Whoa! Your critique of Justice Scalia's concurrence in the Kansas death-penalty case is pretty scorching. But to be fair to Scalia: Justice Souter's dissenting opinion starts this fight by raising potential death-penalty problems that are just not at issue before the court. Scalia then responds to these unnecessary jabs with massive verbal retaliation.
I don't ever recall seeing Supreme Court opinions that argue as vigorously as the concurring and dissenting opinions in this case, about controversial issues that are simply not before the court. The majority opinion by Justice Thomas is straightforward and unremarkable. For the death penalty to be imposed, Kansas requires the prosecution to prove beyond a reasonable doubtthat aggravating factors are not outweighed by mitigating factors—in fact a greater burden on the prosecution than some other states require. If a jury, using that standard, finds that the plus and minus factors are even, Kansas instructs the imposition of the death penalty. Rather than leave it to each jury to choose a decisional rule for "equipoise" cases, the state specifies the result in advance.
Now, I personally find the state's decision to mandate the death penalty in these circumstances both callous and unnecessary. But it's hard to see why this particular choice is constitutionally off-limits. Assuming the death penalty is otherwise validly imposed, what in the Constitution would preclude a state from imposing it when a defendant is found guilty of a capital offense, is otherwise eligible for the death penalty, and the jury is unanimously persuaded beyond a reasonable doubt that the mitigating factors fail to outweigh the aggravating factors?
There are some reasonable arguments for the dissenting position, but what really starts the fight is a final section in which Justice Souter argues that recent evidence shows that innocent people are at risk of being executed. That is a fiercely debated question among academics, organized bar groups, legislators, and concerned citizens. And that argument is relevant in any case in which the procedures for determining guilt or innocence are in issue. But that is not this case. There is no challenge here to Marsh's conviction of a capital crime, no assertion before the court of actual innocence. The narrow question concerns the process for determining who among those who commit capital murder should be executed. So, the whole problem of possibly executing the innocent seems to be a non sequitur.
The inclusion of the innocence argument in Justice Souter's opinion leaves him and those who join his dissent open to the criticism that they are using concerns about the death penalty that are simply not before the court to shape their view of a very particular question that is before the court.
Justice Scalia's opinion would have been a lot more persuasive if he had simply stated that he would not address to the dissent's argument about executing the innocent because it was not an issue in this case. But if the issues are not germane to the case, as he convincingly argues, how can he possibly justify such an elaborate and passionate critique? In an opinion bristling with hostility to "sanctimonious" death-penalty opponents, he launches an all-out assault on the idea that conviction of the innocent is a risk worth worrying about. His slashing critique of various studies of innocence reads at best like academic infighting, and at worst like a bad night on Crossfire. The passion with which he express his contempt for death-penalty opponents leaves him open to the charge that his personal views are driving his legal decision—precisely the charge he levels against the dissenters.
Ironically, in the course of his assault on death-penalty opponents, Justice Scalia includes some material that might provide a basis for questioning the Kansas law. He makes a great deal out of the relatively small number of executions in that state compared with the number of homicides. His point seems to be that if so few are sentenced to death, then those who are must nearly certainly be guilty.
But those facts are a two-edged sword. If the death penalty is so rare in the United States, a serious question exists about whether it has any morally coherent application here. No American jurisdiction has adopted a system of capital punishment reflecting a judgment that it is morally proper to execute everyone who intentionally kills. In fact, as Scalia notes, there have been 500,000 murders in the past 30 years and only about 950 executions. We are executing one in 500 murderers. This is consistent with the pattern for the last century: We have never executed more than a tiny fraction of those who commit murder.
The problem, as professor Frank Zimring noted years ago, is that execution is "a punishment in search of a crime." The fine distinctions that attempt to single out "first degree" murder from other murders have never been clear. Choosing one murderer in 1,000 for execution might nevertheless serve a coherent governmental purpose if we were choosing only the very worst of the worst to die. But there is scant evidence that this is the case. Caprice, or worse, seems to be at the heart of the selection process.
How is all this relevant to Marsh? If the randomness of the death penalty suggests that it tends toward the cruel and unusual, this vice can possibly be mitigated by rules that are designed to steer the selection of those who die toward a small but coherent category. The dissent's approach, by invalidating a default presumption for death, might be a small step in that direction. Whether it is a step that is constitutionally mandated is another question.