Alito Breaks Tie, Upholds Kansas Death Penalty Law

I don’t guess this should come as a surprise to anyone. The Kansas law in question, according to the Anniston Star article (subscription required),

says juries should impose death sentences if aggravating evidence of a crime’s brutality and mitigating factors explaining a defendant’s actions are equal in weight.

Justice David H. Souter, writing for the liberals, said the law was “morally absurd.”

But the five conservatives, including Alito, overturned a Kansas Supreme Court ruling that found the law violated the Eighth Amendment’s protection against cruel and unusual punishment.

Writing for the majority, Justice Clarence Thomas disputed the claim by critics that the law created “a general presumption in favor of the death penalty in the state of Kansas.”

…Souter said that “in the face of evidence of the hazards of capital prosecution,” maintaining a system like the one in Kansas “is obtuse by any moral or social measure.”

The case in question involved two particularly heinous murders, but the Kansas Supreme Court had ruled that the jury should have been permitted to hear evidence that another person was involved in the killings. When attorneys challenge death penalty statutes, it’s rare that they have nice, sweet clients who’ve never been guilty of anything, much less murder, but that doesn’t mean they shouldn’t try when the law appears to be unjust or improperly applied.

In Alabama, even the fairly conservative editorial staff at the Birmingham News called for a moratorium in order to re-evaluate our death penalty system. One of the huge problems here is that elected judges are allowed to override jury sentencing recommendations in death penalty cases. In a “law and order” state like Alabama, that almost certainly creates a general presumption in favor of the death penalty.

Justice Antonin Scalia wrote a separate opinion on Monday to defend the death penalty and the court’s ruling in the Kansas case.

“The American people have determined that the good to be derived from capital punishment — in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes — outweighs the risk of error. It is no proper part of the business of this court, or of its justices, to second-guess that judgment, much less to impugn it before the world …,” Scalia wrote.

Really? I guess it was no business of the court to second-guess public school segregation either. After all, most of the country supported segregated schools at the time. Most white people wanted to keep black people “in their place”. I doubt public opinion is much comfort to the family of a defendant who is wrongly convicted and executed, and it’s not much help to the family of the victim if the wrong person pays for the crime of another.

6 Responses to “Alito Breaks Tie, Upholds Kansas Death Penalty Law”

  1. Bill says:

    Justice Scalia, that great defender of “life” strikes again. May God forgive you and your cronies for taking His place in determining who lives and dies.

  2. Bottom Line says:

    Are you pro-choice Bill?

  3. Bill says:


    I generally do not believe in abortion rights for the same reason I do not believe in the death penalty. However, I would never refer to myself as pro-life because of the hatred frequently spewed by that end of the political spectrum. In addition, some of the finest, most sincere Christians I know (as defined by Jesus Christ and not by James Dobson) are pro-choice.

  4. Bottom Line says:

    I guess I am a hypocrite on this issue if you merely look at it as life vs. death. I am pro-life, but also pro-death penalty. The main exception is that ironically tied to choice. The baby doesn’t get a choice and hasn’t done anything wrong, whereas the criminal on death row made a choice to execute a violent crime and should pay the consequences.
    As for your statement that hatred is frequently spewed from the pro-life side of the spectrum, I would argue that it is not that frequent and more of a smaller population than assumed. As for the Scalia statement, he is not saying who lives or dies, the juries that convicted the criminal are making that determination (in some states judges impose a sentence based on the juries reccomendation).

  5. Bottom Line says:


  6. Kathy says:

    BL, as I mentioned in the post, Alabama allows elected judges to override jury recommendations in death penalty cases. I think only one or two other states give judges that authority. So here, unfortunately, judges who face the electorate every few years are under great pressure to impose the death penalty even when juries, who have heard testimony, recommend life sentences.

    My problem with Scalia’s statement is that he appears to be saying that maintaining access to the death penalty is more important than ensuring that we don’t execute an innocent person.

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