A capital waste of time?

In my review of this morning’s SCOTUS action here, I suggested I was annoyed by the Court’s decision to grant review in the death penalty case of Kansas v. Marsh.  Let me explain this reaction.

First, some background: Kansas enacted a new death penalty statute in 1994 and prosecutors had sent seven men to Kansas’ death row before the Kansas Supreme Court in Marsh last December found what has been described as a “technical flaw” in the operation of the state’s capital sentencing procedures.  Discussion of the Marsh ruling is available in posts here and here, and the Death Penalty Information Center’s state-by-state charts provide more background on capital punishment in Kansas.

Now, my complaint: No aspect of Marsh, other than that it is a capital case, seems of sufficient significance to merit a place on the Supreme Court’s ever-shrinking docket.  Perhaps the fate of six men still on Kansas’ death row could hang in the balance, though I would predict that there will be a lot more litigation about their fate even if SCOTUS reinstates their death sentences.  And realize that, unlike in Miller-El or Penry where the Court has twice reviewed a death sentence that seemed hinky, here the Supreme Court is reviewing a state court decision to overturn a state death sentence.

Especially against the backdrop of all the post-Blakely and post-Booker uncertainty, wherein the fate of literally hundreds of thousands of defendants hang in the balance, I continue to be troubled by the Supreme Court’s continued preoccupation (fetishism?) with capital sentencing procedures (which I now am giving the label a “legal culture of death”).  The Marsh grant, which I believe is already the third capital case in which cert. has been granted for the 2005 Term, reinforces yet again my recent observations in posts here and here that the Supreme Court is spending too much time and energy on death penalty litigation when there are many post-Blakely and post-Booker legal questions concerning non-capital sentencing procedures that are far more pressing and of much greater national import.

UPDATE: Lyle Denniston at SCOTUSblog has a long post about Marsh entitled “A major death penalty case? Maybe not.”  Lyle’s terrifically helpful report suggests that perhaps the substantive issue in Marsh might be of some broader significance, but it also suggests that the procedural posture of the case is likely to ensure a messy outcome.