Is the Supreme Court finally ready to stop tinkering with capital sentencing procedure? Today's decision in Kansas v. Marsh raises that possibility. Years ago, when Justice Blackmun said he would "no longer tinker with the machinery of death," many of us said, "Good! Stop tinkering!" Regrettably, the Court continued.
For 34 years now, the Supreme Court has been unable to agree with itself from one year to the next what the Constitution forbids and what it requires. Some of this history is described in CJLF's brief in Ayers v. Belmontes, a California capital case to be argued next Term. While the whole line of Eighth Amendment cases beginning with Furman v. Georgia was intended to prevent arbitrariness in capital sentencing, the constant tinkering with the rules has itself been a primary source of arbitrariness. Murderers have been regularly taken off death row with no regard for the heinousness of their crimes because a court decided that a standard procedure or instruction previously considered valid has magically become a violation of an amendment ratified over 200 years ago.
The cause of much of the problem has been the 1978 case of Lockett v. Ohio. On its facts, Lockett was an easy case. An accomplice in a robbery was sentenced to death for a killing that occurred as she waited outside in the car. The Ohio statute in force at the time was essentially a mandatory statute. It required the death penalty for every capital murder in which none of three disqualifying circumstance was true. The Court could easily have struck it down with only a very minor extension of its 1976 cases throwing out mandatory capital sentencing laws. Instead, in one of the most high-handed edicts in American constitutional history, the plurality declared that capital sentencers must consider any aspect of the crime or of the defendant's character or record that he proffers as mitigating. The unresolved conflict between this pronouncement and the decisions two years earlier have plagued capital punishment ever since. Every time trial courts and jury instruction writers think they know what the Constitution "requires" in this area, the Supreme Court and, to a lesser degree, state high courts and federal circuit courts, discover some previously unknown facet of the Lockett rule.
The decisions of the Kansas Supreme Court in its Kleypas and Marsh opinions were the latest in the series. The United States Supreme Court had achieved at least some degree of coherence when it declared that a discretionary capital sentencing system was sufficient if it narrowed the class of defendants eligible for the death penalty and then permitted the sentencer to give effect to any mitigating evidence regarding the crime, character, or record. The Kansas Supreme Court found that the Lockett line of cases also forbade the system set up by the Kansas statute, where the jury is instructed to return a death sentence if they find beyond a reasonable doubt that the mitigating circumstances do not outweigh the aggravating.
Justice Thomas's straightforward opinion rejects this holding as contrary to settled law. Indeed, it would have required an extension of Lockett and a rejection of much of what the Court has said before to accept it. It is disturbing that four Justices have so little regard for stare decisis as to accept this argument, but it is heartening that the majority do not.
Justices Scalia, Kennedy, and Thomas were in the majority in Graham v. Collins and Johnson v. Texas and in the dissent in the two Penry cases. That is, since 1989, they consistently rejected attempts to extend the Lockett line to overturn previously approved systems. (Justice Scalia did write Hitchcock v. Dugger in 1987, a decision he probably regrets.) It appears, at least tentatively, that Chief Justice Roberts and Justice Alito share this view, making a solid majority for it for the first time since Justice White retired in 1993.
Procedural tinkering gets fewer headlines than the substantive decisions such as Atkins v. Virginia, exempting the mentally retarded from capital punishment, or Roper v. Simmons on juveniles. Yet the procedural cases are ultimately far more destructive of the effort to achieve an effective death penalty. The substantive decisions exempt small classes of people who are rarely sentenced to death anyway and do so on the basis of a characteristic related to culpability. Procedural changes sweep large numbers of murderers off death row based on the fortuity of timing of their trials and appeals.
The best course at present is to leave the constitutional procedural rules in place but not make any more. Any further improvements to sentencing procedure can be made prospectively by legislation, without disturbing existing sentences. Today's decision is a hopeful sign that a majority of the Court now sees it that way.