KANSAS v. MARSH

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KANSAS v. MARSH
certiorari to the supreme court of kansas
No. 04–1170. Argued December 7, 2005—Reargued April 25, 2006—
Decided June 26, 2006
Finding three aggravating circumstances that were not outweighed by
mitigating circumstances, a Kansas jury convicted respondent Marsh of,
inter alia, capital murder and sentenced him to death. Marsh claimed
on direct appeal that Kan. Stat. Ann. § 21–4624(e) establishes an uncon
stitutional presumption in favor of death by directing imposition of the
death penalty when aggravating and mitigating circumstances are in
equipoise. Agreeing, the Kansas Supreme Court concluded that § 21–
4624(e)’s weighing equation violated the Eighth and Fourteenth Amend
ments and remanded for a new trial.
Held:
1. This Court has jurisdiction to review the Kansas Supreme Court’s
judgment under 28 U. S. C. § 1257. That provision authorizes review of
a State’s final judgment when a state statute’s validity is questioned
on federal constitutional grounds, and it permits review even when the
state-court proceedings are not complete where the federal claim has
been finally decided and later review of the federal issue cannot be had,
whatever the case’s outcome, Cox Broadcasting Corp. v. Cohn, 420 U. S.
469, 481. Although Marsh will be retried, the State Supreme Court’s
determination that the death penalty statute is unconstitutional is final
and binding on the lower state courts. Thus, the State will be unable
to obtain further review of its law in this case. This Court has deemed
lower court decisions final for § 1257 purposes in like circumstances, see,
e. g., Florida v. Meyers, 466 U. S. 380 (per curiam). Pp. 168–169.
2. The State Supreme Court’s judgment is not supported by adequate
and independent state grounds. Marsh maintains that the judgment
was based on state law, the State Supreme Court having previously
reviewed the statute in State v. Kleypas. However, Kleypas itself
rested on federal law. In this case, the State Supreme Court chastised
the Kleypas court for avoiding the constitutional issue, squarely found
§ 21–4624(e) unconstitutional on its face, and overruled Kleypas in rele
vant part. P. 169.
3. Kansas’ capital sentencing statute is constitutional. Pp. 169–181.
(a) Walton v. Arizona, 497 U. S. 639, requires approval of the Kan
sas statute. There, the Court held that a state death penalty statute
may give the defendant the burden to prove that mitigating circum

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stances outweigh aggravating circumstances. A fortiori, Kansas’ death
penalty statute, consistent with the Constitution, may direct imposition
of the death penalty when the State has proved beyond a reasonable
doubt that mitigators do not outweigh aggravators, including where the
two are in equipoise. Pp. 169–173.
(b) Even if, as Marsh contends, Walton does not directly control
here, general principles in this Court’s death penalty jurisprudence lead
to the same conclusion. So long as a state system satisfies the require
ments of Furman v. Georgia, 408 U. S. 238, and Gregg v. Georgia, 428
U. S. 153—that a system must rationally narrow the class of death
eligible defendants and must permit a jury to render a reasonable, indi
vidualized sentencing determination—a State has a range of discretion
in imposing the death penalty, including the manner in which aggravat
ing and mitigating circumstances are weighed. The use of mitigation
evidence is a product of the individual-sentencing requirement. De
fendants have the right to present sentencers with information relevant
to the sentencing decision, and sentencers are obliged to consider that
information in determining the appropriate sentence. The thrust of
this Court’s mitigation jurisprudence ends here, for the Court has never
held that the Constitution requires a specific method for balancing ag
gravating and mitigating factors. Pp. 173–175.
(c) Kansas’ death penalty statute satisfies the constitutional man
dates of Furman and its progeny because it rationally narrows the class
of death-eligible defendants and permits a jury to consider any mitigat
ing evidence relevant to its sentencing determination. The State’s
weighing equation merely channels a jury’s discretion by providing cri
teria by which the jury may determine whether life or death is appro
priate. Its system provides the kind of guided discretion sanctioned in,
e. g., Walton, supra. Contrary to Marsh’s argument, § 21–4624(e) does
not create a general presumption in favor of the death penalty. A life
sentence must be imposed if the State fails to demonstrate the existence
of an aggravating circumstance beyond a reasonable doubt, if the State
cannot prove beyond a reasonable doubt that aggravating circumstances
are not outweighed by mitigating circumstances, or if the jury is unable
to reach a unanimous decision in any respect. Marsh’s contentions that
an equipoise determination reflects juror confusion or inability to decide
between life and death or that the jury may use equipoise as a loophole
to shirk its constitutional duty to render a reasoned, moral sentencing
decision rest on an implausible characterization of the Kansas statute—
that a jury’s determination that aggravators and mitigators are in equi
poise is not a decision, much less a decision for death. Weighing is not
an end, but a means to reaching a decision. Kansas’ instructions clearly

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inform the jury that a determination that the evidence is in equipoise is
a decision for death. Pp. 175–180.
278 Kan. 520, 102 P. 3d 445, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, and Alito, JJ., joined. Scalia, J., filed a concur
ring opinion, post, p. 182. Stevens, J., filed a dissenting opinion, post,
p. 199. Souter, J., filed a dissenting opinion, in which Stevens, Gins
burg, and Breyer, JJ., joined, post, p. 203.
Phill Kline, Attorney General of Kansas, argued and rear
gued the cause for petitioner. With him on the briefs were
Nola Tedesco Foulston, Jared S. Maag, Deputy Attorney
General, Kristafer Ailslieger, Assistant Attorney General,
Theodore B. Olson, Mark A. Perry, Matthew D. McGill,
Chad A. Readler, and Mary Beth Young.
Rebecca E. Woodman argued and reargued the cause and
filed a brief for respondent.*
Justice Thomas delivered the opinion of the Court.
Kansas law provides that if a unanimous jury finds that
aggravating circumstances are not outweighed by mitigating
circumstances, the death penalty shall be imposed. Kan.
Stat. Ann. § 21–4624(e) (1995). We must decide whether this
statute, which requires the imposition of the death penalty
*Kent S. Scheidegger and Charles L. Hobson filed a brief for the Crimi
nal Justice Legal Foundation as amicus curiae urging reversal.
Sean D. O’Brien, David Gottlieb, and Nathan B. Webb, all pro se, filed
a brief for Kansas Law Professors as amici curiae urging affirmance.
A brief of amici curiae was filed for the State of Arizona et al. by Terry
Goddard, Attorney General of Arizona, Mary O’Grady, Solicitor General,
Kent Cattani, and Gene C. Schaerr, by William E. Thro, State Solicitor
General of Virginia, and by the Attorneys General for their respective
States as follows: Troy King of Alabama, John W. Suthers of Colorado,
Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Charles C.
Foti, Jr., of Louisiana, Jim Hood of Mississippi, Mike McGrath of Mon
tana, Brian Sandoval of Nevada, Henry McMaster of South Carolina,
Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg
Abbott of Texas, and Rob McKenna of Washington.

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when the sentencing jury determines that aggravating evi
dence and mitigating evidence are in equipoise, violates the
Constitution. We hold that it does not.
I
Respondent Michael Lee Marsh II broke into the home of
Marry Ane Pusch and lay in wait for her to return. When
Marry Ane entered her home with her 19-month-old daugh
ter, M. P., Marsh repeatedly shot Marry Ane, stabbed her,
and slashed her throat. The home was set on fire with the
toddler inside, and M. P. burned to death.
The jury convicted Marsh of the capital murder of M. P.,
the first-degree premeditated murder of Marry Ane, aggra
vated arson, and aggravated burglary. The jury found be
yond a reasonable doubt the existence of three aggravating
circumstances, and that those circumstances were not out
weighed by any mitigating circumstances. On the basis of
those findings, the jury sentenced Marsh to death for the
capital murder of M. P. The jury also sentenced Marsh to
life imprisonment without possibility of parole for 40 years
for the first-degree murder of Marry Ane, and consecutive
sentences of 51 months’ imprisonment for aggravated arson
and 34 months’ imprisonment for aggravated burglary.
On direct appeal, Marsh challenged § 21–4624(e), which
reads:
“If, by unanimous vote, the jury finds beyond a reason
able doubt that one or more of the aggravating circum
stances enumerated in K. S. A. 21–4625 . . . exist and,
further, that the existence of such aggravating circum
stances is not outweighed by any mitigating circum
stances which are found to exist, the defendant shall be
sentenced to death; otherwise, the defendant shall be
sentenced as provided by law.”
Focusing on the phrase “shall be sentenced to death,” Marsh
argued that § 21–4624(e) establishes an unconstitutional pre

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sumption in favor of death because it directs imposition of
the death penalty when aggravating and mitigating circum
stances are in equipoise.
The Kansas Supreme Court agreed, and held that the Kan
sas death penalty statute, § 21–4624(e), is facially unconstitu
tional. 278 Kan. 520, 534–535, 102 P. 3d 445, 458 (2004).
The court concluded that the statute’s weighing equation
violated the Eighth and Fourteenth Amendments of the
United States Constitution because, “[i]n the event of equi
poise, i. e., the jury’s determination that the balance of any
aggravating circumstances and any mitigating circumstances
weighed equal, the death penalty would be required.” Id.,
at 534, 102 P. 3d, at 457. The Kansas Supreme Court
affirmed Marsh’s conviction and sentence for aggravated
burglary and premeditated murder of Marry Ane, and re
versed and remanded for new trial Marsh’s convictions for
capital murder of M. P. and aggravated arson.1 We granted
certiorari, 544 U. S. 1060 (2005), and now reverse the
Kansas Supreme Court’s judgment that Kansas’ capital sen
tencing statute, Kan. Stat. Ann. § 21–4624(e), is facially
unconstitutional.
II
In addition to granting certiorari to review the constitu
tionality of Kansas’ capital sentencing statute, we also di
rected the parties to brief and argue: (1) whether we have
jurisdiction to review the judgment of the Kansas Supreme
Court under 28 U. S. C. § 1257, as construed by Cox Broad
casting Corp. v. Cohn, 420 U. S. 469 (1975); and (2) whether
the Kansas Supreme Court’s judgment is supported by ade
quate state grounds independent of federal law. 544 U. S.
1060. Having considered the parties’ arguments, we con
1 The Kansas Supreme Court found that the trial court committed re
versible error by excluding circumstantial evidence of third-party guilt
connecting Eric Pusch, Marry Ane’s husband, to the crimes, and accord
ingly ordered a new trial on this ground. 278 Kan., at 528–533, 102 P. 3d,
at 454–457.

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clude that we have jurisdiction in this case and that the con
stitutional issue is properly before the Court.
A
Title 28 U. S. C. § 1257 authorizes this Court to review, by
writ of certiorari, the final judgment of the highest court of
a State when the validity of a state statute is questioned on
federal constitutional grounds. This Court has determined
that the foregoing authorization permits review of the judg
ment of the highest court of a State, even though the state
court proceedings are not yet complete, “where the federal
claim has been finally decided, with further proceedings
on the merits in the state courts to come, but in which
later review of the federal issue cannot be had, whatever the
ultimate outcome of the case.” Cox Broadcasting, supra,
at 481.
Here, although Marsh will be retried on the capital murder
and aggravated arson charges, the Kansas Supreme Court’s
determination that Kansas’ death penalty statute is facially
unconstitutional is final and binding on the lower state
courts. Thus, the State will be unable to obtain further re
view of its death penalty law later in this case. If Marsh is
acquitted of capital murder, double jeopardy and state law
will preclude the State from appealing. If he is reconvicted,
the State will be prohibited under the Kansas Supreme
Court’s decision from seeking the death penalty, and there
would be no opportunity for the State to seek further review
of that prohibition. Although Marsh argues that a provision
of the Kansas criminal appeals statute, Kan. Stat. Ann. § 22–
3602(b) (2003 Cum. Supp.), would permit the State to appeal
the invalidation of Kansas’ death penalty statute, that con
tention is meritless. That statute provides for limited ap
peal in only four enumerated circumstances, none of which
apply here. We have deemed lower court decisions final for
28 U. S. C. § 1257 purposes in like circumstances, see Florida
v. Meyers, 466 U. S. 380 (1984) (per curiam); South Dakota

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v. Neville, 459 U. S. 553 (1983); New York v. Quarles, 467
U. S. 649 (1984), and do so again here.
B
Nor is the Kansas Supreme Court’s decision supported by
adequate and independent state grounds. Marsh maintains
that the Kansas Supreme Court’s decision was based on the
severability of § 21–4624(e) under state law, and not the con
stitutionality of that provision under federal law, the latter
issue having been resolved by the Kansas Supreme Court in
State v. Kleypas, 272 Kan. 894, 40 P. 3d 139 (2001) (per cu
riam). Marsh’s argument fails.
Kleypas, itself, rested on federal law. See id., at 899–903,
40 P. 3d, at 166–167. In rendering its determination here,
the Kansas Supreme Court observed that Kleypas, “held
that the weighing equation in K. S. A. 21–4624(e) as writ
ten was unconstitutional under the Eighth and Fourteenth
Amendments” as applied to cases in which aggravating evi
dence and mitigating evidence are equally balanced. 278
Kan., at 534, 102 P. 3d, at 457. In this case, the Kansas
Supreme Court chastised the Kleypas court for avoiding the
constitutional issue of the statute’s facial validity, squarely
held that § 21–4624(e) is unconstitutional on its face, and
overruled the portion of Kleypas upholding the statute
through the constitutional avoidance doctrine and judicial re
vision. 278 Kan., at 534–535, 539–542, 102 P. 3d, at 458, 462.
As in Kleypas, the Kansas Supreme Court clearly rested its
decision here on the Eighth and Fourteenth Amendments to
the United States Constitution. We, therefore, have juris
diction to review its decision. See Michigan v. Long, 463
U. S. 1032, 1040–1041 (1983).
III
This case is controlled by Walton v. Arizona, 497 U. S. 639
(1990), overruled on other grounds, Ring v. Arizona, 536
U. S. 584 (2002). In that case, a jury had convicted Walton

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of a capital offense. At sentencing, the trial judge found the
existence of two aggravating circumstances and that the mit
igating circumstances did not call for leniency, and sentenced
Walton to death. 497 U. S., at 645. The Arizona Supreme
Court affirmed, and this Court granted certiorari to resolve
the conflict between the Arizona Supreme Court’s decision
in State v. Walton, 159 Ariz. 571, 769 P. 2d 1017 (1989) (en
banc) (holding the Arizona death penalty statute constitu
tional), and the Ninth Circuit’s decision in Adamson v. Rick
etts, 865 F. 2d 1011, 1043–1044 (1988) (en banc) (finding the
Arizona death penalty statute unconstitutional because, “in
situations where the mitigating and aggravating circum
stances are in balance, or, where the mitigating circum
stances give the court reservation but still fall below the
weight of the aggravating circumstances, the statute bars
the court from imposing a sentence less than death”). See
Walton, supra, at 647.
Consistent with the Ninth Circuit’s conclusion in Adam
son, Walton argued to this Court that the Arizona capital
sentencing system created an unconstitutional presumption
in favor of death because it “tells an Arizona sentencing
judge who finds even a single aggravating factor, that death
must be imposed, unless—as the Arizona Supreme Court put
it in Petitioner’s case—there are ‘outweighing mitigating fac
tors.’ ” Brief for Petitioner in Walton v. Arizona, O. T.
1989, No. 88–7351, p. 33; see also id., at 34 (arguing that the
statute is unconstitutional because the defendant “ ‘must . . .
bear the risk of nonpersuasion that any mitigating circum
stance will not outweigh the aggravating circumstance’ ” (al
teration omitted)). Rejecting Walton’s argument, see 497
U. S., at 650, 651, this Court stated:
“So long as a State’s method of allocating the burdens of
proof does not lessen the State’s burden to prove every
element of the offense charged, or in this case to prove
the existence of aggravating circumstances, a defend
ant’s constitutional rights are not violated by placing on

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him the burden of proving mitigating circumstances suf
ficiently substantial to call for leniency.” Id., at 650.
This Court noted that, as a requirement of individualized
sentencing, a jury must have the opportunity to consider all
evidence relevant to mitigation, and that a state statute that
permits a jury to consider any mitigating evidence comports
with that requirement. Id., at 652 (citing Blystone v. Penn
sylvania, 494 U. S. 299, 307 (1990)). The Court also point
edly observed that while the Constitution requires that a
sentencing jury have discretion, it does not mandate that dis
cretion be unfettered; the States are free to determine the
manner in which a jury may consider mitigating evidence.
497 U. S., at 652 (citing Boyde v. California, 494 U. S. 370,
374 (1990)). So long as the sentencer is not precluded from
considering relevant mitigating evidence, a capital sentenc
ing statute cannot be said to impermissibly, much less auto
matically, impose death. 497 U. S., at 652 (citing Woodson
v. North Carolina, 428 U. S. 280 (1976) (plurality opinion),
and Roberts v. Louisiana, 428 U. S. 325 (1976) (plurality
opinion)). Indeed, Walton suggested that the only capital
sentencing systems that would be impermissibly mandatory
were those that would “automatically impose death upon
conviction for certain types of murder.” 497 U. S., at 652.
Contrary to Marsh’s contentions and the Kansas Supreme
Court’s conclusions, see 278 Kan., at 536–538, 102 P. 3d, at
459, the question presented in the instant case was squarely
before this Court in Walton. Though, as Marsh notes, the
Walton Court did not employ the term “equipoise,” that
issue undeniably gave rise to the question this Court sought
to resolve, and it was necessarily included in Walton’s argu
ment that the Arizona system was unconstitutional because
it required the death penalty unless the mitigating circum
stances outweighed the aggravating circumstances. See
supra, at 170. Moreover, the dissent in Walton reinforces
what is evident from the opinion and the judgment of the
Court—that the equipoise issue was before the Court, and

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that the Court resolved the issue in favor of the State. In
deed, the “equipoise” issue was, in large measure, the basis
of the Walton dissent. See 497 U. S., at 687–688 (opinion of
Blackmun, J.) (“If the mitigating and aggravating circum
stances are in equipoise, the [Arizona] statute requires that
the trial judge impose capital punishment. The assertion
that a sentence of death may be imposed in such a case runs
directly counter to the Eighth Amendment requirement that
a capital sentence must rest upon a ‘determination that death
is the appropriate punishment in a specific case’ ”). Thus,
although Walton did not discuss the equipoise issue explic
itly, that issue was resolved by its holding. Cf. post, at 199–
200 (Stevens, J., dissenting); cf. also post, at 203–204, n. 1
(Souter, J., dissenting).
Our conclusion that Walton controls here is reinforced by
the fact that the Arizona and Kansas statutes are comparable
in important respects. Similar to the express language of
the Kansas statute, the Arizona statute at issue in Walton
has been consistently construed to mean that the death pen
alty will be imposed upon a finding that aggravating circum
stances are not outweighed by mitigating circumstances.2
See State v. Ysea, 191 Ariz. 372, 375, 956 P. 2d 499, 502 (1998)
(en banc); State v. Gretzler, 135 Ariz. 42, 55, 659 P. 2d 1, 14
(1983) (in banc); Adamson, supra, at 1041–1043. Like the
Kansas statute, the Arizona statute places the burden of
proving the existence of aggravating circumstances on the
State, and both statutes require the defendant to proffer mit
igating evidence.
2 Arizona Rev. Stat. Ann. § 13–703(E) (West Supp. 2005) provides:
“In determining whether to impose a sentence of death or life imprison
ment, the trier of fact shall take into account the aggravating and mitigat
ing circumstances that have been proven. The trier of fact shall impose
a sentence of death if the trier of fact finds one or more of the aggravating
circumstances enumerated in subsection F of this section and then deter
mines that there are no mitigating circumstances sufficiently substantial
to call for leniency.”

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The statutes are distinct in one respect. The Arizona
statute, once the State has met its burden, tasks the defend
ant with the burden of proving sufficient mitigating circum
stances to overcome the aggravating circumstances and that
a sentence less than death is therefore warranted. In con
trast, the Kansas statute requires the State to bear the bur
den of proving to the jury, beyond a reasonable doubt, that
aggravators are not outweighed by mitigators and that a sen
tence of death is therefore appropriate; it places no addi
tional evidentiary burden on the capital defendant. This
distinction operates in favor of Kansas capital defendants.
Otherwise the statutes function in substantially the same
manner and are sufficiently analogous for our purposes.
Thus, Walton is not distinguishable from the instant case.
Accordingly, the reasoning of Walton requires approval of
the Kansas death penalty statute. At bottom, in Walton,
the Court held that a state death penalty statute may place
the burden on the defendant to prove that mitigating circum
stances outweigh aggravating circumstances. A fortiori,
Kansas’ death penalty statute, consistent with the Constitu
tion, may direct imposition of the death penalty when the
State has proved beyond a reasonable doubt that mitigators
do not outweigh aggravators, including where the aggra
vating circumstances and mitigating circumstances are in
equipoise.
IV
A
Even if, as Marsh contends, Walton does not directly con
trol, the general principles set forth in our death penalty
jurisprudence would lead us to conclude that the Kansas cap
ital sentencing system is constitutionally permissible. To
gether, our decisions in Furman v. Georgia, 408 U. S. 238
(1972) (per curiam), and Gregg v. Georgia, 428 U. S. 153
(1976) ( joint opinion of Stewart, Powell, and Stevens, JJ.),
establish that a state capital sentencing system must:

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(1) rationally narrow the class of death-eligible defendants;
and (2) permit a jury to render a reasoned, individualized
sentencing determination based on a death-eligible defend
ant’s record, personal characteristics, and the circumstances
of his crime. See id., at 189. So long as a state system
satisfies these requirements, our precedents establish that a
State enjoys a range of discretion in imposing the death pen
alty, including the manner in which aggravating and mitigat
ing circumstances are to be weighed. See Franklin v. Ly
naugh, 487 U. S. 164, 179 (1988) (plurality opinion) (citing
Zant v. Stephens, 462 U. S. 862, 875–876, n. 13 (1983)).
The use of mitigation evidence is a product of the require
ment of individualized sentencing. See Graham v. Collins,
506 U. S. 461, 484–489 (1993) (Thomas, J., concurring) (dis
cussing the development of mitigation precedent). In Lock
ett v. Ohio, 438 U. S. 586, 604 (1978), a plurality of this Court
held that “the Eighth and Fourteenth Amendments require
that the sentencer . . . not be precluded from considering, as
a mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.”
(Emphasis in original.) The Court has held that the sen
tencer must have full access to this “ ‘highly relevant’ ” infor
mation. Id., at 603 (quoting Williams v. New York, 337 U. S.
241, 247 (1949); alteration omitted). Thus, in Lockett, the
Court struck down the Ohio death penalty statute as uncon
stitutional because, by limiting a jury’s consideration of miti
gation to three factors specified in the statute, it prevented
sentencers in capital cases from giving independent weight
to mitigating evidence militating in favor of a sentence other
than death. 438 U. S., at 604–605. Following Lockett, in
Eddings v. Oklahoma, 455 U. S. 104 (1982), a majority of the
Court held that a sentencer may not categorically refuse to
consider any relevant mitigating evidence. Id., at 114; see
also Skipper v. South Carolina, 476 U. S. 1, 3–4 (1986) (dis
cussing Eddings).

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In aggregate, our precedents confer upon defendants the
right to present sentencers with information relevant to the
sentencing decision and oblige sentencers to consider that
information in determining the appropriate sentence. The
thrust of our mitigation jurisprudence ends here. “[W]e
have never held that a specific method for balancing mitigat
ing and aggravating factors in a capital sentencing proceed
ing is constitutionally required.” Franklin, supra, at 179
(citing Zant, supra, at 875–876, n. 13). Rather, this Court
has held that the States enjoy “ ‘a constitutionally permissi
ble range of discretion in imposing the death penalty.’ ”
Blystone, 494 U. S., at 308 (quoting McCleskey v. Kemp, 481
U. S. 279, 305–306 (1987)). See also 494 U. S., at 307 (stating
that “[t]he requirement of individualized sentencing in capi
tal cases is satisfied by allowing the jury to consider all rele
vant mitigating evidence”); Graham, supra, at 490 (Thomas,
J., concurring) (stating that “[o]ur early mitigating cases may
thus be read as doing little more than safeguarding the ad
versary process in sentencing proceedings by conferring on
the defendant an affirmative right to place his relevant evi
dence before the sentencer”).
B
The Kansas death penalty statute satisfies the constitu
tional mandates of Furman and its progeny because it ra
tionally narrows the class of death-eligible defendants and
permits a jury to consider any mitigating evidence relevant
to its sentencing determination. It does not interfere, in a
constitutionally significant way, with a jury’s ability to give
independent weight to evidence offered in mitigation.
Kansas’ procedure narrows the universe of death-eligible
defendants consistent with Eighth Amendment require
ments. Under Kansas law, imposition of the death penalty
is an option only after a defendant is convicted of capital
murder, which requires that one or more specific elements
beyond intentional premeditated murder be found. See

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Kan. Stat. Ann. § 21–3439. Once convicted of capital mur
der, a defendant becomes eligible for the death penalty only
if the State seeks a separate sentencing hearing, §§ 21–
4706(c) (2003 Cum. Supp.), 21–4624(a); App. 23 (Instruction
No. 2), and proves beyond a reasonable doubt the existence
of one or more statutorily enumerated aggravating circum
stances. Kan. Stat. Ann. §§ 21–4624(c), (e), and 21–4625;
App. 24 (Instruction No. 3).
Consonant with the individualized sentencing require
ment, a Kansas jury is permitted to consider any evidence
relating to any mitigating circumstance in determining the
appropriate sentence for a capital defendant, so long as that
evidence is relevant. § 21–4624(c). Specifically, jurors are
instructed:
“A mitigating circumstance is that which in fairness
or mercy may be considered as extenuating or reducing
the degree of moral culpability or blame or which justify
a sentence of less than death, although it does not justify
or excuse the offense. The determination of what are
mitigating circumstances is for you as jurors to resolve
under the facts and circumstances of this case.
“The appropriateness of the exercise of mercy can it
self be a mitigating factor you may consider in determin
ing whether the State has proved beyond a reasonable
doubt that the death penalty is warranted.” Id., at 24
(Instruction No. 4).3
Jurors are then apprised of, but not limited to, the factors
that the defendant contends are mitigating. Id., at 25–26.
They are then instructed that “[e]ach juror must consider
every mitigating factor that he or she individually finds to
exist.” Id., at 26.
3 The “mercy” jury instruction alone forecloses the possibility of
Furman-type error as it “eliminate[s] the risk that a death sentence will
be imposed in spite of facts calling for a lesser penalty.” Post, at 206
(Souter, J., dissenting).

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Kansas’ weighing equation, ibid. (Instruction No. 5),
merely channels a jury’s discretion by providing it with crite
ria by which it may determine whether a sentence of life or
death is appropriate. The system in Kansas provides the
type of “ ‘guided discretion,’ ” Walton, 497 U. S., at 659 (citing
Gregg, 428 U. S., at 189), we have sanctioned in Walton,
Boyde, and Blystone.
Indeed, in Boyde, this Court sanctioned a weighing jury
instruction that is analytically indistinguishable from the
Kansas jury instruction under review today. The Boyde
jury instruction read:
“ ‘If you conclude that the aggravating circumstances
outweigh the mitigating circumstances, you shall im
pose a sentence of death. However, if you determine
that the mitigating circumstances outweigh the aggra
vating circumstances, you shall impose a sentence
of confinement in the state prison for life without the
possibility of parole.’ ” 494 U. S., at 374 (emphasis in
original).
Boyde argued that the mandatory language of the instruc
tion prevented the jury from rendering an individualized
sentencing determination. This Court rejected that argu
ment, concluding that it was foreclosed by Blystone, where
the Court rejected a nearly identical challenge to the Penn
sylvania death penalty statute. 494 U. S., at 307.4 In so
holding, this Court noted that the mandatory language of the
statute did not prevent the jury from considering all rele
vant mitigating evidence. Boyde, supra, at 374. Similarly
here, § 21–4624(e) does not prevent a Kansas jury from con
sidering mitigating evidence. Marsh’s argument that the
4 In Blystone, the Pennsylvania statute authorized imposition of a death
sentence if the jury concluded “that the aggravating circumstances out
weigh[ed] the mitigating circumstances present in the particular crime
committed by the particular defendant, or that there [were] no such miti
gating circumstances.” 494 U. S., at 305.

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178 KANSAS v. MARSH
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Kansas provision is impermissibly mandatory is likewise
foreclosed.5
Contrary to Marsh’s argument, § 21–4624(e) does not cre
ate a general presumption in favor of the death penalty in
the State of Kansas. Rather, the Kansas capital sentencing
system is dominated by the presumption that life imprison
ment is the appropriate sentence for a capital conviction. If
the State fails to meet its burden to demonstrate the exist
ence of an aggravating circumstance(s) beyond a reasonable
doubt, a sentence of life imprisonment must be imposed.
Ibid.; App. 27 (Instruction No. 10). If the State overcomes
this hurdle, then it bears the additional burden of proving
beyond a reasonable doubt that aggravating circumstances
are not outweighed by mitigating circumstances. Ibid. (In
struction No. 10); id., at 26 (Instruction No. 5). Signif
icantly, although the defendant appropriately bears the
burden of proffering mitigating circumstances—a burden of
production—he never bears the burden of demonstrating
that mitigating circumstances outweigh aggravating cir
cumstances. Instead, the State always has the burden of
demonstrating that mitigating evidence does not outweigh
5 Contrary to Justice Souter’s assertion, the Court’s decisions in
Boyde and Blystone did not turn on the “predominance of the aggravators”
in those cases. Post, at 205 (dissenting opinion). Rather, those decisions
plainly turned on the fact that the mandatory language of the respective
statutes did not prevent the sentencing jury from “consider[ing] and giv
[ing] effect to all relevant mitigating evidence.” Blystone, supra, at 305.
See also Boyde, 494 U. S., at 377 (“[T]he legal principle we expounded in
Blystone clearly requires rejection of Boyde’s claim as well, because the
mandatory language of [California jury instruction] 8.84.2 is not alleged
to have interfered with the consideration of mitigating evidence”). The
language of the Kansas statute at issue here no more “dictate[s] death,”
post, at 205, than the mandatory language at issue in Boyde and Blystone.
See Blystone, supra, at 305 (explaining that the Pennsylvania statute is
not “ ‘mandatory’ as that term was understood in Woodson [v. North Caro
lina, 428 U. S. 280 (1976),] or Roberts [v. Louisiana, 428 U. S. 325 (1976),]”
because “[d]eath is not automatically imposed upon conviction for certain
types of murder”).

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aggravating evidence. Absent the State’s ability to meet
that burden, the default is life imprisonment. Moreover, if
the jury is unable to reach a unanimous decision—in any
respect—a sentence of life must be imposed. § 21–4624(c);
App. 28 (Instruction No. 12). This system does not create a
presumption that death is the appropriate sentence for capi
tal murder.6
Nor is there any force behind Marsh’s contention that an
equipoise determination reflects juror confusion or inability
to decide between life and death, or that a jury may use
equipoise as a loophole to shirk its constitutional duty to ren
der a reasoned, moral decision, see California v. Brown, 479
U. S. 538, 545 (1987) (O’Connor, J., concurring), regarding
whether death is an appropriate sentence for a particular
defendant. Such an argument rests on an implausible char
acterization of the Kansas statute—that a jury’s determina
tion that aggravators and mitigators are in equipoise is not
a decision, much less a decision for death—and thus misses
the mark. Cf. post, at 206–207 (Souter, J., dissenting) (ar
guing that Kansas’ weighing equation undermines individu
alized sentencing). Weighing is not an end; it is merely a
means to reaching a decision. The decision the jury must
reach is whether life or death is the appropriate punishment.
The Kansas jury instructions clearly inform the jury that a
determination that the evidence is in equipoise is a decision
for—not a presumption in favor of—death. Kansas jurors,
presumed to follow their instructions, are made aware that:
a determination that mitigators outweigh aggravators is a
6 Additionally, Marsh’s argument turns on reading § 21–4624(e) in isola
tion. Such a reading, however, is contrary to “ ‘the well-established prop
osition that a single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall charge.’ ”
Boyde v. California, 494 U. S. 370, 378 (1990) (citing Boyd v. United States,
271 U. S. 104, 107 (1926)). The constitutionality of a State’s death penalty
system turns on review of that system in context. We thus reject his
disengaged interpretation of § 21–4624(e).

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180 KANSAS v. MARSH
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decision that a life sentence is appropriate; a determination
that aggravators outweigh mitigators or a determination
that mitigators do not outweigh aggravators—including a
finding that aggravators and mitigators are in balance—is a
decision that death is the appropriate sentence; and an inabil
ity to reach a unanimous decision will result in a sentence of
life imprisonment. So informed, far from the abdication of
duty or the inability to select an appropriate sentence de
picted by Marsh and Justice Souter, a jury’s conclusion
that aggravating evidence and mitigating evidence are in
equipoise is a decision for death and is indicative of the type
of measured, normative process in which a jury is constitu
tionally tasked to engage when deciding the appropriate sen
tence for a capital defendant.
V
Justice Souter (hereinafter dissent) argues that the ad
vent of DNA testing has resulted in the “exoneratio[n]” of
“innocent” persons “in numbers never imagined before the
development of DNA tests.” Post, at 208. Based upon this
“new empirical argument about how ‘death is different,’ ”
post, at 210, the dissent concludes that Kansas’ sentencing
system permits the imposition of the death penalty in the
absence of reasoned moral judgment.
But the availability of DNA testing, and the questions it
might raise about the accuracy of guilt-phase determinations
in capital cases, is simply irrelevant to the question before
the Court today, namely, the constitutionality of Kansas’ cap
ital sentencing system. Accordingly, the accuracy of the dis
sent’s factual claim that DNA testing has established the
“innocence” of numerous convicted persons under death sen
tences—and the incendiary debate it invokes—is beyond the
scope of this opinion.7
7 But see The Penalty of Death, in Debating the Death Penalty: Should
America Have Capital Punishment? The Experts on Both Sides Make
Their Best Case 117, 127–132, 134 (H. Bedau & P. Cassell eds. 2004). See

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The dissent’s general criticisms against the death penalty
are ultimately a call for resolving all legal disputes in capital
cases by adopting the outcome that makes the death penalty
more difficult to impose. While such a bright-line rule may
be easily applied, it has no basis in law. Indeed, the logical
consequence of the dissent’s argument is that the death pen
alty can only be just in a system that does not permit error.
Because the criminal justice system does not operate per
fectly, abolition of the death penalty is the only answer to
the moral dilemma the dissent poses. This Court, however,
does not sit as a moral authority. Our precedents do not
prohibit the States from authorizing the death penalty, even
in our imperfect system. And those precedents do not em
power this Court to chip away at the States’ prerogatives to
do so on the grounds the dissent invokes today.
* * *
We hold that the Kansas capital sentencing system, which
directs imposition of the death penalty when a jury finds that
aggravating and mitigating circumstances are in equipoise,
is constitutional. Accordingly, we reverse the judgment of
the Kansas Supreme Court and remand the case for further
proceedings not inconsistent with this opinion.
It is so ordered.
also Markman & Cassell, Protecting the Innocent: A Response to the
Bedau-Radelet Study, 41 Stan. L. Rev. 121, 126–145 (1988) (examining ac
curacy in use of the term “innocent” in death penalty studies and litera
ture); Marquis, The Myth of Innocence, 95 J. Crim. L. & C. 501, 508 (2005)
(“Words like ‘innocence’ convey enormous moral authority and are in
tended to drive the public debate by appealing to a deep and universal
revulsion at the idea that someone who is genuinely blameless could
wrongly suffer for a crime in which he had no involvement”); People v.
Smith, 185 Ill. 2d 532, 545, 708 N. E. 2d 365, 371 (1999) (“While a not guilty
finding is sometimes equated with a finding of innocence, that conclusion
is erroneous. . . . Rather, [a reversal of conviction] indicates simply that
the prosecution has failed to meet its burden of proof ”).

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182 KANSAS v. MARSH
Scalia, J., concurring
Justice Scalia, concurring.
I join the opinion of the Court. I write separately to clar
ify briefly the import of my joinder, and to respond at some
what greater length first to Justice Stevens’ contention
that this case, and cases like it, do not merit our attention,
and second to Justice Souter’s claims about risks inherent
in capital punishment.
I
Part III of the Court’s opinion—which makes plain why
Walton v. Arizona, 497 U. S. 639 (1990), controls this case—
would be sufficient to reverse the judgment below. I
nonetheless join Part IV as well, which describes why Kan
sas’s death-penalty statute easily satisfies even a capital ju
risprudence as incoherent as ours has become. In doing so,
I do not endorse that incoherence, but adhere to my previous
statement that “I will not . . . vote to uphold an Eighth
Amendment claim that the sentencer’s discretion has been
unlawfully restricted.” Id., at 673 (concurring in part and
concurring in judgment).
II
Justice Stevens’ dissent gives several reasons why this
case, and any criminal case in which the State is the peti
tioner, does not deserve our attention. “ ‘[N]o rule of law,’ ”
he says, “ ‘commanded the Court to grant certiorari.’ ” Post,
at 201 (quoting California v. Ramos, 463 U. S. 992, 1031
(1983) (Stevens, J., dissenting)). But that is true, of course,
of almost our entire docket; it is in the very nature of certio
rari jurisdiction. Also self-evident, since the jurisdiction of
the Kansas Supreme Court ends at the borders of that State,
is the fact that “ ‘[n]o other State would have been required
to follow the [Kansas] precedent if it had been permitted
to stand.’ ” Post, at 201 (Stevens, J., dissenting) (quoting
Ramos, supra, at 1031 (Stevens, J., dissenting)). But if
this signaled the impropriety of granting certiorari, we
would never review state-court determinations of federal

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law, even though they patently contradict (as the determina
tion below does) the holdings of other state courts and Fed
eral Courts of Appeals, compare 278 Kan. 520, 534–537, 102
P. 3d 445, 457–459 (2004) (case below), and State v. Kleypas,
272 Kan. 894, 1005–1007, 40 P. 3d 139, 225–226 (2001) (per
curiam), with, e. g., State v. Hoffman, 123 Idaho 638, 646–
647, 851 P. 2d 934, 942–943 (1993), and Jones v. Dugger, 928
F. 2d 1020, 1029 (CA11 1991)—and indeed, even when they
patently contradict our own decisions. Our principal re
sponsibility under current practice, however, and a primary
basis for the Constitution’s allowing us to be accorded juris
diction to review state-court decisions, see Art. III, § 2, cls.
1 and 2, is to ensure the integrity and uniformity of federal
law.1 See this Court’s Rule 10(b), (c). Fulfillment of this
responsibility is, to put it mildly, an adequate answer to the
1 The dissent observes that Congress did not initially grant us the full
jurisdiction that the Constitution authorizes, but only allowed us to review
cases rejecting the assertion of governing federal law. See post, at 202,
n. (opinion of Stevens, J.). That is unsurprising and immaterial. The
original Constitution contained few guarantees of individual rights against
the States, and in clashes of governmental authority there was small risk
that the state courts would erroneously side with the new Federal Govern
ment. (In 1789, when the first Judiciary Act was passed, the Bill of
Rights had not yet been adopted, and once it was, it did not apply against
the States, see Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243
(1833).) Congress would have been most unlikely to contemplate that
state courts would erroneously invalidate state actions on federal grounds.
The early history of our jurisdiction assuredly does not support the dis
sent’s awarding of special preference to the constitutional rights of crimi
nal defendants. Even with respect to federal defendants (who did enjoy
the protections of the Bill of Rights), “during the first 100 years of the
Court’s existence there was no provision made by Congress for Supreme
Court review of federal criminal convictions, an omission that Congress
did not remedy until 1889 and beyond.” R. Stern, E. Gressman, S. Sha
piro, & K. Geller, Supreme Court Practice 66 (8th ed. 2002). In any case,
present law is plain. The 1988 statute cited by the dissent and forming
the basis of our current certiorari jurisdiction places States and defend
ants in precisely the same position. They are both entitled to petition for
our review.

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charge that “ ‘[n]othing more than an interest in facilitating
the imposition of the death penalty in [Kansas] justified this
Court’s exercise of its discretion to review the judgment of
the [Kansas] Supreme Court.’ ” Post, at 201 (Stevens, J.,
dissenting) (quoting Ramos, supra, at 1031 (Stevens, J.,
dissenting)).
The dissent’s assertion that our holding in Ramos was
“ironi[c],” post, at 201 (opinion of Stevens, J.), rests on a
misguided view of federalism and, worse still, of a republican
form of government. Only that can explain the dissent’s
suggestion that Ramos’s reversal of a state-court determina
tion somehow undermined state authority. The California
Supreme Court had ruled that a jury instruction inserted
into the state penal code by voter initiative, see 463 U. S., at
995, n. 4, was invalid as a matter of federal constitutional
law. See id., at 996, 997, n. 7. When state courts errone
ously invalidate actions taken by the people of a State
(through initiative or through normal operation of the po
litical branches of their state government) on state-law
grounds, it is generally none of our business; and our displac
ing of those judgments would indeed be an intrusion upon
state autonomy. But when state courts erroneously invali
date such actions because they believe federal law requires
it—and especially when they do so because they believe the
Federal Constitution requires it—review by this Court, far
from undermining state autonomy, is the only possible way
to vindicate it. When a federal constitutional interdict
against the duly expressed will of the people of a State is
erroneously pronounced by a State’s highest court, no au
thority in the State—not even a referendum agreed to by all
its citizens—can undo the error. Thus, a general presump
tion against such review displays not respect for the States,
but a complacent willingness to allow judges to strip the
people of the power to govern themselves. When we cor
rect a state court’s federal errors, we return power to the
State, and to its people.

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That is why our decision in Ramos was necessary. Our
solemn responsibility is not merely to determine whether a
State Supreme Court “ha[s] adequately protected [a defend
ant’s] rights under the Federal Constitution,” post, at 200
(Stevens, J., dissenting). It is to ensure that when courts
speak in the name of the Federal Constitution, they disre
gard none of its guarantees—neither those that ensure the
rights of criminal defendants, nor those that ensure what
Justice Black, in his famous dissent in In re Winship, 397
U. S. 358, 385 (1970), called “the most fundamental individual
liberty of our people—the right of each man to participate in
the self-government of his society.” Turning a blind eye to
federal constitutional error that benefits criminal defend
ants, allowing it to permeate in varying fashion each State
Supreme Court’s jurisprudence, would change the uniform
“law of the land” into a crazy quilt. And on top of it all, of
course, what the dissent proposes avowedly favors one party
to the case: When a criminal defendant loses a questionable
constitutional point, we may grant review; when the State
loses, we must deny it. While it might be appropriate for
Congress to place such a thumb upon the scales of our power
to review, it seems to me a peculiar mode of decisionmaking
for judges sworn to “impartially discharge . . . all the duties”
of their office, 28 U. S. C. § 453.
Our decision to grant certiorari is guided by the considera
tions set forth in Rule 10. None of them turns on the iden
tity of the party that the asserted misapplication of federal
law has harmed. When state legislation is thwarted—not
on the basis of state law, but on the basis of a questionable
application of the Federal Constitution or laws—I shall con
tinue to vote to grant the resulting petition for certiorari.
III
Finally, I must say a few words (indeed, more than a few)
in response to Part III of Justice Souter’s dissent. This
contains the disclaimer that the dissenters are not (yet)

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ready to “generaliz[e] about the soundness of capital sentenc
ing across the country,” post, at 210; but that is in fact pre
cisely what they do. The dissent essentially argues that
capital punishment is such an undesirable institution—it re
sults in the condemnation of such a large number of inno
cents—that any legal rule which eliminates its pronounce
ment, including the one favored by the dissenters in the
present case, should be embraced. See post, at 210–211.
As a general rule, I do not think it appropriate for judges
to heap either praise or censure upon a legislative measure
that comes before them, lest it be thought that their valida
tion, invalidation, or interpretation of it is driven by their
desire to expand or constrict what they personally approve
or disapprove as a matter of policy. In the present case, for
example, people might leap to the conclusion that the dis
senters’ views on whether Kansas’s equipoise rule is consti
tutional are determined by their personal disapproval of an
institution that has been democratically adopted by 38 States
and the United States. But of course that requires no leap;
just a willingness to take the dissenters at their word. For
as I have described, the dissenters’ very argument is that
imposition of the death penalty should be minimized by in
validation of the equipoise rule because it is a bad, “risk[y],”
and “hazard[ous]” idea, ibid. A broader conclusion that peo
ple should derive, however (and I would not consider this
much of a leap either), is that the dissenters’ encumbering of
the death penalty in other cases, with unwarranted restric
tions neither contained in the text of the Constitution nor
reflected in two centuries of practice under it, will be the
product of their policy views—views not shared by the vast
majority of the American people. The dissenters’ proclama
tion of their policy agenda in the present case is especially
striking because it is nailed to the door of the wrong
church—that is, set forth in a case litigating a rule that has
nothing to do with the evaluation of guilt or innocence.
There are, of course, many cases in which the rule at issue

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does serve that function, see, e. g., House v. Bell, 547 U. S.
518 (2006). (Marsh himself has earned a remand by applica
tion of one such rule, see ante, at 167.) But as the Court
observes, see ante, at 180, guilt or innocence is logically dis
connected to the challenge in this case to sentencing stand
ards. The only time the equipoise provision is relevant is
when the State has proved a defendant guilty of a capital
crime.2
There exists in some parts of the world sanctimonious crit
icism of America’s death penalty, as somehow unworthy of a
civilized society. (I say sanctimonious, because most of the
countries to which these finger-waggers belong had the
death penalty themselves until recently—and indeed, many
of them would still have it if the democratic will prevailed.3)
2 Not only are the dissent’s views on the erroneous imposition of the
death penalty irrelevant to the present case, but the dissent’s proposed
holding on the equipoise issue will not necessarily work to defendants’
advantage. The equipoise provision of the Kansas statute imposes the
death penalty only when the State proves beyond a reasonable doubt that
mitigating factors do not outweigh the aggravators. See ante, at 166. If
we were to disallow Kansas’s scheme, the State could, as Marsh freely
admits, replace it with a scheme requiring the State to prove by a mere
preponderance of the evidence that the aggravators outweigh the mitiga
tors. See Tr. of Oral Rearg. 36. I doubt that any defense counsel would
accept this trade. The “preponderance” rule, while it sounds better,
would almost surely produce more death sentences than an “equipoise be
yond a reasonable doubt” requirement.
3 It is commonly recognized that “[m]any European countries . . . abol
ished the death penalty in spite of public opinion rather than because of
it.” Bibas, Transparency and Participation in Criminal Procedure, 81
N. Y. U. L. Rev. 911, 931–932 (2006). See also id., at 932, n. 88. Abolish
ing the death penalty has been made a condition of joining the Council of
Europe, which is in turn a condition of obtaining the economic benefits of
joining the European Union. See Waters, Mediating Norms and Identity:
The Role of Transnational Judicial Dialogue in Creating and Enforcing
International Law, 93 Geo. L. J. 487, 525 (2005); Demleitner, Is There a
Future for Leniency in the U. S. Criminal Justice System? 103 Mich.
L. Rev. 1231, 1256, and n. 88 (2005). The European Union advocates
against the death penalty even in America; there is a separate death

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188 KANSAS v. MARSH
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It is a certainty that the opinion of a near-majority of the
United States Supreme Court to the effect that our system
condemns many innocent defendants to death will be trum
peted abroad as vindication of these criticisms. For that
reason, I take the trouble to point out that the dissenting
opinion has nothing substantial to support it.
It should be noted at the outset that the dissent does not
discuss a single case—not one—in which it is clear that a
person was executed for a crime he did not commit. If such
an event had occurred in recent years, we would not have to
hunt for it; the innocent’s name would be shouted from the
rooftops by the abolition lobby. The dissent makes much of
the new-found capacity of DNA testing to establish inno
cence. But in every case of an executed defendant of which
I am aware, that technology has confirmed guilt.
This happened, for instance, only a few months ago in the
case of Roger Coleman. Coleman was convicted of the grue
some rape and murder of his sister-in-law, but he persuaded
many that he was actually innocent and became the poster
child for the abolitionist lobby. See Glod & Shear, DNA
Tests Confirm Guilt of Man Executed by Va., Washington
Post, Jan. 13, 2006, p. A1; Dao, DNA Ties Man Executed in
’92 to the Murder He Denied, N. Y. Times, Jan. 13, 2006,
p. A14. Around the time of his eventual execution, “his pic
ture was on the cover of Time magazine (‘This Man Might
Be Innocent. This Man Is Due to Die’). He was inter
viewed from death row on ‘Larry King Live,’ the ‘Today’
show, ‘Primetime Live,’ ‘Good Morning America’ and ‘The
penalty page on the Web site of the Delegation of the European Commis
sion to the U. S. A. See http://www.eurunion.org/legislat/deathpenalty/
deathpenhome.htm (all Internet materials as visited June 17, 2006, and
available in Clerk of Court’s case file). The views of the European Union
have been relied upon by Justices of this Court (including all four dissent
ers today) in narrowing the power of the American people to impose capi
tal punishment. See, e. g., Atkins v. Virginia, 536 U. S. 304, 317, n. 21
(2002) (citing, for the views of “the world community,” the Brief for the
European Union as Amicus Curiae).

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Phil Donahue Show.’ ” Frankel, Burden of Proof, Washing
ton Post, May 14, 2006, pp. W8, W11. Even one Justice of
this Court, in an opinion filed shortly before the execution,
cautioned that “Coleman has now produced substantial evi
dence that he may be innocent of the crime for which he was
sentenced to die.” Coleman v. Thompson, 504 U. S. 188, 189
(1992) (Blackmun, J., dissenting). Coleman ultimately failed
a lie-detector test offered by the Governor of Virginia as a
condition of a possible stay; he was executed on May 20, 1992.
Frankel, supra, at W23; Glod & Shear, Warner Orders DNA
Testing in Case of Man Executed in ’92, Washington Post,
Jan. 6, 2006, pp. A1, A6.
In the years since then, Coleman’s case became a rallying
point for abolitionists, who hoped it would offer what they
consider the “Holy Grail: proof from a test tube that an inno
cent person had been executed.” Frankel, supra, at W24.
But earlier this year, a DNA test ordered by a later Gover
nor of Virginia proved that Coleman was guilty, see, e. g.,
Glod & Shear, DNA Tests Confirm Guilt of Man Executed
by Va., supra, at A1; Dao, supra, at A14, even though his
defense team had “proved” his innocence and had even iden
tified “ ‘the real killer’ ” (with whom they eventually settled
a defamation suit). See Frankel, supra, at W23. And Cole
man’s case is not unique. See J. Marquis, Truth and Con
sequences: The Penalty of Death, in Debating the Death
Penalty: Should America Have Capital Punishment? The
Experts on Both Sides Make Their Best Case 117, 128–129
(H. Bedau & P. Cassell eds. 2004) (discussing the cases of
supposed innocents Rick McGinn and Derek Barnabei, whose
guilt was also confirmed by DNA tests).
Instead of identifying and discussing any particular case
or cases of mistaken execution, the dissent simply cites a
handful of studies that bemoan the alleged prevalence of
wrong ful death sentences. One study (by Lanier and
Acker) is quoted by the dissent as claiming that “ ‘more than
110’ death row prisoners have been released since 1973 upon

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findings that they were innocent of the crimes charged, and
‘hundreds of additional wrongful convictions in potentially
capital cases have been documented over the past century.’ ”
Post, at 209–210 (opinion of Souter, J.). For the first point,
Lanier and Acker cite the work of the Death Penalty Infor
mation Center (more about that below) and an article in a
law review jointly authored by Radelet, Lofquist, and Bedau
(two professors of sociology and a professor of philosophy).
For the second point, they cite only a 1987 article by Bedau
and Radelet. See Miscarriages of Justice in Potentially
Capital Cases, 40 Stan. L. Rev. 21. In the very same para
graph which the dissent quotes, Lanier and Acker also refer
to that 1987 article as “hav[ing] identified 23 individuals who,
in their judgment, were convicted and executed in this coun
try during the 20th century notwithstanding their inno
cence.” Lanier & Acker, Capital Punishment, the Morato
rium Movement, and Empirical Questions, 10 Psychology,
Public Policy & Law 577, 593 (2004). This 1987 article has
been highly influential in the abolitionist world. Hundreds
of academic articles, including those relied on by today’s dis
sent, have cited it. It also makes its appearance in judicial
decisions—cited recently in a six-judge dissent in House v.
Bell, 386 F. 3d 668, 708 (CA6 2004) (en banc) (Merritt, J.,
dissenting), for the proposition that “the system is allowing
some innocent defendants to be executed.” The article
therefore warrants some further observations.
The 1987 article’s obsolescence began at the moment of
publication. The most recent executions it considered were
in 1984, 1964, and 1951; the rest predate the Allied victory
in World War II. (Two of the supposed innocents are Sacco
and Vanzetti.) Bedau & Radelet, supra, at 73. Even if the
innocence claims made in this study were true, all except
(perhaps) the 1984 example would cast no light upon the
functioning of our current system of capital adjudication.
The legal community’s general attitude toward criminal de

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fendants, the legal protections States afford, the constitu
tional guarantees this Court enforces, and the scope of fed
eral habeas review are all vastly different from what they
were in 1961. So are the scientific means of establishing
guilt, and hence innocence—which are now so striking in
their operation and effect that they are the subject of more
than one popular TV series. (One of these new means, of
course, is DNA testing—which the dissent seems to think is
primarily a way to identify defendants erroneously con
victed, rather than a highly effective way to avoid conviction
of the innocent.)
But their current relevance aside, this study’s conclusions
are unverified. And if the support for its most significant
conclusion—the execution of 23 innocents in the 20th cen
tury—is any indication of its accuracy, neither it, nor any
study so careless as to rely upon it, is worthy of credence.
The only execution of an innocent man it alleges to have oc
curred after the restoration of the death penalty in 1976—
the Florida execution of James Adams in 1984—is the easiest
case to verify. As evidence of Adams’ innocence, it de
scribes a hair that could not have been his as being “clutched
in the victim’s hand,” Bedau & Radelet, supra, at 91. The
hair was not in the victim’s hand; “[i]t was a remnant of a
sweeping of the ambulance and so could have come from an
other source.” Markman & Cassell, Protecting the Inno
cent: A Response to the Bedau-Radelet Study, 41 Stan.
L. Rev. 121, 131 (1988). The study also claims that a witness
who “heard a voice inside the victim’s home at the time of
the crime” testified that the “voice was a woman’s,” Bedau &
Radelet, supra, at 91. The witness’s actual testimony was
that the voice, which said “ ‘ “In the name of God, don’t do
it” ’ ” (and was hence unlikely to have been the voice of any
one but the male victim), “ ‘sounded “kind of like a woman’s
voice, kind of like strangling or something . . . .” ’ ” Mark
man & Cassell, 41 Stan. L. Rev., at 130. Bedau and Radelet

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failed to mention that upon arrest on the afternoon of the
murder Adams was found with some $200 in his pocket—one
bill of which “was stained with type O blood. When Adams
was asked about the blood on the money, he said that it came
from a cut on his finger. His blood was type AB, however,
while the victim’s was type O.” Id., at 132. Among the
other unmentioned, incriminating details: that the victim’s
eyeglasses were found in Adams’ car, along with jewelry be
longing to the victim, and clothing of Adams’ stained with
type O blood. Ibid. This is just a sample of the evi
dence arrayed against this “innocent.” See id., at 128–133,
148–150.
Critics have questioned the study’s findings with regard to
all its other cases of execution of alleged innocents for which
“appellate opinions . . . set forth the facts proved at trial
in detail sufficient to permit a neutral observer to assess
the validity of the authors’ conclusions.” Id., at 134. (For
the rest, there was not “a reasonably complete account of the
facts . . . readily available,” id., at 145.) As to those cases,
the only readily verifiable ones, the authors of the 1987 study
later acknowledged, “We agree with our critics that we have
not ‘proved’ these executed defendants to be innocent; we
never claimed that we had.” Bedau & Radelet, The Myth
of Infallibility: A Reply to Markman and Cassell, 41 Stan.
L. Rev. 161, 164 (1988). One would have hoped that this
disclaimer of the study’s most striking conclusion, if not the
study’s dubious methodology, would have prevented it from
being cited as authority in the pages of the United States
Reports. But alas, it is too late for that. Although today’s
dissent relies on the study only indirectly, the two dissenters
who were on the Court in January 1993 have already em
braced it. “One impressive study,” they noted (referring to
the 1987 study), “has concluded that 23 innocent people have
been executed in the United States in this century, including
one as recently as 1984.” Herrera v. Collins, 506 U. S. 390,

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430, n. 1 (1993) (Blackmun, J., joined by Stevens and Sou
ter, JJ., dissenting).4
Remarkably avoiding any claim of erroneous executions,
the dissent focuses on the large numbers of non-executed
“exonerees” paraded by various professors. It speaks as
though exoneration came about through the operation of
some outside force to correct the mistakes of our legal sys
tem, rather than as a consequence of the functioning of our
legal system. Reversal of an erroneous conviction on appeal
or on habeas, or the pardoning of an innocent condemnee
through executive clemency, demonstrates not the failure of
the system but its success. Those devices are part and par
cel of the multiple assurances that are applied before a death
sentence is carried out.
Of course even in identifying exonerees, the dissent is will
ing to accept anybody’s say-so. It engages in no critical re
view, but merely parrots articles or reports that support its
attack on the American criminal justice system. The dis
sent places significant weight, for instance, on the Illinois
Report (compiled by the appointees of an Illinois Governor
who had declared a moratorium upon the death penalty and
who eventually commuted all death sentences in the State,
see Warden, Illinois Death Penalty Reform: How It Hap
pened, What It Promises, 95 J. Crim. L. & C. 381, 406–407,
410 (2005)), which it claims shows that “false verdicts” are
“remarkable in number.” Post, at 210 (opinion of Souter,
J.). The dissent claims that this report identifies 13 inmates
released from death row after they were determined to be
innocent. To take one of these cases, discussed by the dis
sent as an example of a judgment “as close to innocence as
4 See also Callins v. Collins, 510 U. S. 1141, 1158, n. 8 (1994) (Blackmun,
J., dissenting from denial of certiorari) (“Innocent persons have been exe
cuted, see Bedau & Radelet, Miscarriages of Justice in Potentially Capital
Cases, 40 Stan. L. Rev. 21, 36, 173–179 (1987), perhaps recently, see Her
rera v. Collins, 506 U. S. 390 (1993), and will continue to be executed under
our death penalty scheme”).

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any judgments courts normally render,” post, at 209, n. 2: In
People v. Smith, 185 Ill. 2d 532, 708 N. E. 2d 365 (1999), the
defendant was twice convicted of murder. After his first
trial, the Supreme Court of Illinois “reversed [his] conviction
based upon certain evidentiary errors” and remanded his
case for a new trial. Id., at 534, 708 N. E. 2d, at 366. The
second jury convicted Smith again. The Supreme Court of
Illinois again reversed the conviction because it found that
the evidence was insufficient to establish guilt beyond a rea
sonable doubt. Id., at 542–543, 708 N. E. 2d, at 370–371.
The court explained:
“While a not guilty finding is sometimes equated with
a finding of innocence, that conclusion is erroneous.
Courts do not find people guilty or innocent. . . . A not
guilty verdict expresses no view as to a defendant’s
innocence. Rather, [a reversal of conviction] indicates
simply that the prosecution has failed to meet its burden
of proof.” Id., at 545, 708 N. E. 2d, at 371.
This case alone suffices to refute the dissent’s claim that the
Illinois Report distinguishes between “exoneration of a con
vict because of actual innocence, and reversal of a judgment
because of legal error affecting conviction or sentence but
not inconsistent with guilt in fact,” post, at 208, n. 2. The
broader point, however, is that it is utterly impossible to re
gard “exoneration”—however casually defined—as a failure
of the capital justice system, rather than as a vindication of
its effectiveness in releasing not only defendants who are
innocent, but those whose guilt has not been established be
yond a reasonable doubt.
Another of the dissent’s leading authorities on exoneration
of the innocent is Gross, Jacoby, Matheson, Montgomery, &
Patil, Exonerations in the United States 1989 Through 2003,
95 J. Crim. L. & C. 523 (2005) (hereinafter Gross). The dis
sent quotes that study’s self-congratulatory “criteria” of ex

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oneration—seemingly so rigorous that no one could doubt
the study’s reliability. See post, at 209–210, n. 3 (opinion of
Souter, J.). But in fact that article, like the others cited, is
notable not for its rigorous investigation and analysis, but
for the fervor of its belief that the American justice system
is condemning the innocent “in numbers,” as the dissent puts
it, “never imagined before the development of DNA tests.”
Post, at 208 (opinion of Souter, J.). Among the article’s list
of 74 “exonerees,” Gross 529, is Jay Smith of Pennsylvania.
Smith—a school principal—earned three death sentences for
slaying one of his teachers and her two young children. See
Smith v. Holtz, 210 F. 3d 186, 188 (CA3 2000). His retrial
for triple murder was barred on double-jeopardy grounds be
cause of prosecutorial misconduct during the first trial. Id.,
at 194. But Smith could not leave well enough alone. He
had the gall to sue, under 42 U. S. C. § 1983, for false impris
onment. The Court of Appeals for the Third Circuit af
firmed the jury verdict for the defendants, observing along
the way that “our confidence in Smith’s convictions is not
diminished in the least. We remain firmly convinced of the
integrity of those guilty verdicts.” 210 F. 3d, at 198.
Another “exonerated” murderer in the Gross study is Jer
emy Sheets, convicted in Nebraska. His accomplice in the
rape and murder of a girl had been secretly tape recorded;
he “admitted that he drove the car used in the murder . . . ,
and implicated Sheets in the murder.” Sheets v. Butera, 389
F. 3d 772, 775 (CA8 2004). The accomplice was arrested and
eventually described the murder in greater detail, after
which a plea agreement was arranged, conditioned on the
accomplice’s full cooperation. Ibid. The resulting taped
confession, which implicated Sheets, was “[t]he crucial por
tion of the State’s case,” State v. Sheets, 260 Neb. 325, 327,
618 N. W. 2d 117, 122 (2000). But the accomplice committed
suicide in jail, depriving Sheets of the opportunity to cross
examine him. This, the Nebraska Supreme Court held, ren

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196 KANSAS v. MARSH
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dered the evidence inadmissible under the Sixth Amend
ment. Id., at 328, 335–351, 618 N. W. 2d, at 123, 127–136.
After the central evidence was excluded, the State did not
retry Sheets. Sheets v. Butera, 389 F. 3d, at 776. Sheets
brought a § 1983 claim; the U. S. Court of Appeals for the
Eighth Circuit affirmed the District Court’s grant of sum
mary judgment against him. Id., at 780. Sheets also
sought the $1,000 he had been required to pay to the Ne
braska Victim’s Compensation Fund; the State Attorney
General—far from concluding that Sheets had been “exoner
ated” and was entitled to the money—refused to return it.
The court action left open the possibility that Sheets could
be retried, and the Attorney General did “not believe the
reversal on the ground of improper admission of evidence . . .
is a favorable disposition of charges,” Neb. Op. Atty. Gen.
No. 01036 (Nov. 9), 2001 WL 1503144, *3.
In its inflation of the word “exoneration,” the Gross article
hardly stands alone; mischaracterization of reversible error
as actual innocence is endemic in abolitionist rhetoric, and
other prominent catalogues of “innocence” in the death
penalty context suffer from the same defect. Perhaps the
best known of them is the List of Those Freed From Death
Row, maintained by the Death Penalty Information Cen
ter. See http://www.deathpenaltyinfo.org/article.php?scid=
6&did=110. This includes the cases from the Gross article
described above, but also enters some dubious candidates of
its own. Delbert Tibbs is one of them. We considered his
case in Tibbs v. Florida, 457 U. S. 31 (1982), concluding that
the Double Jeopardy Clause does not bar a retrial when a
conviction is “revers[ed] based on the weight, rather than the
sufficiency, of the evidence,” id., at 32. The case involved a
man and a woman hitchhiking together in Florida. A driver
who picked them up sodomized and raped the woman, and
killed her boyfriend. She eventually escaped and positively
identified Tibbs. See id., at 32–33. The Florida Supreme

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Court reversed the conviction on a 4-to-3 vote. Tibbs v.
State, 337 So. 2d 788 (1976). The Florida courts then grap
pled with whether Tibbs could be retried without violating
the Double Jeopardy Clause. The Florida Supreme Court
determined not only that there was no double-jeopardy prob
lem, 397 So. 2d 1120, 1127 (1981) (per curiam), but that the
very basis on which it had reversed the conviction was no
longer valid law, id., at 1125, and that its action in “re
weigh[ing] the evidence” in Tibbs’ case had been “clearly im
proper,” id., at 1126. After we affirmed the Florida Su
preme Court, however, the State felt compelled to drop the
charges. The state attorney explained this to the Florida
Commission on Capital Cases: “ ‘By the time of the retrial,
[the] witness/victim . . . had progressed from a marijuana
smoker to a crack user and I could not put her up on the
stand, so I declined to prosecute. Tibbs, in my opinion, was
never an innocent man wrongfully accused. He was a lucky
human being. He was guilty, he was lucky and now he is
free. His 1974 conviction was not a miscarriage of justice.’ ”
Florida Commission on Capital Cases, Case Histories: A Re
view of 24 Individuals Released From Death Row 136–137
(rev. Sept. 10, 2002), http://www.floridacapitalcases.state.fl.
us/Publications/ innocentsproject.pdf. Other state officials
involved made similar points. Id., at 137.
Of course, even with its distorted concept of what consti
tutes “exoneration,” the claims of the Gross article are fairly
modest: Between 1989 and 2003, the authors identify 340 “ex
onerations” nationwide—not just for capital cases, mind you,
nor even just for murder convictions, but for various felonies.
Gross 529. Joshua Marquis, a district attorney in Oregon,
recently responded to this article as follows:
“[L]et’s give the professor the benefit of the doubt: let’s
assume that he understated the number of innocents by
roughly a factor of 10, that instead of 340 there were
4,000 people in prison who weren’t involved in the crime

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198 KANSAS v. MARSH
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in any way. During that same 15 years, there were
more than 15 million felony convictions across the coun
try. That would make the error rate .027 percent—or,
to put it another way, a success rate of 99.973 percent.”
The Innocent and the Shammed, N. Y. Times, Jan. 26,
2006, p. A23.
The dissent’s suggestion that capital defendants are espe
cially liable to suffer from the lack of 100% perfection in
our criminal justice system is implausible. Capital cases are
given especially close scrutiny at every level, which is why
in most cases many years elapse before the sentence is exe
cuted. And of course capital cases receive special attention
in the application of executive clemency. Indeed, one of the
arguments made by abolitionists is that the process of finally
completing all the appeals and reexaminations of capital sen
tences is so lengthy, and thus so expensive for the State, that
the game is not worth the candle. The proof of the pudding,
of course, is that as far as anyone can determine (and many
are looking), none of the cases included in the .027% error
rate for American verdicts involved a capital defendant erro
neously executed.
Since 1976 there have been approximately a half million
murders in the United States. In that time, 7,000 murder
ers have been sentenced to death; about 950 of them have
been executed; and about 3,700 inmates are currently on
death row. See Marquis, The Myth of Innocence, 95 J. Crim.
L. & C. 501, 518 (2005). As a consequence of the sensitivity
of the criminal justice system to the due-process rights of
defendants sentenced to death, almost two-thirds of all death
sentences are overturned. See ibid. “Virtually none” of
these reversals, however, are attributable to a defendant’s
“ ‘actual innocence.’ ” Ibid. Most are based on legal errors
that have little or nothing to do with guilt. See id., at 519–
520. The studies cited by the dissent demonstrate nothing
more.

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Stevens, J., dissenting
Like other human institutions, courts and juries are not
perfect. One cannot have a system of criminal punishment
without accepting the possibility that someone will be pun
ished mistakenly. That is a truism, not a revelation. But
with regard to the punishment of death in the current Amer
ican system, that possibility has been reduced to an insig
nificant minimum. This explains why those ideologically
driven to ferret out and proclaim a mistaken modern execu
tion have not a single verifiable case to point to, whereas it
is easy as pie to identify plainly guilty murderers who have
been set free. The American people have determined that
the good to be derived from capital punishment—in deter
rence, and perhaps most of all in the meting out of condign
justice for horrible crimes—outweighs the risk of error. It
is no proper part of the business of this Court, or of its Jus
tices, to second-guess that judgment, much less to impugn it
before the world, and less still to frustrate it by imposing
judicially invented obstacles to its execution.
Justice Stevens, dissenting.
Having joined Justice Blackmun’s dissent from the plural
ity’s opinion in Walton v. Arizona, 497 U. S. 639, 649–652
(1990), I necessarily also subscribe to the views expressed
by Justice Souter today. I write separately for two rea
sons: to explain why agreement with Justice Blackmun’s dis
sent is fully consistent with refusing to read Walton as “con
trol[ling],” but see ante, at 169 (opinion of the Court), and to
explain why the grant of certiorari in this case was a misuse
of our discretion.
Under Justice Blackmun’s understanding of Arizona law,
Walton did present exactly the same issue before us today.
The Arizona statute at issue required the judge to impose
death upon finding aggravating factors if “ ‘there are no
mitigating circumstances sufficiently substantial to call for
leniency.’ ” 497 U. S., at 644 (quoting Ariz. Rev. Stat. Ann.

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200 KANSAS v. MARSH
Stevens, J., dissenting
§ 13–703(E) (West 1989)). In Justice Blackmun’s view,
Arizona case law indicated “that a defendant’s mitigating
evidence will be deemed ‘sufficiently substantial to call
for leniency’ only if the mitigating factors ‘outweigh’ those
in aggravation.” 497 U. S., at 687. Accordingly, Justice
Blackmun believed that we confronted the constitutionality
of a statute that mandated death when the scales were
evenly balanced. Ibid.
But Justice Blackmun never concluded that the plurality
similarly read Arizona case law as “requir[ing] a capital sen
tence in a case where aggravating and mitigating circum
stances are evenly balanced.” Id., at 688. To the contrary,
he observed that “the plurality does not even acknowledge
that this is the dispositive question.” Ibid. Because Jus
tice Blackmun did not read the plurality opinion as confront
ing the problem of equipoise that he believed Arizona law to
present, my join of his dissent is consistent with my conclu
sion that stare decisis does not bind us today. As Justice
Souter explains, post, at 203–204, n. 1 (dissenting opinion),
the Walton plurality painstakingly avoided an express en
dorsement of a rule that allows a prosecutor to argue, and
allows a judge to instruct the jury, that if the scales are
evenly balanced when the choice is between life and death,
the law requires the more severe penalty.
There is a further difference between this case and Wal
ton—one that should have kept us from granting certiorari
in the first place. In Walton, the defendant petitioned for
certiorari, and our grant enabled us to consider whether the
Arizona Supreme Court had adequately protected his rights
under the Federal Constitution. In this case, by contrast,
the State of Kansas petitioned us to review a ruling of its
own Supreme Court on the grounds that the Kansas court
had granted more protection to a Kansas litigant than the
Federal Constitution required. A policy of judicial restraint
would allow the highest court of the State to be the final

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decisionmaker in a case of this kind. See Brigham City v.
Stuart, 547 U. S. 398, 409 (2006) (Stevens, J., concurring).
There is a remarkable similarity between the decision to
grant certiorari in this case and our comparable decision in
California v. Ramos, 463 U. S. 992 (1983). In Ramos, we
reviewed a decision of the California Supreme Court that
had invalidated a standard jury instruction concerning the
Governor’s power to commute life without parole sen
tences—an instruction that was unique to California. By a
vote of 5 to 4, the Court reversed the judgment of the state
court, concluding—somewhat ironically—that “the wisdom
of the decision to permit juror consideration of possible com
mutation is best left to the States.” Id., at 1014.
In response I asked, as I do again today, “what harm would
have been done to the administration of justice by state
courts if the [Kansas] court had been left undisturbed in its
determination[?]” Id., at 1030. “If it were true that this
instruction may make the difference between life and death
in a case in which the scales are otherwise evenly balanced,
that is a reason why the instruction should not be given—
not a reason for giving it.” Ibid. “No matter how trivial
the impact of the instruction may be, it is fundamentally
wrong for the presiding judge at the trial—who should per
sonify the evenhanded administration of justice—to tell the
jury, indirectly to be sure, that doubt concerning the proper
penalty should be resolved in favor of [death].” Ibid.
As in Ramos, in this case “no rule of law commanded the
Court to grant certiorari.” Id., at 1031. Furthermore,
“[n]o other State would have been required to follow the
[Kansas] precedent if it had been permitted to stand. Noth
ing more than an interest in facilitating the imposition of the
death penalty in [Kansas] justified this Court’s exercise of its
discretion to review the judgment of the [Kansas] Supreme
Court.” Ibid. And “[t]hat interest, in my opinion, is not
sufficient to warrant this Court’s review of the validity of a

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202 KANSAS v. MARSH
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jury instruction when the wisdom of giving that instruction
is plainly a matter that is best left to the States.” Ibid.*
We decided Ramos on the same day as Michigan v. Long,
463 U. S. 1032 (1983). Prior to that time, “we had virtually
no interest” in criminal cases where States sought to set
aside the rulings of their own courts. Id., at 1069 (Stevens,
*Justice Scalia takes issue with my approach, suggesting that the
federal interests vindicated by our review are equally weighty whether
the state court found for the defendant or for the State. Ante, at 182–185
(concurring opinion). In so doing, he overlooks the separate federal inter
est in ensuring that no person be convicted or sentenced in violation of
the Federal Constitution—an interest entirely absent when the State is
the petitioner. It is appropriate—and certainly impartial, but see ante, at
185—to take this difference in federal interests into account in considering
whether to grant a petition for writ of certiorari.
Justice Scalia also fails to explain why there is such an urgent need
“to ensure the integrity and uniformity of federal law.” Ante, at 183. If
this perceived need is a “primary basis for the Constitution’s allowing us
to be accorded jurisdiction to review state-court decisions,” ibid. (citing
Art. III, § 2, cls. 1 and 2), then one would think that the First Judiciary
Act would have given us jurisdiction to review all decisions based on the
Federal Constitution coming out of state courts. But it did not. Uncon
cerned about Justice Scalia’s “crazy quilt,” ante, at 185, the First Con
gress only provided us with jurisdiction over such cases “where [there] is
drawn in question the validity of a statute of, or an authority exercised
under any State, on the ground of their being repugnant to the constitu
tion, treaties or laws of the United States, and the decision is in favour
of such their validity.” Act of Sept. 24, 1789, § 25, 1 Stat. 85 (emphasis
added). Not until 1914 did we have jurisdiction over decisions from state
courts which arguably overprotected federal constitutional rights at the
expense of state laws. Act of Dec. 23, 1914, ch. 2, 38 Stat. 790; see also
Delaware v. Van Arsdall, 475 U. S. 673, 694–697 (1986) (Stevens, J., dis
senting). Even then, our review was only by writ of certiorari, whereas
until 1988 defendants had a right to appeal to us in cases in which state
courts had upheld the validity of state statutes challenged on federal con
stitutional grounds. See 28 U. S. C. § 1257 (1982 ed.). In other words,
during the entire period between 1789 and 1988, the laws enacted by Con
gress placed greater weight on the vindication of federal rights than on
the interest in the uniformity of federal law.

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Souter, J., dissenting
J., dissenting). Although in recent years the trend has been
otherwise, I continue to hope “that a future Court will recog
nize the error of this allocation of resources,” id., at 1070,
and return to our older and better practice of restraint.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
I
Kansas’s capital sentencing statute provides that a defend
ant “shall be sentenced to death” if, by unanimous vote, “the
jury finds beyond a reasonable doubt that one or more of the
aggravating circumstances . . . exist and . . . that the exist
ence of such aggravating circumstances is not outweighed by
any mitigating circumstances which are found to exist.”
Kan. Stat. Ann. § 21–4624(e) (1995). The Supreme Court of
Kansas has read this provision to require imposition of the
death penalty “[i]n the event of equipoise, [that is,] the jury’s
determination that the balance of any aggravating circum
stances and any mitigating circumstances weighed equal.”
278 Kan. 520, 534, 102 P. 3d 445, 457 (2004) (case below); see
also State v. Kleypas, 272 Kan. 894, 1016, 40 P. 3d 139, 232
(2001) (per curiam) (stating that the language of § 21–4624(e)
“provides that in doubtful cases the jury must return a sen
tence of death”). Given this construction, the state court
held the law unconstitutional on the ground that the Eighth
Amendment requires that a “ ‘tie g[o] to the defendant’ when
life or death is at issue.” Ibid. Because I agree with the
Kansas justices that the Constitution forbids a mandatory
death penalty in what they describe as “doubtful cases,”
when aggravating and mitigating factors are of equal weight,
I respectfully dissent.1
1 The majority views Walton v. Arizona, 497 U. S. 639 (1990), as having
decided this issue. But Walton is ambiguous on this point; while the
Court there approved Arizona’s practice of placing the burden on capital
defendants to prove, “by a preponderance of the evidence, the existence

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II
More than 30 years ago, this Court explained that the
Eighth Amendment’s guarantee against cruel and unusual
punishment barred imposition of the death penalty under
statutory schemes so inarticulate that sentencing discretion
produced wanton and freakish results. See Furman v.
Georgia, 408 U. S. 238, 309–310 (1972) (Stewart, J., concur
ring) (“[T]he Eighth and Fourteenth Amendments cannot
tolerate the infliction of a sentence of death under legal sys
tems that permit this unique penalty to be . . . wantonly and
. . . freakishly imposed” on a “capriciously selected random
handful” of individuals). The Constitution was held to re
quire, instead, a system structured to produce reliable,
Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plural
ity opinion), rational, Jurek v. Texas, 428 U. S. 262, 276 (1976)
( joint opinion of Stewart, Powell, and Stevens, JJ.), and ra
tionally reviewable, Woodson, supra, at 303, determinations
of sentence.
Decades of back-and-forth between legislative experiment
and judicial review have made it plain that the constitutional
demand for rationality goes beyond the minimal requirement
to replace unbounded discretion with a sentencing structure;
a State has much leeway in devising such a structure and in
selecting the terms for measuring relative culpability, but a
system must meet an ultimate test of constitutional reliabil
ity in producing “ ‘a reasoned moral response to the defend
ant’s background, character, and crime,’ ” Penry v. Lynaugh,
492 U. S. 302, 319 (1989) (quoting California v. Brown, 479
U. S. 538, 545 (1987) (O’Connor, J., concurring); emphasis de
leted); cf. Gregg v. Georgia, 428 U. S. 153, 206 (1976) ( joint
opinion of Stewart, Powell, and Stevens, JJ.) (sanctioning
of mitigating circumstances sufficiently substantial to call for leniency,”
id., at 649 (plurality opinion), it did not quantify the phrase “sufficiently
substantial.” Justice Blackmun clearly thought otherwise, see id., at 687
(dissenting opinion), but he cried a greater foul than one can get from the
majority opinion. Stare decisis does not control this case.

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sentencing procedures that “focus the jury’s attention on the
particularized nature of the crime and the particularized
characteristics of the individual defendant”). The Eighth
Amendment, that is, demands both form and substance, both
a system for decision and one geared to produce morally jus
tifiable results.
The State thinks its scheme is beyond questioning,
whether as to form or substance, for it sees the tie-breaker
law as equivalent to the provisions examined in Blystone v.
Pennsylvania, 494 U. S. 299 (1990), and Boyde v. California,
494 U. S. 370 (1990), where we approved statutes that re
quired a death sentence upon a jury finding that aggravating
circumstances outweighed mitigating ones. But the crucial
fact in those systems was the predominance of the aggrava
tors, and our recognition of the moral rationality of a manda
tory capital sentence based on that finding is no authority
for giving States free rein to select a different conclusion
that will dictate death.
Instead, the constitutional demand for a reasoned moral
response requires the state statute to satisfy two criteria
that speak to the issue before us now, one governing the
character of sentencing evidence, and one going to the sub
stantive justification needed for a death sentence. As to the
first, there is an obligation in each case to inform the jury’s
choice of sentence with evidence about the crime as actually
committed and about the specific individual who committed
it. See Spaziano v. Florida, 468 U. S. 447, 460, and n. 7
(1984). Since the sentencing choice is, by definition, the at
tribution of particular culpability to a criminal act and de
fendant, as distinct from the general culpability necessarily
implicated by committing a given offense, see Penry, supra,
at 327–328; Spaziano, supra, at 460; Zant v. Stephens, 462
U. S. 862, 879 (1983), the sentencing decision must turn on
the uniqueness of the individual defendant and on the details
of the crime, to which any resulting choice of death must be
“directly” related, Penry, supra, at 319.

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Second, there is the point to which the particulars of crime
and criminal are relevant: within the category of capital
crimes, the death penalty must be reserved for “the worst
of the worst.” See, e. g., Roper v. Simmons, 543 U. S. 551,
568 (2005) (“Capital punishment must be limited to those of
fenders who commit ‘a narrow category of the most serious
crimes’ and whose extreme culpability makes them ‘the most
deserving of execution’ ” (quoting Atkins v. Virginia, 536
U. S. 304, 319 (2002))). One object of the structured sentenc
ing proceeding required in the aftermath of Furman is to
eliminate the risk that a death sentence will be imposed in
spite of facts calling for a lesser penalty, Penry, supra, at
328–329, and the essence of the sentencing authority’s re
sponsibility is to determine whether the response to the
crime and defendant “must be death,” Spaziano, supra, at
461; cf. Gregg, supra, at 184 ( joint opinion of Stewart, Powell,
and Stevens, JJ.). Of course, in the moral world of those
who reject capital punishment in principle, a death sentence
can never be a moral imperative. The point, however, is
that within our legal and moral system, which allows a place
for the death penalty, “must be death” does not mean “may
be death.”
Since a valid capital sentence thus requires a choice based
upon unique particulars identifying the crime and its perpe
trator as heinous to the point of demanding death even
within the class of potentially capital offenses, the State’s
provision for a tiebreaker in favor of death fails on both
counts. The dispositive fact under the tiebreaker is not the
details of the crime or the unique identity of the individual
defendant. The determining fact is not directly linked to a
particular crime or particular criminal at all; the law oper
ates merely on a jury’s finding of equipoise in the State’s own
selected considerations for and against death. Nor does the
tiebreaker identify the worst of the worst, or even purport
to reflect any evidentiary showing that death must be the
reasoned moral response; it does the opposite. The statute

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produces a death sentence exactly when a sentencing im
passe demonstrates as a matter of law that the jury does not
see the evidence as showing the worst sort of crime com
mitted by the worst sort of criminal, in a combination hei
nous enough to demand death. It operates, that is, when a
jury has applied the State’s chosen standards of culpability
and mitigation and reached nothing more than what the Su
preme Court of Kansas calls a “tie,” Kleypas, 272 Kan., at
1016, 40 P. 3d, at 232 (internal quotation marks omitted). It
mandates death in what that court identifies as “doubtful
cases,” ibid. The statute thus addresses the risk of a mor
ally unjustifiable death sentence, not by minimizing it as
precedent unmistakably requires, but by guaranteeing that
in equipoise cases the risk will be realized, by “placing a
‘thumb [on] death’s side of the scale,’ ” Sochor v. Florida, 504
U. S. 527, 532 (1992) (quoting Stringer v. Black, 503 U. S. 222,
232 (1992); alteration in original).
In Kansas, when a jury applies the State’s own standards
of relative culpability and cannot decide that a defendant is
among the most culpable, the state law says that equivocal
evidence is good enough and the defendant must die. A law
that requires execution when the case for aggravation has
failed to convince the sentencing jury is morally absurd, and
the Court’s holding that the Constitution tolerates this moral
irrationality defies decades of precedent aimed at eliminating
freakish capital sentencing in the United States.
III
That precedent, demanding reasoned moral judgment, de
veloped in response to facts that could not be ignored, the
kaleidoscope of life and death verdicts that made no sense in
fact or morality in the random sentencing before Furman
was decided in 1972. See 408 U. S., at 309–310 (Stewart, J.,
concurring). Today, a new body of fact must be accounted
for in deciding what, in practical terms, the Eighth Amend
ment guarantees should tolerate, for the period starting in

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1989 has seen repeated exonerations of convicts under death
sentences, in numbers never imagined before the develop
ment of DNA tests. We cannot face up to these facts and
still hold that the guarantee of morally justifiable sentencing
is hollow enough to allow maximizing death sentences, by
requiring them when juries fail to find the worst degree of
culpability: when, by a State’s own standards and a State’s
own characterization, the case for death is “doubtful.”
A few numbers from a growing literature will give a sense
of the reality that must be addressed. When the Governor
of Illinois imposed a moratorium on executions in 2000, 13
prisoners under death sentences had been released since
1977 after a number of them were shown to be innocent, as
described in a report which used their examples to illustrate
a theme common to all 13, of “relatively little solid evidence
connecting the charged defendants to the crimes.” State of
Illinois, G. Ryan, Governor, Report of the Governor’s Com
mission on Capital Punishment: Recommendations Only 7
(Apr. 2002) (hereinafter Report); see also id., at 5–6, 7–9.
During the same period, 12 condemned convicts had been
executed. Subsequently the Governor determined that four
more death row inmates were innocent. See id., at 5–6;
Warden, Illinois Death Penalty Reform, 95 J. Crim. L. & C.
381, 382, and n. 6 (2005).2 Illinois had thus wrongly con
2 The Illinois Report emphasizes the difference between exoneration of
a convict because of actual innocence, and reversal of a judgment because
of legal error affecting conviction or sentence but not inconsistent with
guilt in fact. See Report 9 (noting that, apart from the 13 released men,
a “broader review” discloses that more than half of the State’s death pen
alty cases “were reversed at some point in the process”). More impor
tantly, it takes only a cursory reading of the Report to recognize that it
describes men released who were demonstrably innocent or convicted on
grossly unreliable evidence. Of one, the Report notes “two other persons
were subsequently convicted in Wisconsin of ” the murders. Id., at 8. Of
two others, the Report states that they were released after “DNA tests
revealed that none of them were the source of the semen found in the
victim. That same year, two other men confessed to the crime, pleaded

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victed and condemned even more capital defendants than it
had executed, but it may well not have been otherwise
unique; one recent study reports that between 1989 and 2003,
74 American prisoners condemned to death were exonerated,
Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations
in the United States 1989 Through 2003, 95 J. Crim. L. & C.
523, 531 (2006) (hereinafter Gross), many of them cleared by
DNA evidence, ibid.3 Another report states that “more
guilty and were sentenced to life in prison, and a third was tried and
convicted for the crime.” Ibid. Of yet another, the Report says that
“another man subsequently confessed to the crime for which [the released
man] was convicted. He entered a plea of guilty and is currently serving
a prison term for that crime.” Id., at 9.
A number were subject to judgments as close to innocence as any judg
ments courts normally render. In the case of one of the released men,
the Supreme Court of Illinois found the evidence insufficient to support
his conviction. See People v. Smith, 185 Ill. 2d 532, 708 N. E. 2d 365
(1999). Several others obtained acquittals, and still more simply had the
charges against them dropped, after receiving orders for new trials.
At least 2 of the 13 were released at the initiative of the executive. We
can reasonably assume that a State under no obligation to do so would not
release into the public a person against whom it had a valid conviction and
sentence unless it were certain beyond all doubt that the person in custody
was not the perpetrator of the crime. The reason that the State would
forgo even a judicial forum in which defendants would demonstrate
grounds for vacating their convictions is a matter of common sense: evi
dence going to innocence was conclusive.
3 The authors state the criteria for their study: “As we use the term,
‘exoneration’ is an official act declaring a defendant not guilty of a crime
for which he or she had previously been convicted. The exonerations we
have studied occurred in four ways: (1) In forty-two cases governors (or
other appropriate executive officers) issued pardons based on evidence of
the defendants’ innocence. (2) In 263 cases criminal charges were dis
missed by courts after new evidence of innocence emerged, such as DNA.
(3) In thirty-one cases the defendants were acquitted at a retrial on the
basis of evidence that they had no role in the crimes for which they were
originally convicted. (4) In four cases, states posthumously acknowledged
the innocence of defendants who had already died in prison . . . .” Gross
524 (footnote omitted). The authors exclude from their list of exonera
tions “any case in which a dismissal or an acquittal appears to have been

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than 110” death row prisoners have been released since 1973
upon findings that they were innocent of the crimes charged,
and “[h]undreds of additional wrongful convictions in poten
tially capital cases have been documented over the past cen
tury.” Lanier & Acker, Capital Punishment, the Morato
rium Movement, and Empirical Questions, 10 Psychology,
Public Policy & Law 577, 593 (2004). Most of these wrong
ful convictions and sentences resulted from eyewitness mis
identification, false confession, and (most frequently) perjury,
Gross 544, 551–552, and the total shows that among all prose
cutions homicide cases suffer an unusually high incidence of
false conviction, id., at 532, 552, probably owing to the com
bined difficulty of investigating without help from the victim,
intense pressure to get convictions in homicide cases, and the
corresponding incentive for the guilty to frame the innocent,
id., at 532.
We are thus in a period of new empirical argument about
how “death is different,” Gregg, 428 U. S., at 188 ( joint opin
ion of Stewart, Powell, and Stevens, JJ.): not only would
these false verdicts defy correction after the fatal moment,
the Illinois experience shows them to be remarkable in num
ber, and they are probably disproportionately high in capital
cases. While it is far too soon for any generalization about
the soundness of capital sentencing across the country, the
cautionary lesson of recent experience addresses the tie
breaking potential of the Kansas statute: the same risks of
falsity that infect proof of guilt raise questions about sen
based on a decision that while the defendant was not guilty of the charges
in the original conviction, he did play a role in the crime and may be guilty
of some lesser crime that is based on the same conduct. For our purposes,
a defendant who is acquitted of murder on retrial, but convicted of involun
tary manslaughter, has not been exonerated. We have also excluded any
case in which a dismissal was entered in the absence of strong evidence of
factual innocence, or in which—despite such evidence—there was unex
plained physical evidence of the defendant’s guilt.” Id., at 524, n. 4.

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tences, when the circumstances of the crime are aggravating
factors and bear on predictions of future dangerousness.
In the face of evidence of the hazards of capital prosecu
tion, maintaining a sentencing system mandating death when
the sentencer finds the evidence pro and con to be in equi
poise is obtuse by any moral or social measure. And unless
application of the Eighth Amendment no longer calls for rea
soned moral judgment in substance as well as form, the Kan
sas law is unconstitutional.