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Sharply Divided High Court Rules on Death Penalty


It's MORNING EDITION from NPR News. I'm Steve Inskeep.


And I'm Susan Stamberg, good morning.

The Supreme Court is near the end of its term, turning out one decision after another that will affect the country for years to come. One ruling governs the way politicians pay for their campaigns. We'll hear more on that in a moment.

Another decision yesterday affects prisoners on death row. And that case had the justices sharply divided. Here's NPR Legal Affairs Correspondent Nina Totenberg:

NINA TOTENBERG, reporting:

Tempers flared on the nation's highest court yesterday as the justices issued their final death penalty opinions. Few had anticipated the passionate quarrel that emerged in a case from Kansas, where only eight people are on death row, and no one has been executed for 40 years.

The case involved a provision of the Kansas capital punishment law that mandates the death penalty in cases where the jury finds an equal number of aggravating and mitigating sentencing factors. In such cases, the Kansas law says, the tie is broken in favor of the death penalty.

Yesterday the US Supreme Court upheld the provision by a five-to-four vote with Justice Clarence Thomas writing an unemotional opinion linked to past rulings. The sparks flew in the dissent written by Justice David Souter, and a rejoinder written by Justice Antonin Scalia. The death penalty, said Souter, is supposed to be reserved for the worst of the worst, and a tie-breaker does not identify the worst of the worst. The advent of DNA testing, Souter noted, has led to repeated exonerations of those on death row in numbers never imagined before. We are thus, he said, in a period of new empirical argument about how the death penalty is different from other sentences. And false verdicts, he maintained, are probably disproportionately high in capital cases, because of the intense pressure to win convictions in particularly heinous cases and the corresponding incentive for the guilty to frame the innocent. While it is far too early for any generalizations about the soundness of capital sentencing across the country, Souter said, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute. Mandating the death penalty, when the jury finds the evidence pro and con to be of equal weight, is obtuse by any moral or social measure.

George Washington University criminal law professor, Stephen Salzburg:

Professor STEPHEN SALZBURG (George Washington University Law School): The dissenters really are raising serious questions about the quality of justice in the United States and whether there ought to be a death penalty, which prompted Justice Scalia to write separately.

TOTENBERG: Scalia fired back at Souter and the other dissenters, accusing them of opposing the death penalty in all but name. And as Scalia put it, substituting their policy views for those of the majority of Americans who favor the death penalty. What's more, said Scalia, the dissenters have nailed their policy agenda to the door of the wrong church, since a jury's decision on sentence has nothing to do with guilt or innocence, but what's the appropriate punishment. Contrary to what the dissent contends, said Scalia, death cases are less likely to have mistaken verdicts, because these cases get more attention by the courts and defense lawyers than any others.

One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly, said Scalia. But the possibility that someone will be wrongly executed has been reduced to an insignificant minimum.

Scalia was the author of the Court's other important criminal law decision yesterday, declaring that when a trial judge wrongly deprives a defendant of his paid lawyer of choice, the conviction is automatically reversed. In this case, a trial judge refused to allow a defense lawyer to participate in a case, because the judge, wrongly thought the lawyer had violated a rule governing conduct in court. The Bush Administration contended that the defendant was convicted after a fair trial, and that depriving him of his chosen counsel was harmless error. But the Supreme Court rejected that argument, declaring that it's impossible to know what different choices the rejected counsel would have made, and what the impact of those choices would have been on the outcome of the case.

Hofstra Law School Professor Leon Friedman:

Professor LEON FRIEDMAN (Hofstra University School of Law): There are some situations in which a judge can say this lawyer can't defend this person. But he better be right, because the consequences are that if he's wrong, it's just automatic reversal.

TOTENBERG: The decision in the right to counsel case was also five to four, with Scalia writing the opinion for himself and the Court's four liberals. And Justice Samuel Alito, the Court's newest member, writing the dissent.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.