"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde

Thursday, October 15, 2015

The Justices Are Irked With One Another Over the Death Penalty

Supreme Court justices are rarely on good behavior when they are debating how the government should kill people. As much as they may brag about their collegiality and thick skins, the justices tend to go into beast mode when capital punishment is involved. Antonin Scalia delivers improvised rants from the bench. Clarence Thomas pens mini-biographies of murder victims to justify his biblical sense of revenge. Samuel Alito maligns the lawless “guerrilla war” to block states from obtaining drugs for lethal injection. (Damn that notorious guerrilla warrior, the European Union, for embargoing death drugs.) And the liberals take out their righteous fury on poor state attorneys who just want to get an execution or two under their belt.

On Wednesday, the court heard its first capital punishment case since last term’s Glossip v. Gross, a high-profile lethal injection case that began and ended with a collective convulsion of rage. This time around, the stakes are as low as they can be in a case that may well end with the state forcing toxic chemicals into a prisoner’s bloodstream until his heart stops beating. But throughout two hours of oral arguments, the justices repeatedly used the case to re-wage the ugly battles they fought in Glossip.

Wednesday’s arguments combined two cases out of Kansas to answer two constitutional questions. The first involves mitigators—those factors a capital defendant can put forward during sentencing to persuade the jury to spare his life. (Child abuse is one of the most common mitigators, since an astonishing number of convicted murderers were horrifically abused as children.) Capital defendants have a right under the Eighth Amendment to present mitigators to the jury. But the prosecution can present aggravating circumstances to demonstrate that the defendant is so depraved or unrepentant that he deserves to die.

In Kansas, aggravating circumstances must be proved beyond a reasonable doubt. Mitigators don’t: A defendant need only present them, not prove them. But the jury instructions used in two capital trials failed to explain this critical distinction. Instead, the instructions implied that both aggravating circumstances and mitigators must be proved beyond a reasonable doubt. In both trials, the juries sentenced the defendants to death. In both cases, the Kansas Supreme Court reversed the sentences, citing (among other things) the ambiguity of the instruction. Now the defendants are asking the Supreme Court to allow them to be sentenced again—this time with jury instructions that explicitly state that mitigators need not be proved beyond a reasonable doubt.

Source: Slate, Mark Joseph Stern, October 15, 2015

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