The distinctive (and disturbing) procedural posture of Guzek and Marsh

December 7, 2005

Continuing this month of death dramas, on Wednesday the Supreme Court will hear arguments in two capital cases, Oregon v. Guzek and Kansas v. Marsh. The great descriptions of these cases over at SCOTUSblog (here and here) spotlight not only the interesting substantive issues, but also the distinctive and disturbing procedural posture of the cases before the High Court. In each case, a state supreme court overturned a state death sentence, possibly on state law grounds; it is not clear SCOTUS should reach the substantive merits in either case.

As detailed in many prior posts (some of which are linked below), I am troubled by how much of the Court’s limited docket is devoted to capital cases. But I ultimately can understand why the Court might want to ensure, in cases like Miller-El or Penry, that potentially hinky death sentences are carefully scrutinized. But in both Guzek and Marsh, the Court is taking up cases in which a state court decided to overturn a state death sentence: is it really a matter of great national concern, justifying Supreme Court attention, that some state courts may be scrutinizing their own state death sentences too carefully?

The Supreme Court’s decision to get involved in in Guzek and Marsh inevitably extends the litigation in these cases. As I understand Guzek, not only has the defendant’s death sentence already been vacated and remanded for re-sentencing four times(!), but even a US Supreme Court ruling for the prosecution would not eliminate the necessity of re-sentencing the defendant yet again. There has got to be a better way.

UPDATE: Howard at How Appealing in this post collects links to death penalty newspaper articles, including this effective review of the issues in Kansas v. Marsh.