4 Justices Often Side With the Condemned

The Associated Press
Wednesday, June 6, 2007; 3:02 PM

WASHINGTON -- No one on the Supreme Court publicly opposes the death penalty, but four justices often side with death row inmates who are fighting to avoid execution.

Though they are a minority on the nine-justice court, Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens win as often as they lose.

Cases involving eight death row inmates have come before the court this term. Four prisoners have won and four have lost. The most recent case was a 5-4 decision Monday to reinstate the death penalty in a rape and murder near Seattle.

In that case and the seven others, Breyer, Ginsburg, Souter and Stevens sided with the prisoner. In four cases, Justice Anthony Kennedy provided a fifth vote and, thus, a majority. In one of those four _ which the court dismissed without deciding _ Chief Justice John Roberts joined as well, leaving in place an appeals court ruling that set aside a death sentence.

The court has been implacably split on this issue, as on others. Roberts typically has been aligned with Justices Samuel Alito, Antonin Scalia and Clarence Thomas, opting to defer to the state courts that imposed and upheld death sentences.

None of the liberals has gone so far as the late Justices Thurgood Marshall and William Brennan, who called capital punishment unconstitutional, or Harry Blackmun, who said late in his tenure he never again would vote for death.

Indeed, Breyer, Ginsburg, Souter and Stevens routinely deny death row appeals. That includes one on Monday from a prisoner in Kentucky who was represented by a lawyer who did not know the prisoner's real name.

But the four justices, when joined by Kennedy and, on occasion, now-retired Justice Sandra Day O'Connor, have been at the core of important rulings limiting the application of the death penalty.

"In the late '80s and early '90s, you were a rare defendant who won a death penalty case at the Supreme Court," said Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center. "Now there's a fair chance that if you can get Justice Kennedy, you'll win."

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said Breyer, Ginsburg, Souter and Stevens typically "take an expansive view of the constitutional limitations and are more prone to accept borderline arguments."

Two years ago, Kennedy wrote the 5-4 decision outlawing the execution of juveniles. In 2002, Stevens wrote a 6-3 opinion that barred execution of the mentally retarded. Kennedy and O'Connor joined their four liberal colleagues in that case.

Both decisions focused on a national consensus that the majority said had formed against those types of executions.

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