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Alito is Swing Vote in Kansas Death Penalty Law

By Jeralyn, Section Death Penalty
Posted on Mon Jun 26, 2006 at 11:44:51 AM EST
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Why am I not surprised? Justice Alito was the swing vote today in a decision that upheld Kansas's death penalty law that the Kansas Supreme Court had ruled unconsitutional.

Justices split 5-4 in the term's oldest case, which was argued in December before Justice Sandra Day O'Connor's retirement. A new argument session was held in April so that Alito could break a deadlock.....The state law 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."...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."

Via How Appealing: You can access the oral argument transcripts here and here. Additional information about the case is available at this link.

Also from How Appealing:

The Court issued its ruling in Washington v. Recuenco, No. 05-83. You can access the oral argument transcript here. Additional information about the case is available at this link.

The Court issued its ruling in United States v. Gonzalez-Lopez, No. 05-352. You can access the oral argument transcript here. Additional information about the case is available at this link.

Law Prof Doug Berman at Sentencing Law and Policy has more on the Kansas and Recuenco cases. ScotusBlog has more on all the decisions issued today.

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    Alito is Swing Vote in Kansas Death Penalty Law | 27 comments (27 topical)
    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#1)
    by scribe on Mon Jun 26, 2006 at 12:13:33 PM EST
    Strip Search Sammy - the gift who just keeps on giving. That said, the Washington v. Recuenco case is, IMHO, for practitioners and defendants the one which has the biggest impact. The S.Ct. said Blakely error (i.e., sentencing based not-exclusively-on-things-proven to a jury beyond a reasonable doubt) is not always "structural" error. "Structural" error requires a new trial. "Harmless" error can result in an affirmance. In Recuendo the sentence was enhanced for a firearm, but all that was proven to the jury was "a deadly weapon", that having a lesser sentence enhancement. In so many words, sentencing someone on unproven, uncharged conduct, or finding a sentence enhancement based on something not proven beyond a reasonable doubt, still stands. This may seem abstruse and obscure, but it can make the difference of literally decades on a sentence. And, with "modest" judges who "properly defer to the Legislature", those mandatory extra years stay in force.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#2)
    by Che's Lounge on Mon Jun 26, 2006 at 12:39:41 PM EST
    Thanks again Sandra. How are things over at Wm & Mary? Oh, that's right, you retired to be with your family.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#3)
    by Talkleft Visitor on Mon Jun 26, 2006 at 12:49:01 PM EST
    Has anyone read Scalia's concurrence in Kansas v. Marsh? Absolutely amazing -- he practically denies that innocent people are sent to death row. I find it more than a little ironic that his concurrence comes out on a day that the Chicago Tribune continues its series about a Texas man executed despite his probable (if not certain) innocence.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#4)
    by Talkleft Visitor on Mon Jun 26, 2006 at 01:01:15 PM EST
    Hard cases make bad law. Somewhere out there in a noncapital punishment for murder state exists a man who killed a fellow prisoner, kiled a prison guard, or was somehow paroled or given clemency and murdered someone else. That is no argument for the death penalty either. If people are morally opposed to the death penalty (as other people are morally opposed to abortion) then say so openly rather than being so massively indignant about one probably innocent man who was executed or about whether lethal injection is a "painful" way to go.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#5)
    by Ernesto Del Mundo on Mon Jun 26, 2006 at 01:01:25 PM EST
    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.
    Gotta love this Catholic boy telling the pope where to stick it. Seriously though, this statement is typical Scalia; brash, insulting and full of vengeance. It is downright scary on so many levels. First of all we have this: "The American people have determined..." I am always fearful to see the members of the court citing or putting their fingers to the wind of public opinion. It flies in the face of some of the basic principles that this country was founded upon. The Founders had a healthy fear of mob rule, which they recognized as an ever-present threat to the rights of those in the minority and also to enlightened progress in judicial and political matters. Then there's this: "...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" So a few innocent people being killed by the state is acceptable as long as the "pound of flesh" quota is satisfied. This is one Catholic who apparently skipped over the New Testamant altogether. Then the coup de grace: "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 ...," Hmmm...It seems that after proclaiming the Bush Imperial Monarch in 2000, it appears that Scalia didn't stop there. He also anointed himself King of the Court, with broad powers to proclaim what the court can and can't do. In other words, how dare these wussies like Souter question the God-given right of the torch and pitchfork-weilding local mobs to mete out "condign justice" in any manner they deem fit. Well now that we have reached the 1600s, I would hope that we are nearing the end of our judicial trip back in time. Please....

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#6)
    by Talkleft Visitor on Mon Jun 26, 2006 at 01:51:50 PM EST
    Ernesto.... So a few innocent people being killed by the state is acceptable as long as the "pound of flesh" quota is satisfied. I think you'll find many more "innocent" people are killed once these people are set lose on society again. The answer is to improve the system so those 'rare' instances are completely gone, not throw away the whole thing. Speaking of "innocent" deaths ...what's your stance on abortion BTW? Are you at all concerned about those lives?

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#7)
    by Sailor on Mon Jun 26, 2006 at 02:57:40 PM EST
    I think you'll find many more "innocent" people are killed once these people are set lose on society again.
    Cite stats or give it up. Never heard of LWOP have ya? My stance on abortion is: 1) it's legal 2) Your mother should have paid attention to point 1.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#8)
    by kdog on Mon Jun 26, 2006 at 02:59:27 PM EST
    The improvement would be the abolishment of the death penalty, replaced by rock-solid LWOP. That way, no innocents need die.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#9)
    by jondee on Mon Jun 26, 2006 at 03:00:48 PM EST
    I think she did.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#10)
    by kdog on Mon Jun 26, 2006 at 03:03:11 PM EST
    Once again, praises due to Souter. Future generations might not look to harshly on ours thanks to his recent dissents.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#11)
    by BigTex on Mon Jun 26, 2006 at 03:16:12 PM EST
    The improvement would be the abolishment of the death penalty, replaced by rock-solid LWOP. That way, no innocents need die.
    That might work Kdog, but then we would have to hear the incessent whinings of the Oscar Wilde types who will whine ad nausium about the security situation needed to enforce that action and not give alternative solutions of his own. There is no good solution, but simply replacing one method for another would not work because the majority of the same forces who rail against the death penalty would then turn on lwop.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#12)
    by jen on Mon Jun 26, 2006 at 03:17:22 PM EST
    BB, Y'all never seem to be concerned with the innocent lives taken by those who get away with murder, once innocents are convicted in their place.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#13)
    by Talkleft Visitor on Mon Jun 26, 2006 at 03:49:33 PM EST
    That might work Kdog, but then we would have to hear the incessent whinings of the Oscar Wilde types who will whine ad nausium about the security situation needed to enforce that action and not give alternative solutions of his own.
    You are a stupid fellow.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#14)
    by Al on Mon Jun 26, 2006 at 03:52:58 PM EST
    If people are morally opposed to the death penalty (as other people are morally opposed to abortion) then say so openly rather than being so massively indignant about one probably innocent man who was executed or about whether lethal injection is a "painful" way to go.-Rogan1313
    OK. I am morally opposed to the death penalty. I think killing another human being is totally immoral. I am also indignant about the wrongful execution of innocents, and the fact that with the lethal injection it is possible for the convict to suffocate slowly and horribly painfully while conscious but unable to move. I think this is barbaric and inhuman and should be stopped. I also think abortion has absolutely nothing to do with the death penalty. It is a fallacy to suggest that if one believes the death penalty is immoral, then one is forced to accept the argument of anti-abortionists that abortion is equally immoral. Any other questions?

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#15)
    by BigTex on Mon Jun 26, 2006 at 03:53:09 PM EST
    Care to address the question presented to you? You know I'm right.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#16)
    by jondee on Mon Jun 26, 2006 at 03:53:11 PM EST
    Bit of a troll there Tex.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#17)
    by BigTex on Mon Jun 26, 2006 at 03:56:01 PM EST
    Johndee - Oscar had a tantrum when posited that super max security was as it is to protect the safety of the inmates. When given an opportunity to say what he would do differently, he never responded, rather he started engaging in personal attacks. He can still answer, and the point remains. Lwop will not change the overall discontent. We will be replacing one ill for another, not making the system better.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#18)
    by Sailor on Mon Jun 26, 2006 at 04:06:36 PM EST
    Lwop will not change the overall discontent. We will be replacing one ill for another, not making the system better.
    except for the fact that if the guy is proved innocent later he's still alive to enjoy it. Over 1/2 of the Illinois death row inmates were exonerated.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#19)
    by scarshapedstar on Mon Jun 26, 2006 at 04:21:09 PM EST
    Gee, it's a good thing he's not an activist judge trying to overrule states' rights. Oh, wait.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#20)
    by Che's Lounge on Mon Jun 26, 2006 at 06:23:00 PM EST
    He can still answer, and the point remains. Lwop will not change the overall discontent. We will be replacing one ill for another, not making the system better. What BS. Yeah Tex, just keep on a killin'.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#21)
    by Sailor on Mon Jun 26, 2006 at 07:30:47 PM EST
    f a "Life without parole" inmate commits a murder of a fellow inmate or a guard while in prison
    Wait! what if he grew wings and flew over the wall! Sheesh, if you're just going to imagine things why not come up with a challenging one ... or provide stats on how many LWOPs have killed more people while in prison. I personally think it would be tough from supermax.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#22)
    by kdog on Mon Jun 26, 2006 at 08:01:36 PM EST
    We will be replacing one ill for another, not making the system better.
    There will always be ills Tex. Innocent people wil always be convicted on occasion. We can always do better in the treatment of prisoners. But there are few greater wrongs then the execution of an innocent by the state.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#23)
    by Talkleft Visitor on Mon Jun 26, 2006 at 10:01:32 PM EST
    how do u know who the swing vote was he was one of five right

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#24)
    by Al on Mon Jun 26, 2006 at 10:47:24 PM EST
    Speaking of stats, it may be that in the recorded annals there is finally one definite case of a man wrongly executed (De Luna), (rogan1313)
    Either you are being disingenuous or incredibly naive. It is extremely hard to prove that someone who was executed was in fact innocent after the case has been buried along with the convict.
    though he was a repeat rapist/felon and his death is more on the level of the death of an inmate rather than some poor Sunday School teacher caught up in a tragic mistake.
    So it's OK to execute someone even if he didn't commit the crime he was convicted of, because of previous convictions? Can you imagine the sentencing? "I hereby sentence you to death for the brutal murder of Jane Doe. Now, in all fairness I have to say, it's possible that you may not actually have committed the murder: I notice the police and the prosecutor were particularly anxious to convict someone, and I did notice that your lawyer was asleep and actually snoring through most of the proceedings. And we won't know about DNA evidence for another ten years. But even if you didn't commit this murder, someone did, and someone should pay for it with his life. And you will admit, you're a pretty good candidate; you've done some pretty nasty things in the past! I mean, come on. You're no Sunday School teacher caught up in a tragic mistake, are you? Don't worry, you won't feel a thing. Well, maybe you will, but you know what they say: If a tree falls in a forest and no one hears it, does it make any noise?"

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#25)
    by BigTex on Tue Jun 27, 2006 at 02:38:37 AM EST
    how do u know who the swing vote was he was one of five right
    The case was originally heard with O'Connor on the bench. Without his vote the vote would have been 4-4. In a tie, the lower court's decision is left in place, though only holds weight as precidental value for the area the court has jurisdiction. Without his vote the law would have been stricken.

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#26)
    by Johnny on Tue Jun 27, 2006 at 04:18:25 AM EST
    Those durn activist judges and their agendas. Somebody needs to stop them!

    Re: Alito is Swing Vote in Kansas Death Penalty La (none / 0) (#27)
    by Talkleft Visitor on Tue Jun 27, 2006 at 03:45:13 PM EST
    1) I oppose the death penalty. It's just wrong the way we practice it, period. 2) I oppose abortion, for the same reason. Anybody got any problems with that?

    Alito is Swing Vote in Kansas Death Penalty Law | 27 comments (27 topical)