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May 31, 2005

A capital waste of time?

In my review of this morning's SCOTUS action here, I suggested I was annoyed by the Court's decision to grant review in the death penalty case of Kansas v. Marsh.  Let me explain this reaction.

First, some background: Kansas enacted a new death penalty statute in 1994 and prosecutors had sent seven men to Kansas' death row before the Kansas Supreme Court in Marsh last December found what has been described as a "technical flaw" in the operation of the state's capital sentencing procedures.  Discussion of the Marsh ruling is available in posts here and here, and the Death Penalty Information Center's state-by-state charts provide more background on capital punishment in Kansas.

Now, my complaint: No aspect of Marsh, other than that it is a capital case, seems of sufficient significance to merit a place on the Supreme Court's ever-shrinking docket.  Perhaps the fate of six men still on Kansas' death row could hang in the balance, though I would predict that there will be a lot more litigation about their fate even if SCOTUS reinstates their death sentences.  And realize that, unlike in Miller-El or Penry where the Court has twice reviewed a death sentence that seemed hinky, here the Supreme Court is reviewing a state court decision to overturn a state death sentence.

Especially against the backdrop of all the post-Blakely and post-Booker uncertainty, wherein the fate of literally hundreds of thousands of defendants hang in the balance, I continue to be troubled by the Supreme Court's continued preoccupation (fetishism?) with capital sentencing procedures (which I now am giving the label a "legal culture of death").  The Marsh grant, which I believe is already the third capital case in which cert. has been granted for the 2005 Term, reinforces yet again my recent observations in posts here and here that the Supreme Court is spending too much time and energy on death penalty litigation when there are many post-Blakely and post-Booker legal questions concerning non-capital sentencing procedures that are far more pressing and of much greater national import.

UPDATE: Lyle Denniston at SCOTUSblog has a long post about Marsh entitled "A major death penalty case? Maybe not."  Lyle's terrifically helpful report suggests that perhaps the substantive issue in Marsh might be of some broader significance, but it also suggests that the procedural posture of the case is likely to ensure a messy outcome.

May 31, 2005 at 11:18 AM | Permalink


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» Blog Round-Wednesday, June 1st from SCOTUSblog
Here is William Patry with a behind the scenes glimpse into Justice Blackmun and Sony Corp. v. Universal Studios. Professor Douglas Berman discusses Kansas v. Marsh here.... [Read More]

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Here is William Patry with a behind the scenes glimpse into Justice Blackmun and Sony Corp. v. Universal Studios. Professor Douglas Berman discusses Kansas v. Marsh here.... [Read More]

Tracked on Jun 1, 2005 1:55:33 PM


At the risk of sounding like a contrarian, capital cases, while few in numbers, are "bandwidth hogs." What I mean by that is that they eat up, rightfully so, hundreds of hours per case of time (both law clerk in otherwise) in the lower federal and state courts. In some jurisdictions they count for as much as 40-50% of the court's actual time. Compared with every other sort of case out there they will get disparately little treatment bythe Court for the amount of judicial resources they consume. The AEDPA was supposed to streamline the process so that these cases would take up less resources. Unfortunately, like almost every other bloated government venture, the giant fiscal sinkhole that is the death penalty is a colossal failure.

Of course considering the site I maintain I am probably biased.

- k

Posted by: karl | May 31, 2005 1:30:19 PM

Karl, good points, although I think we'd likely agree that both of our perspectives lead to the notion that DP abolition is justified on what might be called "efficiency grounds."

Posted by: Doug B. | May 31, 2005 1:41:53 PM

Assuming SCOTUS is able to reach the merits, any idea how many states have statutes that permit imposition of the death penalty where aggravating and mitigating factors are in equipoise?

Posted by: Donald | May 31, 2005 6:05:01 PM

Donald, I am pretty sure only Kansas has a statute of this nature (which is why the case seems important only for a handful of cases). But, as discussed in a later post, perhaps the adjudication of Marsh might have broader significance for other capital statutes which are vague on how aggravators and mitigators are to be weighed.

Posted by: Doug B. | May 31, 2005 7:31:20 PM

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