The ABA e-Journal has a report on this week's ruling by the Supreme Court upholding Kansas' death penalty sentencing law. The 5-4 decision demonstrates deep divisions on the Court with respect to capital punishment. LINK
In his dissent, which was joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, Souter argued the court has consistently held that the death penalty should be reserved for the "the worst of the worst." But the Kansas statute does just the opposite, he said, by requiring a death sentence when the aggravating and mitigating evidence are equivocal.
"The statute produces a death sentence exactly when a sentencing impasse demonstrates as a matter of law that the jury does not see the evidence as showing the worst sort of crime committed by the worst sort of criminal in a combination heinous enough to demand death," he wrote.
A law that requires execution when the case for aggravation has failed to convince the sentencing jury is "morally absurd," Souter wrote, adding that "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."
Stevens wrote separately to express his disagreement with the court’s decision to hear the case in the first place. Marsh was basically a state matter, Stevens said, and no other state would have been required to follow the Kansas precedent.
The opinion and dissents are available here.
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