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In 1972, in Furman v. Georgia, the Supreme Court deemed it "incontestable" that a death sentence is cruel and unusual if inflicted "by reason of [the defendant's] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices." Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capital crimes. The issue of innocence was barely a footnote in Furman; the Court's concerns focused on race, class, and fairness in the imposition of the ultimate punishment.

Four years later, Gregg v. Georgia cautiously put the executioner back in business, conditioned upon a system of guided discretion designed to minimize the death penalty's arbitrary and discriminatory inclinations. On the same day the Court in Woodson v. North Carolina held that a reasoned, moral response to any crime required consideration of the unique circumstances of each offender, it struck down statutes that provided for the automatic imposition of the death penalty for defendants convicted of murder. It thus made individualized consideration of the background and character of the accused "a constitutionally indispensable part of the process of inflicting the penalty of death."

The Court's recent decision in Kansas v. Marsh appears to deviate from the Eighth Amendment protections insisted upon by Furman's progeny. In Marsh, the Court responded to a Kansas Supreme Court decision invalidating a capital sentencing statute that required jurors to impose a death sentence even if they were unable to decide whether mitigating circumstances outweighed aggravating factors. At the heart of Justice Thomas's opinion is a rejection of the Kansas Supreme Court's interpretation of its own state's statute. A remarkable aspect of Marsh is that even though the case was strictly about capital sentencing, the issue of executing the innocent dominated the opinions of five justices.

Justice Souter is correct that Marsh's rule maximizing death sentences undoubtedly increases the risk of executing the innocent. Equally true is that putting guesswork back into capital sentencing is certain to exacerbate the existing pattern of arbitrary and discriminatory imposition of the death penalty against the poor, minorities, and other disenfranchised members of society. These concerns are the focus of the Eighth Amendment; the mandate of reliability in capital sentencing has never been viewed as a protection for the wrongly convicted.

The issue is now returned to the Kansas Supreme Court, which should consider whether the Kansas Constitution's prohibition of "cruel or unusual punishment" dictate a different outcome. By refusing to become the only State to require undecided jurors to impose death, and by continuing to insist on reliability in the determination that death is the appropriate punishment, the Kansas Supreme Court can make an important stand for human decency.

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Michigan Law Review



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