While the rest of the world has been focused on former Crips member Tookie Williams and Kenneth Boyd — the 1,000th execution since the death penalty was reinstated in 1976 — the Supreme Court yesterday considered a narrower question on capital punishment.

In oral arguments Wednesday, the nine justices considered the question of the "presumption of death" in Kansas v. Marsh. At issue is whether or not the Kansas capital-punishment statutes violate the Eighth and Fourteenth Amendments.

Kansas has a peculiar law. Though it allows for mitigating factors to offset aggravating factors in jury deliberations concerning the death penalty, in cases in which the mitigating factors do not outweigh the aggravating evidence, the state imposes the death sentence.

That doesn't seem like a problem, does it?

But Kansas goes one step further than most states. It says that if the two factors tie, a so-called "equipoise," then the death penalty will also be imposed.

Since the court ruled capital punishment constitutional in 1976, it has created a series of precedents that sought to define and limit the scope of the ruling. Each successive ruling has created more and more stipulations, looking for some sort of "sweet spot" that balances the interest of the state with the rights of individuals.

For Justice Antonin Scalia, at least, the Kansas case seems to have hit his sweet spot. The justice quickly zeroed in on the safeguards that Kansas Attorney General Phill Kline laid out. In order for a person to receive the death penalty, the jurors must find unanimous agreement and proof beyond reasonable doubt of the aggravating factors, while the state itself has a very limited definition of capital murder.

Just in case the jury feels the need to recommend the death penalty but doesn't find it palatable, it may always opt to show the convicted person mercy.

Yes, Kansas has a mercy clause.

Justice Scalia was quite intrigued by the idea, perhaps seeing the Holy Grail of capital punishment that he has been seeking. Mr. Scalia has been vocal for years in his dislike of the complicated series of rulings that govern the death penalty. A mercy clause, in addition to these safeguards, seems to be his solution.

It wasn't just Justice Scalia who was interested in the particulars. Chief Justice John Roberts and Justice Anthony Kennedy also had their curiosity piqued. At one point, Justice Kennedy remarked that only people who could not muster mitigating factors could be executed under Kansas law.

It was Justice David Souter's musing that Kansas law has a "presumption of death" that may be incompatible with the Eighth Amendment that proved the strongest comment against the Kansas law, but that was quickly refuted by the justice's questions about process.

Despite basing most of her case on jurisdictional concerns, Rebecca Woodman, the attorney for Michael Marsh, ended spending most of her half hour trying to convince the judges that the application of the law was less rosy than Mr. Kline had led them to believe. The Court largely shrugged away her suggestions that the Eighth Amendment issue was not in play.

It's interesting that while the country is largely engaged in questioning the morality and social-justice implications of the death penalty, the nine justices of the Supreme Court heard possibly one of the most important capital-punishment cases since 1976 with little fanfare. And they stuck to the narrow issue of law.

Imagine that. Our appointed judiciary is more concerned with legal justice than our elected lawmakers. Does that say something about the voters or the officials?

In the end, however, opponents of the death penalty will not find much to hang their hats on with the latest arguments. The Court seems likely to uphold Kansas' law, with the "mercy option" becoming the benchmark for other similar cases.

It's a victory for jurors, who can now take a side option if they have moral objections to capital punishment, but it is hardly a victory for those waiting on death row.

Charles Parsons ([email protected]) is a senior majoring in literature in English and is editorial page editor of The Badger Herald.