Justices Clash Over Death Penalty Case

By Charles Lane
Washington Post Staff Writer
Tuesday, June 27, 2006

The Supreme Court upheld the death penalty in Kansas yesterday, in a 5 to 4 decision whose direct impact falls mainly on that one state -- but which caused the court to erupt in an intense public dispute about capital punishment generally.

In a dissenting opinion, Justice David H. Souter used the Kansas case to express broad doubts about the validity of the death penalty in the age of DNA, suggesting that death row exonerations have created a "reality that must be addressed."

Justice Antonin Scalia, who voted with the majority, responded in a solo concurring opinion, accusing Souter and the three liberal justices who joined his dissent of defying the will of the people and "imposing judicially invented obstacles" to capital punishment.

On paper, Kansas v. Marsh , No. 04-1170, was about nothing more than Kansas's death penalty, which was reinstated in 1994 after a 22-year hiatus.

The state's own Supreme Court struck down the capital punishment law in 2004, ruling it unconstitutional because it required jurors to impose the death penalty in cases where they found that the "aggravating" factors supporting a death sentence and "mitigating" factors supporting life imprisonment were equally balanced.

The Kansas court said that created an impermissible presumption in favor of death, thus violating the Eighth Amendment ban on "cruel and unusual punishment."

But the state appealed to the U.S. Supreme Court. Writing for the majority yesterday, Justice Clarence Thomas concluded that the Kansas law "does not interfere, in a constitutionally significant way, with a jury's ability to give independent weight to evidence offered in mitigation."

In addition to Scalia, Thomas was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr.

Souter, joined in dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, called the Kansas law "morally absurd," and Thomas's opinion a repudiation of "decades of precedent aimed at eliminating freakish capital sentencing."

And he saw wider implications in the case.

In impassioned language, the normally reticent Souter argued that the Kansas law was especially indefensible in light of the recent exonerations of death row inmates by DNA and other evidence.

Alluding to the concerns about inconsistent sentencing that prompted the court temporarily to strike down all state death penalty laws in 1972, Souter suggested that the country is approaching a similar crossroads now.

"Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests," Souter wrote.

In the most blunt acknowledgment to date that the justices have been affected by the wider debate over capital punishment, Souter cited the experience of Illinois, where 13 death row inmates were released between 1977 and 2000, triggering a state moratorium on executions, and referred to studies that, he said, showed that dozens of death row inmates in other states were also wrongly convicted.

Souter said the data show that "false verdicts" are "probably disproportionately high in capital cases."

Scalia said the Souter opinion is improper because it will be used abroad by "sanctimonious" critics of the U.S. death penalty to "impugn" the American public's support for capital punishment. Scalia said the studies Souter cited are factually inaccurate, because many of the inmates they list as innocent were not exonerated but released for technical legal reasons.

The possibility of a mistaken execution in the United States "has been reduced to an insignificant minimum," Scalia wrote, noting that DNA tests had recently confirmed the guilt of executed murderer Roger Coleman in Virginia, who many opponents of capital punishment had said was innocent.

Death row exonerations prove "not the failure of the system but its success," since they show that legal safeguards are effective, Scalia argued.

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