Death math.

Death math.

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, and hosts the podcast Amicus.


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."


By now it's 12 minutes in, and Alito finally speaks. What he says is either a question or a haiku, having to do with the difference between jurors' moral burden and their psychological burden. The point may be that the aggravating and mitigating factors alleviate the psychological burden of ordering an execution by making it look like algebra.

Kline says he doesn't believe that happens, reiterating that "the default is to life." Alito corrects him, "If the aggravators and mitigators are in equipoise, the default rule is death."

Justice John Paul Stevens (and in case you haven't heard it yet … here's some traveling music) asks whether Kansas could enact a law that would require mitigating factors to "substantially outweigh the aggravating factors." Justice Stephen Breyer says if the jury is indeed "in perfect balance, give me one moral reason that he should be executed." When Kline starts to say, "The law clearly provides …"  Breyer stops him: "I don't want you to be a lawyer. Be a juror. What is the moral reason?"

Justice Anthony Kennedy has one. He says that "the scale is already tipped. [The defendant] stands before us having committed aggravated murder. He has the obligation to show us [mitigating facts]. He has not done so." Kennedy, at least, is not in equipoise.


Rebecca Woodman of the Capital Appellate Defender Office argues on Marsh's side. Roberts asks her how realistic it is to attempt to quantify "these abstract concepts like how much mercy." He wonders how you can quantify the "particularly heinous" nature of this crime in which "he slashed her throat and left her toddler to burn" and say it "exactly comes up to the level" of mitigating factors. He asks, "Is there any reason to think jurors come to balance such inchoate concepts?"

Woodman says jurors do just that, "in close cases." She offers (Doppler radar warns of horrible metaphor storms) a curious example of a wealthy woman hoping to "donate a million dollars to Yale Law School."

Scalia cracks up the room by asking, "Is that an aggravating circumstance?"

But Woodman goes on and at some length about how this hypothetical woman can't choose between two different portraits of her husband to hang on the walls of Yale, and she agonizes because she can't choose. And then some other stuff happens. And then she decides to let the dean choose which portrait to hang.


At the last oral argument in Marsh, Woodman talked about "yoking a live horse to a dead one to form a plowing team …" Maybe somebody should endow a metaphor clinic at Yale Law School instead.

Roberts probably isn't a likely donor, but he gently points out that Woodman's metaphor sucks. He says, in case we missed it the first time, "He is guilty of allowing a 19-month-old to burn to death and slashing the throat of her mother. … I can see thinking two portraits are indistinguishable. I can't see jurors saying 'I can show a lot of mercy or a little mercy, or just enough mercy to be in perfect balance.' "

Roberts is, of course, right. A regime asking jurors to "weigh" or "balance" a clutch of random intangible evils (heinousness of the crime, planning of the crime, whether the crime was done for pecuniary gain) against a clutch of random intangible mitigators (the defendant was dropped on his head as a baby, the defendant is the prison's Scrabble champion) is demented. It's not just weighing apples against oranges. It's a way to make a decision to kill or not kill look like a math problem with one right answer.

Woodman's position is that in the rare cases when a jury finds itself at a 50/50 split on those factors, is not reasonable to call their conclusion a decision. It's a not-decision, and that shouldn't lead to death.

It's awfully rare to hear a Supreme Court argument in which the word "moral" comes up as often as it does today. And in the end, this decision will turn on what "moral" really means to each justice. Scalia thinks its moral for the people of Kansas to decide that equipoise equals death. Souter says that a moral judgment that leads to the death penalty should have the clarity of an either/or decision, not a tie. Breyer, Breyer-like, suggests that you can either see it one way, or the other. But Roberts is right, I think, when he says that all this painstaking counting and measuring of aggravating and mitigating beans simply complicates the hard, messy work of putting someone to death.