updated 6/26/2006 6:17:35 PM ET 2006-06-26T22:17:35

The Supreme Court upheld a state death penalty law on Monday in a splintered ruling that revealed deep division among the justices over the fairness of capital punishment in America.

New Justice Samuel Alito had been called on to break a tie in the case, which was argued twice — first while Sandra Day O’Connor was still on the court and then this spring so that Alito could end a deadlock.

The 5-4 outcome was as much a debate about capital punishment as it was a ruling on a unique law in Kansas, which has just eight death row inmates and hasn’t executed anyone in 40 years.

The law says that juries should sentence a defendant to die — rather than serve life in prison — when the evidence for and against imposing death is equal.

States favored
Justice Clarence Thomas, writing for the conservative majority, said “our precedents establish that a state enjoys a range of discretion in imposing the death penalty.”

But Justice David H. Souter, writing for the court’s liberals, said the law would lead to death sentences in doubtful cases and “is obtuse by any moral or social measure.”

The ruling overturns a Kansas Supreme Court decision that found the law violated the Eighth Amendment’s protection against cruel and unusual punishment. Supporting Thomas, in addition to Alito, were Chief Justice John Roberts and Justices Antonin Scalia and Anthony M. Kennedy.

The court’s decision might have been different if O’Connor had still been on the bench.

“This was the kind of case where she would have been close to the line and a big question mark,” said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.

The ruling shows that the death penalty is not in danger with the new court.

“We have a majority for the time being that’s not going to engage in further tinkering,” Scheidegger said.

Defining sides
The case was the last death penalty matter of the term. The justices wrap up their work later this week, after deciding the five remaining cases, and take a summer break.

“Perhaps it’s the end of the term and things have been brewing. This is a last chance to define the sides for future debates,” said Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center.

The four liberal members stopped short Monday of calling for an end to capital punishment, but they pointed to studies finding that dozens of people condemned to death were later exonerated.

“We are thus in a period of new empirical argument about how ‘death (capital punishment) is different,”’ Souter wrote.

He said that pressure for prosecutors to win convictions, eyewitness misidentifications and false confessions have contributed to “hazards of capital prosecution.”

‘Sanctimonious criticism’
Scalia, in response, said those studies were not proven. “Those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free,” he said.

He also complained that there has been “sanctimonious criticism of America’s death penalty” from people in other countries and that Monday’s dissent “will be trumpteted abroad as vindication of these criticisms.”

The ruling involved the case of Michael Lee Marsh, who was convicted in the June 1996 killings of Marry Ane Pusch and her 19-month-old daughter. In its December 2004 ruling striking down the death penalty law, the Kansas court also invalidated Marsh’s capital murder conviction for the child’s death, saying Marsh’s attorneys should have been allowed to present evidence that someone else was connected to the murders.

“Without this ruling, the decisions the juries made concerning the eight Kansas death-row inmates would be in jeopardy. I hope this will bring some closure to the families who have been waiting for this issue to be resolved,” said Gov. Kathleen Sebelius.

The case is Kansas v. Marsh, 04-1170.

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