Yet to come are decisions involving the constitutional right to mount an insanity defense, regulation of prisoners' access to magazines and newspapers, whether there will be any meaningful judicial limits on partisan redistricting, the potentially explosive issue of whether the Vienna Convention creates individual rights that can be asserted in state courts and whether those state courts must respect rulings of the International Court of Justice—and, of course, the deeply important case of Hamdan v. Rumsfeld on the use of military trials in "war on terror" cases.So....the biggie for today (yesterday, actually): KA v. Marsh:
Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines thataggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.Marsh at *1. A sentencing instruction requiring death if mitigation is "not outweighed" by aggravation is not facially unconstitutional, because the jury could consider all relevant mitigating evidence, including evidence tending to favor mercy in addition to evidence going to the defendant's character or the circumstances of the crime, where the State has the burden of disproving that aggravators do not outweigh mits. This suffices to satisfy the Court's requirements under Gregg v. GA that juries exercise "guided discretion." Scalia's Walton opinion is no longer laughable.
My point is that if people are bothered by a little twitching, we should stop tinkering with the machinery of death. Maybe we’re not brutes that enjoy killing, and maybe we should stop doing it. Unfortunately the Supreme Court has kept this issue out of the civil rights area (for example, they wouldn’t even hardly mention the issue of race in the rape cases) and leaves it up to the vagaries of public opinion (with the added vagaries and corruption caused by looking to the “objective” evidence of trends among elected officials). But we may (at least on either side of the not-very-smartland) be reaching a point where even under this structure executions are cruel and unusual.
Killing killers is killing us.