This note challenges the constitutionality of the capital sentencing scheme used by Kansas courts. The author begins by examining the his-tory of and policies underlying the trial-by-jury guarantee of the Sixth Amendment to the U.S. Constitution. Because a criminal defendant’s Sixth Amendment rights extend into the sentencing phase of a trial, the jury plays a critical role as the ultimate arbiter of both fact and judgment. The Kansas sentencing scheme mandates a sentence of death when the jury determines that the reasons for and against executing the defendant are in equipoise. As a result, the Kansas scheme diminishes the role of the jury and deprives a criminal defendant of the fundamental right to a trial by his or her peers. To remedy these problems, the author proposes three potential avenues for restoring constitutionality to the Kansas capital sentencing scheme. Specifically, the author recommends that the Kansas legislature reverse the current weighing equation that militates in favor of death, require an additional jury finding that death is the appropriate sentence, or eliminate the weighing equation altogether. In its current form, the sentencing provisions raise serious constitutional concerns. However, Kansas can restore criminal defendants’ full Sixth Amendment rights, as well as the critical role the jury plays in capital cases, by adopting any of the author’s three proposals.
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