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November 1, 2005

Alito and the death penalty

As detailed in this post, Justice O'Connor's "evolving skepticism about capital punishment" during her tenure on the Supreme Court seemed to shift her from a fairly consistent vote to uphold death sentences to an unpredictable vote in capital cases.  And, as further discussed in this post, her successor could have a profound impact on the Supreme Court's capital sentencing jurisprudence. 

As detailed in this interesting article from Kansas, Kansas Attorney General Phill Kline issued a statement in support of Alito's nomination which suggests he expects Alito to vote to uphold the constitutionality of Kansas' death penalty (which is before SCOTUS in Kansas v. Marsh discussed here and here and here):

"The confusion and uncertainty injected in Kansas criminal law by recent Kansas Supreme Court decisions can be remedied by a United States Supreme Court decision deriving from the December 7th argument in the Marsh case," Kline said. "I urge the Senate to affirm this clearly qualified jurist."

Rebecca Woodman, a Kansas defense attorney who will be arguing against Kline in the death penalty case, said she didn't know what to make of the attorney general's statement.  "I guess he means if Alito is confirmed, he'll be on his side," said Woodman, who represents convicted killer Michael L. Marsh II.

As I first noted in this post, there is a basis to predict Alito may shift the Supreme Court's capital sentencing jurisprudence.   Alito's most recent major opinion in this area involved the reversal of a grant of habeas due to ineffective assistance in Rompilla v. Horn (available here).  That decision was ultimately reversed 5-4 by the Supreme Court in Rompilla v. Beard (available here), with Justice O'Connor serving as the key swing vote.  More background on this case and Alito's ruling can be found in this recent newspaper article.

November 1, 2005 at 08:30 AM | Permalink


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The Kansas AG may have also been referring to concerns that there will be a 4-4 split and that the case will have 2b reargued

Posted by: ward campbell | Nov 1, 2005 2:07:42 PM

Fair point, Ward, and I have been trying to track down the original statement to see the context.

Posted by: Doug B. | Nov 1, 2005 2:17:49 PM

Also, Rompilla involved an ineffective-assistance claim, which is primarily fact-driven. (No one argues about what Strickland means, just whether the two prongs have been met.) Marsh, on the other hand, concerns the Eighth Amendment requirement of aggravating factors, a much more legalistic claim. Should we say that Alito's tendency to view facts against the capital defendant will translate into a tendency to view the law against him?

Posted by: keith | Nov 2, 2005 5:15:34 PM

Keith asks, "Should we say that Alito's tendency to view facts against the capital defendant will translate into a tendency to view the law against him?" I question the premise, but aside from that I think Bronshtein v. Horn, 404 F.3d 700, cert. pending, provides a negative answer.

On our web site, www.cjlf.org, are some more thoughts on Alito and Rompilla.

Posted by: Kent Scheidegger | Nov 3, 2005 4:10:29 PM

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