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.

Citation Guide