In a 5-4 decision that revealed a deep division among the Justices over the fairness of capital punishment, the U.S. Supreme Court upheld Kansas’s death penalty statute on June 26. In Kansas v. Marsh, the Court held that juries may be required to sentence a defendant to die when there is an equal weight of mitigating and aggravating evidence. The ruling overturns a Kansas Supreme Court decision that found the practice unconstitutional because it violated the Eighth Amendment’s protection against cruel and unusual punishment.

Writing for the majority, Justice Clarence Thomas noted, “Our precedents establish that a state enjoys a range of discretion in imposing the death penalty.” Justice David Souter wrote in his dissent for the minority that Kansas’s law could lead to death sentences in doubtful cases, and he pointed to reviews finding that dozens of people sentenced to death were later exonerated. Citing pressure for prosecutors to win convictions, misidentifications, and false confessions that have contributed to the “hazards of capital prosecution,” Souter called the Kansas law “obtuse by any moral or social measure.” Because of the problem of innocence, he noted that, “We are thus in a period of new empirical argument about how ‘death is different’ ….”

Justice Antonin Scalia, concurring separately, discounted the dangers of convicting the innocent in capital cases and said that he had seen no clear evidence that an innocent person had been executed in recent years.

(Associated Press, June 27, 2006). See U.S. Supreme Court and Innocence. See also Chicago Tribune’s 3-part series on the likely innocence of Carlos DeLuna, who was executed in Texas in 1989. Similar investigative pieces have pointed to the likely innocence of Cameron Willingham and Ruben Cantu, executed in Texas, and Larry Griffin, executed in Missouri in recent years.