Topeka ? In a stunning decision that rocked state leaders, a sharply divided Kansas Supreme Court on Friday declared the state’s death penalty unconstitutional and re-ignited the debate over capital punishment.

The court’s 4-3 decision vacates the death penalty for the six men in Kansas facing execution. The defendants, however, will remain incarcerated.

The ruling said the death penalty statute was unconstitutional because of a provision about how juries weigh arguments for and against the death penalty during sentencing. The law now says that if the jury finds the arguments for and against putting a person to death about equal, the decision should favor the state. That means the defendant would be sentenced to die.

Atty. Gen. Phill Kline blasted the court’s ruling, saying he would appeal it to the U.S. Supreme Court.

If allowed to stand, the court’s decision would be “thwarting the administration of justice, setting aside legislative intent and wreaking emotional havoc on surviving family members,” Kline said.

Gov. Kathleen Sebelius’ chief counsel Matt All said, “We really need to get this matter before the U.S. Supreme Court.”

But key state lawmakers said the death penalty law can be fixed during the legislative session that starts Jan. 10.

“The Legislature will take action,” predicted Sen. John Vratil, R-Leawood, chairman of the Senate Judiciary Committee. He said an appeal to the U.S. Supreme Court would be a waste of time and money.

Response to Kline

Kansas Atty. Gen. Phill Kline answers questions during a news conference about the Kansas Supreme Court's decision to overturn the state's death penalty. Kline says he'll appeal the decision to the U.S. Supreme Court.

Vratil and several other attorneys disagreed with Kline’s description of the ruling, saying the court acted reasonably by protecting the rights of those facing the ultimate punishment.

Meanwhile, death penalty opponents said the state Supreme Court’s decision highlighted the shortcomings of capital punishment and that the state should repeal the death penalty, which was established in 1994. There have been no executions in Kansas since the death penalty was reinstated.

“In Kansas, this is a 10-year failed experiment,” said Donna Schneweis, Amnesty International’s coordinator for Kansas death penalty abolition.

National groups also weighed in.

“Today’s development should not surprise anyone,” said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.

“Our experience in looking at the death penalty teaches us that it is exceedingly difficult to craft a system that is both procedurally fair and mistake-free,” she said.

Rust-Tierney’s group said Kansas now joined 13 other states without a death penalty.

Weighing circumstances

Friday’s decision stemmed from the case of Michael L. Marsh II, sentenced to die for the June 1996 death in Wichita of Marry Ane Pusch, 21.

Pusch had been shot and stabbed and her 19-month old daughter, Marry Elizabeth, was left to die in a fire.

The court ruled Marsh’s death sentence was unconstitutional because of the portion of the death penalty law that instructs a jury on weighing aggravating factors of the crime against the background of the defendant.

Aggravating factors could include for example, whether the crime was particularly heinous. But that could be weighed against whether the defendant had suffered abuse as a child.

Essentially, the law says that if a jury decides the aggravating factors and mitigating factors are the same in weight, the defendant gets the death penalty. It’s referred to as “a tie goes to the state.”

In another case in 2001, the court found flaws with the law and said the tie should go to the defendant as a way to provide protections in cases when life is at stake. At that time, the court said the death penalty could remain as long as judges told juries ties go to the defendant.

Legislative inaction

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Since then, the Legislature had taken no action to repair the flaws in the law identified by the court.

On Friday, a majority of the court said the Legislature needed to act.

“This is the Legislature’s job, not ours,” the majority opinion said.

The majority included Justices Donald Allegrucci, Marla Luckert, Robert Gernon and Carol Beier. In dissent were Chief Justice Kay McFarland, Robert Davis and Lawton Nuss.

McFarland said the majority decision was made “not because that decision has become unworkable, or the laws or facts underpinning it have changed, or a United States Supreme Court decision mandates it, but simply because this new majority has the power to do so.”

Kline repeated McFarland’s comments at a news conference. He added that the court had changed directions like Kansas City Chiefs kick returner Dante Hall.

“This is reversing the ends of justice through a technicality,” he said.

Lawrence connection

But Rebecca Woodman, an attorney with the Appellate Defender Office who argued on behalf of Marsh before the Kansas Supreme Court, defended the decision.

“The Kansas Supreme Court did the only thing it could do,” said Woodman, of Lawrence.

In 2001, the court expressed its concerns with the law and the Legislature did nothing about it, she said.

“The decision comports with the rule of law. The Legislature passed an unconstitutional statute,” Woodman said.

Vratil, chairman of the Senate judiciary panel, agreed.

He said the court decision was in line with a tradition in the United States to try to protect to the fullest the rights of those who could be executed.

Rep. Paul Davis, D-Lawrence, a member of the House Judiciary Committee, also agreed.

“On its face, if there is a tie vote and that goes in favor of the death penalty, that is a pretty serious flaw in the law,” he said.

Steve Zinn, a Lawrence attorney who died in a car accident in September, also led the appeal with the defender’s office.

When hearing that Zinn’s work prevailed, his wife, Jill Zinn, said, “I’m pleased that he got to work on this one, and that it will leave its mark.”

Inmates stay put

Though his death penalty was overturned, Marsh remains convicted of murder and aggravated burglary and has a life sentence.

Kansas officials said the ruling would not affect the immediate status of any inmates sentenced to die.

“There are no immediate plans to alter the management of any of the offenders in question while we study the ruling and its implications,” said Corrections Secretary Roger Werholz.

While Vratil said lawmakers could fix the provision the court declared unconstitutional, he acknowledged it could prompt a full-fledged airing of the death penalty itself.

“The Supreme Court has put the issue out there,” Vratil said.

Schneweis, a death penalty opponent, said the state should get rid of the death penalty because of the high cost of capital murder trials and the long appeals process.

A state audit found the median cost of a case resulting in a death sentence was $1.2 million, compared with $740,000 in a case in which a death sentence wasn’t pursued.

‘Not justifiable’

Schneweis said execution was not needed because the state could sentence defendants to life in prison without parole.

“We hope this decision will take us to a more sane public policy on this issue,” she said.

Bill Lucero, an anti-death penalty advocate whose father was murdered, praised the court’s decision but said he felt bad for family members of victims whose assailants are on death row.

An appeal to the U.S. Supreme Court will take years and could end up in new trials in all death penalty cases, he said.

“We keep torturing victims’ families by saying, ‘You’ll only find closure when we execute them,'” Lucero said. Keeping the death penalty in state law “is just not justifiable.”