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.