The Kansas Supreme Court has ruled that the state’s 1994 death penal­ty law is uncon­sti­tu­tion­al because it con­tains a pro­vi­sion giv­ing the state an advan­tage when jurors find the aggra­vat­ing and mit­i­gat­ing fac­tors pre­sent­ed at sen­tenc­ing to be equal. In that cir­cum­stance, the cur­rent law states that the defen­dant must be sen­tenced to death. The Court ruled that such a pro­vi­sion does not allow the jury to express a rea­soned moral response to the evi­dence, and the process does not com­port with the human dig­ni­ty required by the Eighth Amendment.

This jury instruc­tion flaw was first iden­ti­fied by the Kansas Supreme Court in 2001, when it ruled that each of the four men on death row must be resen­tenced with revised jury instruc­tions that cor­rect­ed the prob­lem. In this most recent rul­ing, the jus­tices ruled that it was not prop­er for the court to fix the statute, but rather it was the role of the leg­is­la­ture. (No. 81,135, KANSAS v. MICHAEL LEE MARSH II, 2004) (See Associated Press, December 17, 2004). The Kansas rul­ing marks the sec­ond time in 2004 that a state’s high­est court has declared a death penal­ty statute uncon­sti­tu­tion­al. Earlier this year, New York’s high­est court deliv­ered a sim­i­lar rul­ing and declared that state’s law uncon­sti­tu­tion­al due to a sen­tenc­ing flaw. Lawmakers in NY are cur­rent­ly hold­ing hear­ings on cap­i­tal pun­ish­ment to deter­mine whether the death penal­ty should even be rein­stat­ed. See Syllabus of the Kansas Opinion; see also Sentencing.

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