of an innocent

——————

4 See also Callins v. Collins, 510 U. S. 1141, 1158, n. 8 (1994) (Black

mun, J., dissenting from denial of certiorari) (“Innocent persons have

been executed, see Bedau & Radelet, Miscarriages of Justice in Poten

tially Capital Cases, 40 Stan. L. Rev. 21, 36, 173–179 (1987), perhaps

recently, see Herrera v. Collins, 506 U. S. 390 (1993), and will continue to

be executed under our death penalty scheme”).

Cite as: 548 U. S. ____ (2006) 13

SCALIA, J., concurring

condemnee through executive clemency, demonstrates not

the failure of the system but its success. Those devices are

part and parcel of the multiple assurances that are ap

plied before a death sentence is carried out.

Of course even in identifying exonerees, the dissent is

willing to accept anybody’s say-so. It engages in no critical

review, but merely parrots articles or reports that support

its attack on the American criminal justice system. The

dissent places significant weight, for instance, on the

Illinois Report (compiled by the appointees of an Illinois

Governor who had declared a moratorium upon the death

penalty and who eventually commuted all death sentences

in the State, see Warden, Illinois Death Penalty Reform:

How It Happened, What It Promises, 95 J. Crim. L. & C.

381, 406–407, 410 (2006)), which it claims shows that

“false verdicts” are “remarkable in number.” Post, at 9

(opinion of SOUTER, J.). The dissent claims that this Re

port identifies 13 inmates released from death row after

they were determined to be innocent. To take one of these

cases, discussed by the dissent as an example of a judg

ment “as close to innocence as any judgments courts nor

mally render,” post, at 7, n. 2: In People v. Smith, 185 Ill.

2d 532, 708 N. E. 2d 365 (1999) the defendant was twice

convicted of murder. After his first trial, the Supreme

Court of Illinois “reversed [his] conviction based upon

certain evidentiary errors” and remanded his case for a

new trial. Id., at 534, 708 N. E. 2d, at 366. The second

jury convicted Smith again. The Supreme Court of Illinois

again reversed the conviction because it found that the

evidence was insufficient to establish guilt beyond a rea

sonable doubt. Id., at 542–543, 708 N. E. 2d, at 370–371.

The court explained:

“While a not guilty finding is sometimes equated with

a finding of innocence, that conclusion is erroneous.

Courts do not find people guilty or innocent. . . . A not

14 KANSAS v. MARSH

SCALIA, J., concurring

guilty verdict expresses no view as to a defendant’s

innocence. Rather, [a reversal of conviction] indicates

simply that the prosecution has failed to meet its bur

den of proof.” Id., at 545, 708 N. E. 2d, at 371.

This case alone suffices to refute the dissent’s claim that

the Illinois Report distinguishes between “exoneration of a

convict because of actual innocence, and reversal of a

judgment because of legal error affecting conviction or

sentence but not inconsistent with guilt in fact,” post, at 7,

n. 2. The broader point, however, is that it is utterly

impossible to regard “exoneration”—however casually

defined—as a failure of the capital justice system, rather

than as a vindication of its effectiveness in releasing not

only defendants who are innocent, but those whose guilt

has not been established beyond a reasonable doubt.

Another of the dissent’s leading authorities on exonera

tion of the innocent is Gross, Jacoby, Matheson, Montgom

ery, & Patil, Exonerations in the United States 1989

Through 2003, 95 J. Crim. L. & C. 523 (2006) (hereinafter

Gross). The dissent quotes that study’s self-

congratulatory “criteria” of exoneration—seemingly so

rigorous that no one could doubt the study’s reliability.

See post, at 8, n. 3 (opinion of SOUTER, J.). But in fact that

article, like the others cited, is notable not for its rigorous

investigation and analysis, but for the fervor of its belief

that the American justice system is condemning the inno

cent “in numbers,” as the dissent puts it, “never imagined

before the development of DNA tests.” Post, at 6 (opinion

of SOUTER, J.). Among the article’s list of 74 “exonerees,”

Gross 529, is Jay Smith of Pennsylvania. Smith—a school

principal—earned three death sentences for slaying one of

his teachers and her two young children. See Smith v.

Holtz, 210 F. 3d 186, 188 (CA3 2000). His retrial for triple

murder was barred on double jeopardy grounds because of

prosecutorial misconduct during the first trial. Id., at 194.

Cite as: 548 U. S. ____ (2006) 15

SCALIA, J., concurring

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 Smith’s 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 accomplice’s full cooperation. Ibid.

The resulting taped confession, which implicated Sheets,

was “[t]he crucial portion of the State’s 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,

335–351, 618 N. W. 2d, at 123, 127–136. 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 Court’s 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

tim’s Compensation Fund; the State Attorney General—

far from concluding that Sheets had been “exonerated”

and was entitled to the money—refused 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 KANSAS v. MARSH

SCALIA, J., concurring

. . . is a favorable disposition of charges,” Neb. Op. Atty.

Gen. No. 01036 (Nov. 9), 2001 WL 1503144, *3.

In its inflation of the word “exoneration,” the Gross

article hardly stands alone; mischaracterization of

reversible error as actual innocence is endemic in

abolitionist rhetoric, and other prominent catalogues of

“innocence” in the death-penalty context suffer from

the same defect. Perhaps the best-known of them is

the List of Those Freed From Death Row, maintained by

the Death Penalty Information Center. See http://www.

deathpenaltyinfo.org/article.php?scid=6&did=110. This

includes the cases from the Gross article described above,

but also enters some dubious candidates of its own.

Delbert Tibbs is one of them. We considered his case in

Tibbs v. Florida, 457 U. S. 31 (1982), concluding that the

Double Jeopardy Clause does not bar a retrial when a

conviction is “revers[ed] based on the weight, rather than

the sufficiency, of the evidence,” id., at 32. The case in

volved a man and a woman hitchhiking together in Flor

ida. A driver who picked them up sodomized and raped

the woman, and killed her boyfriend. She eventually

escaped and positively identified Tibbs. See id., at 32–33.

The Florida Supreme Court reversed the conviction on a 4

to-3 vote. 337 So. 2d 788 (1976). The Florida courts then

grappled with whether Tibbs could be retried without

violating the Double Jeopardy Clause. The Florida Su

preme Court determined not only that there was no dou

ble-jeopardy problem, 397 So. 2d 1120, 1127 (1981) (per

curiam), but that the very basis on which it had reversed

the conviction was no longer valid law, id., at 1125, and

that its action in “reweigh[ing] the evidence” in Tibbs’ case

had been “clearly improper,” id., at 1126. After we af

firmed the Florida Supreme Court, however, the State felt

compelled to drop the charges. The State Attorney ex

plained this to the Florida Commission on Capital Cases:

“ ‘By the time of the retrial, [the] witness/victim . . . had

Cite as: 548 U. S. ____ (2006) 17

SCALIA, J., concurring

progressed from a marijuana smoker to a crack user and I

could not put her up on the stand, so I declined to prose

cute. Tibbs, in my opinion, was never an innocent man

wrongfully accused. He was a lucky human being. He

was guilty, he was lucky and now he is free. His 1974

conviction was not a miscarriage of justice.’ ” Florida

Commission on Capital Cases, Case Histories: A Review of

24 Individuals Released From Death Row 136–137 (rev.

Sept. 10, 2002) http://www.floridacapitalcases.state.fl.us/

Publications/innocentsproject.pdf. Other state officials

involved made similar points. Id., at 137.

Of course, even with its distorted concept of what consti

tutes “exoneration,” the claims of the Gross article are

fairly modest: Between 1989 and 2003, the authors iden

tify 340 “exonerations” nationwide—not just for capital

cases, mind you, nor even just for murder convictions, but

for various felonies. Gross 529. Joshua Marquis, a dis

trict attorney in Oregon, recently responded to this article

as follows:

“[L]et’s give the professor the benefit of the doubt: let’s

assume that he understated the number of innocents

by roughly a factor of 10, that instead of 340 there

were 4,000 people in prison who weren’t involved in

the crime in any way. During that same 15 years,

there were more than 15 million felony convictions

across the country. That would make the error rate

.027 percent—or, to put it another way, a success rate

of 99.973 percent.” The Innocent and the Shammed,

N. Y. Times, Jan. 26, 2006, p. A23.

The dissent’s suggestion that capital defendants are espe

cially liable to suffer from the lack of 100% perfection in

our criminal justice system is implausible. Capital cases

are given especially close scrutiny at every level, which is

why in most cases many years elapse before the sentence

is executed. And of course capital cases receive special

18 KANSAS v. MARSH

SCALIA, J., concurring

attention in the application of executive clemency. Indeed,

one of the arguments made by abolitionists is that the

process of finally completing all the appeals and reexami

nations of capital sentences is so lengthy, and thus so

expensive for the State, that the game is not worth the

candle. The proof of the pudding, of course, is that as far

as anyone can determine (and many are looking), none of

cases included in the .027% error rate for American ver

dicts involved a capital defendant erroneously executed.

Since 1976 there have been approximately a half million

murders in the United States. In that time, 7,000 mur

derers have been sentenced to death; about 950 of them

have been executed; and about 3,700 inmates are cur

rently on death row. See Marquis, The Myth of Inno

cence, 95 J. Crim. L. & C. 501, 518 (2006). As a conse

quence of the sensitivity of the criminal justice system to

the due-process rights of defendants sentenced to death,

almost two-thirds of all death sentences are overturned.

See ibid. “Virtually none” of these reversals, however, are

attributable to a defendant’s “ ‘actual innocence.’ ” Ibid.

Most are based on legal errors that have little or nothing

to do with guilt. See id., at 519–520. The studies cited by

the dissent demonstrate nothing more.

Like other human institutions, courts and juries are not

perfect. One cannot have a system of criminal punish

ment without accepting the possibility that someone will

be punished mistakenly. That is a truism, not a revela

tion. But with regard to the punishment of death in the

current American system, that possibility has been re

duced to an insignificant minimum. This explains why

those ideologically driven to ferret out and proclaim a

mistaken modern execution have not a single verifiable

case to point to, whereas it is easy as pie to identify plainly

guilty murderers who have been set free. The American

people have determined that the good to be derived from

capital punishment—in deterrence, and perhaps most of

Cite as: 548 U. S. ____ (2006) 19

SCALIA, J., concurring

all in the meting out of condign justice for horrible

crimes—outweighs the risk of error. It is no proper part of

the business of this Court, or of its Justices, to second-

guess that judgment, much less to impugn it before the

world, and less still to frustrate it by imposing judicially

invented obstacles to its execution.

Cite as: 548 U. S. ____ (2006) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1170

_________________

KANSAS, PETITIONER v. MICHAEL LEE MARSH, II

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS

[June 26, 2006]

JUSTICE STEVENS, dissenting.

Having joined Justice Blackmun’s dissent from the

plurality’s opinion in Walton v. Arizona, 497 U. S. 639,

649–652 (1990), I necessarily also subscribe to the views

expressed by JUSTICE SOUTER today. I write separately

for two reasons: to explain why agreement with Justice

Blackmun’s dissent is fully consistent with refusing to

read Walton as “control[ling],” but see ante, at 5 (opinion

of the Court), and to explain why the grant of certiorari in

this case was a misuse of our discretion.

Under Justice Blackmun’s understanding of Arizona

law, Walton did present exactly the same issue before us

today. The Arizona statute at issue required the judge to

impose death upon finding aggravating factors if “ ‘there

are no mitigating circumstances sufficiently substantial to

call for leniency.’ ” 497 U. S., at 644 (quoting Ariz. Rev.

Stat. Ann. §13–703(E) (West 1989)). In Justice Black

mun’s view, Arizona case law indicated “that a defendant’s

mitigating evidence will be deemed ‘sufficiently substan

tial to call for leniency’ only if the mitigating factors ‘out

weigh’ those in aggravation.” 497 U. S., at 687. Accord

ingly, Justice Blackmun believed that we confronted the

constitutionality of a statute that mandated death when

the scales were evenly balanced. Ibid.

But Justice Blackmun never concluded that the plural

ity similarly read Arizona case law as “requir[ing] a capi

tal sentence in a case where aggravating and mitigating

2 KANSAS v. MARSH

STEVENS, J., dissenting

circumstances are evenly balanced.” Id., at 688. To the

contrary, he observed that “the plurality does not even

acknowledge that this is the dispositive question.” Ibid.

Because Justice Blackmun did not read the plurality

opinion as confronting the problem of equipoise that he

believed Arizona law to present, my join of his dissent is

consistent with my conclusion that stare decisis does not

bind us today. As JUSTICE SOUTER explains, post, at 2, n.

1, the Walton plurality painstakingly avoided an express

endorsement of a rule that allows a prosecutor to argue,

and allows a judge to instruct the jury, that if the scales

are evenly balanced when the choice is between life and

death, the law requires the more severe penalty.

There is a further difference between this case and

Walton—one that should have kept us from granting

certiorari in the first place. In Walton, the defendant

petitioned for certiorari, and our grant enabled us to con

sider whether the Arizona Supreme Court had adequately

protected his rights under the Federal Constitution. In

this case, by contrast, the State of Kansas petitioned us to

review a ruling of its own Supreme Court on the grounds

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. See Brigham City v. Stuart, 547 U. S. __, __ (2006)

(STEVENS, J., concurring) (slip op., at 3).

There is a remarkable similarity between the decision to

grant certiorari in this case and our comparable decision

in California v. Ramos, 463 U. S. 992 (1983). In Ramos,

we reviewed a decision of the California Supreme Court

that had invalidated a standard jury instruction concern

ing the Governor’s power to commute life without parole

sentences—an instruction that was unique to California.

By a vote of 5 to 4, the Court reversed the judgment of the

state court, concluding—somewhat ironically—that “the

Cite as: 548 U. S. ____ (2006) 3

STEVENS, J., dissenting

wisdom of the decision to permit juror consideration of

possible commutation is best left to the States.” Id., at

1014.

In response I asked, as I do again today, “what harm

would have been done to the administration of justice by

state courts if the [Kansas] court had been left undis

turbed in its determination[?]” Id., at 1030. “If it were

true that this instruction may make the difference be

tween life and death in a case in which the scales are

otherwise evenly balanced, that is a reason why the in

struction should not be given—not a reason for giving it.”

Ibid. “No matter how trivial the impact of the instruction

may be, it is fundamentally wrong for the presiding judge

at the trial—who should personify the evenhanded ad

ministration of justice—to tell the jury, indirectly to be

sure, that doubt concerning the proper penalty should be

resolved in favor of [death].” Ibid.

As in Ramos, in this case “no rule of law commanded the

Court to grant certiorari.” Id., at 1031. Furthermore,

“[n]o other State would have been required to follow the

[Kansas] precedent if it had been permitted to stand.

Nothing more than an interest in facilitating the imposi

tion of the death penalty in [Kansas] justified this Court’s

exercise of its discretion to review the judgment of the

[Kansas] Supreme Court.” Ibid. And “[t]hat interest, in

my opinion, is not sufficient to warrant this Court’s review

of the validity of a jury instruction when the wisdom of

giving that instruction is plainly a matter that is best left

to the States.” Ibid.*

——————

* JUSTICE SCALIA takes issue with my approach, suggesting that the

federal interests vindicated by our review are equally weighty whether

the state court found for the defendant or for the State. Ante, at 2–5

(concurring opinion). In so doing, he overlooks the separate federal

interest in ensuring that no person be convicted or sentenced in viola

tion of the Federal Constitution—an interest entirely absent when the

State is the petitioner. It is appropriate—and certainly impartial, but

4 KANSAS v. MARSH

STEVENS, J., dissenting

We decided Ramos on the same day as Michigan v.

Long, 463 U. S. 1032 (1983). Prior to that time, “we had

virtually no interest” in criminal cases where States

sought to set aside the rulings of their own courts. Id., at

1069 (STEVENS, J., dissenting). Although in recent years

the trend has been otherwise, I continue to hope “that a

future Court will recognize the error of this allocation of

resources,” id., at 1070, and return to our older and better

practice of restraint.

——————

see ante, at 4–5—to 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 Constitution’s 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 SCALIA’s “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, 694–697 (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.

Cite as: 548 U. S. ____ (2006) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1170

_________________

KANSAS, PETITIONER v. MICHAEL LEE MARSH, II

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS

[June 26, 2006]

JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE

GINSBURG, and JUSTICE BREYER join, dissenting.

I

Kansas’s capital sentencing statute provides that a

defendant “shall be sentenced to death” if, by unanimous

vote, “the jury finds beyond a reasonable doubt that one or

more aggravating circumstances . . . exist and . . . that the

existence of such aggravating circumstances is not out

weighed by any mitigating circumstances which are found

to exist.” Kan. Stat. Ann. §21–4624(e) (1995). The Su

preme Court of Kansas has read this provision to require

imposition of the death penalty “[i]n the event of equi

poise, [that is,] the jury’s determination that the balance

of any aggravating circumstances and any mitigating

circumstances weighed equal.” 278 Kan. 520, 534, 102

P. 3d 445, 457 (2004) (case below); see also State v. Kley

pas, 272 Kan. 894, 1016, 40 P. 3d 139, 232 (2001) (stating

that the language of §21–4624(e) “provides that in doubt

ful cases the jury must return a sentence of death”).

Given this construction, the state court held the law un

constitutional on the ground that the Eighth Amendment

requires that a “ ‘tie g[o] to the defendant’ when life or

death is at issue.” Ibid. Because I agree with the Kansas

judges that the Constitution forbids a mandatory death

penalty in what they describe as “doubtful cases,” when

aggravating and mitigating factors are of equal weight, I

2 KANSAS v. MARSH

SOUTER, J., dissenting

respectfully dissent.1

II

More than 30 years ago, this Court explained that the

Eighth Amendment’s 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, 309–310 (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

——————

1 The majority views Walton v. Arizona, 497 U. S. 639 (1990), as having

decided this issue. But Walton is ambiguous on this point; while the

Court there approved Arizona’s practice of placing the burden on capital

defendants to prove, “by a preponderance of the evidence, the existence of

mitigating circumstances sufficiently substantial to call for leniency,” id.,

at 649 (plurality opinion), it did not quantify the phrase “sufficiently

substantial.” Justice Blackmun clearly thought otherwise, see id., at 687

(dissenting opinion), but he cried a greater foul than one can get from the

majority opinion. Stare decisis does not control this case.

Cite as: 548 U. S. ____ (2006) 3

SOUTER, J., dissenting

reasoned moral response to the defendant’s background,

character, and crime,’” Penry v. Lynaugh, 492 U. S. 302, 319

(1989) (quoting California v. Brown, 479 U. S. 538, 545

(1987) (O’Connor, J., concurring); emphasis deleted); cf.

Gregg v. Georgia, 428 U. S. 153, 206 (1976) (joint opinion of

Stewart, Powell, and STEVENS, JJ.) (sanctioning sentencing

procedures that “focus the jury’s attention on the particular

ized nature of the crime and the particularized characteris

tics of the individual defendant”). The Eighth Amendment,

that is, demands both form and substance, both a system

for decision and one geared to produce morally justifiable

results.

The State thinks its scheme is beyond questioning,

whether as to form or substance, for it sees the tie-breaker

law as equivalent to the provisions examined in Blystone v.

Pennsylvania, 494 U. S. 299 (1990), and Boyde v. California,

494 U. S. 370 (1990), where we approved statutes that

required a death sentence upon a jury finding that aggra

vating circumstances outweighed mitigating ones. But the

crucial fact in those systems was the predominance of the

aggravators, and our recognition of the moral rationality of

a mandatory capital sentence based on that finding is no

authority for giving States free rein to select a different

conclusion that will dictate death.

Instead, the constitutional demand for a reasoned moral

response requires the state statute to satisfy two criteria

that speak to the issue before us now, one governing the

character of sentencing evidence, and one going to the

substantive justification needed for a death sentence. As

to the first, there is an obligation in each case to inform

the jury’s choice of sentence with evidence about the crime

as actually committed and about the specific individual

who committed it. See Spaziano v. Florida, 468 U. S. 447,

460, and n. 7 (1984). Since the sentencing choice is, by

definition, the attribution of particular culpability to a

criminal act and defendant, as distinct from the general

4 KANSAS v. MARSH

SOUTER, J., dissenting

culpability necessarily implicated by committing a given

offense, see Penry, supra, at 327–328; Spaziano, supra, at

460; Zant v. Stephens, 462 U. S. 862, 879 (1983), the sen

tencing decision must turn on the uniqueness of the indi

vidual defendant and on the details of the crime, to which

any resulting choice of death must be “directly” related.

Penry, supra, at 319.

Second, there is the point to which the particulars of

crime and criminal are relevant: within the category of

capital crimes, the death penalty must be reserved for “the

worst of the worst.” See, e.g., Roper v. Simmons, 543 U. S.

551, 568 (2005) (“Capital punishment must be limited to

those offenders who commit ‘a narrow category of the most

serious crimes’ and whose extreme culpability makes them

‘the most deserving of execution’ ” (quoting Atkins v. Vir

ginia, 536 U. S. 304, 319 (2002))). One object of the struc

tured sentencing proceeding required in the aftermath of

Furman is to eliminate the risk that a death sentence will

be imposed in spite of facts calling for a lesser penalty,

Penry, supra, at 328–329, and the essence of the sentenc

ing authority’s responsibility is to determine whether the

response to the crime and defendant “must be death,”

Spaziano, supra, at 461; cf. Gregg, supra, at 184 (joint

opinion of Stewart, Powell, and STEVENS, JJ.). Of course,

in the moral world of those who reject capital punishment

in principle, a death sentence can never be a moral im

perative. The point, however, is that within our legal and

moral system, which allows a place for the death penalty,

“must be death” does not mean “may be death.”

Since a valid capital sentence thus requires a choice

based upon unique particulars identifying the crime and

its perpetrator as heinous to the point of demanding death

even within the class of potentially capital offenses, the

State’s provision for a tie breaker in favor of death fails on

both counts. The dispositive fact under the tie breaker is

not the details of the crime or the unique identity of the

Cite as: 548 U. S. ____ (2006) 5

SOUTER, J., dissenting

individual defendant. The determining fact is not directly

linked to a particular crime or particular criminal at all;

the law operates merely on a jury’s finding of equipoise in

the State’s own selected considerations for and against

death. Nor does the tie breaker identify the worst of the

worst, or even purport to reflect any evidentiary showing

that death must be the reasoned moral response; it does

the opposite. The statute produces a death sentence ex

actly when a sentencing impasse demonstrates as a mat

ter of law that the jury does not see the evidence as show

ing the worst sort of crime committed by the worst sort of

criminal, in a combination heinous enough to demand

death. It operates, that is, when a jury has applied the

State’s chosen standards of culpability and mitigation and

reached nothing more than what the Supreme Court of

Kansas calls a “tie,” Kleypas, 272 Kan., at 1016, 40 P. 3d,

at 232 (internal quotation marks omitted). It mandates

death in what that court identifies as “doubtful cases,”

ibid. The statute thus addresses the risk of a morally

unjustifiable death sentence, not by minimizing it as

precedent unmistakably requires, but by guaranteeing

that in equipoise cases the risk will be realized, by “plac

ing a ‘thumb [on] death’s side of the scale,’ ” Sochor v.

Florida, 504 U. S. 527, 532 (1992) (quoting Stringer v.

Black, 503 U. S. 222, 232 (1992); alteration in original).

In Kansas, when a jury applies the State’s own stan

dards of relative culpability and cannot decide that a

defendant is among the most culpable, the state law says

that equivocal evidence is good enough and the defendant

must die. 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 Constitu

tion tolerates this moral irrationality defies decades of

precedent aimed at eliminating freakish capital sentenc

ing in the United States.

6 KANSAS v. MARSH

SOUTER, J., dissenting

III

That precedent, demanding reasoned moral judgment,

developed in response to facts that could not be ignored,

the kaleidoscope of life and death verdicts that made no

sense in fact or morality in the random sentencing before

Furman was decided in 1972. See 408 U. S., at 309–310

(Stewart, J., concurring). Today, a new body of fact must

be accounted for in deciding what, in practical terms, the

Eighth Amendment guarantees should tolerate, for the

period starting in 1989 has seen repeated exonerations of

convicts under death sentences, in numbers never imag

ined before the development of DNA tests. We cannot face

up to these facts and still hold that the guarantee of mor

ally justifiable sentencing is hollow enough to allow

maximizing death sentences, by requiring them when

juries fail to find the worst degree of culpability: when, by

a State’s own standards and a State’s own characteriza

tion, the case for death is “doubtful.”

A few numbers from a growing literature will give a

sense of the reality that must be addressed. When the

Governor of Illinois imposed a moratorium on executions

in 2000, 13 prisoners under death sentences had been

released since 1977 after a number of them were shown to

be innocent, as described in a report which used their

examples to illustrate a theme common to all 13, of “rela

tively little solid evidence connecting the charged defen

dants to the crimes.” State of Illinois, G. Ryan, Governor,

Report of the Governor’s Commission on Capital Punish

ment: Recommendations Only 7 (Apr. 2002) (hereinafter

Report); see also id., at 5–6, 7–9. During the same period,

12 condemned convicts had been executed. Subsequently

the Governor determined that 4 more death row inmates

were innocent. See id., at 5–6; Warden, Illinois Death

Penalty Reform, 95 J. Crim. L. & C. 381, 382, and n. 6

Cite as: 548 U. S. ____ (2006) 7

SOUTER, J., dissenting

(2005).2 Illinois had thus wrongly convicted and con

demned even more capital defendants than it had exe

cuted, but it may well not have been otherwise unique; one

recent study reports that between 1989 and 2003, 74

American prisoners condemned to death were exonerated,

Gross, Jacoby, Matheson, Montgomery, & Patil, Exonera

tions in the United States 1989 Through 2003, 95 J. Crim.

L. & C. 523, 531 (2006) (hereinafter Gross), many of them

——————

2 The Illinois Report emphasizes the difference between exoneration

of a convict because of actual innocence, and reversal of a judgment

because of legal error affecting conviction or sentence but not inconsis

tent with guilt in fact. See Report 9 (noting that, apart from the 13

released men, a “broader review” discloses that more than half of the

State’s death penalty cases “were reversed at some point in the proc

ess”). More importantly, it takes only a cursory reading of the Report

to recognize that it describes men released who were demonstrably

innocent or convicted on grossly unreliable evidence. Of one, the Report

notes “two other persons were subsequently convicted in Wisconsin of”

the murders. Id., at 8. Of two others, the Report states that they were

released after “DNA tests revealed that none of them were the source of

the semen found in the victim. That same year, two other men con

fessed to the crime, pleaded guilty and were sentenced to life in prison,

and a third was tried and convicted for the crime.” Ibid. Of yet an

other, the Report says that “another man subsequently confessed to the

crime for which [the released man] was convicted. He entered a plea of

guilty and is currently serving a prison term for that crime.” Id., at 9.

A number were subject to judgments as close to innocence as any

judgments courts normally render. In the case of one of the released

men, the Supreme Court of Illinois found the evidence insufficient to

support his conviction. See People v. Smith, 185 Ill. 2d 532, 708 N. E.

2d 365 (1999). Several others obtained acquittals, and still more simply

had the charges against them dropped, after receiving orders for new

trials.

At least 2 of the 13 were released at the initiative of the executive.

We can reasonably assume that a State under no obligation to do so

would not release into the public a person against whom it had a valid

conviction and sentence unless it were certain beyond all doubt that the

person in custody was not the perpetrator of the crime. The reason that

the State would forgo even a judicial forum in which defendants would

demonstrate grounds for vacating their convictions is a matter of

common sense: evidence going to innocence was conclusive.

8 KANSAS v. MARSH

SOUTER, J., dissenting

cleared by DNA evidence, ibid.3 Another report states

that “more than 110” death row prisoners have been re

leased since 1973 upon findings that they were innocent of

the crimes charged, and “[h]undreds of additional wrong

ful convictions in potentially capital cases have been docu

mented over the past century.” Lanier & Acker, Capital

Punishment, the Moratorium Movement, and Empirical

Questions, 10 Psychology, Public Policy & Law 577, 593

(2004). Most of these wrongful convictions and sentences

resulted from eyewitness misidentification, false confes

sion, and (most frequently) perjury, Gross 544, 551–552,

and the total shows that among all prosecutions homicide

cases suffer an unusually high incidence of false convic

tion, id., at 532, 552, probably owing to the combined

difficulty of investigating without help from the victim,

intense pressure to get convictions in homicide cases, and

the corresponding incentive for the guilty to frame the

——————

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 which—despite such evidence—there was

unexplained physical evidence of the defendant’s guilt.” Ibid., n. 4.

Cite as: 548 U. S. ____ (2006) 9

SOUTER, J., dissenting

innocent, id., at 532.

We are thus in a period of new empirical argument

about how “death is different,” Gregg, 428 U. S., at 188

(joint opinion of Stewart, Powell, and STEVENS, JJ.): not

only would these false verdicts defy correction after the

fatal moment, the Illinois experience shows them to be

remarkable in number, and they are probably dispropor

tionately high in capital cases. While it is far too soon for

any generalization about the soundness of capital sentenc

ing across the country, the cautionary lesson of recent

experience addresses the tie-breaking potential of the

Kansas statute: the same risks of falsity that infect proof

of guilt raise questions about sentences, when the circum

stances of the crime are aggravating factors and bear on

predictions of future dangerousness.

In the face of evidence of the hazards of capital prosecu

tion, 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

form, the Kansas law is unconstitutional.