You Can Be Executed in Kansas, But At Least You Can Pick Your Own Lawyer!
Today, the United States Supreme Court simultaneously boosted my faith and broke my heart. Sadly, my anger at the decision that the Kansas system of imposing the death penalty was constitutional far outweighed my slight happiness that the Sixth Amendment right to counsel was expanded just a hair.
In 2004, the Kansas Supreme Court struck down the state’s practice of allowing the death penalty to be imposed even when a jury finds that mitigating circumstances are exactly equal with the aggravating circumstances in a capital case. Call me crazy (and liberal!), but I think that if the needle is precisely in the middle, the state should err on the side of “not death.” But no, they don’t have to, according to the US Supreme Court. And the swing vote was none other than newbie Alito, a practicing member of the Catholic Church (which, last time I checked, tended to frown upon the death penalty wholeheartedly). But, oh, Justice Souter - I adore your fighting, geriatric heart. You refuse to give up.
“In the face of evidence of the hazards of capital prosecution,” he said [in dissent], “maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure.”
Scalia, who wrote the majority opinion, apparently took exception to this passion, stating that there has never been a single case of an innocent person being executed. Great, Scalia - so as long as the person is guilty and the mitigating circumstances of his or her situation are exactly equal to any aggravating circumstances, it will be your thumb on those scales of justice, sending him straight to the gallows (or the surgical table with a needle as the case may be). I’m glad you can be so righteous about that.
In one of the other cases the Court decided today, though, the Justices held that a criminal defendant who has been denied their choice of lawyer and forced to have another one can have a conviction overturned. The Court held that the Sixth Amendment right to counsel (one of my personal favorites) is so basic that such a denial can only be remedied with the resulting conviction being overturned. In a bizzaro world of SCOTUS, Scalia wrote this decision as well, stating that the right to counsel “commands, not that a trial be fair, but that a particular guarantee of fairness be provided — to wit, that the accused be defended by the counsel he believes to be best.” Perhaps Scalia can sleep because he is so satisfied that he is ensuring the fairness of proceedings that, if it comes down to death anyway…bring it on.
