Howling Latina

The United States Supreme Court overturned a prior Kansas Supreme Court decision last week that had ruled a Kansas death-penalty statute was unconstitutional.

In a deeply divided 5-4 ruling, with Alito and Roberts joining the majority, the Highest Court ruled that Kansas could indeed command a death penalty verdict when aggravating factors were merely equal in weight to any mitigating factors.

But in a passionate dissenting opinion, Justice David H. Souter pointed out:

"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."

Justice Antonin Scalia was indifferent to Souter's argument and noted in his concurrent opinion "that there has been 'sanctimonious criticism of America's death penalty' from people in other countries and that Monday's dissent 'will be trumpeted abroad as vindication of these criticisms.'"

Besides, as Scalia happily gloated, not one single case of wrongful execution has ever been proven; the recent DNA testing of Roger Coleman in Virginia, which proved Coleman was guilty, confirmed the justice system and capital punishment were close to foolproof.

"With regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum,"Scalia wrote.

Never mind that Cameron Willingham was executed for murder by arson of his wife in Texas based on expert witness testimony that was bogus; or that Ruben Cantu was executed for robbery-murder in Texas where the star witness now says he was pressured by police to finger Cantu; or that Larry Griffin was executed in Missouri for a drive-by shooting based on one single witness who was a career criminal with several charges pending who likely wasn't even at the scene of the crime, but one victim who was at the crime scene never testified during trial but later said Griffin was not in the car where the shots came from; or that Carlos DeLuna was executed in Texas for stabbing a store clerk based on the nighttime identification of one witness, although Griffin told police Carlos Hernandez, a person known to police for similar stabbing incidences, was the killer and Hernandez repeatedly told his friends before he died in prison that he had indeed killed the convenience store clerk; or that since the death penalty was reinstated at least 123 death row inmates have been exonerated by DNA evidence.

Sanctimonious?!? Evidence suggests the four dissenting justices as well as death row opponents have the pesky facts on their side of the argument.

Not one single justice joined Scalia in his over-the-top dismissive concurrent opinion. On the other hand, Souter was joined by Justices John Paul Stevens, Ruth Bader Ginsberg and Stephen G. Breyer, leaving a strong dissent for future cases to require "morally justifiable sentencing” in accordance with the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The case was initially heard last fall, but when Alito joined the Court, it was reheard, which meant that Justice Sandra Day O'Connor had been the deciding justice with Alito now playing the pivotal role for the majority; and indeed, if O'Connor were still on the Court, Kansas v. Marsh may have been decided differently; however, it is highly unlikely the majority opinion would have been as far-reaching as the minority opinion written by Souter.