It’s That Time of Year
If it’s late June, this must be the U.S. Supreme Court.
The justices are hard at work these last few days of the term, announcing a plethora of eye-catching controversial decisions certain to be water cooler fodder for perhaps the next week or so.
Kansas v. Marsh, a death penalty case, is one of those decisions. The case was decided 5-4. Justice Clarence Thomas wrote the majority opinion.
“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 in equipose, is constitutional. Accordingly, we reverse the judgment of the Kansas Supreme Court, and remand the case for further proceedings not inconsistent with this opinion.” Marsh, Slip Opinion at pp. 17-18
Huh? Here’s the scenario. A jury in a death penalty case has found a defendant guilty. Next the jury must impose a sentence. In its sentencing deliberations, the jury considers aggravating and mitigating circumstances. Marsh says that when the jury determines that mitigating circumstances and aggravating circumstances are equal, the jury must impose a sentence of death.
More telling than the actual decision by the U.S. Supreme Court are Justice Thomas’ words in a part of the opinion referred to as dicta. That’s lawyer code for “don’t try to use this when you argue a case.” Justice Thomas writes,
“Indeed, the logical consequences of the dissent’s argument 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 imposes. 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.”
Moral authority? Precedents? Can you say Brown v. Board of Education?