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Death Penalty Back At The Supreme Court In New Term

A gurney in Huntsville, Texas, where prisoners are executed. The death penalty was at the Supreme Court again Wednesday.
Pat Sullivan
A gurney in Huntsville, Texas, where prisoners are executed. The death penalty was at the Supreme Court again Wednesday.

The death penalty reared its head again at the U.S. Supreme Court Wednesday. It was the first time the court publicly considered a death case since last term, when a constitutional challenge to lethal injection procedures erupted into a rare, nasty and vituperative debate among the justices. This time, the issues were far more technical but still a matter of life and death.

At issue before the court were decisions by the Kansas Supreme Court reversing the death sentences of men convicted in two high-profile and horrific murder cases. In one, known as the "Wichita Massacre," the lower court set aside the capital sentences of two brothers because they were tried together instead of separately. In the other, the Kansas court said the jury instructions had been confusing.

As the justices plowed through the two arguments, peppering counsel with questions, there were occasional echoes of last term's death penalty contretemps. There was also one foray, by Justice Antonin Scalia, into Kansas politics, a state where Republican officials are trying to remove funding for the courts.

While the justices seemed to be in some agreement on the technical questions before the court, the issue of the death penalty clearly remains an open sore, with Justice Scalia, at one point, pointedly disdaining Justice Stephen Breyer's views on the subject.

In the jury instruction case, the argument focused on whether the Kansas Supreme Court ruling was based on state law or on the federal Constitution. State Attorney General Derek Schmidt noted that the state court had repeatedly cited the U.S. Constitution in its ruling and not Kansas law.

Justice Samuel Alito said if the Kansas court had cited the state law, then "it would have to take responsibility for the decisions in these cases, which involve some of the most horrendous murders that I have seen in my 10 years here. ... So it did not take responsibility for that. It said ... we have to apply the federal Constitution" instead.

Justice Scalia pointedly asked whether Kansas elects its Supreme Court justices. "We do," replied Attorney General Schmidt.

Scalia then asked whether the death penalty has been imposed in the state. Schmidt replied that there are currently nine people on death row.

That "could suggest," said Scalia, that "Kansans, unlike our Justice Breyer" favor the death penalty, and that "an election ... would not come out favorably for those justices who ... would reverse these convictions."

"I am just speculating, of course," he added.

Although Scalia and Alito are among the court's most conservative justices, they had plenty of company in their skepticism about the Kansas court decisions, even from the court's liberals.

What a wonderful system we've created.

Justice Sonia Sotomayor seemed to be the most supportive of the Kansas court rulings, suggesting that her colleagues are willing to uphold a wrongful conviction as long as the state court is "reasonably wrong." But when that court is "wrong on a legal conclusion applying our test, we jump in and reverse them."

"What a wonderful system we've created," she said sarcastically.

Justice Breyer, who has suggested it may be time to get rid of the death penalty entirely, noted nonetheless that it is common to try multiple defendants together. His concern was that if the court were to sustain the Kansas court ruling, "it would affect every criminal trial of gangs across the country."

So for now, at least, there seems to be a certain detente on the court. But more death cases loom on the horizon.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.

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