Shape of things to come

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.

Supreme Court Justice Samuel Alito, left, joins Chief Justice John Roberts outside the U.S. Supreme Court in this Feb. 16 file photo. Roberts and Alito provided the pivotal votes in Monday's decision upholding the death penalty in Kansas.

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 response

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.

State Government