Justice David Souter’s Death Penalty Jurisprudence

Excerpts from Supreme Court Opinions

In Kansas v. Marsh (2006), the Supreme Court held in a vote of 5 to 4 that a Kansas statute requir­ing that a death sen­tence be imposed when a jury finds that the aggra­vat­ing and mit­i­gat­ing cir­cum­stances in a case have equal weight was con­sti­tu­tion­al. Justice Souter, dis­agree­ing with the Court’s deci­sion, authored the dissenting opinion.

“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.”

— Kansas v. Marsh (2006), Justice Souter dissenting

“Today, a new body of fact must be account­ed for in decid­ing what, in prac­ti­cal terms, the Eighth Amendment guar­an­tees should tol­er­ate, for the peri­od start­ing in 1989 has seen repeat­ed exon­er­a­tions of con­victs under death sen­tences, in num­bers nev­er imag­ined before the devel­op­ment of DNA tests. We can­not face up to these facts and still hold that the guar­an­tee of moral­ly jus­ti­fi­able sen­tenc­ing is hol­low enough to allow max­i­miz­ing death sen­tences, by requir­ing them when juries fail to find the worst degree of cul­pa­bil­i­ty: when, by a State’s own stan­dards and a State’s own char­ac­ter­i­za­tion, the case for death is ​‘doubt­ful.’ ”

— Kansas v. Marsh (2006), Justice Souter dissenting

In Miller-El v. Dretke (2005), the Supreme Court held (6 – 3) that a Texas death row inmate tried in Dallas County was enti­tled to a new tri­al due to strong evi­dence of racial bias dur­ing the jury selec­tion process in the orig­i­nal tri­al. In select­ing a jury, pros­e­cu­tors struck 10 of 11 qual­i­fied black pan­elists, con­duct­ed dis­parate ques­tion­ing of white and black jurors, and uti­lized a jury selec­tion man­u­al that empha­sized race. Justice Souter wrote the Opinion of the Court.

“Defendants are harmed, of course, when racial dis­crim­i­na­tion in jury selec­tion com­pro­mis­es the right of tri­al by impar­tial jury, but racial minori­ties are harmed more gen­er­al­ly, for pros­e­cu­tors draw­ing racial lines in pick­ing juries estab­lish ​‘state-spon­sored group stereo­types root­ed in, and reflec­tive of, historical prejudice.’ ”

— Miller-El v. Dretke (2005), Justice Souter Opinion of the Court

“[T]he very integri­ty of the courts is jeop­ar­dized when a pros­e­cu­tor’s dis­crim­i­na­tion ​‘invites cyn­i­cism respect­ing the jury’s neu­tral­i­ty,’ and under­mines pub­lic con­fi­dence in adjudication.”

— Miller-El v. Dretke (2005), Justice Souter Opinion of the Court

In Stringer v. Black (1992), the Supreme Court held that a defen­dant could still ben­e­fit from a recent deci­sion made years after the defen­dant was sen­tenced because the prin­ci­ple in that deci­sion was not new and would have been obvi­ous to a jurist at the time of his tri­al. Justice Souter wrote the dis­sent­ing opin­ion, joined by Justices Scalia and Thomas.

“The major­i­ty [says] no rea­son­able jurist could have failed to dis­cov­er a con­cern with ran­dom­ness in this Court’s indi­vid­u­al­ized-sen­tenc­ing cas­es, or have failed to real­ize that a sen­tencer’s weigh­ing of a vague aggra­vat­ing cir­cum­stance deprives a defen­dant of indi­vid­u­al­ized sen­tenc­ing. I think this answer endues the jurist with pre­science, not reasonableness.”

— Stringer v. Black (1992), Justice Souter dissenting