The High Court Remains as Divided as Ever Over the Death Penalty

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a rule for addressing deadlocked pen-alty-phase deliberations, and in determining the availability of a new rule concerning consideration of mitigating evidence on habeas review. During the past term, two new justices joined the Court in the same term for the first time since 1972, the year Furman was decided. The first capital case the Roberts Court addressed was Kansas v. Marsh. The issue presented was whether the Kansas legislature’s command that a death sentence should be imposed whenever the jury could not conclude that aggravating factors outweighed mitigating factors produced arbitrary rather than reasoned sen-tences. If the outcome in Marsh is any indication of how the Court will deal with capital punishment in the future, it appears that the Roberts Court will divide as often and as sharply as did the Burger and Rehnquist Courts