Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas.
Gross, Samuel R. "Souter Passant, Scalia Rampant: Combat in the Marsh." Mich. L. Rev. First Impressions 105, no. 3 (2006): 67-72