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As the 2015 Term opens: The Court’s unusual Eighth Amendment focus

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.”  Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.”  Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.”   Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty.  All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2).  One can expect that the smoldering embers of the Glossip debate will be quickly reignited.  This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

Here is a quick rundown of what is coming up:

1. Gleason and Carr — October 7:  On Wednesday, October 7, two companion capital cases will be argued: Kansas v. Gleason and Kansas v. Carr (which is in fact two consolidated cases, in which the respondents are brothers, with the docket numbers 14-449 and 14-450).  As is often true in such cases, the defendants were responsible for grisly multiple murders.  The two cases present one common question, while Carr alone presents an additional question that will be argued in the second hour (see “2” below).

The common question in Gleason and Carr is about death penalty jury instructions: Does the Eighth Amendment require that capital juries be “affirmatively instructed” that mitigating circumstances need not be proved beyond reasonable doubt?  The Kansas Supreme Court appeared to rule (five to two) that it does (although the court also relied on various state laws and precedents).  Given that guilt in Carr is uncontested for five grisly killings, and that the state court found two other grounds on which to vacate the death sentences of the two Carr brothers, the Kansas court’s decision seems like an example of increasing discontent with death penalty verdicts even in jurisdictions that allow capital punishment.

Kansas’s attorney general argues, essentially, that other jury instructions make it clear “in context” that jurors may individually determine mitigating circumstances, and that the Eighth Amendment does not require that the standard of proof for mitigating circumstances be specified.

By contrast, the Kansas Supreme Court ruled that because a standard of proof of “beyond a reasonable doubt” for aggravating circumstances was expressly stated, the failure to expressly state that that standard did not apply for mitigating factors imposed a “barrier to consideration” of mitigating circumstances which the Eighth Amendment does not permit.  Similarly, the capital respondents argue that the Kansas Supreme Court did not err in concluding that capital jury instructions, without the “need not be proved beyond reasonable doubt” instruction, created a “reasonable likelihood for confusion” regarding mitigating circumstances that violates  the Eighth Amendment.

In a non-Eighth Amendment argument, Gleason also contends that the Kansas Supreme Court’s decision ought to be construed as one applying its own state law, not the Constitution, and thereby immune from federal review.  While the Court’s decision to grant certiorari might mean that the Justices have already considered and rejected that view, oral argument can sometimes sharpen the focus on such a jurisdictional federalism argument.

Interestingly, the U.S. Solicitor General, who has been granted oral argument time on the second question in Carr (see below), says that he “agrees … that the state court erred” on the jury instruction issue.  But he “does not further address” this question because, in cases tried under the federal death penalty statute, jurors are expressly told that the standard of proof for mitigating circumstances is “preponderance.”

Death penalty critics might say that the Court in recent years has been overly “generous” in finding that jury instructions in capital cases have not confused jurors, and it ought to accept the Kansas Supreme Court’s decision here.  Supporters might respond that the Eighth Amendment prohibits only certain punishments, does not require specific instructions, and ought not be used to obstruct a constitutional punishment that is legislatively authorized and imposed by a jury.  Starkly different and overarching Eighth Amendment views are thus immediately presented by this opening Eighth Amendment case of the Term, and fireworks may be apparent early on.’

2. Kansas v. Carr and Carr (Question 2), October 7:  The two Carr brothers were tried and convicted together, and their capital sentencing proceedings were also a single trial before a single jury.  The Kansas Supreme Court vacated their death sentences, ruling that the Eighth Amendment’s “individualized sentencing” requirements required a severance for sentencing, even if not for guilt/innocence.

Two subsidiary issues are presented within the question of “severance for capital sentencing” here.  First, does the Eighth Amendment impose special considerations, or require severances generally, for sentencings after multiple defendants are convicted jointly of death-eligible offenses?  Second, even if there is no general rule, was a severance required in this specific case, in which the Kansas Supreme Court found that the evidence offered by each brother in support of mitigation – and the brothers did indeed present differing evidence at the sentencing — was in some ways “antagonistic” to the other’s?

On this severance question, the Solicitor General has filed as an amicus, arguing generally against “heightened constraints on joinder in capital sentencing proceedings,” and will have ten minutes of argument time.  With two separate advocates appearing on behalf of the Carr brothers and a third lawyer arguing on behalf of the state, this means that a total of four lawyers will divide the second hour of argument to close what the Justices may experience as an exhausting day spent solely on the Eighth Amendment.

3. Montgomery v. Louisiana – October 13: Montgomery is not a death penalty case.  Montgomery, now sixty-nine years old, received an automatic sentence of life without parole (“LWOP”) for the murder of a sheriff’s deputy in East Baton Rouge, Louisiana – a crime that occurred in 1963, when Montgomery was seventeen.  But in 2012, the Supreme Court ruled in Miller v. Alabama that mandatory LWOP sentences, when imposed upon juvenile offenders, violate the Eighth Amendment.  The question here is whether Miller applies retroactively. 

Again, strong feelings about the Eighth Amendment are likely to flare here.  Intricate discussions of retroactivity doctrine and federalism, habeas corpus, and finality, have proven attractive to some of the Justices in the past in cases such as Teague v. Lane (1989) and Coleman v. Thompson (1993).  On the other hand, in a case in which the defendant is sixty-nine years old and has been imprisoned for over a half-century, some Justices are likely to be stunned – but not into silence — by an argument that he cannot receive relief now (or perhaps ever) from a sentence that today would be flatly unconstitutional.  But Miller itself was five to four with three vigorous dissenting opinions; indeed, Justice Samuel Alito read his dissent from the bench.  There will be more fireworks here.

The Court has also directed argument on a separate question, which could preclude it from reaching the Eighth Amendment question at all: whether it has jurisdiction to review the Louisiana decision, on this successive habeas petition.  Because Louisiana and Montgomery agree that the Court does have jurisdiction, the Court has appointed an amicus to brief and argue the other side of this question.

4. Hurst v. Florida – October 13:  Hurst is perhaps the easiest of the five opening Eighth Amendment cases, because Florida’s capital sentencing scheme seems clearly to fail in light of Apprendi v. New Jersey (2000) and its capital follow-on, Ring v. Arizona (2002). (Disclosure: I have filed an amicus brief on behalf of the American Bar Association in support of Hurst.)  The Florida statute, which has not changed since the Court initially upheld it in 1976, has a number of questionable attributes.  The general question presented is whether Florida’s capital sentencing scheme violates the Sixth Amendment (the right to jury trial on aggravating sentencing factors as recognized in 2000 in Apprendi) or the Eighth Amendment in general.

The most obvious flaw in Florida’s statute is that it requires a judge to make “independent findings” about aggravating factors to impose a death sentence.  In Apprendi, of course, the Court held that the Constitution requires a jury, not a judge, to make any factual findings necessary to increase a “statutory maximum” sentence.  And in Ring, the Court applied Apprendi to strike down an Arizona capital sentencing statute quite similar to Florida’s, because it allowed a judge to impose a death sentence based on the judge’s separate “factual determinations” about aggravating factors.  The interesting combination of the “conservative” Justices who support Apprendi (primarily Justice Scalia as well as Justices Clarence Thomas and Anthony Kennedy), with Justices who are not supporters of the death penalty, produced a lopsided seven-to-two majority in Ring (even though Apprendi was decided five to four by the same Court.)  A similar dynamic may be in play in Hurst.

The Sixth Amendment may well be sufficient to decide Hurst.  However, other aspects of the Florida capital statute – pure Eighth Amendment questions – may provoke interest among some Justices.  For example, a Florida capital jury is expressly told that its verdict is “advisory” – does this unconstitutionally minimize the jury’s sense of responsibility, which the Court’s 1985 decision in Caldwell v. Mississippi prohibits?  Moreover, the advisory jury in Florida need not be unanimous.  Does the Eighth Amendment permit non-unanimous verdicts of death?  Finally, a Florida capital sentencing jury need not specify what aggravating factors it has found.  As the Florida Supreme Court itself has recognized, this theoretically means that only a single juror must find any single aggravating factor – agreement is not required by even a majority of jurors.

We will see whether these additional Eighth Amendment questions in Hurst receive any Justice’s attention at argument.  Regardless, I would not be surprised if the Court’s eventual opinion or opinions discuss them separately.

5. Foster v. Chatman (Warden) – November 2:  If Hurst is the “easiest” death penalty case of the first five, Foster is the most factually disturbing.  Foster, an eighteen-year-old African American at the time, was convicted of killing an elderly white woman during a burglary in Georgia.  During jury selection, the prosecutor struck all four black potential jurors, and Foster was convicted and sentenced by an all-white jury.  When an objection was raised under the Court’s 1986 decision in Batson v. Kentucky, the prosecutor offered “race neutral” reasons for striking the black jurors, while protecting his file from discovery.  But some nineteen years later, in 2006, the prosecutor’s jury selection notes were disclosed pursuant to an Open Records Act request.  The notes revealed a number of new, disturbing, facts: (1) each black juror was marked with a “B” and highlighted in green, which “Represents Blacks”; (2) on the juror questionnaires, the race “Black” was circled; (3) on individual juror cards, the black potential jurors were identified as “B#1,” B#2,” etc.; (4) One potential juror was identified by the prosecution investigator as “if it comes down to having to pick one of the black jurors, Garret might be okay;” (5) A list of “definite NO’s” listed the black potential jurors first and in numerical order.

The Georgia state habeas court found that this new evidence did not “override” the prior denial of Foster’s Batson claim.  The Supreme Court has now granted cert. directly from the Georgia Supreme Court’s summary denial of appeal from that ruling, suggesting, perhaps, an impatience with waiting for a lengthy federal habeas process to happen.  On the merits, Foster (represented by well-known death-penalty lawyer Stephen Bright) argues that “the evidence of racial motive by the prosecution … is extensive and undeniable,” while the Georgia attorney general contends that “none of the … new evidence shows an intent to discriminate” and that the federal court must give great deference to the state court’s ruling.

Foster obviously raises concerns apart from the Eighth Amendment, and the Court could decide the case without reference to the death penalty at all.  Justice Kennedy, among others, has expressed impatience (in Miller-El v. Cockrell in 2003, for example) with the summary denial of Batson claims when significant evidence is presented.  Yet it is not a coincidence that the Court’s strongest Sixth Amendment Batson precedents are also capital cases; the specter of improper racial influences in administration of the death penalty has long haunted the Court.  When Foster is argued, the memory of the Court’s 1986 decision in McCleskey v. Georgia, turning aside questions of race disparity in Georgia’s capital sentencing history, will likely be in the minds of at least some Justices.  Eighth Amendment concerns may not be spoken, but they undoubtedly will be present.


After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert. petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import.  Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions.  But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment.  In at least some of these cases – with that of the Carr brothers being the best example – there seems to be no doubt about guilt.  The horrific character of multiple rapes and murders is undeniable.  Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences.  Such cases thus starkly showcase the divergent views on the Eighth Amendment – and a nine-Justice Court is not different in this regard from much of America.  So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

Recommended Citation: Rory Little, As the 2015 Term opens: The Court’s unusual Eighth Amendment focus, SCOTUSblog (Sep. 21, 2015, 11:35 AM),