Supreme Court reveals fracture over death penalty

WASHINGTON — The Supreme Court upheld a state death-penalty law Monday in a 5-4 ruling that revealed deep division among the justices over the fairness of capital punishment in America.

New Justice Samuel Alito had been called on to break a tie in the case, which was argued twice — first while Sandra Day O'Connor was still on the court and then this spring so that Alito could end a deadlock.

The close outcome was as much a debate about capital punishment as it was a ruling on a unique law in Kansas, which has just eight death-row inmates and hasn't executed anyone in 40 years.

The law says that juries should sentence a defendant to die — rather than to serve life in prison — when the evidence for and against imposing death is equal.

Justice Clarence Thomas, writing for the conservative majority, said, "Our precedents establish that a state enjoys a range of discretion in imposing the death penalty."

But Justice David Souter, writing for the court's liberals, said the law would lead to death sentences in doubtful cases and "is obtuse by any moral or social measure."

The ruling overturns a Kansas Supreme Court decision that found the law violated the Eighth Amendment's protection against cruel and unusual punishment. Supporting Thomas, in addition to Alito, were Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy.

Souter, who was joined in his opinion by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer — stopped short of calling for an end to capital punishment, but he pointed to studies finding that dozens of people condemned to death were later exonerated.

"We are thus in a period of new empirical argument about how 'death (capital punishment) is different,' " Souter wrote.

He said that pressure for prosecutors to win convictions, eyewitness misidentifications and false confessions have contributed to "hazards of capital prosecution."

Scalia, in response, said those studies were not proved. "Those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free," he said.

The ruling involved the case of Michael Lee Marsh, who was convicted in the June 1996 killings of Marry Ane Pusch and her 19-month-old daughter. In its December 2004 ruling striking down the death-penalty law, the Kansas court also invalidated Marsh's capital-murder conviction for the child's death, saying Marsh's attorneys should have been allowed to present evidence that someone else was connected to the murders.

"Without this ruling, the decisions the juries made concerning the eight Kansas death-row inmates would be in jeopardy. I hope this will bring some closure to the families who have been waiting for this issue to be resolved," said Gov. Kathleen Sebelius.

Other cases yesterday:

Campaign finance: By a 6-3 vote, the court said Vermont's limits on contributions and spending in political campaigns are too restrictive and improperly hinder the ability of candidates to raise money and speak to voters.

Sentencing: By a 7-2 vote, the court said prosecutors' failure to submit to a jury a factor used in sentencing is not grounds for automatic reversals of convictions.

Defense attorneys: By a 5-4 vote, the court said defendants are automatically entitled to a new trial if their choice of a privately retained defense lawyer is wrongly blocked.

Federal judge halts

Missouri executions

ST. LOUIS — A federal judge Monday halted executions in Missouri until the state makes sweeping changes in the way it puts inmates to death.

U.S. District Judge Fernando Gaitan Jr. said the state's lethal-injection procedure subjects condemned inmates to an unnecessary risk of "unconstitutional pain and suffering."

Gaitan ruled in the case of condemned inmate Michael Taylor, saying it was apparent Missouri's execution process has "numerous problems."

"For example," he wrote, "there is no written protocol which describes which drugs will be administered, in what amounts." He gave the state Department of Corrections until July 15 to come up with a new protocol.