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December 7, 2005

The distinctive (and disturbing) procedural posture of Guzek and Marsh

Continuing this month of death dramas, on Wednesday the Supreme Court will hear arguments in two capital cases, Oregon v. Guzek and Kansas v. Marsh.  The great descriptions of these cases over at SCOTUSblog (here and here) spotlight not only the interesting substantive issues, but also the distinctive and disturbing procedural posture of the cases before the High Court.  In each case, a state supreme court overturned a state death sentence, possibly on state law grounds; it is not clear SCOTUS should reach the substantive merits in either case.

As detailed in many prior posts (some of which are linked below), I am troubled by how much of the Court's limited docket is devoted to capital cases.  But I ultimately can understand why the Court might want to ensure, in cases like Miller-El or Penry, that potentially hinky death sentences are carefully scrutinized.  But in both Guzek and Marsh, the Court is taking up cases in which a state court decided to overturn a state death sentence: is it really a matter of great national concern, justifying Supreme Court attention, that some state courts may be scrutinizing their own state death sentences too carefully?

The Supreme Court's decision to get involved in in Guzek and Marsh inevitably extends the litigation in these cases.  As I understand Guzek, not only has the defendant's death sentence already been vacated and remanded for re-sentencing four times(!), but even a US Supreme Court ruling for the prosecution would not eliminate the necessity of re-sentencing the defendant yet again.  There has got to be a better way.

Related posts:

UPDATE: Howard at How Appealing in this post collects links to death penalty newspaper articles, including this effective review of the issues in Kansas v. Marsh.

December 7, 2005 at 12:23 AM | Permalink


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Does not the state have an interest in seeing that its laws, including its laws prescribing capital punishment, are carried out? Professor Berman's view appears to be that it is only worthwhile to prevent the death penalty from being imposed, but that there are no countervailing interests that would justify the Court's attention. And the suggestion that the cases were decided on state-law grounds is a red herring, as it is well-settled since Michigan v. Long what a state court needs to announce in order to insulate its decisions from review.

I disagree strongly with the death penalty, but I do not agree that the Court should not review what may have been an error of federal law or constitutional law in the interest of putting a thumb on the scale in favor of exculpation.

Posted by: Lars Navaho | Dec 7, 2005 10:51:54 AM

Lars, legal decisions involve thumbs on the scale for defendants all the time, including in the appellate process (e.g., no prosecutorial appeals of acquittals). Also, through our AEDPA rules, we put our thumb on the scale to keep the feds from unduly interfering with even state applications of federal constitutional law. Finally, I surmise that, when it comes to cert grant choices, lots of different thumbs end up on the scale.

Ultimately, my biggest gripe is that there seems to be a very strong thumb on the scale to grant cert in capital cases. But it seems especially troublesome not to lighten the pressure of that thumb on the scale if/when SCOTUS involvement could overturn a state court ruling that is arguably on state law grounds AND simply ensures that the death penalty is not applied too broadly.

Posted by: Doug B. | Dec 7, 2005 1:37:05 PM

I won't weigh in on the substantive (8th amendment) issue, but there is NO DOUBT in my mind that the Supreme Court has jurisdiction to review it. The defendant's effort to have the benefit of a judgment declaring the death penalty statute facially invalid (and not severable) while preventing the State of Kansas from obtaining High Court review of the federal constitutional issue is extremely inequitable.

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