WASHINGTON (ABP) — New Justice Samuel Alito cast the deciding fifth vote in a June 26 Supreme Court decision upholding the constitutionality of Kansas' death-penalty law.
The high court divided closely — and acrimoniously — in the case. On a 5-4 vote, the court said that the Kansas Supreme Court had erred in 2004 when it overturned the state's death-penalty statute.
Michael Lee Marsh II was convicted of breaking into the home of Marry Ane Pusch in 1996, then shooting and stabbing her to death when she returned home with her 19-month-old daughter, Marry Elizabeth. He then set her house on fire and left, burning the child to death.
Marsh protested Kansas' 1994 death-penalty statute, which requires juries to sentence defendants to death even if the aggravating factors and mitigating factors surrounding the crime balanced each other — if they were “in equipoise,” as the court put it. The Kansas court said such a presumption in favor of death violated the Eighth Amendment's ban on cruel and unusual punishment, and threw out the law.
The federal Supreme Court's decision effectively reinstates Marsh's death sentence and those of seven other Kansas inmates.
Justice Clarence Thomas, author of the majority's opinion, said the law was constitutional because it does not interfere, “in a constitutionally significant way,” with a defendant's ability to present mitigating evidence to a jury. Chief Justice John Roberts and justices Antonin Scalia and Anthony Kennedy joined Thomas and Alito in the majority.
Alito, widely believed to be a strong conservative appointed by Bush, replaced the moderate Justice Sandra Day O'Connor, who in recent years had become a less and less reliable vote in support of capital punishment.
Reflecting the court's and the nation's anguished debate over the death penalty, the normally sedate Justice David Souter wrote a passionate dissenting opinion, saying the majority's decision did not take into account the dozens of exonerations of death-row inmates that have taken place in recent years due to DNA evidence.
“A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the court's holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States,” Souter wrote.
“In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure.” The three other court members who voted against the Kansas statute — justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer — joined Souter's opinion.
In a separate opinion concurring with the majority, the often sharp-tongued Justice Antonin Scalia claimed the recent death-row exonerations that Souter cited prove the opposite point.
“Reversal of an erroneous conviction … or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success,” he wrote. “Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out.”
He also said that, despite a litany of studies that Souter cited noting the numbers of capital convicts exonerated by new DNA evidence in recent years, such evidence has not proven a single case where an innocent convict was executed. Scalia said Souter's opinion “engages in no critical review, but merely parrots articles or reports that support its attack on the American criminal justice system” and will be used abroad to vindicate foreigners' “sanctimonious criticism of America's death penalty as somehow unworthy of a civilized society.”
The case is Kansas v. Marsh, No. O4-1170.
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