I find Kansas v. Marsh, No. 04-1170 to be troubling. I think the state court had it right. From the opinion, the Kansas statute reads:
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K. S. A. 21–4625 . . . exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise the defendant shall be sentenced as provided by law.”
To me, the death penalty, if it is to be imposed at all, ought to be imposed only in the most egregious, heinous acts witnessed by a society. It is the most severe punishment, and therefore ought to be imposed only in the case of the most severe crime. Not that I do not find the facts of the case appalling, I do. But, if the mitigating and aggravating circumstances are equal, I do not believe the case reaches the level necessary to require the death penalty. If aggravating and mitigating circumstances are equal, I do not believe one can say the crime was the most egregious possible. For, if it were, the aggravating circumstances would over-come any mitigating circumstances.
I see the benefit in requiring the defense prove mitigation. However, in the case of death, it seems that the defense must prove mitigation– but that the prosecution must over-come the mitigation in order to sentence death. I understand this is counter-intuitive, but if a jury can, theoretically, determine that there is equal elements making an act death penalty worthy, and equal elements demonstrating it is not worthy– that the death penalty should not be imposed.
[OK Comments: I understand your argument as a matter of policy. Does your view of the Constitution match up with your policy preferences?]
Doesn’t look like the consensus view of the Roberts court is working out.
[OK Comments: Fishbane, would you care to elaborate? It is hard to tell what you are arguing, or if your argument has merit, when you only grace us with your conclusion.]
Hopefully this will put to bed the ridiculous meme that CJ Roberts has brought some grand consensus to the Court, and has ensured that henceforth all once-controversial cases will be proclaimed by unanimous acclamation.
The Court, understandably, did not want to tackle any major issues while its membership was in flux. Now that said membership is stable, its business as usual.
But is it business as usual? Alito has taken some sharp turns to the right that even Thomas (Burlington) and Scalia (Burlington, Gonzalez-Lopez) refuse to take.
I’m not sure I follow your argument. I don’t know of anyone who has made the argument that “Roberts has brought some grand consensus to the Court, and has ensured that henceforth all once-controversial cases will be proclaimed by unanimous acclamation.” Rather, the argument is that Roberts has brought more consensus, and has tried to make opinions more unanimous (with a considerable degree of success). In other words, it is an argument about degree, not absolutes. What am I missing?
Not at all, it is not unconstitutional to make bad law. I guess I should have said the law was troubling, not the decision. It is (in my view) bad law….but that does not, per se, demonstrate unconstitutionality.
I tend to think that as applied in the US the death penalty is a bloodthirsty policy applied unevenly. Admittedly it does have the significant unintended benefit of publicizing and bringing judicial attention to the way poor defendants are treated by the justice system but we should just fix this problem not continue to execute people to make sure it doesn’t get too bad. However, if the death penalty itself does not constitute cruel and unusual punishment it is hard to justify overturning the law in question here.
Unless the court is going to entirely replace the legislature in decisions about what sort of aggravating and mitigating factors can be considered and with what weight or what sort of crimes the death penalty can be imposed for it is hard to say what is particularly troubling about this balancing test. The state could have easily just increased the weight of the aggravating factors relative to these mitigating factors or alternatively could demand the death penalty for more offenses or any number of changes that result in more people being killed. Moreover, the reason the death penalty is sought in some situations and not others has as much to do with PR, deterance, and other external factors as it does with this particular suspects actions. Thus the court can hardly enforce some general principle of fairness about when the death penalty is warranted without overturning it entirely.
So if the court would accept the state killing more people for deterance or PR reasons it is hard to see why executing the guilty when aggravating and mitigating factors are in balance could possibly be cruel and unusual. After all it certainly seems far more cruel for the state to execute people charged with killing children just because people feel particularly outraged than it does to execute people in this case.
Would anyone care to comment on what Kennedy’s real intent was in his Recuenco concurrence today? What was his point in noting the fact that the Apprendi line of cases constantly had dissents? Justice Kennedy even concurred in the case extending Apprendi to the finding of the existence of aggravating circumstances in a death penalty case, on stare decisis grounds. Even if Kennedy, in an about face, wants to overrule Apprendi, the court doesn’t have the votes to do so(, although I’d be shocked if Roberts or Alito would have voted with the majority in the Apprendi line of cases, and am thus positive that there remains no chance of Harris being overruled).
I probably put bluster over rigor in my comment. My more nuanced response is that I don’t believe we really have enough data points since Alito joined the Court to tell whether or not there will be greater consensus under Roberts. Pre-Alito there were a few surprise consensus opinions (e.g. Ayotte), but these are probably more attributable to the Court’s desire to restrain itself during a membership flux than any grand consensus.
That said, I disagree with the popular meme which uses the handful of data points that do exist to extrapolate a pattern. Maybe Roberts will surprise me and prove to be a great consensus builder, but we should give him a few terms before making broad sweeping statements about the personality of the Roberts Court.
I find Kansas v. Marsh, No. 04-1170 to be troubling. I think the state court had it right. From the opinion, the Kansas statute reads:
To me, the death penalty, if it is to be imposed at all, ought to be imposed only in the most egregious, heinous acts witnessed by a society. It is the most severe punishment, and therefore ought to be imposed only in the case of the most severe crime. Not that I do not find the facts of the case appalling, I do. But, if the mitigating and aggravating circumstances are equal, I do not believe the case reaches the level necessary to require the death penalty. If aggravating and mitigating circumstances are equal, I do not believe one can say the crime was the most egregious possible. For, if it were, the aggravating circumstances would over-come any mitigating circumstances.
I see the benefit in requiring the defense prove mitigation. However, in the case of death, it seems that the defense must prove mitigation– but that the prosecution must over-come the mitigation in order to sentence death. I understand this is counter-intuitive, but if a jury can, theoretically, determine that there is equal elements making an act death penalty worthy, and equal elements demonstrating it is not worthy– that the death penalty should not be imposed.
[OK Comments: I understand your argument as a matter of policy. Does your view of the Constitution match up with your policy preferences?]
Doesn’t look like the consensus view of the Roberts court is working out.
[OK Comments: Fishbane, would you care to elaborate? It is hard to tell what you are arguing, or if your argument has merit, when you only grace us with your conclusion.]
Hopefully this will put to bed the ridiculous meme that CJ Roberts has brought some grand consensus to the Court, and has ensured that henceforth all once-controversial cases will be proclaimed by unanimous acclamation.
The Court, understandably, did not want to tackle any major issues while its membership was in flux. Now that said membership is stable, its business as usual.
But is it business as usual? Alito has taken some sharp turns to the right that even Thomas (Burlington) and Scalia (Burlington, Gonzalez-Lopez) refuse to take.
Ian,
I’m not sure I follow your argument. I don’t know of anyone who has made the argument that “Roberts has brought some grand consensus to the Court, and has ensured that henceforth all once-controversial cases will be proclaimed by unanimous acclamation.” Rather, the argument is that Roberts has brought more consensus, and has tried to make opinions more unanimous (with a considerable degree of success). In other words, it is an argument about degree, not absolutes. What am I missing?
Not at all, it is not unconstitutional to make bad law. I guess I should have said the law was troubling, not the decision. It is (in my view) bad law….but that does not, per se, demonstrate unconstitutionality.
I tend to think that as applied in the US the death penalty is a bloodthirsty policy applied unevenly. Admittedly it does have the significant unintended benefit of publicizing and bringing judicial attention to the way poor defendants are treated by the justice system but we should just fix this problem not continue to execute people to make sure it doesn’t get too bad. However, if the death penalty itself does not constitute cruel and unusual punishment it is hard to justify overturning the law in question here.
Unless the court is going to entirely replace the legislature in decisions about what sort of aggravating and mitigating factors can be considered and with what weight or what sort of crimes the death penalty can be imposed for it is hard to say what is particularly troubling about this balancing test. The state could have easily just increased the weight of the aggravating factors relative to these mitigating factors or alternatively could demand the death penalty for more offenses or any number of changes that result in more people being killed. Moreover, the reason the death penalty is sought in some situations and not others has as much to do with PR, deterance, and other external factors as it does with this particular suspects actions. Thus the court can hardly enforce some general principle of fairness about when the death penalty is warranted without overturning it entirely.
So if the court would accept the state killing more people for deterance or PR reasons it is hard to see why executing the guilty when aggravating and mitigating factors are in balance could possibly be cruel and unusual. After all it certainly seems far more cruel for the state to execute people charged with killing children just because people feel particularly outraged than it does to execute people in this case.
Would anyone care to comment on what Kennedy’s real intent was in his Recuenco concurrence today? What was his point in noting the fact that the Apprendi line of cases constantly had dissents? Justice Kennedy even concurred in the case extending Apprendi to the finding of the existence of aggravating circumstances in a death penalty case, on stare decisis grounds. Even if Kennedy, in an about face, wants to overrule Apprendi, the court doesn’t have the votes to do so(, although I’d be shocked if Roberts or Alito would have voted with the majority in the Apprendi line of cases, and am thus positive that there remains no chance of Harris being overruled).
Jacob,
I gather Kennedy’s “real intent” in filing his concurrence is to express his openness to reconsidering that line of cases.
Orin~
I probably put bluster over rigor in my comment. My more nuanced response is that I don’t believe we really have enough data points since Alito joined the Court to tell whether or not there will be greater consensus under Roberts. Pre-Alito there were a few surprise consensus opinions (e.g. Ayotte), but these are probably more attributable to the Court’s desire to restrain itself during a membership flux than any grand consensus.
That said, I disagree with the popular meme which uses the handful of data points that do exist to extrapolate a pattern. Maybe Roberts will surprise me and prove to be a great consensus builder, but we should give him a few terms before making broad sweeping statements about the personality of the Roberts Court.