Division among justices over
capital punishment
Gina Holland
WASHINGTON — The Supreme Court upheld a state death penalty
law last Monday in a splintered ruling that revealed deep division
among the justices over the fairness of capital punishment in America.
New Justice Samuel Alito was called on to break a tie in the case,
which was argued twice — first while Sandra Day O’Connor
was still on the court, and then this spring so that Alito could
end a deadlock.
The 5-4 outcome was as much a debate about capital punishment as
it was a ruling on a unique law in Kansas, which has just eight
death row inmates and hasn’t executed anyone in 40 years.
The law says that juries should sentence a defendant to die —
rather than serve life in prison — when the evidence for and
against imposing death is equal.
Justice Clarence Thomas, writing for the conservative majority,
said “our precedents establish that a state enjoys a range
of discretion in imposing the death penalty.”
But Justice David H. Souter, writing for the court’s liberals,
said the law would lead to death sentences in doubtful cases and
“is obtuse by any moral or social measure.”
The ruling overturns a Kansas Supreme Court decision that found
the law violated the Eighth Amendment’s protection against
cruel and unusual punishment. Supporting Thomas, in addition to
Alito, were Chief Justice John Roberts and Justices Antonin Scalia
and Anthony M. Kennedy.
The court’s decision might have been different if O’Connor
had still been on the bench.
“This was the kind of case where she would have been close
to the line and a big question mark,” said Kent Scheidegger,
legal director of the pro-death penalty Criminal Justice Legal Foundation.
The ruling shows that the death penalty is not in danger with the
new court.
“We have a majority for the time being that’s not going
to engage in further tinkering,” Scheidegger said.
The case was the last death penalty matter of the term. The justices
wrap up their work later this week, after deciding the five remaining
cases, and take a summer break.
“Perhaps it’s the end of the term and things have been
brewing. This is a last chance to define the sides for future debates,”
said Richard Dieter, executive director of the anti-capital punishment
Death Penalty Information Center.
The four liberal members stopped short Monday of calling for an
end to capital punishment, but they pointed to studies finding that
dozens of people condemned to death were later exonerated.
“We are thus in a period of new empirical argument about how
‘death (capital punishment) is different,’” Souter
wrote.
He said that pressure for prosecutors to win convictions, eyewitness
misidentifications and false confessions have contributed to “hazards
of capital prosecution.”
Scalia, in response, said those studies were not proven. “Those
ideologically driven to ferret out and proclaim a mistaken modern
execution have not a single verifiable case to point to, whereas
it is easy as pie to identify plainly guilty murderers who have
been set free,” he said.
He also complained that there has been “sanctimonious criticism
of America’s death penalty” from people in other countries
and that Monday’s dissent “will be trumpeted abroad
as vindication of these criticisms.”
The ruling involved the case of Michael Lee Marsh, who was convicted
in the June 1996 killings of Marry Ane Pusch and her 19-month-old
daughter. In its December 2004 ruling striking down the death penalty
law, the Kansas court also invalidated Marsh’s capital murder
conviction for the child’s death, saying Marsh’s attorneys
should have been allowed to present evidence that someone else was
connected to the murders.
“Without this ruling, the decisions the juries made concerning
the eight Kansas death-row inmates would be in jeopardy. I hope
this will bring some closure to the families who have been waiting
for this issue to be resolved,” said Gov. Kathleen Sebelius.
The case is Kansas v. Marsh, 04-1170.
(Associated Press)
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