Kansas v. Marsh

[Peter]

Argued 7 December, 2005
Re-argued 25 March, 2006

Questions presented

Discuss.

I especially liked this line from the second argument from David Souter:

But here we have, it seems to me, to be a stark finding that it has not been proven. That is what "equipoise" means. If aggravators are the basis for a death sentence, the equipoise finding is, "Aggravators don't predominate. We cannot make that conclusion. We're right on the fence." And it seems to me that to call that a reasoned moral response -- "We're on the fence, but execute anyway" -- seems a total inconsistency.

[Emsworth]

Cases like Kansas v. Marsh arise (to paraphrase Antonin Scalia) as a result of the Supreme Court's Eighth Amendment death-is-different jurisprudence. This jurisprudence is completely unjustified, and finds no support in the text of the Constitution.

The Eighth Amendment is concerned only with the type of punishment imposed. It bears no relation to the procedures used in determining the punishment. It does not matter whether the penalty is inflicted in the presence of one aggravating factor, or of dozens of aggravating factors, or of no aggravating factors at all. As long as the penalty itself is neither cruel nor unusual (a condition satisfied by capital punishment), the requirements of the Eighth Amendment are satisfied.