WASHINGTON – A Monday ruling making it easier for Kansas jurors to impose the death penalty may be the first sign that the Supreme Court’s two new justices will tip the balance away from tighter restrictions on capital punishment.
Chief Justice John G. Roberts and Justice Samuel Alito provided the pivotal votes in the Kansas decision. The decision supported a lower-court ruling that said when jurors believe the reasons for and against execution are equal, they must impose a death sentence.
It’s a blow to death-penalty critics, who’ve said that the Constitution requires the reasons for execution to outweigh reasons against a death sentence. Previous rulings seemed to support that thinking, and the court’s most recent rulings on significant death penalty issues – raising standards for defense attorneys, outlawing executions of juveniles and the mentally retarded – had raised expectations that the Kansas case would extend that line.
Roberts’ vote didn’t shift the court’s balance on death-penalty law. He replaced Chief Justice William H. Rehnquist, who wasn’t in the majority for most of the court’s significant death-penalty rulings.
But Alito replaced Justice Sandra Day O’Connor, whose doubts about capital punishment had grown in recent years. Alito’s vote in the Kansas case was presumed to be decisive, because the court was split 4-4 on death-penalty law.
Monday’s ruling affects only Kansas, but it suggests how the new court may split on larger capital punishment questions.
Justice Antonin Scalia, who has been on the losing side of significant death cases for years, joined the winners Monday. He penned a concurring opinion doubting that there are any institutional problems with the death penalty and rejecting the idea that innocent people have been or are at risk of being executed.
Justice David Souter wrote an equally sweeping dissent. He defined the court’s obligation in death cases as seeking a “morally justifiable” sentence. He tied that term to the growing anti-death-penalty campaign that focuses on questions of possible innocence.
Souter cited a bevy of studies suggesting that the nation’s prisons may be teeming with condemned prisoners who didn’t commit their crimes.
“We are … in a period of new empirical argument about how `death is different,'” Souter wrote. Problems in states such as Illinois, which recently commuted the sentences of all its death-row inmates, and studies on incidences of DNA-related exonerations present new challenges and demand tighter scrutiny of capital punishment, Souter wrote.
Souter’s opinion, which was joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer, gives a hint of ideological and political sweep to their coalition’s work to tighten restrictions on capital punishment. It suggests that, for them, this isn’t just about the law and the Constitution, but also about the death penalty’s practical effects – a doctrine that’s frequently and brutally criticized by judicial conservatives.
Scalia took aim at Souter’s attempt to root his objections in the possibility that innocent convicts are plentiful. He accused Souter and the others of irresponsibly fanning worldwide criticism of capital punishment in America.
“There exists in some parts of the world sanctimonious criticism of America’s death penalty as somehow unworthy of a civilized society,” Scalia wrote. Because Souter’s opinion would no doubt be trumpeted by those critics, Scalia said, he was moved to respond. Souter’s opinion, he wrote, has “nothing substantial to support it.”
Scalia said there’s never been a case where it’s clear that an innocent person was executed. He punched holes in several often-cited studies of innocence problems, accusing Souter and the other dissenting justices of accepting “anybody’s say-so.”
Souter’s opinion, Scalia wrote, “merely parrots articles or reports that support its attack on the American criminal justice system.”
It’s not the court’s business to “impugn” jury verdicts that result in death sentences, much less to “frustrate” them by “imposing judicially invented obstacles,” Scalia maintained.
Scalia’s concurrence wasn’t joined by other justices, but its tone was quickly echoed by interest groups that have opposed court rulings restricting capital punishment.
The Criminal Justice Legal Foundation, a prominent victims’ advocacy group, said through its legal director, Kent Scheidegger, that the ruling showed a court majority was “not inclined to invent new procedural restrictions on the death penalty.” Scheidegger said the court would probably continue to enforce restrictions already imposed.