The death penalty and the mercy option
on Dec 7, 2005 at 2:02 pm
The Supreme Court set out on Wednesday in search of a simple constitutional formula for assuring that jurors in death penalty cases have the option of simply turning away from such a sentence as an act of mercy. In particular, the Court was examining whether the state of Kansas had found such a formula with a law that, on its face, would seem to make death sentences more likely.
In the highly complex constitutional mechanism of death that the Court has built with decisions in recent decades, it is clear that states must provide jurors with a way to give a convicted murderer the full benefit of any evidence offered to try to prevent a sentence of death — that is, in legal terms, “mitigating” evidence that might offset the “aggravating” evidence in favor of such a sentence. But the Court has left the states with considerable discretion as to how they write that concept into capital punishment statutes.
The Kansas case (Kansas v. Marsh, 04-1170) tests a state’s choice of opting for death if there is a tie between mitigation and aggravation. In a 2001 ruling that the Kansas Supreme Court reiterated in a decision last December, the state court found that “equipoise” formula a violation of the Eighth Amendment.
During Wednesday’s argument, though, it appeared that the Court views the Kansas case as potentially of wider significance, with the possibility of providing new guidance on how far states must go to maintain a constitutional safety valve in jurors’ sense of mercy, when death just does not seem the appropriate punishment for a specific individual.
Justice David H. Souter began the exploration by suggesting that Kansas’ approach in effect means that there can be a “presumption of death, other things being equal,” and wondering whether such a presumption would be “consistent with the Eighth Amendment.” But Kansas’ attorney general, Phill Kline, said there was no presumption of death. And, for much of the remainder of his argument, he worked hard to make the point that Kansas’ whole approach to the death sentence is in fact arranged to give juries repeated opportunities to find against capital punishment. Among the safeguards he cited were jury instructions that include a simple option of granting mercy, a requirement of jury unanimity and state proof beyond a reasonable doubt of aggravating factors in the crime, and a very narrow definition of capital murder.
The Court rapidly developed an interest in the mercy option, which Kline described this way: “The jury is instructed that mercy in itself is sufficient to justify a sentence other than death.” Each time he mentioned that, it was in the context of suggesting that Kansas, after all, does not mandate death in any case, even if the law says that, if mitigation and aggravation are in even balance, a death sentence must result. The mercy option, he told Justice Antonin Scalia, allows “the jury to step back and decide what they can live with” in the sentence they impose.
Scalia, who often has complained about the complexity of the
Court’s death penalty jurisprudence, found the mercy option an especially attractive formulation, for its simplicity.
Chief Justice John G. Roberts, Jr., suggested that Kansas’ instructions to capital juries were sufficient to give jurors the option of finding against a death sentence. Justice Anthony M. Kennedy, who seemed to be taking the hardest line in favor of the Kansas law, said that death sentences would result from that law primarily because defense lawyers had failed to bring forth enough mitigating evidence to save their clients.
The lawyer for Kansas death row inmate Michael Lee Marsh — Topeka attorney Rebecca E. Woodman — would prefer to have the Court find that it has no jurisdiction to hear the Kansas appeal because she said it did not truly raise a live federal question. But, given the Court’s evident sympathy for Kline’s argument about the safety valves in Kansas law, Woodman chose to devote most of her argument to contending that the state capital system does not actually operate in the benign way Kline suggested.
As actual cases proceed, she said, prosecutors tell juries that, if mitigating and aggravation appear to be in balance but the jury is having a hard time making up its mind, they should not persevere, but should simply accept that death is to be the punishment. When a jury finds itself “in a state of indecision,” Woodman said, they simply do not persevere, and thus the resulting death sentence is not a reliable reflection of their true “qualitative judgment.”
But Justice Scalia countered that “the jury has to be given the opportunity to grant mercy,” with the chance of finding that “this fellow doesn’t deserve the death penalty,” and that should be sufficient. “That’s only if they persevere, and prosecutors urge them not to persevere,” Woodman replied. But Scalia shot back that, if the jury can’t decide that there is equipoise in the factors, “who loses? The state does.” That, he explained, was because the state has the reasonable doubt burden of proof on the issue.
Although the Court, in granting review of the case, had told the lawyers to discuss the question of whether the Court has jurisdiction, most of the Justices seemed impatient with Woodman’s suggestion that the Eighth Amendment issue was not truly a live issue. The Court was amused, though, when Woodman tried to shore up her argument on the point with a rural analogy: the state, she said, was trying to revive a dead horse — the settled Kansas Supreme Court view from a past case that the state equipoise law was invalid — to try to make a “plowing team” to pull its appeal.
