OPINION OF THE COURT KANSAS V. MARSH 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1170 KANSAS, PETITIONER v. MICHAEL LEE MARSH,
II

															on writ of certiorari to the supreme court of
kansas

															[June 26, 2006]

															   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
when the sentencing jury determines that aggravating evidence 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
daughter, 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, aggravated arson, and aggravated burglary. The jury
found beyond a reasonable doubt the existence of three aggravating
circumstances, and that those circumstances were not outweighed 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
reasonable doubt that one or more of the aggravating circumstances
enumerated in K. S. A. 21–4625 … exist and, further, that
the existence of such aggravating circumstances is not outweighed
by any mitigating circumstances 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 presumption in favor of death because it directs
imposition of the death penalty when aggravating and mitigating
circumstances are in equipoise.

															   The Kansas Supreme Court agreed, and held that
the Kansas death penalty statute, §21–4624(e), is facially
unconstitutional. 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 equipoise, 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 reversed and remanded for new trial
Marsh’s convictions for capital murder of M. P. and aggravated
arson.[ Footnote 1 ] We granted
certiorari, 544 U. S. 1060 (2005), and now
reverse the Kansas Supreme Court’s judgment that Kansas’ capital
sentencing statute, Kan. Stat. Ann. §21–4624(e), is facially
unconstitutional.

															II

															   In addition to granting
certiorari to review the constitutionality of Kansas’ capital
sentencing statute, we also directed 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 Broadcasting Corp. v. Cohn , 420 U. S. 469 (1975);
and (2) whether the Kansas Supreme Court’s judgment is supported by
adequate state grounds independent of federal law. 544 U. S. 1060 . Having considered the
parties’ arguments, we conclude that we have jurisdiction in this
case and that the constitutional 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 judgment 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 review 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 contention is meritless. That statute
provides for limited appeal 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 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
constitutionality 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). 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 written was
unconstitutional under the Eighth and Fourteenth Amendments” as
applied to cases in which aggravating evidence 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 revision. 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 jurisdiction 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 of a capital
offense. At sentencing, the trial judge found the existence of two
aggravating circumstances and that the mitigating 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 constitutional), and the Ninth Circuit’s
decision in Adamson v. Ricketts , 865 F. 2d
1011, 1043–1044 (1988) (en banc) (finding the Arizona death penalty
statute unconstitutional because, “in situations where the
mitigating and aggravating circumstances are in balance, or, where
the mitigating circumstances 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 , 497 U. S. , at 647.

															   Consistent with the Ninth
Circuit’s conclusion in Adamson , 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
factors.’ ” 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 circumstance will not outweigh the aggravating
circumstance’ ” (alteration 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 defendant’s
constitutional rights are not violated by placing on him the burden
of proving mitigating circumstances sufficiently 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. Pennsylvania, 494 U. S. 299 , 307
(1990)). The Court also pointedly observed that while the
Constitution requires that a sentencing jury have discretion, it
does not mandate that discretion 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 sentencing statute cannot be said to
impermissibly, much less automatically, 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 argument that the Arizona system was unconstitutional
because it required the death penalty unless the mitigating
circumstances outweighed the aggravating circumstances.
See supra , at 5. 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 that the
Court resolved the issue in favor of the State. Indeed, 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 circumstances 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 explicitly, that issue was resolved by
its holding. Cf. post , at 2 (Stevens, J., dissenting); cf.
also post , at 2, 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 penalty will be imposed upon a finding that aggravating
circumstances are not outweighed by mitigating
circumstances.[ Footnote 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 , 865 F. 2d, 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 mitigating evidence.

															   The statutes are distinct in one respect. The
Arizona statute, once the State has met its burden, tasks the
defendant with the burden of proving sufficient mitigating
circumstances to overcome the aggravating circumstances and that a
sentence less than death is therefore warranted. In contrast, the
Kansas statute requires the State to bear the burden of proving to
the jury, beyond a reasonable doubt, that aggravators are not
outweighed by mitigators and that a sentence of death is therefore
appropriate; it places no additional 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 circumstances 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 aggravating circumstances
and mitigating circumstances are in equipoise.

															IV

															A

															   Even if, as Marsh contends, Walton does not directly control, the general principles
set forth in our death penalty jurisprudence would lead us to
conclude that the Kansas capital sentencing system is
constitutionally permissible. Together, 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: (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 defendant’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 penalty, including the manner
in which aggravating and mitigating circumstances are to be
weighed. See Franklin v. Lynaugh, 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 requirement of individualized sentencing. See Graham v. Collins, 506 U. S. 461 , 484–489
(1993) (Thomas, J., concurring) (discussing the development of
mitigation precedent). In Lockett 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
sentencer must have full access to this “ ‘highly
relevant’ ” information. Id ., at 603 (alteration
omitted) (quoting Williams v. New York , 337 U. S. 241 , 247
(1949)). Thus, in Lockett , the Court struck down the Ohio
death penalty statute as unconstitutional because, by limiting a
jury’s consideration of mitigation 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) (discussing Eddings ).

															   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 mitigating and
aggravating factors in a capital sentencing proceeding 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 permissible 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 capital cases is
satisfied by allowing the jury to consider all relevant 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 adversary process
in sentencing proceedings by conferring on the defendant an
affirmative right to place his relevant evidence before the
sentencer”).

															B

															   The Kansas death penalty statute
satisfies the constitutional mandates of Furman and its
progeny because it rationally 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 requirements. 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 Kan.
Stat. Ann. §21–3439. Once convicted of capital murder, 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 circumstances. Kan. Stat. Ann. §§21–4624(c),
(e), and 21–4625; App. 24 (Instruction No. 3).

															   Consonant with the individualized sentencing
requirement, 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 itself be a mitigating factor you may consider in determining
whether the State has proved beyond a reasonable doubt that the
death penalty is warranted.” Id., at 24 (Instruction No.
4).[ Footnote 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.

															   Kansas’ weighing equation, ibid. (Instruction No. 5), merely channels a jury’s discretion by
providing it with criteria 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
impose a sentence of death. However, if you determine that the
mitigating circumstances outweigh the aggravating 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
instruction prevented the jury from rendering an individualized
sentencing determination. This Court rejected that argument,
concluding that it was foreclosed by Blystone , where the
Court rejected a nearly identical challenge to the Pennsylvania
death penalty statute. 494 U. S., at 307.[ Footnote 4 ] In so holding, this Court noted that the
mandatory language of the statute did not prevent the jury from considering all relevant mitigating evidence. Boyde, 494 U. S., at 374. Similarly here, §21–4624(e) does
not prevent a Kansas jury from considering mitigating evidence.
Marsh’s argument that the Kansas provision is impermissibly
mandatory is likewise foreclosed.[ Footnote 5 ]

															   Contrary to Marsh’s argument, §21–4624(e) does
not create 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 imprisonment is the
appropriate sentence for a capital conviction. If the State fails
to meet its burden to demonstrate the existence of an aggravating
circumstance(s) beyond a reasonable doubt, a sentence of life
imprisonment must be imposed. §21–4624(e); 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. (Instruction No. 10); id .,
at 26 (Instruction No. 5). Significantly, 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
circumstances. Instead, the State always has the burden of
demonstrating that mitigating evidence does not outweigh
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 capital murder.[ Footnote 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
render 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
characterization of the Kansas statute—that a jury’s determination
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 4–5 (Souter, J., dissenting)
(arguing that Kansas’ weighing equation undermines individualized
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 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 inability 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 depicted
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 constitutionally tasked to engage when
deciding the appropriate sentence for a capital defendant.

															V

															   Justice Souter argues
(hereinafter the dissent) that the advent of DNA testing has
resulted in the “exoneratio[n]” of “innocent” persons “in numbers
never imagined before the development of DNA tests.” Post ,
at 5–6. Based upon this “new empirical demonstration of how ‘death
is different,’ ” post , at 8, 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’ capital sentencing system.
Accordingly, the accuracy of the dissent’s factual claim that DNA
testing has established the “innocence” of numerous convicted
persons under death sentences—and the incendiary debate it
invokes—is beyond the scope of this opinion.[ Footnote 7 ]

															   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
penalty can only be just in a system that does not permit error.
Because the criminal justice system does not operate perfectly,
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 empower 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. Footnote 1 The Kansas Supreme Court found that the trial
court committed reversible error by excluding circumstantial
evidence of third-party guilt connecting Eric Pusch, Marry Ane’s
husband, to the crimes, and, accordingly ordered a new trial on
this ground. 278 Kan., at 528–533, 102 P. 3d, at 454–457. Footnote 2 Ariz. Rev. Stat. Ann. §13–703(E) (Supp. 2005)
provides:

															   “In determining whether to impose a sentence
of death or life imprisonment, the trier of fact shall take into
account the aggravating and mitigating 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 determines that
there are no mitigating circumstances sufficiently substantial to
call for leniency.” Footnote 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 4
(Souter, J., dissenting). Footnote 4 In Blystone, the Pennsylvania
statute authorized imposition of a death sentence if the jury
concluded “that the aggravating circumstances outweigh[ed] the
mitigating circumstances present in the particular crime committed
by the particular defendant, or that there [were] no such
mitigating circumstances.” 494 U. S., at 305. Footnote 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 3 (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 3, 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 Carolina, 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”). Footnote 6 Additionally, Marsh’s argument turns on
reading §21–4624(e) in isolation. Such a reading, however, is
contrary to “ ‘the well-established proposition 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). Footnote 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 also Comment, Protecting the
Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev.
121, 126–145 (1988) (examining accuracy in use of the term
“innocent” in death penalty studies and literature); Marquis, The
Myth of Innocence, 95 J. Crim. L. & C. 501, 508 (2005) (
“[w]ords like ‘innocence’ convey enormous moral authority and are
intended 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) (“[w]hile 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”). SCALIA, J., CONCURRING KANSAS V. MARSH 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1170 KANSAS, PETITIONER v. MICHAEL LEE MARSH,
II

															on writ of certiorari to the supreme court of
kansas

															[June 26, 2006]

															   Justice Scalia, concurring.

															   I join the opinion of the Court.
I write separately to clarify briefly the import of my joinder, and
to respond at somewhat 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 Kansas’s death penalty statute easily satisfies even a capital
jurisprudence 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 petitioner, does not deserve our attention.
“ ‘[N]o rule of law,’ ” he says, “ ‘commanded the
Court to grant certiorari.’ ” Post , at 3 (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 certiorari
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 3 (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 law, even
though they patently contradict (as the determination below does)
the holdings of other state courts and Federal 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), 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
responsibility under current practice, however, and a primary basis
for the Constitution’s allowing us to be accorded jurisdiction to
review state-court decisions, see Art. III, §2, cls. 1 and 2,
is to ensure the integrity and uniformity of federal law.[ Footnote 1 ] See this Court’s Rule
10(b), (c). Fulfillment of this responsibility is, to put it
mildly, an adequate answer to the 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 3 (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 2
(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 determination 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 erroneously invalidate actions taken by the
people of a State (through initiative or through normal operation
of the political branches of their state government) on state-law grounds, it is generally none of our business;
and our displacing of those judgments would indeed be an intrusion
upon state autonomy. But when state courts erroneously invalidate
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 authority in
the State—not even a referendum agreed to by all its citizens—can
undo the error. Thus, a general presumption 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 correct a state court’s federal errors, we
return power to the State, and to its people .

															   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
defendant’s] rights under the Federal Constitution,” post ,
at 2 (Stevens, J., dissenting). It is to ensure that when courts
speak in the name of the Federal Constitution, they disregard none
of its guarantees—neither those that assure the rights of criminal
defendants, nor those that assure 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 defendants, 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 considerations set forth in Rule 10. None of them turns on the
identity 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 continue 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 ) ready to “generaliz[e] about the soundness
of capital sentencing across the country,” post , at 9; but
that is in fact precisely what they do. The dissent essentially
argues that capital punishment is such an undesirable
institution—it results in the condemnation of such a large number
of innocents—that any legal rule which eliminates its
pronouncement, including the one favored by the dissenters in the
present case, should be embraced. See ibid .

															   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 validation, 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 dissenters’
views on whether Kansas’s equipoise rule is constitutional 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 invalidation of the equipoise rule because it is a
bad, “risk[y],” and “hazard[ous]” idea, ibid . A broader
conclusion that people 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 restrictions 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’ proclamation
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 does serve that function, see, e.g. , House v. Bell, 547 U. S. ___
(2006). (Marsh himself has earned a remand by application of one
such rule, see ante , at 2–3.) But as the Court observes,
see ante , at 16–17, guilt or innocence is logically
disconnected to the challenge in this case to sentencing standards. The only time the equipoise
provision is relevant is when the State has proved a defendant
guilty of a capital crime.[ Footnote
2 ]

															   There exists in some parts of the world
sanctimonious criticism 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.[ Footnote 3 ]) 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
trumpeted 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 innocence. 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
gruesome 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 picture was on the cover of Time magazine
(‘This Man Might Be Innocent. This Man Is Due to Die’). He was
interviewed from death row on ‘Larry King Live,’ the ‘Today’ show,
‘Primetime Live,’ ‘Good Morning America’ and ‘The Phil Donahue
Show.’ ” Frankel, Burden of Proof, Washington 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 evidence 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
innocent person had been executed.” Frankel, supra , at
W24. But earlier this year, a DNA test ordered by a later Governor
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 identified
“the real killer” (with whom they eventually settled a defamation
suit). See Frankel, supra, at W23. And Coleman’s case is
not unique. See Truth and Consequences: The Penalty of Death, in
Debating the Death Penalty: Should America Have Capital Punishment?
The Experts on Both Sides Make Their Best Case, 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
wrongful 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 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 8
(opinion of Souter, J.). For the first point, Lanier and Acker cite
the work of the Death Penalty Information 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 paragraph
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 country during the
20th century notwithstanding their innocence.” Lanier & Acker,
Capital Punishment, the Moratorium 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 dissent, 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 defendants, the legal protections
States afford, the constitutional guarantees this Court enforces,
and the scope of federal 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 convicted, 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
century—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 occurred 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 describes 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 another source.” Markman & Cassell,
Protecting the Innocent: 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 anyone but the male victim), “ ‘sounded “kind of like a
woman’s voice, kind of like strangling or something
… .” ’ ” Markman & Cassell, Protecting the
Innocent, at 130. Bedau and Radelet 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 belonging to the victim, and clothing of Adams’ stained
with type O blood. Ibid. This is just a sample of the
evidence 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 embraced 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 , 430, n. 1 (1993)
(Blackmun, J., joined by Stevens and Souter, JJ.,
dissenting).[ Footnote 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 system,
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 parcel of the multiple
assurances that are applied before a death sentence is carried
out.

															   Of course even in identifying exonerees, the
dissent is willing to accept anybody’s say-so. It engages in no
critical review, but merely parrots articles or reports that
support its attack on the American criminal justice system.
 The dissent 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 Happened, What It Promises,
95 J. Crim. L. & C. 381, 406–407, 410 (2006)), which it claims
shows that “false verdicts” are “remarkable in number.” Post , at 9 (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 dissent as an example of a judgment “as
close to innocence as any judgments courts normally render,” post, at 7, 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 reasonable 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 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,” post, at 7,
n. 2. The broader point, however, is that it is utterly
impossible to regard “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 beyond 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 (2006) (hereinafter
Gross). The dissent quotes that study’s self-congratulatory
“criteria” of exoneration—seemingly so rigorous that no one could
doubt the study’s reliability. See post , at 8, 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 6 (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 because 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 imprisonment. The
Court of Appeals for the Third Circuit affirmed 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 Jeremy 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 portion 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, rendered
the evidence inadmissible under the Sixth Amendment. 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 summary judgment
against him. Id. , at 780. Sheets also sought the $1,000 he
had been required to pay to the Nebraska Victim’s Compensation
Fund; the State Attorney General—far from concluding that Sheets
had been “exonerated” 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 Center. 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
Court reversed the conviction on a 4-to-3 vote. 337 So. 2d 788
(1976). The Florida courts then grappled 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 problem, 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 “reweigh[ing] the evidence” in Tibbs’ case
had been “clearly improper,” id. , at 1126. After we
affirmed the Florida Supreme 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 Review 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 constitutes “exoneration,” the claims of the Gross article are
fairly modest: Between 1989 and 2003, the authors identify 340
“exonerations” 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 in any way. During that
same 15 years, there were more than 15 million felony convictions
across the country. 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 especially 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
executed. 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 sentences 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 cases
included in the .027% error rate for American verdicts involved a
capital defendant erroneously executed.

															   Since 1976 there have been approximately a
half million murders in the United States. In that time, 7,000
murderers 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
(2006). 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.

															   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
punished mistakenly. That is a truism, not a revelation. But with
regard to the punishment of death in the current American system,
that possibility has been reduced to an insignificant minimum. This
explains why those ideologically driven to ferret out and proclaim
a mistaken modern execution 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
deterrence, 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 Justices, 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. Footnote 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 3–4,
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 Government. (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 dissent’s awarding
of special preference to the constitutional rights of criminal
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. Shapiro, & 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 defendants in precisely the same
position. They are both entitled to petition for our review. Footnote 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 2.
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 mitigators. 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
beyond a reasonable doubt” requirement. Footnote 3 It is commonly recognized that “[m]any
European countries … abolished 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.
Abolishing 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-penalty page on the website of the Delegation
of the European Commission to the U. S. A. See
http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm (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 dissenters today) in
narrowing the power of the American people to impose capital
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 ). Footnote 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 executed, see
Bedau & Radelet, Miscarriages of Justice in Potentially Capital
Cases, 40 Stan. L. Rev. 21, 36, 173–179 (1987), perhaps
recently, see Herrera v. Collins, 506 U. S. 390 (1993), and will
continue to be executed under our death penalty scheme”). STEVENS, J., DISSENTING KANSAS V. MARSH 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1170 KANSAS, PETITIONER v. MICHAEL LEE MARSH,
II

															on writ of certiorari to the supreme court of
kansas

															[June 26, 2006]

															   Justice Stevens, dissenting.

															   Having joined Justice Blackmun’s
dissent from the plurality’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 reasons: to
explain why agreement with Justice Blackmun’s dissent is fully
consistent with refusing to read Walton as
“control[ling],” but see ante, at 5 (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.
§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
sentence in a case where aggravating and mitigating circumstances
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 Justice Blackmun
did not read the plurality opinion as confronting the problem of
equipoise that he believed Arizona law to present, my join of his
dissent is consistent with my conclusion that stare
decisis does not bind us today. As Justice Souter explains, post , at 2, n. 1, the Walton plurality
painstakingly avoided an express endorsement 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 Walton —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 decisionmaker in a case of this
kind. See Brigham City v. Stuart , 547 U. S. __,
__ (2006) (Stevens, J., concurring) (slip op., at 3).

															   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 sentences—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 commutation 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 personify 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.
Nothing 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 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, J., dissenting). Although
in recent years the trend has been otherwise, I continue to hope
“that a future Court will recognize the error of this allocation of
resources,” id., at 1070, and return to our older and
better practice of restraint.

															* 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 2–5 (concurring opinion). In so
doing, he overlooks the separate federal interest 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 4–5—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 2. 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. Unconcerned about Justice Scalia’s “crazy
quilt,” ante , at 4, the First Congress 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
constitution, 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., dissenting). 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 constitutional
grounds. See 28 U. S. C. §1257 (1982 ed.). In other words,
during the entire period between 1789 and 1988, the laws enacted by
Congress placed greater weight on the vindication of federal rights
than on the interest in the uniformity of federal law. SOUTER, J., DISSENTING KANSAS V. MARSH 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1170 KANSAS, PETITIONER v. MICHAEL LEE MARSH,
II

															on writ of certiorari to the supreme court of
kansas

															[June 26, 2006]

															   Justice Souter, with whom Justice
Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

															I

															   Kansas’s capital sentencing
statute provides that a defendant “shall be sentenced to death” if,
by unanimous vote, “the jury finds beyond a reasonable doubt that
one or more aggravating circumstances … exist and … that the
existence 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 circumstances 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)
(stating that the language of §21–4624(e) “provides that in
doubtful cases the jury must return a sentence 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 judges 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.[ Footnote 1 ]

															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) (per curiam) (Stewart, J., concurring) (“[T]he
Eighth and Fourteenth Amendments cannot tolerate the infliction of
a sentence of death under legal systems that permit this unique
penalty to be … wantonly and … freakishly imposed” on a
“capriciously selected random handful” of individuals). The
Constitution was held to require, instead, a system structured to
produce reliable, Woodson v. North Carolina, 428 U. S. 280 ,
305 (1976) (plurality opinion), rational, Jurek v. Texas, 428
U. S. 262 , 276 (1976) (joint opinion of Stewart, Powell, and
Stevens, JJ.), and rationally 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 reliability in
producing “ ‘a reasoned moral response to the defendant’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 deleted); cf. Gregg v. Georgia, 428 U. S. 153 , 206
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)
(sanctioning 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 justifiable
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 required 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 aggravators, and our recognition of the moral rationality of a
mandatory 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 substantive
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
attribution of particular culpability to a criminal act and
defendant, 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.

															   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 offenders 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 sentencing 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 responsibility 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
perpetrator as heinous to the point of demanding death even within
the class of potentially capital offenses, the State’s provision
for a tie breaker in favor of death fails on both counts. The
dispositive fact under the tie breaker 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 operates merely on a jury’s
finding of equipoise in the State’s own selected considerations for
and against death. Nor does the tie breaker 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 produces a death sentence exactly when a sentencing
impasse demonstrates as a matter of law that the jury does not see
the evidence as showing the worst sort of crime committed by the
worst sort of criminal, in a combination heinous 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 Supreme 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 morally 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, developed 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
Amendment guarantees should tolerate, for the period starting in
1989 has seen repeated exonerations of convicts under death
sentences, in numbers never imagined before the development 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 Commission 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 4 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).[ Footnote 2 ] Illinois had thus wrongly convicted
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.[ Footnote 3 ] Another report states that “more 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 potentially
capital cases have been documented over the past century.” Lanier
& Acker, Capital Punishment, the Moratorium Movement, and
Empirical Questions, 10 Psychology, Public Policy & Law 577,
593 (2004). Most of these wrongful convictions and sentences
resulted from eyewitness misidentification, false confession, and
(most frequently) perjury, Gross 544, 551–552, and the total shows
that among all prosecutions homicide cases suffer an unusually high
incidence of false conviction, id., at 532, 552, probably
owing to the combined 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 opinion 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
number, 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 sentences, 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 prosecution, maintaining a sentencing system mandating
death when the sentencer finds the evidence pro and con to be in
equipoise is obtuse by any moral or social measure. And unless
application of the Eighth Amendment no longer calls for reasoned
moral judgment in substance as well as form, the Kansas law is
unconstitutional. Footnote 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 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. Footnote 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 penalty cases
“were reversed at some point in the process”). More importantly, 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 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 judgments 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:
evidence going to innocence was conclusive. Footnote 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
dismissed 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 exonerations “any case in
which a dismissal or an acquittal appears to have been 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 involuntary 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 unexplained physical evidence
of the defendant’s guilt.” Ibid. , n. 4.