4 Justices Often Side With the Condemned

Supreme Court Justice Ruth Bader Ginsburg delivers a speech to the United Jewish Communities 2004 International Lion of Judah Conference in Washington in this Oct. 18, 2004 file photo. (AP Photo/Evan Vucci, File) (Evan Vucci - AP)

Justice Antonin Scalia disputed the existence of such a consensus in his dissents in both cases. He noted that fewer than half the states that allow executions prohibited them for either juveniles or the mentally retarded. "Words have no meaning if the views of less than 50 percent of death penalty states can constitute a national consensus," Scalia said in 2005.

On the other hand, 30 states at the time of those opinions either had no death penalty or barred the execution of both juveniles and the mentally retarded.

The group of 30 states could have satisfied the justices that they were not getting too far ahead of public opinion in those decisions, Dieter said.

In 1972, the Supreme Court struck down every state's death penalty law. Some justices believed at the time that this decision effectively would end capital punishment.

Instead, many states wrote new laws and four years later, the court reinstated the death penalty, a decision in which Stevens joined.

There have been 1,078 executions in the past 30 years, although the 53 carried out last year marked a 10-year low. At the start of 2007, there were 3,350 prisoners on death row across the United States, according to the NAACP Legal Defense and Education Fund.

Polls continue to find that more than two-thirds of people in the U.S. favor the death penalty for murderers. Yet at the same time, a recent AP/Ipsos poll that asked what method of punishment people prefer for murderers found that 52 percent said death and 46 percent said life in prison or a long prison sentence.

Questions about the administration of lethal injections, doubts about the competence of some court-appointed defense lawyers and the rise in the number of exonerations through DNA evidence of people already convicted of crimes have contributed to a drop in confidence in the criminal justice system, said Robert Weisberg, a Stanford University law professor who has represented death row inmates.

Several cases that have made it to the high court have revolved around the issue of a defendant's lawyer.

"Even if this foursome is not inclined to say anything categorical about the constitutionality of the death penalty, they are very dismayed by the quality of representation in death cases," Weisberg said.

In a dissent from a decision last month denying Jeffrey Landrigan a new hearing to challenge his death sentence in Arizona, Stevens wrote, "No one, not even this court, seriously contends that counsel's investigation of possible mitigating evidence was constitutionally sufficient."

The justices also have sparred with state and federal judges in Texas over what courts must do to be fair to defendants facing death sentences. The court has overturned three sentences from Texas this term.

Since the death penalty was reinstated, Texas has executed 393 people, more than four times as many as the next state, Virginia.

The court's division over the death penalty is captured by the stark differences between the capital cases it takes from Texas and from the 9th U.S. Circuit Court of Appeals, which encompasses California and eight other states in the West.

Three times this term, a five-justice majority reversed rulings of the San Francisco-based appeals court, saying it went too far in favor of people sentenced to death.