WICHITA, Kansas -- On Monday, state Attorney General Phill Kline said he was finalizing his arguments to keep the death penalty on the books in Kansas. He admits it won’t be an easy fight.

The debate over the constitutionality of capital punishment in Kansas goes to Washington D.C. next month. That’s where Kline will present legal briefs to the Supreme Court in favor of the death penalty.

"It is rare when the Kansas death penalty has been imposed but it is imposed in appropriate circumstances," said Kline.

But last year, Kansas’ highest court ruled it unconstitutional. Justices found the law vague and misleading. Kline admits it will be difficult to overturn that ruling. He points to the new make up of the United States Supreme Court and whether Supreme Court nominee, Sam Alito, will be on the court then.

But local defense attorney, Dan Monnat, points to an even bigger challenge -- the retrial of death row inmate Michael Marsh. His case prompted this legal battle.

"In essence, the Kansas Supreme Court’s decision is not a final judgment as to Marsh because he has also been granted a new trial on the issue of guilt. If he is acquitted, he may forever escape the death penalty," said Monnat.

With that, the Supreme Court could rule to throw the death penalty issue out altogether, stopping Kansas prosecutors from having a death penalty option for the most serious of crimes.

The arguments in front of the Supreme Court justices will take place on December 7th.