Death math.

Oral argument from the court.
April 25 2006 7:13 PM

Death Math

The Supreme Court tinkers with the calculus of capital punishment.

In 1994, Supreme Court Justice Harry Blackmun famously wrote, "From this day forward, I no longer shall tinker with the machinery of death." And whatever you may feel about the merits of expressing that sentiment, there can be no doubt that a huge machine of death is what we have in this country. There are all sorts of ways we persuade ourselves that we aren't really killing the people we execute. The growing clamor about the constitutionality of lethal injection is really just about how gross capital punishment can be before it's too gross to sanction. Similarly, today's re-argument of Kansas v. Marsh is nominally a fight about jurors in "equipoise," but in fact is a fight about how dispassionate and mechanistic a sentence of death can really ever be.

Kansas is one of the states that ask jurors to determine—after a finding of guilt beyond a reasonable doubt—whether a list of predetermined aggravating factors (such as the heinousness of the crime) outweigh mitigating factors. If they do, a death sentence is pronounced. The question for the Supreme Court today is what happens when the jurors are in equipoise—when they find an exactly equal number of aggravating and mitigating factors. The Kansas death-penalty statute provides that, in those cases, "the defendant shall be sentenced to death." In other words, if there's a tie, you die. In a different case, the Kansas Supreme Court has held that this death-penalty statute was unconstitutional in equipoise situations. The Supreme Court must decide whether it's unconstitutional for Marsh.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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Marsh was first argued last December, when Sandra Day O'Connor was still on the court. Presumably the reason the court is hearing a reprise is that the justices split 4-4 (again with the equipoise), and now the outcome of the case hinges on the new appointee: Justice Samuel Alito.

Michael Lee Marsh was sentenced to death for killing Marry Ane Pusch and her 19-month-old daughter. He allegedly shot Marry Ane, stabbed her, slit her throat, set the house on fire, and abandoned the baby to burn. A Kansas jury found him guilty. At the penalty phase of the trial, the jury found three aggravating factors: 1) Marsh knowingly or purposely killed or created a great risk of death to more than one person; 2) he committed the crime to avoid a lawful arrest or prosecution; and 3) he committed the crime in an especially heinous, atrocious, or cruel manner. The jury was instructed that a tie goes to the state and found these aggravating factors were not outweighed by mitigating circumstances. They agreed to a sentence of death. The question is whether a theoretical case of equipoise violates the Eighth Amendment requirement that jurors must individually assess the aggravating and mitigating factors before giving a death sentence.

Kansas Attorney General Phill "All teen sex is rape" Kline argues the state's side. He quickly realizes that his best bet is to get out of the way and let Justices Antonin Scalia and David Souter talk to each other directly.

When Kline says of the Kansas death-penalty scheme, "We default to life at about every stage," Souter stops him to say that he has trouble squaring Kline's rhetoric with Kansas' decision that "if a jury cannot find that the aggravating factors outweigh the mitigating factors, you can find death anyway." Kline has called the Kansas approach "a reasoned moral response." Souter says it's hardly reasoned or moral to have jurors say, "We're on the fence but execute anyway."

Scalia stops Souter by injecting that it is decidedly a reasoned moral response to say: "We have found these horrible aggravating factors. Three of them. We further find no mitigating factors outweigh them."

Souter spits back, "That is not our case. The mitigators are of equal weight."

Says Scalia, "They are equal in a way that doesn't predominate." It seems that the Kansas mitigators and aggravators are somehow separate but equal. Or that the justices are arguing about whether the tie goes to the runner or the tagger. 

The new chief justice (who calls only  balls and strikes) points out that this is "not a numerical equipoise," in other words, there aren't seven concrete units of outrage to be balanced against seven corresponding units of mercy. Jurors can give each factor "whatever numerical weight they want."

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